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k2s Posted June 9, 2015 Report Posted June 9, 2015 Please sign following petition https://www.change.org/p/leon-barack-obama-leon-rodriguez-jeh-johnson-expeidate-rin-1615-ac05-employment-high-skilled-modernization Dear Mr. President/Jeh Johnson / Leon Rodriguez, I fully support and request to expedite the implementation of Adjustment of Status, EAD and Advanced Parole to all I-140 approved high skilled employees. Please implement this rule as soon as possible. Also, please note that this rule is eligible to be moved to "Step-7" of Rule Making since the comments were already sought during March/April after the March 19th 2015 conference call. On November 20, 2014, the President announced a series of executive actions,But still now we did not get any benefits from executive actions. I am writing this letter to bring to your attention the plight of hundreds of thousands of legal immigrants who request you to makes reforms to the immigration system which is completely broken and is particularly unfair to legal, tax-paying, law-abiding immigrants, who have been waiting in line for many years. We, legal immigrants, go through a circuitous immigration route that does not reward our hard work and creativity. Most of us were educated in the United States, have established our families here and call United States our home. Many of our children are born and raised here and call this great nation their home. Our employers have applied for our permanent residency for the sole purpose of retaining us as full time long term employees but because of a broken immigration system, we face an “artificial barrier” called green card backlog before clearing which our application cannot be processed. Many have been waiting in this line for more than 20 years. Some may have lost interest in becoming Americans, leaving this country to create businesses that will compete with America and create jobs in other countries like Canada and Australia. This is not a system that currently welcomes the best and the brightest but we have hope. We have thus decided that it is time for us to take this initiative and bring our plight to your attention and we need your help. Here we have identified two issues and potential recommendations that you and your agencies can study and, hopefully, use your executive powers to deliver us from this excruciatingly long wait and unending uncertainty. Action Item # 1 Elimination of Dependents from Employment‐Based Count. Issue: An argument has been presented over and over again as to how majority of the employment based immigration visas end up going to family members of the primary applicants. Per some sources, in 2000 59% of the EB-1 immigrant visas went to the family members of the primary applicants and the number rose to 66% in 2012. Looking at the overall numbers, out of the 140,000 employment-based green cards annually only about 65,000 go to the principals; the remainder go to dependents. This is one of the main causes of the decades long wait periods for an immigrant visa for thousands of legal immigrants. Solution: A solution to this has been proposed by various groups including Immigration Innovation Act of 2013 proposed by a bipartisan group of Representative Hatch, Klobuchar, Rubio and Coons. Rep. Bruce Morrison (D-Conn.) talked about the same solution in a recent discussion. The solution is simple and elegant and it involves either counting members of the same family as one unit towards the annual immigrant visa cap or completely exempting dependents of employment-based immigrant visa recipients from the employment-based green card cap. Examining INA Section 203(d), there is nothing that explicitly authorizes or mandates the counting of family members under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal alien, nothing requires that family members also be given their own numbers. There is no regulation in 8 C.F.R. instructing what INA Section 203(d) is supposed to be doing. Even the Department of State’s regulation at 22 C.F.R. Section 42.32 only mirrors INA Section 203(d) and states that children and spouses are “entitled to the derivative status corresponding to the classification and priority date of the principal.” 22 C.F.R. Section 42.32 does not provide further amplification on the scope and purpose of INA Section 203(d). We acknowledge that INA 203(d) derivatives are wholly within the preference system and bound by its limitations. They are not independent of numerical limits, only from direct limitations. It is the principal alien through whom they derive their claim who is counted and who has been counted. Hence, if no EB numbers were available to the principal alien, the derivatives would not be able to immigrate either. If they were exempt altogether, this would not matter. There is a difference between not being counted at all, which we do not argue, and being counted as an integral family unit as opposed to individuals, which we do assert. We seek not an exemption from numerical limits but a different way of counting such limits. There are many known cases where this has forcefully separated members of a family because there were not enough visas available for all of them during the same year. Quite simply, implementing this change would greatly reduce wait time for highly-skilled employees as all the 140,000 visa will now go to them. This will ease the bottleneck and wait times will be shorter which will provide incentives to highly skilled employees to migrate to the US. Numerous researches have shown that adding high skilled workers to the workforce actually creates jobs which stimulates the economy. In addition, shorter wait times for GC would allow hard-working, tax-paying legal immigrants additional security which would encourage them to buy homes, cars etc. which further contributes to the economy. Thus, we would like to request you to bring to the president a