Visa Bulletin for April 2007

The Visa Bulletin is a publication by the United States Department of State Bureau of Consular Affairs. It provides a summary of visa availability every month. The Bulletin is important for those beneficiaries waiting for their visa numbers.

Visa numbers are available for those beneficiaries who have a priority date earlier than the cut-off date.

Let’s take a look at the Visa Bulletin for April 2007 and see the movements of priority dates since March 2007 for Philippine-born beneficiaries of family and employment-based immigrant petitions.

FAMILY-BASED PETITIONS

Petitions by U.S. citizens:

Unmarried sons and daughters (first preference, F-1): Priority date has moved forward by a month, from January 22, 1992 to February 22, 1992.

Married sons and daughters (third preference, F-3): Priority date has moved backward by almost six years, from September 1, 1990 to January 1,1985.

Brothers and sisters (fourth preference, F-4): Priority date has moved forward by two months, from September 1, 1984 to November 1, 1984.

Petitions by U.S. permanent residents (“Green Card holders”):

Spouses and children (second preference, F-2A): Priority date has moved forward by ten days, from March 22, 2002 to April 1, 2002.

Unmarried sons and daughters (second preference, F-2B): Priority date has no movement; it remains the same- October 1, 1996.

EMPLOYMENT-BASED PETITIONS

Professionals & skilled workers: Priority date has no movement; it remains the same- August 1, 2002.

Non-skilled workers: Priority date has also no movement; it remains the same- October 1, 2001.

Is my job offer H1B eligible?

This week, the United States Citizenship and Immigration Services (USCIS) has begun to accept H1B visa petitions from United States employers.

H1B is a work visa that allows an alien to work in the United States.

As I’ve pointed out in my previous posting, re: File early- to get a slice of the H1B visa “pie,” since Fiscal Year 2004, the H1B visa cap has been set at 65,000. However, after deducting 6,800 visas set aside for the U.S. Chile and U.S. Singapore Trade Agreements, what is up for grabs is a net of 58,200 visas. Because of the limited visas, there’s now a mad scramble for submission of H1B visa petitions. Many observers believe that with the number of visa petitions pouring in at the USCIS, the H1B visas may run out anytime soon.

Caloy, a Certified Public Accountant in the Philippines, is one prospective H1B beneficiary who called me to ask if the job that the employer has offered him is H1B eligible. He has been offered the job of an accounting clerk.

I told him that the job doesn’t qualify for H1B.

Why? He asked in disgust. To be H1B eligible, the job must be one that’s categorized as a “specialty occupation.” In plain and simple language, it must be a professional level position that normally requires a four-year college degree.

Let’s get into some details.

Caloy is a B.S. accounting graduate. No question about that.

It’s true that the accounting clerk position is related to Caloy’s academic background. But it’s also true that a college degree is not the minimum requirement for entry in the accounting clerk position. Meaning, one doesn’t need to be a holder of a bachelor’s degree in accounting to perform the duties of an accounting clerk. In short, the duties of an accounting clerk are not complex as to require an accounting degree.

This makes the accounting clerk position not H1B eligible under immigration rules.

So, the point is- to meet H1B eligibility, both the person to be petitioned and the position to be offered must be PROFESSIONAL.

Truth or lie?

You know if it’s election season back in our beloved Philippines: politicians are all around blurting out anything on their minds.

Politicians talk a lot. And, of course, they talk of things the voters want to hear. But, one thing is noticeably clear: the politicians’ spiels verge on lies- at times, on nonsense.

For instance, last week, Vice President Noli De Castro, in a speech before graduates of the University of Batangas, said that jobs are forthcoming for the new graduates.

De Castro said, “Your search for jobs won’t be long because the positive economic indicators clearly suggest that jobs would be abundant sooner than you expect.” “The economic gains reaped by the Philippines recently will provide more employment opportunities for the country’s new graduates.” See Manila Bulletin’s article.

Some graduates may have been beguiled hearing those words from De Castro. But I also imagined that many of the listeners may have raised eye brows on De Castro’s pitch.

What De Castro talked about is a far cry from reality. Far from being untrue, it also raised false hopes on poor graduates, who wish of finding decent paying jobs once they get their sheepskins.

When one reads articles about the Philippines – the more recent is the PERC survey giving our country a bad mark as Asia’s most corrupt- one readily thinks that politicians are really parsimonious with the truth.

