USCIS To Decide Each Month How It Acts On the State Department’s Visa Bulletin

October 14th, 2015 by W. Scott Railton

U.S. Citizenship and Immigration Services announced today that is will determine on a month by month basis whether or not it will accept adjustment of status applications based on the Department of State’s monthly Visa Bulletin “Dates for Filing Visa Applications” chart.

The Department of State revised the October Visa Bulletin to include this chart, causing quite a stir. The new chart opened the door for applicants in backlogged categories to file adjustment applications for themselves and their family members in backlogged categories. This in turn opened the door for work authorization for spouses, portability, and other benefits associated with filing an adjustment of status application.

However, later in October, the Department of State issued a revised Visa Bulletin, based on what it described as errors with the earlier Bulletin. Unfortunately, many relied on the earlier Visa Bulletin in hiring attorneys, seeking medical examinations, and otherwise preparing to file adjustments of status. The matter, referred to by some as “Visagate”, is now being litigated in the U.S. District Court in Seattle, Washington.

Meanwhile, we have today’s announcement, pasted below, that USCIS will decide month to month whether to accept applications based on the revised Visa Bulletin. This decision seems contrary to the original spirit of the change of the Visa Bulletin, which was intended to implement President Obama’s Executive Actions of 2014 for streamlining processes. So far, there haven’t been many successes with the Executive Actions, as protracted court action and bureaucracy issues such as this have tied things up.

Here’s the USCIS announcement, issued October 14, 2015:

Beginning with the November 2015 Department of State (DOS) Visa Bulletin, if USCIS determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas, we will state on www.uscis.gov/visabulletininfo that applicants may use the Dates for Filing Visa Applications chart. Unless otherwise stated on our website, the Application Final Action Date chart will be used to determine when individuals may file their adjustment of status applications.

We anticipate making this determination each month and posting the relevant chart on our website within one week of DOS’ publication of the Visa Bulletin.

About the Visa Bulletin

DOS publishes current immigrant visa availability information in a monthly Visa Bulletin. The Visa Bulletin indicates when statutorily limited visas are available to prospective immigrants based on their individual priority date.

The priority date is generally the date when the applicant’s relative or employer properly filed the immigrant visa petition on the applicant’s behalf with USCIS. If a labor certification is required to be filed with the applicant’s immigrant visa petition, then the priority date is when the labor certification application was accepted for processing by Department of Labor.

Availability of an immigrant visa means eligible applicants are able to take one of the final steps in the process of becoming U.S. permanent residents.

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The Department of State’s website for the 2017 Diversity Visa program (DV-2017) is now open!

October 6th, 2015 by Heather Fathali

The entry submission period for DV-2017 runs from October 1, 2015 to November 3, 2015. The entry form must be submitted during this period, and entries may only be submitted online at https://www.dvlottery.state.gov/.

Section 203(c) of the Immigration and Nationality Act (INA) provides for a class of immigrants known as “diversity immigrants,” born in countries with historically low rates of immigration to the United States. A limited number of diversity visas (DVs) are available each fiscal year, which traditionally begins on Oct. 1. The DVs are distributed among six geographic regions (Africa; Asia; Europe; North America; Oceania; and South America, Central America, and the Caribbean) and no single country may receive more than seven percent of the available DVs in any one year. Entrants are “chargeable” according their country of birth, not their current country of residence or citizenship. For example, if a person was born in Iran but is a citizen of Canada and resides in Canada, they remain chargeable to Iran for DV purposes; and may apply for the program despite the fact that Canada is not a DV country.

The U.S. Department of State provides a helpful step-by-step guidance on the program and how to submit an entry at https://www.youtube.com/watch?v=tOQlh2d2EbQ&feature=youtu.be. Instructions are also available at http://travel.state.gov/content/dam/visas/Diversity-Visa/DV-Instructions-Translations/DV-2017-Instructions-Translations/DV-2017%20Instructions%20and%20FAQs.pdf.

DV-2017 Entrants will begin to be able to check their entry status starting May 3, 2016. Entrants may only check their status by entering their confirmation information at http://www.dvlottery.state.gov/ESC/; the U.S. government will not mail out a notice regarding an Entrant’s status, and embassies and consulates will not provide a list of selectees. DV-2017 Entrants should keep their confirmation number until at least September 30, 2017.

The list of DV-2017 countries is available in the official DV-2017 Program Instructions http://travel.state.gov/content/dam/visas/Diversity-Visa/DV-Instructions-Translations/DV-2017-Instructions-Translations/DV-2017%20Instructions%20and%20FAQs.pdf, and is also copied below:

LIST OF COUNTRIES/AREAS BY REGION WHOSE NATIVES ARE ELIGIBLE FOR DV-2017

The list below shows the countries whose natives are eligible for DV-2017, grouped by geographic region.

