Headlines:

1. H-1B Update: FY 2010 Filing Starts April 1 – USCIS has put in place a five-day window for H-1B filings if the agency receives 65,000 or more applications within the first five business days in April.

2. H-2A/H-2B: DOL Withdraws Interpretation of FLSA On Relocation Expenses – The interpretation said that the FLSA and its implementing regulations do not require employers to reimburse workers under the H-2A and H-2B programs for relocation expenses even when such costs result in the workers being paid less than the minimum wage.

3. H-2B Limits Hurting Maryland Crab Industry – Approximately 150 Chesapeake Bay-area watermen and representatives of related industries met with Maryland’s First District Congressman Frank Kratovil (D-Md.) to discuss the problem.

4. E-Verify, EB-5, Religious Worker and Conrad 30 Programs Extended to September 30 – Congress has extended four immigration programs through September 30, 2009.

5. Illinois E-Verify Statute Struck Down as Unconstitutional – Illinois cannot “dictate to Congress the standards that federal programs must meet.”

6. White House Extends Deferred Enforced Departure for Liberians – The previous DED grant expired on March 31, 2009; DED has been extended for 12 months.

7. Court Allows Concurrent Filings for Religious Workers – The U.S. District Court for the Western District of Washington ruled, in Ruiz-Diaz v. U.S., that a USCIS regulation is “unreasonable and impermissible.”

8. Some Visa Categories Retrogress in April; Cut-Off Dates May Slow – The employment third preference Other Worker cut-off date has been retrogressed for all countries in order to hold the issuance level within the annual limit.

9. New I-9 Form Goes Into Effect – The new form, which is going into effect April 3, 2009, reflects the Department of Homeland Security’s amended regulations.

10. New Publications and Items of Interest – New Publications and Items of Interest

11. Recent News from ABIL Members – Recent News from ABIL Members

12. Government Agency Links – Government Agency Links

Details:

1. H-1B Update: FY 2010 Filing Starts April 1

U.S. Citizenship and Immigration Services (USCIS) has announced that it is accepting fiscal year (FY) 2010 H-1B applications starting on April 1, 2009. In recent years, H-1B numbers have been used up on the first day of the filing period, which has led to more and more applications being filed in a rush. To alleviate difficulties caused by so many H-1B applications being filed on the same day, USCIS has put in place a five-day window for FY 2010 H-1B filings if the agency receives 65,000 or more H-1B applications within the first five business days in April, ending April 7, 2009. This means that if that situation occurs, the selection process (“lottery”) will be based on petitions received during all of the five days, and the receipt date for all of those cases likely will be the same: April 8, 2009.

Exempt from the 65,000 cap are those who: (1) are employed at, or have received offers of employment from, an institution of higher education, or a related or affiliated nonprofit entity; (2) are employed at, or have received offers of employment from, a nonprofit research organization or a governmental research organization; or (3) have earned a master’s or higher degree from a U.S. institution of higher education. There is a 20,000 cap on master’s degree exemptions.

The following are highlights of recent H-1B developments:

Interim final rule. USCIS issued an interim final rule effective March 24, 2008, governing petitions filed on behalf of workers subject to the annual numerical limitations applicable to the H nonimmigrant classification. This rule provides that USCIS will include petitions filed on all of those first five business days in the random selection process if USCIS receives a sufficient number of petitions to reach the applicable numerical limit (including limits on exemptions) on any one of the five business days on which USCIS may accept petitions. USCIS has determined that a filing period of five business days is sufficient to account for a wider range of mail delivery times offered by the various mail delivery providers available to the public.

This rule also provides that if both the 65,000 and 20,000 caps are reached within the first five business days available for filing H- 1B petitions for a given fiscal year, USCIS must first conduct the random selection process for petitions subject to the 20,000 cap on master’s degree exemptions before it may begin the random selection process of petitions to be counted toward the 65,000 cap. After conducting the random selection for petitions subject to the 20,000 cap, USCIS then must add any non-selected petitions to the pool of petitions subject to the 65,000 cap and conduct the random selection process for this combined group of petitions. Therefore, those petitions that otherwise would be eligible for the master’s degree exemption that are not selected in the first random selection will have another opportunity to be selected for an H-1B number in the second random selection process. This rule also clarifies that those petitions not selected in either random selection will be rejected.

To ensure the fair and equitable distribution of cap numbers, the interim rule also precludes a petitioner (or its authorized representative) from filing, during the course of any fiscal year, more than one H-1B petition on behalf of the same beneficiary if such person is subject to the 65,000 cap or qualifies for the master’s degree exemption. USCIS said it recognizes that, on occasion, an employer may extend the same worker two or more job offers for distinct positions and therefore have a legitimate business need to file two or more separate H-1B petitions on behalf of the same person. This rule precludes this practice if the beneficiary is subject to the numerical limitations or qualifies for the master’s degree exemption.

In cases where USCIS does not discover that duplicative or multiple petitions were filed until after approving them, the rule also provides that USCIS may revoke all such petitions if they were approved after this rule becomes effective.

The rule does not, however, preclude related employers from filing petitions on behalf of the same worker. USCIS said it recognizes that an employer and one or more related entities (such as a parent, subsidiary, or affiliate) may extend the same worker two or more job offers for distinct positions and therefore have a legitimate business need to file two or more separate H-1B petitions on behalf of the same person.

For example, USCIS noted, a Fortune 500 company may be the parent company of numerous U.S.-based subsidiaries whose business is to engage in either the food, beverage, or snack industries. Each line of business may, in turn, be divided into several business units and operate distinct companies (e.g., restaurant, bottled beverage plant, cereal manufacturer) with different EIN numbers and addresses. Although all the subsidiaries are ultimately related to the parent company through corporate ownership, this rule does not prohibit different subsidiaries from filing one H-1B petition each on behalf of the same worker so long as each employer/subsidiary has a legitimate business need to hire the worker for a position within that subsidiary’s corporate structure. Thus, in this example, if the bottled beverage plant owned by the Fortune 500 company and the cereal manufacturing company owned by the same Fortune 500 company are each in need of the services of a Chief Financial Officer, both may file one petition each on behalf of the same worker. A subsidiary should not file an H-1B petition for a worker just to increase the person’s chances of being selected for an H-1B number where that subsidiary has no legitimate need to employ the worker and is, instead, only filing a petition to facilitate the worker’s hiring by a different, although related, subsidiary.

The interim final rule is available at http://edocket.access.gpo.gov/2008/pdf/E8-5906.pdf.

USCIS issued a notice about the FY 2010 H-1B cap and filing period at http://www.uscis.gov/files/article/H-1B_Filing_20mar2009.pdf. A related Q&A document is available at http://www.uscis.gov/files/article/H-1B_filing_qa_20mar2009.pdf.

H-1B employers receiving TARP funding. Meanwhile, USCIS has announced additional H-1B requirements for employers receiving Troubled Asset Relief Program (TARP) funding before hiring H-1B specialty occupation workers. The new “Employ American Workers Act” (EAWA), signed into law by President Obama as part of the American Recovery and Reinvestment Act on February 17, 2009, was enacted to ensure that companies receiving covered funding do not displace U.S. workers. Under this legislation, any company that has received covered funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.” All H-1B dependent employers must make additional attestations to the Department of Labor (DOL) when filing the Labor Condition Application (LCA).

EAWA applies to any LCA and/or H-1B petition filed on or after February 17, 2009, involving any employment by a new employer, including concurrent employment and regardless of whether the beneficiary is already in H-1B status. The EAWA also applies to new hires based on a petition approved before February 17, 2009, if the H-1B employee had not started working before that date.

EAWA does not apply to H-1B petitions seeking to change the status of a beneficiary already working for the employer in another work-authorized category. It also does not apply to H-1B petitions seeking an extension of stay for a current employee with the same employer.

The USCIS notice is available at http://www.uscis.gov/files/article/H-1B_TARP_20mar2009.pdf. USCIS has issued a related Q&A document at http://www.uscis.gov/files/article/H-1B_TARP_qa_20Mar2009.pdf.

Revised Form I-129. USCIS has revised Form I-129, Petition for Nonimmigrant Worker, to include a question asking whether the petitioner has received covered funding. USCIS has posted this form at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f56e4154d7b3d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD.

While USCIS encourages petitioners, whenever possible, to use the most up-to-date form, the agency said it will not require use of the revised form in time for the start of the filing period for fiscal year 2010. However, USCIS urges H-1B petitions who have already prepared packages for mailing using the previous Form I-129 (January 2009 version) to complete only the page in the revised version of the Form I-129 (March 2009) that has the new question on EAWA attestation requirements and to file this single page with the prepared package. The single page referenced is the first page on the H-1B Data Collection and Filing Fee Exemption Supplement.

USCIS reminds petitioners that a valid LCA must be on file with DOL at the time the H-1B petition is filed with USCIS. This means that if the petitioner indicates on its petition that it is subject to the EAWA, but the LCA does not contain the proper attestations relating to H-1B dependent employers, USCIS will deny the H-1B petition.

Meanwhile, Bank of America has withdrawn many job offers to MBA students graduating from U.S. business schools because of the H-1B limitation on TARP funding. About a third of MBA students at leading U.S. schools who go into finance and banking jobs come from outside the U.S. David Schmittlein, dean of MIT’s Sloan School of Management, worried that “[t]here might be an inclination for people from around the world to vote with their feet.”

H-1B success stories. The American Immigration Lawyers Association is collecting examples of the important contributions made by H-1B workers. If you have any such examples, please e-mail them to H-[email protected].

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2. H-2A/H-2B: DOL Withdraws Interpretation of FLSA On Relocation Expenses

Effective March 26, 2009, the Department of Labor (DOL or the Department) withdrew an interpretation of the Fair Labor Standards Act (FLSA) published on December 18 and 19, 2008. The interpretation had said that the FLSA and its implementing regulations do not require employers to reimburse workers under the H-2A and H-2B nonimmigrant visa programs, respectively, for relocation expenses even when such costs result in the workers being paid less than the minimum wage. The Department withdrew this interpretation for further consideration and it “may not be relied upon as a statement of agency policy.”

The withdrawal notice, which was published in the Federal Register on March 26, 2009, is available at http://edocket.access.gpo.gov/2009/pdf/E9-6623.pdf.

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3. H-2B Limits Hurting Maryland Crab Industry

Many crab processing plants in Dorchester County, Maryland, may stay closed when the crabbing season opens on April 1, 2009, because crab-pickers from Mexico and Central America have been unable to get H-2B visas, according to reports. Approximately 150 Chesapeake Bay-area watermen and representatives of related industries recently met with Maryland’s First District Congressman Frank Kratovil (D-Md.) to discuss the problem.

Congressman Kratovil recently sent a letter, along with Senators Barbara Mikulski (D-Md.) and Benjamin Cardin (D-Md.), to the Departments of Labor and Homeland Security, that discussed the H-2B visa shortage’s effects on Maryland’s crab industry. Congressman Kratovil noted that “[a]llowing bureaucratic delays to [a]ffect an economy that is already hurting would do my constituents and their families an injustice and lead to further American job loss. Through no fault of their own, small businesses will not be able to employ the seasonal employees that they need to survive and prosper. Everything possible must be done to ensure local business have the workers they need to succeed, especially in the current environment.” Congressman Kratovil is an original co-sponsor of H.R. 1136, “Save Our Small Seasonal Businesses Act of 2009,” which would allow any H-2B temporary worker who came to the U.S. during at least one of the past three years to continue to qualify for temporary admission. The law also proposes a permanent extension of the H-2B program.

Jack Brooks, president of the Chesapeake Bay Seafood Industries Association, cited University of Maryland research that found that every H-2B temporary worker creates two-and-a-half jobs for shore residents.

The text of Rep. Kratovil’s letter is available at http://kratovil.house.gov/2009/01/mikulski-cardin-and-kratovil-to-feds-h2b-employers-need-your-help.shtml.

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4. E-Verify, EB-5, Religious Worker and Conrad 30 Programs Extended to September 30

Congress recently extended until September 30, 2009, four immigration programs: E-Verify, the EB-5 immigrant investor pilot program, the religious workers program and the Conrad State 30 program. The first two provisions were extended as part of the 2009 Omnibus Appropriations law in early March; the other two provisions were extended in a separate bill (H.R. 1127) in mid-March.

The E-Verify program allows employers to electronically verify the work eligibility of new workers. The EB-5 pilot program allows immigrant investors to invest in “regional centers” around the country and thereby obtain a green card. The religious workers program allows certain foreign religious workers to obtain green cards. The Conrad State 30 program allows certain foreign doctors to get a green card by working in medically underserved areas.

U.S. Citizenship and Immigration Services (USCIS) announced on March 12, 2009, that as a result of the extension of the EB-5 pilot program, USCIS will continue to receive, process, and adjudicate all Regional Center Proposals and Forms I-526, Immigrant Petitions by Alien Entrepreneur, and Forms I-485, Applications to Register Permanent Residence or Adjust Status, affiliated with EB-5 regional centers relying on “indirect” job creation analysis. Currently, there are 45 regional centers throughout the U.S.

The USCIS announcement is available at http://www.uscis.gov/files/article/EB-5_12mar09.pdf.

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5. Illinois E-Verify Statute Struck Down as Unconstitutional

The U.S. District Court for the Central District of Illinois has overturned a statute enacted by Illinois that prohibited employers from enrolling in any employment eligibility verification systems “until the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases are able to make a determination on 99% of the tentative nonconfirmation notices issued to employers within 3 days, unless otherwise required by federal law.”