The fact is, our country’s economy is in the doldrums. And that there are always people joining the beeline leaving abroad in search for jobs. This is why, as I said in my earlier posting, the root cause of the diaspora of Filipinos is our bad economy.

In one of its recent editorials, the Philippine Star said, “As economic experts have pointed out, however, the country isn’t attracting enough job-generating investments. The dearth of such investments as well as depressingly low salaries in this country are driving overseas a steady stream of Filipinos, including teachers, health professionals and skilled workers in specialized fields such as aviation. Over eight million Filipinos are now working abroad, most of them away from their families.” See Philippine Star’s editorial.

So, at election time, take politicians’ words with a grain of salt. As you know, they’re always economical with the truth.

There’s a reason for this: As Will Rogers once said, “If you ever injected truth into politics you have no politics.”

Section 245(i)

I received a flurry of e-mails on my posting about the 3/10 year bar.

Many commiserate with poor Procopio, who was denied his immigrant visa. One reader asked if there was a way Procopio could have remained in the United States and, instead, had his application processed there.

Sure, there was- if Procopio was eligible for it. It’s found in Section 245(i) of the Immigration and Nationality Act (INA).

Normally, an alien who has an approved immigrant visa petition and whose visa number is available, and is present in the United States may apply- if eligible- for a “Green Card” without leaving the country, through a process called “adjustment of status.”

With “adjustment of status,” the alien doesn’t have to go back to his home country and apply for the immigrant visa at the U.S. Embassy.

But, first, the alien has to be eligible for “adjustment of status.” In general, this means, he must have maintained a valid non-immigrant status in the United States and have not engaged in unauthorized employment.

What if the alien- like Procopio- isn’t qualified for “adjustment of status” because he became “unlawfully present” or to use a familiar term, “TNT”?

That’s when Section 245(i) of INA comes in. It allows the alien, otherwise ineligible, to adjust status in the United States.

To be eligible for Section 245(i), the alien must be the beneficiary of one of the following:

(1) A family petition or employment-based petition that was filed on or before January 14, 1998;

(2) Eligible under the Legal Immigration and Family Equity Act of 2000 (Life Act). This law extended the cutoff date for eligibility to April 30, 2001. To qualify, the alien must have been physically present in the U.S. on December 21, 2000, if his application or petition was filed after January 14, 1998 but on or before April 30, 2001.

In order to benefit from the provision of Section 245(i), the alien must pay a penalty fee of $1,000 in addition to the basic fee for an adjustment of status application.

Petition for parent by a U.S. citizen

My posting, re: Family-based petitions, has been generating a lot of queries from “kababayans.” Some sent their queries by e-mail. Some called me by telephone.

Well, it’s easy to understand why. It’s the most common sponsorship process for many Filipinos- for those who are here, as well as for those back in our country.

The sad part is, with the exception of petitions for immediate relatives, (i.e., petition for spouses, children, and parents by U.S. citizens), most petitions in this class for Philippine natives suffer from heavy visa backlog.

For instance, based on the Visa Bulletin for March 2007, a petition for unmarried sons and daughters by U.S. citizens has a visa available only for those filed back on 22 January 1992 and earlier dates; married sons and daughters, 01 September 1990; and brothers and sisters, 01 September 1984.

So, beneficiaries of these petitions would have to wait for a long time for visa availability.

Now, here’s a query sent via e-mail:

“I’ve been here in the U.S. for over 15 years, but wala pa ring “papel.” I’ve got three kids born here. The eldest is 12. Can I get sponsored by one of them since they’re U.S. Citizens?”

The answer is yes. He or she can be petitioned by one of his or her kids when one of them becomes 21 years of age.

Why? The law requires that a parent may be petitioned by a U.S. citizen, if the latter is at least 21 years of age.

“Children” and “sons and daughters”

A reader of my blog fired off his e-mail after reading my recent posting, re: Family-based petitions. In his e-mail, he asked the following:

(1) Doesn’t the word “children” include “sons and daughters”?
(2) What’s the distinction?

The reader has a good point. He has a keen eye for details.

However, there’s more meaning to what ordinary words normally convey when they are used in statutes. In immigration law, as in any field of law, ordinary words that are used acquire a technical meaning.

Simply put, the law provides a special meaning to those words based on the person’s civil status and age. Here’s how immigration law gives meaning to the words “children” and “sons and daughters”:

“Children” are those who are (1) unmarried and (2) under 21 years of age.