Dependent areas overseas are included within the region of the governing country. The countries whose natives are not eligible for the DV-2017 program were identified by USCIS, according to the formula in Section 203(c) of the INA. The countries whose natives are not eligible for the DV program (because they are the principal source countries of Family-Sponsored and Employment-Based immigration or “high-admission” countries) are noted after the respective regional lists.

AFRICA
Algeria
Angola
Benin
Botswana
Burkina Faso
Burundi
Cameroon
Cape Verde
Central African Republic
Chad
Comoros
Congo
Congo, Democratic Republic of the
Cote D’Ivoire (Ivory Coast)
Djibouti
Egypt*
Equatorial Guinea
Eritrea
Ethiopia
Gabon
Gambia, The
Ghana
Guinea
Guinea-Bissau
Kenya
Lesotho
Liberia
Libya
Madagascar
Malawi
Mali
Mauritania
Mauritius
Morocco
Mozambique
Namibia
Niger
Rwanda
Sao Tome and Principe
Senegal
Seychelles
Sierra Leone
Somalia
South Africa
South Sudan
Sudan
Swaziland
Tanzania
Togo
Tunisia
Uganda
Zambia
Zimbabwe

* Persons born in the areas administered prior to June 1967 by Israel, Jordan, Syria, and Egypt are chargeable, respectively, to Israel, Jordan, Syria, and Egypt. Persons born in the Gaza Strip are chargeable to Egypt; persons born in the West Bank are chargeable to Jordan; persons born in the Golan Heights are chargeable to Syria.

In Africa, natives of Nigeria are not eligible for this year’s Diversity Visa program.

ASIA
Afghanistan
Bahrain
Bhutan
Brunei
Burma
Cambodia
Hong Kong Special Administrative Region**
Indonesia
Iran
Iraq
Israel*
Japan
Jordan*
Kuwait
Laos
Lebanon
Malaysia
Maldives
Mongolia
Nepal
North Korea
Oman
Qatar
Saudi Arabia
Singapore
Sri Lanka
Syria*
Taiwan**
Thailand
Timor-Leste
United Arab Emirates
Yemen

*Persons born in the areas administered prior to June 1967 by Israel, Jordan, Syria, and Egypt are chargeable, respectively, to Israel, Jordan, Syria, and Egypt. Persons born in the Gaza Strip are chargeable to Egypt; persons born in the West Bank are chargeable to Jordan; persons born in the Golan Heights are chargeable to Syria.

**Natives of the following Asia Region countries are not eligible for this year’s Diversity Visa program: Bangladesh, China (mainland-born), India, Pakistan, South Korea, Philippines, and Vietnam. Hong Kong S.A.R. (Asia region), Macau S.A.R. (Europe region), and Taiwan (Asia region) do qualify and are listed here.

EUROPE
Albania
Andorra
Armenia
Austria
Azerbaijan
Belarus
Belgium
Bosnia and Herzegovina
Bulgaria
Croatia
Cyprus
Czech Republic
Denmark (including components and dependent areas overseas)
Estonia
Finland
France (including components and dependent areas overseas)
Georgia
Germany
Greece
Hungary
Iceland
Ireland
Italy
Kazakhstan
Kosovo
Kyrgyzstan
Latvia
Liechtenstein
Lithuania
Luxembourg
Macau Special Administrative Region**
Macedonia
Malta
Moldova
Monaco
Montenegro
Netherlands (including components and dependent areas overseas)
Northern Ireland**
Norway
Poland
Portugal (including components and dependent areas overseas)
Romania
Russia
San Marino
Serbia
Slovakia
Slovenia
Spain
Sweden
Switzerland
Tajikistan
Turkey
Turkmenistan
Ukraine
Uzbekistan
Vatican City

**Natives of the following European countries are not eligible for this year’s DV program: Great Britain (United Kingdom). Great Britain (United Kingdom) includes the following dependent areas: Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, St. Helena, and Turks and Caicos Islands. Note that for purposes of the diversity program only, Northern Ireland is treated separately; Northern Ireland does qualify and is listed among the qualifying areas. Macau S.A.R. does qualify and is listed above.

NORTH AMERICA
The Bahamas

In North America, natives of Canada and Mexico are not eligible for this year’s DV program.