proposal that allows for such an interpretation of the existing laws where a derivative family member of an employment based visa petitioner is NOT counted towards the current 140,000 annual cap. There are examples of similar rules in the past such as when Congress in Section 1244(c) of the Defense Authorization Act of 2008, Pub. L. No. 110-181, explicitly stated that only principal aliens would be charged against the 5,000 visas allocated to Iraqi translators. We request the President to use his executive powers to reinterpret INA Section 203(d) since there is sufficient “constructive ambiguity” here too for him to do so without the need for Congress to sanction it. Action Item #2 Allow Department of Homeland Security (DHS) and USCIS to receive application for Adjustment of Status with an approved I-140 immigrant petition Issue: There were many steps taken under American Competitiveness in the Twenty-First Century Act of 2000 (AC21 Act) to identify and help long delayed applicants (waiting for more than six months) for Adjustment of Status (AOS) i.e. Form I-485. What was and is continually ignored is the fact that even before an immigrant is eligible to file for AOS, he/she has to wait for decades for an immigrant visa number to become available, simply because of the country of birth. During that multi-decade period the employee/immigrant has to stay tied to the same employer or restart their Green Card application if they change jobs or sometimes even when they get promoted with the same employer. At the very least this causes many lost opportunities for career advancements for a young and motivated immigrant and possible exploitation by some unscrupulous employers. Solution: An application for Employment Authorization Document (EAD) i.e. Form I-765 can be file concurrently with the AOS application and can give the employee/immigrant freedom to change jobs or department or pursue other career advancement opportunities freely. Current title 8 U.S.C. 1255(a) (3) states that a nonimmigrant’s adjustment of status to a permanent resident can only happen if an immigrant visa is immediately available to him at the time his application is filed. This, however, does not prevent the administration from “accepting and holding” the AOS application until an immigrant visa number becomes available at which time the applicant can resubmit the required forms and most recent biometric information. The EAD application that would be submitted with the AOS application can and is processed separately, thus giving the immigrant much needed relief during the multi-decade wait period. This fix has already been discussed by the agencies in the past and has also been part of several separate bills passed in the Senate and the House. In 2009 USCIS expressed its intention to draft a regulation that would have permitted a pre-registration structure where an application and documentation could be filed at a point prior to the time a priority date is current. (See “Preference Alien Registration of Intention to Apply for Adjustment of Status; Pre-Filing of Certain Applications, DHS Unified Agenda, May 11, 2009). In 2013, both the immigration reform bill (S. 744) passed by the Senate and the high-skilled immigration reform bill (H.R. 2131) passed by the House Judiciary Committee included provisions that would have had a similar effect. Currently per USCIS 8 C.F.R. 245.1, an alien cannot submit an application for adjustment of status until an immigrant visa is available. BUT this is not required by existing laws. Additionally, Section 8 U.S.C. 1255 (a) specifically grants Attorney General the discretion and authority to prescribe regulations for adjustment of status application process. Thus in summary, even if Section 8 U.S.C. 1255 states that an adjustment of status application can only be filed if a visa number is immediately available, the USCIS has the flexibility to interpret this provision broadly since Congress did not define when a case is “filed,” leaving it to the informed exercise of agency discretion. Just like the State Department for the past 25 years has started processing an application for an immigrant visa prior to the priority date becoming current, the USCIS too could create a “provisional filing date” many years in advance of the priority date becoming current that would allow the AOS application to be submitted but not approved. This would result in the applicant obtaining all of the benefits of such a filing, such as interim work and travel benefits along with the ability to exercise occupational mobility under INA Section 204(j). Thus, we would like to request the President a proposal that allows for such an interpretation of the existing laws where a nonimmigrant with an approved I-140 can submit an application for AOS (I-485) which can be accepted and held by DHS/USCIS until an immigrant visa number becomes available. This application, as currently allowed by the law, will be accompanied by an application to obtain an EAD (I-765) allowing the applicant greater flexibility with his employment situation and career advancement opportunities. We would like to thank you for your time and consideration. We hope that our arguments and supporting data have convinced you to seriously call for reinterpretation of existing laws and use your executive powers to fix the broken system that Congress has failed to do. When it comes to its universities and businesses, USA still attracts the world's best and the brightest. But in the global competition to retain this talent, while competing with other countries, this country has only one disadvantage - its outdated immigration policies. We hope that your Executive Orders will fix some of the problems as noted above and that this is something that the president can and should do for the legal, tax-paying, law-abiding, citizens-in-waiting of America. chall dobbai cheyyar
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