Persons who don’t qualify as “children” ipso facto become either “sons” or “daughters.” The disqualification could be because of marriage or being 21 years of age or over- or both.

Family-based petitions

Can I petition for my cousin, nephew, and niece? What about my grandmother and grandfather? These are the frequently asked questions from clients who want to petition for their relatives.

Uncle Sam has always been eager to welcome everyone and unite all relatives, but the problem is, there are limited seats on board.

Who are the eligible relatives? The answer depends on the immigration status of the petitioner.

Under current immigration law, a United States citizen can petition only the following relatives:

(1) Spouse and children (as immediate relatives);
(2) Parents of an adult citizen (as immediate relatives);
(3) Unmarried sons and daughters (first preference);
(4) Married sons and daughters (third preference); and
(5) Brothers and sisters of an adult citizen (fourth preference).

A U.S. permanent resident (“Green Card holder”) can petition only the following relatives under the second preference (2A & 2B):

(1) Spouse and children (2A); and
(2) Unmarried sons and daughters (2B).

So, only the above listed relatives can be petitioned by either a U.S. citizen or permanent resident. Sadly, others are excluded.

3/10 year bar

Consider the following scenario:

Procopio has a pending immigrant petition by his father, a U.S. permanent resident (“Green Card holder”). Having earlier obtained a visitor’s visa, Procopio came to New York City.

Procopio, a bachelor, was awestruck by New York City. He enjoyed the sight and sound of the city – with its dizzying skyscrapers. He was allured by tall and curvaceous models, stripped to their bare essentials, at Manhattan’s Fashion Avenue. He was dazzled by the rich and famous at Fifth Avenue row. And was bewildered by the hustle and bustle of a city that doesn’t sleep.

Alas! He forgot, though, that his temporary authorized stay, as a visitor, had lapsed. In short, he became “OOS” (out of status) and “unlawfully present” in the United States.

A year later, Procopio went home to Manila.

Another year past, his visa number on his father’s immigrant petition was up; thus, he was called for his visa interview. To his surprise, Procopio was denied his immigrant visa. Reason: 3/10 year bar.

So what’s the 3/10 year bar?

It’s an immigration rule that says, an alien who is unlawfully present in the United States for more than 180 days but less than one year, and who voluntarily leaves the country is ineligible for admission or reentry to the U.S. for three years. Similarly, an alien who is unlawfully present for one year or more is inadmissible for ten years.

3/10 year bar. It’s a harsh provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. And it’s designed to curb illegal immigration in the United States.

Asylum: Persecution, not prosecution

I recently received an overseas call from a friend back in law school in Manila. He was able to trace me when he got hold of a copy of my recently published book, “A Guide to U.S. Visas for Filipino Professionals.”

He had a story to tell. He’s presently employed in the government and got involved in – you know what? The on-going “craze” back in our country- what else, corruption!

The case is pending investigation.

He’s considering running away from the long arm of the law. He wants to run to the warm embrace of Lady Liberty on whose statue is written the following inscription:

“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me.
I lift my lamp beside the golden door.”

In short, my friend wants to seek for asylum in the United States.

Of course, my right off the bat reply was, asylum in the United States is not designed to give protection for someone’s criminal conduct. The asylum law gives protection only to those who have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Remember: asylum is only for those running away from persecution, not prosecution.

No bigamy

Do you remember Virginia (not her real name, though)? She’s our Blog reader whose husband came to New York and obtained a divorce judgment.

Despite the lapse of many years, Virginia hasn’t recovered from her marital “nightmare.” She still thinks of her husband. She recently e-mailed me and asked whether she can file in the Philippines a case of bigamy against her husband.

No, Virginia can’t bring a bigamy case against her husband. Bigamy can’t be filed in the Philippines because the crime, if any was committed, took place outside the territorial jurisdiction of the Philippines.

While it’s true that her husband was a Filipino citizen when he contracted the second marriage in New York, and was subject to our civil laws relating to “family rights and duties or to the status, condition and legal capacity of persons” – the matter of his second marriage is beyond the reach of Philippine criminal statutes- even assuming that it’s bigamous. Under the “territoriality rule,” only those crimes committed within the Philippines are subject to our penal laws.

Poor Virginia, she can’t proceed criminally against her husband.