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Visa Bulletin for September 2010 | Immigration

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A. STATUTORY NUMBERS

1.  This bulletin summarizes the availability of immigrant numbers during September. 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 August 9th 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. The fiscal year 2010 limit for family-sponsored preference immigrants determined in accordance with Section 201 of the Immigration and Nationality  Act (INA) is 226,000.  The fiscal year 2010 limit for employment-based preference immigrants calculated under INA 201 is 150,657.  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., 26,366 for  FY-2010.  The dependent area limit is set at 2%, or 7,533.

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, DOMINICAN REPUBLIC, 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.)

*NOTE:  For September, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01JAN09.  2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT the DOMINICAN REPUBLIC and MEXICO with priority dates beginning 01JAN09 and earlier than 01JAN10.  (All 2A numbers provided for the DOMINICAN REPUBLIC AND MEXICO are exempt from the per-country limit; there are no 2A numbers for the DOMINICAN REPUBLIC AND MEXICO subject to per-country limit.)

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-2010 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 September, immigrant numbers in the DV category are available to qualified
DV-2010 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-2010 program ends as of September 30, 2010.  DV visas may not be issued to DV-2010 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2010 principals are only entitled to derivative DV status until September 30, 2010.  DV visa availability through the very end of FY-2010 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 OCTOBER

For October, immigrant numbers in the DV category are available to qualified DV-2011 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:

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Visa Bulletin for August 2010 | Immigration

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A. STATUTORY NUMBERS

EB-5 Visa Creates Jobs in Vermont

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In the midst of an economic downturn, Americans are looking for long-term strategic solutions to our unemployment woes.  One solution is to leverage our immigration system to attract investors to come to the United States and create jobs in exchange for a coveted green card.  

This is happening right now in Vermont.  Bill Stenger, president and co-owner of the Jay Peak Resort, has not had to borrow a penny for his $125 million project. It is almost entirely funded by about 250 foreign investors from 43 countries through the EB-5 visa program.  The development is the second phase of a goal to make Jay Peak a four-season resort. The first phase included an indoor ice rink, golf course and clubhouse, and the Tram Haus Lodge -- a 57-suite hotel with a bar, restaurant and coffee shop.

The EB-5 program is based on making a substantial financial commitment to create additional employment in the US. The EB5 Visa is based on a qualifying US investment. It does not require management of the day-to-day affairs of a business, provides the flexibility to invest in an existing or a new business and allows more than one person to invest as well as minority ownership. You can also live anywhere in the United States regardless of where the investment is made.

One may qualify for an EB5 visa in three different ways:

• Invest $1,000,000 and hire ten employees anywhere in the USA, or
• Invest $500,000 and hire ten employees in an area where the unemployment rate exceeds the national average by 150% or the rural population is less than 20,000, or
• Invest in a Government designated Regional Center

In exchange, the investors obtain permanent green cards for themselves and their families, and a chance to gain full U.S. citizenship.  The program began nationally in 1992 and became available to businesses in Vermont in 1997 except in the Burlington area, where the unemployment rate was too low to qualify.

Senator Patrick Leahy, D-Vt., was instrumental in bringing the EB-5 program to Vermont.  "Were it not for the extensions to EB-5 that Senator Leahy has championed, we would not be here today," Stenger said. "We want to see Vermonters employed," Leahy said during his keynote speech. "Bill, you and your team have made that possible."

Leahy is committed to expand the role of EB-5 investments in Vermont.  Stenger said the planning and construction has provided temporary jobs for about 800 people. He predicted that when the project is finished, the new facilities will bring 2,000 or more permanent jobs to Orleans County.

Job creation has crossed county lines. For example, DEW construction group, which is heavily involved with the project, is headquartered in Williston; the mechanical engineering firm for the project is located in Winooski; the landscape architect is from Burlington; and Engineered Solutions Inc., the civil engineering firm, is in Winooski.

Let's hope more Senators follow Leahy's lead.  These programs offer our economy robust job creation and reaffirm that we’re the world’s best place to do business.  Historically, responsible immigration policies plus free markets have yielded high levels of prosperity.  That's exactly what this country needs in these uncertain economic times.

Alternative Visa Options Once H-1B Cap Is Reached

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IMPACT OF THE EARLY CUT-OFF OF H-1B VISAS

After the H-1B cap is reached, private employers cannot hire new temporary professional workers in H-1B status for the 2011 fiscal year.  For those employers in need of hiring temporary professional foreign workers after the H-1B cap is reached, there may be alternative options available.

WHAT OTHER VISA OPTIONS ARE AVAILABLE?

The L-1 Intracompany Transferee Visa

The L-1 or intra-company transfer visa facilitates the transfer of key employees from a foreign corporation to a U.S. branch, parent, subsidiary, or affiliated entity.  This visa allows a U.S. company to bring in top-level managerial, executive, or specialized knowledge employees for a temporary period.  The employee must have worked for the foreign company for at least one of the past three years or six months for blanket L scenario and must work for the U.S. company in a similar position.  It need not be the same status as overseas (ex: specialized knowledge overseas could be a manager in the United States.  Only needs to be in one of the three classes:  manager, executive, or specialized knowledge).  The foreign entity may pay the employee his or her salary but the U.S. company must control the employee's performance of his or her work.  Authority to engage and terminate the employee is strong evidence of control.  There are no numerical limits on the L visa and the spouse of an L visa holder may apply for work authorization.  The L visa is initially valid for up to three years in the case of an existing business and up to one year where a new business is established in the United States.  There is a five-year limit on L-1B employees with specialized knowledge staying in the United States and a seven-year limit for L-1A managers and executives.

