Interesting article that highlights Immigration Bills passed by House during an Election year:
http://www.americanprogress.org/issu...election-year/
Interesting article that highlights Immigration Bills passed by House during an Election year:
http://www.americanprogress.org/issu...election-year/
Some positive news for Legal Immigrants
http://www.politico.com/story/2014/0...092_Page2.html
From Oh law firm:
I think he exaggerates the scope. It is mostly likely recapture going forward and not the past ones - which kinda already is happening. This White House is utterly lame when it comes to do anything for the legals via executive action. I would love to be proven wrong. What do you folks think?Quote:
08/18/2014: President Back in the White House and to Bring Up Employment-Based Immigration Fix as One of the Key Topics
As we reported earlier, the President is back from the vacation for two days and to talk about three key ongoing issues: Iraq, Missouri issues, and Administrative fix of immigration. No executive orders are expected to be released for immigration reforms during this trip, but report indicates that one of the reforms is likely to include fix of broken employment-based immigration system. Reportedly, he is likely to highlight two fixes among others: H-4 spouse employment authorization and recapture of unused employment-based immigrant visa numbers. Exact number of unused EB immigration visa number is not handily available at this time, but the count was more than 200,000 two or three years back. Apparently this recapture has been heavily pushed by the business leaders and we have also advocated in this site as one of the available administrative fixes for employment-based immigration reform without legislation. He may also bring up other minor fixes in employment-based immigration fixes including Outstanding Researcher/Teacher EB-1B fixes, extension of 240-day lawful stay and employment authorization pending extension of E-3, CW and certain other nonimmigrant visas, which is already available to the H-1B nonimmigrants, and a few others, but these minor program changes have already been released by the DHS and have been pushed in the rule-making agenda of the DHS. Accordingly, the big fish on the fray in the President's discussion Today or Tomorrow remains with the recapture of unused immigrant visa numbers. There is already a speculation that the President may even sign such piecemeal executive action program in the middle of September, 2014, even though a full-blown executive action for relief of undocumented immigrants still remains up in the air in terms of timing for the action. Please stay tuned.
That organization which shall not be named has already refuted oh's claim. What a pathetic traffic driver of a site is that Oh....just like murthy's.
Oh law is simply quoting Politico.Quote:
Originally Posted by kd2008
If he can issue work permits for undocumented, I like to think there isn't a thing he cannot do for documented if he wanted. Popular opinion is against EOs for recapture and dependent discounting, but it's just an opinion.
I agree with you kd. I would not be very optimistic. If the EO is going to be about the recapture of unused EB visas going forward, then it is pointless for us. I don't expect a single thing happening in Washington for legals. At the end of the day, we are not a significant vote bank.Quote:
Originally Posted by kd2008
One of the tragic things about the whole immigration reform thing is how the administration is clueless about timing. Senate took inordinately long to get its bill through (supposedly Senate is designed to be so - but not for slapping $2000 fee on certain H-1B employers - that flew through so quickly and without a hitch.) It gave enough time for House to marshal the antis. Same with EO. What is the point of announcing that there will be one and waiting couple of months to be specific about it? Give time to the opposition to malign the administration and get hold of the news cycle baton and negatively influence public opinion? It just shows how ill prepared is the inner circle of high level decision making. The joke is that it is not Executive action but Executive inaction followed by limpid Executive reaction (that has no material benefit to the legals) to the opposition. LOL. ;)Quote:
Originally Posted by Jonty Rhodes
To add, I don't even think that recapturing the unused EB visas and exemption of dependents is possible through Executive Order. As far as my knowledge goes, this requires proper legislative process through Congress. The only relief I can currently see is EAD for H4 which is already proposed by DHS/USCIS and may get approved. That doesn't need EO by President anyways. I think the only thing President can do for legals through EO is to allow them to change jobs without filing PERM and I-140 again, if their I-140 is already approved and may be increase the validity time of EAD to, say 3-4 years instead of 1-2 years. In that way, at least people can change jobs, take promotions, do fellowships and travel without hassle. I think even if these things happen, it would bring at least partial relief for legals. I have absolutely zero hopes that lost EB visas will be recaptured.Quote:
Originally Posted by kd2008
Also, I agree with the political timing. Many Democrats are predicting a tough time maintaining the party majority in Senate. If that happens, than till 2016 elections, absolutely nothing will happen. GOP will pass bills in Senate and House and President will simply veto them and obviously no Democratic bills will be taken up. I don't see President doing anything significant on immigration before the mid-term elections in November are over, as it may affect the incumbent Democrats adversely. Illegal immigrants obviously have no hope except Democrats when it comes to immigration so for the President, it won't matter if he has to wait till end of November, because even if he does nothing on immigration before that, Latinos will still vote Democrat in hope of getting something done after November.
