News from the Alliance of Business Immigration Lawyers Vol. 2, No. 10 • October 01, 2006
1. ABIL Issues Holiday Travel Warning, Update on VWP Program, Biometric Passport Requirements – ABIL reminds travelers to ensure that their passports, visas, and other documents are current and in order well in advance of the busy holiday travel season; biometric passport requirements for VWP-participating countries are set to take effect on October 26.
2. USCIS Expands Premium Processing Service – EB-1, EB-2, and EB-3 immigrant visa categories have been added to premium processing service.
3. Shifts in Visa Number Availability Kick Off New Fiscal Year – Although visa numbers have not fully recovered, there has been some movement in the employment-based categories.
4. State Dept. Instructs on Effective Business Referral Programs – Posts throughout the world have established business facilitation programs to ensure that they are responsive to the needs of the U.S. business community.
5. 2008 Diversity Visa Lottery Instructions Released – Entries for the DV-2008 lottery must be submitted electronically between October 4 and December 3, 2006.
6. USCIS Eliminates Locally Produced Employment Authorization Cards – USCIS is phasing out the I-688B.
7. USCIS Expands Pilot Program on Permanent Resident Applications – USCIS has expanded a pilot program that changes the procedures for filing a green card application based on a family relationship, the diversity visa lottery, or qualification for most special immigrant categories.
8. Dep’t of Labor Updates Procedures on Backlogged Cases, Launches Web Site for Checking Status of Applications – The DOL has issued a FAQ on backlogged cases that have received “no contact” from the agency, and has launched a Web site for checking case status.
9. USCIS Announces Elimination of Naturalization Backlog – USCIS announced the elimination of the backlog for the N-400 Naturalization Application and the reduction of backlogs overall.
10. New Report Issued on Immigration and America’s Future – The Migration Policy Institute recommended policy changes to harness the benefits of immigration to advance U.S. interests in the 21st century.
11. Recent News from ABIL Members – Recent News from ABIL Members
1. ABIL Issues Holiday Travel Warning, Update on VWP Program, Biometric Passport Requirements
The Alliance of Business Immigration Lawyers (ABIL) reminds travelers to ensure that their passports, visas, and other documents are current and in order well in advance of the busy holiday travel season. Travelers should also remember that because of heightened security measures, delays are possible and full compliance with security procedures is necessary.
For most applicants, a personal appearance interview is required as a standard part of visa processing. Additionally, applicants affected by security procedures are informed of the need for additional screening at the time they submit their applications and are being advised to expect delays. The time needed for adjudication of individual cases will continue to be difficult to predict. For travelers, the need for an interview will mean additional coordination with the embassy or consulate to schedule an interview appointment. Individuals should build in ample time before their planned travel date when seeking to obtain a visa. To estimate how long you will have to wait to get an interview appointment to apply for a visa (not including any additional time required for special clearances and administrative processing), see the Department of State’s “Visa Wait Times for Interview Appointment,” http://travel.state.gov/visa/temp/wait/tempvisitors_wait.php (choose the consular location from the drop-down menu and click on “Get Wait Times”).
Some applicants must obtain advance parole (advance permission to travel) to leave the U.S. while their applications are pending. Advance parole processing time is now averaging about 3.5 months (up from about two months last year), so sufficient lead time to apply for parole, if needed, should be factored into travel preparations. For more information on advance parole requirements and procedures, see http://www.uscis.gov/graphics/services/Emergency/index.htm.
On September 7, 2006, at a hearing before the Senate Subcommittee on Terrorism, Technology, and Homeland Security, Jess T. Ford, Director of International Affairs and Trade for the U.S. Government Accountability Office (GAO), recommended that the Department of Homeland Security (DHS) strengthen its efforts to mitigate risks inherent in the Visa Waiver Program (VWP) available to citizens of specified countries. (See http://foia.state.gov/masterdocs/09fam/0941002X2.pdf for a list of countries eligible for admission for up to 90 days upon presentation of a round-trip ticket and passport of such a country.) The DHS has acknowledged that an undetermined number of inadmissible individuals may have entered the U.S. using stolen or lost passports from VWP countries, he noted. Because of such concerns, Congress periodically considers restricting the VWP. Mr. Ford’s testimony (GAO-06-1090T) is available at http://www.gao.gov/new.items/d061090t.pdf. The GAO’s related report (GAO-06-854) is available at http://www.gao.gov/new.items/d06854.pdf.
