VisaPro.com - Legislative Updates

Bill Proposing Additional 55,000 visas annually for STEM Graduates Introduced

On May 15, 2012, Republican Senator John Cornyn introduced a bill “Securing the Talent America Requires for the 21st Century” or “STAR Act”, that proposes amendments to the Immigration and Nationality Act to provide certain immigration benefits for aliens with advanced degrees in science, technology, engineering, or mathematics (STEM). Some of the key proposals introduced by the Bill include:

Allocating 55,000 immigrant visas for eligible STEM graduates (Master’s and Ph.D.) of qualifying U.S. research institutions who have job offers in related fields;

Allowing “dual-intent” for those admitted to pursue a STEM degree;

Immigration visas under the EB-2 category will be made available first to aliens who graduate from a US research institution with a doctorate or master’s degree in a STEM field and who intend to work in a related field;

Job described in an immigrant petition under EB-1 or EB-2 category, that is filed on behalf of an alien who holds a doctorate degree from a US research institution in a STEM field, shall be deemed as a Schedule A shortage occupation, meaning the petitioner may skip the PERM stage of the immigrant visa process and apply directly with the USCIS;

Eliminating the “Diversity Visa” lottery program;

The Bill, which has been welcomed by various educational institutions and employer groups, is still in early stages and has to travel a long way before it can become a law. We, at VisaPro, will keep tracking the developments related to the passage of the Bill and keep our readers updated.

Orphans, Widows and Widowers Protection Act Introduced in the Senate

On June 11, 2009, Senators Menendez (D-NJ), Gillibrand (D-NY) and Leahy (D-VT) introduced the Orphans, Widows and Widowers Protection Act (S. 1427) which addresses the immigration-related hardships caused by the death of a sponsoring relative.

Specifically, the bill would:

protect orphans, parents and spouses of United States citizens by allowing them to continue their applications through the family immigration system in cases where the citizens' or residents' relative died if the individual self-petitions within two years;

allow the spouse and minor children of family-sponsored immigrants and derivative beneficiaries of employment-based visas to benefit from a filed visa petition after the death of a relative or adjust status on the basis of a petition filed before the death of the sponsoring relative if the application is filed within two years;

allow the spouse and minor children of refugees and asylees to immigrate to the U.S. despite the death of the principal applicant and allow them to adjust their status to permanent residence;

provide processes to reopen previously denied cases and allow individuals to be paroled into the U.S. in cases where the sponsoring relative died after submitting an immigration application; and

promote efficient naturalization of widows and widowers by allowing the surviving spouse to continue with a naturalization application as long as the deceased spouse was a citizen of the United States during the three years prior to filing.

You may also read the interim rule passed by the U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano to grant deferred action for two years to widows and widowers of U.S. citizens as well as their unmarried children under 18 years old—who reside in the United States and who were married for less than two years prior to their spouse’s death.

DOS Cable on Nonimmigrant Interviews

In a recent cable notification the U.S. Department of State issued new interview requirements for nonimmigrant visa (NIV) applications in accordance with the Intelligence Reform and Terrorism Prevention Act (IRTPA). The Act added a new Section 222(h) to the Immigration and Nationality Act. The new section sets out detailed statutory requirements for personal interviews of non-immigrant visa applicants in the INA for the first time. However, the Department's regulations permitting exemptions from interviews for certain diplomats and officials shall remain in effect.

The cable advises the posts to immediately implement the following requirements for interviews of non-immigrant applicants:

All NIV applicants who are ages 14 to 79 must be interviewed unless the alien is eligible for a waiver of the interview requirement
Any NIV applicant who is not a national or resident of the country in which he or she is applying must be interviewed, unless the applicant is eligible for a waiver of the interview
Any NIV applicant who was previously refused a visa must be interviewed, unless: 1) the visa was refused temporarily and the refusal was subsequently overcome; 2) the alien was found inadmissible, but the inadmissibility was waived; or 3) the applicant is eligible for a waiver of the interview
Any NIV applicant who is listed in CLASS may not be granted a waiver of interview, unless the alien would be eligible for a waiver under the requirements set forth in (c) above. Thus, for example, an alien refused a visa under 212(a) but granted a waiver of or otherwise overcame that ground of inadmissibility could be granted a waiver of the interview requirement in connection with a subsequent application, although that person may continue to be listed in CLASS because of the underlying ineligibility.
Any NIV applicant who is "from" a country designated by the Secretary of State as a state sponsor of terrorism, regardless of age, must be interviewed, unless the applicant is eligible for a waiver

New INA 222(h) gives the Secretary of State, not the consular officer, the statutory authority to waive interviews in the case of emergent circumstances or in the national interest. The Secretary of State may delegate her authority, however, and the Department's current regulations operate as such a delegation. Thus, consular officers may continue to waive interviews in accordance with the regulations, unless the above paragraphs require the consular officer to interview the NIV applicant.