Consular posts generally see an increase in L-1 applications after the H-1B cap is reached.  However, there is no legal reason why aliens eligible for H-1B status cannot legitimately seek out other type of visas, including L visas. 

The Treaty-Trader/Treaty -Investor Visa (E-1/E-2)

E or treaty visas are available to persons or entities engaging in trade between the United States and their home country or persons and entities coming to the United States to develop and direct enterprises in the United States in which they are investing substantial amounts of capital.  The E-2 category includes individual investors and managers, executives, and essential skills employees of business entities that do the investment.  As a threshold issue, in order for a foreign national to qualify for this visa there must be a trader or investor treaty between the U.S. and the applicant's home country.  For treaty traders, the company set up in the United States must be at least 50% owned by a treaty country national but the applicant does not have to be an owner of the business.  There must be a "substantial" flow of trade (either goods or services) between the U.S. business and the treaty national's home country.  The USCIS determines whether the trade is substantial on a case-by-case basis.  Factors that may be considered include the nature of the business, the number of transactions, amount of trade and capital outlay.

With respect to an investment visa, again the business must be at least 50% owned by treaty nationals and there must be a substantial investment, which like the treaty-trader visa is determined on a case-by-case basis.  The investor must have experience in the business and must be actively involved.  The investor cannot simply invest in a company run by someone else. An E visa holder is normally admitted to the U.S. for a two-year period with unlimited two-year renewals.  Spouses of E visa holders may apply for work authorization.

TN Status

Employers may continue to sponsor Canadian and Mexican nationals in TN status under the North American Free Trade Agreement (NAFTA).  This visa is available to Mexican and Canadian nationals who have been offered a temporary position in one of the professions described in schedule 2 of NAFTA.  The applicant must have the degree or credentials required for that profession.  The TN visa is valid for three years and may be renewed indefinitely.  A spouse of an employee in TN status is not eligible for work authorization.

The O Visa

Foreign nationals with extraordinary ability in the arts, sciences, athletics, education or business, may apply for an O visa.  Beneficiaries in the sciences, athletics, education or business field must show that they have risen to the top of their field evidenced by national or international recognition.  Beneficiaries in the arts must show prominence and a record of extraordinary achievement.  Beneficiaries in the motion picture or television industry need to show a high-level of accomplishment, above that ordinarily encountered in the field.  The O visa is usually granted for three years and is renewed in one-year increments.  The O visa may be renewed indefinitely.  A spouse of an O visa holder cannot apply for work authorization.

The J-1 Exchange Visitor Visa

This visa is available to foreign nationals to enter the United States as exchange visitors to participate in government approved exchange programs.  First, the prospective employer must establish an approved exchange program.  Such program may be sponsored by government agencies, private businesses or educational agencies.  The foreign national may then enter the United States for the purpose of doing research, gaining training or studying.  Depending on the foreign national's qualifications and the type of exchange program, the J-1 visa is available anywhere from eighteen months for most trainees to forty two months for professors and research scholars.  Certain foreign nationals may be subject to a two-year home residency requirement at the end of their stay.

Non Immigrant Visa Options (E-1 & E-2 Visas) to Obtain a Green Card

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Learn how to obtain a green card via the E visa category.  This article outlines the three basic requirements for obtaining an E-1 (Treaty Trader) or E-2 (Investment) visa though trade and investment in the U.S. 

Read more in Karen's article, Green Cards Via Trade and Investment in the U.S. published in HG.Org Wordwide Legal Directories.

Have an immigration question?  Our immigration attorneys share their experience and expertise.  Click below to ask your question.

Immigration 101: Green Cards via Trade & Investment in the USA

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For most foreign nationals wanting to permanently live and work in the United States, the ultimate goal is to obtain a "green card" or permanent residency status. The most common method of obtaining permanent residency is through sponsorship by an employer or family member.

For wealthy individuals, a $1 million investment in a business that creates or preserves at least 10 full-time jobs is also an option. That amount is reduced to $500,000 where the business is located in areas of high unemployment or other qualifying rural areas.

However, where these options are unavailable, foreign nationals from countries with investment or commerce treaties with the United States may still obtain a visa to live and work in the United States by either investing in a business in the United States (E-1 visa) or by conducting trade with the United States (E-2 visa). The requirements of the E visa may be found in §101(a)(15)(E) of the Immigration and Naturalization Act; 8 U.S.C.A. §1101(a)(15)(E).

The E visa category may be used by various types of companies, whether owned by individuals or large multinational corporations, and may be used by the company's principals or by its employees. Although the E visa is considered a non-immigrant visa, unlike other nonimmigrant visas, it may be renewed indefinitely and the
E visa holder may apply for a green card through the business supporting the E visa.

There are three basic requirements for obtaining an E-1 or E-2 visa. First, a treaty must exist between the United States and the foreign national's home country. Germany, Italy, Switzerland, United Kingdom, Taiwan, Pakistan, Iran, Japan and Australia are just some of the countries that have treaties with the United States. Second, majority ownership or control of the investing or trading company must be held by nationals of the foreign country. Third, every employee or principal of the company seeking E visa status must be a citizen of the foreign country where the company
is based.