Looking at so many reports on recapture of unused visas and not counting dependents, I am sensing that Obama will do something for legals as well come september.He is due for so long and he has to deliver something. With Executive actions for legals , he can get some sympathy from other side of aisle and business.
Being optimistic doesnt hurt!! :)
many suggesting that he can't recapture the visa without congress (please correct me guys if i'm wrong)
howvere many reputable attorneys are saying that he can exclude dependent from the visa count by just reinterpreting existing law
if he at least do this , this will double the visa available
I'll be interested to see what law is going to be reinterpreted.Quote:
Originally Posted by migo79
The discussion (Endelman & Mehta) appears to revolve around INA 203(d)
but they don't seem to consider 245(b):Quote:
(d) Treatment of Family Members. - A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c), be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.
203(d) is saying if the dependent does not have their own basis to adjust status, then they can use the same Category and PD as the primary applicant. That would be as an employment based applicant under INA 203(b).Quote:
(b) Upon the approval of an application for adjustment made under subsection (a), the Attorney General shall record the alien's lawful admission for permanent residence as of the date the order of the Attorney General approving the application for the adjustment of status is made, and the Secretary of State shall reduce by one the number of the preference visas authorized to be issued under sections 202 and 203 within the class to which the alien is chargeable for the fiscal year then current.
INA 245(b) then says that when their I-485 is approved, the number of EB visas shall be reduced by one, since they are adjusting in (and on the basis of) a preference based Category [203(b) Preference Allocation for Employment-Based Immigrants].
It's difficult to see how EB dependents can be excluded from numerical limitations unless they are added to INA 201(b) Aliens Not Subject to Direct Numerical Limitations. - Aliens described in this subsection, who are not subject to the worldwide levels or numerical limitations of subsection (a).
Subsection (a) referenced above says:
That makes it pretty clear that if not excluded because of inclusion in INA 201(b), all other approvals must take place and be counted against the numerical limitations established for FB, EB & DV respectively.Quote:
(a) In general. - Exclusive of aliens described in subsection (b), aliens born in a foreign state or dependent area who may be issued immigrant visas or who may otherwise acquire the status of an alien lawfully admitted to the United States for permanent residence are limited to-
(1) family-sponsored immigrants described in section 203(a) (or who are admitted under section 211(a) on the basis of a prior issuance of a visa to their accompanying parent under section 203(a)) in a number not to exceed in any fiscal year the number specified in subsection (c) for that year, and not to exceed in any of the first 3 quarters of any fiscal year 27 percent of the worldwide level under such subsection for all of such fiscal year;
(2) employment-based immigrants described in section 203(b) (or who are admitted under section 211(a) on the basis of a prior issuance of a visa to their accompanying parent under section 203(b) ), in a number not to exceed in any fiscal year the number specified in subsection (d) for that year, and not to exceed in any of the first 3 quarters of any fiscal year 27 percent of the worldwide level under such subsection for all of such fiscal year; and
(3) for fiscal years beginning with fiscal year 1995, diversity immigrants described in section 203(c) (or who are admitted under section 211(a) on the basis of a prior issuance of a visa to their accompanying parent under section 203(c) ) in a number not to exceed in any fiscal year the number specified in subsection (e) for that year, and not to exceed in any of the first 3 quarters of any fiscal year 27 percent of the worldwide level under such subsection for all of such fiscal year.
An EO cannot make new law, or run contrary to existing law, so it seems difficult to achieve this via EO.
Previous Bills in Congress have sought to exclude EB dependents by adding them to INA 201(b) - Congress clearly believes the law does need to be changed to achieve this aim.
I fear that, if it is included, it will instantly result in a lawsuit to overturn it and that such a lawsuit would have a fair chance of succeeding.
Check-in with DOS’s Charlie Oppenheim: August 12, 2014 (Updated 8/20/14) http://aila.org/content/default.aspx?docid=49304
DOS Liaison Committee series of monthly “check-ins” with Charlie Oppenheim, designed to keep members informed of Visa Bulletin progress and to obtain his analysis of current trends and future projections, beyond the basic visa availability updates provided in the monthly Visa Bulletin.
AILA Doc. No. 14071401.
Folks of these forum should check whether they can get access to this document and if they get it then post at least the summary here.
