visa

Many immigrant visa applicants often find themselves unsure of what will come next at the end of their immigration process. The Department of State has taken time to clarify the procedures following the Adjustment of Status. Once a case has been finalized, the Officer will submit a request for visa authorization to the Visa Office using the IVAMSWEB automated system.

With this program the system is able to verify,  that the applicant’s priority date is within the applicable cut-off date for that month. When this request  has been made three outcomes can occur: 1) it is Authorized,2) it is identified as a “Duplicate” request, meaning that the A-number was previously authorized, or 3) it is beyond the established cut-off date and is placed in the “Pending Demand” file.

Due to the September 17, 2008 terrorist attack on the Embassy, the Consular Section of the Embassy in Sanaa, Yemen has been forced to reduce routine visa processing temporarily, including immigrant visas. As a result, all immigrant visa appointments will have to be rescheduled. You will be contacted by the National Visa Center or the embassy Consular Section when your visa interview appointment has been rescheduled.

Why do we have such a major employment based immigrant visa backlog? According to the Immigration policy center each year, the Department of Homeland Security fails to issue all of the “green cards” allocated for that year. Under current law, the visa numbers do not “roll over” to the next year and the unused visas are lost. Unused or lost visa numbers result in longer delays for US citizens or legal residents to reunite with a close family member or in a delay for a US business to get a needed worker.

H.R. 5882 is a bipartisan bill co-sponsored by House Immigration Subcommittee Chair Zoe Lofgren (D-CA) and James Sensenbrenner (R-WI). This modest piece of legislation would simply permit the “recapture” or use of visas that have gone unused in past years due to bureaucratic delays. The visas would be issued to qualified family-based or employment-based legal immigrants.

The fifth employment based preference (EB5) category is designed specifically for Employment Creation.. To qualify, a foreign national must invest between $500,000 and $1,000,000.00 depending upon the employment rate in a specific geographical location. The national must invest in a commercial enterprise in the U.S. that will create at least 10 new jobs for U.S. citizens, lawful permanent residents, or other lawful immigrants, not including the investor and his/her family. Accordingly, the regulation at 8 C.F.R. §204.6(j) states that to show that the petitioner has invested or is actively in the process of investing the required amount of capital, the petition must be accompanied by evidence that the petitioner has placed the required amount of capital at risk for the purpose of prospective investment arrangement entailing no present commitment, will not suffice to show that the petitioner is actively in the process of investing. The alien must show actual commitment of the required amount of capital. Regulations define Capital as cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. Additionally, the regulations define Invest as to contribute capital. A contribution of capital in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the alien entrepreneur and the new commercial enterprise does not constitute a contribution of capital for the purposes of this part.

The Administrative Appeals Office (AAO) recently dismissed an appeal  in which the petitioner sought classification as an alien entrepreneur pursuant to section 203(b)(5) of the Immigration and Nationality Act. The director of the Texas Service Center initially denied the petition because the petitioner failed to demonstrate a qualifying investment of lawfully obtained funds, and this appeal followed.

Recently, the American Immigration Lawyers Association (AILA) issued a section-by-section analysis of the Visa Efficiency and E-Verify Extension Act of 2008. In summary this bill recaptures unused family based and employment based visas from fiscal years 1992 through 2007 and allows unused family and employment based visas in future years to automatically “roll over” to the next fiscal year. Although the maximum number of visas issued is mandated by law, the actual number of visas issued in a given year can be significantly lower based on processing or other bureaucratic delays. In order to ensure that all authorized visas are actually used, the Act permits calculation of the final number of visas available that takes into account unused visas from past years.  Additionally, the bill reauthorizes the Department of Homeland Security’s (DHS) electronic employment eligibility verification program known as “E-Verify.” The Act provides a 5 year extension of the voluntary program and it also includes provisions that ensure that DHS provide timely reimbursements to the Social Security Administration (SSA) for the resources utilized to maintain the E-Verify program.

The U.S. Department of State has provided further information regarding the Visa Bulletin’s EB-2 and EB-3 Categories for the month of July 2008. The DOS claims that under the Immigration and Nationality Act, if the total demand for visas in an employment preference category is insufficient to use the unused numbers may be made available without regard to the annual per-country limit. For example, the second preference annual limits were 40,000, however number use by “All Other Countries” was estimated to be only 25,000. The China/India combined number use based on their per-country limits were 6,000, with 9,000 numbers unused. The DOS determined that the demand from “All Other Countries” for second preference numbers, plus the quantity of numbers available under the China and India second preference per-country limit, would be insufficient to use all available numbers under the annual limit for this category. Therefore, unused numbers have been made available to China and India second preference applicants. Because such unused numbers must be made available strictly in priority date order, the China and India applicants have been subject to the same cut-off date as worldwide applicants. In addition the DOS claims that in providing the unused numbers to China and India “in no way disadvantages applicants from any other country and helps to insure that the worldwide annual limit can be reached”. The latest Visa Bulletin containing this and other information on priority dates is available at Visa Bulletin - Employment.