OCEANIA
Australia (including components and dependent areas overseas)
Fiji
Kiribati
Marshall Islands
Micronesia, Federated States of
Nauru
New Zealand (including components and dependent areas overseas)
Palau
Papua New Guinea
Solomon Islands
Tonga
Tuvalu
Vanuatu
Samoa

SOUTH AMERICA, CENTRAL AMERICA, AND THE CARIBBEAN
Antigua and Barbuda
Argentina
Barbados
Belize
Bolivia
Chile
Costa Rica
Cuba
Dominica
Grenada
Guatemala
Guyana
Honduras
Nicaragua
Panama
Paraguay
Saint Kitts and Nevis
Saint Lucia
Saint Vincent and the Grenadines
Suriname
Trinidad and Tobago
Uruguay
Venezuela

Countries in this region whose natives are not eligible for this year’s DV program: Brazil, Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, Jamaica, Mexico, and Peru.

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Good News For Backlogged Applicants Waiting to File for Green Cards

September 10th, 2015 by W. Scott Railton

There are big changes to the October 2015 Visa Bulletin!

First, the background. The Department of State’s Visa Bulletin, issued monthly, tracks the availability of immigrant visas for persons, based on application type, country of origin, and date of the original petition for immigrant benefits. The date of the original petition (e.g. labor certification filing date, I-140 filing date, or I-130 filing date) is called a priority date. In the past, persons with a priority date could file to adjust status, or for an immigrant visa, if there date preceded or matched the date on the Visa Bulletin. This is described as a priority date becoming “current,” and  continues to be true for the issuance of permanent residence (e.g. adjustment of status approval or grant of immigrant visa).

Here’s what new: the October Visa Bulletin has a new set of charts, which set the earliest dates when applicants may be able to apply for adjustment of status or immigrant visas. So, one chart in the Visa Bulletin is a “Final Action Date,” which includes dates where priority dates are actually current.  The other chart is a “Filing Date” chart, which has the earliest date an applicaiton may be filed. In some cases, the timeframe has been moved up significantly in some backlogged categories, for when an application can be filed. Notably, the EB-3 category for Chinese nationals under the “Date for Filing Applications” moved up more than 10 years with the new chart from the September Visa Bulletin!

One of the principal advantages to filing an adjustment of status earlier is that a person may also be able to apply for a work authorization document (“EAD”) and parole. Further, spouses and children under 21 can also make these applications, as dependents. An EAD may help a spouse who previously couldn’t work, and it may be helpful to a principal applicant to take concurrent employment and otherwise have greater workplace mobility. Also, an EAD is generally less costly for employers than H-1Bs, and so employers may be interested in assisting with adjustments.

There’s a good chance there will be a rush of applications, and that may impact the dates which are later set for accepting applications. The dates in the Visa Bulletin are products of statutory-set quotas and actual demand. In general, and based on past history with the Visa Bulletin, there is cause to consider filing adjustments as soon as the agency will accept them. Each case though has to be examined individually, and costs, risks, and benefits assessed accordingly.

These changes are potentially big for those impacted. The overall quota of immigrant visas still needs to be adjusted, but this is for Congress. USCIS says in the press release below that the changes to the Visa Bulletin and USCIS policy implement one of the November 2014 executive actions announced by President Obama and Secretary of Homeland Security Johnson.  Other executive actions on immigration have been successfully challenged and delayed in court. We will have to wait and see if these changes prompt litigation. It’s possible. In the meantime, this is good news for those who may be able to file adjustment of status sooner than anticipated.

Here’s the USCIS announcement on the changes:

USCIS Announces Revised Procedures for Determining Visa Availability for Applicants Waiting to File for Adjustment of Status

USCIS, in coordination with Department of State (DOS), is revising the procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored preference adjustment of status. The revised process will better align with procedures DOS uses for foreign nationals who seek to become U.S. permanent residents by applying for immigrant visas at U.S. consulates and embassies abroad.

This revised process will enhance DOS’s ability to more accurately predict overall immigrant visa demand and determine the cut-off dates for visa issuance published in the Visa Bulletin. This will help ensure that the maximum number of immigrant visas are issued annually as intended by Congress, and minimize month-to-month fluctuations in Visa Bulletin final action dates.
The Visa Bulletin revisions implement November 2014 executive actions on immigration announced by President Obama and Secretary of Homeland Security Johnson, as detailed in the White House report, Modernizing and Streamlining Our Legal Immigration System for the 21st century, issued in July 2015.

What is Changing

Two charts per visa preference category will be posted in the DOS Visa Bulletin:

• Application Final Action Dates (dates when visas may finally be issued); and
• Dates for Filing Applications (earliest dates when applicants may be able to apply).

