Click here for the new form: http://www.uscis.gov/files/form/i-9.pdf

For inforation on an electornic/paperless I-9 system, contact us at (202) 498-2745 and learn more at: http://immigrationsolutions.com/approach/paperless-i-9-with-integrated-e-verify/

After May 7, 2013, employers must only use Form I-9 (Rev. 03/08/13)N for new hires.  Failure to do so may result in fines.  All employers are required to complete a Form I-9 for each employee hired in the United States.  The revision date of the Form I-9 is printed on the lower left corner of the form.  Employers should not complete a new Form I-9 for current employees if a properly completed Form I-9 is already on file.

Employers may immediately begin using the newly revised Form I-9 (Rev. 03/08/13)N for all new hires and reverifications.  Employers may continue to use previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09) Y until May 7, 2013.

Click here for the new form: http://www.uscis.gov/files/form/i-9.pdf

For inforation on an electornic/paperless I-9 system, contact us at (202) 498-2745 and learn more at: http://immigrationsolutions.com/approach/paperless-i-9-with-integrated-e-verify/

A Few Tips for Employers:

• You will find the revision date of the new I-9 in the lower left corner (03/08/13).
• All current employees must have a Form I-9 on file.
• All new employees must be given the entire new Form I-9, including the “List of Acceptable Documents.”
• You should only accept documents that are unexpired when completing an employee’s Form I-9.
• Be sure to keep both pages together. You should consider printing two-sided copies.
• E-Verify users – List B documents must contain a photo, and the Social Security number field must be filled in.

U.S. Citizenship and Immigration Services (USCIS) invites interested individuals to participate in a stakeholder teleconference on Tuesday, May 7, 2013 at 2:30 p.m.  Contact us to learn more and register.

1.  This bulletin summarizes the availability of immigrant numbers during May. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by April 9th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed.The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000.  Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620.  The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:        

FAMILY-SPONSORED PREFERENCES

First:  (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second:  Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third:  (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth:  (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

*NOTE:  For May, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01FEB11.  F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01FEB11 and earlier than 01MAR11.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:        

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6.  The Department of State has a recorded message with visa availability information which can be heard at:  (202) 663-1541. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years.  The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program.  This resulted in reduction of the DV-2013 annual limit to 50,000.  DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For May, immigrant numbers in the DV category are available to qualified DV-2013 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery.  The year of entitlement for all applicants registered for the DV-2013 program ends as of September 30, 2013.  DV visas may not be issued to DV-2013 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2013 principals are only entitled to derivative DV status until September 30, 2013.  DV visa availability through the very end of FY-2013 cannot be taken for granted.  Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN JUNE

For June, immigrant numbers in the DV category are available to qualified DV-2013 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

D. EMPLOYMENT THIRD PREFERENCE VISA AVAILABILITY

The Employment-based Third preference category cut-off date for most countries has advanced significantly.  This has been done in an attempt to generate demand so that the annual numerical limits may be fully utilized, and such movements may continue for the next few months.  The rapid movement of cut-off dates is often followed months later by a dramatic increase in demand for numbers.  Once such demand begins to materialize the cut-off date movements will begin to slow or stop.

The USCIS M-274 handbook has also been revised.  It provides guidance on how to properly complete Form I-9, Employment Eligibility Verification, and answering frequently asked questions about the law as it relates to Form I-9.

The revised Form I-9 has several new features, including new fields and a new format to reduce errors. The instructions to the form also more clearly describe the information employees and employers must provide in each section.

For more information, please call 202-234-0899 or visit www.immigrationsolutions.com online.

1.  This bulletin summarizes the availability of immigrant numbers during April. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by March 8th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000.  Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620.  The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:        

FAMILY-SPONSORED PREFERENCES

First:  (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second:  Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third:  (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth:  (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C”  means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

*NOTE:  For April, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01DEC10.  F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01DEC10 and earlier than 15DEC10.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:        

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6.  The Department of State has a recorded message with visa availability information which can be heard at:  (202) 663-1541. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B.  DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years.  The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program.  This resulted in reduction of the DV-2013 annual limit to 50,000.  DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For April, immigrant numbers in the DV category are available to qualified DV-2013 applicants chargeable to all regions/eligible countries  as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery.  The year of entitlement for all applicants registered for the DV-2013 program ends as of September 30, 2013.  DV visas may not be issued to DV-2013 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2013 principals are only entitled to derivative DV status until September 30, 2013.  DV visa availability through the very end of FY-2013 cannot be taken for granted.  Numbers could be exhausted prior to September 30.

