Seguritan US Immigration Articles

Philippine EB-3 Has Advanced Over 6 Years in Past 12 Months

The January 2015 Visa Bulletin shows that the worldwide employment-based third preference (EB-3) cut-off date which includes the Philippines has advanced by 7 months from November 1, 2012 in December to June 1, 2013. China has advanced by 9 months to March 1, 2011 and India by 2 weeks to December 15, 2003.

The Philippine EB-3 cut-off date has jumped dramatically by 6 years and 3 ½ months in the past 12 months. In January 2014, the cut-off date was February 15, 2007. Such rapid movement is likely to increase the demand for visa numbers and this may require corrective action. Retrogression is a possibility in the coming months.

China’s employment-based second preference has advanced by one month to February 1, 2010 but India is unchanged at February 15, 2005.

The employment-based second preference (EB-2) remains current for all other countries. All the other employment preferences remain current for all countries.

The family-based preferences (F-1 to F-4) move slowly. The worldwide preference cut-off dates are as follows: F-1 – July 8, 2007; F-2A – April 15, 2013; F-2B – April 1, 2008; F-3 – December 22, 2003 and F-4 – March 22, 2002.

The Philippines cut-off dates are: F-1 – December 22, 2004; F-2A – April 15, 2013; F-2B – February 1, 2004; F-3 – July 8, 1993 and F-4 – July 15, 1991.

Because of the annual numerical limitation of visa numbers, cut-off dates are established for oversubscribed categories. If an applicant’s priority date is before the cut-off date stated in the monthly visa bulletin, a visa number is immediately available. If the priority date comes on or after the cut-off date, the applicant needs to wait until the priority date becomes current.

The family-based 1st preference category (F-1) refers to unmarried sons and daughters of U.S. citizens, while the F-2A preference refers to spouses and children (less than 21 years old) of permanent residents.

The F-2B preference category refers to unmarried sons and daughters (21 years or older) of lawful permanent residents. The F-3 preference refers to married sons and daughters of U.S. citizens. The F-4 preference pertains to brothers and sisters of adult U.S. citizens.

Beneficiaries of employment-based and family-based preferences who have priority dates earlier than the aforementioned cut-off dates and are currently in the U.S., must file their adjustment application in order to get certain interim immigration benefits such as employment authorization and travel permit. Those with pending adjustment applications will be allowed to remain in the U.S. and work here until the adjudication of their adjustment applications.

Eligible to file for adjustment of status are those lawfully present in the United States or those who are beneficiaries under Section 245(i) of the Immigration and Nationality Act. To be covered under Section 245(i), an alien must be the beneficiary of an immigrant visa petition or labor certification properly filed on or before April 30, 2001. If the visa petition or labor certification was filed after January 14, 1998, the alien must prove that he/she was in the U.S. on December 21, 2000.

Among the documents required to file for adjustment of status, in addition to Form I-485 and related forms, are the applicant’s photographs, medical examination report, affidavit of support, copy of passport and I-94, copy of birth certificate, and if applicable, copy of the applicant’s marriage certificate and official proof of termination of any prior marriage.

DACA Beneficiaries Allowed To Get Driver’s Licenses

The U.S. Supreme Court left undisturbed a U.S. Court of Appeals ruling requiring Arizona to issue driver’s licenses to beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program or the so-called “DREAMers”. The recent decision is a victory and a big gift for thousands of immigrant youth in Arizona this holiday season.

President Obama’s DACA program, which started in 2012, granted deferred action to immigrants who arrived in the United States before turning 16 and who satisfied all other eligibility requirements including meeting the age cap of 31 years, education, physical and continuous presence requirements and passing a criminal background check. Recipients of the program were granted deferred action status and employment authorization for a period of two years.

DACA beneficiaries who obtained work permits and Social Security numbers have been able to apply for driver’s license in 48 states. Only Arizona and Nebraska adopted policies that specifically made DACA beneficiaries ineligible to obtain driver’s licenses.

The decision of the Ninth Circuit Court of Appeals which was upheld by the Supreme Court in a 6 to 3 vote stated that the state’s policy barring DACA recipients from obtaining driver’s licenses was likely unconstitutional. It instructed the federal district court hearing the case to issue a preliminary injunction prohibiting enforcement of the state’s policy while the case continued.

The challenged policy has been in effect for two and a half years. Arizona Governor Janice Brewer, on the very day the DACA program took effect, issued an executive order directing state agencies to make DACA beneficiaries ineligible for “state identification, including driver’s license”

The Arizona Department of Transportation then adopted a policy specifically rejecting employment authorization documents issued to DACA beneficiaries as proof of eligibility for driver’s license. Meanwhile, it continued to accept employment authorization documents of other noncitizens legally in the U.S.

The Appeals Court in its decision stated that the policy most likely violated the Equal Protection Clause. The Appeals Court found no rational basis for the state to treat DACA beneficiaries any differently from other noncitizens who were in the country legally and were allowed to apply for a driver’s license using their employment authorization documents.

According to Justice Harry Pregerson who wrote the opinion, “Defendant’s policy appears intended to express animus towards DACA recipients themselves.”