The court said that Illinois’s statute “frustrates Congress’ purpose by prohibiting Illinois employers from participating in the Federal Program unless the Federal Program meets Illinois’ standard for accuracy and speed.” Illinois cannot “dictate to Congress the standards that federal programs must meet, the court said, noting that “this clearly frustrates the Congressional purpose of making the Federal Program available to all employers. The Illinois Act is invalid under the Supremacy Clause.”

Illinois had argued that its statute did not frustrate the federal verification program because Congress had established it as a test program, and the federal government has been able to test the program for years. “This is no answer,” said the court. “Even if Congress established the Federal Program as a test program, Congress is entitled to set the terms of the testing and the length of testing, not Illinois. Congress determined that all employers in the fifty states would be allowed to participate. Illinois cannot say no, or require the federal government to meet Illinois’ standards.”

The court concluded: “Section 12(a) of Illinois Public Act 95-138 is hereby declared to be invalid in violation of the Supremacy Clause of the United States Constitution, and the State of Illinois is permanently enjoined from enforcing this invalid act. All pending motions are denied as moot.”

The case is available at http://op.bna.com/dlrcases.nsf/id/jcwl-7q9mhj/$File/United%20States%20v.%20Illinois%20Op.pdf.

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6. White House Extends Deferred Enforced Departure for Liberians

On March 20, 2009, the White House issued a memorandum deferring for 12 months the removal of any eligible Liberian national, or person without nationality who last habitually resided in Liberia, who is present in the U.S. and who is under a grant of deferred enforced departure (DED) as of March 31, 2009. The previous DED grant expired on March 31, 2009.

The memorandum is available at http://www.whitehouse.gov/the_press_office/Presidential-Memorandum-Regarding-Deferred-Enforced-Departure-for-Liberians/. A related Q&A document is available at http://www.uscis.gov/files/article/Liberiaqa_26mar2009.pdf.

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7. Court Allows Concurrent Filings for Religious Workers

The U.S. District Court for the Western District of Washington recently ruled, in Ruiz-Diaz v. United States, that a U.S. Citizenship and Immigration Services (USCIS) regulation is “unreasonable and impermissible.” The challenged regulation, 8 CFR § 245.2(a)(2)(i)(B), permits some people to file a visa petition and an application for adjustment of status concurrently while requiring others, including religious workers, to wait until USCIS has approved the employer’s visa petition before filing their application for adjustment of status. The court found that “the Attorney General does not have discretion to choose who is eligible to apply for adjustment of status (that determination having been made by Congress), to interpret the same statutory provision in different ways depending on the classification of the applicant, or to waive a statutory requirement. Defendants may not, therefore, reject or refuse to accept plaintiffs’ applications for adjustment of status based on the regulation barring religious workers from concurrent filing.”

The court did not evaluate the constitutionality of the regulation or its validity under the Religious Freedom Restoration Act.

Ruiz-Diaz potentially provides religious workers who have filed I-360 petitions with the ability to concurrently file adjustment of status applications. This would allow religious workers whose underlying R visa status is expiring (the R is valid for five years) to remain in the U.S. as adjustment of status applicants. At present, the I-360 approval process is lengthy, after which point the religious worker can file an adjustment application, due to the need to conduct a site investigation on each filing.

The case is available at http://www.scribd.com/doc/13628825/RuizDiazvUS309.

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8. Some Visa Categories Retrogress in April; Cut-Off Dates May Slow

Because of high adjustment of status demand, the Department of State said it has been necessary to retrogress the April employment third preference cut-off dates in an attempt to hold demand within the fiscal year (FY) 2009 annual limit. Because over 60 percent of the Worldwide and Philippines employment third preference demand received this year by U.S. Citizenship and Immigration Services has been for applicants with priority dates before January 1, 2004, the cut-off date has been retrogressed to March 1, 2003, to help ensure that future demand is reduced significantly. This cut-off date applies immediately. Further retrogression or unavailability at any time cannot be ruled out.

The Department noted that it has also been necessary to retrogress the employment third preference Other Worker cut-off date for all countries to hold the issuance level within the annual limit.

During the past year, many preference categories have experienced steady and sometimes rapid cut-off date movement. Such action is normally followed by an increase in applicant demand. Heavy applicant demand for numbers in some categories could require cut-off date movements to slow, stop, or even retrogress at some point during the remainder of FY 2009, the Department said, to hold visa use within the applicable annual numerical limits. Should such action occur, it would most likely be only temporary in nature, pending the start of the new fiscal year in October.

The Visa Bulletin for April 2009 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4438.html.

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9. New I-9 Form Goes Into Effect

The new I-9 Employment Eligibility Verification Form (I-9) is available at http://www.uscis.gov/files/form/I-9_IFR_02-02-09.pdf. The new form, which is going into effect April 3, 2009, reflects the Department of Homeland Security’s amended regulations governing the types of acceptable documents and receipts that employees may present to their employers for employment authorization verification.

An updated version of the I-9 Handbook for Employers also has been released. The new Handbook includes instructions on completing the form. The handbook is available at http://www.uscis.gov/files/nativedocuments/m-274_3apr09.pdf.

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10. New Publications and Items of Interest

Updated I-9 handbook. U.S. Citizenship and Immigration Services has released an updated Handbook for Employers that includes instructions on completing the Employment Eligibility Verification Form (I-9), along with the form. The handbook is available at http://www.uscis.gov/files/nativedocuments/m-274_3apr09.pdf.

EB-5 recommendations. U.S. Citizenship and Immigration Services’ Ombudsman has released recommendations for the EB-5 immigrant visa. Congress allocates approximately 10,000 immigrant visas per year to the EB-5 category (including derivative visas for the spouses and minor children of investors), although fewer than 1,000 visas are used annually. The ombudsman said this underutilization is caused by a confluence of factors, including program instability, the changing economic environment, and more inviting immigrant investor programs offered by other countries.

The ombudsman’s recommendations included, among other things, (1) finalizing regulations to implement a 2002 EB-5 law that offers a certain subgroup of EB-5 investors a pathway to cure deficiencies in their previously submitted petitions; (2) offering a “Special Handling Package” option to EB-5 investors for faster adjudication of Forms I-526, I-829, and related applications for a higher fee; and (3) prioritizing the review and processing of all regional center EB-5 related petitions and applications to foster the immediate creation and preservation of jobs.

The report is available at http://www.dhs.gov/xlibrary/assets/CIS_Ombudsman_EB-5_Recommendation_3_18_09.pdf.

REAL ID implementation. The Department of Homeland Security’s Office of Inspector General (OIG) released a new report in March 2009, “Potentially High Costs and Insufficient Grant Funds Pose a Challenge to REAL ID Implementation.” The Inspector General found that many state officials considered REAL ID implementation costs prohibitive because of requirements such as the reenrollment of all current driver’s license and identification card holders and the new verification processes.

Further, state officials in 17 of the 19 states the OIG contacted said they needed more timely guidance from the Department of Homeland Security (DHS) to estimate the full cost of implementing REAL ID. State officials also said that REAL ID grants did not sufficiently mitigate the costs, and they viewed as ineffective communication of grant information by DHS.

The OIG recommended that the DHS Assistant Secretary for Policy (1) ensure that DHS develops and disseminates necessary guidance related to the REAL ID card marker, facility security, verification systems, and best practices that would assist stakeholders in implementing REAL ID; and (2) establish a communications plan to ensure that stakeholders receive the necessary REAL ID program and grant guidance.

The report is available at http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_09-36_Mar09.pdf.

Entrepreneurs returning to home countries. The Kauffman Foundation has released a study by Harvard professor Vivek Wadhwa, “America’s Loss Is the World’s Gain: America’s New Immigrant Entrepreneurs, Part IV.” The report notes that a substantial number of highly skilled immigrants have begun returning to their home countries after studying and/or working in the U.S. Most returnees originally came to the U.S. for professional and educational development opportunities, and the majority of returnees cited career and quality of life as the main reasons to return to their home countries rather than stay in the U.S. Many cited opportunities to start businesses in their home countries that they felt were better than those in the U.S., as well as family considerations. Many returnees considered care for aging parents to be much better in their home countries, for example. For more information on this report, see http://www.kauffman.org/newsroom/united-states-losing-immigrants-who-spur-innovation-and-economic-growth.aspx.

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11. Recent News from ABIL Members

On Tuesday, April 7, 2009, Steve Garfinkel (bio: https://www.abil.com/lawyers/lawyers-garfinkel.cfm) will provide an immigration law update at the Spring Conference of the Personnel Administrators of North Carolina (http://www.pancweb.org) in Wilmington, North Carolina.

Charles H. Kuck (https://www.abil.com/lawyers/lawyers-kuck.cfm) co-authored an article, “Unauthorized Practice of Immigration Law in the Context of Supreme Court’s Decision in Sperry v. Florida,” which was published recently in the William Mitchell Law Review, Vol. 35, Issue 1.

On April 2, 2009, Steve Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) will speak on a panel on immigration law issues affecting international law students as part of the annual conference of the NALP: Association for Legal Career Professionals in Washington, DC.

On April 21, 2009, Mr. Yale-Loehr will lead a seminar on EB-5 immigrant investor issues for members of the American Immigration Lawyers Association at the Grand Hyatt Hotel in New York City.

Steve Clark (bio: https://www.abil.com/lawyers/lawyers-clark.cfm) addressed the Suffolk University Law School seminar on advanced immigration strategies on March 6, 2009. Mr. Clark discussed strategies for dealing with PERM labor certifications where the employer has had layoffs, responding to Requests for Evidence involving L-1B specialized knowledge petitions and I-140 employment-based petitions involving porting to a new job where the initial employer has ceased operations.

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12. 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/jsps/ptimes.jsp

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

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Headlines:

1. Prepare Early for H-1B Lottery – The Alliance of Business Immigration Lawyers recommends contacting your ABIL member now to begin preparing your H-1B strategy and paperwork.

2. New I-9 Form Available, USCIS Delays Change in List of Acceptable Documents – The new form reflects the DHS’s amended regulations governing the types of acceptable documents and receipts that employees may present to verify their work authorization.

3. Rule Requiring Contractors to Use E-Verify Suspended Again, Until May 21 – The U.S. Chamber of Commerce said the federal government agreed to its request to postpone until May 21, 2009, implementation of the rule requiring federal contractors to use E-Verify.

4. Several Visa Categories Show Movement in February – Some categories advanced by several months; others retrogressed.

5. VWP Travelers Must Apply for Security Clearance Online – All eligible travelers who wish to travel under the VWP must apply for authorization using the Electronic System for Travel Authorization.

6. DHS Announces VWP for Guam-Commonwealth of the Northern Mariana Islands – The revised Guam-CNMI VWP allows visa-free entry beginning June 1, 2009, for nonimmigrant visitors from eligible countries to Guam and the CNMI for business or leisure travel, and extends visiting time from 15 to 45 days.

7. USCIS Reaches H-2B Cap for Second Half of Fiscal Year 2009 – USCIS announced on January 7, 2009, that it had received a sufficient number of petitions to reach the cap for new H-2B worker petitions requesting employment start dates before October 1, 2009.

8. EB-5 Immigrant Investor Filing Location Changes – Petitions and applications related to the entrepreneur (EB-5) immigrant classifications and Regional Center proposals under the EB-5 immigrant investor pilot program must be filed at the California Service Center.

9. New Forms Required for H-2A and H-2B Programs – In conjunction with regulations that went into effect in January 2009 for the H-2A and H-2B programs, the Department of Labor has created new forms to collect the necessary information from employers applying for labor certifications and prevailing wage determinations.

10. Attorney General Finds No Right To Effective Counsel in Removal Proceedings – But the Board of Immigration Appeals or an immigration judge may reopen removal proceedings in extraordinary cases.

11. USCIS Comments on L-1B Intracompany Transferee Denials – The current standard used by USCIS adjudicators requires more than “just working for a company overseas for a year,” USCIS said.

12. ABIL GLOBAL – Current immigration news regarding a specific country each month.

13. New Publications and Items of Interest – New Publications and Items of Interest

14. Recent News from ABIL Members – Recent News from ABIL Members

15. Government Agency Links – Government Agency Links

Details:

1. Prepare Early for H-1B Lottery

Every year, there is a mad scramble for available H-1B visa numbers. As many companies are aware, often they are gone in a single day following a random “lottery” run by U.S. Citizenship and Immigration Services in early April. There are many more applicants than available numbers.

U.S. Citizenship and Immigration Services reportedly plans to issue a rule in the spring or summer of 2009 to streamline the H-1B paperwork required to participate in the fiscal year 2010 lottery. The rule would propose a “pre-registration” system with a shorter application required for the lottery, and the full H-1B petition required for lottery winners. That system will not be in place for this April’s H-1B rush, however.

The Alliance of Business Immigration Lawyers recommends contacting your ABIL member now to begin preparing your H-1B strategy and paperwork.

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2. New I-9 Form Available, USCIS Delays Change in List of Acceptable Documents

The new I-9 employment authorization verification form is available at http://www.uscis.gov/files/form/I-9_IFR_02-02-09.pdf. An updated version of the I-9 Handbook for Employers is also expected to be released. The new form reflects the Department of Homeland Security’s amended regulations governing the types of acceptable documents and receipts that employees may present to their employers for employment authorization verification. The interim rule, among other things, requires that all documents presented during the verification process be unexpired, makes adjustments to List A documents, and makes technical updates.