C.  ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN MAY

For May, immigrant numbers in the DV category are available to qualified DV-2013 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers during March. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by February 8th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4. Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

*NOTE: For March, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 15NOV10. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15NOV10 and earlier than 22NOV10. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6. The Department of State has a recorded message with visa availability information which can be heard at: (202) 663-1541. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2013 annual limit to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For March, immigrant numbers in the DV category are available to qualified DV-2013 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2013 program ends as of September 30, 2013. DV visas may not be issued to DV-2013 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2013 principals are only entitled to derivative DV status until September 30, 2013. DV visa availability through the very end of FY-2013 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN APRIL

For April, immigrant numbers in the DV category are available to qualified DV-2013 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

D. VISA AVAILABILITY IN THE COMING MONTHS (April – June)

FAMILY-sponsored categories (potential monthly movement)

Worldwide dates:
F1: Three or four weeks
F2A: Three to five weeks
F2B: Three to five weeks
F3: One or two weeks
F4: Up to two weeks

EMPLOYMENT-based categories (potential monthly movement)

Employment First: Current

Employment Second:

Worldwide: Current

China: Three to six weeks

India: No movement. Despite the established cut-off date having been held for the past five months in an effort to keep demand within the average monthly usage targets, the amount of demand being received from U.S. Citizenship and Immigration Services (USCIS) Offices for adjustment of status cases remains extremely high. Should the current rate of demand continue, it is likely that at some point the cut-off date will need to be retrogressed in an effort to hold demand within the FY-2013 annual limit.

Employment Third:

Worldwide: Four to six weeks
China: Two to three months
India: Up to two weeks
Mexico: Four to six weeks
Philippines: Up to one week

Employment Fourth: Current

Employment Fifth: Current

Item D of the December 2012 Visa Bulletin alerted readers that a China cut-off date might be imposed at some point during the second half of the fiscal year. Currently there is no reason to believe that it will be necessary to establish a China Employment Fifth preference category cut-off date during FY-2013, since demand over first six months of FY-2013 has now averaged out to a manageable level.

The above projections for the Family and Employment categories are for what is likely to happen during each of the next few months based on current applicant demand patterns. Readers should never assume that recent trends in cut-off date movements are guaranteed for the future. The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables which can change at any time. Those categories with a “Current” projection will remain so for the foreseeable future.

A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers during February. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by January 8th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier thanthe cut-off date may be allotted a number.  If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000.  The worldwide level for annual employment-based preference immigrants is at least 140,000.  Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620.  The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:        

FAMILY-SPONSORED PREFERENCES

First:  (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second:  Spouses and Children, and Unmarried Sons and Daughters of Permanent

Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third:  (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth:  (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

*NOTE:  For February, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 08OCT10.  F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 08OCT10 and earlier than 22OCT10.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:        

EMPLOYMENT-BASED PREFERENCES

First:   Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6.  The Department of State has a recorded message with visa availability information which can be heard at:  (202) 663-1541.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B.  DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years.  The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program.  This resulted in reduction of the DV-2013 annual limit to 50,000.  DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.
For February, immigrant numbers in the DV category are available to qualified DV-2013 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery.  The year of entitlement for all applicants registered for the DV-2013 program ends as of September 30, 2013.  DV visas may not be issued to DV-2013 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2013 principals are only entitled to derivative DV status until September 30, 2013.  DV visa availability through the very end of FY-2013 cannot be taken for granted.  Numbers could be exhausted prior to September 30.

C.  ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN MARCH

For March, immigrant numbers in the DV category are available to qualified DV-2013 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Beginning March 4, 2013, certain family members of U.S. citizens who require a waiver of unlawful presence to become permanent residents and who are physically present in the U.S. may apply for that waiver in the United States.