The Appeals Court also considered the “preemption” claim which basically means that federal law trumps state-enacted regulation. By refusing to grant driver’s licenses to DACA beneficiaries, the state policy “interferes with Congress’ intent that the Executive Branch possess discretion to determine when noncitizens may work in the United States,” the court said.

The DACA program authorizes certain young immigrants to remain in the U.S. and apply for work permits so they can continue being productive members of society. In Arizona, “the ability to drive may be a virtual necessity for people who want to work.”

By ensuring that DACA recipients are unable to drive, the policy severely curtails their ability to work. In so doing, the policy “would stand as an obstacle to the execution of the full purposes and objectives of Congress,” the Appeals Court said.

The Supreme Court in affirming the Appeals Court’s ruling did not give its reasons for its decision. Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito, Jr. who disagreed with the majority’s decision also did not give their opinion.

Philippines is 2nd in Number of Immigrant Visa Applicants

Immigrant visa applications in the various preference categories which are subject to numerical limit are registered on the visa waiting list. Approved petitions for applicants applying overseas are forwarded by the United State Citizenship and Immigration Services (USCIS) to the Department of State (DOS).

A report from the National Visa Center and submitted to the Department of State shows that the number of family-based applicants on the waiting list for immigrant visa numbers as of November 1, 2014 was 4,331,750, an increase of 120,779 or 2.9% from last year. The number of employment-based visa applicants was 90,910, down by 20,694 or -18.5% from last year.

The Philippines placed second over-all, with 428,765 registrants. The other countries that round up the top five in terms of number of registrants are: Mexico – 1,323,978; India – 323,089; Vietnam – 259,030; and China – 243,440.

These numbers include the principal applicants or petition beneficiaries as well as their spouses and children entitled to derivative status. However, they do not include immediate relatives who are not subject to the numerical limitations, namely, spouses, unmarried children under 21 years of age, and parents of U.S. citizens.

Applicants for adjustment of status are not included. The figures do not also include those who failed to respond within one year to the visa application instruction letter sent by the National Visa Center notifying them of visa availability. In such case, the petition is considered inactive and not counted.
An annual worldwide as well as per country limit of immigrant visa issued is set in accordance with the Immigration and Nationality Act (INA). There is also a limit on each preference category. During the fiscal year 2014 which ran from October 1, 2013 through September 30, 2014, visas issued were no more than 226,000 in the family-sponsored preferences and approximately 150,241 in the employment-based preferences. The per country limit was approximately 26,337.
The number of registrants for the family-based preferences (F) are: F1 (unmarried sons and daughters of U.S. citizens) – 314,527; F2A (spouses and children of permanent residents) – 257,355; F2B (adult sons and daughters of permanent residents) – 498,277; F3 (married sons and daughters of U.S. citizens) – 805,627; and F4 (brothers and sisters of U.S. citizens) – 2,455,964.

The Philippines has the second highest number of family preference registrants with 399,061.

Mexico ranked first in all family-based preferences. The Philippines ranked second in the F3, category; third in the F1 and F2B categories, fourth in the F2A category and fifth in the F4 category. More cases may be added to the F1 waiting list because of the automatic conversion of pending 2B cases into F1 cases upon the naturalization of the petitioner. The automatic conversion may be avoided by availing of opt-out provision under the Child Status Protection Act. Many Filipinos have taken advantage of this law by opting to remain under F-2B in order to avoid the longer wait under F1.

In the employment-based categories, the Philippines ranks first with 29,704 followed by India with 27,832; China with 11,672; South Korea with 3,328 and Mexico with 2,609. The report notes that 86% of all employment-based preference immigrants are currently being processed as adjustment of status cases at the USCIS offices.

The number of registrants under the employment-based preferences (EB) are broken down as follows: EB1 (workers with extraordinary ability, outstanding professors and researchers, and multinational managers and executives) – 2,733; EB2 (advanced degree professionals and aliens of exceptional ability) – 8,380; EB3 (skilled workers and professionals) – 65,580; EB3 (other workers) 7,484, EB4 (special immigrants and religious workers) – 315; and EB5 (employment creation) 6,418.

The Philippines ranked first in the EB3 (skilled workers) category, and fourth in the EB2 and EB 3 (other workers) categories.

For fiscal year 2015, the annual maximum number of visas to be issued in the family-based category will be no more than 226,000 and approximately 144,000 in the employment-based category. Per country limit will be approximately 25,900.

Don’t Be A Victim of Immigration Scam

Following President Obama’s announcement of his immigration plan which includes protection from deportation for millions of immigrants, immigrant advocates warned against scammers who seek to profit from the program. Their modus operandi would be to promise immigrant families help in exchange for a fee.

The President’s series of executive actions which include the Deferred Action for Parental Accountability (DAPA) program and the expanded Deferred Action for Childhood Arrivals (DACA) program is expected to grant deportation relief to approximately five million undocumented immigrants.