Each month, in coordination with DOS, USCIS will monitor visa numbers and post the relevant DOS Visa Bulletin chart. Applicants can use the charts to determine when to file their Form I-485, Application to Register Permanent Residence or Adjust Status.

To determine whether additional visas are available, USCIS will compare the number of visas available for the remainder of the fiscal year with:

• Documentarily qualified visa applicants reported by DOS;
• Pending adjustment of status applications reported by USCIS; and
• Historical drop off rate (for example, denials, withdrawals, abandonments).

About the Visa Bulletin

DOS publishes current immigrant visa availability information in a monthly Visa Bulletin. The Visa Bulletin indicates when statutorily limited visas are available to prospective immigrants based on their individual priority date.
• The priority date is generally the date when the applicant’s relative or employer properly filed the immigrant visa petition on the applicant’s behalf with USCIS. If a labor certification is required to be filed with the applicant’s immigrant visa petition, then the priority date is when the labor certification application was accepted for processing by Department of Labor.
• Availability of an immigrant visa means eligible applicants are able to take one of the final steps in the process of becoming U.S. permanent residents.

Learn more about adjustment of status and the Visa Bulletin on our website (www.uscis.gov).

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Refugee? Migrant? Human Being.

September 9th, 2015 by Heather Fathali

Our world is facing a humanitarian crisis of epic proportions; 2015 alone has seen hundreds of thousands of people risking their lives—and losing their lives— to flee war, violence, poverty, persecution, and other harsh or tragic circumstances in their home countries. Millions more are displaced within their home countries.

Where and how to provide refuge is an issue that cannot be ignored and a conversation that must be had. Sadly, it took a tragic photo of a drowned child on a European beach to capture much of the world’s attention – but the issue is finally at the forefront; with world leaders offering their homes, and even the Pope taking a stance.

However in having this conversation, many people are unsure of the appropriate language to use. Refugee? Migrant? Asylum-seeker? Immigrant? First and foremost, we must be reminded that these are human beings; families like yours and mine.

That being said, there are significant legal implications depending on the term used. While entire treatises can be written on the meaning and legal implications of these terms, I offer a simple guide to when a term might appropriately be used:

Refugee: Generally, a refugee is a person who has been forced to flee their home country due to persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. A person who qualifies as a refugee pursuant to the United Nations’ 1951 Refugee Convention will be afforded a number of protections under international law; including, most significantly, not being immediately deported back to their country of persecution.

Migrant: A migrant is a person who is resettling in another country, or in different region or safe place within their home country, in search of a better life. The umbrella term migrant can be used to describe any person who has moved to a new place from their home country, including those who do so voluntarily and under positive circumstances. For this reason, the use of this term for some is uncomfortable, as it lacks the urgency of a term like refugee and tends to connote voluntariness. In fact, the term migrant covers millions of displaced persons worldwide who are forced to flee very harsh conditions in their home country, who do not flee because they want to, but because they must.

While a great many migrants are in fact refugees, the term is not restricted to a person fleeing persecution. A person fleeing poverty is a prime example; a person displaced due to a disaster is another example. Generally, such a migrant is not afforded protections under international law; unless that person qualifies as a refugee, a migrant’s entry into a particular country will be processed pursuant to that country’s immigration laws—without the protections afforded by the 1951 Refugee Convention.

Asylum-seeker: An asylum-seeker is a person who is fleeing persecution in their home country and seeking status as a refugee in a safe country, but whose claims to refugee status have not yet been adjudicated. Many migrants are asylum-seekers, and will become refugees upon adjudication of their legal claims.

Immigrant: The term immigrant is a general term that can be used to describe any type of person who has left their home country as a migrant and is settled at the new country they will call home. Such a person could have been fleeing persecution as an asylum-seeker and then a refugee; such a person could also have been fleeing poverty or some other harsh conditions that do not rise to what international law deems to be persecution; such a person could also have left their home country for positive reasons.

While the term being used to describe a person is significant in a legal sense, it is crucial to remember that whatever their legal status, these are all people we are talking about— grandparents, moms and dads, brothers and sisters, children. Each is a unique human being facing a unique set of circumstances, who must be treated individually and with respect.

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Good News for Registered Nurses and Physical Therapists

August 14th, 2015 by W. Scott Railton

The Department of State’s most recent Visa Bulletin is good news for Registered Nurses and Physical Therapists.

The current priority date for third preference nationals from the “All Other” and “Mexico” categories is August 15th, 2015. This means that an employer may sponsor a Registered Nurse or Physical Therapist born in Canada, Mexico, or any other country–except for India, China, or the Philippines–and a permanent residence card should be available within months. Not too long ago, the wait was measured in several years.

