News from the Alliance of Business Immigration Lawyers Vol. 2, No. 12 • December 01, 2006
1. State Dept., DHS Announce New Passport Requirement for Air Travelers -As of January 23, 2007, citizens of the U.S., Canada, Mexico, and Bermuda traveling to the U.S. by air from any part of the Western Hemisphere will be required to present a passport or other accepted document.
2. USCIS Expands Premium Processing to EB-1 Category – Expedited service may now be requested for EB-1 extraordinary ability cases.
3. Labor Dept. Inadvertently Withdraws Labor Certification Cases, Corrects Error – The Office of Foreign Labor Certification is identifying the affected cases and reinstating them.
4. SEVP Implements Five-Year Maximum Program Duration for J Professors and Research Scholars – The new SEVIS release contains the changes necessary to raise from three to five years the maximum duration of participation for J professors and research scholars, among other effects.
5. ‘Schedule A’ Immigrant Visa Numbers Used Up – The 50,000 visa numbers provided for Schedule A workers have become “Unavailable.”
6. USCIS Announces Case Processing Target Times – The agency issued recent guidance to the field outlining case processing timeframes.
7. USCIS Realigns Regional, District, Field Offices – As part of the realignment, USCIS will establish a new Southeast Regional office in Orlando, Florida.
8. USCIS Revamps Web Site, Moves Many Pages – Readers may want to update their bookmarks.
9. Many Venture Capital-Backed Start-Ups Founded by Immigrants, Study Finds – A key lesson of the study is the importance of an open legal immigration system.
10. Uptick in Foreign Student Enrollments Reported – The overall decline in foreign student enrollments appears to have slowed.
11. U.S. ‘World’s Worst’ for Entry Hassles, Survey Finds – But foreign travelers like it here once they get past the initial obstacles.
12. USCIS Launches Pilot Test for New Naturalization Exam – The agency wants to deemphasize the rote memorization of facts.
13. Recent News from ABIL Members – Recent News from ABIL Members
1. State Dept., DHS Announce New Passport Requirement for Air Travelers
The Departments of State and Homeland Security announced that as of January 23, 2007, citizens of the U.S., Canada, Mexico, and Bermuda traveling to the U.S. by air from any part of the Western Hemisphere must present a passport or other accepted document (such as a Merchant Mariner Document or a NEXUS Air card at designated sites). Permanent residents (green card holders) will continue to be able to use their Alien Registration Card (Form I-551) or other valid evidence of permanent resident status to apply for entry to the U.S. Children who are U.S. citizens will need a passport even if their parents are green card holders.
An individual traveling as a member of the U.S. armed forces on active duty is not required to present a valid passport to enter or depart the U.S. Spouses and dependents, however, must present a passport and valid visa, if applicable.
In the second phase of the Western Hemisphere Travel Initiative, targeted for implementation on January 1, 2008, U.S. citizens traveling between the U.S. and Canada, Mexico, Central and South America, the Caribbean, and Bermuda by land or sea may be required to present a valid U.S. passport or other document.
The notice announcing the new travel document requirements is posted at http://www.state.gov/r/pa/prs/ps/2006/76752.htm. A FAQ (frequently asked questions) page is available at http://www.travel.state.gov/travel/cbpmc/cbpmc_2225.html. The full text of the final rule is posted at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-9402.pdf.
2. USCIS Expands Premium Processing to EB-1 Category
U.S. Citizenship and Immigration Services (USCIS) announced that starting on November 13, 2006, premium processing service may now be requested for EB-1 extraordinary ability cases. Premium processing allows U.S. businesses to pay a $1,000 fee in exchange for 15-calendar-day processing of their case.
Since 2001, premium processing service has been available for several nonimmigrant worker classifications, including E treaty traders and investors, H-1B specialty occupation workers, H-2B temporary workers performing non-agricultural 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. Form I-129 petitions for those nonimmigrant worker classifications will continue to be eligible for premium processing service unless the filing period has closed (for example, when the annual numerical cap for a specific visa classification has been reached).
Also, earlier this year, USCIS began accepting premium processing service requests for petitions involving five other immigrant visa categories: EB-1 outstanding professors and researchers, EB-2 members of professions with advanced degrees or exceptional ability not seeking a national interest waiver, EB-3 professionals, EB-3 skilled workers, and EB-3 workers other than skilled workers and professionals.
The notice announcing the expansion is posted at http://www.uscis.gov/files/pressrelease/PremiumProcessingRelease_08No06.pdf.
