Thursday, June 28, 2012

Can you name the Immigrant? this is GREAT

News on retrogression

On Tuesday, June 19, 2012, Roberta Freedman, AILA Students & Scholars Committee member, discussed the Visa Bulletin, visa demand in the employment preference categories, and predictions for FY2012 and beyond with Charlie Oppenheim of the Visa Office. Here are notes from that discussion: 2012 and 2013 News In October 2012 (beginning of the 2013 fiscal year), the EB-2 cut-off dates for China-Mainland born and India, which are currently "unavailable," will move to August or September 2007 (China may be slightly better). It is unlikely that the cut-off dates will move forward at all for the first two quarters of FY2013. If they do, it will only be if the Visa Office is convinced that there is insufficient demand for the rest of the year. Mr. Oppenheim's office already has 17,000 EB-2 cases for natives of India, China, and worldwide with priority dates after January 1, 2009, pre-adjudicated. There will be a lot of cases queued up for adjudication in October 2012, and it will take some time to get through them. EB-2 worldwide will be current in October 2012. If USCIS approves many pending cases during the month of June, the worldwide EB-2 category may retrogress or become unavailable for the rest of the year. Why did the priority dates move ahead so far and then retrogress so drastically? USCIS encouraged Mr. Oppenheim's office to move the categories forward so much in January, February, and March of 2012. USCIS reported that they had a lot of approved petitions but they were not receiving enough I-485s. USCIS wanted the cut-off dates moved even more in March 2012, but DOS resisted, since there already appeared to be heavy demand. In February, the demand had already increased 50%. In addition, USCIS said that they believed that adjudication of EB-1 cases would be at the same rate as last fiscal year, and this was not the case. It could be due to the fact that many EB-1 cases had very long adjudication times with USCIS. In addition, EB-5 usage has been higher this year. Unused EB-5 cases fall into EB-1, and unused EB-1 cases fall into EB-2. Applicants from China and India who filed will be waiting years for adjudication of their I-485s. USCIS also advised a 4-6 month timeline in the processing of I-485s, and then they processed a lot of cases in 3 months, which increased the demand as well for visa numbers this fiscal year. The group of cases that were filed in July and August of 2007, when all employment-based categories were made "current," were all completed by November 2011, and at that point, Mr. Oppenheim's office had to depend on USCIS estimates for adjudication of cases. Mr. Oppenheim's office had no pre-adjudicated cases that gave him a point of reference to determine what was left or pending. Mr. Oppenheim's office has been very clear that they do not like retrogression. Going forward: Another problem with trying to predict the demand is that no one is keeping statistics on EB-3-EB-2 "upgrades." Upgrades continue to be a big "wildcard," as no one knows how many are being used per year and no one is tracking it. Mr. Oppenheim confirmed his previous comments that both cases for a person remain open (so it looks like two numbers are being used) if a person is upgrading from EB-3 to EB-2, and only when the green card is approved does the duplicate file number go away. At that time, Mr. Oppenheim's office is told by USCIS to cancel a pending EB-3 case. Mr. Oppenheim's office believes that there are 10,000 to 15,000 numbers used for upgrades every fiscal year. In March 2012, alone, 3,200 numbers were used to approve China and India adjustments that were EB-3-EB-2 upgrades. The actual break down was 2,800 from India and 500 from China. All of these cases had priority dates before 2007, so clearly, they were upgrades. For example, 363 of the 2,800 EB-2 cases from India that were approved in March 2012, had a 2005 priority date. In March 2012, alone, over 1,000 numbers were used for applications from the worldwide quota that had priority dates before 2010, so these were likely upgrades as well. USCIS previously insisted that the number of upgrade cases was insignificant. Mr. Oppenheim's office tries to use 13,500 visas per quarter for all EB cases. This office already has more than 17,000 in line for FY2013. On Thursday, January 19, 2012, Business committee chair Mike Nowlan and Students & Scholars committee member, Roberta Freedman, discussed the Visa Bulletin, visa demand in the employment preference categories, and predictions for FY2012 with Charlie Oppenheim of the Visa Office. Notes from that discussion are: EB green card usage has been very slow in FY2012, so DOS is advancing the dates to see how many cases are out there. Mr. Oppenheim is relying on USCIS and their estimate. USCIS thought more would come in, but 50% their estimate have actually filed an AOS. This movement is due in large part to the clearing out of the EB-2 2007 AOS cases. Mr. Oppenheim reminds AILA that DOS cannot "see" the I-140 cases that are approved and for which adjustment of status had been requested prior to September 2010, though he can "see" cases for which consular processing is requested. Mr. Oppenheim could not speculate why usage is slow/low. Economy? Foreign nationals lost jobs? Low usage of EB-1 numbers is assumed again this year. A fall-down of 12,000 additional EB-1 numbers into EB-2 is calculated into Mr. Oppenheim's projections for 2012, although he thinks EB-1 number availability may be down by approximately 1,000 as compared to last year, due to heavier EB-5 usage since unused EB-5 numbers "spill up" to EB-1 and then down to EB-2. Mr. Oppenheim is very surprised by the severe downturn in EB-1 numbers. We cited the impact of Kazarian on USCIS filings and demand for EB-1-1 numbers, and the fact that it is difficult for an owner-beneficiary to obtain approval of EB-1-3 petitions. About 34% of the total number of permanent visas have been used this year, and 45% should be used by end of February. Adjustment of status through USCIS accounts for 85% to 90% of all EB green card cases. The impact on number usage of upgrades (EB-3 to EB-2) is still unknown. Upgrades were the reason the priority dates advanced so slowly in in the beginning of FY2011. For upgrades, the EB-3 case does not get cleared out of the system until the EB-2 for the same person is approved. Mr. Oppenheim also wonders whether demand is weak for visas for dependent family members, and so fewer green cards are needed. Mr. Oppenheim meets monthly with USCIS and the Ombudsman's office to review the receipt of cases. There was a recent meeting to discuss December numbers. There will be another review before he decides what he will do in March. Prediction: Employment-based priority dates will advance again with the March Visa Bulletin, likely by at least a few months. An advance of six months is possible, although an advance of one year is not likely. He will know as this month moves on. With normal USCIS adjustment of status processing times of four-to-six months, March is the last time for Mr. Oppenheim to get the AOS cases filed and possibly approved in FY2012. He will then probably hold the priority date over the summer, and then retrogress or advance it if needed. Mr. Oppenheim does not have enough data to predict demand and priority date changes in the last quarter of FY2012. • USCIS is agreeing to the priority date advances, though significant advances are bit of a gamble for USCIS, because if they get inundated with adjustment filings, and subsequently there is priority date retrogression, USCIS will have to process EAD and advance parole extensions without additional fees. As we all know, retrogression causes chaos.

