Unused Visas: To Recapture or Not to Recapture- That Is The Question

Please visit this link before reading the article as the comment from Attorney Roger Algase is important because he clarifies that more understanding is necessary in the article. The issue is complicated no doubt and it would be appreciated if anyone who can make the issue crystal clear should comment on this. 

http://discuss.ilw.com/content.php?3445-Article-Unused-Visas-To-Recapture-or-Not-to-Recapture-That-Is-The-Question-By-Tahmina-Watson

To help discern the issues, here is the first draft of my “Unused Visa chart V1” with all the relevant sections of the current law. The pieces of the puzzle have been laid down- now to put the picture together. Feel free to help.

First draft to understand where visas are not being used and need recapturing

First draft to understand where visas are not being used and need recapturing

______________________________________________________________________________________________

(The below article needs to be updated and will be updated soon). 

The Politico Newspaper broke a story earlier this week (which has since been repeated by many other news outlets including the Wall Street Journal)  that Obama met with various business officials to discuss employment-based immigration issues that can be addressed with executive action.  One of those issues was apparently to recapture unused visas.

That issue caught my eye as it has been on my research to-do list for a while.  The news reports prompted me to research the law as to whether the president has the authority to recapture such unused visas. My opinion is that the law already allows for it.

Here is what the Immigration Nationality Act says at § 206 (8 USC 1156):

If an immigrant having an immigrant visa is denied admission to the United States and removed, or does not apply for admission before the expiration of the validity of his visa, or if an alien having an immigrant visa issued to him as a preference immigrant is found not to be a preference immigrant, an immigrant visa or a preference immigrant visa, as the case may be, may be issued in lieu thereof to another qualified alien.

The law already allows the use of unused visa. So what is all the fuss about?

Each year 140,000 employment-based immigrant visas are issued. There is a complicated formula to calculate visa distribution.  The questions we should ask are these: (1)  In each fiscal year, do we have a record of how many visas were denied or otherwise not used? (2)  If so, do we know if they were reused within that particular fiscal year? Perhaps the Department of State can shed light on how many were unused from previous years.  Here is a report that lists number of visas issued.

From discerning all the complicated legal mumbo-jumbo from the statute,  the law basically says unused visas from the previous year will be added on to the current year of visa availability.  From what I can tell, unused visas are generally being put back in the pool.   While I cannot completely understand the numbers in the above linked reports, I believe the information should be available.  Reports from the Wall Street Journal and Politico discuss that 200,000 visas can be recaptured.  I would very much like to know how that number was determined (if anyone reading this article knows, then please do let me know!).

If indeed there were unused visas in past fiscal years that need recapturing, then do we even need a new law or executive order to recapture them? The law above in black and white clearly says they can be reused.

Therefore, in my opinion, unused visas- from years past,  can be reissued to other qualifying immigrants. No executive order necessary. Just understanding, implementation and execution.

I will continue my research and update this article in due course, if my research leads to more worthwhile information. But in the meantime, your question may be- why is this important?

The Backlog.  The visa backlog is one of the biggest problems our broken immigration system is encountering.  You may often hear the phrase  that people will have to go to the back of the ‘line’ to get their visas. There is no ‘line’ as such but the’ line’ refers to the waiting time to get a visa. People are waiting for years, sometimes, decades to get visas.  The employment-based preference categories have severe backlogs, particularly for China, India, Mexico and the Philippines.  Recapturing the unused visas will help reduce the backlog, help bring security and stability into peoples’ lives, which in turn will help businesses hire the right people, focus on growing their businesses and not worry about whether their employees will stay or leave the US.

Will the President include this in his list of executive orders? Well, I don’t think an executive order is necessary for the above reasons. But let’s imagine I missed something in my research and it does need an executive order. Will he include it in his list?  Hard to say.  If he is looking for maximum impact, this is definitely one way to make a big difference.  Politically, he is already in a challenging situation by all accounts- the GOP will take issue with whatever he does.  So, why not go for maximum impact and just go big?

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Tahmina Mentioned in CNNMoney

CNNhomepage pic

Image courtesy of CNNMoney

Thank you to CNN and Reporter Sara O’Brian for reporting on an issue that I care so deeply about and mentioning my work. My regular readers will know how strongly I feel about these issues.