U.S. Citizenship and Immigration Services (USCIS) announced that it has delayed until April 3, 2009, implementation of the interim rule. USCIS also has reopened the public comment period, until March 4, 2009.

USCIS also announced that more than 100,000 employers have signed up to participate in E-Verify, an online system employers use to verify the work authorization of newly hired employees. USCIS said that employers have run more than two million queries through the system since October 2008.

The new economic stimulus package bill approved by the House of Representatives states that “[n]one of the funds made available in this Act may be used to enter into a contract with an entity that does not participate in the E-verify program.”

The E-Verify notice is available at http://www.uscis.gov/files/article/e-verify100K_8jan09.pdf. The USCIS notice announcing the delay in implementation of the interim rule is available at http://www.uscis.gov/files/article/I-9delay_30jan08.pdf. The interim final rule and an informational copy of the revised I-9 are available for public comment at http://www.regulations.gov.

An E-Verify fact sheet is available at http://www.uscis.gov/files/article/everify_fact_sheet8Jan09.pdf. The House bill is available at http://thomas.loc.gov/cgi-bin/query/D?c111:2:./temp/~c1116lrDtW::.

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3. Rule Requiring Contractors to Use E-Verify Suspended Again, Until May 21

The U.S. Chamber of Commerce said the federal government agreed to its request to postpone implementation until May 21, 2009, of a new rule requiring federal contractors to use E-Verify. “The federal government agreed that the new administration needs time to re-think mandatory E-Verify use, particularly in light of the stressed economy,” said Robin Conrad, executive vice president of the National Chamber Litigation Center, the Chamber’s public policy law firm. “We are hopeful that the incoming administration will agree that E-Verify is the wrong solution at the wrong time.

Randy Johnson, vice president of Labor, Immigration and Employee Benefits at the U.S. Chamber, said, “The new administration’s interest in reviewing the rule is a promising development, but it doesn’t change the fact that the executive branch may not make E-Verify use mandatory when Congress clearly said that it must be voluntary. We’re cautiously optimistic that the incoming administration will make the right choice, but if not it will be up to the court to settle the issue.”

This was the second recent postponement. The American Council on International Personnel (ACIP) reported that an agreement previously was reached with the Department of Homeland Security to suspend implementation of the rule until February 20, 2009. It had been slated to take effect on January 15, 2009.

USCIS also announced that more than 100,000 employers have signed up to participate in E-Verify, an online system employers use to verify the work authorization of newly hired employees. USCIS said that employers have run more than two million queries through the system since October 2008.

Meanwhile, the new stimulus package bill approved by the House of Representatives on January 28, 2009, includes provisions that would mandate the use of E-Verify by federal contractors receiving stimulus funds. The bill states that “[n]one of the funds made available in this Act may be used to enter into a contract with an entity that does not participate in the E-verify program.” The Senate is expected to act on the economic stimulus bill this week. It remains to see whether this E-Verify provision will remain in the final bill.

The Chamber of Commerce’s announcement is available at http://www.uschamber.com/nclc/090128_pr.htm. The House bill is at http://thomas.loc.gov/cgi-bin/query/D?c111:2:./temp/~c1116lrDtW::.

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4. Several Visa Categories Show Movement in February

For February 2009, the Department of State’s Visa Bulletin shows movement in the priority dates for several employment-based categories. For example, although the Worldwide category stays put, the China-mainland born second preference category moves ahead almost six months, from July 8, 2004, to January 1, 2005. India’s second preference category advances six months, from July 1, 2003, to January 1, 2004. China’s third preference category similarly advances four months, from June 1, 2002, to October 1, 2002. Mexico’s third preference employment-based category advances four and a half months, from November 15, 2002, to April 1, 2003.

In February, however, China’s “Other Workers” category retrogresses from March 15, 2003, to October 1, 2002, as do India’s (from March 15, 2003, to October 15, 2001) and Mexico’s (from March 15, 2003, to October 15, 2001). The Philippines third preference and “Other Workers” categories stay put at May 1, 2005, and March 15, 2003, respectively.

The Visa Bulletin for February 2009 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4417.html.

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5. VWP Travelers Must Apply for Security Clearance Online

Those seeking to travel to the U.S. under the Visa Waiver Program are now subject to enhanced security requirements as of January 12, 2009. All eligible travelers who wish to travel under the Visa Waiver Program must apply for authorization using the Electronic System for Travel Authorization (ESTA), available at https://esta.cbp.dhs.gov/. All VWP travelers applying for admission at a U.S. port of entry, including VWP travelers who have obtained travel authorization via ESTA, also must present a completed Form I-94W to U.S. Customs and Border Protection.

The stimulus package bill passed by the House of Representatives includes provisions on the Visa Waiver Program that would enhance program security requirements and extend the VWP to nationals of foreign countries “that are partners in the war on terrorism.” The bill also would “support and expand tourism and business opportunities to enhance long-term economic competitiveness,” and would establish a “maximum visa overstay rate” for participating countries.

More information about ESTA is available at http://www.cbp.gov/xp/cgov/travel/id_visa/esta/. Additional information about the VWP is available at http://travel.state.gov/visa/temp/without/without_1990.html. The full text of the House bill, H.R. 1, is available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h1enr.txt.pdf.

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6. DHS Announces VWP for Guam-Commonwealth of the Northern Mariana Islands

The U.S. Department of Homeland Security (DHS) announced an interim final rule that replaces the current Guam Visa Waiver Program (VWP) with a new Visa Waiver Program for Guam and the Commonwealth of the Northern Mariana Islands (CNMI), to be implemented June 1, 2009. The rule also authorizes the department’s U.S. Customs and Border Protection (CBP) to establish as many as six new ports of entry in the region to administer and enforce the Guam-CNMI VWP and to allow for immigration inspections.

The revised Guam-CNMI VWP allows visa-free entry for nonimmigrant visitors from eligible countries to Guam and the CNMI for business or leisure travel, and extends visiting time from 15 to 45 days. The current Guam VWP and CNMI immigration laws will continue to apply until June 1, 2009.

Travelers seeking admission to Guam under the new program must possess a valid, unexpired machine-readable passport and present valid and completed CBP Forms I-94 and I-736, and must not have previously violated the terms of any admission to the U.S.

According to the interim final rule, current members of the Guam-CNMI VWP include Australia, Brunei, Indonesia, Japan, Malaysia, Nauru, New Zealand, Papua New Guinea, Republic of Korea, Singapore, Solomon Islands, Taiwan, the United Kingdom, Hong Kong, Vanuatu, and Western Samoa.

The interim final rule, published in the Federal Register on January 16, 2009, is available at http://edocket.access.gpo.gov/2009/pdf/E9-942.pdf.

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7. USCIS Reaches H-2B Cap for Second Half of Fiscal Year 2009

U.S. Citizenship and Immigration Services (USCIS) announced on January 7, 2009, that it had received a sufficient number of petitions to reach the congressionally mandated H-2B cap of 33,000 for the second half of fiscal year 2009, for new H-2B worker petitions requesting employment start dates before October 1, 2009.

If deemed necessary, USCIS said it may apply a computer-generated random selection process to all petitions that are subject to the cap and received on January 7, 2009. USCIS will reject, and return the fee, for all cap-subject petitions not selected.

Petitions for workers who are currently in H-2B status do not count toward the biannual H-2B cap. USCIS will continue to process petitions filed to extend the stay of a current H-2B worker in the U.S.; change the terms of employment for current H-2B workers and extend their stay; or allow current H-2B workers to change or add employers and extend their stay.

The H-2B notice is available at http://www.uscis.gov/files/article/h2b_8jan09.pdf.

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8. EB-5 Immigrant Investor Filing Location Changes

U.S. Citizenship and Immigration Services (USCIS) announced that petitions and applications related to the entrepreneur (EB-5) immigrant classifications and Regional Center proposals under the EB-5 immigrant investor pilot program must be filed at the California Service Center (CSC).

Previously, EB-5 petitions and applications were filed at either the Texas Service Center (TSC) or the CSC, depending on where the entrepreneur’s commercial enterprise was located. Regional Center proposals were submitted to the Chief of Service Center Operations at USCIS headquarters. USCIS said this change in filing locations is necessary to improve efficiency in processing EB-5-related filings. USCIS has established a unit at the California Service Center with adjudicators dedicated to EB-5 adjudications.

This change was effective January 26, 2009. For a 30-day period that began on January 9 and ends on February 9, 2009, EB-5 related petitions and applications mailed to USCIS headquarters or the Texas Service Center will be forwarded to the California Service Center. After February 9, EB-5 petitions and applications received at an incorrect filing location will be rejected and returned with instructions to re-file at the correct address.

For direct mail, send to:

U.S. Citizenship and Immigration Services
California Service Center, Attn: EB-5 Processing Unit
P.O. Box 10526
Laguna Niguel, CA 92607-0526

For non-U.S. Postal Service deliveries (e.g., private couriers), send to:

U.S. Citizenship and Immigration Services
California Service Center, Attn: EB-5 Processing Unit
24000 Avila Road, 2nd Floor
Laguna Niguel, CA 92677

The notice is at http://www.uscis.gov/files/article/update_eb5_filing_location_change_12Jan08.pdf, and a related notice was published in the Federal Register on January 9, 2009, at http://edocket.access.gpo.gov/2009/pdf/E9-231.pdf.

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9. New Forms Required for H-2A and H-2B Programs

In conjunction with regulations that went into effect in January 2009 for the H-2A and H-2B programs, the Department of Labor has created new forms to collect the necessary information from employers applying for labor certifications. Employers must begin using Form ETA-9142. In addition, for the H-2A program, employers must fill out and submit Appendix A.1 and Appendix A.2. For the H-2B program, employers must fill out and submit Appendix B.1. For instructions on how to complete the form and appendices, see http://www.foreignlaborcert.doleta.gov/pdf/OMBETAForm9142_Instructions.pdf.

The H-2B final rule requires the use of the new ETA-9141 for prevailing wage determinations. However, the use of this form will only begin after the transition period outlined in the rule is completed. Therefore, the DOL said that the ETA-9141 will be posted toward the end of the transition period.

The H-2A final rule is available at http://www.foreignlaborcert.doleta.gov/pdf/H2A_FinalRule.pdf. The H-2B final rule is available at http://www.foreignlaborcert.doleta.gov/pdf/H2BFinalRule.pdf.

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10. Attorney General Finds No Right To Effective Counsel in Removal Proceedings

In Matter of Compean, Attorney General Michael Mukasey found on January 7, 2009, that noncitizens have no constitutional right to an attorney in immigration removal proceedings. Although they have a statutory privilege to retain a lawyer, if that counsel is ineffective, they have no recourse, the Attorney General said. The decision notes that the Board of Immigration Appeals or an immigration judge may reopen removal proceedings in extraordinary cases based on egregious error by a lawyer, accredited representative, or nonlawyer that the person erroneously believed to be a lawyer.

The decision provides a framework and a list of documentation for filing a claim of deficient performance of counsel. The decision is available at http://www.usdoj.gov/eoir/vll/intdec/vol24/3632.pdf. The American Immigration Lawyers Association, which filed an amicus brief, is following this case and posting updates at http://www.ailf.org/lac/lac-ineffective.shtml.

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11. USCIS Comments on L-1B Intracompany Transferee Denials

U.S. Citizenship and Immigration Services reportedly plans to address complaints about an L-1B visa denial increase some time this year. “Companies are trying to expand the definition of what is ‘specialized knowledge’ under the L-1B program to use it as an alternative to the H-1B visa because there is no congressionally mandated cap on L-1B visas,” USCIS Acting Deputy Director Michael Aytes said, adding that the current standard used by USCIS adjudicators requires more than “just working for a company overseas for a year.”
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12. ABIL GLOBAL

Canada: Recent Amendments Eliminate Passive Investment From Provincial Nominee Programs

Effective September 2, 2008, the Immigration and Refugee Protection Regulations have been amended to clarify the provisions related to passive investment in provincial nominee programs.

Under the Provincial Nominee Program (PNP), provinces and territories can nominate individuals whom they consider to be important to their economic development. Under the terms of the provincial nominee agreements, provinces and territories are responsible for designing the criteria for their respective nomination categories, which can include business immigrants. However, the intent of the entrepreneurial component within the PNPs was to permit provinces and territories to nominate business people who would meet the specific demographic and economic objectives of the nominating provinces or territories by settling there and opening or investing in a business that they would actively manage on a day-to-day basis. Selection on the basis of the ability to invest capital without involvement in the management of the recipient business/organization has always been exclusive to the Federal Immigrant Investor Program. By making the recent amendments, Citizenship and Immigration Canada (CIC) is making it clear that it was never intended for provinces and territories to select passive investors under their PNPs.

This information was supplied by Clark Wilson LLP’s Immigration Lines. For more information, see http://www.cwilson.com/newsletters/immigration/.

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13. New Publications and Items of Interest

EB-5 investor visas; AC21 issues. U.S. Citizenship and Immigration Services (USCIS) has added comments and Q&A from a teleconference to its online library: “Teleconference on EB-5 Investor Visas: Opportunities and Challenges,” recorded in September 2008. The teleconference is available at http://www.dhs.gov/xabout/structure/gc_1232142118947.shtm. USCIS also has added an update on AC21 issues: “Did USCIS Immediately Deny Your Adjustment of Status Application Following a Change of Employment?”, available at http://www.dhs.gov/xabout/structure/gc_1221837986181.shtm#1.