Monday, June 25, 2012

Arizona immigration law unconstitutional... But

The U.S. Supreme Court today released its anticipated opinion in Arizona v. United States, ), the case concerning Arizona’s SB 1070 immigration legislation. Justice Kennedy wrote the opinion that was joined by Justices Roberts, Ginsburg, Breyer, and Sotomayor. Justices Scalia, Thomas, and Alito dissented in part and concurred in part. Justice Kagan did not participate in deliberations. Of the four SB 1070 provisions before the Court, only one survived challenge: the provision allowing state police officers to investigate the immigration status of anyone they reasonably suspect is unlawfully present and that requires officers to check the status of everyone arrested. Interesting...

Wednesday, June 20, 2012

Jon Stewart calls out Fox News on Deferred Action

Deferred Action - What You Need to Know

On June 15, 2012, President Barak Obama announced a new procedure for young people, who were brought to the United States before the age of 16 and who would otherwise be subject to removal to countries that they do not remember or where a language is spoken that they do not speak, to be granted 2 years of deferred action.  This means merely that the individuals granted deferred action will not be subject to removal in this 2 year period.  This is a great step for young people, but it is important to sort out what the program is, what it is not, and how to go about requesting this in your case.  This is not amnesty, nor is it a grant of legal status to undocumented individuals.  Only Congress may confer immigration benefits.  