The third preference categories have been like this for a few months now. I anticipate this will lead to a rush of applications. Many hospitals are aware of the short backlog, and are recruiting internationally.

It used to be routine for Registered Nurses and Physical Therapists to be sponsored by hospitals for green cards, as part of their recruitment strategy. Then, the backlogs started getting longer and longer, and this often became impractical.

The U.S. Department of Labor pre-certifies RNs and PTs under its Schedule A.  This means that employers do not have to test the U.S. labor market for these occupations, before petitioning the government on their behalf for green cards.  Such tests are tedious, expensive, and time-consuming.

The Schedule A green card process requires an on-site posting, and a prevailing wage determination from the National Prevailing Wage Center. These steps in the process can take two months or longer. Subsequently, an I-140 Petition for Alien Worker is filed with the Department of Homeland Security. The priority date for the worker is fixed as the date of the filing of this petition. Ordinarily, the agency takes four to six months to initially adjudicate one of these petitions. Premium processing is available, to have the petition initially adjudicated in 15 days, for $1225. With priority dates being only two weeks short of current, it may make sense to process as soon as possible.

An RN or PT who is on track to become a manager or who likes to move around might see this as a window of opportunity. Permanent residence can open up career doors, both for the employee and the employer. It may be cliche, but indeed, this is a time to strike while the iron is hot. The backlogs may well get longer again soon.

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For Better or For Worse: Voodoo Science and the Immigration Marriage Fraud Amendments

June 26th, 2015 by Heather Fathali

“Instead of sham marriages, the only proven sham so far has been sham legislation.”

 -James A. Jones 1

Great power can be achieved through science. This power should be treated with care; while the benefits of legitimate scientific research are unquestionable, the damage caused by “junk science” or “nonscience” can be significant and lasting. Within the legal context, scientific research is of the utmost importance.

Throughout the legislative process, Congress relies on experts to describe, explain, and evaluate proposed policies through scientific research and statistical analysis; a process which helps Congress decide whether or not to legislate.2 This is essential, as the members of Congress are not typically experts in the fields in which they legislate. Due to this reliance, those testifying before Congress are in a position of substantial power and influence. The famously complicated field of immigration is no exception; for better or worse, the use of statistics has played a significant role in the development of our nation’s immigration laws.

While a presentation of legitimate scientific research findings is hopefully the norm when it comes to congressional testimony, the legislative history of the Immigration Marriage Fraud Amendments is a distressing example of nonscience being presented to and relied on by Congress in passing a law.

A brief discussion on the benefits of marriage within the immigration process is useful to understanding the context in which the Immigration Marriage Fraud Amendments were passed. Marriage to a United States Citizen (USC) or Legal Permanent Resident (LPR) offers many benefits for noncitizens seeking immigrate to the United States, as well as advantages in the realms of deportation and naturalization—including automatic exemption from, and discretionary waivers of, requirements or sanctions that may otherwise be imposed.3 In light of the significant visa backlogs that attend the U.S. immigration system, one of the most important and immediate benefits of marriage to a USC or LPR is its effect on the visa waiting period. Marriage to a USC confers “immediate relative” status on the immigrant, which automatically eliminates the visa waiting periods that would otherwise apply, with the only wait time being the time it takes for the visa’s processing.4 Marriage to a LPR gives “first preference” status to the immigrant, considerably reducing the waiting period.5 There is no question that this benefit might be sufficient to entice fraud; the waiting periods for certain categories of immigrants are significant, with some categories currently experiencing a wait period of over twenty years.6 Consequently, detecting fraudulent marriages has long been a priority for immigration officials.7 Marriage fraud is grounds for removal from the United States.8

Until 1986, the process for detecting a fraudulent marriage was to interview both spouses separately before approving the marriage petition.9 The officer would ask questions regarding the couple’s relationship— their courtship, marriage, day-to-day life, and other details—looking for discrepancies in their “stories.”10 Despite such procedural safeguards, the former Immigration and Naturalization Service (INS) still believed marriage fraud to be rampant.11

In 1985, Commissioner Alan Nelson of the INS testified before the Senate immigration subcommittee in support of legislation to combat this “rampant” marriage fraud.12 He announced that the INS had conducted a preliminary survey on marriage fraud, based on which “we believe as much as 30%, which is an extremely high figure, of the spouse relationships may be fraudulent.”13 During the hearing, Jules Coven, then-president of the American Immigration Lawyers Association, challenged the 30% estimate: “I would be extremely surprised to learn, if it could be shown statistically, that more than one or two percent of the ‘green cards’ issued annually on the basis of marriage involved fraud.”14 Nonetheless, the House Judiciary Committee recommended, and Congress passed, the Immigration Marriage Fraud Amendments of 1986 (IMFA).15

