Cross-Chargeability Issues in Applying for Admission for Permanent Citizenship to US
By rule, aliens applying for Permanent Citizenship to the U.S. are “chargeable” to the country in which they were born, with certain limited exceptions. Therefore, a beneficiary who is a citizen of Canada but was born in India will be considered “chargeable” to India and not Canada. Consequently, the beneficiary will be subject to the cut-off dates established for India and get delayed.
Cross-chargeability as defined by INA
There is a possible way out of these backlogs for some of these individuals. According to Sections 202(b) (1) and (2) of the Immigration and Nationality Act (INA), a derivative applicant (an alien who is accompanying his or her spouse or parent to the U.S.) may be charged to the country of which the principal applicant (spouse or parent) is a citizen, if it would be beneficial to do so.
For example, consider a situation where an EB3 I-140 beneficiary was born in Uganda, while his wife and child were born in India. If India has a cut-off date and EB3 visa numbers are current for Uganda, the wife and child can accompany the principal applicant to the U.S. and be counted against the number of EB3 visas available “worldwide” rather than against India.
Cross-chargeability as defined by FAM
While aliens who apply for adjustment of status in the United States are subject to the rule as outlined in the INA, aliens applying for immigrant visas using consular processing are instead governed by the cross-chargeability rules in the Foreign Affairs Manual (FAM).
The FAM is more expansive in its interpretation of cross-chargeability. It allows not only for derivatives to be charged to the country of the principal applicant, but for the principal applicant to be charged to the country of the derivative applicant as well.
Thus, for example, an EB3 I-140 beneficiary who is from India and marries a Ugandan citizen can be charged to Uganda if his/her priority date is current according to the cut-off date, if any, worldwide. Note that this option is only available if the applicant uses consular processing.
While technically, adjustment of status applicants should be governed by the INA provisions, AILA has successfully persuaded USCIS offices to apply the Department of State (FAM) cross-chargeability rules to adjustment of status applications.
However, there are no guarantees that this would work in the adjustment of status setting. While the cross-chargeability provisions in the Immigration and Nationality Act and in the FAM will not help everyone, they may provide some relief for applicants who were born in different countries from their spouse or children. Copyright © 2006, Immitips.com. All Rights Reserved
US Takes Initiative to Streamline Visa Processing in India
The US Mission in India has initiated a number of steps, including taking the application process online and increasing manpower and other facilities to combat the increasing complaint against the countries slow visa processing system in the subcontinent.
In the past few years the US mission in India had been staggering under the increasing demand for visa. The facilities in place were inadequate to service the load put on them. Facing the reality that the US mission was garnering a bad reputation due the increasing backlog and long wait for Visa interviews, the US Ambassador David Mulford, along with the newly appointed US Consul General in New Delhi Peter G. Kaestner initiated several steps to streamline the visa process.
Visa Application Online: How Does It Work?
Under the new system, applicants can log on to www.vfs-usa.co.in and fill up the e-form available online and submit it online and get an interview date immediately.
On submitting the form, the applicant will be provided with a receipt with a bar code diagram on it. The applicant needs to print this acknowledgement and take it with them to the consulate during interview. The Embassy will then scan the bar code to authenticate the application and pull up all relevant documents then and there.
For people who already have put in their application on paper and have dates later then six months, the website provides options for adjusting the date against cancellation. The applicant will need to monitor the website for cancellations and move the interview date early when the system shows an interview date available because of cancellation.
Business Executive Program (BEP) Being Expanded
The US Mission is also working to expand its Business Executive Program (BEP) under which visas of company employees are processed on priority basis. The expansion will allow more companies to avail this facility.
The Mission is already communicating with Indian business chambers like FICCI, CII, NASSCOM and Indo-American Chambers of Commerce etc to draw up a list of companies who should be entitled to the BEP facilities.
5th US Consulate in Hyderabad by 2008
After months of hints on the issue, sources within the US Embassy have finally confirmed that Hyderabad will definitely have its own consulate as early as 2008. This will make it the 5th US Consulate in the country. The others are in Chennai, Mumbai, Delhi and Kolkata.
According to the US Consul General, the consulate in Hyderabad will process 125000 to 140000 visa applications a year. Last year alone, the state accounted for 20 percent of the 400000 visas issued by India.
Consulates Gear Up to Cut Backlogs
The US Consulate General in Mumbai has flown in equipments and qualified people to handle the backlog in visa. Currently there are 40,000 visa applications pending in the Consulates around the country.
