Hello and welcome to the June 2012 Immigration Newsletter!
June 2012 turned out to be 2012’s most eventful month in U.S. immigration so far. Among other developments, this month:
- The Executive Branch (the President and the Secretary of Homeland Security) announced the unprecedented decision to use prosecutorial discretion to give “DREAMERS” the ability to remain in the U.S. without the fear of deportation and apply for employment authorization;
- The U.S. Supreme Court ruled that 3 out of 4 contentious provisions of the controversial Arizona Immigration Law SB 1070 were preempted by federal law, thereby striking them down;
- The FY 2013 H-1B Cap was exhausted in the first half of June, much sooner than earlier predictions foresaw;
- USCIS launched the first phase of the fully electronic immigration benefits system;
- Employment Based 2nd Preference visa numbers will retrogress to January 1, 2009, for all countries, and will remain unavailable for India and China until the new fiscal year.
On June 25, 2012, a divided Supreme Court of the United States delivered its Opinion in Arizona v. the United States regarding the constitutional validity of four contentious provisions of the Arizona Immigration Law, Support Our Law Enforcement and Safe Neighborhoods Act (SB 1070). The Supreme Court struck down as unconstitutional the following 3 provisions of the controversial law:
- Making failure to comply with federal alien registration requirements a state crime (misdemeanor);
- Making it a crime (misdemeanor) for an unauthorized alien to seek or engage in work in the State; and,
- Giving officers the authorization to conduct warrantless arrests of any person if “the officer has probable cause to believe . . .[the person] has committed any public offense that makes the person removable from the United States”.
The Supreme Court declined, at this time, to block the most infamous provision of the law that provided that officers who conduct a stop, detention, or arrest must, in some circumstances, make efforts to verify the person’s immigration status with the Federal Government – the “papers please” law. The ruling is very significant considering that several other states and jurisdictions have enacted similar provisions. It is important to remember that the Supreme Court’s decision still means that if you are stopped in Arizona by law enforcement, they can ask for proof of your immigration status.
As predicted in last month’s Newsletter, the H-1B FY 2013 cap has been reached! In just 10 weeks after the start of the filing period on April 2, 2012, USCIS announced that it had received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 for FY 2013. On June 13, it was announced that Monday, June 11, 2012, was the final receipt date for new H-1B petitions requesting an employment start date in FY 2013. USCIS also announced that the Master’s Cap was reached even earlier on June 7, 2012. When compared to last fiscal year, the H-1B cap was reached more than 5 months earlier! The final receipt dates for new H-1B petitions over the few years are as follows:
|Fiscal Year||H-1B Regular Cap Eligible Petitions||H-1B Master’s Exemption Petitions|
|FY 2013||June 11, 2012||June 7, 2012|
|FY 2012||November 22,2011||October 19, 2011|
|FY 2011||January 26, 2011||December 22, 2010|
While USCIS continues to accept and process petitions that are under the special Chile/Singapore H-1B1 cap as well as petitions otherwise exempt from the cap, employers who wish to file a new H-1B petition will now have to wait until April 1, 2013 for a start date no sooner than October 1, 2013! If you have missed the bus and are looking for alternatives, please Click Here to learn what are the different options when the cap is reached.
In one of the most significant proclamations regarding immigration in this President’s term, the President and the Department of Homeland Security (DHS) announced that through the exercise of prosecutorial discretion, eligible young people who are currently undocumented, were brought to the U.S. as young children and do not pose a national security or public safety risk (commonly referred to as “DREAMERS”) will be eligible to receive “deferred action” for two years. They will also be eligible to apply for a work permit (EAD). The deferred action will offer relief from removal from the U.S. or from entering removal proceedings for a period of two years and will be subject to renewal. Details of this process are still being developed. USCIS and ICE are expected to announce affirmative procedures for those not already in removal proceedings in the coming weeks and are expected to fully implement the program within 60 days. DO NOT submit any requests at this time. Only those currently in removal proceedings can immediately benefit from the provisions of this announcement. We will keep our readers informed once the authorities issue appropriate instructions on how to apply for the relief under this notification.
This June, USCIS (finally) launched the first phase of its electronic immigration benefits system USCIS Electronic Immigration System (ELIS). Through ELIS, USCIS is creating a system that is intended to modernize the process for filing and adjudicating immigration benefits. ELIS allows applicants and their attorneys to create accounts, file benefits online and submit supporting documents online. ELIS will also allow users to manage their interactions with USCIS, and get detailed help and current case status. Since this is Phase 1, only those applying for a change of status to B-1/B-2, F-1/F-2, M-1/M-2 or J-1/J-2 and those extending their B-1/B-2, F-1, M-1/M-2 status can use ELIS. Those reinstating F-1 and M-1 status are also eligible. See the table below:
|You can use USCIS ELIS if||Remarks/Exceptions|
|You are a B-1, B-2, F-1, M-1 or M-2 and want to extend your status||
F-1 students who received a date-specific visa that requires completion of a given course of study within a specific time can extend status in USCIS ELIS.
