New Law on Family-based Immigration

I’ve been deluged with queries about the new development in U.S. immigration law that relates to the family-based sponsorship.

Two significant changes in the area of family-based immigration were signed into law by President Obama last Oct. 28 — as part of the 2010 Department of Homeland Security Appropriations Act.

First, a new law eliminates the so-called widow penalty. It allows surviving spouses to self-petition for their Green Card even though their marriage to the deceased U.S. citizen lasted for less than two years.

Second, a new law allows surviving family members to process their permanent residence applications to completion, notwithstanding the death of their petitioners. The surviving family members can do so provided they were residing in the United States at the time of the death of the petitioners and that they continue to reside in the U.S.

The latter law provides a relief to the all-too common unfortunate situation faced by many aliens who had been petitioned by their U.S. citizen or permanent resident relatives. Those alien beneficiaries waited years for their petitions in the hope of getting their Green Card. But the untimely demise of their petitioning relatives dashed all their hopes and dreams.

To illustrate, let’s consider the following scenario:

Mang Kulas, a United States citizen parent, (as petitioner), filed an immigrant visa petition for his son, Procopio, (as beneficiary), who lives in New York. The petition was approved by the U.S. Citizenship and Immigration Services (USCIS) in 2000. Despite the petition’s approval, the case has remained pending for years because there is no visa number available. Meanwhile, Mang Kulas dies.

Prior to this new law, the immigration rule was, the death of the petitioning relative had the effect of revoking the immigrant petition for the beneficiary. In some cases, the revocation took place when the beneficiary, who was petitioned years ago, was just months shy of getting the visa number at the time of the petitioner’s death.

Indeed, the new law is a welcome change. It comes as a humanitarian relief to many aliens caught in that unfortunate situation. They are now allowed to process their permanent residence applications to completion, despite the death of their petitioning relatives.

Priority Date

An email query that I always receive from many readers of my blog pertains to the often-heard term — priority date.

They want to know what it is, how it is assigned, and why it is important.

So, what’s a priority date?

Simply put, it’s the date assigned to every approved preference immigrant petition that determines the order of  availability of visas. It provides a preferential order for aliens who are subject to the visa numerical limitations.

Under the Immigration and Nationality Act (INA), employment-based preference immigrants and family-based preference immigrants are subject to the visa numerical limitations.

How’s a priority date assigned?

For employment-based immigration, a priority date is:

(1) The date the labor certification is filed; or

(2) If no labor certification is needed, then the date the petition is filed with the United States Citizenship and Immigration Services (USCIS).

On the other hand, for family-based immigration, it is the date the preference petition is filed with the USCIS.

What’s the importance of a priority date?

An immigrant visa can only be issued to an applicant when a visa number is available to his approved petition. The availability of the visa number is determined by the priority date assigned to his petition. Every month, the United States Department of State, Bureau of Consular Affairs publishes a Visa Bulletin that shows the priority dates of approved petitions whose visa numbers are available. Only applicants who have priority dates that are earlier than the cut-off date may be allotted a number.

An Update on the EB-3 Visas

As I’ve noted in my previous posting, there have been no visa numbers for the employment-based 3rd preference category (EB-3) since May 2009 for beneficiaries from all countries around the world — including those from the Philippines.

Also, as I’ve mentioned in my previous posting, visa availability would come by the start of the immigration fiscal year, which begins on October 1, 2009.

The U.S. Department of State has recently released the Visa Bulletin for October 2009. The Visa Bulletin shows that EB-3 visas are available for Philippine-born applicants whose priority dates are earlier than the cut-off date of June 1, 2002. In other words — in the EB-3 category for October 2009 — only those with priority dates earlier than June 1, 2002 have available visas.

This is grim news to many EB-3 visa applicants waiting for their visa numbers. Many EB-3 applicants, especially registered nurses, have been waiting for their visa numbers for years.

No doubt, this visa situation has caused frustration and anxiety among EB-3 visa applicants. They couldn’t do anything except to wait in queue for their visa numbers. For some, it’s a waiting game that seems endless. And for many, the dream to immigrate to the United States is hamstrung by the slow pace of visa movement or visa unavailability.

EB-3 Visas

A frequent query I always receive — via email — from my blog readers pertains to the employment-based 3rd preference (EB-3).

EB-3 is the category for Skilled Workers, Professionals, and Other Workers. This is the immigrant preference category for our Philippine nurses and other professionals.

EB-3 has a visa allocation of 28.6% of the worldwide level, plus any numbers not required by first and second preferences, and not more than 10,000 of which goes to Other Workers.

