Archive for June, 2011

July 2011 Visa Bulletin Indicates Major Advancement for China/India EB-2 and EB-3 Other Workers

Thursday, June 9th, 2011

Sometimes, being a little off is not a bad thing.

Last month, we held to our prediction that EB-2 dates for China and India would advance to late 2006, perhaps January 2007, before this September. While technically correct, the State Department yesterday released its July 2011 Visa Bulletin indicating a much steeper acceleration: the India/China cutoff date has leapt to March 8, 2007 (up from this month’s October 15, 2006 date).

Employment- Based All Charge-ability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 08MAR07 08MAR07 C C
3rd 08OCT05 01JUL04 01MAY02 01JUL05 08OCT05
Other Workers 22NOV04 22APR03 01MAY02 22NOV04 22NOV04
4th C C C C C
Certain Religious Workers C C C C C
5th
Targeted Employment Areas/ Regional Centers and Pilot Programs
C C C C C

Another surprise found in next month’s bulletin is that the date for EB-3 Other Workers has advanced from November 8, 2003 to November 22, 2004. Recent Visa Bulletins offered no indication that such a major leap was coming. For those who remember, around this time two years ago all EB-3 advancement came to a standstill.

For the past two Bulletins, the State Department has offered some commentary explaining the acceleration in EB-2 China/India categories by attributing advancement to unused EB-1 allocation. In the May 2011 Bulletin, the State Department predicted that because increasing amounts of Chinese/Indian EB-3 applicants have been “upgrading” to EB-2, less than a month’s advancement was to be expected for either country through July. Clearly, the dates have been advancing at a much faster rate. This month’s bulletin offers no commentary explaining the sudden acceleration or predictions for future cut-off dates through the summer.

Although some may optimistically argue that the movement for China/India EB-2 is beginning to form a pattern, it is not certain whether this acceleration in priority dates will be sustained or whether dates will retrogress in the coming months. Stay tuned.

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Supreme Court Breathes New Life into Hazelton Controversy

Tuesday, June 7th, 2011

Yesterday, the Supreme Court of the United States vacated an order ruling unconstitutional the Illegal Immigration Relief Act ordinance of Hazelton, Pennsylvania. At issue is the local law that would penalize landlords who knowingly or with reckless disregard rent to an “illegal alien”, which is defined as “an alien who is not lawfully present in the United States” according to federal law. Separate provisions penalize employers hiring aliens without work authorization.

The Court remanded the case to the Third Circuit for further consideration in light of its rationale in Chamber of Commerce of the United States v. Whiting. As we mentioned last month, the Court’s ruling in Whiting will have nationwide effects and may lead to varying state law approaches to immigration-related laws and penalties.

It is important to note, however, that while the law at issue in Whiting and that enacted by Hazleton have some similarities, the Supreme Court has only upheld non-federal laws dealing with employment eligibility and the corresponding penalties for noncompliance. It remains to be seen how the Third Circuit will reconsider the legal issues presented by the Hazelton ordinance.

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