Biometric passport requirements for VWP-participating countries are set to take effect on October 26, 2006. Those countries will be required to begin issuing passports with integrated circuit chips containing biometric information. Each VWP country is at a different stage in its development of secure passports, but VWP travelers who obtained machine-readable passports (MRPs) before October 26, 2005, are not required to have a digital photograph or contact-less chip. This means that if you obtained or renewed/extended an MRP before October 26, 2005, you will not be required to get another passport for travel until your MRP expires. Passports issued or renewed/extended between October 26, 2005, and October 25, 2006, must be machine-readable and include a digital photograph printed on the data page; passports issued or renewed/extended on or after October 26, 2006, must be machine-readable and include the integrated chip.
A handy guide for VWP travelers is available at http://cbp.gov/linkhandler/cgov/travel/id_visa/vwp/vwp_timeline.ctt/vwp_timeline.pdf. For general information on biometrics and electronic tagging, see “The Frontiers of Privacy Law: Technology Marches On” (http://www.pli.edu/emktg/toolbox/Privacy_Tech33.doc – scroll down for article), published by the Practising Law Institute.
2. USCIS Expands Premium Processing Service
U.S. Citizenship and Immigration Services (USCIS) has announced the addition of three categories to the premium processing service, which allows U.S. businesses to pay a $1,000 fee in exchange for 15-day processing of the case. On September 25, 2006, USCIS began accepting premium processing requests for the Immigrant Petition for Alien Worker (Form I-140) for the EB-1B (outstanding professors and researchers); EB-2 (members of professions with advanced degrees or exceptional ability not seeking a national interest waiver); and EB-3 (workers other than skilled workers and professionals, including unskilled labor requiring less than two years of training or experience) immigrant visa categories. In addition, on August 28, 2006, USCIS added EB-3 professionals and skilled workers to categories eligible for premium processing. After these two announcements, all I-140 employment-based immigrant visa petitions will qualify for premium processing other than EB-1A extraordinary ability, EB-1C multinational manager, EB-2 national interest waiver, and EW unskilled waiver petitions.
Since 2001, premium processing service has been available for several nonimmigrant classifications within the Petition for Nonimmigrant Worker (Form I-129), including E treaty traders and investors, H-1B specialty occupation workers, H-2B temporary workers performing nonagricultural services, H-3 trainees, L intracompany transferees, O aliens of extraordinary ability and those performing essential support services, P performers and athletes and those performing essential support services, Q international cultural exchange visitors, R religious workers, and NAFTA professionals from Canada and Mexico.
For more information on premium processing for the three added EB immigrant visa categories, see http://www.uscis.gov/graphics/publicaffairs/newsrels/PremProc092206PR.pdf.
3. Shifts in Visa Number Availability Kick Off New Fiscal Year
The Department of State has issued the Visa Bulletin for October 2006, which is the start of fiscal year 2007. Although visa numbers have not fully recovered, there has been some forward movement in the employment-based categories. For example, the EB-2 category for India was unavailable beginning in August; the new cut-off date for October is June 15, 2002 (although this actually represents a retrogression from the January 1, 2003, cut-off date in existence before the category became unavailable).
It has also been reported that numbers in the Schedule A category (nurses, physical therapists, and certain persons with exceptional abilities in the arts or sciences that are exempt from labor certification) may be exhausted soon, possibly as early as November. Once that occurs, it will still be possible to file immigrant visa applications for such persons, but they will be subject to the priority dates of the underlying visa category (e.g., EB-2 or EB-3) for their occupation.
Family-based visa numbers also recovered from the steep retrogression imposed last quarter, but not to the cutoff dates previously in existence.
The October Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3032.html.
4. State Dept. Instructs on Effective Business Referral Programs
In a recent cable to all diplomatic and consular posts, the Department of State noted that facilitating access to timely visa appointments for business travelers is one of the Bureau of Consular Affairs’ highest priorities. Businesses are looking for a predictable way to factor the visa process into their travel planning. Posts throughout the world have established business facilitation programs to ensure that the Department is responsive to the needs of the U.S. business community while continuing to maintain visa security standards. Many such programs are conducted in coordination with American Chambers of Commerce (AMCHAMs) overseas.
The Department noted that the U.S. Chamber of Commerce recently polled regional AMCHAMs on consular sections’ business facilitation programs. Survey respondents commended consular sections that allow for group appointments or set aside a specific day or block of time to handle business visa applications. Respondents also cited clearly written procedures and established channels of communication as the most important factors in establishing a successful business facilitation program. Some AMCHAM members complained that programs seem to shift with the arrival of each new section chief, and that changes are not always communicated clearly and promptly.
