News from the Alliance of Business Immigration Lawyers Vol. 6, No. 5B • May 15, 2010
1. Can Immigration Law Be REPAIRed? Some Senators Think So – Under the Democrats’ REPAIR (Real Enforcement with Practical Answers for Immigration Reform) proposal, a green card would be available immediately to foreign students with an advanced degree from a U.S. institution in a field of science, technology, engineering, or mathematics with an offer of employment from a U.S. employer in a related field.
2. USCIS Redesigns Green Card – USCIS will replace green cards already in circulation as individuals apply for renewal or replacement.
3. State Dept. Proposes Expanded Safety Measures for Secondary School Exchange Programs – Calling for an accelerated timetable for the proposed rule and the comment period, the Department noted that a number of recent incidents with respect to student placement and oversight demand immediate attention.
4. USCIS Extends TPS Designations for Honduras, Nicaragua – The extension of the TPS designation of both countries is effective July 6, 2010, and will remain in effect through January 5, 2012; the re-registration period ends on July 6, 2010.
5. Recent News From ABIL Members – Recent News From ABIL Members
6. Government Agency Links – Government Agency Links
1. Can Immigration Law Be REPAIRed? Some Senators Think So
Several Democratic senators recently announced a 26-page “framework of concrete bipartisan ideas” for immigration reform, called REPAIR (Real Enforcement with Practical Answers for Immigration Reform). The proposal by Sens. Harry Reid (D-Nev.), Richard Durbin (D-Ill.), Charles Schumer (D-N.Y.), Patrick Leahy (D-Vt.), Dianne Feinstein (D-Cal.), and Robert Menendez (D-N.J.), calls for increasing enforcement, border security, and verification resources and efforts, along with expanded employment measures. Under the proposal, a green card (permanent residence) would be “immediately available” to foreign students with an advanced degree from a U.S. institution in a field of science, technology, engineering, or mathematics who has an offer of employment from a U.S. employer in a related field. To address the fact that “workers from some countries face unreasonably long backlogs that have no responsiveness to America’s economic needs,” the proposal eliminates the per-country employment immigration caps. Also, the EB-5 program would be made permanent and adapted to increase foreign investment in the U.S.
Among other things, the proposal would create a new “BELIEVE” (Biometric Enrollment, Locally-stored Information, and Electronic Verification of Employment) system and a provisional H-2C visa for nonseasonal, nonagricultural workers. Workers in the H-2C program would be permitted to earn lawful permanent residence if they met “sufficient integration metrics to demonstrate that they have successfully become part of the American economy and society.”
The proposal would amend current law regarding H-1B employer application requirements to: (1) revise wage determination requirements; (2) require Internet posting and description of employment positions; (3) increase U.S. worker displacement protections; (4) apply certain requirements to all H-1B employers rather than just to H-1B dependent employers; (5) prohibit employer advertising that makes a position available only to, or gives priority to, H-1B nonimmigrants; and (6) limit the number of H-1B and L-1 employees that an employer of 50 or more workers in the U.S. may hire. The proposal also would authorize the Department of Labor to investigate applications for fraud, and conduct H-1B compliance audits.
“I say to my Republican colleagues, work with us to fix this broken system, don’t just say no,” Sen. Reid pleaded. Although Senate Democrats called the outline bipartisan, Republicans criticized the proposal. Sens. Lindsey Graham (R-S.C.) and Jon Kyl (R-Ariz.) said in a statement that “Congress should focus on border security first.” Rep. John Boehner (R-Ohio) called the proposal a “cynical ploy to try to engage voters, some segment of voters, to show up in this November’s elections.”
House Speaker Nancy Pelosi (D-Cal.) said, “If there is going to be any movement in this regard, it will require presidential leadership.” President Barack Obama was quoted as saying that there may “not be an appetite” to pass immigration reform in Congress this year.
The proposal is available at http://media.washingtonpost.com/wp-srv/politics/documents/REPAIRProposal.pdf?sid=ST2010042905051.
2. USCIS Redesigns Green Card
U.S. Citizenship and Immigration Services (USCIS) announced on May 11, 2010, that it has redesigned the Permanent Resident Card, commonly known as the green card, to incorporate several major new security features. The card will be colored green.
The redesigned card includes optical media to store biometrics identification data; and holographic images, laser engraved fingerprints, and high-resolution micro-images intended to make the card “nearly impossible” to reproduce. Tighter integration of the card design with personalized elements is intended to make it difficult to alter the card if stolen. Radio Frequency Identification (RFID) capability will allow Customs and Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data. A preprinted return address will enable the easy return of a lost card to USCIS.
USCIS said it will replace green cards already in circulation as individuals apply for renewal or replacement.
USCIS’s announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=79bd3893c4888210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A fact sheet is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=34233893c4888210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ab8c3893c4888210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A brief history of the green card, including how it became known as the “green card” and the various color and other changes throughout its history, is available at http://www.aila.org/content/default.aspx?docid=3460.