On December 12 and 15, 2008, the Department of Labor (DOL) held stakeholder briefings on revised H-2A regulations that took effect on January 17, 2009. DOL staff described procedures under the new regulation for filing and reviewing H-2A labor certification applications, and preparation of the new application form, ETA Form 9142. The briefings also included discussion of changes to DOL enforcement procedures. To see the PowerPoint slide presentation on the new H-2A foreign labor certification process and form, go to the January 16, 2009, entry at http://www.foreignlaborcert.doleta.gov/eta_default.cfm#backlog and click on the link.

Q&A on religious worker final rule. U.S. Citizenship and Immigration Services (USCIS) published a final rule on the special immigrant and nonimmigrant religious worker visa categories on November 26, 2008. A supplemental Q&A for religious workers is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e51026e8bb89e110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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14. Recent News from ABIL Members

Seyfarth Shaw LLP has expanded its business immigration practice significantly with the addition of Alliance of Business Immigration Lawyers President Angelo A. Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) and seven other attorneys formerly with Paparelli & Partners LLP, which was an internationally recognized immigration specialty law firm. “Angelo’s work is highly respected by the international immigration bar, and we are thrilled to count him and his team among our talented immigration attorneys,” said Valerie J. Hoffman, Chair of Seyfarth Shaw’s Business Immigration & Affirmative Action/Diversity Counseling Practice Group. “Angelo and his team also further boost our outbound global migration practice.”

Steve Clark (bio: https://www.abil.com/lawyers/lawyers-clark.cfm), of Flynn & Clark, PC, Boston, spoke about the Department of Labor’s attack on the role of attorneys in a panel discussion moderated by Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm), of Kuck Casablanca & Odom, LLC, at the Mid-Year CLE Program sponsored by the American Immigration Lawyers Association (AILA) in Aruba on January 16, 2009. Mr. Kuck is AILA’s President, and Mr. Clark is a member of AILA’s DOL Liaison Committee and Past President of AILA.

Mr. Clark also chaired a program on Labor Certification and Employment-Based Immigration for the Boston Bar Association on January 27, 2009. His presentation addressed hot topics involving the Department of Labor, and filing PERM labor certifications using the new PERM form in a turbulent economy. The panel provided practice tips for economically challenged firms filing labor certifications and for using the new PERM labor certification application form to be rolled out by the Department of Labor this spring.

Cyrus D. Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) was quoted in an Associate Press article by Amy Taxin, “Foreign workers face stress as unemployment rises,” on January 2, 2009. Mr. Mehta stated that “he was fielding a call a week from foreign workers who lost their job in the last year.” The article was widely disseminated in various news publications and can be found at http://www.forbes.com/feeds/ap/2009/01/02/ap5874978.html

Laura Danielson (bio: https://www.abil.com/lawyers/lawyers-danielson.cfm) spoke at a Minnesota Chamber of Commerce (http://www.mnchamber.com) event on immigration nuts and bolts, as well as compliance, on January 21, 2009.

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15. 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/jsps/ptimes.jsp

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

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Headlines:

1. E-Verify Deadline Approaches for Federal Contractors – Federal contractors and subcontractors will be required to begin using the E-Verify online work authorization verification system starting January 15, 2009.

2. Canada Fast-Tracks Skilled Workers – Applicants who are not eligible for the federal skilled worker category may qualify under another category.

3. USCIS Revises Religious Worker Regulations – The final rule requires that employers submit a formal petition for temporary religious workers.

4. DHS Adds Countries to Visa Waiver Program; CBP Requires Travel Authorization – Countries added include the Czech Republic, Estonia, Hungary, Latvia, Lithuania, the Republic of Korea, and the Slovak Republic.

5. TPS Re-Registration Period Extended for Nicaraguans, Hondurans – The re-registration period is extended through December 30, 2008.

6. Guestworkers To Recover Wages – Unreimbursed expenses incurred by guestworkers for a large forestry contractor may be recovered, a judge has found.

7. CDC Expands Scope of Medical Exam – The CDC has changed the scope of the medical examination for certain persons wishing to enter the U.S.

8. Student and Exchange Visitor Program Office Moves – Until direct mail service is established, SEVP recommends that all correspondence be mailed to an office in Washington, D.C.

9. New Publications and Items of Interest – New Publications and Items of Interest

10. Recent News from ABIL Members – Recent News from ABIL Members

11. Government Agency Links – Government Agency Links

Details:

1. E-Verify Deadline Approaches for Federal Contractors

Federal contractors and subcontractors will be required to begin using U.S. Citizenship and Immigration Services’ (USCIS) E-Verify system starting January 15, 2009, to verify their employees’ eligibility to work legally in the United States. In a final rule, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council amended the Federal Acquisition Regulation (FAR) to reflect this change.

The new rule implements Executive Order 12989, as amended by President George W. Bush on June 6, 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees. The amended Executive Order reinforces the policy, first announced in 1996, that the federal government does business only with companies that have a workforce that is authorized to work in the U.S. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the U.S.

Federal contracts awarded and solicitations issued after January 15, 2009, will include a clause committing government contractors to use E-Verify. The same clause will also be required in subcontracts over $3,000 for services or construction. Contracts exempt from this rule include those that are for less than $100,000 and those that are for commercially available off-the-shelf items. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. They also will need to begin using the E-Verify system to confirm that all of their new hires and their employees directly working on federal contracts are authorized to work in the U.S.

The final rule reflects some changes from the proposed rule. The changes are intended to lighten the burden on small businesses that decide to accept federal contracts, and to provide contractors with flexible means of complying with the basic requirement that all persons working on federal contracts be electronically verified.

More than 92,000 employers currently use E-Verify, an Internet-based system operated by the DHS in partnership with the Social Security Administration that allows participating employers to verify the employment eligibility of their employees electronically. During fiscal year 2008, more than 6.6 million employment verification queries were run through the system, representing one out of every eight people hired in the U.S. Approximately 96.1 percent of all cases queried through E-Verify are found to be employment-authorized, and individuals who are not immediately cleared are given the opportunity to correct their records, USCIS said.

The final rule is available at http://edocket.access.gpo.gov/2008/pdf/E8-26904.pdf. A related USCIS announcement is available at http://www.uscis.gov/files/article/FAR_13Nov08.pdf. A USCIS “frequently asked questions” sheet is available at http://www.uscis.gov/files/article/FAR_FAQ_13nov08.pdf.

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2. Canada Fast-Tracks Skilled Workers

Jason Kenney, Canada’s Minister of Citizenship, Immigration and Multiculturalism, announced on November 28, 2008, that retroactive to February 27, 2008, the “Action Plan for Faster Immigration” includes issuing instructions to visa officers reviewing new federal skilled worker applications to process those from candidates who:

• include an offer of arranged employment; or
• are from a foreign national living legally in Canada for one year as a temporary foreign worker or international student; or
• are from a skilled worker who has at least one year of experience under one or more of the 38 occupations listed at http://www.cic.gc.ca/eligible.

The list of 38 occupations was developed after consultations with the provinces and territories, business, labor, and other stakeholders. New federal skilled worker applications that do not meet the eligibility criteria outlined above will not be processed, and the application fee will be refunded. Citizenship and Immigration Canada (CIC) said in a statement that this effort, along with funds set aside in the 2008 budget to improve the immigration system, “will stop the backlog from growing and will start to draw it down.”

“The eligibility criteria apply only to new federal skilled worker applicants and will not affect Canada’s family reunification or refugee protection goals,” Minister Kenney said. He noted that applicants who are not eligible for the federal skilled worker category may qualify under another category, such as the Provincial Nominee Program, or as temporary foreign workers, which could then put them on a path to permanent residence through the new Canadian Experience Class.

“We expect new federal skilled worker applicants, including those with arranged employment, to receive a decision within six to 12 months compared with up to six years under the old system,” said Minister Kenney. “All other economic class applications—including applicants chosen by Quebec, provincial nominees, the Canadian Experience Class, and live-in caregivers—will continue to be given priority.”

All applications made before February 27, 2008, will be processed according to the rules that were in effect at that time.

CIC said that these changes “bring Canada in line with two of its main competitors for highly skilled labor: Australia and New Zealand. Both of these countries have eliminated their backlogs and have systems that deliver final decisions for economic applicants within a year.”

Canada plans to admit between 240,000 and 265,000 new permanent residents in 2009, Minister Kenney said, noting that the planned numbers are on par with last year and are among the highest for Canada during the past 15 years. The 2009 plan includes up to 156,600 immigrants in the economic category; 71,000 in the family category; and 37,400 in the humanitarian category.

Minister Kenney noted that “[t]he recent steps this Government has taken to improve our immigration system will help ensure that Canada remains competitive internationally and responsive to labour market needs domestically.” Critics, however, expressed concerns that the new emphasis on skilled workers would create two classes of immigrants and that less-skilled workers would be at a disadvantage, and that doubling the number of temporary workers would depress wages. “It’s bad for the Canadian economy and it’s bad for [the temporary workers], because they cannot bring in their families and often are open to exploitation and abuse,” said New Democrat Olivia Chow.

CIC has expanded its web site. The site now includes a section for employers (http://www.cic.gc.ca/employers) and a new interactive tool (http://www.cic.gc.ca/cometocanada) that matches information provided by potential applicants with immigration programs.

The ministerial instructions are available at http://www.cic.gc.ca/english/department/media/backgrounders/2008/2008-11-28a.asp. A notice announcing the instructions is available at http://www.cic.gc.ca/english/department/media/backgrounders/2008/2008-11-28.asp. For more information on the new initiatives, see http://www.cic.gc.ca/english/department/media/releases/2008/2008-11-28.asp.

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3. USCIS Revises Religious Worker Regulations

U.S. Citizenship and Immigration Services (USCIS) announced that it has revised significantly the special immigrant and nonimmigrant (R-1) religious worker visa classification regulations. USCIS said the final rule “will ensure the integrity of the religious worker program by establishing a requirement that employers submit a formal petition for temporary religious workers, and by providing for increased inspections, evaluations, verifications, and compliance reviews of religious organizations.” The rule “also fulfills the recent Congressional mandate to issue final regulations to eliminate or reduce fraud in the religious worker program.”

Previously, foreign religious workers were able to request an R-1 religious worker visa at a consular post without any previous stateside review of the religious organization or job offer. The final rule will require individuals seeking to enter the U.S. through the nonimmigrant religious worker program to provide a consular officer an approved Form I-129, Petition for Alien Worker. Stateside review of the petition will allow USCIS to verify that the petitioner and the job offer are legitimate before the State Department issues a visa and admits the religious worker to the U.S.

Among other things, the rule also reduces the initial period of admission for a nonimmigrant from three years to a period of up to 30 months. USCIS said this will allow it an earlier opportunity to review whether the terms of the visa have been met before extending the nonimmigrant religious worker’s stay in the U.S. Religious workers will be allowed one extension of up to an additional 30 months.

The final rule was published in the Federal Register on November 26, 2008, and was effective the same day. The full text of the final rule is available at http://edocket.access.gpo.gov/2008/pdf/E8-28225.pdf. A questions-and-answers sheet is available at http://www.uscis.gov/files/article/religious_work_faq_21nov08.pdf. A related fact sheet is available at http://www.uscis.gov/files/article/religious_worker_factsheet_21nov08.pdf. A policy memorandum on handling non-minister special immigrant religious worker petitions affected by the October 1, 2008, sunset date is available at http://www.uscis.gov/files/nativedocuments/SpecialImmigrantRWPetitionsOct1sunset91908.pdf.

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4. DHS Adds Countries to Visa Waiver Program; CBP Requires Travel Authorization

Effective November 17, 2008, the Department of Homeland Security has added the Czech Republic, Estonia, Hungary, Latvia, Lithuania, the Republic of Korea, and the Slovak Republic to the list of countries authorized to participate in the Visa Waiver Program (VWP).

Citizens and eligible nationals of VWP countries may apply for admission at a U.S. port of entry as nonimmigrants for up to 90 days for business or pleasure without obtaining a nonimmigrant visa, provided that they are otherwise eligible for admission under applicable statutory and regulatory requirements. The designated countries in the VWP include Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom (defined for VWP purposes as England, Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of Man).

U.S. Customs and Border Protection (CBP) also announced on November 13, 2008, that beginning January 12, 2009, all VWP nonimmigrants traveling to the U.S. must obtain an approved travel authorization from the Department’s Electronic System for Travel Authorization (ESTA). To comply with ESTA, VWP travelers must provide electronically to CBP the information currently collected on the I-94W Nonimmigrant Alien Arrival/Departure (Form I-94W) through the CBP ESTA Web site and receive authorization to travel before embarking on travel to the U.S. The ESTA Web site is at https://esta.cbp.dhs.gov/esta/esta.html?_flowExecutionKey=_cD88DB6CB-CF0E-B36E-3AE3-4C453B4C386E_k613ED908-DCC2-7541-9CDA-5DB7BB3E0773.

The final rule adding the VWP countries is available at http://edocket.access.gpo.gov/2008/pdf/E8-27062.pdf. The CBP notice about obtaining travel authorization is available at http://edocket.access.gpo.gov/2008/pdf/E8-26997.pdf.

