Headlines:

1. Naturalization Processing Times Increase Drastically – The average processing time for naturalization applications has increased to approximately 18 months.

2. H-2B Cap Reached – USCIS has received a sufficient number of petitions to reach the H-2B cap for the second half of fiscal year 2008.

3. DHS Begins Collecting 10 Fingerprints at Boston Airport – DHS has begun collecting additional fingerprints from international visitors arriving at Boston Logan International Airport.

4. India Employment Second Preference Becomes Unavailable – The annual limit for the India employment second preference category has been reached.

5. State Dept. Issues Travel Documentation Reminder – All persons traveling by air between the U.S. and Canada, Mexico, Bermuda, and the Caribbean region are required to present a passport or other valid travel document to enter or re-enter the U.S.

6. New ICE System Analyzes Suspicious Relationships, Patterns -The ICEPIC system is intended to assist investigators by “identifying suspect identities and discovering possible non-obvious relationships.”

7. Marriott Speaks Out on Immigration – Bill Marriott, chief executive officer of Marriott International, Inc., recently spoke about critical issues facing the hospitality industry.

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

9. Recent News from ABIL Members – Recent News from ABIL Members.

Details:

1. Naturalization Processing Times Increase Drastically

Because of a surge in applications over the summer and resulting massive backlogs, partly in anticipation of fee increases, the average processing time for naturalization applications has increased for applications filed after June 1, 2007, from the current average of seven months or less to approximately 18 months, U.S. Citizenship and Immigration Services (USCIS) said. Family-based adjustment of status applications increased from the current average of six months or less to 12 months.

Specifically, USCIS noted that in July and August of 2007, the agency received nearly 2.5 million applications and petitions, which was double the number typically received in a two-month period. In fiscal year (FY) 2007, USCIS received 1.4 million applications for naturalization, more than the totals from FYs 2006 and 2005 combined. Forty percent of those, or 562,000, were filed in the fourth quarter. Applications for employment- and family-based adjustment of status increased by 76 percent, from 497,000 in FY 2006 to 875,000 in FY 2007.

USCIS said it plans to reduce processing times to six months by the third quarter of fiscal year 2010. USCIS Director Emilio Gonzalez noted that up to several thousand new employees are being hired and trained to deal with the “deluge.” This is in addition to about 700 retired federal government employees who are being hired back without having to sacrifice their pensions, under a plan proposed by Sen. Charles Schumer (D-N.Y.).

A sign-on letter expressing deep concern about the delays notes, among other things, that “[m]any of the undersigned organizations opposed fee increases of the magnitude that USCIS proposed and warned that if USCIS were to proceed with the fee increases, it must prepare for a surge in applications from immigrants wishing to avoid the fee increases. In fact, USCIS did move forward with the fee increases, but did not adequately prepare to handle such a surge.” The sign-on letter is available at http://www.aila.org/content/default.aspx?docid=24331.

An announcement about processing times and case status is available on page 5 of USCIS’s December 2007 newsletter at http://www.uscis.gov/files/nativedocuments/USCIS_Monthly_Dec07.pdf. Related testimony from Mr. Gonzalez on January 17, 2008, before the House of Representatives’ immigration subcommittee is available at http://www.uscis.gov/files/testimony/testimony_ETG_17jan08.pdf.

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2. H-2B Cap Reached

U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the second half of fiscal year (FY) 2008. USCIS stated that January 2, 2008, is the “final receipt date” for new H-2B worker petitions requesting employment start dates before October 1, 2008. The final receipt date is defined as the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the second half of FY 2008.

USCIS said it is rejecting any petitions for new H-2B workers seeking employment start dates before October 1, 2008, that arrive after January 2, 2008. The agency will apply a computer-generated random selection process to all petitions subject to the cap that were received on January 2, 2008, to select the number of petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.

Petitions for workers who are currently in H-2B status do not count toward the congressionally mandated 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.