Under current law, individuals requiring an unlawful presence waiver must apply for the waiver in their home country forcing them to leave and endure uncertainty about whether they will return and the length of time they will be separated from their family.  Moreover, in many home countries, an individual may fear prolonged stay due to dangerous conditions.  Under the new rule, although those family members will still be required to leave the U.S. to attend consular interviews in their home country, they can apply for the provisional waiver prior to their departure which can significantly reduce both the uncertainty and the time apart from family.

Who can apply for the provisional unlawful presence waiver?

In general, an individual who meets the following criteria may be eligible for the unlawful presence waiver:

• Immediate relative (spouse, parent, or child) of a U.S. citizen
• The only ground of inadmissibility is the three or ten-year unlawful presence bar (additional grounds of inadmissibility are not addressed by Form I-601A)
• 17 years of age or older
• Has an approved I-130 (Petition for Alien Relative) or I-360 (Petition for Amerasian, Widow(er), or Special Immigrant)
• Has an immigrant visa case pending with the Department of State and has paid all associated visa fees
• Was not scheduled for an immigrant visa interview prior to January 3, 2013
• Has demonstrated that an extreme hardship would be incurred by the U.S. citizen if the individual were not allowed to remain in the United States
• Is physically present in the United States and provides biometrics while inside the country

What is the process for applying for the provisional unlawful presence waiver?

Form I-601A cannot be filed before March 4, 2013. Applications received before this date will be rejected.

After the immigrant visa processing fees have been paid but before an individual applies for the provisional unlawful presence waiver, he/she must notify the Department of State’s National Visa Center of their intent to do so. This ensures that an interview will not be scheduled until USCIS processes the waiver application.

Once the case for an immigrant visa is pending with the Department of State, an individual may file Form I-601A. The filing fees for this form will be $585 plus an $85 biometrics fee. After USCIS has received the form, a biometrics collection appointment will be scheduled.

If Form I-601A is approved, the individual may request an interview at a consulate abroad. Once an interview date has been scheduled, the applicant must attend the interview outside of the country and await the Department of State’s action before the waiver is finalized and the individual can return to the U.S.

The Department of State can only issue the immigrant visa once it has received confirmation from USCIS that the waiver has been approved.

How does the provisional unlawful presence waiver affect those in removal proceedings?

Individuals whose cases for removal have been administratively closed or terminated and have not been rescheduled are eligible to apply for the I-601A waiver.

Please note that USCIS has stated that a case in removal proceedings will not be administratively closed simply because an individual files Form I-601A.

If an application for provisional unlawful presence waiver is denied, can the decision be appealed?

There is no appeal process. However, if the I-601A application is denied or withdrawn, an individual may apply again based on the same I-130 Approval. An applicant may also choose to file Form I-601, Application for Waiver of Grounds of Inadmissibility, after he/she attends the immigrant visa interview.

What if an applicant for the provisional unlawful presence waiver has incurred other grounds of inadmissibility to the United States?

An individual is eligible to apply for the provisional unlawful presence waiver if their only ground of inadmissibility is the unlawful presence bar. If additional ineligibility criteria applies to an individual, they may file form I-601, but the provisional unlawful presence waiver will not be available to them.

Can an individual apply for the provisional unlawful presence waiver if they have immediate relatives who are legal permanent residents?

No. Under the new rule, an applicant must be an immediate relative of U.S. citizens. USCIS will evaluate the process and consider expanding the eligibility criteria to include immediate relatives of legal permanent residents.

What are some benefits that the provisional unlawful presence waiver does not provide?

While the provisional unlawful presence waiver benefits eligible individuals and their U.S. citizen families by lessening the time of their separation, the filing or approval of the waiver does not:

1. Confer any legal status;
2. Protect against the accrual of additional unlawful presence;
3. Authorize an individual to enter the United States without securing a visa or other appropriate entry document;
4. Convey any interim benefits (e.g., employment authorization, advance parole, or eligibility to be paroled based solely on a pending or approved Form I- 601A);
5. Protect an individual from being placed in removal proceedings or removed from the United States, in accordance with current DHS policies governing initiation of removal proceedings and use of prosecutorial discretion.

An individual wishing to evaluate their eligibility for the provisional unlawful presence waiver is strongly encouraged to consult with an attorney.

Please contact Immigration Solutions Group at (202) 234-0899 if you would like to schedule a consultation.