As part of the initiative, the consulate is increasing the number of windows and working in shifts to service additional applications. The Consulate will also open every alternate Saturday very soon. Plans are being made to shift the Consulate from its cramped quarters in Breach Candy to Bandra Kurla Complex by April 2008.
The Chennai Consulate, the current busiest post in the country is adding 30000 more visa appointment slots for the current year. Copyright © 2006, Immitips.com. All Rights Reserved
DOL Extends RIR Conversion Eligibility Date
On October 6, 2006, the U.S. Department of Labor (DOL) issued a notice extending the time limit set on Traditional Labor Certification Cases that can be converted to Reduction in Recruitment (RIR) cases, by allowing applications filed before March 28, 2005 (The date on which the PERM program was launched). This extension has been made in an effort to clear all backlogged labor certifications September 30, 2007. Previously, the eligibility date for RIR conversion was set for
In essence, RIR conversion allows employers to convert their existing regular labor certification cases to the more efficient “reduction-in-recruitment” (RIR) process, while retaining the original priority date. However, labor certifications cases that already have a job order initiated through the BPC cannot be converted to RIR. The regulations for RIR conversion were published in the Federal Register on August 3, 2001.
Why RIR was introduced?
Previously, under the “Traditional Recruitment” (TR) process, employers had to test their local labor markets for available, qualified U.S. workers under the supervision of DOL. This had created a huge backlog of Labor Certification cases. The DOL’s answer was to instruct the employers to conduct their own recruitment and present proof of its recruitment drive (newspaper ads etc.) within the six months prior to filing.
On August 3, 2001, DOL officially establishing the process for converting TR cases into RIR cases, for cases filed before that date. Under the RIR process, the employer conducts its own recruitment efforts without supervision from DOL. The Department merely reviews these efforts and the outcome, which must meet DOL standards. Essentially, it saves the DOL a lot of time.
However, the backlog continued to build for cases filed after the eligibility date for RIR cases, forcing the DOL to consider the extension of RIR deadline.
How the process works?
If the employer has conducted recruitment through advertisements, job fairs etc. right after the regular Labor Certification case was filed, but before the State Employment Security Agency (SESA) had issued advertising instructions, the employer will then be able to submit its recruitment efforts to the SESA as evidence of recent recruiting. This documentation will then allow the case to be converted to RIR processing while retaining the original priority date.
The conditions that need to be met for RIR conversion are:
(a) The employer must have filed a permanent LC on or before March 18, 2005
(b) The SESA is yet to issue job order number or advertising instructions
If this conditions are met, then a Notice of Posting will have to be filed along with a request for RIR conversion, proof of recruitment effort in the six months prior to the request and a letter stating the reason for requesting RIR e.g. shortage of applicant etc.
Employers can also re-apply for previously rejected RIR cases, by filing as regular cases and then requesting for RIR conversion. However, a RIR case which has been rejected twice will need to be processed under the TR process. Copyright © 2006, Immitips.com. All Rights Reserved
For more information, read the FAQ (http://workforcesecurity.doleta.gov/foreign/pdf/backlog_faqs_10-06-06.pdf) published by the DOL.
November 2006 Visa Bulletin: Schedule A Reaches CapThe November 2006 Visa Bulletin finally put end to speculations about the Schedule A numbers. The cap of 50,000 for Schedule A workers has been reached and a cut off date of October 1, 2006 has been set. Among other news, the bulletin records forward movement in some employment-based (EB) cases, but mostly cases show no movement at all.
- EB1 Remains Current – The EB1category includes persons of Extraordinary Ability, Outstanding Professors / Researchers, and Multinational Executive Transferees etc. This category remains current for all countries.
- EB2 cut-off date moves forward- The EB2 category cut-off date for Indians moved forward by six and a half month to January 1, 2003. This was the cut-off date set for Indians in EB1 category in July 2006, just before they became unavailable.
- EB2 Cut-off date unmoved – The EB3 category cutoff date for persons born in India remains at April 22, 2001.
- Other Workers Category Moves Forward – The cut off date for the “Other Worker” category moved forward for all countries by four months, to May 1, 2001.
- Schedule A Workers – The Schedule A category reached its limit of 50,000 and has been retrogressed to October 1, 2005. The DOS expects this category will disappear by December 2006 and the Schedule A cases will again be counted as regular EB3 cases, unless new regulations are effected.
As the forward movement in the cut-off dates allow more cases to be processed, the DOS predicts that many categories will come to stop or retrogress further during this fiscal year. Copyright © 2006, Immitips.com. All Rights Reserved