Kathleen Campbell Walker, President of the American Immigration Lawyers Association (AILA), said, “This continuing failure to connect the dots between meeting valid labor needs and our immigration laws is inexcusable. Placing America at a competitive disadvantage is unacceptable. Maxing out on a cap four months before the applicable period even begins shows how little relation there is between immigration policy and the needs of the economy.” AILA said that service industries such as hospitality, including restaurants and hotels, landscaping, construction, and seafood processing are among those most damaged by Congress’s inaction.

The USCIS announcement is available at http://www.uscis.gov/files/pressrelease/H-2B_3jan08.pdf. AILA’s press release is available at http://www.aila.org/content/default.aspx?docid=24215.

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3. DHS Begins Collecting 10 Fingerprints at Boston Airport

The Department of Homeland Security (DHS) announced on January 22, 2008, that it has begun collecting additional fingerprints from international visitors arriving at Boston Logan International Airport (Logan). The change is part of the DHS’s upgrade from two- to 10-fingerprint collection.

For more than four years, U.S. Department of State (DOS) consular officers and U.S. Customs and Border Protection (CBP) officers have been collecting biometrics—digital fingerprints and a photograph—from all non-U.S. citizens between the ages of 14 and 79, with some exceptions, when they apply for visas or arrive at U.S. ports of entry.

The department’s US-VISIT program includes checks of a visitor’s fingerprints against DHS records of immigration violators and Federal Bureau of Investigation (FBI) records of criminals and known or suspected terrorists. The DHS said that collecting 10 fingerprints improves fingerprint matching accuracy and the agency’s ability to compare a visitor’s fingerprints against latent fingerprints collected by Department of Defense (DOD) and the FBI from “known and unknown” terrorists. Additionally, visitors’ fingerprints are checked against the FBI’s Criminal Master File.

On an average day at Logan, almost 2,000 international visitors complete US-VISIT biometric procedures. Visitors from the United Kingdom, Ireland, Germany, and France comprise the largest numbers of international visitors arriving at Logan.

Washington Dulles International Airport began 10-fingerprint collection on November 29, 2007, and Hartsfield Jackson Atlanta International Airport began 10-fingerprint collection on January 6, 2008. Seven other ports of entry will soon begin collecting additional fingerprints: Chicago O’Hare International Airport, San Francisco International Airport, George Bush Houston Intercontinental Airport, Miami International Airport, Detroit Metropolitan Wayne County Airport, Orlando International Airport, and John F. Kennedy International Airport in New York. The remaining air, sea, and land ports will transition to collecting 10 fingerprints by the end of 2008, the DHS said.

The announcement is available at http://www.dhs.gov/xnews/releases/pr_1201104663578.shtm.

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4. India Employment Second Preference Becomes Unavailable

Despite two retrogressions of the India employment second preference cut-off date recently, demand for numbers by U.S. Citizenship and Immigration Service offices for adjustment of status cases has remained extremely high in recent months, the Department of State reported in the February 2008 Visa Bulletin. As a result, the annual limit for the India employment second preference immigrant visa category has been reached, and the category has become “unavailable.”

The latest Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3925.html.

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5. State Dept. Issues Travel Documentation Reminder

The Department of State issued a reminder that effective January 23, 2007, all persons traveling by air between the U.S. and Canada, Mexico, Bermuda, and the Caribbean region must present a passport or other valid travel document to enter or re-enter the U.S. Beginning January 31, 2008, U.S. and Canadian citizens need to present either a Western Hemisphere Travel Initiative (WHTI)-compliant document, or a government-issued photo ID, such as a driver’s license, plus proof of citizenship, such as a birth certificate.

At a later date, to be determined, the Departments of State and Homeland Security will implement the full requirements of the land and sea phase of WHTI. Proposed rules require most U.S. citizens entering the U.S. at sea or land ports of entry to have either a U.S. passport; a U.S. passport card; a trusted traveler card such as NEXUS, FAST, or SENTRI; a valid Merchant Mariner Document (MMD) when traveling in conjunction with official maritime business; or a valid U.S. Military identification card when traveling on official orders. Members of the U.S. Armed Forces on active duty traveling on orders are exempt from the passport requirement. The passport requirement does not apply to U.S. citizens traveling to or returning directly from a U.S. territory.