After the IMFA passed, the INS disclosed the basis for its findings: a 1983-84 INS study in which INS investigators reviewed selected spousal petitions.16 In conducting the study, the INS collected data in only three cities.17 Excluded from the sample were entire categories of marriage petitions in which officials believed fraud to be unlikely.18 The handpicked cases which remained were reviewed “in as much depth as possible given the [one to two months] for completion of the survey”; sometimes the parties were interviewed, sometimes they were not.19 The investigator was then asked whether he/she suspected fraud—not whether any fraud was actually found.20 A “suspicion” of fraud was reported in 30% of this already biased sample.21

In 1989, the further details regarding the truth about the study were uncovered when David Nachtsheim, the INS official in charge of the study, was deposed in conjunction with a case challenging the constitutionality of one IMFA provision.22 Nachtsheim testified that he and other top officials had known that the survey was “statistically invalid and lacked any probative value regarding the actual incidence of marriage fraud.”23  In fact, it was revealed that the study was actually completed to estimate the future workload of INS officials; it was never intended to measure the incidence of marriage fraud.24 Top INS officials ordered another study conducted, and prior to Commissioner Nelson’s congressional testimony, recommended the study not be cited as probative incidence of fraud.25 However, the Commissioner cited the figure anyway, and the IMFA became law.26 Incredibly, the INS never determined the exact number of cases of known fraud before Congress enacted the IMFA.27

The legislative history of the IMFA is a flagrant example of “junk” or “voodoo” science being used in the immigration context. There was a deliberate intent to mislead; the INS knew the study offered no evidence of marriage fraud, but its Commissioner cited it anyway. If top INS officials knew the study to be invalid, they should have and could have done more than simply “recommend” that the study not be cited; they should have prohibited it.

From a scientific standpoint, the problems with the research design of this study are numerous. First and most glaringly, it was not a random sample. In fact, the sample was totally biased, an example of the “sharp-shooter” fallacy in which shots are fired and the target is drawn around them. It was selective observation. The agency had at its disposal a sampling frame which included all marriage-based immigration petitions, yet it only focused on a select subset of the data that was already thought to support the agency’s hypothesis. Any data that did not “fit” was excluded from the sample. Because the sample was not random, it was not probability-based and therefore could not allow any generalization to the population of interest. Any concerns which could be raised about the efficiency of including the entire population within the sampling frame are totally unfounded; the agency must examine every petition for marriage fraud regardless of whether or not a study is being performed.

Beyond the research design flaws in the study itself, the other obvious issue here is the major break in the chain of reasoning: the conclusions presented to Congress were irrelevant to the purpose for which the study had been conducted. The study was intended to forecast future INS workloads—thus, even if the study was valid (which it was not, for the reasons discussed above), there would remain this blatant problem that the conclusions regarding the incidence of marriage fraud had nothing to do with the study’s purpose. By no terms is this good science.

Since the IMFA’s enactment, many of its controversial provisions have been criticized and constitutionally challenged. A few of the provisions have been struck down or amended, but most others have been upheld pursuant to Congress’ plenary power over immigration.28 Beyond whatever legitimate purpose the IMFA may or may not serve in combatting marriage fraud (which is beyond the scope of this discussion), perhaps its most important purpose is to serve as a reminder that junk science is not confined to the realm of the general public, or news reports, or the courtroom; it can and will permeate even our legislative process if permitted. When it does so, the effects are permanent and far-reaching; in the case of immigration, the effects reach not only U.S. citizens, but citizens from every corner of the globe.


1. James A. Jones, The Immigration Marriage Fraud Amendments: Sham Marriages or Sham Legislation?, 24 Fla. St. U. L. Rev. 679, 700 (1997).

2. See generally, Robert Park, Voodoo Science 96 (2009).

3. Stephen H. Legomsky & Cristina Rodriguez, Immigration and Refugee Law and Policy, 282 (Robert C. Clark et al. eds., 5th ed. 2009).

4. INA § 201(b)(A)(i).

5. INA § 203(a).

6. U.S. Dep’t of State, Visa Bulletin for March 2015, available at http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-march-2015.html.