This is merely a program to lift the cloud of deportation from those young persons who were brought here while they were young and who have lived most of their lives as Americans and have contributed in many ways to our society, but are under threat of deportation, through no fault of their own as they lacked the required intent to violate the law.  Although administrative closure under previous prosecutorial discretion directions have already been helping individuals in this circumstance, further action was deemed to be needed to ensure that these low priority cases were not diverting resources from high-priority criminal immigration cases.  

This is not the DREAM Act.  More needs to be done in that direction, but that is solely in the hands of Congress to do.  This policy is designed to make life more bearable for these individuals and allow them to continue contributing as productive members of American society until more comprehensive immigration reform can be passed through Congress. 

Hopefully this information will help explain the program and the best ways to take advantage of this new policy.

CRITERIA: Pursuant to the Department of Homeland Security Secretary Napolitano’s June 15, 2012 memorandum, in order to be eligible for deferred action, individuals must:
  1. Have come to the United States under the age of sixteen;
  2. Have continuously resided in the United States for at least five years preceding June 15, 2012 and were present in the United States on June 15, 2012;
  3. Currently be in school, have graduated from high school, have obtained a general education development certificate (G.E.D.), or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
  4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
  5. Not be above the age of thirty or under the age of 15.
Individuals must also successfully complete a background check and, for those individuals who make a request to USCIS and are not subject to a final order of removal, must be 15 years old or older.

IMPORTANT: As of the date of this publication this program has not yet begun, and the USCIS is intending to use the full 60-day allotment to implement this new policy.  The procedure for application for deferred action has not yet been established.  We do not know if there will be a form to fill out, or if there will be a fee charged.  Please continue reading for information about what sorts of evidence you can be gathering in the meantime or contact our office at 513-877-4209 or

DO NOT attempt to place yourself in removal proceedings to receive deferred action.  It is not necessary and will bring more trouble than good.

DO NOT request deferred action if you KNOW that you are ineligible, under any of the criteria, as this can be used to institute removal proceedings against you, following USCIS’s Notice to Appear policy.  Under this policy, individuals whose requests are denied will be referred to ICE if they have a criminal conviction or if there is a finding of fraud in their request for deferred action.  This means it is VERY important to speak to a legitimate, authorized immigration attorney and be very wary of Notarios and others posing as immigration attorneys.

If you are CURRENTLY in removal proceedings, or about to be removed by ICE, please contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9am – 5pm, Monday – Friday) or by e-mail at

 It IS: a discretionary determination to defer removal action as an act of prosecutorial discretion.  
  • USCIS determines that moving your case to the side for two years meets its discretionary enforcement goals, and it will not pursue your removal in this two-year period.
  • It is also RENEWABLE.  USCIS does not see this program ending at any point in the near future and therefore has decided that after the initial granting of a 2 year deferred action, the individual may request again for the same 2 year deferral.
  • It DOES provide for Employment Authorization for those granted deferred action, and our office can assist you with the employment authorization process. 
  It is NOT: an amnesty program or a granting of legal status, nor a path to citizenship.
  • Deferred action does NOT grant the applicant a legal status, a green card, or citizenship.
  • It does NOT remove any previously accrued unlawful presence time, and although unlawful presence does not accrue during the 2 year deferred action period, if the deferred action comes to an end and is not renewed, then unlawful presence will resume accrual.
  • It does NOT award deferred action to any family members, dependents, or immediate relatives.  This is an individual process and each eligible individual must submit a request separately.

CRIMINAL BACKGROUND CHECK: In order to qualify for deferred action, an individual must pass a background check that USCIS will perform using all available databases.  They will be looking for convictions that may disqualify the individual from receiving deferred action.  Individuals who have been convicted of ANY Felony, a Significant Misdemeanor Offense, or three or more misdemeanor offenses (not in relation to the same instance), or otherwise are found to pose a threat to national security or public safety are not eligible to be considered for deferred action.  
  • Examples of Significant Misdemeanors: A significant misdemeanor is a federal, state, or local criminal offense punishable by no more than one year of imprisonment or even no imprisonment that involves: violence, threats, or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs. 