U.S. citizens may begin applying in advance for the new, limited-use, wallet-size passport card beginning February 1, 2008. The Department said it expects that the cards will be available and mailed to applicants in spring 2008. When available, it will only be valid for land and sea travel between the U.S. and Canada, Mexico, the Caribbean region, and Bermuda.

A related 23-page letter on the WHTI from Richard Stana, Director of Homeland Security and Justice Issues for the Government Accountability Office, to the House of Representatives’ Subcommittee on Border, Maritime and Global Counterterrorism, is available at http://www.aila.org/content/default.aspx?docid=24355. Among other things, Mr. Stana noted that the GAO “acknowledge[s] that DHS has taken a number of actions to prepare for testing and deploying technologies and managing the implementation of other WHTI activities. However, as key elements of planning for program management and execution remain uncertain, we continue to believe that DHS faces challenges deploying technology, and staffing and training officers to use it.”

More information on the WHTI is available at http://travel.state.gov/travel/cbpmc/cbpmc_2223.html.

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6. New ICE System Analyzes Suspicious Relationships, Patterns

U.S. Immigration and Customs Enforcement (ICE) is implementing, effective February 29, 2008, the “ICE Pattern Analysis and Information Collection System” (ICEPIC). The system is intended to assist investigators by “identifying suspect identities and discovering possible non-obvious relationships among individuals and organizations” to discover violations of customs and immigration laws as well as possible terrorist threats or plots, according to a DHS report. The databases, which ICE declined to identify specifically, include those that track foreign students and visitors, immigrants, criminals and suspected terrorists. “All ICEPIC activity is associated with ongoing and valid law enforcement investigations,” the report noted.

The system reportedly includes the terrorist watch list, from which an estimated 15,000 people have appealed to have their names removed because of incomplete information or inaccuracies. According to the agency, ICEPIC builds on earlier ICE initiatives to verify the identity of Special Interest Aliens (SIAs), as designated by the Department of State. In 2003, ICE implemented the National Security Entry Exit Registration System (NSEERS) to manage the growing collection of over 500,000 SIA records. National and international terrorist threats during 2004 and 2005 resulted in ICE reviewing not only the SIA records in NSEERS, but also the records of those registered with the Student and Exchange Visitor Information System (SEVIS) and entered into the United States Visitor and Immigrant Status Indicator Technology (US VISIT) system.

ICEPIC reveals relationships to an identified target, but it is not used to reveal a “predictive pattern,” the report said. From the relationships identified, ICE agents will develop specific leads and intelligence for active and new investigations. ICE is claiming certain exemptions from the Privacy Act.

A proposed rule announcing the system is available at http://a257.g.akamaitech.net/7/257/2422/01jan20081800/edocket.access.gpo.gov/2008/pdf/E8-1556.pdf. A January 30 proposed rule to exempt parts of ICEPIC from the Privacy Act is at http://frwebgate1.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=042632391282+0+0+0&WAISaction=retrieve. The report is available at http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_ice_icepic.pdf.

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7. Marriott Speaks Out on Immigration

Bill Marriott, chief executive officer of Marriott International, Inc., recently spoke at the National Press Club on January 17, 2008, about critical issues facing the hospitality industry. Mr. Marriott is an advocate of immigration reform and creating an efficient visa system. “This country is powered really by immigrant labor,” he said, noting that about 300,000 new workers will be needed over the next several years in his industry and that U.S. visa policies are discouraging foreign workers and visitors from coming. “It’s too tough to visit America. Here in the U.S. we need to put out the welcome mat.”