3. Labor Dept. Inadvertently Withdraws Labor Certification Cases, Corrects Error
The Department of Labor’s Office of Foreign Labor Certification (OFLC) reported on November 15, 2006, that because of a “technical issue,” a number of traditional and reduction-in-recruitment (RIR) labor certification cases were identified inadvertently as pending PERM re-file applications and were thus withdrawn from backlog processing. OFLC stated that it was identifying the affected cases and reinstating them to the “appropriate processing status in proper order.”
In other cases, however, withdrawal was appropriate and those cases will not be reinstated. Such cases include PERM re-filings where the use of the earlier traditional or RIR priority date was requested and, therefore, the earlier case was withdrawn.
Affected employers and their attorneys will not be receiving an additional notice of reinstatement but are invited to verify that their case has been reinstated by using the Public Disclosure System (PDS). Users can access the PDS at http://pds.pbls.doleta.gov/ or by clicking on the “Check Backlog Case Status” link on DOL’s Backlog Centers’ Web page (http://www.foreignlaborcert.doleta.gov/times.cfm). Once the PDS Web page is open, users should enter the 10-digit case number, which begins with a “D” if the case is located in the Dallas BEC or “P” if the case is in the Philadelphia BEC. (Some cases may have had case numbers staring with “T” before data entry was completed at a BEC. All such cases have since been converted and now begin with either “D” or “P,” which should be used for case status checks on the PDS.) After entering the case number, the search results show the current case status. Case status definitions are provided at the bottom of the PDS Web page.
A FAQ about the PDS is available at http://www.workforcesecurity.doleta.gov/foreign/pdf/backlog_faqs_09-11-06_pds.pdf.
Because verification will be available online, OFLC asks employers and attorneys not to contact the BECs regarding the status of such cases. The appropriate BEC will notify the employer or attorney if additional documentation is needed.
OFLC’s notice is posted at http://www.foreignlaborcert.doleta.gov/ (scroll down to “What’s New”).
4. SEVP Implements Five-Year Maximum Program Duration for J Professors and Research Scholars
The Student and Exchange Visitor Program (SEVP) Office has announced that SEVIS 5.4, implemented on November 17, 2006, contains the changes necessary to raise from three to five years the maximum duration of participation for J professors and research scholars, based on a regulation that was published in May 2005. SEVP noted that only exchange visitors administratively classified in a G-7 program will be able to submit a request for an extension beyond the maximum duration of participation of five years. The countdown of the five-year maximum duration begins with the program’s start date and ends five years later, provided that the sponsor does not end or terminate the exchange visitor’s SEVIS record. There is also a new two-year bar on repeat participation in the J professor and research scholar categories for those who complete program participation.
G-7 participants are those under the direct sponsorship of a federally funded national research and development center or a U.S. federal laboratory. These sponsors will be identified in SEVIS as G-7 to differentiate them from other J-1 sponsors. The Department of State directly contacts those sponsors eligible for G-7 classification; no request is necessary on the part of existing sponsors.
SEVP also noted that there has been ongoing discussion about incorporating the J-1 skills list into SEVIS but no decision has been made.
A related technical conference call report is posted at http://www.ice.gov/doclib/sevis/pdf/tech_con_call_qa_20061025.pdf. The May 2005 regulation is posted at http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-10020.htm. Additional information on changes in SEVIS 5.4 is posted at http://www.ice.gov/doclib/sevis/pdf/sevis_release_5_4_conference_slides.pdf. An implementation notice is posted at http://www.nafsa.org/_/Document/_/anticipated_sevis_release_2.pdf. Details about the changes, including information about how the five-year period is calculated and who is subject to the two-year bar, is posted at http://www.nafsa.org/regulatory_information.sec/get_sevis_information/nafsa_sevis_resources/information_on_sevis.
The Department of State initially announced that the effective date would be November 4, 2006 (see http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-18409.pdf), but implementation of SEVIS 5.4, which was necessary for the rule’s implementation, was delayed until November 17, 2006.
5. ‘Schedule A’ Immigrant Visa Numbers Used Up
The Department of State’s Visa Office announced in the latest Visa Bulletin that the 50,000 immigrant visa numbers provided for Schedule A workers have become “Unavailable” for December. The Schedule A worker category is shown in the December cut-off date table but will be removed from future listings.
Schedule A, Group I includes physical therapists and nurses. Schedule A, Group II includes aliens of exceptional ability in the sciences and arts (except performing arts).