The article highlights the frustration that I and many of my colleagues face helping startups get visas. Hope this will shed light on the problem, particularly at a time when the White House is hoping to find immigration solutions for entrepreneurs through executive action.

If you are a startup hopeful, or someone invested in the startup community, your voice is important. Make an appointment with your local House/Senate Representative and explain why this is important to you.  Everyone needs to speak up for things to change. Enjoy the article!

Here is a link to the article. 

Immigration reform will help Washington State’s demand for tech workers

Immigration reform will help Washington State’s demand for tech workers.

 On August 6th, 2014, the Puget Sound Business Journal reported that the Washington State is the 5th fastest growing state in the US for tech jobs, yet there are not enough tech workers.   Reporter Rachel Lerman discusses the issue in detail and reports that the common problem preventing companies from expand is not being able to find sufficiently trained tech employees.  So what is the solution to this?

http://www.bizjournals.com/seattle/blog/techflash/2014/08/washington-named-one-of-fastest-growing-states-for.html?ana=twt

As my regular readers will know, I am a staunch advocate for immigration reform. While the current hot topic is the border crisis and surge of children fleeing desperate situations in Latin America, the issue of broader immigration reform has been sidetracked.  All eyes are on President Obama to deal with the border crisis alone as well as to take executive action on providing a solution for the 11 million undocumented people already in the US. I, like so many, await news on this front.

What about the legal immigration? Legal immigration needs be addressed just as desperately as illegal immigration.  We need action to fix the broken legal immigration system that prevents businesses, such as Washington State Businesses from hiring talented employees.  Newer companies such as Zulily and Zillow continue to put Washington State on the map (Microsoft, Amazon, Boeing are a given of course).

I call on the Obama Administration to ensure that legal immigration is also included in the list of Executive Action. While there is significant limitation on what can be done without Congress, the limits must be explored.

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Three Ways President Obama Can Take Executive Action for Business Immigration

(This article was written a few weeks ago but it is applicable today as it was a few weeks ago). 

Three Ways President Obama Can Take Executive Action for Business Immigration

Immigration reform was declared dead last week.  Yes, dead.  After years of fighting to reform our archaic and broken immigration system, and a successful Senate bill that passed in June last year, the House put the final nail in the reform coffin.

A lamenting President Obama stated he will act alone to make any changes possible.  Unfortunately, as much as he wants to change things drastically, he can realistically accomplish limited actions.  Moreover, timing could not be worse to face a terrible humanitarian crisis at our borders. Thousands of children illegally entering the U.S. only exacerbates the immigration problem we already have.

With all eyes on  the humanitarian crisis and the President, the hope is that he will find a solution for the 11 million undocumented people that want to come out of the shadows and contribute to our economy.

But what can the President do regarding business immigration specifically?

Constitutionally, the President’s hands are tied, so his abilities are limited. Here are three examples of things he cannot do:

1. Increase the number of H-1B visas available.

2. Create new visa categories – whether for startups, graduates, or low-skilled guest workers.

3. Eliminate country quotas for visa categories which would then reduce the terrible visa backlog.

So, what can he do then?

Thankfully, he has already taken steps to allow H-4 visa holders (dependents of H-1B visa holders) to have employment authorization (EAD).  However, he can do more. Here are three things he can do:

1. Expand the H-4 EAD policy to all H-4 visa holders (not just to those waiting in the so called ‘line’ for a green card), just like E-2 and L-2 visas holders are allowed.

Use the existing USCIS Entrepreneur in Residence program to expand favorable policies to founders of companies. For H-1B visas specifically, he can:

2. Eliminate restrictive policies that require  a startup founder to demonstrate an employer-employee relationship between himself and his company.

3. Allow company stock valuation and equity to be used to in lieu of cash wages in H-1B visas.

Time and time again, President Obama has stated he wants to help entrepreneurs come to the U.S., and stay to grow their companies and create jobs.  Here is his chance to take some big steps that will help entrepreneurs get H-1B visas with a little less headache so they can do exactly that. Go Big, Mr. President,-wherever it is possible.

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

September 2014 Visa Bulletin Commentary

The September 2014 visa bulletin was released today. Here is what my readers are looking for:

For all countries except India, China, Philippines, and Mexico:  F2A category advances a whole 8 months taking the priority date to 1 January 2013 (great news!). F2B preference advances 2 months with PD at 1 September 2007;  No change in F4 category leaving PD at 1 January 2002;  EB2 is current and, and EB3 sees no movement leaving to PD at 1 April 2011.

