May 11, 2009

VISA BULLETIN FOR JUNE 2009

Visa Bulletin

Number 9
Volume IX
Washington, D.C.

VISA BULLETIN FOR JUNE 2009

A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers during June. 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 May 7th 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:

FAMILY-SPONSORED PREFERENCES

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.


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 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.)

Fam-ily All Charge- ability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPP-INES
1st 08NOV02 08NOV02 08NOV02 08OCT92 01SEP93
2A 15DEC04 15DEC04 15DEC04 15MAY02 15DEC04
2B 01FEB01 01FEB01 01FEB01 01MAY92 01APR98
3rd 08OCT00 08OCT00 08OCT00 22OCT92 01JUL91
4th 15AUG98 15AUG98 15AUG98 22MAY95 01AUG86


*NOTE: For June, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 15MAY02. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15MAY02 and earlier than 15DEC04. (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
INDIA MEXICO PHILIP-PINES
Employ-ment
-Based

1st C C C C C
2nd C 15FEB05 01JAN00 C C
3rd U U U U U
Other
Workers
U U U U U
4th C C C C C
Certain Religious Workers C C C C C
5th C C C C C
Targeted Employ-ment Areas/
Regional Centers
C C C C C
5th Pilot Progams C C C C C

The Department of State has available a recorded message with visa availability information which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, 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.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 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 reduction has resulted in the DV-2009 annual limit being reduced 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 June, immigrant numbers in the DV category are available to qualified DV-2009 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:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 39,600 Except:
Egypt 20,650
Ethiopia 19,500
Nigeria 12,750
ASIA 30,350
EUROPE 28,000
NORTH AMERICA (BAHAMAS) 15
OCEANIA 930
SOUTH AMERICA, and the CARIBBEAN 1,100

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-2009 program ends as of September 30, 2009. DV visas may not be issued to DV-2009 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2009 principals are only entitled to derivative DV status until September 30, 2009. DV visa availability through the very end of FY-2009 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 JULY

For JULY, immigrant numbers in the DV category are available to qualified DV-2009 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:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 48,700 Except:
Egypt 21,600
Ethiopia 21,100
Nigeria 14,400
ASIA CURRENT
EUROPE CURRENT
NORTH AMERICA (BAHAMAS) CURRENT
OCEANIA CURRENT
SOUTH AMERICA, and the CARIBBEAN CURRENT

D. RETROGRESSION OF THE INDIA EMPLOYMENT SECOND PREFERENCE CUT-OFF DATE

It has been necessary to retrogress the India Employment Second preference cut-off date for June to keep visa issuances within the annual category numerical limit. At this time, it is not possible to estimate whether or not this retrogression will apply throughout the remainder of the fiscal year.

E. EMPLOYMENT-BASED VISA AVAILABILITY DURING THE REMAINDER OF FISCAL YEAR 2009

Applicant demand for numbers, primarily for adjustment of status cases at Citizenship and Immigration Services offices, has been extremely heavy throughout the year. As a result, visa availability during the final quarter could become limited as categories approach their annual numerical limits. Therefore, visa availability throughout the remainder of the year cannot be guaranteed, and the establishment of cut-off dates, or retrogression of existing cut-off dates, cannot be ruled out.

F. OBTAINING THE MONTHLY VISA BULLETIN

The Department of State's Bureau of Consular Affairs offers the monthly "Visa Bulletin" on the INTERNET'S WORLDWIDE WEB. The INTERNET Web address to access the Bulletin is:

http://travel.state.gov/

From the home page, select the VISA section which contains the Visa Bulletin.

To be placed on the Department of State€™s E-mail subscription list for the €┼ôVisa Bulletin€, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:
Subscribe Visa-Bulletin First name/Last name
(example: Subscribe Visa-Bulletin Sally Doe)

To be removed from the Department of State€™s E-mail subscription list for the €┼ôVisa Bulletin€, send an e-mail message to the following E-mail address:

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and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (area code 202) 663-1541. The recording is normally updated by the middle of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514
CA/VO:May 7, 2009

May 05, 2009

Justices Limit Use of Identity Theft Law in Immigration Cases

May 5, 2009

Justices Limit Use of Identity Theft Law in Immigration Cases

WASHINGTON — The Supreme Court on Monday rejected a favorite tool of prosecutors in immigration cases, ruling unanimously that a federal identity-theft law may not be used against many illegal workers who used false Social Security numbers to get jobs.

