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H.R. 3012 Still On Hold, But China And India EB-2 Visas Nevertheless Advance Through Current Visa Scheme.

by Alan Lee, Esq

There is no new news on H.R. 3012, the High Skilled Immigrants Act, which was put on hold by Senator Charles Grassley (R-IA), the ranking Republican on the Senate Judiciary Committee. After a transition period, the bill would lift the per country quotas on the employment based categories, providing relief for natives of China and India, whose immigration in these categories is severely backlogged.

Even without H.R. 3012, the January 2012 visa bulletin of the Department of State showed the China and India EB-2 category for aliens with advanced degrees or in the national interest (NIW) advancing 9.5 months from 3/15/08 to 1/1/09. Such comes through the use of Section 202(a)(5) of the Immigration and Nationality Act that if total demand for visas in a calendar quarter will be insufficient to use all available numbers in an employment preference, the unused numbers may be made available without regard to the annual per country limits. The Department added a note to the January visa bulletin that the rapid advance of the EB-2 category for China and India in recent months was intended to generate significant levels of new filings for adjustment of status at U.S.C.I.S. offices; that U.S.C.I.S. has reported that the rate of new filings is currently far below that which they had anticipated, prompting an even more aggressive move of the cutoff date for January and possibly beyond; and while the Department's action greatly increases the potential for an eventual retrogression of the cutoff at some point during the year, it also provides the best opportunity to utilize all the numbers available under the annual limit.

Such a need for rapid advancement of the two countries under the current visa scheme shows that most people with advanced degrees from other countries are not immigrating to the U.S., and that a great number of the scientists and engineers graduating with advanced degrees from American universities and colleges are from China and India. Given that situation, their immigration at some realistic date may serve U.S. interests in fortifying the nation in the sciences by encouraging them to stay rather than take all the knowledge gained here back to their home countries.

The July visa bulletin also showed advances of approximately one month in all the family preferences, and one month or less in the EB-3 and EW-3 categories for skilled and unskilled workers respectively except for a five week advance in the China EB-3 category.

2011 Alan Lee, Esq.

About The Author

Alan Lee is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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