7. See Legomsky, supra, at 284.

8. INA § 212(a)(6)(C), (G).

9. Legomsky, supra, at 284.

10. Id.

11. Id.

12. Id. at 283-84.

13. Id. at 284.

14. Jones, supra, at 700.

15. Legomsky, supra, at 284.

16. Id.

17. Jones, supra, at 699.

18. Legomsky, supra, at 284.

19. Id.

20. Id.

21. Id.

22. Legomsky, supra, at 284.

23. Id.

24. Id.

25. Id.

26. See Id.

27. Jones, supra, at 699.

28. Legomsky, supra, at 285, 289.

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Department of State Slowly Recovering from IT Visa Processing Delay Issues

June 24th, 2015 by W. Scott Railton

The U.S. Department of State, which operates the Consulates around the world and issues visas to nonimmigrants and immigrants, is experiencing technical difficulties.

From June 8th to June 19th, the agency was unable to issue visas into passports, despite holding interviews during that timeframe. Apparently, the technology issues were soon recognized as severe, and the agency then had over a 100 technical experts working 24/7 on the issue to rectify things. It seems things are now slowly coming back on line, and the agency says it will work through the weekends to clear backlogs.

Until there is more certainty with this IT recovery, if possible it is best to put off processing for a visa, as it is possible that an applicant may have to wait abroad for an extended period while the agency processes the visa. While there are no guarantees, it appears things may be back to normal in a few weeks.

Here’s the latest statement from the Department of State:

Technological Systems Issue
June 23, 2015

Visa Systems Issues

The Bureau of Consular Affairs reports that the database responsible for handling biometric clearances has been rebuilt and is being tested. 39 posts, representing more than two-thirds of our normal capacity, are now online and issuing visas. We are working to restore full biometric data processing.

We issued more than 45,000 visas yesterday. Beijing alone issued nearly 15,000 visas.

Our team continues to work 24/7 to restore the systems to full functionality.

We will continue to bring additional posts online until connectivity with all posts is restored.

We deeply regret the inconvenience to travelers waiting for visas.

We continue to post updates to our website, travel.state.gov.

Q: How long before you restore full system functionality?

We anticipate that the system will be fully reconnected this week. We plan to work over the weekend to clear our backlog.

As of noon today, 39 posts have been reconnected, representing more than two-thirds of the global nonimmigrant visa volume. All our servers appear to be stable.

There is a large backlog of cases to clear, but we have already made good progress. We will continue to bring additional posts online until connectivity with all posts is restored.

Q: What does this mean for travelers seeking visas?

Many posts are now rescheduling interviews. In some cases, interviews will be available as soon as June 24. Please check the website of the nearest embassy or consulate for interview appointment availability and up-to-date messages.

Q: How many people were affected by this outage?

We handle an average of 50,000 applications daily worldwide. During the past two weeks, consular sections have continued to interview travelers who applied June 8 or earlier. Interviews will now be available for those who applied after June 8. Visa issuance has been delayed by the systems outage and the backlog will be addressed.

Q: Once operational, how will cases be prioritized?

We are already prioritizing urgent humanitarian cases and temporary agricultural workers. We are working as quickly as possible to clear the backlog of pending visa cases.

We apologize to travelers and recognize that this has caused hardship to some individuals waiting for visas.

Q: What about the foreign agricultural workers (H2A visa holders?)

Nearly 1,700 temporary or seasonal workers have been issued new visas in Mexico. These are applicants whose biometric data was captured before the systems went down.

An additional 250 received Port of Entry waivers from Customs and Border Protection (CBP). We are no longer asking CBP to provide port of entry waivers, as we are now able to issue visas at border posts.

Based on our systems progress, we are currently rescheduling more than 1,500 H-2 visa applicants who were unable to be interviewed last week because of systems problems.

Visa applicants, including agricultural workers, who have not received a visa should not report to the border. Please contact the nearest embassy or consulate.

Q: What about domestic passports?

Domestic passport operations are functioning, with some processing delays.

The technical problems have affected the intake of some mailed applications and same-day service at our passport agencies; however, we continue to issue routine and expedited passports to U.S. citizens for all overseas travel needs.

Q: What about overseas passports?

Overseas passport applications are being processed. There have been delays in some cases, but posts overseas are able to issue emergency passports in urgent cases.