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5. TPS Re-Registration Period Extended for Nicaraguans, Hondurans

U.S. Citizenship and Immigration Services (USCIS) has announced an extension to the re-registration period for nationals of Nicaragua and Honduras who have been granted temporary protected status (TPS) and are now eligible to re-register and maintain their status an additional 18 months. Initially, the 60-day re-registration period for nationals of Honduras and Nicaragua began October 1, 2008, and ended on December 1, 2008. The re-registration period is being extended through December 30, 2008, because of tropical storm activity in the region.

Additionally, USCIS has automatically extended the validity of employment authorization documents (EADs) for eligible Honduran and Nicaraguan TPS beneficiaries for 6 months, through July 5, 2009. USCIS said this is intended to allow sufficient time for eligible TPS beneficiaries to re-register and receive an EAD without any lapse in employment authorization.

The Department of Homeland Security (DHS) announced in October 2008 that the TPS designations of Honduras and Nicaragua were extended through July 5, 2010. The extension will make those who have already been granted TPS eligible to re-register and maintain their status for an additional 18 months.

Nicaraguan and Honduran TPS beneficiaries are strongly encouraged to apply as soon as possible within the registration period that now ends December 30, 2008.

There are approximately 3,500 nationals of Nicaragua and 70,000 nationals of Honduras (and people having no nationality who last habitually resided in Honduras and Nicaragua) eligible for TPS re-registration. TPS does not apply to Nicaraguan or Honduran nationals who entered the U.S. after Dec. 30, 1998.

TPS beneficiaries must submit an Application for Temporary Protected Status, Form I-821, without the application fee and the Application for Employment Authorization, Form I-765, to re-register for TPS. A separate biometric service fee, or a fee waiver request, must be submitted by re-registrants 14-years of age and older. If the applicant is only seeking to re-register for TPS and is not seeking an extension of employment authorization, he or she must submit the I-765 for data-gathering purposes only and is not required to submit the I-765 filing fee. All applicants seeking an extension of employment authorization through July 5, 2010, must submit the required application filing fee with the I-765 or a fee waiver request with proper documentation.

The announcement is available at http://www.uscis.gov/files/article/tps_nicaragua_honduras_extend_21nov08).pdf. USCIS published a related notice in the Federal Register on November 24, 2008, available at http://edocket.access.gpo.gov/2008/pdf/E8-27702.pdf (Honduras) and http://edocket.access.gpo.gov/2008/pdf/E8-27703.pdf(Nicaragua).

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6. Guestworkers To Recover Wages

In a class action lawsuit, U.S. District Court Judge Clarence Cooper found that unreimbursed expenses incurred by guestworkers for a large forestry contractor, Eller and Sons Trees, Inc., of Franklin, Georgia, may be recovered and that actual damages sought by the workers may exceed $500,000. The employer had sought to cap the damages.

The named plaintiffs are three migrant farmworkers. Eller and Sons Trees provides forest reforestation (tree planting) and forestry services such as brush clearing, boundary marking, and chemical spraying. Most of its employees are engaged in tree planting, predominantly in the southern U.S. during the months of December, January, and February. Eller and Sons Trees cannot find enough employees in the U.S. to perform the work, the decision noted. As a result, most of the workers come from outside the U.S., with the vast majority coming from Guatemala, and others coming from Mexico, Honduras, and Colombia. Eller and Sons Trees obtains temporary seasonal employees through the H-2B visa program.

The guestworkers were represented by the Southern Poverty Law Center (SPLC), and the Legal Aid Justice Center of Virginia is serving as co-counsel. The SPLC said it now must prove how much money is owed to the workers. “This is a great victory for these forestry workers,” said Mary Bauer, director of the SPLC’s Immigrant Justice Project. “For too long this industry has seen guestworkers as a disposable workforce to be used, abused and thrown away. This decision is a signal that those days are coming to an end.”

According to the SPLC, the court also found that the representations an employer makes to the government on H-2B visa applications, such as the total number of hours the employees will work per week, can be enforced by the workers even if they are unaware of what the employer reported to the government. This finding would hold an employer liable for a 40-hour work week promised on its application to federal government, even if the employer never made such an agreement with its workers, the SPLC noted. The judge in this case found that an employer cannot drive a worker’s pay below the minimum wage rate by deducting expenses for things that primarily benefit the employer. The court also found that the prevailing wage rate for the area, rather than the lower minimum wage rate, is protected from such deductions under this principle. The SPLC said that this is the first time such a decision has been reached in a contested case.

The judge found that the costs of passports, visas, and other travel costs not only drove the workers’ pay below the protected rate level but resulted in workers having “negative incomes” in their first week of work. The judge awarded $53,890 to the case’s plaintiffs for expenses that were not reimbursed during their first work week, citing the Fair Labor Standards Act. The SPLC believes that damages for the rest of the class, which the organization expects number into the thousands of workers, may reach into the millions of dollars.

The case records for Escolastico de Leon-Granados et al. v. Eller and Sons Trees, Inc., are available at http://www.splcenter.org/legal/docket/files.jsp?cdrID=49&sortID=4. The SPLC has filed a number of other guestworker lawsuits.

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7. CDC Expands Scope of Medical Exam

The Centers for Disease Control and Prevention (CDC) published an interim final rule in October 2008 that changed the “definition of a communicable disease of public health significance, the scope of the medical examination for aliens, and the evaluation criteria for tuberculosis,” the Department of State announced. The definition of communicable disease of public health significance continues to include the previous list of eight specific diseases (including HIV infection) and adds two new disease categories: (1) quarantinable diseases designated by Presidential Executive Order, and (2) diseases that meet the criteria of a public health emergency of international concern, which require notification to the World Heath Organization under revised international health regulations. The scope of the medical examination for certain foreign persons wishing to come to the U.S. has been “amended to incorporate a more flexible, risk-based approach based on medical and epidemiologic factors,” the Department noted.

The Department of State’s notice, sent to all diplomatic and consular posts in November 2008, is available at http://travel.state.gov/visa/laws/telegrams/telegrams_4388.html. Further information from the CDC is available at http://www.cdc.gov/ncidod/dq/ifr_main.htm.

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8. Student and Exchange Visitor Program Office Moves

The Student and Exchange Visitor Program (SEVP) office has moved. Until direct mail service is established, SEVP recommends that all correspondence be mailed to: Student and Exchange Visitor Program, Attn: (Branch Name), Potomac Center North, 500 12th Street, SW, Washington, DC 20024. The new main telephone number is (703) 603-3400. E-mail addresses have not changed, so inquiries may be sent to SEVP staff through their previous e-mail or through [email protected].

For more information on SEVP, see http://www.ice.gov/sevis/index.htm?searchstring=sevp.

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9. New Publications and Items of Interest

State legislation on immigration. The “State Responses to Immigration” database contains all bills and resolutions related to immigrants or immigration that were considered by state legislators across the U.S. The database contains all immigration-related legislation for 2007. Data for 2008 and historic 2001-2006 data will be added in the coming months.

The searchable database is classified by state, region, subject area, legislative type, and bill status. The database allows users to find out, for example, the status of enforcement initiatives introduced in their state, compare the number of bills regulating employment, or evaluate the passage rate of certain bills across the nation. The database assigns a bill’s status based on its status as of December 31 of the given year.

The database notes that in 2007, 1,059 immigration-related state bills and resolutions were introduced in state legislatures nationwide, of which only 167 (or 16 percent) were enacted into law. The vast majority of bills proposed in 2007 either expired (33 percent) or remained pending (45 percent) without any legislative resolution. The report is available at http://www.migrationpolicy.org/pubs/2007methodology.pdf.

State Responses to Immigration (http://www.migrationinformation.org/datahub/statelaws_home.cfm) is a joint project of the Migration Policy Institute (MPI) and a research team at the New York University School of Law (NYU).

The Small Business Administration’s Office of Advocacy has published “Estimating the Contribution of Immigrant Business Owners to the U.S. Economy.” Among other things, the report finds that:

• The total business income generated by immigrant business owners is $67 billion, representing 11.6 percent of all business income in the U.S.
• Immigrants are nearly 30 percent more likely to start a business than are nonimmigrants, and they represent 16.7 percent of all new business owners in the United States
• Immigrant business owners make significant contributions to business income, generating $67 billion of the $577 billion in U.S. business income, as estimated from 2000 U.S. Census data. They generate nearly one-quarter of all business income in California—nearly $20 billion—and nearly one-fifth of business income in New York, Florida, and New Jersey.
• Immigrant business ownership is geographically concentrated in a few states. Nearly 30 percent of all business owners in California are immigrants, compared with about 12.5 percent of the population of U.S. business owners.
• Immigrants own 11.2 percent of businesses with $100,000 or more in sales and 10.8 percent of businesses with employees.
• Immigrants’ contributions differ across sectors of the economy. They own a large share—more than one-fifth—of businesses in the arts, entertainment, and recreation industry. They also contribute significantly to other services, transportation, and wholesale and retail trade.
• Although business owners from Mexico constitute the largest share of immigrant business owners, total immigrant business ownership, formation, and income originate with immigrant business owners from around the world.

The report is available at http://www.sba.gov/advo/research/rs334tot.pdf.

The Department of Labor’s Office of Foreign Labor Certification released a fact sheet in October 2008 that offers selected statistics and highlights of PERM processing in fiscal year 2008. See http://www.globallawcenters.com/pdfs/27006.pdf.

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10. Recent News from ABIL Members

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) moderated an immigration discussion at the National Press Club in Washington, D.C. Hosted by Cornell Law School on November 19, 2008, the panel discussed immigration policy in an Obama administration, including how the new Congress and new administration will affect immigration policy in the U.S. Speakers included Doris Meissner, former Immigration and Naturalization Service Commissioner; Frank Sharry, former Executive Director of the National Immigration Forum; and Jeanne Butterfield, Executive Director of the American Immigration Lawyers Association.
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11. 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/jsps/ptimes.jsp

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

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Headlines:

1. Employment Visa Categories Backlogged – Many employment category cut-off dates have been established for October.

2. DV-2010 Visa Lottery Entry Period Begins – The DV-2010 Lottery online entry period runs from noon EDT on October 2, 2008, to noon EST on December 1, 2008.

3. EAD Delays: What To Do? – The USCIS ombudsman recommended several steps if an EAD is delayed beyond 90 days.

4. SEVIS Fees Increasing October 27, ICE Clarifies Procedures – ICE published a final rule increasing the Student and Exchange Visitor Program school certification petition fees and the application fees for nonimmigrants seeking to become academic or vocational students, or exchange visitors.

5. Congress Extends Four Immigration Programs until March 2009 – Congress has extended four immigration programs that were due to expire this fall.

6. Travel May Be Risky While Adjustment Application Is Pending, Recent Case Shows – Traveling outside the U.S. while an adjustment of status application is pending can be risky, even with advance parole.

7. USCIS Reminds About ‘Flexibilities’ When Travel Is Delayed Unexpectedly – Given recent severe weather in the Caribbean, USCIS issued a reminder about available services and agency “flexibilities.”

8. Naturalization Form Added To Direct Mail Program – The Direct Mail program now includes Form N-400, Application for Naturalization; non-military N-400 applications should be filed with the appropriate Lockbox.

9. Ninth Circuit Upholds Arizona Law Targeting Employers Hiring Undocumented Workers – The law’s principal sanction is the revocation of state licenses to do business in Arizona for employers who hire undocumented workers.

10. USCIS Extends TPS for Nicaraguans, Hondurans, El Salvadorans; Only Updated TPS Forms Will Be Accepted – The extension means that those who have already been granted TPS are eligible to reregister during the designated reregistration period.

11. New Naturalization Test Implemented; USCIS Updates Processing Times – USCIS began administering the redesigned naturalization test on October 1, 2008.

12. New Publications and Items of Interest – New Publications and Items of Interest

13. Recent News from ABIL Members – Recent News from ABIL Members

14. Government Agency Links – Government Agency Links

Details:

1. Employment Visa Categories Backlogged

The October 2008 Visa Bulletin disseminated by the Department of State’s Visa Office notes that the May 2008 Visa Bulletin had stated that many employment cut-off dates had been advancing very rapidly, based on indications that U.S. Citizenship and Immigration Services (USCIS) would need to review a significantly larger pool of applicants than there were numbers available to maximize number use under the fiscal year (FY) 2008 annual limits. The May Bulletin also stated that if the USCIS projections proved to be incorrect, it would be necessary to adjust the cut-off dates during the final quarter of FY 2008. USCIS estimates have proven to be very high, the October Bulletin notes, resulting in (1) the unavailability of all employment third preference categories beginning in July, (2) the unavailability of visa numbers for China and India employment second preference adjustment of status cases during September, and (3) the establishment of many October employment category cut-off dates that are earlier than those that applied during FY 2008.

Little if any forward movement of the cut-off dates in most employment categories is likely until the extent of the USCIS backlog of old priority dates can be determined, the State Department noted, estimating that the FY 2009 employment-based annual limit will be very close to the 140,000 minimum.

The EB-3 cutoff of January 1, 2005, is disappointing given the fact that it regressed 17 months from March 1, 2006, in June when the Visa Office opined that it would fully recover by October. The specter of little forward motion, and the fact that priority dates were in the 2002 range through much of the last fiscal year, gives little cause for comfort. Such employees may wish to consider filing for the DV-2010 lottery (see next story).