Mr. Marriott has also sounded off about immigration issues on his blog: “Without hard-working, law-abiding immigrants to the United States – many who come from Mexico – the hospitality industry could not function. It’s just that simple.” He said his company “continues to support changes in the U.S. laws that not only create a path to legal status for immigrants, but also protect the integrity of our U.S. borders.” Mr. Marriott noted that “[r]emoving 12 million undocumented workers from our economy with near full employment would be an absolute disaster for us. We’d like to see a fast, efficient and accurate employment verification system so when we hire someone, we know they are legal.” He said that “[a]t Marriott we firmly believe that the diversity of our workforce makes us great because it’s a reflection of our ever-diversifying global customer base. We value our associates – it doesn’t really matter where they’re born.”

Mr. Marriott’s comments on immigration are available on his blog, which also includes audio links, at http://www.blogs.marriott.com/employment/default.asp?item=704047and http://www.blogs.marriott.com/employment/default.asp?item=499434.

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8. New Publications and Items of Interest

USCIS ombudsman hosts teleconferences. The U.S. Citizenship and Immigration Services (USCIS) Ombudsman is hosting teleconferences to discuss interactions with the agency. Questions and answers from previous teleconferences have been posted recently to the Web site. Topics available include N-648 medical waivers, the new naturalization test, the USCIS receipting delay, and temporary worker visas. See http://www.dhs.gov/xabout/structure/gc_1171038701035.shtm.
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9. Recent News from ABIL Members

Bernie Wolfsdorf (bio: https://www.abil.com/lawyers/lawyers-wolfsdorf.cfm), the American Immigration Lawyers Association’s First Vice President, recently spoke at the Midyear Conference on Investor Visa Options and will be speaking to the Los Angeles County Bar on February 9 on H-1B visas and alternatives.

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) has written a chapter, “The Immigrant Client,” in a new book published by the New York State Bar Association. The book, called The Plaintiff’s Personal Injury Action in New York State, provides a comprehensive review of plaintiff personal injury practice in New York by legal experts who have written respective chapters pertinent to their area of expertise. Steve’s chapter focuses on how to handle personal injury cases when representing an immigrant plaintiff. The chapter highlights the significance of identifying an immigrant’s status in the U.S., analyzes the key cases in both the federal and New York courts, and emphasizes the benefits of consulting with a good immigration lawyer when representing a foreign national who has been injured in an accident.

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Headlines:

1. No-Match Letters Will Not Be Sent This Year, SSA Says; DHS Will Revise Rule – The SSA will not send out no-match letters this year to employers, in response to a preliminary injunction.

2. USCIS Releases New Form I-9 – USCIS has revised the I-9 Employment Eligibility Verification Form, to be required beginning December 26, as a first step toward achieving the document reduction goals.

3. Basic Pilot Findings Released – The accuracy of USCIS’s database used for verification has “improved substantially” since the start of the Basic Pilot program, but further improvements are needed.

4. Nonimmigrant Visa Delays Caused by Electronic Verification Requirement – The change has resulted in delays from interview to visa issuance at many posts.

5. USCIS Releases List of EB-5 Regional Centers – USCIS recently released a list of active approved EB-5 regional centers as of October 2007.

6. DHS To Begin Requiring 10 Fingerprints at Ports of Entry – The Department of Homeland Security (DHS) will begin requiring 10 fingerprints, instead of just two, from international visitors who fly into certain ports of entry.

7. DHS Converting Checks Into Electronic Transfers for I-765 – The Department of Homeland Security is now converting funds from checks into electronic funds transfers for the Application for Employment Authorization.

8. USCIS Centralizes Filing for H-2A Petitions – USCIS announced that effective December 10, 2007, it will only accept H-2A (temporary/seasonal agricultural worker) petitions mailed or delivered to its California Service Center.

9. Department of State Issues Record Number of Student Visas – The Department of State announced that it has issued a record number of visas to students to study in the U.S.

10. ICE Nominee’s Confirmation Is Uncertain in Senate – A confirmation vote in the Senate for Julie Myers to direct U.S. Immigration and Customs Enforcement has not yet been scheduled.