Stupid as usual since Spec's fabulous analysis at http://www.qesehmk.org/forums/showth...8775#post48775 has clearly shown it is not possible.Quote:
Oh law firm says: 08/20/2014: Impact of Potential OBAMA EB Fix Excluding Dependent Family Members from EB ** Numberical Limit
AILA liaison reportedly asked Mr. Oppenheim of DOS the potential impact of such reform on immigration visa cut-off dates and his answer was that it would accelerate cut-offs but cut-offs would still exist in the family-based peference immigrant visa categories, while such fix would result in all of EB visa categories immediately becoming current and continuously remaining current for the foreseeable future. But within a year of two, filing and approval of new petitions could require cut-off dates for some preferences for some countries. Interesting....................................... ..........
Could it be that they shift family to FB category? And combine this with H4 EAD?
kd,Quote:
Originally Posted by kd2008
IANAL and we know how inventive they can be!
I was just expressing my thoughts on the subject.
The general problem I see with anything for EB (or FB for that matter) is that precisely because it is LEGAL immigration, the existing law is quite tight.
In contrast, measures for the undocumented are somewhat easier because we are then in the area of prosecutorial discretion. No EO (either DACA or anything further that might be announced) actually makes the people affected legal - it just means they won't be prosecuted and deported.
I think the biggest gripe I would have is that it seems patently unfair to give employment authorization to all those people (who are not legally present in the USA), while denying employment authorization to everybody who is legally in the USA. Even now, EAD is only being discussed for a subset of H4 and not at all for some other dependent visa classes such as O3.
Nor (say compared to DACA) is there any relief being discussed for those unfortunate children who "age out" while waiting for a chance to file an I-485 or undergo CP.
kkruna,Quote:
Originally Posted by kkruna
I'd be hard pressed to think of a worse solution. Off the top of my head:
a) An I-130 under F2A can't be filed until the primary GC is approved, which would mean the primary would have to remain in H1B (or similar status) until they were approved (to keep the dependents in lawful status). That would render EAD and AP essentially useless to the primary applicant. The alternative is that dependents have to remain abroad.
b) All the time the primary is waiting to be approved under EB, any dependent children would be growing older. Such a proposal would greatly add to those that "age out" during the process and/or would only eventually be eligible under F2B. Many would have no way to remain in the USA after age out.
c) NVC alone had 238k+ F2A applicants and 468k F2B applicants as of November 2013. Both are retrogressed already (1.5 & 7 years). I don't want to imagine what would happen to the Cut Off Dates if you start dumping a further 75-85k EB dependents PER YEAR (actually it could be more than double that number, since at least twice as many primary EB applicants could be approved in a year) into the (mainly F2A) FB2 category. Suffice to say they would retrogress quite rapidly and continuously.
You'd be left with the primary as a GC holder under EB for years and dependents who most likely would have no visa enabling them to remain in the USA in legal status. They would have to wait abroad until their PD under FB became current.
The only alternative would be to reduce the EB allocation and transfer it to FB2, which would defeat the purpose of the change you propose.
None of the above could be achieved by EO anyway - it would need a change to the INA.
As I say, I can't think of a worse solution.
Spec, Can any amount of spin on the words in the 245 or 245(b) , make it look like 1 visa for family for EB allocation.
Spec:
excellent as always but let me disagree with you:
I don't think anywhere in paragraph (245)b anything was explicitly mention to do that for either principals or dependents so this leave the paragraph open for reinterpretation and hence open it for EO.
i think that debate we have over this prove that there could be multiple interpretation of this law.
also Bruce M. who worked on the current bill says this is possible via EO?
"
The decision to count dependents against the caps "is an administrative interpretation" of the law, "and anything that's an administrative interpretation can be changed," said former U.S. Rep. Bruce Morrison (D-Conn.), who chaired the House Immigration subcommittee responsible for drafting the 1990 immigration reform legislation that created the present system.
"
http://www.computerworld.com/s/artic...hout_Congress_
always appreciate your comments
You tell me.Quote:
Originally Posted by krishn
I can't find a way that satisfies all the essential laws in place (at least as I read them) :
i) You can only apply under FB, EB or DV categories (all with numerical limits), unless you are in a class that is described under INA 201(b) as being specifically exempt from numerical limits. Currently, EB dependents do not fall into a specifically exempted class under INA 201(b).
ii) INA 203(d) says that dependents can claim the same Preference Category and PD as the primary, i.e. Employment Based, and be treated in the same way as the primary applicant is.
ii) Each individual files their own I-485, which is judged entirely on its own merits. There is no single "family" I-485 application.
iii) Each approval of an I-485 shall result in permanent residence being recorded and the number of preference visas (i.e. EB) being reduced by one. i.e. 3 approvals would result in the number of EB visas available being reduced by 3. It does not matter whether the adjustment is for a primary applicant or a dependent - each have separately adjusted status.