Under the DAPA program, “deferred action” is extended to qualified parents who have U.S. citizen or lawful permanent resident children who have resided in the U.S. since January 1, 2010. The DACA program launched in 2012 is also expanded to cover undocumented immigrants who came to the U.S. as children but did not qualify under the initial program because of their age. The expansion would allow more immigrants to qualify under the program.

Applicants will undergo a thorough background check. Beneficiaries of the program would also be granted work authorization,

The United State Citizenship and Immigration Services (USCIS) announced that the initiatives have not yet been implemented and that they are not yet accepting any requests or applications at this time.

The USCIS also warned against different scams such as telephone scams. Scammers, in such instances, would pose as USCIS personnel or other government officials and request personal information such as Social Security number, passport number, identify false problems on the individual’s immigration records and ask for payment to correct the records.

The agency also warned against advertisements in the internet, newspaper, radio and community bulletins offering immigration help. Many fall prey to unscrupulous individuals who pose as “Notario Publico” and offer legal services related to immigration. The USCIS stressed that notaries are not authorized to provide legal services relating to immigration. They are people appointed by state governments to witness the signing of an important document and administer oaths.

Some businesses may also advertise that they can “guarantee” a visa, green card, or employment authorization documents and can obtain it faster than when applying directly with the USCIS. They would charge a high fee.

Immigrant advocates advised that immigrants should seek information from legitimate legal service providers. They should seek reputable attorneys and Board of Immigration Appeals (BIA) accredited representatives working for BIA approved organizations. Heartland Alliance’s Chicago-based National Immigrant Justice Center (NIJC) further recommended that they should also not sign any document or pay anyone at this time for legal services.

A total of 891 complaints for immigration services were reported last year according to the Federal Trade Commission. This number is up from the 746 complaints reported in the previous year but less than the reported 1,220 complaints in 2011.

Dan Kowalski, editor of Bender’s Immigration Bulletin, believes that it is too early to hire anyone since the government is not expected to publish applications for three to six months. He said that “There is no application date, there’s no form, there’s no procedure. Anyone who pays a dime is gambling.”

Individuals who qualify for the administrative relief may begin collecting necessary documents in preparation for the application process expected to start next year. Documents may include, among others, proof of identity, family relationship and presence in the US.

Immigrant families are warned that the wrong help would not only cost them money but would also hurt their chances of benefitting from the program.

Who Will be Deported Under Obama’s Immigration Plan?

Part of the President’s immigration plan announced last November 20 is the shift in enforcement policies set forth in detail in the policy memorandum on apprehension, detention and removal of undocumented immigrants.

The memo issued by Department of Homeland Security Jeh Johnson focuses on the deportation of unauthorized immigrants who pose threats to “national security, public safety, and border security.” It serves as a guidance to agencies such as the Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services. (USCIS).

The memo identifies three deportation priorities. Priority 1 represents the highest priority for enforcement. They include individuals who are engaged in or suspected of terrorism or espionage or otherwise pose a danger to national security. Also included are individuals who pose as threats to public safety such as individuals convicted of felonies, aliens convicted of offenses defined as aggravated felonies under U.S. immigration laws, and gang related convictions or intentional participation in gang activities.

Individuals who are apprehended at the border or ports of entry while attempting to unlawfully enter the United States or recent border crossers are also top priority for enforcement.

Secondary priorities or Priority 2 identified in the memo are misdemeanants and new immigration violators. They include individuals with convictions for three or more misdemeanor offenses which arose out of three separate incidents. This does not include traffic offenses or local offenses for which an essential element was the alien’s immigration status.

Also identified as a second priority for enforcement are individuals with convicted of a “significant misdemeanor” defined for these purposes as being an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, driving under the influence, or a conviction where the individual was sentence to a time in custody of 90 days or more. The sentence must involve time to be served in custody and does not include suspended sentence.

Recent border crossers or individuals who are apprehended anywhere in the United States after unlawfully entering or re-entering the U.S. and who cannot establish that they have been continuously physically present in the U.S. since January 1, 2014 are also listed as a second priority for enforcement.

Individuals who, in the judgment of an ICE Field Director, USCIS service center or district director, have significantly abused the visa or visa waiver programs are also included.

Priority 3 represents the lowest priority for enforcement. This is accorded to individuals who have been issued a final order of removal on or after January 1, 2014.

The memo does not prohibit or discourage the apprehension, detention, or removal of aliens not identified as priorities. However, it stressed that resources should be dedicated, to the greatest degree possible, to the removal of aliens identified as priorities for enforcement. It also states that anyone can be a target for removal if an ICE Field Office Director determines that removal would serve important federal interest.

Detention resources, as set forth in the memo, should be used to support enforcement priorities. Field office directors are instructed not to expend detention resources, absent extraordinary circumstances, on aliens who are known to be suffering from serious physical or mental illness, disabled, elderly, pregnant, nursing or primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest,.

The memo also lists a number of factors in exercising prosecutorial discretion in removing those listed as priorities for enforcement. Factors include extenuating circumstances involving the offense of conviction, extended length of time since the offense of conviction, length of time in the U.S., military service, status as a victim, compelling humanitarian factors such as poor health, among others.

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