11. Target and Whole Foods Market Charged with Discriminating Against Immigrant Workers – The charges allege that the companies illegally fired and suspended two immigrant workers who had presented clear evidence of their authorization to work in the U.S.

12. State Dept. Issues Final Passport Rule – The final rule reorganizes, restructures, and updates passport regulations.

13. China, India Second Preference Cut-Off Dates Retrogress; Other Projections – The China-mainland born and India employment second preference cut-off dates both will retrogress in December; the Department of State also made other projections.

14. Japan Begins Fingerprinting, Photographing Foreign Visitors – Those refusing to comply will be denied admission into Japan and will be returned to their port of origin.

15. New Publications and Items of Interest -New Publications and Items of Interest

16. Recent News from ABIL Members – Recent News from ABIL Members

Details:

1. No-Match Letters Will Not Be Sent This Year, SSA Says; DHS Will Revise Rule

A Social Security Administration (SSA) spokesperson reportedly has stated that the SSA will not send out no-match letters this year to employers, in response to an October 10, 2007, preliminary injunction from the U.S. District Court for the Northern District of California that enjoined and restrained the Department of Homeland Security (DHS) and the SSA from implementing the final rule, “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.” The preliminary injunction did not preclude the SSA from sending out its traditional no-match letters without the final rule language. According to sources, the SSA is unlikely to send out no-match letters until spring 2008 at the earliest, when the DHS has said it plans to revise the rule. SSA said it did not have sufficient time to revise the no-match letter in 2007. The SSA sends no-match letters, which detail discrepancies between SSA data and information sent in by employers, to approximately 138,000 employers each year concerning as many as nine million employees.
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2. USCIS Releases New Form I-9

U.S. Citizenship and Immigration Services (USCIS) has revised the I-9 Employment Eligibility Verification Form, to be required beginning December 26, as a first step toward achieving the document reduction goals under the Illegal Immigration Reform and Immigrant Responsibility Act and “as a further step in its ongoing work toward reducing the number of documents used to confirm identity and work eligibility,” the agency said.

The most significant change to the I-9 is the elimination of the following five documents from List A of the List of Acceptable Documents:

• Certificate of U.S. Citizenship (N-560 or N-561)
• Certificate of Naturalization (N-550 or N-570)
• Alien Registration Receipt Card (I-151)
• Unexpired Reentry Permit (I-327)
• Unexpired Refugee Travel Document (I-571)

One document was added to List A of the List of Acceptable Documents:

• Unexpired Employment Authorization Document (I-766)

All the Employment Authorization Documents with photographs that are in circulation are now included as one item on List A:

• I-688, I-688A, I-688B, I-766

Instructions for the I-9 also now state that the employee is not obliged to provide the Social Security Number in Section 1 of the I-9, unless he or she is employed by an employer who participates in E-Verify (formerly Basic Pilot). The section on Photocopying and Retaining Form I-9 now includes information about electronically signing and retaining I-9 forms.

Employers should begin using the amended I-9 “(Rev. 06/05/07)N” immediately for all individuals hired on or after November 7, 2007. The Department of Homeland Security (DHS) said it “recognizes that employers should be afforded a period of time to transition to the amended Form I-9.” The DHS therefore will not seek penalties against an employer for using a previous version of the I-9 during a transition period ending on December 26, 2007. After the transition period, employers who fail to use the revised I-9 may be subject to penalties.

Employers only need to complete the new I-9 for new employees. Employers do not need to complete new forms for existing employees, but employers must use the revised I-9 when their employees require reverification.

The new I-9 form is available at http://www.uscis.gov/files/form/i-9.pdf. The updated Handbook for Employers (M-274) is available at http://www.uscis.gov/files/nativedocuments/m-274.pdf. Details about the revised I-9 are available at http://www.uscis.gov/files/pressrelease/FormI9FS110707.pdf. A reminder with the deadline is available at http://www.uscis.gov/files/pressrelease/FormI9Reminder112307.pdf. The USCIS Federal Register notice dated November 26, 2007, is available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/07-5790.pdf. Copies of the documents that are acceptable under the new I-9 requirements may be obtained in a brochure, “Guide to Selected U.S. Travel and Identity Documents” (M-396), which may be ordered in bulk from U.S. Customs and Border Protection, National Distribution Center, P.O. Box 68912, Indianapolis, IN 46268; fax: (317) 290-3046.

