Seguritan US Immigration Articles

Deportations Declined in 2015

Total deportations declined 25% to 235,415 in fiscal year 2015 from 315,943 in 2014, according to a report dated December 22, 2015 from the Department of Homeland Security (DHS).

The leading countries of origin for those deported were Mexico (146,132), Guatemala (33,249) and El Salvador (21,920). 196 came from the Philippines.

There were also far fewer people trying to get into the United States through unlawful means as evidenced by 337,117 apprehensions nationwide in FY 2015, which was significantly lower than the 486,651 total in FY 2014. This put border apprehensions at a 40-year low.

Border patrol apprehensions of Mexican nationals decreased by 18% compared to FY 2014. Meanwhile, apprehensions of Central American diasporas particularly from Honduras, El Salvador and Guatemala also decreased by 68% compared to FY 2014.

Secretary of Homeland Security Jeh Johnson said that in 2015, they focused the agency’s limited resources to combating threats to national security, public safety and border security rather than expending funding on individuals charged with minor crimes like traffic violations.

Individuals convicted of significant or multiple misdemeanors, or individuals arrested inside the US who unlawfully entered or reentered the country or individuals who had significantly abused the visa or visa waiver programs became a second priority of the DHS. More focus was on individuals considered as national security threats, convicted felons or aggravated felons, members of active criminal gangs, and illegal entrants apprehended in the border.

There was a shift in their enforcement actions at port of entry focusing more on arrests of individuals wanted for serious offenses like murder, rape, assault and robbery. Customs and Border Protection (CBP) officers arrested 8,246 individuals wanted for the aforesaid crimes and stopped 225,342 inadmissible individuals from entering the United States through ports of entry. The CBP also identified 11,611 high-risk travelers who would have been found inadmissible had they traveled to the United States, and who were prevented from boarding flights to the United States.

Immigration and Customs Enforcement (ICE) also placed more emphasis in going after convicted criminals as opposed to non-criminal immigration violators. It increased the percentage of deportation of felons by 3% over FY 2014 with a total of 139,368 removals or 59% of its total removals in 2015.

Another significant trend noted by the recent report is the rise of asylum seekers from Central America fleeing extreme violence in the region. Although apprehensions of individuals from countries other than Mexico- predominantly those from Central America- decreased by 68% in 2015, more nationals from these countries filed claims for protection under US law. During the early months of 2015 alone, USCIS received more asylum applications than the previous years.

As of October 2015, the United Nations High Commission for Refugees (UNHCR) reported that out of 16,077 females from El Salvador, Guatemala, Honduras and Mexico who were subjected to fear screenings by US asylum officers, 82% proved a bona fide claim for asylum under the Convention against Torture.

Immigration Programs Extended Under New Appropriations Law

On December 18, 2015, President Obama signed into law the Consolidated Appropriations Act of 2016 which includes the extension of four immigration programs until September 30, 2016. These programs are the EB-5 regional center program for immigrant investors, the Conrad 30 program for J-1 physician visa holders, the special immigrant visa for religious workers, and E-verify.

The bill also includes changes in the L-1 and H-1B fees paid by employers with more than 50 employees where 50% or more of the employees have H-1B or L-1 status.

The EB-5 regional center program grants green cards to foreign nationals who invest in any of the regional centers in the U.S. Unlike the regular EB-5 program which requires the investor to create 10 full-time jobs in two years, a regional center investor can use the more relaxed requirement of indirect job creation.

Another main difference is the amount of capital to be invested. Under the standard program the investment must be $1,000,000 unless it is made in a targeted employment area, which means that the place is a rural or high unemployment area. On the other hand, $500,000 is usually sufficient for investment in regional centers because most of them are already in targeted employment areas.

As many as 3,000 visas can be granted regional center investors annually. With a faster processing time and ongoing efforts to speed up the process in order to promote the program’s job-creation benefits, the EB-5 visa is one of the fastest routes to a U.S. green card.

Another program extended by the law is the employment-based 4th preference category visa for non-minister religious workers. This visa grants special immigrant status to individuals who are in a religious vocation or occupation but are not religious ministers.

The applicant must have been a member of a religious denomination with a bona fide non-profit religious organization in the U.S. and he must have also been working in a religious vocation or occupation. A religious vocation or occupation excludes positions that are primarily administrative in nature.

There are 5,000 visas reserved for this category which includes accompanying and following-to-join spouses and children.