The question in the case was whether workers who use fake identification numbers to commit some other crimes must know they belong to a real person to be subject to a two-year sentence extension for “aggravated identity theft.”

The answer, the Supreme Court said, is yes.

Prosecutors had used the threat of that punishment to persuade illegal workers to plead guilty to lesser charges of document fraud.

“The court’s ruling preserves basic ideals of fairness for some of our society’s most vulnerable workers,” said Chuck Roth, litigation director at the National Immigrant Justice Center in Chicago. “An immigrant who uses a false Social Security number to get a job doesn’t intend to harm anyone, and it makes no sense to spend our tax dollars to imprison them for two years.”

Justice Samuel A. Alito Jr. said in a concurring opinion that a central flaw in the interpretation of the law urged by the government was that it made criminal liability turn on chance. Consider, Justice Alito said, a defendant who chooses a Social Security number at random.

“If it turns out that the number belongs to a real person,” Justice Alito wrote, “two years will be added to the defendant’s sentence, but if the defendant is lucky and the number does not belong to another person, the statute is not violated.”

The most sweeping use of the statute was in Iowa, after an immigration raid in May 2008 at a meatpacking plant in Postville. Nearly 300 unauthorized immigrant workers from the plant, most of them from Guatemala, pleaded guilty to document-fraud charges rather than risk being convicted at trial of the identity-theft charge. In most of those cases, the prosecutors demonstrated only that the Social Security numbers and immigration documents the workers had presented were false.

Many of the immigrants served five-month prison sentences and then faced summary deportation. The Postville cases raised an outcry among immigrant advocates, because they transformed into federal felonies a common practice by illegal immigrants of presenting fake Social Security numbers and other documents to employers.

The court’s ruling is unlikely to aid the immigrants in the Postville cases. Most of them have long since been deported.

Justice Stephen G. Breyer, in his opinion for the court, said the case should be decided by applying “ordinary English grammar” to the text of the law, which applies when an offender “knowingly transfers, possesses or uses, without lawful authority, a means of identification of another person.”

The government had argued that the “knowingly” requirement applied only to the verbs in question. Justice Breyer rejected that interpretation, saying that “it seems natural to read the statute’s word ‘knowingly’ as applying to all the subsequently listed elements of the crime.”

He gave examples from everyday life to support this view. “If we say that someone knowingly ate a sandwich with cheese,” Justice Breyer wrote, “we normally assume that the person knew both that he was eating a sandwich and that it contained cheese.”

Five justices joined all of Justice Breyer’s opinion, and three others — Justices Alito, Antonin Scalia and Clarence Thomas — concurred in the result and in some of the reasoning.

The defendant in the case, Flores-Figueroa v. United States, No. 08-108, was Ignacio Flores-Figueroa, a Mexican citizen who had worked illegally for a steel plant in Illinois. At first, Mr. Flores-Figueroa used a false name and fake Social Security number, one that did not happen to match that of a real person. Six years later, he told his employer that he wanted to be known by his real name, and he presented forged Social Security and alien registration cards that bore numbers assigned to real people.

Mr. Flores-Figueroa eventually pleaded guilty to several immigration offenses, resulting in a 51-month sentence, but he went to trial to contest charges under the identity-theft law. He was convicted and sentenced to the additional two years mandated by the law. Monday’s decision reversed that two-year extension.

Kevin K. Russell, a lawyer for Mr. Flores-Figueroa, said his client is in federal prison in Georgia. After Mr. Flores-Figueroa has served his time, Mr. Russell said, “I assume the government will try to deport him.”

Nearly 8 million illegal immigrants are working in the United States, the Pew Hispanic Center in Washington estimates.

Stephen H. Legomsky, a professor of immigration law at Washington University School of Law in St. Louis, said Monday’s decision would have a major impact on the strategy of Immigration and Customs Enforcement, making it more difficult for the agency to press criminal charges against immigrants with no other offenses but working illegally.

“In the ordinary immigration case, this will no longer be a weapon,” Professor Legomsky said.

The Obama administration has said that it will shift the focus of immigration enforcement to employers who intentionally hire unauthorized immigrants in order to pay lower wages or otherwise lower costs. But last week the administration said agents would continue to detain illegal immigrants found in raids.

Adam Liptak reported from Washington, and Julia Preston from New York. David Stout contributed reporting from Washington.