The Department also noted that having a designated point of contact in the consular section is essential. Model programs include AMCHAM Buenos Aires, where each company designates its own specific officer to communicate with the Chamber’s Visa Office. The AMCHAM ensures that the visa application is arranged in a standard format, provides a job letter showing the applicant’s position, salary, and length of service, and provides remote data entry. The AMCHAM holds regular meetings with member-company coordinators and provides training to new and current members. It stresses the need to study each applicant thoroughly before scheduling appointments, noting that its productive relationship with the consular post stems from maintaining daily contact with the consular section and the call center.
For more information on these efforts and model programs, see the Department’s cable at http://travel.state.gov/visa/laws/telegrams/telegrams_3033.html.
5. 2008 Diversity Visa Lottery Instructions Released
The Department of State’s Bureau of Consular Affairs has released instructions for the 2008 Diversity Immigrant Visa Program. Entries for the DV-2008 lottery must be submitted electronically between noon EDT (GMT-4) October 4, 2006, and noon EST (GMT-5) Sunday, December 3, 2006. Paper entries will not be accepted. Applicants may access the electronic DV entry form and instructions at http://travel.state.gov/visa/immigrants/types/types_1318.html during the registration period. Because heavy demand may result in Web site delays, applicants are strongly encouraged not to wait until the last week to enter. Also, receipt of more than one entry per person will disqualify the person from registration. There is no fee.
For DV-2008, natives of the following countries are not eligible to apply because these countries sent more than 50,000 immigrants to the U.S. over the previous five years: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, Russia, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.
To enter the lottery, a person must have either a high school education or its equivalent, or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform. The Department of Labor’s O*Net OnLine database will be used to determine qualifying work experience. Certain people from ineligible countries may qualify on the basis of their spouse’s or parent’s country of birth. For additional details on entry procedures and requirements, see http://travel.state.gov/pdf/DV_2008_Final.pdf.
6. USCIS Eliminates Locally Produced Employment Authorization Cards
U.S. Citizenship and Immigration Services (USCIS) currently issues two types of employment authorization documents: Form I-766, Employment Authorization Document (EAD), and Form I-688B, Employment Authorization Card. The I-766 is produced in Kentucky and accounts for approximately 88 percent of the EADs produced on behalf of USCIS; the remainder are produced at various field offices. Because of various issues with the locally produced cards, such as outdated card technology, obsolete equipment, and lack of maintenance, USCIS is phasing out the I-688B. This affects both locally produced interim EADs and non-interim EADs.
As part of this initiative, USCIS will no longer accept I-765 filings for non-interim EADs at local offices. Applications that were received at any local office through September 30, 2006, have been forwarded to the appropriate Service Center or the Chicago Lockbox for processing. Such applications received on or after October 1, 2006, will be returned and the individual will be advised to file directly with the appropriate Service Center or Lockbox indicated on the I-765 instructions. The agency recommends that applicants seeking to replace an expiring EAD file the I-765 at least 100 days before the current card expires.
For additional information on filing procedures and adjudication issues, see http://www.uscis.gov/graphics/lawsregs/handbook/ElimI688B_081806R.pdf. For information specific to asylees’ EADs, see http://www.uscis.gov/graphics/publicaffairs/statements/AsyleeEAD091406PN.pdf.
7. USCIS Expands Pilot Program on Permanent Resident Applications
U.S. Citizenship and Immigration Services has expanded a pilot program that changes the procedures for filing a permanent residence (“green card”) application (Form I-485) based on a family relationship, the diversity visa lottery, or qualification for most special immigrant categories. Under the expanded pilot program, affected applicants residing within the jurisdiction of the Dallas District Office (effective October 23, 2006; terminating on September 21, 2007), El Paso District Office, or Oklahoma City Sub-Office (the latter two offices are effective November 20, 2006; terminating on September 21, 2007) will be required to file the I-485 and any necessary documentation and fees in person at the appropriate local office, rather than by mail, after self-scheduling an appointment using the Internet-based InfoPass (http://infopass.uscis.gov/). The pilot program is intended to test this alternative to current filing and processing procedures with the goal of achieving a 90-day processing time for affected I-485s.
For more information on the pilot program, see http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-7791.pdf.
8. Dep’t of Labor Updates Procedures on Backlogged Cases, Launches Web Site for Checking Status of Applications
The Office of Foreign Labor Certification (OFLC) of the Department of Labor (DOL) has developed a process for an employer or attorney who believes an application should be pending at a Backlog Elimination Center (BEC) but for which no contact (e.g., no 45-Day Center Receipt Notification Letter (CRNL), case closed letter, or other correspondence about the case) has been received from the BEC. To provide these employers with the opportunity to have their applications processed while also guarding against potential fraud, OFLC has established specific steps for employers or their attorneys to follow, which are outlined in a FAQ at http://www.ows.doleta.gov/foreign/pdf/backlog_faqs_09-11-06_nobec.pdf.