De facto, dependents must be adjusting under EB, since they most certainly are not FB or DV. There is no other basis to do so, since they are not in the list outside numerical limitations.
Please find the flaw in the logic.
Spec - all agreed except this sentence. I think dependents can be counted towards FB because in FB there is a place for dependents of GC holders.Quote:
Originally Posted by Spectator
The problem with that always has been that it typically tends to be quite out of sync with corresponding EB category of the primary.
Q,Quote:
Originally Posted by qesehmk
See this post as to why considering EB dependents against FB would be a VERY bad idea. even if it were possible.
INA 203(d) only allows dependents to claim the same status as the primary (which would be the EB Category and PD), so charging to FB upon the primary's approval would not be possible.
An I-485 approval under FB requires an approved I-130, which can only be submitted once the primary is approved.
The PD for charging to FB is the date the I-130 is received by USCIS. The PD from an EB category cannot be transferred to a FB category. With no increase in the FB allocation, FB2 would quickly become retrogressed by many years.
One of the more popular requests among business and family groups is a change in the way green cards are counted that would essentially free up some 800,000 additional visas the first year, advocates say.
The result would be threefold: It would lessen the visa bottleneck for business seeking global talent; shorten the green card line for those being sponsored by relatives, a wait that can stretch nearly 25 years; and potentially reduce the incentive for illegal immigration by creating more legal avenues for those wanting to come, as well as those already here.
http://abcnews.go.com/Politics/wireS...ation-25058996
migo,Quote:
Originally Posted by migo79
INA 245(b) doesn't need to explicitly mention primary applicants or dependents. It mentions a person whose adjustment application is approved. That covers both primary and dependent applicants automatically, since they all have individual applications.
There are only 4 cases where adjustment is allowed.
1) Not numerically limited as specified in INA 201(b).
2) Family Based Preference Category (Numerically limited) INA 203(a)
3) Employment Based Preference Category (Numerically limited) INA 203(b)
4) Diversity Lottery (Numerically limited) INA 203(c)
Which of those four is the EB dependent adjusting under? It has to be one of them. Hint - It cannot be under INA 201(b).
Each applicant (whether primary or dependent) has their own individual adjustment application.
For groups (2) to (4) each adjustment of status approved reduces the relevant number of preference visas available by one (generally that would be FB = 226k, EB = 140k, DV = 50k). 1 EB primary plus 2 dependents equals 3 adjustments equals a reduction of 3 preference visas.
If an EB dependent gains PR at the same time as the primary, it can only be due to the provisions of INA 203(d) giving them the same status as the primary (i.e. same EB Category and PD).
There is no basis to adjust under FB (since they have no approved I-130 petition or PD under FB) or DV (made no application and high use Countries aren't eligible). EB dependents are not included in INA 201(b). That only leaves EB as the basis for adjustment.
Bruce Morrison should therefore also know that, in Conference (to reconcile House and Senate versions), a proposal for 75k EB visas (excluding dependents) was rejected in favour a 140k allocation which included dependents. This is discussed in the Endelman & Mehta article. Mr. Morrison seems to suffering from selective amnesia. That's probably more to do with who his paymasters are now.
I think you would have to somehow remove the need for dependents to file their own application and explicitly make it one "family" application to get around this problem. That isn't going to happen via EO.
I think that should be my last on the subject.
i'm not a lawyer
but i have friends who are lawyers and they said that they make their living by reinterpreting the law and provide the case to the court, unless there are previous ruling by a superior court of the matter.
i still see the argument here is an individual interpretation of the law the all what is being said is an individual interpretation in lieu of what is vague in the law, the current interpretation is the one being used for years, and hence any other discussion seems odd,
I still believe that counting the dependents with pricincipal as one is possible i'm not sure is that because i'm naive or that's something we really hope for to happen :)
Then, IMHO, you need one "family unit" application rather than the individual applications we have at present OR EB dependents need to be added to INA 201(b).Quote:
Originally Posted by migo79
Either way, that would be a fundamental change to the INA, outside the scope of an EO.
The thing with the INA (and law in general) is that many laws intertwine with each other and you have to look at the totality of that. Altering one paragraph can make it at odds with what other parts say.
Thanks Spec,
I guess if nothing happen in this matter it will be heartbreak for many people, specially after all of this positive news.
i imagine folks in EB2 and EB3I will be disappointed to the true meaning of what the word "disappointed" mean.
I think I have said everything I wish to on this subject. I wish good things were possible, but I fear they are not.Quote:
Originally Posted by migo79
I have rarely (probably never) agreed with a certain organisation about anything before. I can no longer say never.
PS You never did answer the question.