*Connected Posts

1. Paris
2. Monterrey
3. Ciudad Juarez
4. Guangzhou
5. Beijing
6. Shanghai
7. Tijuana
8. Nuevo Laredo
9. Mexico City
10. Guadalajara
11. Mumbai
12. New Delhi
13. Sao Paolo
14. Chennai
15. Manila
16. Bogota
17. Buenos Aires
18. Rio de Janeiro
19. Tel Aviv
20. Merida
21. Hermosillo
22. Karachi
23. Seoul
24. Lima
25. Santo Domingo
26. Kingston
27. Shenyang
28. Chengdu
29. DPT
30. Lagos
31. Guayaquil
32. London
33. Brasilia
34. Moscow
35. San Salvador
36. Quito
37. Ho Chi Minh
38. Hanoi
39. Kyiv

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USCIS Publishes Update on Employment Authorization for Certain H-4 Dependent Spouses

May 20th, 2015 by W. Scott Railton

U.S. Citizenship and Immigration Services has published an update on its website (www.uscis.gov) concerning eligibility and procedures for employment authorization for certain H-4 dependent spouses. The update provides information on evidence which will be accepted to establish eligibility, standalone applications v. combined applications (e.g. I-539 extension, I-129 extension), validity period, filing locations, and other such details.

The cost of the Employment Authorization Document application is $380.

Notably, the EAD validity will “likely be the same date as the expiration date on your most recent I-94 indicating your H-4 nonimmigrant status.”

Employers may want to identify the need for spousal work authorization up front, and address issues of timing and costs.  From a timing perspective, it will probably be most efficient to file these applications at the time of the I-129 renewal for the primary H-1B holder, so that I-94 and EAD validity periods match up, without an gaps in employment authorization periods.

Also, in light of the availability of the benefit, it may behoove all to file H-1B petitions with such related EAD applications as early as possible.

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Employment Authorization Applications Accepted for Certain H-4 Spouses on May 26th

May 20th, 2015 by W. Scott Railton

U.S. Citizenship and Immigration Services will begin receiving employment authorization applications from certain H-4 spouses beginning May 26th. In anticipation of a surge of applications, the agency has temporarily suspended premium processing for H-1B extensions for two months, beginning on the same day. Full instructions have not yet been posted, but the agency will likely update things on May 26th.  It is possible that processing may be slow at first, and a surge in work may divert USCIS staff from other adjudications, creating temporary delays.

Here is USCIS’s most recent update, posted at www.uscis.gov:

Beginning May 26, 2015, certain H-4 dependent spouses of H-1B nonimmigrants can file Form I-765, Application for Employment Authorization, as long as the H-1B nonimmigrant has already started the process of seeking employment-based lawful permanent resident (LPR) status. Specifically, H-4 dependent spouses may apply for Employment Authorization if the H-1B visa holder:

– Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; OR

– Has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

The Employment Authorization for Certain H-4 Dependent Spouses final rule (H-4 rule), effective on May 26, 2015, seeks to support the goals of attracting and retaining highly skilled foreign workers and minimizing the disruption to U.S. businesses resulting from H-1B nonimmigrants who choose not to pursue LPR status in the United States.

Although draft H-4 rule was published in May 2014, finalizing it is part of the executive actions on immigration that President Obama announced in November 2014. Extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants is one of the initiatives to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.

The Office of Management and Budget has reviewed the USCIS request for changes to the Form I-765 and its instructions (covered under OMB Control Number 1615-0040), resulting from the H-4 rule. We will update this Web page with guidance on filing Form I-765 on May 26, 2015, the date the H-4 rule becomes effective. Important note: USCIS will not accept Form I-765 submitted by H-4 dependent spouses until the H-4 rule takes effect on May 26, 2015. If you submit an application for employment authorization under the (c)(26) eligibility code before May 26, USCIS will reject the filing. We will return the Form I-765 and filing fee, and you will have to re-file the request when the rule takes effect.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require a Bachelor’s or higher degree and theoretical or technical expertise in specialized fields such as science, engineering and computer programming. In addition to specialty occupation workers, the H-1B classification applies to individuals performing services related to a Department of Defense cooperative research and development project or coproduction project, and individuals performing services of distinguished merit and ability in the field of fashion modeling.

Visit our H-1B Visa Web page for more information on eligibility for the H-1B program.

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233,000 Reasons to Fix the Broken H-1B Program

April 13th, 2015 by W. Scott Railton

U.S. Citizenship and Immigration Services announced today that it received nearly 233,000 H-1B petitions for 85,000 slots last week. Horrible.

Businesses, prospective employees, HR specialists, and attorneys all over worked hard during the previous months to prepare applications. The Department of Labor’s labor condition application system was actually backlogged, so that certifications took longer than usual. All sorts of money was spent in preparing applications.

The odds of even being considered are less than 50%.

This is economically wasteful. Meanwhile, applications received unnecessarily high scrutiny, with attorneys increasingly having to go to court just to get a rational evaluation of whether a position is a specialty occupation.

Increasingly, the H-1B program is entering the land of the absurd. Businesses are right to demand an H-1B program that better serves the public interest.

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