The October 2008 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4357.html.

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2. DV-2010 Visa Lottery Entry Period Begins

The DV-2010 Lottery online entry period runs from noon EDT on October 2, 2008, to noon EST on December 1, 2008. For DV-2010, Russia has been added back to the list of eligible countries. Kosovo was also added. No countries have been removed from the list of eligible countries.

Information and instructions for the DV-2010 lottery are available at http://travel.state.gov/visa/immigrants/types/types_1318.html.

Employers concerned about delays for workers caught in the EB-3 backlog (see prior story) may wish to encourage such employees to file for the DV lottery.

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3. EAD Delays: What To Do?

U.S. Citizenship and Immigration Services’ ombudsman has been receiving numerous inquiries about employment authorization document (EAD) applications pending more than 90 days. USCIS regulations require the agency to approve EAD applications within 90 days, but that is not happening in some cases. The USCIS ombudsman recommends the following steps

Step 1: Call USCIS National Customer Service Center (NCSC) at 1-800 375-5283 and record the time and date of the call and the name and number of the representative:

• Explain to the representative that your EAD has been pending more than 90 days and ask for a “service request.” You should receive a response to your service request within a week.

– or –

• Ask the representative to request an interim card for you. You should receive an EAD or response within a week.

Step 2: If you choose to visit a local USCIS office, schedule an INFOPASS appointment to visit that office at http://www.infopass.uscis.gov. During the appointment, ask to apply for an interim EAD. The ombudsman notes that USCIS local offices no longer issue interim EADs, but the local office can review your case and determine eligibility. The local office will then forward your request to the appropriate USCIS Service Centers. You should receive an EAD or response within a week, the ombudsman states.

Step 3: If you have tried both Step 1 and Step 2 and have still not received your EAD or an interim card, the ombudsman asks that you e-mail [email protected] the details of your efforts. Include the date and time of your call to the NCSC and the name of the representative. If you visited a USCIS office, provide that information. The ombudsman promises to “look into your case and review how we may be of assistance.”

For all other case inquiries, the ombudsman says you should submit DHS Form 7001 to the ombudsman’s office. For more on this issue, see http://www.dhs.gov/xabout/structure/gc_1221837986181.shtm.

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4. SEVIS Fees Increasing October 27, ICE Clarifies Procedures

U.S. Immigration and Customs Enforcement published a final rule effective October 27, 2008, that increases the Student and Exchange Visitor Program (SEVP) school certification petition fees and the application fees for nonimmigrants seeking to become academic (F visa) or vocational (M visa) students, or exchange visitors (J visa).

The rule sets the following fees: $1,700 for a school certification petition and $655 for each site visit for certification, and $200 for each F or M student. The rule also sets a $180 fee for most J exchange visitors; however, the $35 fee for each J exchange visitor seeking admission as an au pair, camp counselor, or summer work/travel program participant will remain the same.

The rule also establishes procedures for the oversight and recertification of schools attended by F and/or M students, establishes procedures for schools to submit recertification petitions, adds a provision allowing a school to voluntarily withdraw from its certification, and clarifies procedures for school operation with regard to F and M students during recertification and following a denial of recertification or a withdrawal of certification.

The full text of the final rule is available at http://edocket.access.gpo.gov/2008/pdf/E8-22786.pdf.

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5. Congress Extends Four Immigration Programs until March 2009

Congress has extended four immigration programs that were due to expire this fall: the EB-5 immigrant investor regional center program; the E-Verify program, which allows employers to electronically verify an employee’s work eligibility; the religious worker visa program; and the Conrad State 30 program for certain foreign doctors who work in medically underserved areas. The EB-5 regional center and E-Verify programs were included in H.R. 2638, a bill that funds the federal government for the next several months. The religious worker and Conrad State 30 programs were passed in separate bills (S. 3606 and H.R. 5571, respectively). All four extensions last until March 6, 2009.
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6. Travel May Be Risky While Adjustment Application Is Pending, Recent Case Shows

The Alliance of Business Immigration Lawyers warns that traveling outside the U.S. while an adjustment of status application is pending can be risky, even with advance parole. A recent case illustrates this point. While his adjustment application was pending, Nadeem Hassan, a citizen of Pakistan, traveled outside the U.S. to Saudi Arabia. He received an I-512 advance parole travel document, which granted him permission to return to the U.S. so long as his application for adjustment remained pending. While Hassan was abroad, the government denied his adjustment application and revoked the advance parole. When he attempted to return to the U.S., he was denied admission, placed in expedited removal proceedings, and removed. He challenged the denial of status adjustment and revocation of advance parole.

A federal district court held that under the REAL ID Act of 2005, both the denial of the adjustment of status and the revocation of the advance parole were discretionary decisions that the court lacked jurisdiction to review, and the U.S. Court of Appeals for the Ninth Circuit recently agreed, affirming the district court’s dismissal of the case. The Ninth Circuit noted that Hassan was granted advance parole solely to allow him to return to the U.S. while his application for status adjustment was pending. Thus, the court reasoned, once Hassan’s application for adjustment of status was denied, he was no longer eligible for advance parole.

The full text of the decision is available at http://www.metnews.com/sos.cgi?0908%2F0617252.

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7. USCIS Reminds About ‘Flexibilities’ When Travel Is Delayed Unexpectedly

U.S. Citizenship and Immigration Services (USCIS) recently released a statement noting that it realizes that unexpected events in a person’s home country can sometimes affect travel or other plans. Given recent severe weather in the Caribbean, USCIS decided to issue a reminder about available services and agency “flexibilities.”

USCIS noted that nonimmigrant tourists and business visitors (B-1/B-2 visa holders) may request an extension of stay (Form I-539, Application to Extend/Change Nonimmigrant Status) when unexpected events in their home country delay their travel. Those who request an extension will need to explain how the event has disrupted their ability to travel home and how much longer they anticipate staying in the U.S., and also will need to show that they will be able to support themselves in their nonimmigrant status for the additional time requested. In addition, USCIS said it will consider requests for a change of status to that of a person here temporarily on business (B-1) or pleasure (B-2) where the individual is no longer able to extend their pre-existing nonimmigrant status in another category.

USCIS also said that if unexpected events affect the ability of an F-1 or M-1 nonimmigrant student to continue to pay for his or her education, the student may request off-campus employment (Form I-765, Application for Employment Authorization). To qualify, the student must demonstrate how the unexpected event has affected his or her ability to continue to pay for education without being employed.

Nonimmigrant visitors affected by unexpected events in their home country also may request expedited processing of the above applications or for an application or petition filed for a service or benefit that is otherwise immediately available.

Individuals who are abroad and have lost their USCIS-issued travel documents, or whose documents have expired due to an unexpected event that delayed their original travel plans, may contact a U.S. Embassy or Consulate, USCIS said.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e7a1ae70ee09c110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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8. Naturalization Form Added To Direct Mail Program

U.S. Citizenship and Immigration Services (USCIS) announced that the Direct Mail program now includes Form N-400, Application for Naturalization. Non-military N-400 applications should be filed with the appropriate Lockbox. The notice also provides a 30-day transition period whereby the Service Centers will forward any N-400 applications received at their facilities to the appropriate Lockbox. Military applicants should continue to file Military N-400 cases at the Nebraska Service Center (NSC), USCIS said. In addition, NSC will also accept and process N-400s filed by spouses of active members of the military.

Beginning on October 14, 2008, applicants must submit the N-400 and related supplements to one of two new USCIS Lockbox facilities for initial processing, using the addresses provided in the notice at http://edocket.access.gpo.gov/2008/pdf/E8-21083.pdf. A related Federal Register notice is available at http://edocket.access.gpo.gov/2008/E8-21083.htm.

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9. Ninth Circuit Upholds Arizona Law Targeting Employers Hiring Undocumented Workers

The U.S. Court of Appeals for the Ninth Circuit recently upheld the district court in CPLC v. Napolitano, a facial challenge to a 2007 Arizona state law, the Legal Arizona Workers Act (LAWA), that targets employers who hire undocumented workers. The law’s principal sanction is the revocation of state licenses to do business in Arizona. The Ninth Circuit noted that the law has yet to be enforced against any employer. The plaintiffs, various business and civil rights organizations, alleged that the LAWA violates employers’ rights to due process by denying them an opportunity to challenge the federal determination of the work authorization status of their employees before sanctions are imposed.

The district court had held that the law was not preempted. The main argument on appeal was that the law is expressly preempted by federal immigration law preempting state regulation other than through licensing and similar laws. The Ninth Circuit found that the district court correctly determined that the LAWA was a “licensing” law within the meaning of the federal provision and therefore was not expressly preempted.

The court also noted a secondary, implied preemption issue that principally relates to the provision requiring employers to use the electronic verification system, E-Verify, to check the work authorization status of employees through federal records. Under current federal immigration law, use of the system is voluntary; the court noted that the Arizona law makes it mandatory. The court held that such a requirement to use the federal verification tool, for which there is no substitute under development in either the state, federal, or private sectors, is not expressly or impliedly preempted by federal policy.

The plaintiffs also contended that the Arizona statute does not guarantee employers an opportunity to be heard before their business licenses may be revoked. The statute, the court said, “can and should be reasonably interpreted to allow employers, before any license can be adversely affected, to present evidence to rebut the presumption that an employee is unauthorized.” The Ninth Circuit upheld the statute in all respects against the facial challenge, but observed that it was brought against “a blank factual background of enforcement and outside the context of any particular case. If and when the statute is enforced, and the factual background is developed, other challenges to the [LAWA] as applied in any particular instance or manner will not be controlled by our decision,” the court stated.

The Ninth Circuit’s opinion is available at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F05A5F67FDA9AEE6882574C7005021AB/$file/0717272.pdf.

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10. USCIS Extends TPS for Nicaraguans, Hondurans, El Salvadorans; Only Updated TPS Forms Will Be Accepted

U.S. Citizenship and Immigration Services (USCIS) has extended temporary protected status for 18 months for nationals of Nicaragua, Honduras, and El Salvador. TPS for Nicaraguans and Hondurans has been extended through July 5, 2010; TPS for Salvadorans has been extended through September 9, 2010. The extension means that those who have already been granted TPS are eligible to reregister during the designated reregistration period.

USCIS also issued a reminder that only the October 17, 2007, version of the Application for Temporary Protected Status (Form I-821) will be accepted. Additionally, only the May 27, 2008, or later version of the Application for Employment Authorization (Form I-765) will be accepted. USCIS will reject all applications using previous editions.

The reminder about using updated forms is available at http://www.uscis.gov/files/article/I-821_I-765%20reminder_17Sep08.pdf. Further information on the TPS extensions is available for Nicaraguans (http://www.uscis.gov/files/article/USCISUpdate_NicaraguaTPS_26Sep08.pdf), Hondurans (http://www.uscis.gov/files/article/USICS_Update_Honduras26Sep08.pdf), and Salvadorans (http://www.uscis.gov/files/article/update_elsal_tps_24Sep08.pdf). FAQs are also available for Nicaraguans (http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=36da19e272b9c110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD), Hondurans (http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=36da19e272b9c110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD), and Salvadorans (http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=9ac3fcca4e49c110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD).

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11. New Naturalization Test Implemented; USCIS Updates Processing Times

U.S. Citizenship and Immigration Services (USCIS) began administering the redesigned (new) naturalization test on October 1, 2008. The revised test emphasizes the fundamental concepts of American democracy and the rights and responsibilities of citizenship.

USCIS has released a chart showing who may take the current or the new test. For the chart and additional details, including links to the test and the naturalization application, see http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=2de5bece24e7b110VgnVCM1000004718190aRCRD&vgnextchannel=2de5bece24e7b110VgnVCM1000004718190aRCRD.

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12. New Publications and Items of Interest

Immigration debate tracker. The German Marshall Fund of the United States presents the U.S. presidential candidates’ views on immigration. Also included are links to articles about the candidates’ views. The tracker is available at http://www.gmfus.org/election2008/debate_immigration.html.

Immigration prosecutions increase. A new report, Prosecutions for 2008, shows that federal prosecutions are up an estimated 26.8 percent over last year, and that the single largest jump in prosecutions was for immigration cases, which accounted for 49.2 percent of prosecutions through June 2008. The lead investigative agency was U.S. Customs and Border Protection, followed by U.S. Immigration and Customs Enforcement. During the first nine months of 2008, the most frequently recorded charge was “entry of alien at improper time or place, with 33,792 charges recorded, followed by “reentry of deported alien,” with 15,432 charges recorded. The report, by TRAC Reports, is available at http://trac.syr.edu/tracreports/crim/198/.

Nonimmigrant admissions. The Department of Homeland Security’s newly released Nonimmigrant Admissions to the United States: 2007, notes that 171 million nonimmigrants were admitted to the U.S. in 2007. These included tourists and business travelers from Canada, Mexican nationals with Border Crossing Cards, and all admissions requiring the submission of an I-94 form. I-94 admissions accounted for 22 percent (37 million) of the total admissions, the report notes. The majority (90 percent) of I-94 admissions were short-term visitors such as tourists and business travelers, while the remaining 10 percent (3.6 million) were temporary residents characterized by a longer duration of stay, such as specialty workers, students, and nurses. The leading countries of citizenship for I-94 admissions were Mexico, the United Kingdom, and Japan.