The Visa Bulletin for December 2006 is posted at http://travel.state.gov/visa/frvi/bulletin/bulletin_3086.html.
6. USCIS Announces Case Processing Target Times
U.S. Citizenship and Immigration Services (USCIS) issued recent guidance to the field outlining case processing timeframes:
Rescheduling interviews: USCIS said interviews should be rescheduled at the individual’s request only when there are “compelling extenuating circumstances beyond the individual’s control,” and that the rescheduled interview should occur within 11 weeks of the initially scheduled interview.
Requests for Evidence (RFEs): USCIS noted that an RFE is a “single opportunity” for an individual to provide the requested information and an extension of the standard timeframe cannot be provided. On an application where the applicant could receive interim benefits, USCIS’s objective is to pre-screen the employment authorization document (EAD) and/or advance parole application, the underlying application, and any pending underlying petition within 10 days of filing to identify whether there is any missing initial evidence or required additional evidence. USCIS noted that finding such missing initial evidence or required additional evidence early affects the timing for eligibility for interim benefits (such as advance parole or work authorization).
When a case is missing initial evidence, the RFE stops the 90-day processing clock on the associated EAD and/or advance parole application. The clock starts over when USCIS receives a timely response to a request for required initial evidence. An RFE for additional evidence, however, only suspends the processing clock, which resumes, when USCIS receives a timely response, at the point where it had stopped.
When necessary evidence or information is identified at the interview and USCIS decides that a short-term (generally one to two weeks and no more than a month) opportunity to submit the materials is appropriate, it may be done as an extension of the interview. When more time is warranted, USCIS stated, it should be done as an RFE.
USCIS’s memorandum, which includes additional timeframes, is posted at http://www.uscis.gov/files/pressrelease/casemgmt.pdf.
7. USCIS Realigns Regional, District, Field Offices
U.S. Citizenship and Immigration Services (USCIS) announced on November 3, 2006, that it has realigned the management structure of the agency’s regional, district, and field offices. The realignment is intended to better balance workload and personnel among USCIS field offices but does not affect the locations of, or services offered by, local USCIS district offices.
As part of the realignment, USCIS will establish a new Southeast Regional office in Orlando, Florida, which will manage all district and field offices in the southeast region of the U.S. In Florida, the northern district will be based in Tampa and the southern district will be based in Miami. USCIS is also creating two new management districts in Sacramento, California, and Tampa, Florida.
The press release announcing the realignment is posted at http://www.uscis.gov/files/pressrelease/RealignNR_110306.pdf.
8. USCIS Revamps Web Site, Moves Many Pages
U.S. Citizenship and Immigration Services (USCIS) has replaced its Web site with a redesigned Web portal at the same Internet address (http://www.uscis.gov). Many USCIS Web pages that users have bookmarked have moved as a result of the redesign. USCIS’s Web portal is one of the most heavily trafficked Web sites in the federal government, serving an average of 135,000 visitors daily.
A fact sheet that lists the most frequently requested USCIS Web pages and their new addresses is posted at http://www.uscis.gov/files/pressrelease/WebFactSheet_110106.pdf. The revised Web site has many flaws, so not all pages on the prior Web site are available yet at the revamped site.
9. Many Venture Capital-Backed Start-Ups Founded by Immigrants, Study Finds
A new study published by the National Venture Capital Association analyzes the positive impact immigrant entrepreneurs and professionals have on the U.S. economy and job creation by starting and working for leading-edge companies in the U.S. Among other things, the study finds that of its 342 survey respondents, 47 percent of the founders of venture capital-backed private companies were immigrants. Almost two-thirds of these founders have started or intend to start more companies in the U.S. Most public and private venture-backed companies founded by immigrants were headquartered in California, and the top industry sectors for private immigrant-founded venture-backed companies were software, semiconductors, and biotechnology. The most common place of birth for the founders of both public and private venture-backed companies was India.
Interestingly, few of the immigrant entrepreneurs identified by the study came to the U.S. ready to start a company. Most entered either as children, teenagers, or graduate students, or were hired on H-1B visas to begin a first job while in their twenties, the study notes.
A key lesson of the study is the importance of an open legal immigration system. Although nearly all the immigrant founders of private companies would still start their companies in the U.S. if given the choice today, more than two-thirds of immigrant entrepreneurs agreed that U.S. immigration policy has made it more difficult than in the past to start a business in the U.S.