The Conrad 30 program allows state health departments and agencies to recommend the waiver of the 2-year foreign residence requirement for up to 30 foreign medical graduates per year in J-1 status who agree to serve in medically underserved areas. This waiver allows them to change their status to H-1B or adjust to permanent residence and meet the demand for healthcare in areas where doctors are in short supply. Those who obtain the waiver are not subject to the annual H-1B cap.

The E-Verify system is an Internet-based program that allows a participating employer to electronically confirm the employment eligibility of a newly-hired employee using the databases of the USCIS and the Social Security Administration.

K-1 VISA UNDER SCRUTINY

Earlier this month, news broke out that 14 innocent civilians were killed in a company party in San Bernardino, California. As a result of the mass shooting, the K-1 fiancé(e) visa process is being looked into because Tashfeen Malik, a Pakistani citizen, and one of the terrorists who carried out said shooting came to the US on a K-1 visa and later became a lawful permanent resident.

Several members of the US Congress have expressed concern over the fact that Malik was able to obtain her K-1 visa despite giving fingerprints and other information that were checked and cross-referenced against US immigration, terrorism and criminal databases. As a result, the USCIS is now looking into enforcing stricter guidelines.

The US government has a stringent process currently in place to ensure that marriages are made in good faith and is not ‘sham marriage’ or ‘fake marriage’. Under the program, the two people involved—the US citizen and his foreigner fiancé(e)— must genuinely love each other and have the sincere intent to get married within 90 days of the fiancé(e)’s arrival in the US. Both of them must be legally free to marry at the time a fiancé(e) petition is submitted to USCIS by the US citizen sponsor and must remain so thereafter. The couple must have met in person within the past two years. Proof of the relationship must likewise be shown.

Once the USCIS approves the K1 visa petition, it is forwarded to the National Visa Center where background checks are performed on the foreigner fiancé(e). The NVC will forward the petition to the Consulate that will conduct the interview. During the foreigner fiancé(e)’s interview before the Consulate, he/she is required to show proof of their intent to get married like pictures, letters, travel and hotel records and instant messages to the interviewing officer. Even during this stage, an application can be turned down if it cannot show enough proof of the relationship’s genuineness. In addition, it can be turned down on account of the foreigner fiancé(e)’s police or criminal record. The foreigner fiancé(e) also has to undergo a thorough medical examination.

Upon arrival in the US, the couple has 90 days to get married otherwise the foreigner fiancé(e) can be deported. When he/she applies for Adjustment of Status, they also have to show proof like pictures and joint documents. This is another step the couple needs to hurdle as it usually takes another six months before the ‘green card’ will be released, if at all.

The foreigner wife/husband has to go through another round of fingerprinting and facial recognition and another round of interview by the USCIS before the ‘green card’ is approved. Questions like “Do you seek to engage in terrorist activities while in the US or have you ever engaged in terroristic activities?” need to be answered.

From 1989 to 2014, 512,164 K-1 visas were given following these layers of processes placed to ensure that nobody thwarts the security measures of the United States and to ensure that the couple are really who they purport to be.

It is also important to note that depending on which country the fiancé(e) is from, the process can be even more daunting. The Philippines, for instance, has the largest K-1 visa applicants with over 7,228 Filipinos entering the US in fiscal year 2014, but at the same token, it also has the most difficult process. US citizens often go to the Philippines to meet their fiancé(e) because it is logistically hard for Filipinos to obtain a tourist visa to the US to visit the American fiancé(e).

Needless to say, while we want our borders secure and free from anybody who wishes to cause harm, it is not fair to single out a particular type of visa. US citizens must likewise be free to marry foreign spouses of their choosing. And while more scrutiny and additional screening for the K-1 visa is inevitable, holders of K-1 visa have obtained the privilege to be on American soil by following a long and difficult process.

The Long Wait for Employment-Based Green Card

Many people know that the process of becoming a U.S. immigrant through employment begins with the filing of a labor certification application or an immigrant visa petition which assigns a “priority date” to the foreign national. This priority date determines the foreign national’s place in the line for an immigrant visa.

But many people also make the mistake of underestimating the length of time they must wait before a visa number becomes available to them. For example, if an EB3 preference petition is filed for a professional today, he might assume that, based on the latest visa bulletin which shows an August 1, 2007 cut-off date for the Philippines, his priority date will become current in about eight years.

This is not necessarily true. To understand how long one must wait before his/her priority date is reached, it is useful to have an idea of how immigrant visa numbers are allocated and what the actual demand under a visa category is.

The monthly cut-off date is determined by the Visa Office (VO) of the Department of State (DOS). The VO collects information from overseas consular posts as well as the USCIS with regard to immigrant visa requests. It calculates visa number usage and compares the demand with the allotment, separating it by foreign state chargeability and preference.