In their emails, many blog readers have asked: “What’s going on with the EB-3 visa numbers?”

As some may have heard, the EB-3 category has no available visa numbers since May 2009 for beneficiaries from all countries around the world, including the Philippines.

As a result of this unavailability of visa, the cases of many immigrant visa applicants, including those applicants waiting to adjust their status in the United States, have been put on hold.

Before May 2009, visa numbers in the EB-3 category for all countries had retrogressed to March 1, 2003 for Skilled Workers and Professionals — and to March 1, 2001 for Other Workers.

Some have also asked whether there would be a visa movement by October 1, 2009 — the start of the immigration fiscal year. I replied that they shouldn’t put much hope for a big change by October 1. There could be a little visa movement, but not a significant one that would give a visa to every applicant.

What does this mean to our EB-3 visa applicants? Given the unpredictability of visa numbers in the EB-3 category, many EB-3 visa applicants may have to hunker down for a long wait for their visa numbers.

H1B Visa

As I have discussed in my previous postings, H1B is a nonimmigrant visa used by foreign professionals to enter the United States and to work for US employers. This visa is available to foreign professionals (e.g., accountants, architects, college professors, computer programmers, etc.) hired by US employers to fill “specialty occupations” on a temporary basis.

The current annual cap on the H1B visa category is 65,000. However, not all H1B nonimmigrants are subject to this annual cap. Those not covered by the cap are H1B nonimmigrants who are employed, or who will be employed, by institutions of higher education or a related or affiliated nonprofit entity. Also not covered are those employed, or who will be employed by a nonprofit research organization or a governmental research organization.

In addition, under the provisions of the H1B Visa Reform Act of 2004, foreign professionals with master’s or higher level degree from a U.S. academic institution are allocated 20,000 new H1B visas.

On its recent H1B update, the US Citizenship and Immigration Services (USCIS) said that, as of July 3, 2009, approximately 45,000 H1B cap-subject petitions had been filed. In other words, there remains some 20,000 H1B visas — months after the USCIS started to accept H1B petitions on April 1, 2009.

As some might notice, this situation is a sharp contrast to what happened in the previous years — as in 2008 for instance — when H1B visas were scooped up within a week from the start of the filing period.

This situation only shows how the US economy has gone to pot. Recession has reared its ugly head: many businesses have closed shops and workers have been laid off from work. Consequently, some US employers have no need for foreign workers. And this obviously explains the low usage for H1B visas this year.

Mea Maxima Culpa!

Mea Maxima Culpa! Yes, I’ve not updated my blog for months. Posting on my blog has taken a back seat in my schedule.

Many readers have emailed me asking if I’ve abandoned the blog. Certainly not. I replied to them saying that I had been inundated with a stream of immigration cases that took away much of my time from updating the blog. I assured them, however, that I’ll resume my posting soon.

Yes, with my trusty BlackBerry at hand — I should now be able to keep up with my blog posting wherever I am.

Time out

In the next two weeks, I’ll be in London, Paris, and Rome. I’ll resume the posting upon my return. Till then…

Bill wants Uncle Sam to scrap H1B visa cap

Foreign professionals desirous to work in the United States, by way of the H1B visa program, have been plagued by limited H1B visas. As what happened recently, and reported in my recent post, re: FY 2008 H1B quota reached, the visas were gone in one swoop when thousands of H1B visa petitions from employers poured in.

It’s a sad reality for many foreign professionals. They want to work in the United States- but the door to this opportunity doesn’t open wide enough for them.

This is why there has been a hue and cry for more H1B visas. But Uncle Sam has fallen deaf to these pleas.

There’s a welcome news. Foreign professionals, desirous to take a bite of the much sought H1B visa “pie,” have found a new ally. Bill Gates, the world’s richest man with $56 billion rattling around in his pockets, has thrown his support to the clamor for more H1B visas.

Bill recently went to Washington and told a Senate panel that H1B visa limit should be scrapped. He found fault on visa policies that restricted the entry of “great minds” into the United States. Read more about it.

Bill raised a good point. The H1B visa program has played an important role in the economy of the United States. It has been the primary means for U.S. employers who are unable to find suitable U.S. citizens and lawful permanent residents to fill professional level positions in their companies. It is through the H1B visa program that U.S. employers can attract and hire the best talents and skills from around the world. And many believe that, owing to the H1B visa program, the United States has maintained its global competitiveness in a wide range of scientific and technical fields.