3. State Dept. Proposes Expanded Safety Measures for Secondary School Exchange Programs
The Department of State (DOS) has proposed new program administration requirements for the secondary school student exchange program. The proposed regulations govern DOS-designated exchange visitor programs under which foreign secondary school students (ages 15 to 18½) may study in the U.S. at accredited public or private secondary schools for an academic semester or an academic year while living with American host families or residing at accredited U.S. boarding schools. The Department proposes to amend existing regulations regarding the screening, selection, school enrollment, orientation, and quality assurance monitoring on behalf of student participants; and the screening, selection, orientation, and quality assurance monitoring of host families and field staff.
Via the proposed rule, DOS is soliciting public comments regarding these proposed changes, which the agency said are intended “to address the need for greater clarity in current existing regulatory language,” and “to better protect the health, safety, and welfare of these participants [through] enhanced clarity of existing regulations.” Due to the academic calendar and the screening and selection cycle for the secondary school student program, the comment period of this proposed rule has been set at 30 days, ending on June 2, 2010.
“Concerns regarding the safety and welfare of [the] secondary school student population necessitate a shorter comment period,” DOS said. “To provide sponsors with sufficient time to prepare for implementation of changes in program administration to be effective in the academic year 2011/2012, the Department would like to accelerate this rulemaking.”
DOS noted that although a majority of the Department’s nearly 28,000 annual exchanges of secondary school students result in positive experiences for both the exchange students and the U.S. host families, a number of recent incidents with respect to student placement and oversight “demand the Department’s immediate attention.”
Without elaborating on the incidents, DOS outlined 16 measures that the agency believes will enhance the safety and welfare of foreign secondary school students studying in the U.S. The measures include requiring photographs of potential host family homes; personal character references for host family applicants; confirmation of host family incomes by program sponsors using objective information; and expanding background checks of adult host family members to include a Federal Bureau of Investigation (FBI)-based criminal background check and a check of the National Sex Offender Registry.
DOS noted that Congress’s Child Safety Pilot Program, which provides youth-serving volunteer organizations with access to the FBI’s criminal history database, has found that of the nearly 69,000 volunteers screened during the pilot, more than 6 percent had criminal records of concern, and more than 41 percent of those with criminal records of concern had committed crimes in states other than where they were applying to volunteer, meaning that only a nationwide check would have caught those records.
The proposed rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-10168.pdf.
4. USCIS Extends TPS Designations for Honduras, Nicaragua
U.S. Citizenship and Immigration Services (USCIS) announced on May 5, 2010, that temporary protected status (TPS) designations for Honduras and Nicaragua would be extended for 18 months. The extension of the TPS designation of both countries is effective July 6, 2010, and will remain in effect through January 5, 2012. The 60-day re-registration period began May 5, 2010, and will remain in effect until July 6, 2010.
Re-registration is limited to persons who previously registered for TPS under the previous designations and whose applications have been granted or remain pending. Certain nationals of Honduras and Nicaragua (or those having no nationality who last habitually resided in those countries) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions. New employment authorization documents (EADs) with a January 5, 2012, expiration date will be issued to eligible TPS beneficiaries who timely re-register and apply for EADs.
Given the timeframes involved with processing TPS re-registration applications, USCIS noted that all re-registrants may not receive new EADs until after their current EADs expire on July 5, 2010. Accordingly, USCIS is automatically extending the validity of EADs issued under the TPS designation of Nicaragua for 6 months, through January 5, 2011, and the notices explain how TPS beneficiaries and their employers may determine which EADs have been automatically extended.
The Honduras TPS extension notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-10620.pdf. The Nicaraguan TPS extension notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-10619.pdf. USCIS Q&A’s are available for Honduras at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5b66ec90d8668210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD and for Nicaragua at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=69c3ec90d8668210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. Guidance on late initial registration is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=867c46d56a388210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.
5. Recent News From ABIL Members
Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) was quoted in the May 4, 2010, edition of PolitiFact.com in an article about the new Arizona immigration law. Mr. Yale-Loehr noted that the new law’s expansion to municipal ordinances gives local police “virtual carte blanche to ask for documentation,” because minor or suspected violations can now open the door to questions about a person’s immigration status. The article is available at http://www.politifact.com/truth-o-meter/statements/2010/may/04/kyrsten-sinema/under-arizona-immigration-law-overgrown-lawns-bark/.
Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) was quoted in the May 7, 2010, edition of the New York Times. Commenting on cases of undocumented Army spouses at risk of removal from the U.S., Mr. Kuck noted, “We have made it impossible for many illegal immigrants to become legal.” The article is available at http://www.nytimes.com/2010/05/08/us/08soldier.html?scp=1&sq=kuck&st=cse.
Katie Malyon (bio: https://www.abil.com/lawyers/lawyers-malyon.cfm) was invited to speak at a conference organized by the peak national employer lobby group, Australian Industry Group, on the interface between 457 visas and the new Fair Work Act. Other speakers at the two-day conference included the Minister for Employment, Education and Workplace Relations, Julia Gillard; the Shadow Minister, Senator Abetz; and newly elected President of the Australian Council of Trade Unions, Ged Kearney.
Ms. Malyon’s firm, Katie Malyon & Associates, was named recently in the Australian publication Business Review Weekly as one of the 100 fastest growing businesses in Australia in the last five years.
6. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do
Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm
Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html