Global Immigration Counsel : Immigration Lawyer & Attorney : Littler Mendelson Law Firm : Permanent Residence, Labor Certification : Global Immigration Counsel

Currently, the Immigration and Nationality Act permits the issuance of approximately 140,000 employment-based visas each year. The percentage of available visas that may be awarded to nationals of any one country is capped, i.e., visas issued to individuals of one country cannot exceed 7% of the total number of visas available.

Under the Fairness for High-Skilled Immigrants Act (H.R. 3012), introduced by Rep. Jason Chaffetz (R–UT), the per-country limitation for employment-based visas would be removed. Additionally, the following transitional rules would apply to employment-based visas:

• Fiscal Year (FY) 2012 (Oct. 1, 2011-Sept. 30, 2012): 15% of visas would be allocated to immigrants who are natives of a foreign state or dependent area that was not one of the two countries with the largest numbers of natives obtaining permanent resident status during FY 2010.
• FY 2013: 10% of visas would be allocated to immigrants who are natives of a foreign state or dependent area that was not one of the two countries with the largest numbers of natives obtaining permanent resident status during FY 2011.
• FY 2014: 10% of visas would be allocated to immigrants who are natives of a foreign state or dependent area that was not one of the two countries with the largest numbers of natives obtaining permanent resident status during FY 2012.

Additionally, H.R. 3012 increases, from 7 to 15% of the total number of available visas, the per-country restrictions for family-sponsored immigrants.

The bill has been referred to the House Judiciary Committee’s Subcommittee on Immigration Policy and Enforcement.

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On October 28, 2009, President Obama signed into law the Department of Homeland Security Appropriations Act, 2010 (H.R. 2892). The law contains a measure that ends the “widow penalty,” the government’s practice of annulling a foreigner’s permanent residency application when his or her American spouse dies before the marriage is two years old. 

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In order to promote greater contact between separated family members in the United States and Cuba, and to increase the flow of information and remittances to the Cuban people, the Office of Foreign Assets Control (a division of the Treasury) has amended (PDF) the Cuban Assets Control Regulations. The amendments implement President Obama’s April 13, 2009, initiative and various provisions of the Omnibus Appropriations Act, 2009.

Amendments to the regulations, which were originally issued in 1963 through the Trading With the Enemy Act, include:

• Travel restrictions to Cuba have been relaxed so that qualifying family members can visit relatives in Cuba as often as they like.
• Visits by close relatives to U.S. Government employees assigned to Havana are now unlimited.
• With certain conditions, travel-related transactions that are directly related to commercial marketing, sales, negotiation, accompanied delivery, or servicing in Cuba of certain agricultural commodities, medicine, or medicinal devices have been authorized.
• Requirements concerning documentation required of Cuban nationals who live outside Cuba seeking a license to enter the United States will be examined more favorably. In instances when applicants cannot meet the evidentiary burden, the amendments allow for increased consideration of, and favorable licensing actions based upon, other evidence.

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The Senate Judiciary Committee held a hearing regarding Sen. Patrick Leahy’s (D-VT) proposal to allow U.S. citizens and legal immigrants to seek residency for their same-sex partners. As reported by The New York Times, Sen. Leahy has said that his initiative, contained in the Uniting American Families Act (S. 424), should be included in any comprehensive immigration legislation that Congress considers.

Currently, family unification provisions allow American citizens and legal residents to petition for residency for their spouses. Same-sex couples, however, cannot petition for partners; as a result, immigrant partners are at risk of deportation. The Uniting American Families Act would add the term “permanent partner” to immigration law provisions that refer to married couples and would legally define that term. Opponents of Sen. Leahy’s proposal argue that it would facilitate immigration fraud because it would be difficult for immigration officers to determine whether same-sex couples actually had an established relationship.

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The Australian government has enacted amendments that will increase the range of visas and citizenship provisions available to same-sex couples. Amendments to the Immigration (Education) Act 1971, Migration Regulations 1994 and Migration Act 1958 will take effect on July 1, 2009. Key changes to migration legislation include:

• a new definition of spouse, applying to opposite-sex married couples;
• a definition of de facto partner, applying to both same-sex and opposite-sex de facto couples;
• new definitions of parent and child which will include recognition of certain parent-child relationships via artificial conception procedures and surrogacy arrangements;
• a new definition of member of the family unit, recognizing de facto partners (same and opposite-sex) as family members;
• a simplified and more equitable visa framework. All visas that currently include provisions for spouse will be available to opposite-sex and same-sex de facto partners alike.

Further details about the changes are available on the Department of Immigration and Citizenship (DIAC) website.

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