• Fees: Fees on INS's forms I-360, N-300, N-336 and N-470 are scheduled to change on January 14, 2000. See
  http://www.aheckler.com/pages/fp.php#2

• INS: The Acting General Counsel has written a letter to the American Immigration Lawyers Association (AILA) enumerating 21 issues regarding the 1996 and 1997 laws which have been resolved. Many of these issues deal with the complex areas of unlawful presence and the proper application of section 245(I). Read the complete text of the letter at
  http://www.aheckler.com/pages/up99.php

• Media: Immigration was in the news with the national spotlight on a six-year-old Cuban boy, Elian Gonzalez. The television magazine "Extra" aired a segment during the first week of January during which I commented on the legal aspects of the case. Next week, CNN will do a feature regarding our client, Guy Taylor, an 18-year-old orphan from Canada whose entire family lives in the U.S., but who will be separated from them unless Congress passes a private bill on his behalf. (Senator Feinstein (D-CA) has promised to introduce such a bill as soon as Congress reconvenes!)

• Students: INS has proposed a $95 fee for F-1, J-1 and M-1 students. Schools and exchange programs would collect the fee at the time the student enrolls or commences the exchange program. Exempted would be J-1 students in government-sponsored programs and F-1 and M-1 students enrolled in private elementary schools or public or private secondary schools. Written comments on the proposed regulations are due by February 22, 2000.

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1. February 2000 State Department Visa Bulletin

On January 14, 2000, we posted the February 2000 Visa Bulletin, before the State Department posted the dates on their web site.

For the Family categories, the priority dates continue to advance very slowly. Worldwide numbers move forward from two to four weeks. Visa numbers for persons born in the Philippines and Mexico showed little signs of life. Mexican 1st and 2B and Philippines 1st, 3rd and 4th did not budge a single day. The Philippine 4th - brothers and sisters of U.S. citizens is still lingering back in 1979, a wait of over 20 years! What about an amnesty for these poor folks who have played by the rules? The 4th preference category for persons born in India advances four weeks while the biggest mover of the chart was Mexican 3rd preference which advances seven weeks.

The Employment categories all remain Current with the exception of the unskilled worker category which advances two months to January 1, 1994. However, come March, the EB2 and EB3 categories for persons born in India may backlog according to the State Department's Charles Oppenheim, Chief of the Visa Control and Reporting Division. The visa numbers in the EB categories for persons born in mainland China probably will probably remain current through March.

Visa Lottery (February, March and April Numbers)

Section 203© of the Immigration and Nationality Act provides 50,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. DV visas are divided among six geographic regions. Not more than 3,500 visas (7% of the 50,000 visa limits) may be provided to immigrants from any one country.

For February, immigrant numbers in the DV category are available to qualified DV-2000 applicants chargeable to all regions/ eligible countries as follows. When an allocation cut off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut off number: AFRICA (13,000) except Ghana (6,040) and Nigeria (6,340); ASIA (5,001); EUROPE (14,200) except Albania (6,455); NORTH AMERICA (Bahamas)(15); OCEANIA (753); SOUTH AMERICA, CENTRAL AMERICA, and the CARIBBEAN (1,650).

For March, immigrant numbers in the DV category are available to qualified DV-2000 applicants chargeable to all regions/ eligible countries as follows. When an allocation cut off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut off number: AFRICA (14,801) except Ghana (6,040) and Nigeria (6,770); ASIA (5,580); EUROPE (14,980) except Albania (7,772); NORTH AMERICA (Bahamas)(15); OCEANIA (771); SOUTH AMERICA, CENTRAL AMERICA, and the CARIBBEAN (1,650).

For April, immigrant numbers in the DV category are available to qualified DV-2000 applicants chargeable to all regions/ eligible countries as follows. When an allocation cut off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut off number: AFRICA (16,780) except Ghana (6,620) and Nigeria (8,060); ASIA (6,630); EUROPE (16,170) except Albania (10,130); NORTH AMERICA (Bahamas)(24); OCEANIA (803); SOUTH AMERICA, CENTRAL AMERICA, and the CARIBBEAN (1,740).

For an explanation of what the categories, dates and symbols listed below mean, see
http://www.aheckler.com/pages/family.php
and
http://www.aheckler.com/pages/employmt.php

For the State Department's official version, complete with information about the movement of family, employment and lottery numbers, see
http://travel.state.gov/visa_bulletin.htm

 

FAMILY CATEGORIES

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	10-15-98	10-15-98	10-15-98	10-22-93	3-22-88
2A	10-15-95	10-15-95	10-15-95	7-01-94	10-15-95
2B	12-08-92	12-08-92	12-08-92	8-22-91	12-08-92
3rd	10-22-95	10-22-95	10-22-95	9-01-91	11-15-87
4th	10-22-88	10-22-88	4-15-87	10-22-88	7-15-79

EMPLOYMENT CATEGORIES

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	Current	Current	Current	Current	Current
2nd	Current	Current	Current	Current	Current
3rd	Current	Current	Current	Current	Current
Unskilled	1-01-94	1-01-94	1-01-94	1-01-94	1-01-94
4th	Current	Current	Current	Current	Current
Religious	Current	Current	Current	Current	Current
5th	Current	Current	Current	Current	Current

2. Latest Immigration Service Processing Times

Most immigration applications and petitions must be submitted to one of the following INS Regional Service Centers: (1) Laguna Niguel, California; (2) Lincoln, Nebraska; (3) Mesquite, Texas; and (4) St. Albans, Vermont.