The Department's regulations permitting exemptions from interviews for persons in A-1, A-2, C-2, C-3, G-1, G-2, G-3, G-4, NATO classifications, and applicants for diplomatic or officials visas, remain in effect. Consular officers shall apply those notwithstanding any of the above listed changes.

EOIR notifies final rule on 212(c) relief

AGENCY: Executive Office for Immigration Review, Justice.

ACTION: Final rule.

SUMMARY: This final rule adopts without substantial change the proposed rule to establish procedures for lawful permanent residents with certain criminal convictions arising from plea agreements reached prior to a verdict at trial to apply for relief from deportation or removal pursuant to former section 212(c) of the Immigration and Nationality Act. The final rule also sets forth procedures and deadlines for filing motions to seek such relief before an immigration judge or the Board of Immigration Appeals for eligible aliens currently in proceedings or under final orders of deportation or removal.

DATES: This rule is effective on October 28, 2004.

FOR FURTHER INFORMATION CONTACT: Mary Beth Keller, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041, telephone (703) 305-0470.

USCIS Memorandum on Child Status Protection Act

Inter Office Memorandum

To: Regional Directors
Service Center Directors
District Directors

From: William R. Yates /s/
Associate Director for Operations
U.S. Citizenship and Immigration Services

Date: August 17, 2004

Re: The Child Status Protection Act – Children of Asylees and Refugees

Purpose
On August 6, 2002, the President signed into law the Child Status Protection Act (CSPA), Public law 107-208, 116 Stat. 927. The CSPA amends the Immigration and Nationality Act (Act) by permitting certain aliens to retain classification as a “child” under the Act, even if he or she has reached the age of 21. On August 7, 2002, and July 23, 2003, U.S. Citizenship and Immigration Services (CIS) issued guidance on the effect of the CSPA on asylum and refugee applications (attached). The purpose of this memorandum is to provide further guidance to CIS personnel concerning the effect of Sections 4 and 5 of the CSPA on petitions for children following to join an asylee or refugee and for purposes of adjustment of status under Section 209 of the Act. This memorandum should be read in conjunction with the previously issued memoranda.

Applicability
The CSPA amends sections 207 and 208(b)(3) of the Act to permit continued classification as a child for certain derivatives who were under the age of 21 at the time the principal applicant applied for asylum or refugee status. Pursuant to section 8 (3) of the CSPA, these amendments became effective August 6, 2002 for applications pending on or after that date and are not retroactive. In order to give full effect to the statutory provisions, CIS has determined that a derivative applicant eligible for continued classification as a child under the CSPA will be considered a child for all related eligibility determinations. Thus, for asylum applications under section 208 of the Act, adjustment applications under section 209 of the Act, admission to the United States as a refugee, and following to join applications, the amendments made by the CSPA to the Act benefit an alien who aged out on or after August 6, 2002. In the case of an alien who aged out prior to August 6, 2002, the CSPA permits continued classification as a child only if an application for a covered benefit was pending on August 6, 2002. These exceptions will be discussed later in this memorandum. In all cases, in order to be considered eligible for CSPA age-out protection, the derivative child must remain unmarried.

Initial Eligibility
The Asylum and Refugee Divisions of the Office of Refugee, Asylum and International Operations, have established the criteria for assessing initial eligibility under sections 4 and 5 of the CSPA. For asylum and refugee applications pending on or after August 6, 2002, continued eligibility for derivative status is determined based on the child’s age at the time the parent filed the Form I-589, Application for Asylum and Withholding of Removal, or Form I-590, Registration for Classification as Refugee.

For asylees, a child who is under 21 on the date the Form I-589 is received by CIS will continue to be classified as a child for purposes of determining asylum eligibility and related benefits. In order to be eligible for continued classification as a child, the derivative must be listed on the Form I-589 prior to a final CIS decision on the asylum application.
For refugees, a child who is under 21 on the date the principal alien files the Form I-590, i.e., is first interviewed by CIS, will continue to be classified as a child for purposes of determining refugee eligibility and related benefits. In order to be eligible for continued classification as a child, the principal alien must have listed the child on the Form I-590 prior to adjudication of the application. Thus, for any asylum or refugee application filed on or after August 6, 2002, a derivative child will retain classification as a child for purposes of the initial asylum or refugee determination, for any subsequent Form I-730 Refugee/Asylee Relative Petition1, and/or for the section 209 adjustment.

