Shiny Happy Caitlar: The Immigration Tango

Okay so usually when I punk out on the bathtub, it's for one of 2 reasons: 1) I am drunk/hungover or 2) I am crazy busy at work. I feel like #1 is pretty self-explanatory and many people can sympathize. Sometimes you can barely string a coherent sentence together, let alone try to lend our readership some insight on a given topic. I've also tried before to somewhat explain why my work (U.S. business immigration law) takes up all the time and brain power I have on an unpredictable and sporadic basis. Luckily, I am not going to  punk out today. Rather, I'm going to try explain #2 a little better because immigration is like so totally trendy right now in U.S. politics and I really enjoy my job and my office, but in times like these, immigration gets confusing and overwhelming.

You see, my relationship with the departments of the U.S. government is sort of like a high school romance. It's a constant struggle for us, the attorneys and their staff who represent companies trying to employ foreign nationals, to ascertain how the other half, the government, is feeling at any particular time. Communication is not a forte in this relationship and the government can't really decide if it likes us or not.

I'm mainly referring to the employment-based green card process. Briefly, this is how it works:

Phase I--PERM
An employer tests the U.S. labor market by advertising in several different media, required by the Department of Labor, for a position in which they would like to permanently hire a foreign national. There are lots of rules and regulations on how you can do this and the employer must review all resumes that come in their door in connection with this recruitment to see if any U.S. workers qualify for the position. If after a certain period of time no U.S. workers qualify, an employer may file what is called a PERM Labor Certification Application on behalf of a foreign national, which details the recruitment that was conducted and the qualifications of the foreign national. This process takes several months to be adjudicated by the DOL.

Phase II--Immigrant Visa Petition
Once the Labor Certification is approved, the company can file an immigrant visa petition on behalf of the foreign national, which proves to Citizenship and Immigration Services (CIS) of the Department of Homeland Security that the foreign national qualifies for the open job (although they are most likely already holding it in temporary work status), and as such, that they are eligible to become a permanent resident. This phase also takes several months to approve.

Once Phase II has been approved, the foreign national has to wait until their Priority Date becomes current. A Priority Date (PD), is the date on which Phase I was filed. It is basically the foreign national's place in line to adjust their status to permanent resident. The Department of State only allows for a certain number of green cards for a certain year and it could be years until there is a number available for you based on your place in line.

Phase III--Adjustment of Status
Most people filing for an employment-based green card are already in the U.S. working in a temporary status, like H-1B or L-1 status. So they are just chilling, waiting for their PD to become current. Each month the Department of State issues a bulletin which says at what place in line they are in processing applications. The availability of a visa for you also depends on your education level and nationality. Once your PD become current, you can file for adjustment of status to permanent resident, an application that requires several long forms, a medical examination, and, as you can probably guess, a lot of money.

So in a nutshell, that's how to get a green card through your employer. The recent problems have been caused by the fact that several department of the U.S. government have their hand, as you can see, in different parts of the process and these departments don't communicate very well. In early June, PD's were moved up an entire year, after they had been stagnant for months. Thousands of people, including hundreds of our clients, could file Phase III after waiting for years. Then, in July, the Department of State said that everyone, no matter your priority date, nationality, or education, could file. Everyone. Every single person who had completed Phase I could file to be a permanent resident. As you can imagine, our clients went crazy, everyone wanting to file as soon as possible. They canceled travel plans (you abandon your application if you leave the U.S. before receiving a certain document after filing) and spent thousands of dollars on medical exams and filing fees. We weren't sure how all of the sudden the backlog that had existed for years just disappeared. We wondered how CIS felt about State all of the sudden inundating them with adjustment files. We knew that it would be a while before any application was approved.

And then State issued a memo and said sorry, we were wrong.

In an unprecendented move, State issued a bulletin out of cycle. There were no visas available for anyone, no matter what education level, nationality or PD. None. Not one. No one. Categories that had been open for years were closed. Foreign nationals were devastated.

Over the past several weeks there has been a lot of coverage of the public reaction to the debacle. Hundreds of Indians took to the way of Ghandi and sent flower to the Departments of State and Homeland Security in protest. Several interest groups began plans for a civil suit. We continued filing cases in hopes of possible fringe benefits from the suit for our clients.

And then they changed their minds. Again.

State issued yet another memo. Actually, everyone can file again. Every category, regardless of PD, education level and nationality. Just like the July bulletin first said. Everyone can file again until August 17. A mia culpa of sorts that again has caused more confusion and cancellation of rescheduled travel plans. To make matters worse, CIS is increasing their fees July 30 by an average of 300%. Will applications filed from July 30 to August 17 be subject to the new fees or old fees? Well, they're not really clear on that either.

All I know is that I have many clients who have waited for years for this. They've been in this country legally, boosting our economy, paying taxes to support our social services, and doing good work helping to produce products and services we all use everyday. And I feel bad that they've been jerked around for the past few weeks. Perhaps that's the price you pay to live in America permanently.

So yeah, that's why I've been working a lot. This stuff is a big part of my life. I hope you learned something.

Comments

[ness]

they said that we could have our greencards then they said no yes no yes noooo

[ness]

yessss

[kyledeb]

I came across your blog through a technorati search and I was wondering if you'd be interested in a link exchange with Immigration Orange. I'm always looking for different perspectives to interact with and value all viewpoints. Email me at kyledeb at gmail dot com if you're interested.

[Jerome]

KyleDEB are you related to KyleXY?

[sleepless_in_seattle]

Nice write-up, Caitlar. By the way, there was representation in both the campaigns from diverse ethnicities, and not just folks from India,although some media personnel inaccurately depicted it that way.

[Caitlar]

Thanks sleepless in seattle. I should know better that the media slightly misrepresented the situation (I read the article in the Washington Post), as I have yet to find an article on immigration that doesn't include at least one piece of misinformation.

[Micheal00026]

Appreciate your literary grace, is well written
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