Bill’s view, however, runs counter to the perception of many ordinary Americans about the H1B visa. Ask any Tom, Dick or Harry about the H1B visa, and he’ll readily tell you that an H1B foreign professional is just out to take a job away from him. This explains why efforts to increase the H1B visa quota always meet stiff opposition at every turn.

The question now is, does our friend, Bill, have Uncle Sam’s ear on the H1B issue? Well, it’s too early to tell, but let’s wait and see.

Other work visas for Filipino professionals

With the recent scooped up of H1B visas, what other work visas are available to Filipino professionals? That’s one of the several questions I recently got from many “kababayans.” They asked the question, apparently, after reading my posting, re: FY 2008 H1B quota reached.

Aside from the H1B visa, there are a number of work visas that are available to pinoy professionals desirous to work in the United States. However, these visas are a bit different from H1B in certain ways.

For instance, while H1B requires the alien worker to fill a “specialty occupation” upon petition by a U.S. employer, the other work visas – which we will briefly discuss- require either a current employment with a specific kind of employer or a membership in a certain organization.

Let’s briefly discuss each of these work visas available to pinoy professionals:

L visa for an intra-company transferee employee

This visa is available to an alien who works for a multinational corporation that has offices both in the U.S. and abroad. With the L visa, the alien is able to work in the U.S. by being transferred by the foreign subsidiary, affiliate or branch. Thus, the term “intra-company transferee.”

To qualify for the L visa, the alien must hold a managerial or executive capacity, or a position that requires specialized knowledge.

R visa for a religious worker

This visa allows an alien who is a member of a religious denomination having a bona fide non profit religious organization in the United States.

The alien may be classified into one of the three types of religious workers, according to the work he will perform upon his admission into the United States: (1) to carry on the vocation of a minister of the religious denomination, (2) to work in a professional capacity in a religious vocation or occupation, or (3) to work in a non professional religious vocation or occupation.

E visa for an employee of a treaty trader or investor

Philippine nationals are given treaty trader and investor status on the basis of reciprocity secured by an agreement entered into by the Philippine and the United States governments.

As such, a Filipino businessman or a Filipino-owned enterprise can engage in business in the U.S., and may avail of a treaty trader or investor visa.

An employee hired by the enterprise may also avail of the E visa, if he will perform duties that are executive or supervisory, or as an employee who has special qualifications that make his services essential to the efficient operation of the business or enterprise.

All the above visas are discussed at length in the book, “A Guide to U.S. Visas for Filipino Professionals.” Copies of the book are available at Conanan Bookstore, 2019 C.M. Recto Avenue, Manila, Philippines. Tel. (02) 735-5582.

H1B and the Filipino professionals

Some readers of my recent posting, re: FY 2008 H1B quota reached, asked: (on the chatterbox): “Do pinoy professionals seek H1B visas?” Of course, my answer was a resounding, yes.

Yes, pinoy professionals- like other professionals from many countries around the world- seek H1B visas, too. No doubt, a number of them joined in the recent H1B visa “fray” when, on the first day of the H1B filing, about 150,000 new visa petitions poured into the offices of the U.S. Citizenship and Immigration Services (USCIS)- each one sought a piece of the visa “pie.” And the mad rush of H1B visa petitions prompted the USCIS to raise the “white flag” and declare that the fiscal year 2008 H1B quota had been reached.

Then, came another query: Of the approximately 150,000 visa petitions received by the USCIS, how many of them are for pinoy professionals? My response: I’ve no idea; I can’t come up with any ballpark figure.

However, if prior H1B figures were to serve as a guide, then a reasonable answer could be- not many.

Yes, not many pinoy professionals seek H1B visas. Pinoys comprise a minuscule segment in the H1B population.

According to the USCIS, of the 217,340 H1B petitions received and approved for fiscal year 2003 (which figures included new and continuing H1B visa petitions at the time) 10,432 H1B beneficiaries were from the Philippines. It represented a mere 4.8% – a picayune figure in the H1B statistics.

Indeed, this information comes as a surprise to many observers. Pinoy professionals, despite their competence and proficiency in the English language, lag behind other nationalities in taking advantage of the opportunity to work in the United States through the H1B program.

Why? Some are prompted to ask. I surmise that one reason is the lack of information about the H1B visa program and how to go about it.

This is why to disseminate information about the H1B visa program, I wrote the book “A Guide to U.S. Visas for Filipino Professionals” and published by GIC Enterprises & Co, Inc. Copies of the book are available at Conanan Bookstore, 2019 C. M. Recto Avenue, Manila, Philippines. Tel. (02) 735-5582.

The book provides the necessary information about the H1B visa program and other work visa options to the pinoy professionals desirous to work in the United States.