Our web site contains the waiting times of each center and enumerates each state served by the center and any foreign offices within the center's jurisdiction.

The service centers periodically issue lists of their processing times for various types of applications. Our web site contains the latest list issued by each service center.

Warning: Processing times may appear faster on the official lists than they are in reality.

To see how fast (or slow) your service center is processing a particular type of petition or application, see
http://www.aheckler.com/pages/sc.php

Processing times at INS District Offices may be accessed at
http://www.aheckler.com/pages/aos.php

You can also click on
http://www.aheckler.com/pages/labortimes.php
to check the latest processing times of your Department of Labor Regional Office and your State Employment Service Agency.

3. H-1B Cap and The Coming Backlog in Visa Numbers

"When will the H-1B cap be reached?" This is the question asked by hundreds of persons who have written to me during the past month. The INS broke its silence earlier today when an official predicted, off the record, that the cap would be reached by a petition filed sometime in March.

In Congress, a host of bills have been introduced to raise, modify or eliminate the H-1B cap. Other bills would create a new "T" visa category to drain off some of the surplus numbers. See

http://www.aheckler.com/pages/h1b.php

Meanwhile, the INS has hired a consulting firm to audit the agency's alleged miscount of the fiscal year 1999 numbers. Senator Abraham (R-MI) believes that the INS is actually undercounting the numbers while Representative Lamar Smith (R-TX) believes that fraud so permeates the H-1B program that if INS would get its house in order, there would be no need for additional numbers.

In early January, Senate Judiciary Committee staffers reported that Committee Chairman, Orrin Hatch (R-UT) and Immigration Subcommittee Chairman Spencer Abraham will introduce a bill which would:

A. Add 40,000 to 50,000 H-1B numbers to the present cap for a period of two years;

B. Exempt H-1B workers employed by universities and affiliated research and nonprofit institutions from the cap; and

C. Abolish country quotas from the employment-based immigrant visa system. This would be a great boon to persons born in India and China.

The Hatch-Abraham bill will be voted upon by the Committee before the end of February and by the full Senate in early spring.

The abolition of country quotas for EB categories would be especially significant. A few days ago, Charles Oppenheim, chief of the State Department's Immigrant Control and Reporting Division predicted that his agency may have to limit the availability of certain EB numbers to Indians with priority dates of September 1996 or earlier and mainland-born Chinese with priority dates of July 1995 or earlier. The backlogs may start to reappear as early as March 1999 (See topic #1.)

Read about these and other developments in an interesting article entitled "Green Card Blues" at

http://www.aheckler.com/pages/h1b.php#4

4. MCI Worldcom Website: Immigration FAQ's in Six Languages

For several years, we have been serving as the Immigration Experts on the MCI WorldCom website. We developed a 10-part FAQ about the immigration law and a list of links. The MCI WorldCom folks have translated the FAQ and the Links into a number of different languages.

Initially, the FAQ appeared online in Spanish, Chinese and English. Now, the FAQ is also available in Japanese, Korean and Russian.

To read the FAQ in each of the following languages, see

http://www.mci.com/international/english/immigration.htm (English)

http://www.mci.com/international/spanish/immigration.htm (Spanish)

http://www.mci.com/international/chinese/immigration.htm (Chinese)

http://www.mci.com/international/japanese/immigration.htm (Japanese)

http://www.mci.com/international/korean/immigration.htm (Korean)

http://www.mci.com/international/russian/immigration.htm (Russian)

Each FAQ answers the following ten questions:

1. How can I obtain a temporary visa to enter the U.S.?

2. How can I qualify for a temporary working visa?

3. How can I obtain a green card?

4. How can I obtain permanent residence through marriage to a U.S. citizen?

5. What is the State Department's Visa Bulletin?

6. How can I obtain permanent residence through my relatives?

7. How can I obtain permanent residence through employment or through an investment?

8. How can I obtain permanent residence through the visa lottery?

9. How can I obtain relief from deportation?

10. How can I become a citizen of the U.S.?

The MCI WorldCom website also directs readers to over a dozen Immigration Resource Links for further information.

5. Labor Department: What's Behind the Labor Cert Meltdown?

Why does it take years and years to process an application?