Nearly two-thirds of company respondents who use H-1B visas said that current U.S. immigration laws affecting skilled professionals harm American competitiveness, and one-third of privately held venture-backed companies said the lack of H-1B visas had influenced their firm’s decision to place more personnel abroad.
The study, “American Made: The Impact of Immigrant Entrepreneurs and Professionals on U.S. Competitiveness,” is posted at http://www.nvca.org/pdf/AmericanMade_study.pdf.
10. Uptick in Foreign Student Enrollments Reported
NAFSA: Association of International Educators announced on November 13, 2006, that although overall foreign student enrollments at U.S. higher education institutions are down by more than 20,000 from the all-time high of the 2002 academic year, 52 percent of institutions surveyed reported an increase in foreign student enrollments this year as compared to last. Among responding institutions with the largest foreign enrollments, 73 percent reported an increase this year. NAFSA CEO and Executive Director Marlene Johnson said, “While the latest numbers are cause for optimism that the troubling declines of the last several years may be headed toward a recovery, the United States has a lot of work to do to restore its competitiveness for international students and scholars.”
NAFSA also estimated that foreign students and their families spent $13.49 billion in the U.S. during the 2005-2006 academic year, including tuition and fees as well as living expenses. For details on foreign student spending, see http://www.nafsa.org/public_policy.sec/international_education_1/the_economic_benefits.
NAFSA’s announcement about the survey results is posted at http://www.nafsa.org/press_releases.sec/press_releases.pg/06enrollsurveyrel. The full survey report and analysis conducted by a variety of higher education associations are available at http://opendoors.iienetwork.org/page/Fall2006Survey/.
11. U.S. ‘World’s Worst’ for Entry Hassles, Survey Finds
The Discover America Partnership, a travel industry initiative, has released the results of a survey finding that foreign travelers, by a two-to-one margin, named the U.S. as the “world’s worst” for obtaining a visa and entering the country. On the positive side, a majority had an “extremely favorable” experience in the U.S. once they got past the initial hurdles.
Of 2,011 travelers interviewed outside the U.S., 36 percent said they did not want to come to the U.S. because of fears of detention or delay. A full 40 percent said they tried but failed to obtain a visa within the previous two years.
More information and links, including the survey findings and audio of a related conference call, are posted at http://www.poweroftravel.org/release-11-20-06.aspx.
12. USCIS Launches Pilot Test for New Naturalization Exam
U.S. Citizenship and Immigration Services (USCIS) announced on November 30, 2006, the release of 144 questions and answers for a pilot test intended to help the agency revise the naturalization exam. USCIS will administer the pilot exam in early 2007 to about 5,000 volunteer citizenship applicants in 10 U.S. cities. USCIS Director Emilio Gonzalez explained that the agency wants to deemphasize the rote memorization of facts. The pilot test includes new questions that focus on the concepts of democracy and the rights and responsibilities of citizenship. To draft the new exam questions, USCIS worked with a variety of stakeholders, including history and government scholars, immigrant advocacy groups, citizenship instructors, district adjudications officers, and English as a second language experts.
USCIS plans to work out any problems that are revealed by the pilot test and refine the exam before it is fully implemented nationwide in 2008. When finalized, the exam will have 100 questions but the range of acceptable answers will increase. USCIS also will soon release a new “civics-based vocabulary” to help applicants study for the reading and writing portions of the test.
The announcement is available at http://www.uscis.gov/files/pressrelease/NatzTestQs113006.pdf. A fact sheet is posted at http://www.uscis.gov/files/pressrelease/FactSheetNatzTest113006.pdf. To view the actual pilot exam questions, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=dcf5e1df53b2f010VgnVCM1000000ecd190aRCRD.
13. Recent News from ABIL Members
Stephen Yale-Loehr (https://www.abil.com/lawyers-loehr.htm) was interviewed recently by the Associated Press about a recently disclosed Department of Homeland Security data-mining and terrorist/criminal risk-assessment scoring system, the Automated Targeting System (ATS). Under ATS, collected data on travelers may be shared with foreign, federal, or state governments for many purposes, including hiring decisions, security clearances, licensing, contracting, or other benefits. “Everybody else can see [the data], but you can’t,” he noted.
The full text of the article is posted at http://news.yahoo.com/s/ap/20061201/ap_on_go_ca_st_pe/traveler_screening. The DHS’s privacy impact statement for ATS is available at http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_cbp_ats.pdf.