For India only:  F2A category advances a whole 8 months taking the priority date at 1 January 2013 (great news!). F2B preference advances 2 months with PD at 1 September 2007;  No change in F4 category leaving PD at 1 January 2002;  EB2 India sees about 4 months advancement taking PD to 1 May 2009 and EB3 sees no movement leaving priority date at 8 November 2003.

If you are eligible to file,  it is important for those who are eligible to prepare filing your I-485 package as soon as possible.  Please note you cannot file until September 1st and while the priority date remains current for you.  Good luck to those who can file!

We will report on the October 2014 visa bulletin when it is released. See below for future cut off dates information:

News re. upcoming visa availability:

D.  VISA AVAILABILITY IN THE COMING MONTHS

INDIA Employment-based Second Preference: The use of potentially “otherwise unused” Employment numbers prescribed by Section 202(a)(5) of the Immigration and Nationality Act (INA) has allowed the India Employment Second preference cut-off date to advance very rapidly in recent months. Continued forward movement of this cut-off date during the upcoming months cannot be guaranteed, however, and no assumptions should be made until the dates are formally announced. Once there is a significant increase in India Employment Second preference demand it will be necessary to retrogress the cut-off date, possibly as early as November, to hold number use within the fiscal year 2015 annual limit.

September 2014 Visa Bulletin Is Out

A few moments ago, the Dept. of State released the September 2014 visa bulletin.  Here is a link.  Please stay tuned for our usual commentary.

Tahmina on distinguished virtual immigration law roundtable

virtual rountable 2014 We are honored to have been part of this distinguished group of immigration lawyers from around the world discussing current immigration law matters.  The panel was hosted by Corporate Livewires.  Thank you to Corporate LiveWires for the honor.

CNN Discusses the Startup Visa

cnnmoney article stillToday, CNNMoney reported on one of our favorite subjects, the Startup Visa. Reporter Sara O”Brian discusses specific examples of talented people moving to Canada to launch their startups since they were unable to do so in the US due to immigration obstacles. We are honored that the article provides a link to this blog.  Thank you CNNMoney for covering this important issue and raising awareness.  Here is a link to the article. 

I-130 Backlog Ensues

Image courtesy of the internet

Image courtesy of the internet

The I-130 backlog that started about 6-9 months ago is still causing families to remain separated.  At the American Immigration Lawyers Association annual conference in June, USCIS said that they are aware of the problem and are working on reducing the problem.  From feedback from colleagues I learned that newly filed cases are flying through the process.

So, what does it mean for the cases stuck in the backlog? Well, they appear to be coming out of the backlog but not very quickly.  Upon approval from the USCIS, cases are taking a considerably long time at the National Visa Center for further processing. A case that would have taken about 9 months from start to finish is now taking a good 15 months or more.

What does that mean for US citizen spouses and their families? The answer is not a happy one.  Families are suffering adversely by such lengthy separations.  They are suffering financially as well as emotionally.  Where there are children, US citizen spouses with those children in the US are de facto single parents for the duration of the processing.  Those children are suffering emotionally, both at home and at school which is thereby affecting their future.   It is a heartbreaking situation for all concerned.

I would urge USCIS and the National Visa Center to work together to reduce the backlog of the actually backlogged cases as soon as possible. US citizens and their families deserve to be together without unreasonable delays.

Microsoft To Cut 18,000 Jobs: Immigration Status When Laid-Off

On Thursday July 17, 2014, Microsoft made an announcement that 18,000 will be slashed- most by December 2014 and all by June 2015.  While this is a blow to the economy which will see about 1300 job cuts in Washington State. To the 18,000 employees, it is important for anyone with a work visa in the US to start making plans for post-lay-off.

In 2009 when the economy tanked and resulted is many lay-offs, I had written an article titled “The Importance of Maintaining Status When Laid Off”.  I have added the link here.

Employment-based immigration law is very rigid and one cannot be in the US without employment, should that be the basis of stay in the US. Should one fall out of status for any reason, it will be hard to impossible to get back into status.  So, any change of status must occur before the current status ends (in other words, before the last day of employment, if possible).

Whether you are in Seattle or any part of the United States, the federal immigration laws will apply and immigration status must be a priority consideration for anyone affected.

 

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


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