Admissions of temporary workers and trainees increased 13 percent from 2006 to 2007. The report attributes this increase primarily to the following classes: H-2A (31 percent), H-1B (23 percent), and H-2B/H-2R (16 percent). Although seasonal agricultural workers (H-2A) comprised only 7.8 percent of temporary worker admissions in 2007, the report states, the number of entries under this class increased 88 percent from 2006 to 2007. Student admissions rose 14 percent from 2006 to 2007, and 93 percent of that increase reflected academic student entries (F-1). Entries of intracompany transferees (L-1) grew 13 percent from 2006 to 2007, and exchange visitor admissions (J-1) increased 15 percent during the same period.

The report notes that the leading countries of citizenship for H-1 admissions in 2007 were India (34 percent), Canada (5.7 percent), and the United Kingdom (5.5 percent). From 2006 to 2007, H-1B admissions from India increased 25 percent (32,000 admissions).

Nearly half of academic student admissions (F-1) were nationals of five countries: South Korea (15 percent), India (9.4 percent), China (8.5 percent), Japan (8.2 percent), and Mexico (7 percent), the report notes. Since 2005, Mexico, China, and India have shown consistent increases in F-1 admissions, while admissions from Japan have declined.

The report is available at http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ni_fr_2007.pdf. The DHS also has released Data on Nonimmigrant Admissions,available at http://www.dhs.gov/ximgtn/statistics/publications/YrBk07NI.shtm, and Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2007, available at http://www.dhs.gov/xlibr.

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13. Recent News from ABIL Members

Steven A. Clark (bio: https://www.abil.com/lawyers/lawyers-clark.cfm) made a presentation at the American Immigration Lawyers Association’s 2008 PERM CLE Conference in Chicago on August 25, 2008. His panel, “A Walk Through the New 9089,” discussed how the changes in the new PERM form, to become effective January 2009, will affect labor certification practice and offered practice tips for practitioners navigating the new form.

Angelo A. Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) was quoted recently in the Orange County Register. Commenting on the Department of Labor’s position that an employer may not require foreign workers to pay either the legal or filing fees for an H-1B visa petition, Mr. Paparelli noted that typically a petition may cost $2,320 and legal fees may run $2,000 to $4,000 per worker. “If the employer forces the immigrant to pay those fees and the worker complains, DOL will make the employer pay the fees plus back wages,” he said. “This falls heavily on small companies that can’t afford [the fees and penalties], yet they need to compete with big companies for the best workers.” The article is available at http://jan.freedomblogging.com/2008/09/08/fee-rule-for-immigrant-knowledge-workers-a-landmine/.

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14. 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/jsps/ptimes.jsp

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

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Headlines:

1. Bill Would Extend E-Verify for 10 Years – With E-Verify set to expire in November, some lawmakers feel there is insufficient time to do anything other than pass a 5-year extension.

2. New ?Exit Tax? on U.S. Citizens and Long-term Permanent Residents – The new exit tax is a major deterrent for wealthy individuals who are considering applying for permanent residence.

3. EB-2 Numbers for India, China Advance in August; Employment Third Preference Category Are Unavailable – The EB-2 visa category for India and China advances in August to June 1, 2006, a jump of more than two years.

4. Labor Dept. Proposes Modifying LCA, Seeks Comment on Labor Certs for Ag Workers – The LCA modifications are primarily due to the conversion to the electronic submission system; the Department also seeks comment on measures to improve the labor certification program for the temporary employment of nonimmigrant agricultural workers.

5. State Dept. Releases Annual Student and Exchange Visitor Update – The cable asks posts to have a clear procedure in place for expediting F, M, and J appointments.

6. USCIS Adds Vaccines to Requirements for Permanent Residents – USCIS revised the list of vaccines required for applicants seeking permanent resident status.

7. USCIS Updates Cap Info for H-1B Workers for FY 2009 – USCIS has added 5,800, the projected number of unused H-1B1 Chile/Singapore visas, to the FY 2009 H-1B cap; this does not necessarily mean that more H-1B visa cases can be filed for FY 2009, however.

8. USCIS Extends Validity of EADs for Refugees – USCIS is extending the validity of initial work authorization documents for refugees to two years after arrival in the U.S.

9. TSA Testifies on Watch Lists; ACLU Protests – The TSA is exploring possible enforcement action against air carriers who tell passengers inaccurately that they are watch-listed.

10. USCIS Revises Biometric Instructions for Reentry Permits and Refugee Travel Documents – Applicants for re-entry permits and refugee travel documents must provide biometrics (e.g., fingerprints and photographs) at a USCIS Application Support Center.

11. USCIS Continues Suspension of Premium Processing for Religious Workers – USCIS said it cannot reasonably ensure a level of processing service within 15 calendar days.

12. New Publications and Items of Interest – New Publications and Items of Interest

13. Recent News from ABIL Members – Recent News from ABIL Members

Details:

1. Bill Would Extend E-Verify for 10 Years

With E-Verify set to expire in November, some lawmakers feel there is insufficient time to do anything other than pass a 5-year extension. “We’ve got six weeks left in this session, and we’re just not going to get that done,” said Rep. Zoe Lofgren (D-Cal.). She and Rep. John Conyers (D-Mich.) are moving a bill for a 5-year extension through the House of Representatives. It is unclear whether the Senate will agree. Any reform of the verification process will have to wait until the next administration.
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2. New ?Exit Tax? on U.S. Citizens and Long-term Permanent Residents

A new “exit tax” applies to U.S. citizens who expatriate and long-term permanent residents who lose their status (voluntarily or otherwise) on or after June 17, 2008. The exit tax includes a capital gains tax on the unrealized gain in a covered expatriate’s worldwide assets, and a transfer tax on all gifts and bequests from a covered expatriate to any U.S. person during the life or upon the death of the covered expatriate. A “covered expatriate” is a person who gives up U.S. citizenship or loses permanent resident status (having held it for at least 8 of the past 15 years) and who: (1) has a net worth of more than $2 million; or (2) had average U.S. federal income tax liability of more than $139,000 over the past 5 years; or (3) fails to certify under penalty of perjury that he has complied with all federal tax obligations for the past 5 years. There are limited exceptions for dual citizens from birth and persons who expatriate before age 18 and ½ years.

The exit tax is a major deterrent for wealthy individuals who are considering permanent resident status, and a potentially huge tax penalty for permanent residents who wish to leave the U.S. or have already done so. It is already prompting wealthy individuals who have held permanent resident status for less than 8 years to surrender their green cards before they become subject to this tax. In such circumstances, there are several nonimmigrant visa options that permit long-term residence in the U.S. without exposure to the exit tax.

The exit tax is contained in the Heroes Earnings Assistance and Relief Tax Act of 2008, which is available at http://www.opencongress.org/bill/110-h6081/text. Prior to enactment, ABIL member Steve Trow published an article titled “The Exit Tax – A Perfectly Bad Idea” in Tax Notes International and a second article titled “Exit Tax: Eying the Turnstile Again” in Bender’s Immigration Bulletin. Copies of these articles are available upon request from [email protected].

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3. EB-2 Numbers for India, China Advance in August; Employment Third Preference Category Are Unavailable

The Department of State’s Visa Bulletin for August notes that the employment-based second preference (EB-2) visa category for India and China has advanced to June 1, 2006, a jump of more than two years. Meanwhile, demand for visa numbers has resulted in the employment third preference “Other Worker” category reaching the annual fiscal year 2008 numerical limit. As a result, this category has become unavailable beginning in August and will remain so for the remainder of FY 2008. This will be temporary, however, and the employment third preference cut-off date will return in October, the first month of the new fiscal year, to January 1, 2003. Other employment categories are not expected to move in August.

The Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4310.html.

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4. Labor Dept. Proposes Modifying LCA, Seeks Comment on Labor Certs for Ag Workers

The Department of Labor seeks comment on the labor condition application (LCA) for H-1B, H-1B1, and E-3 nonimmigrants. The modifications being proposed to ETA Forms 9035, 9035CP, and 9035E are primarily due to the elimination of the “Fax Back” system and converting exclusively to the electronic submission system, except in rare cases of physical disability that prevents use of a computer. The Department noted that all three forms need to be updated to eliminate all reference to the “Fax Back” system and “provide more clarity to the user of the form, thereby obtaining more accurate information for the Department to assist in more efficient and effective adjudication of the requested benefit.” The Department said the information collected remains the same. The Federal Register notice related to the LCA is available at http://edocket.access.gpo.gov/2008/pdf/E8-14464.pdf.

The Department also seeks comment on measures to improve the labor certification program for the temporary employment of H-2A nonimmigrant agricultural workers. The Department noted that employers who have received certification for temporary foreign agricultural labor must inform their local State Workforce Agency (SWA) in writing if the H-2A workers do not depart for the place of employment three days before the date of need as specified in their labor certification applications. The departure date is used to start the running of the contract period for administration of the “Fifty Percent Rule.” The employer must continue to provide employment to any qualified and eligible U.S. worker who applies to the employer until 50 percent of the work contract period, under which the foreign worker is in the job, has elapsed. The employer’s obligation to engage in positive recruitment ends on the date the foreign workers depart for the employer’s place of business. The notification required under the regulations is written by the employer and sent to the SWA. The SWA uses the information to calculate the end of active recruitment requirements and Fifty Percent Rule referral requirements.

The Department is particularly interested in comments that: (1) evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submissions of responses.

That notice is available at http://edocket.access.gpo.gov/2008/pdf/E8-14465.pdf.

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5. State Dept. Releases Annual Student and Exchange Visitor Update

The Department of State’s Bureau of Consular Affairs has released the annual update of its student and exchange visitor (F, J, and J visas) issues. The cable asks posts to have a clear procedure in place for expediting F, M, and J appointments, with first-time applicants being given the highest priority. The cable also discusses summer work and travel issues, clarifies some information on Form DS-2019, and reminds posts about required annotations and the end of requirements to put DS-2019 forms in sealed envelopes. The cable also notes the changes in J-1 sponsor sanctions procedures.

The cable is available at http://travel.state.gov/visa/laws/telegrams/telegrams_4202.html.

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6. USCIS Adds Vaccines to Requirements for Permanent Residents

U.S. Citizenship and Immigration Services (USCIS) announced on July 24, 2008, a revised list of vaccines required for applicants seeking permanent resident status. This revision follows guidance from the Centers for Disease Control and Prevention (CDC).

CDC’s revised Technical Instructions to Civil Surgeons for Vaccination Requirements require the following age-appropriate additional vaccinations to adjust status to legal permanent resident:

• Rotavirus
• Hepatitis A
• Meningococcal
• Human papillomavirus
• Zoster

The requirements for these new vaccines went into effect on July 1, 2008; however, CDC approved a 30-day grace period for any medical exam conducted before August 1, 2008. Starting on that date, the new vaccinations, if appropriate, must be administered for USCIS to approve the applicant for adjustment of status.

USCIS has revised the Report of Medical Examination and Vaccination Record (Form I-693) to include these new vaccination requirements. The June 5, 2008, edition of the I-693 must be used for any medical examination completed on or after August 1, 2008.

USCIS’s notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=902252b10f45b110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The CDC’s revised Technical Instructions to Civil Surgeons for Vaccination Requirements are available at http://www.cdc.gov/ncidod/dq/civil.htm. USCIS has posted a list of frequently asked questions about the revised vaccination requirements at http://www.uscis.gov.

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7. USCIS Updates Cap Info for H-1B Workers for FY 2009

U.S. Citizenship and Immigration Services (USCIS) recently noted that 6,800 visas are set aside during the fiscal year for the H-1B1 program under legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool can be made available for H-1B use with start dates beginning on October 1, 2008, the start of FY 2009. USCIS has added 5,800, the projected number of unused H-1B1 Chile/Singapore visas, to the FY 2009 H-1B cap. As of the update, the cap for H-1B1s for FY2009 had not been reached.

This does not necessarily mean that more H-1B visa cases can be filed for FY 2009, however. In the past, USCIS has taken unused Chile/Singapore H-1B numbers into account in their estimates based on prior usage and not adjusted the allocation once the final count became available.

This and related updates are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=138b6138f898d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=91919c7755cb9010VgnVCM10000045f3d6a1RCRD.

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8. USCIS Extends Validity of EADs for Refugees

U.S. Citizenship and Immigration Services (USCIS) recently announced that it is extending the validity of initial Employment Authorization Documents (EADs) for refugees to two years after arrival in the United States. Previous policy required renewal of the EAD after one year, except in certain adjustment cases that were expected to remain pending for more than one year.

USCIS said the new policy will reduce the financial burden on refugees by eliminating the need for many refugees to apply for renewal of work authorization documents before they are able to adjust status to permanent residence. There is no fee for the initial application for a refugee EAD, but applicants incur a $340 fee for renewals.

USCIS estimated that a refugee would request, at minimum, one EAD renewal before adjustment of status if the EAD validity period were not extended to two years.

The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f8ef93de9b21b110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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9. TSA Testifies on Watch Lists; ACLU Protests

Transportation Security Administration (TSA) administrator Kip Hawley recently testified before the House Transportation and Infrastructure Subcommittee on Aviation on TSA’s use of subsets of the terror watch list and airlines’ misidentifying passengers on these watch lists, a topic that has been in the news recently as a CNN reporter and others have been sent repeatedly to secondary inspections following their alleged erroneous inclusion in the watch lists and inability to have their names removed.