If you have a criminal record, or have ever been arrested and have questions about your criminal record or possible post-conviction relief, please contact our offices.
DOCUMENTATION:  You may begin collecting information now to submit once USCIS has determined the manner in which it will process applications, but DO NOT submit anything yet.
  • To prove that an individual was present in the US before they turned 16: may include but is not limited to: financial records, medical records, school records, employment records and military records.
  • To prove that an individual has resided in the US for at least 5 years prior to June 15, 2012: may include but is not limited to: financial records, medical records, school records, employment records, and military records.
  • To prove that an individual was physically present in the US as of June 15, 2012: may include but is not limited to: financial records, medical records, school records, employment records, and military records.
  • To prove that an individual is currently in school, has graduated from high school, or has obtained a general education certificate (GED): may include, but is not limited to diplomas, GED certificates, report cards, and school transcripts.
  • To prove that an individual is an honorably discharged veteran of the Coast Guard or US Armed Forces: may include, but is not limited to: report of separation forms, military personnel records, and military health records.
NOTARIO FRAUD:  In the US, Notarios are those who are engaging in the unauthorized practice of immigration law.  Please be extremely wary of those people claiming to be immigration lawyers who say that they can get you deferred action now, as the program is not yet available.  Until procedures have been announced by USCIS, do NOT trust anyone who wishes to charge a fee or fill out a form to help you request deferred action, as we do not yet know if there will be a form or fee associated with this.  Fraud may severely negatively impact your immigration status and could make you removable, the opposite of what you want.  Please report any fraudulent immigration practitioners to the proper authorities.  

There is no appeal process if your request for deferred action is denied, so please take the steps to make sure that your request is correctly done, and contact our office if you would like our assistance in doing so.
Neil I. Fleischer Esq.
The Fleischer Law Firm LLC
917 Main Street
Cincinnati, Ohio 45202
(p) (513)977-4209
(fax) (513)977-4218    
Twitter: @nfleischer

US citizen of the Day - Case C.

Case C. , one of my clients was sworn in as a US citizen last week. Congrats to Case and his family. Please see link below for his thoughts about what it mean to become a US citizen. Congrats Case!!!

Friday, June 15, 2012

Dream Act = Deffered Action

Secretary Napolitano Announces Deferred Action Process for Young People Who Are Low WASHINGTON— Secretary of Homeland Security Janet Napolitano today announced that effective immediately, certain young people who were brought to the United States as young children, do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization. “Our nation’s immigration laws must be enforced in a firm and sensible manner,” said Secretary Napolitano. “But they are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Discretion, which is used in so many other areas, is especially justified here.” DHS continues to focus its enforcement resources on the removal of individuals who pose a national security or public safety risk, including immigrants convicted of crimes, violent criminals, felons, and repeat immigration law offenders. Today’s action further enhances the Department’s ability to focus on these priority removals. Under this directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis: Came to the United States under the age of sixteen; Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum; Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States; Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; Are not above the age of thirty. Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a period of not less than 5 years immediately preceding today’s date. Deferred action requests are decided on a case-by-case basis. DHS cannot provide any assurance that all such requests will be granted. The use of prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.

The DREAM is alive

DHS will formally announce this afternoon that it will offer deferred action to certain DREAMers. Preliminary information indicates that eligible applicants must: Be 15-30 years old Have been present in the U.S. for 5 years as of June 15, 2012 Maintained continuous residence Have not been convicted of one serious crime or multiple minor crimes

Tuesday, June 12, 2012

H-1bs are gone ! Cap for FY 2013 met

On June 11, 2012, USCIS received a sufficient number of petitions to reach the statutory cap for FY 2013. On June 7, 2012, USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject petitions subject to the cap for H-1B specialty occupation workers seeking an employment start date in FY 2013 that are received after June 11, 2012. for more info

Monday, June 11, 2012

EB-2 numbers retorgress for "everybody else"

Continued heavy demand for numbers in the Employment Second preference category has required the establishment of a Worldwide cut-off date for the month of July. This action has been taken in an effort to hold number use within the annual numerical limit. Should there be an increase in the current demand pattern, it may be necessary to make this category completely “unavailable” prior to September 30, 2012. The China and India Employment Second preference categories are already “unavailable”, and will remain so for the remainder of the fiscal year. contact us to find ways around this.. if possible