DECEMBER 2010
Khaas Baat : A Publication for Indian Americans in Florida
Immigration

SURGE IN VISA AVAILABILITY FOR FAMILY-BASED IMMIGRATION CONTINUES (FOR NOW)

Dilip Patel

By DILIP PATEL
(www.dplawfirm.com)

Family-based immigrant visa availability, as reported in the Department of State’s Visa Bulletin, took a major step forward in fiscal year 2010 (Oct. 1, 2009-Sept. 31, 2010) and continues for FY2011. The collective result is that wait times across the board have been significantly reduced compared with this time last year. All family-based preference categories skipped forward by at least 15 months compared to Oct. 1, 2009. Visa waits for unmarried sons and daughters of U.S. citizens and for close family relatives of lawful permanent residents (LPRs) jumped forward three to five years.

Charles Oppenheim, head of the State Department’s Visa Control and Reporting Division, recently meet with immigration lawyers in Washington, D.C., and shared his summation and prognostications for the future. On the family-side, the demand for visa numbers has declined in recent years, and Oppenheim attributed the decline to several reasons. First, “current” beneficiaries are deferring the filing of their immigrant visas due to the present economic climate in the U.S., including increased uncertainty about employment prospects, petitioners' inability to pay visa fees, and/or petitioner’s inability to show compliance with affidavit of support income requirements; second, many beneficiaries unlawfully present in the U.S. may be unwilling to travel to their home consulates to obtain their visas – these individuals are barred from adjusting their status in the U.S. – because doing so will subject them to the three- or ten-year bars on their readmission. Instead, such beneficiaries may be waiting for the passage of new law that would allow them to adjust their status. Priority dates in the family-based categories are expected to continue to advance relatively quickly; indeed, visas for spouses and children of LPRs may be close to being current by February 2011.

On the employment side, however, employment-based preference categories surged over the same period. While employment-based first-, second-, fourth-, and fifth-preference categories all remained “current”, third-preference, although still oversubscribed, gained three years (for professionals and skilled workers) and two years for “other workers.”
 
Oppenheim reported that employment-based professional and unskilled visa categories (EB-3) will continue to remain oversubscribed and no change is expected. He opined that each beneficiary now requires more visas (for their spouses and children) than previously (on average 2.5 visas as compared to one visa in the past). Slow movement is expected to continue for Indian and Chinese nationals. In addition, he predicted that visas for Special Immigrant Religious Workers (E-4) may be oversubscribed by the year’s end.

 

ENFORCEMENT UPDATE: ABERCROMBIE & FITCH FINED OVER $1 MILLION IN I-9 VIOLATIONS; OTHER NEWS

The Obama Administration’s beefed-up enforcement initiatives show no sign of abating anytime soon. It is now old news that this administration has set records for deportations in 2009 and is on track to deport more than 400,000 individuals in calendar year 2010. Enforcement continues to focus on two prongs: employers who knowingly hire undocumented workers and stepped-up enforcement against gang-related violence and felons.

In a spate of recent, high-profile cases, the U.S. Immigration and Customs Enforcement (ICE) has shown that it intends to continue investigating and prosecuting companies that knowingly hire undocumented workers. Abercrombie & Fitch recently agreed to a settlement of more than $1 million for numerous I-9 compliance violations for its retail stores in Michigan. More employer audits are on the way. In mid-September, 500 “Notices of Inspection” (NOIs) were served to employers in one week. Not only that. The scope of documentation requested or subpoenaed is expanding. A recent ICE notice and subpoena requested 11 different immigration and employment documents over a three-year inspection period, including lists of current and terminated employees, copies of quarterly wage and hour reports, tax statements, company hiring policy, and a list of all contractors, recruiters, and temporary employment agencies. Meanwhile, in Los Angeles, the owner and top executives of a metal casting company were arrested and charged with federal crimes for their role in encouraging the acquisition of fake Social Security numbers. The Obama Administration also has made good on its promise to step-up enforcement against criminal foreigners through a series of raids, including those on known gangs in major cities across the U.S.

In a related development, the ICE Secure Communities Program, which encourages local law enforcement agencies to cross-check fingerprints and biometrics against a federal database of immigration statuses, continues to expand quickly across the country. Nearly 700 jurisdictions in 32 states have signed on to the program. Secure Communities, however, has come under fire in recent weeks as controversy has arisen over the ability of communities to opt-out of the program. Since its introduction two years ago, the program was widely thought to be voluntary, but when Washington, D.C., Arlington (Va.), and San Francisco recently attempted to opt-out, ICE replied that it was not possible to do so. Since the program relies only on state police to share fingerprint information with the FBI, local communities’ choices on whether to participate is essentially moot because they cannot control what state police chose to do with the biometric information. Sounds like this issue has the makings for legal and constitutional challenges. Stay tuned.

Dilip Patel of Dilip Patel Law Firm (Business and Immigration Attorneys) is board certified in immigration and nationality law. He can be reached at (813) 855-0066, e-mail dpatel@dplawfirm.com or visit www.dplawfirm.com

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