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3. Basic Pilot Findings Released

Recent findings about the Web-based Basic Pilot program, now called E-Verify, have been released. Among other things, the new report notes that employers are satisfied with many aspects of the new online version of the former Basic Pilot program. Also, the accuracy of the U.S. Citizenship and Immigration Services (USCIS) database used for verification has “improved substantially” since the start of Basic Pilot. Further improvements are needed, however, the report notes, especially if the program is mandated nationally.

Most importantly, the report states, the database used for verification “is still not sufficiently up to date to meet the [Illegal Immigration Reform and Immigrant Responsibility Act of 1996] requirement for accurate verification, especially for naturalized citizens.” The report notes that USCIS and the Social Security Administration accommodate this problem by providing for a manual review of these cases, which is “time-consuming and can result in discrimination against work-authorized foreign-born persons during the period that the verification is ongoing, if employers do not follow procedures designed to protect employee rights.”

E-Verify allows employers to get automated confirmation of a newly hired employee’s work authorization after an Employment Eligibility Verification (Form I-9) has been completed. Employers who sign up to participate complete the I-9 process as usual, but then enter and submit I-9 information through a Web-based computer program to the Social Security Administration (SSA) database. If the SSA does not have sufficient information to confirm work authorization status, queries are sent to U.S. Citizenship and Immigration Services (USCIS) for confirmation. If more information is required to complete the confirmation process, the employer is asked to have the employee contact the SSA or USCIS to provide the needed information.

The report, which includes recommendations, is available at http://www.uscis.gov/files/article/WebBasicPilotRprtSept2007.pdf. Related materials are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=89abf90517e15110VgnVCM1000004718190aRCRD.

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4. Nonimmigrant Visa Delays Caused by Electronic Verification Requirement

According to a Department of State cable (No. 155679) sent to the field on November 13, 2007, consular posts are now able to access the details of approved nonimmigrant visa petitions in a new report called “PIMS” (Petition Information Management Service). The Kentucky Consular Center (KCC) has ceased e-mailing scanned copies of approved petitions to posts. The electronic PIMS record created by the KCC will now be the primary source of evidence to be used in determining petition approval. This applies to all nonimmigrant petition-based visa categories (H, L, O, P, and Q). The PIMS Petition Report contains a record of all petitioners recorded by the KCC as having approved petitions since 2004. In addition, many of the records contain information from KCC’s Fraud Prevention Unit.

Reportedly, this unanticipated change has resulted in four-day delays at many posts from interview to visa issuance for these categories. The Alliance of Business Immigration Lawyers is monitoring the situation.

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5. USCIS Releases List of EB-5 Regional Centers

U.S. Citizenship and Immigration Services recently released an updated list of active approved EB-5 “Regional Centers,” which are public or private entities approved to participate in the EB-5 immigrant investor program. The Regional Center program makes the investor program useful for those unable to invest the full $1 million by allowing $500,000 investments that require minimal hands-on involvement and are useful for those who do not have the time or resources to qualify their own business for this permanent residence program.

The list, current as of October 2007, is available at http://www.globallawcenters.com/pdfs/23812.pdf. For more on the role of Regional Centers in the EB-5 program, see http://www.greencardinvestor.com/regional.html.

