June 29, 2009

Will Congress End the Immigration 'Widow Penalty'?

Will Congress End the Immigration 'Widow Penalty'?

"On June 23, Florida Senator Bill Nelson and Massachusetts Representative Jim McGovern introduced legislation, the Fairness to Surviving Spouses Act, that would nix the widow penalty for good." Time, June 24, 2009.

June 26, 2009

President Obama Lights Torch for Common Sense Immigration Reform

President Obama Lights Torch for Common Sense Immigration Reform

"Today the President, Vice President, and key cabinet members met with a bipartisan group of Senate and House leaders on immigration reform in a closed-door meeting at the White House. The White House characterized the meeting as the “launch” of a policy conversation and “an honest discussion about the issues.”

June 24, 2009

Graduation Dreams

Graduation Dreams

"The drive to Washington took them 18 hours. They looked tired, solemn, defiant, hopeful in the way young people have that banishes cynicism. They seemed incredulous that a message they grew up with — work hard, stay in school, study and you will succeed — does not apply to them." New York Times Editorial, June 24, 2009.

June 18, 2009

Lawmakers Take Sides on Illegal Immigrant Students Act

Lawmakers Take Sides on Illegal Immigrant Students Act

A bill that would grant students who are in the country illegally a pathway to residency will likely not be introduced again as a stand-alone piece of legislation. Instead, some Congress members said the DREAM Act – for Development, Relief and Education for Minor Aliens – will likely become part of a comprehensive immigration reform package that could be introduced as early as fall of this year.

Court Backs LAPD Immigration Policy

"A city can prohibit its police from stopping or arresting people to find out if they are illegal immigrants, a state appeals court ruled Wednesday in a Los Angeles case with implications for San Francisco's sanctuary ordinance." San Francisco Chronicle, June 18, 2009.

June 16, 2009

U.S. Supreme Court Immigration Case on Criminal Issues in Removal/Deportation Proceedings

USSC: Nijhawan v. Holder

The U.S. Supreme Court has decided that immigration judges can look at the underlying circumstances of a conviction, and not just the criminal statute the foreign national was convicted of. This opens up immigration court removal/deportation proceedings to a full-blown criminal trial within an immigration removal hearing.

A complex, but very important case. Also, an example of how a bad case makes bad case law.

Bender's Immigration Bulletin

Bender's Immigration Bulletin: "Family Reunites in Brooklyn
'[T]he Adam family’s separation was not caused directly by the conflict, but by United States immigration law.' New York Times, June 15, 2009."

Assembly Line Injustice in Immigration Court System

Assembly Line Injustice at Immigration Court

"A new study by Appleseed, a non-profit organization focused on reforming the American justice system, highlights the extent to which misguided deportation-only strategies have led to a breakdown in our immigration court system. The study, based on interviews with more than one hundred practitioners, academics, and government officials, found that America’s immigration courts are overwhelmed by the number of cases flooding the system." Immigration Impact, June 15, 2009.

Attacks on Mexican Immigrants Often Go Unreported

"Undocumented Mexican workers - typically paid in cash, often dependent on bikes because they can't get driver's licenses - are easy prey. And their fears of presenting themselves to police, coupled with their limited fluency in English, mean they generally do not report the crimes." Philadelphia Inquirer, June 15, 2009.

June 09, 2009

DHS Establishes Interim Relief for Widows of U.S. Citizens

Release Date: June 9, 2009

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010

U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano today granted 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.

“Smart immigration policy balances strong enforcement practices with common-sense, practical solutions to complicated issues,” said Secretary Napolitano. “Granting deferred action to the widows and widowers of U.S. citizens who otherwise would have been denied the right to remain in the United States allows these individuals and their children an opportunity to stay in the country that has become their home while their legal status is resolved.”

Secretary Napolitano also directed U.S. Citizenship and Immigration Services (USCIS) to suspend adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for reassessment of immigration status was the death of a U.S. citizen spouse prior to the second anniversary of the marriage.

Additionally, U.S. Immigration and Customs Enforcement (ICE) will defer initiating or continuing removal proceedings, or executing final orders of removal against qualified widow(er)s and their eligible children.

USCIS will also consider favorably requests for humanitarian reinstatement where previously approved petitions for widow(er)s had been revoked because of the law. DHS will soon issue guidance instructing the public on how to apply for this relief.

These directives apply regardless of whether the citizen filed a petition for the alien spouse before death. Deferred action is generally an act of prosecutorial discretion to suspend removal proceedings against a particular individual or group of individuals for a specific timeframe; it cannot resolve an individual’s underlying immigration status. Individuals granted deferred action may apply for work authorization if they can demonstrate economic necessity.

While Secretary Napolitano’s directive provides a short-term arrangement for widow(er)s of deceased U.S. citizens, legislation is required to amend the definition of “immediate relatives” in the Immigration and Nationality Act to permit surviving spouses to remain indefinitely after the U.S. citizen spouse dies, enabling them to seek permanent resident status.

Visa Bulletin for July 2009

Visa Bulletin

Number 10
Volume IX
Washington, D.C.



1. This bulletin summarizes the availability of immigrant numbers during July. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received by June 8th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, 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. Immediately that 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 which has been 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. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:


First: Unmarried Sons and Daughters of 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, and any unused first preference numbers:

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

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

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

Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three 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 P.L. 102-395.

4. 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.

5. 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.)

All Charge-
ability Areas Except Those Listed
CHINA-mainland born
1st 15NOV02 15NOV02 15NOV02 01JAN91 01SEP93
2A 22DEC04 22DEC04 22DEC04 22JUN02 22DEC04
2B 15APR01 15APR01 15APR01 01MAY92 01APR98
3rd 22OCT00 22OCT00 22OCT00 01JUL91 01JUL91
4th 22OCT98 22OCT98 22OCT98 15JUN95 08AUG86

*NOTE: For July, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 22JUN02. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 22JUN02 and earlier than 22DEC04. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

All Charge-
ability Areas Except Those Listed
CHINA-mainland born
C 01JAN00 01JAN00 C C

Other Workers

4th C C C C C
Certain Religious
5th C C C C C
Targeted Employ-
ment Areas/
Regional Centers