Recently, Mark Nerheim, an immigration attorney in Seattle, called to tell us about a website which provides some answers. These answers come courtesy of the Labor Department since the site states that the information "is provided in partnership with the U.S. Department of Labor, United States Employment Service".

The other partner is ICESA/CESER. The Interstate Conference of Employment Security Agencies (ICESA) is the national organization of state administrators of unemployment insurance, employment and training services, and labor market information programs in the 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands. The Center for Employment Security Education and Research (CESER) is the education and research arm of the ICESA.

Together, the DOL and ICESA/CESER maintain a website entitled "The Workforce ATM". Within this website is a section on the "Alien Labor Certification Program". The Archives section contains a couple of dozen letters, including some very interesting correspondence between ICESA and DOL, not to mention Congressional correspondence.

Particularly enlightening are a series of letters from SESA and ICESA officials to the DOL referring to a lack of federal funding for the states in the permanent Alien Labor Certification (ALC) Program and a growing sense of alarm about a perceived lack of responsiveness by the DOL to the states' concerns.

In particular, see the July 18, 1999 letter from Emily DeRocco, the Executive Director of ICESA to John Beverly, the Director of DOL's Employment Service (USES) where she complains that "USES' participation in the planning and follow-up to the (June 4-5, 1998 Federal-State ALC) workgroup meeting was less than it should have been". She attaches a number of recommendations by the states to streamline the ALC program. She concludes by stating that "while additional funding is seen as imperative to eliminating the backlog, the states believe that a number of recommendations contained in the document, if implemented quickly, will greatly assist in reducing the backlog. We look forward to your response to this joint initiative."

Then, in a letter dated November 17, 1998, Ms. DeRocco asserts that the states cannot adequately process ALCs in a timely fashion because "funds for administration of the permanent ALC program have been cut dramatically in recent years". She adds that "I am sure that you...are well aware of the difficulties facing states when they have to explain to an employer or individual why it takes over a year to even get to their application. Furthermore, this program generates many complaints from state and federal legislators inquiring about the status of their constituents' applications". Her letter concludes that "states are unable to accomplish this job with inadequate resources and support. In addition, the negative impact this under-funded program has on states' relationships with their business community is causing serious damage. For your information, we have attached letters from earlier this year from approximately 30 state administrators, highlighting the severe backlog in their states".

John Beverly III, the Director of DOL's U.S. Employment Service, responded to Ms. DeRocco's letter over four months later on March 29, 1999. Mr. Beverly's letter states that the DOL plans to have a "new processing system in place by the end of FY 2000" (October 1, 2000). If the new system is implemented, the Federal Government would have full responsibility for the administration of the permanent Alien Labor Certification program.

It will be interesting to see if a new system can be established and become operational in less than ten months.

These letters and more (including the websites for the Oregon and Texas ALC Websites) may be found by clicking on

http://www.aheckler.com/pages/link.php#8

6. Federal Court Decision Preserves Waiver of Deportation

On December 27, 1999, the U.S. Court of Appeals for the Ninth Circuit issued its most recent decision in the case of Magana-Pizano v. INS.

The case concerns a young man who immigrated to the U.S. from Mexico at the age of five in 1977. In 1995, he was convicted of a misdemeanor drug offense.

At the time of his conviction, the immigration law permitted him to apply for a waiver of deportation based on his long residence in the U.S., evidence of rehabilitation and the hardship which would be suffered by him and his family if he were deported to Mexico. These and other factors would be balanced against the recency and severity of his offense.

However, before he appeared before an Immigration Judge, the law changed, and both the Judge and the Board of Immigration Appeals (BIA) ruled that he was no longer eligible to apply for a waiver of deportation.

Mr. Magana-Pizano petitioned for a Writ of Habeas Corpus in Federal District Court and submitted a Petition for Review of the BIA's decision to the Federal Appeals Court. The INS opposed both actions on the ground that the 1996 law prevented review of such decisions by the federal courts.

Initially, the Federal Appeals Court ruled that the U.S. Constitution guaranteed the right of Mr. Magana-Pizano to file for a Writ of Habeas Corpus, and that no law could deprive him of that right.

However, the Supreme Court of the United States disagreed with INS's broad interpretation of the statute, and remanded the case to the Federal Appeals Court for a new decision which did not require a ruling on the constitutionality of the law.

On remand, the U.S. Court of Appeals, Ninth Circuit held that: (1) Mr. Magana-Pizano was entitled to seek a Writ of Habeas Corpus on statutory grounds, and (2) that since his conviction predated the 1996 law, he could not be deprived of his right to apply for a waiver of deportation before an Immigration Judge.

Lucas Guttentag, the National Director of the ACLU's Immigrant Rights Project stated that the court's ruling "makes an enormous difference for all people whose cases were pending" on April 24, 1996 when the new law was passed. Thousands of people are affected in the nine western states within the jurisdiction of the Ninth Circuit Court of Appeals.

The full text of the court's opinion may be found at
http://www.aheckler.com/pages/magana2.php