Inquiries must be sent to the appropriate e-mail provided in the FAQ by October 11, 2006. This process is only for employers or their designated attorneys; beneficiaries of labor certification applications are not authorized to use the process. The process is not intended for status checks or other case inquiries, but is to be used only in those cases for which the employer or attorney has received no contact whatsoever from the BEC.
The DOL also has launched a Web site for pending applications filed at a Backlog Elimination Center (BEC). The Office of Foreign Labor Certification (OFLC) has received many requests from employers, attorneys, and applicants regarding the status of applications being processed as part of the backlog elimination effort. To provide basic case status information on specific cases, OFLC introduced the Backlog Public Disclosure System. The status of a case (but not estimated processing times) may be checked at http://www.pbls.doleta.gov/pbls_pds.cfm by entering the ETA case number. The system currently checks only cases beginning with a D (Dallas) or P (Philadelphia).
9. USCIS Announces Elimination of Naturalization Backlog
U.S. Citizenship and Immigration Services (USCIS) announced the elimination of the backlog for the N-400 Naturalization Application. USCIS completed approximately 342,290 backlogged cases and average processing times have fallen from a previous high of 14 months in February 2004 to approximately five months as of September 2006.
The overall backlog of all applications has decreased from 3.8 million in 2004 to just over 1.1 million as of July 2006, USCIS noted. Of the gross backlog of 1.1 million applications, 140,000 cases are considered “backlogged and under USCIS control” as of July. Cases considered as within USCIS’s control are defined as those that are ready to be adjudicated. Cases outside USCIS’s control that are not counted as included in the net backlog include cases that are pending law enforcement security checks, naturalization test retakes, naturalization candidates awaiting scheduling of a judicial ceremony, and cases in which an applicant has failed to respond to a request for additional evidence.
For more on the elimination of the naturalization backlog, see http://www.uscis.gov/graphics/publicaffairs/newsrels/N400Bklg091506NR.pdf.
10. New Report Issued on Immigration and America’s Future
The Migration Policy Institute’s Independent Task Force on Immigration and America’s Future has released its final report, “Immigration and America’s Future: A New Chapter.” Recognizing that U.S. immigration policies are increasingly disconnected from the economic and social forces that drive immigration, the Independent Task Force asked what kind of immigration policy and system would harness the benefits of immigration to advance U.S. interests in the 21st century. Over the past year, the Task Force, a bipartisan panel of leaders and experts, evaluated the economic, social, and demographic factors driving today’s large-scale immigration to the U.S., both legal and illegal. The final report presents several far-ranging recommendations. For more information on the report, see https://secure2.convio.net/mpi/site/Ecommerce/251378812?store_id=1241&product_id=2161&VIEW_PRODUCT=true&JServSessionIdr006=6vton3y7f1.app13b.
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11. Recent News from ABIL Members
Angelo A. Paparelli (http://www.entertheusa.com/) was recently quoted in the American Bar Association’s eReport Journal. In U.S. v. Romm, the 9th Circuit declined to rule on whether searching the contents of a laptop is routine because the issue was not raised in an appeal. The Supreme Court has said, however, that “border searches of belongings are always routine, so long as the belongings aren’t hurt,” Mr. Paparelli noted. He said he is aware of at least one instance in which a customs agent asked for an e-mail password so the officer could examine the individual’s e-mail correspondence. “Imagine if that were the password of a company employee, and it led the agent into a corporate network database,” he noted. The article, Border Insecurity – 9th Circuit: Laptops May Be Subject to Customs Inspections After Overseas Trips, is available at http://www.abanet.org/journal/ereport/s15border.html.
Steven A. Clark, Alliance of Business Immigration Lawyers (ABIL) member and past president of the American Immigration Lawyers Association, will speak on a panel in New York on October 10, 2006, with William Carlson, Chief, National Headquarters, Division of Foreign Labor Certifications, U.S. Department of Labor at the Practising Law Institute’s Annual Immigration and Naturalization Institute. Further information is available at http://www.pli.edu/product/program_detail.asp?ptid=511&stid=3&id=EN00000000026844.
Cyrus D. Mehta (http://www.cyrusmehta.com/)has authored Finding the ‘Golden Mean’ in Dual Representation – Updated,” which appears in the August 2006 issue of Immigration Briefings. The “golden mean,” Mr. Mehta writes, serves as a starting point for a discussion on how an attorney can represent two clients with potentially differing interests.