Forms I-730 and 209 Adjustment Applications Pending on August 6, 2002
In determining eligibility for continued classification as a child for purposes of a Form I-730 or 209 adjustment application pending on August 6, 2002, the adjudicator should determine the derivative applicant’s age at the time the principal filed the refugee or asylum application and at the time the related benefit application was filed. As long as the Form I-730 beneficiary or the 209 adjustment applicant was eligible for the related benefit at the time of filing the Form I-730 or Form I-485 (that is, was still a child under the age of 21), he or she is eligible for continued classification as a child.

Individuals ineligible for Continued Classification as a Child
An individual who aged out prior to August 6, 2002 is not eligible for continued classification as a child UNLESS an application for one of the covered benefits was pending on that date. For purposes of the CSPA, if all of the necessary steps for issuing travel documents to the derivative child or following to join child (such as approval of the Form I-730, the overseas interview, or completion of all security checks) were not completed on or before August 6, 2002, the case is considered to be “pending.”

Examples

• A Form I-589 was filed on February 7, 2000, listing an 18-year-old derivative son. On July 19, 2002, the principal alien was granted asylum. On October 10, 2002, the derivative son turned 21 and a Form I-730 was filed on his behalf on November 13, 2002. In this case, the derivative child is protected by the CSPA because he was listed on his parent’s Form I-589 prior to his 21st birthday and he turned 21 after August 6, 2002.

• A Form I-730 was filed on behalf of a 20-year-old son on August 23, 2001. On September 23, 2001, the Form I-730 was approved by the Nebraska Service Center (NSC) and forwarded overseas for processing. On March 31, 2002, the following to join beneficiary turned 21 years old. On April 22, 2002, the following to join beneficiary was called for an interview, but because he had aged-out, the Form I-730 was returned to the NSC, and the approval revoked on May 31, 2002. This alien is not covered by the provisions of the CSPA as he had nothing pending before CIS on August 6, 2002.

• A Form I-730 was filed on behalf of a 20-year-old son on August 23, 2001. On September 23, 2001, the Form I-730 was approved by the NSC and forwarded overseas for processing. The beneficiary appeared for his interview on January 31, 2002, but the case was continued for completion of all required security checks. On March 31, 2002, the following to join beneficiary turned 21 years old. The security checks were not completed until August 24, 2002. Unlike the example above, this alien is covered by the provisions of the CSPA as his Form I-730 was still pending before CIS on August 6, 2002, and he can still be considered a “child.”

• A Form I-589 was filed in January 2002 listing a 20-year-old son outside of the United States. The Form I-589 was approved on July 31, 2002. The son turned 21 on August 1, 2002. The Form I-730 for the derivative son is filed August 15, 2002. The beneficiary turned 21 prior to passage of the CSPA and did not have a Form I-730 pending on August 6, 2002, so he is not entitled to continued classification as a child.

• A Form I-589 was filed in May 2002 listing a 20-year-old derivative daughter in the United States. The Form I-589 was approved on July 1, 2002. The daughter turned 21 on August 15, 2002. The Form I-485 was filed on July 2, 2003. The daughter remains eligible for adjustment of status as a derivative under section 209 of the Act because she was under 21 at the time of filing the asylum application, she was granted asylum prior to August 6, 2002, and she filed an application for adjustment of status after August 6, 2002, in which she retains classification as a child because she was a child at the time of the grant of asylum. (Note that the eligibility criteria for derivative petitions is slightly different from that of 209 applications).

• A 19-year-old child is granted derivative asylum status on June 1, 2001, and files for adjustment of status on June 1, 2002. On August 20, 2002, she turns 21. The CSPA covers her adjustment application because she turned 21 after August 6, 2002.

• Same scenario, but the adjustment application is filed on August 31, 2002. She continues to be classified as a child because she aged out after August 6, 2002.

• An 18-year-old child is granted derivative asylum status on March 15,1999, and applied for adjustment of status on March 15, 2000. She turns 21 on April 15, 2002. Because of the annual 10,000 limitation on asylum adjustments, she will not be eligible for adjustment of status until approximately March 2009. Although she will be older than 21 on that date, she was under 21 at the time she was granted asylum and at the time of filing her adjustment application which was pending on August 6, 2002. Even though she aged out prior to August 6, 2002, the pending application makes her eligible for continued classification as a child pursuant to the CSPA.

Please note that the examples provided above are not exclusive of other possible scenarios that may appear as CIS officers adjudicate cases that are affected by the CSPA.

Further Information
For additional information on refugee and asylee eligibility, including refugee travel, consult the specific guidance issued by the refugee and asylum divisions. CIS personnel with questions regarding this memorandum should go through appropriate supervisory channels and contact Helen deThomas via electronic mail.