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6. DHS To Begin Requiring 10 Fingerprints at Ports of Entry

The Department of Homeland Security (DHS) is now requiring 10 fingerprints, instead of just two, from international visitors who fly into Washington Dulles International Airport. The US-VISIT requirement will be expanded to nine additional airports next spring:

• Boston Logan International Airport
• Chicago O’Hare International Airport
• Detroit Metropolitan Wayne County Airport
• Hartsfield?Jackson Atlanta International Airport
• George Bush Houston Intercontinental Airport
• Miami International Airport
• John F. Kennedy International Airport (NYC)
• Orlando International Airport
• San Francisco International Airport

By the end of 2008, the DHS plans to deploy the expanded fingerprint system to 107 other airports and to begin collecting 10 fingerprints at other ports of entry. The Department of State currently uses 10?fingerprint scanners at most of its visa?issuing posts and will complete deployment worldwide by the end of 2007.

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7. DHS Converting Checks Into Electronic Transfers for I-765

The Department of Homeland Security is now converting funds from checks into electronic funds transfers for the Application for Employment Authorization (Form I-765). Checks should be made payable to “U.S. Department of Homeland Security.” The DHS notes in the instructions to the form that “[y]ou will not receive your original check back. We will destroy your original check, but we will keep a copy of it. If the EFT [electronic funds transfer] cannot be processed for technical reasons, you authorize us to process the copy in place of your original check. If the EFT cannot be completed because of insufficient funds, we may try to make the transfer up to two times.” In the past, sources noted, the receipt number could be retrieved from the cancelled check to track the application if the receipt got lost in the mail.
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8. USCIS Centralizes Filing for H-2A Petitions

In a Federal Register notice published on November 9, 2007, U.S. Citizenship and Immigration Services (USCIS) announced that effective December 10, 2007, it will only accept H-2A (temporary/seasonal agricultural worker) petitions mailed or delivered to its California Service Center. The following addresses should be used:

Direct mail:

U.S. Citizenship and Immigration Services California Service Center
Attn: H-2A Processing Unit
P.O. Box 10140
Laguna Niguel, CA 92607-1040

Non-U.S. Postal Service deliveries (e.g., private couriers):

U.S. Citizenship and Immigration Services California Service Center
Attn: H-2A Processing Unit
24000 Avila Road, Room 2312
Laguna Niguel, CA 92677

The notice also states that USCIS will return to the petitioner any H-2A petition received on or after December 10, 2007, at a different Service Center, and will instruct the petitioner to file at the correct location. Previously, H-2A petitioners could file with either the USCIS California or Vermont Service Center. USCIS’s press release announcing the change is available at http://www.uscis.gov/files/pressrelease/H2A_filing_9nov07.pdf.

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9. Department of State Issues Record Number of Student Visas

The Department of State announced on November 16, 2007, that it has issued a record number of visas to students coming to study in the U.S., exceeding pre-9/11 levels. During fiscal year 2007, the Department issued more than 651,000 student and exchange visitor visas, which was 10 percent more than last year and 90,000 more than were issued in fiscal year 2001.

The notice is available at http://www.state.gov/r/pa/prs/ps/2007/nov/95290.htm.

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10. ICE Nominee’s Confirmation Is Uncertain in Senate

A confirmation vote in the Senate for Julie Myers to direct U.S. Immigration and Customs Enforcement (ICE) has not yet been scheduled. Concerns about her inexperience reportedly have subsided, but the outcome remains uncertain. Majority Leader Harry Reid (D-Nev.) continues to have concerns and is consulting with members before deciding how to proceed, according to a spokesperson. Ms. Myers recently found herself criticized for honoring an employee with a “Most Original Costume” award who was wearing a controversial costume at ICE’s Halloween party.
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11. Target and Whole Foods Market Charged with Discriminating Against Immigrant Workers

The Legal Aid Society – Employment Law Center (LAS-ELC) recently filed two employment discrimination charges with the Department of Justice against the Target Corporation and Whole Foods Market, alleging that the companies illegally fired and suspended, respectively, two immigrant workers, even though they had presented clear evidence of their authorization to work in the U.S. Target allegedly terminated an employee who is authorized to work under Temporary Protected Status (TPS), and Whole Foods allegedly suspended for 30 days without pay an employee who is a naturalized U.S. citizen.