If the demand does not exceed the allotment, the category is current and no cut-off date is needed. Otherwise, the category is considered oversubscribed and DOS sets a cut-off date which is the priority date of the first applicant who will not receive a visa number.

Employment-based (EB) immigration operates on a preference system which distributes the limited number of immigrant visa numbers available each year into five general categories. These are: EB1 for priority workers; EB2 for advance degree processionals and aliens of exceptional ability; EB3 for skilled workers, professionals and lesser skilled “other workers”; EB4 for special immigrants, including religious workers; and EB5 for investors. The principal worker’s spouse and children are counted against the available number of immigrant visas.

The law sets a worldwide limit of 140,000 EB visas per fiscal year. The EB1, EB2 and EB3 categories each get 28.6% of the total or 40,040 visas per category. The EB4 and EB5 categories each get 7.1% or 9,940 visas.

However, there is also a per-country limitation in the number of visas available per EB category which is 7% of the total annual limit. This means that only 2,803 visas for EB1 through EB3 and about 700 visas for EB4 and EB5 may be initially allocated to any single nationality group per year. Quite obviously, the visa allocation system works to the disadvantage of populous countries such as India, China and the Philippines.

The complex visa allocation system also involves several mechanisms that reallocate unused visa numbers. Unused visa numbers in EB4 and EB5 “fall up” to EB1. Unused numbers “fall down” from EB1 to EB2 to EB3. If an oversubscribed country has a relatively small demand for family-based visas, the excess visa numbers “fall across” to the EB preferences, as long as the total number use is still within the 7% limit for the country. This also works the other way around, i.e. from employment based to family based. However, the Philippines does not benefit from this type of spillover because it is oversubscribed in both employment and family preferences.

Nonimmigrant Visa for Religious Workers

The religious worker (R) visa program was established in 1990 to allow foreign religious workers to perform religious duties in the United States on a temporary basis. The program was intended to enable churches, mosques, synagogues and other religious organizations, which had been struggling to find qualified workers, to better serve their communities.

The petition is made on Form I-129 with the R-1 classification supplement. It must be filed by the U.S. sponsoring organization that must demonstrate membership in a specific religious denomination.

A “religious denomination” is a religious group or community of believers having some type of ecclesiastical government, a common creed or statement of faith, form of worship, a formal code of doctrine and discipline, religious services and ceremonies, established places of worship or religious congregations, or comparable indicial of bona fide religious denomination.

The employer must be able to show tax-exempt status under Section 501(c)(3) of the Internal Revenue Code. The petition must include a clear job description and state the number of hours the beneficiary will work per week, which must be no less than 20 hours.

The R-1 beneficiary is usually a minister who must be authorized and trained to conduct religious worship and who will work solely as a minister in the United States. The minister must give proof of the denomination’s requirements for someone to become a minister, and evidence of his or her ordination and theological education. A lay preacher is not a minister.

Religious vocational workers and religious occupation workers are also eligible for an R-1 visa. Religious vocation refers to a formal lifetime commitment to a religious way of life. Examples of vocations include nuns, monks and religious brothers and sisters.

Workers considered to be in a religious occupation include religious instructors, missionaries, translators and religious health care workers. Positions that are primarily administrative or support positions, such as janitors, maintenance workers, fund raisers and clerical employees are excluded.

The religious worker must be able to document at least two years of membership in the denomination. The sponsor must be of the same religious denomination of which the beneficiary has been a member.

Because of the high fraud rate in the R visa program, on-site inspections of petitioning organizations are required. The site visits may be scheduled or unannounced. The religious visa is employer specific but, if authorized by the USCIS in a separate petition, the worker may have more than one employer at a time.

The spouse and children may also be included as derivative beneficiaries but they cannot work.

The R-1 beneficiary is initially allowed a period of 30 months to stay but it may be extended for an additional 30 months. The extension application must be accompanied by financial and other supporting documents to show that the beneficiary worked as R-1 for the first 30 months.

Only periods of physical presence in the U.S. are counted towards the 5 year maximum. Any trip of at least one 24-hour day outside the U.S. can be recaptured.

The petitioning organization carries the burden of proof to establish eligibility for time recapture. It must submit evidence documenting the beneficiary’s periods of physical presence outside the U.S. Although summaries and charts of travel are helpful, the petitioner must remember to include independent documentary evidence of the time sought to be recaptured, such as copies of the passport stamps, I-94 cards, and plane tickets.

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