F-1s students who are admitted for duration of status should contact their designated school official to extend status.
|You want to change status to become a B-1, B-2, F-1, F-2, J-1, J-2, M-1 or M-2||An M-1 student may not change status to an F-1 student|
|You were a F-1 or M-1 and want to reinstate status||The spouse or child of an F-1 or M-1 student may be included in the principal’s benefit request.|
It is expected that ELIS will gradually include additional benefit types and increased functions. It is hoped that ELIS will be user-friendly and will help to streamline the application process by establishing a simplified online process for applicants.
In highly anticipated good news for Israeli investors, President Obama signed a law that adds Israel to the E-2 list of countries whose citizens are allowed to apply for an E-2 visa as an investor or employee. The E-2 is a Treaty Investor visa, available to a national of a country with which the U.S. maintains a treaty of commerce and navigation, and who is coming to the U.S. to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital. Earlier, Citizens of Israel were eligible only to seek the E-1 Treaty Trader visa and not the E-2 Treaty Investor visa. With the passing of this law, Israeli investors now have an additional visa option, both for themselves and for their employees in certain circumstances, to come to the U.S. to direct an enterprise in which they have made substantial investments.
In disappointing news, the July Visa Bulletin released by the Department of State showed that EB-2 priority dates will retrogress to 01 January, 2009 in respect of all countries other than India and mainland China. EB-2 priority dates for India and China will remain Unavailable for the remainder of FY-2012. While EB-1, EB-4 and EB-5 numbers remained current for all countries, EB-3 numbers advanced marginally from the June 2012 visa bulletin. EB-2 beneficiaries whose priority date is beyond 01/01/09 and who have not filed their Adjustment of Status applications before June 30, 2012, will now have to wait till their numbers come up again to file for Adjustment of status. EB-2 numbers will not start moving again until FY 2013 which begins on October 1, 2012.
Other Developments in Immigration Law:
US Embassy Mexico announces changes in E Visa Processing
The U.S. Mission in Mexico has announced two changes in the procedures for applying for and renewing E-1 Treaty Trader and E-2 Treaty Investor visas in Mexico. First, after July 1, 2012, all review of E visa applications in Mexico will be centralized at the following three posts – U.S. Embassy in Mexico City; U.S. Consulate General in Monterrey; and, U.S. Consulate General in Tijuana. Second, all submissions of documents in support of the application must be organized and presented in a standardized format as described for E-1s and E-2s on the U.S. Mission website.
DOL announces address change for Chicago NPC
The Department of Labor (DOL) has published a Notice in the Federal Register announcing a change in the location where applications for temporary labor certification programs will be filed and/or are being processed. The address change for the Chicago National Processing Center (NPC) is effective August 2, 2012. The Chicago NPC is responsible for adjudicating all employer applications for temporary labor certification under the H-1B, H-1B1, E-3, H-2A, H-2B, and D-1 program. On or after August 2, 2012, all paper filings must be submitted to this new address.
Immigration Articles and Other Fun Stuff:
Our ‘Featured Video’ for this month titled, “K3 Spouse Visa – Pros and Cons”, lists the pros and cons of the K-3 visa process so that you can have a clear view and better understanding of the K-3. Please check out and subscribe to our YouTube channel to take advantage of another great service provided to you by VisaPro.
Also check out our In Focus article for this month titled “How to apply for the USCIS Fee Waiver Request?” in which we present the steps involved while applying for a USCIS Fee Waiver, and an overview of the methodology that USCIS uses to make a decision on a fee waiver request.
Every month we introduce a new and interesting question for our opinion poll. Last month’s poll results indicate that a majority of respondents (48.28%) think that the expansion of list of designated STEM degree programs will effectively help bring the best and most qualified international students to the US. However, it is also interesting to note that a significant number of respondents (31.03%) have indicated that they are not sure of the same. We do appreciate that people take interest in the opinion question and cast their vote to give us their feedback. Keep it up! And continue to cast your vote to express Your Opinion.
We also congratulate Pankaj Mishra for winning last month’s Immigration Quiz. Pankaj gave the best answer and won a free online consultation to discuss the concerned Immigration issues. It’s time to get ready for this month’s quiz. If you know the correct answer your name might be featured in next month’s newsletter. All the Best!!!
See you next month with a lot more noise from the Immigration World!