The TSA noted that “misidentification hassles at the airline ticket counter is consistently among the most frustrating complaints of the traveling public.” The TSA announced a solution that requires action by the airlines. The TSA said that each airline now has the flexibility to create a system to verify and store securely a passenger’s date of birth, to clear up watch list misidentifications. By voluntarily providing this data to an airline and verifying that information at the ticket counter, the TSA said, travelers who were previously inconvenienced on every trip will now be able to check in online or at remote kiosks.

As an incentive for the airlines to take action, the TSA announced plans to collect data from air carriers to determine how many cleared passengers are being forced to the ticket counters to verify their identification before being issued a boarding pass. The TSA said it is also actively exploring enforcement action against air carriers who tell passengers inaccurately that they are watch-listed. The TSA reportedly is also threatening to fine airlines up to $25,000 when they erroneously tell passengers they are on a terrorist watch list.

The TSA stated that fewer than 50,000 individuals are on the no-fly and selectee lists. Individuals on the no-fly and selectee lists are identified by law enforcement and intelligence entities as legitimate threats to transportation who require either additional screening or are prohibited from boarding an aircraft. The watch lists also include any aliases or variations an individual may use, which drives up the overall number of names on a list.

David Stempler of the Air Travelers Association was not impressed by the TSA’s blaming airlines for the problems: “Airline security should always have been a government responsibility, and deflecting criticism to the airlines is inappropriate.” The TSA is expected to assume responsibility for checking names against the lists early next year.

Meanwhile, the American Civil Liberties Union, which calculates that there are over one million names on the list, called on the House Homeland Security Committee to exercise vigorous oversight of the Department of Homeland Security programs that “endanger U.S. citizens’ privacy and civil liberties without increasing security.” Caroline Fredrickson, director of the ACLU’s Washington Legislative Office, said, “Members of Congress, nuns, war heroes and other ‘suspicious characters,’ with names like Robert Johnson and Gary Smith, have become trapped in the Kafkaesque clutches of this list, with little hope of escape.”

The TSA’s notice is available at http://www.tsa.gov/press/happenings/reporter_watch_list.shtm. Mr. Hawley’s testimony is available at http://www.tsa.gov/press/speeches/072408_hawley_aviation_security.shtm. Complaints may be filed online at http://www.dhs.gov/xtrvlsec/programs/gc_1169676919316.shtm. The ACLU’s statements are at http://www.aclu.org/privacy/35968prs20080714.html and http://www.aclu.org/privacy/36026prs20080717.html. The ACLU’s watch list counter is at http://www.aclu.org/privacy/spying/watchlistcounter.html.

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10. USCIS Revises Biometric Instructions for Reentry Permits and Refugee Travel Documents

U.S. Citizenship and Immigration Services (USCIS) has issued revised instructions for Form I-131, Application for Travel Document. The instructions include changes that require applicants for re-entry permits and refugee travel documents to provide biometrics (e.g., fingerprints and photographs) at a USCIS Application Support Center (ASC) for background and security checks and to meet requirements for secure travel and entry documents containing biometric identifiers.

The new instructions for the I-131 require that applicants for re-entry permits and refugee travel documents who are ages 14 through 79 provide biometrics before departing from the U.S. Applicants are strongly encouraged to apply, whenever possible, well in advance of their anticipated travel dates to allow time to attend their ASC appointments and to receive their travel documents. Shortly after filing an I-131 for a refugee travel document or a re-entry permit, USCIS will mail the applicant his or her receipt and an ASC scheduling notice. Certain overseas USICS offices may, in their discretion, accept and adjudicate an I-131 filed for a refugee travel document (but not a re-entry permit), where the applicant has failed to apply while in the U.S. Applicants for refugee travel documents should not count on the overseas offices necessarily agreeing to accept and adjudicate an I-131 in all cases, however, particularly where it is evident to the agency that the individual could have applied while in the U.S. and attended his or her biometrics appointment.

If applicants require expedited processing, the instructions provide specific information for submitting pre-paid express mailers with the I-131 for USCIS to send the applicant his or her receipt and ASC appointment notice, as well as the completed re-entry permit or refugee travel document, if approved. A request for expedited processing should contain the applicant’s reasons for such processing so that USCIS may determine whether the applicant qualifies for expedited processing.

The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=9c1161ccdc20b110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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11. USCIS Continues Suspension of Premium Processing for Religious Workers

U.S. Citizenship and Immigration Services (USCIS) announced that the suspension of premium processing service for religious worker (R-1) nonimmigrant visa petitions will continue at least until January 7, 2009. A previous six-month suspension was announced on January 4, 2008.

The Premium Processing Service provides faster processing of certain employment-based petitions and guarantees a 15-calendar day processing time. Because of the complexities of adjudicating R-1 nonimmigrant visa petitions, USCIS said it cannot reasonably ensure a level of processing service within 15 calendar days.

On April 25, 2007, USCIS proposed significant revisions to its regulations related to the special immigrant and nonimmigrant (R-1) religious worker visa classifications. The proposed rule suggested steps to eliminate fraud in the religious worker program and discussed potential vulnerabilities addressed in an August 2005 Benefit Fraud Assessment conducted by USCIS’s Office of Fraud Detection and National Security. USCIS said it is considering comments on the proposed rule.

USCIS will continue processing R-1 nonimmigrant visa petitions, including procedures that may include inspections, evaluations, verifications, and compliance reviews for religious organizations. These procedures necessitate exceeding the 15-day guarantee for premium processing.

In the future, the agency said it may reconsider this decision if it is able to properly process these cases within 15 calendar days of receipt. USCIS may prescribe additional conditions of availability on the Premium Processing Service for religious worker petitions.

The USCIS notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=788bc1cacd70b110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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12. New Publications and Items of Interest

GAO: Improve passport operations. In 2007, following the implementation of new document requirements for travelers entering the U.S. from within the Western Hemisphere, the Department of State received a record number of passport applications. In June 2009 further document requirements are scheduled to go into effect and will likely lead to another surge in passport demand. In a report released on July 2008, the Government Accountability Office (GAO) examined (1) the extent to which the Department was prepared for the surge in passport demand and how its readiness affected passport operations, (2) the Department’s actions to increase passport production capacity in response to the surge, and (3) the Department’s readiness for near-term surges in demand and its strategy to improve passport operations.

The GAO noted that the Department was unprepared for the record number of passport applications it received in 2007, leading to significant delays. Reported wait times reached 10 to 12 weeks in the summer of 2007, more than double the normal wait, with hundreds of thousands of passports taking significantly longer. The Department had difficulty tracking individual applications and failed to effectively measure or communicate to applicants the total expected wait times, prompting many to re-apply and further straining processing capacity.

The Department took a number of emergency measures and accelerated other planned efforts to increase its passport production capacity in 2007. As a result of these efforts and the normal seasonal decline in passport applications, the GAO noted, wait times returned to normal by October 2007. According to Department estimates, these emergency measures cost $42.8 million. Although the Department has taken steps to improve its ability to respond to near-term surges in passport demand, the GAO found that the Department lacks a comprehensive strategy to improve long-term passport operations. The GAO noted that the Department previously identified several deficiencies that limited the efficiency and effectiveness of passport operations, such as reliance on a paper-based work flow and ineffective communications. The Department identified a framework to guide its modernization efforts, but the GAO concluded that it does not have a comprehensive plan to prioritize and synchronize improvements to its passport operations. A comprehensive strategy for making these improvements would better equip the Department to handle a significantly higher workload in the future, the GAO said.

The report, “State Department: Comprehensive Strategy Needed to Improve Passport Operations” (GAO-08-891), is available at http://www.gao.gov/new.items/d08891.pdf.

USCIS ombudsman 2008 recommendations. The ombudsman for U.S. Citizenship and Immigration Services has released a chart of 2008 recommendations and activity, available at http://www.dhs.gov/xlibrary/assets/cisomb_recommendations_to_uscis_status_chart.pdf.

Article: emphasis on border control ineffective. Philip Kretsedemas, co-editor of Keeping Out the Other: A Critical Introduction to Immigration Today and professor of sociology at the University of Massachusetts, has written “What’s Different About the Immigration Problem We Face Today – And What Can Be Done About It.” The article notes that the debate about undocumented migration still “seems to be lodged in a paradigm that is organized around border control. Although this emphasis is not entirely misplaced, it also tends to produce distorted explanations of undocumented migration and ineffective strategies for controlling undocumented migration.” The article is available at http://hnn.us/articles/49469.html.

Labor certification process. The U.S. Department of Labor (DOL) is harming the competitiveness of U.S. companies and the growth of U.S. jobs and innovation by enforcing a labor certification policy not intended by Congress and divorced from economic reality, according to a new study released by the National Foundation for American Policy (NFAP). The study, “Certifiable: The Department of Labor’s Approach to Labor Certification,” concludes that although the law requires labor certification for most skilled immigrants seeking a green card, the DOL has “created the current system out of whole cloth.” The study is available at http://www.nfap.com/pdf/080731laborcertification.pdf.

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13. Recent News from ABIL Members

Steve Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) was quoted in the July 8, 2008, issue of the Los Angeles Times. The article on undocumented graduates noted that even the most prestigious academic posts have not shielded students from immigration enforcement. Dan-el Padilla Peralta, a classics scholar and Princeton salutatorian in undocumented status from the Dominican Republic, pursued a master’s degree at Oxford University and avoided possible exclusion upon his return only through an intense legal and publicity campaign, his lawyer, Mr. Yale-Loehr, said.

Steve Garfinkel (bio: https://www.abil.com/lawyers/lawyers-garfinkel.cfm) presented an Immigration Briefing on July 10, 2008, to more than 40 human resources professionals. The briefing, coordinated by The Employers Association, covered topics including practical tips on compliance, visa eligibility basics for employers, an update on verifying social security numbers and the “E-Verify” system, and recent enforcement activity.

Mr. Garfinkel has accepted an invitation to speak on immigration law issues at the North Carolina SHRM State Conference on Thursday, September 11, 2008. Steve will discuss employment-based immigration law challenges on a panel, “The Face of Immigration in America.”

Charles Kuck’s (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) recent comments were quoted in the July 24, 2008, edition of the National Law Journal. Commenting on recent actions of the Department of Labor to crack down on companies hiring foreign workers, such as auditing all current and future labor certification applications filed by Fragomen, Del Rey, Bernsen & Loewy, Mr. Kuck noted that the Department’s efforts are “incredibly unusual. You’ll definitely see more of this because of a change in leadership in the solicitor’s office at the Department of Labor.” Gregory F. Jacob was nominated for the position by President George Bush and confirmed by the Senate late last year.

Laura Danielson (bio: https://www.abil.com/lawyers/lawyers-danielson.cfm) and Poorvi Chothani (bio: https://www.abil.com/lawyers/lawyers-chothani.cfm) were quoted in an article on obtaining visas to send workers to India, available at: http://www.tcbmag.com/industriestrends/goingglobal/102280p1.aspx. Ms. Danielson noted that “[t]he novice doing business in another country that needs a permit often has no idea that it could take weeks or even months to get that documentation in order.” Ms. Chothani outlined four types of business structures acceptable in India: sole proprietorships, partnership firms, private companies, and public companies. “The foreign company can open a branch, project, or liaison office in India. An individual can obtain an employment visa to work at any of these entities,” she noted.

John Nahajzer (bio: https://www.abil.com/lawyers/lawyers-nahajzer.cfm) was listed in the 2008 edition of the International Who’s Who of Corporate Immigration Lawyers.

Steve Clark (bio: https://www.abil.com/lawyers/lawyers-clark.cfm) will be addressing the American Immigration Lawyers Association in Chicago, Illinois, on August 25, 2008, at “PERM: The New Form and The Latest Devlopments.” During the seminar, Mr. Clark will provide a walkthrough of the new Form ETA 9089 used to file labor certifications filed beginning January 1, 2009, including section-by-section changes, implementation of improvements to the form, and danger zones.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) has co-authored an article, “Success With L-1Bs In An Era Of Increased USCIS Scrutiny,” that was published in Mondaq. The article notes that, because of increased scrutiny, the approvability of L-1B petitions in the current environment now requires much more meticulous case preparation. The article reviews the statute, legislative history, past and current regulations and rulemaking, precedent case law, and agency policy memos that guide USCIS in its adjudication of L-1B specialized knowledge petitions. It is available at http://www.mondaq.com/article.asp?articleid=64138.

Cyrus D. Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) was a presenter on July 2, 2008, at a Federal Bar Council program on asylum. His topic was taking appeals to the Board of Immigration Appeals and the Second Circuit.

Mr. Mehta co-authored an article that appeared in the July 1, 2008, issue of Bender’s Immigration Bulletin: “Home Is Where the Card Is: How To Preserve Lawful Permanent Resident Status in a Global Economy.” The article focuses on the obvious pitfalls — abandonment of permanent residence and the inability to naturalize — if an LPR opts for a career overseas, but also explores ways to minimize these pitfalls. The article also advocates a reappraisal of abandonment.

Before enactment of the new exit tax for U.S. citizens and long-term permanent residents, Steve Trow (bio: https://www.abil.com/lawyers/lawyers-trow.cfm) authored “The Exit Tax – A Perfectly Bad Idea,” which was published in Tax Notes International, and “Exit Tax: Eyeing the Turnstile Again,” in Bender’s Immigration Bulletin. Copies of these articles are available upon request from [email protected].

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