Archive for the ‘Pending Permanent Resident’ Category

Immigration By The Numbers

Tuesday, April 13th, 2010

Yesterday the USCIS released its FY 2009 immigrant visa numbers. More than a million people legally immigrated to the United States in FY 2009. Almost 60% of those folks did so through the adjustment of status process, meaning they were already in the U.S. when their place in line was reached. While not disclosed by USCIS, the supposition is that a number of those folks were actually out of status or, even undocumented, and were able to adjust status using INA 245(i), the penalty law still available to anyone who was a direct or derivative beneficiary of an immigrant visa petition or labor certification filed before April 30, 2001.

The most telling part of this report was the tiny portion used by employment based immigrants. The top three employer-based preferences in terms of green cards issued to the “principal” immigrant (not including their family members) remained the same in 2009 as the prior year—professionals with advanced degrees and aliens of exceptional ability (22,098), skilled workers, professionals, and needed unskilled workers (18,359), and multinational executives and managers and other priority workers (16,806).
This led me to think about the nasty positions taken by USCIS as it attempts to restrict the number of people immigrating to the U.S. through the severely limited number of employment based visas. The “Neufeld” memo continues to spill over form the H-1B categories into other nonimmigrant AND immigrant visas, RFEs, and denials. The sheer number, verbosity and intellectual dishonesty of the RFEs that pour out of the Service Centers are sending talented, potential immigrants for the gates. Yet, 900,000 other immigrants came into the U.S. last year based solely on their relationship to a U.S. Citizen or Lawful Permanent Resident, regardless of how their immigration would impact the job market, or what skill set they brought. The message is clear from the government and USCIS–get yourself a relative in the U.S. and you can come. But forget about an employment based immigrant visa.
I have previously blogged on the Immigrant Visa Wait Times. The crisis in employment based immigration created by these wait times may abate if the limited use of H-1B visas this fiscal year by employers continues. Prospective immigrants will just go home. We can conclude the obvious–the USCIS has been successful in dissuading employers from hiring new foreign workers and in restricting employment based immigration. While restrictionists and protectionists are undoubtedly delighted by this news, it is only America that will suffer in the long run.
We need talented, risk taking immigrants more than ever in the U.S. If they are continuously dissuaded from coming to the U.S. by a USCIS on a mission to limit employment based immigration, and by broken 20th century immigration laws, America will not reach its full potential in the 21st Century.

Update on Widower Penalty Litigation

Tuesday, July 28th, 2009

We are still working on fighting U.S. Citizenship and Immigration Services on the issue as to whether a widower of a U.S. citizen spouse is entitled to the classification of beneficiary when trying to adjust status in the U.S. after their U.S. citizien spouse is deceased, but before the I-130 and I-485 is approved.  This is still a very highly-litigated issue, so much so that a widower out of the Second Circuit in New Yok has just filed an appeal with the U.S. Supreme Court on July 23, 2009 to request that they settle a three to one circuit split.  As far as the 11th Circuit here in Atlanta, we are still in the District Court level and awaiting the outcome of the Judge’s decision on the government’s Motion to Dismiss and our Opposition to the Motion to Dismiss.  Thus far, approximately six circuit courts across the country have dismissed defendants motions to dismiss and disagreeing with their claim that widows of U.S citens are no longer considered beneficiaries for adjustment purposes.

Article on Undocumented Aliens and In-State College Tuition

Tuesday, July 28th, 2009

I came across this article by Greg Abbott, Attorney General of Texas, where he addressed questions regarding Texas’ law allowing undocumented aliens to receive in-state tuition over U.S. citizens who are not residents of the state of Texas.  Each state will have its own laws regarding a foreign national’s ability to receive in-state tuition from a public college or university.  In Texas, one is eligible for in-state tuition if they graduated from a high school in Texas and maintained a residemce continuously for three years preceding graduation.  The Texas law is more lenient than the law in Georgia in that one who can provide an affidavit stating that they will apply to become a permanent residence as soon as they are eligible.  In contrast, Georgia law requires that a foreign national is a lawful permanent resident or U.S. citizen before they can be eligible for in-state tuition.   This is a tricky situation becuase foreign nationals can easily be confused due to the varying laws from state to state.  This topic is interesting to me because in the last two weeks more than a few clients have asked me this very question because they are in the process of seeking admission and paying tuition fees to the univerisites they are attending this fall.  One client said that the school is considering allowing him to receive in-state tuition even though he only has a pending adjustment application, although Georgia law does not allow this.  My advice to him was that he must be very careful to read the application thoroughly before he takes in-state tuition.  Even if the school allows him to do so, if immigration looks back and realizes that he received in-state tuition because he accidently misrepresented himself to be a lawful permanent resident, they may find him to be inadmissible as a lawful resident and could potentially be deported.  It is always best to consult your immigration attorney regarding these issues because the schools may not necessarily know how one small checked box may severely impact your future in the United States.