“The facts could not show more clearly that both Target and Whole Foods Market engaged in classic document abuse, and our clients have suffered the harsh consequences of such illegality,” said Carole Vigne, a Skadden Fellow with the LAS-ELC.

The LAS-ELC’s announcement is available at http://www.las-elc.org/whatsnew.html.

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12. State Dept. Issues Final Passport Rule

The Department of State has issued a final rule that reorganizes, restructures, and updates passport regulations. The Department said it issued the rule “to make [the regulations] easier for users to access information, to better reflect current practice and changes in statutory authority, and to remove outdated provisions.” In general, the Department said, the revisions do not mark a departure from current policy. Rather, the Department’s intent is “to bring greater clarity to current passport policy and practice and to present it in a less cumbersome way.”

The final rule, which includes comments and responses, is available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-22461.pdf. Because issues regarding passport fees and the passport card are addressed in a separate rulemaking, the Department said it will respond to comments on those issues at a later time.

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13. China, India Second Preference Cut-Off Dates Retrogress; Other Projections

The Department of State’s Visa Office announced in the latest Visa Bulletin that the China-mainland born and India employment second preference cut-off dates both will retrogress in December. The Department said the retrogression is a direct result of extraordinarily heavy applicant demand for numbers, primarily by U.S. Citizenship and Immigration Services offices for adjustment-of-status cases. Additional retrogressions cannot be ruled out during the second quarter of the fiscal year, which begins in January 2008, the Department noted.

The Department also made the following projections based on current demand patterns, which could change. “Under no circumstances should they be used as a basis for making any formal plans prior to the announcement of the monthly cut-off dates,” the Department warned.

• Employment Preferences – Worldwide and Philippines:

First and second preferences: Will remain Current.

Third: Slow forward movement should be possible while demand patterns are established.

Third “Other Workers” category (all countries): Little if any forward movement is expected at this time. If the current demand pattern continues, it may be necessary to retrogress the cut-off date at some point later in the fiscal year.

• Employment Preferences – China-mainland born and India:

First: Continued heavy demand may require the establishment of a cut-off date at some point during the fiscal year.

Second: Demand during October and the first week of November has already used over 38 percent of the annual limit. It is hoped that the December retrogressions will return monthly number use within the target range. If not, further retrogressions cannot be ruled out.

The Visa Bulletin for December 2007 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3841.html.

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14. Japan Begins Fingerprinting, Photographing Foreign Visitors

Japan has begun fingerprinting and photographing foreign visitors under new anti-terror legislation approved by Japan’s upper house of parliament. Those refusing to comply will be denied admission into Japan and will be returned to their port of origin. The European Business Council in Japan and the Australian and New Zealand Chamber of Commerce in Japan sent a letter in October to the Justice Ministry expressing concerns about the new requirement. The letter is available at http://www.ebc-jp.com/news/2007Oct%20Letter%20to%20Immigration%20Bureau%20E.pdf.
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15. New Publications and Items of Interest

SEVIS Issues Quarterly Review. The Student and Exchange Visitor Information System (SEVIS) “General Data Quarterly Review” provides a snapshot of information intended for a variety of SEVIS stakeholders. The latest edition of the review includes information presented in charts and graphs from SEVIS data collected on October 1, 2007.

As of October 1, 2007, there were 1,045,918 active nonimmigrant students, exchange visitors, and their dependents in SEVIS. Data on schools, exchange visitor programs, and more than 4.7 million F, J, and M nonimmigrant visa international students and their dependents can be found in SEVIS.

The latest quarterly report is available at: http://www.ice.gov/doclib/sevis/pdf/quarterly_report_sept07.pdf.

DHS Releases Immigration Statistics. Updated immigration statistics are available on the Department of Homeland Security’s Web site. Available reports include information on temporary admissions of nonimmigrants to the U.S., data on naturalizations and legal permanent residents, the 2006 Yearbook of Immigration Statistics, and other topics.

The statistical reports are available at http://www.dhs.gov/ximgtn/statistics/.

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16. Recent News from ABIL Members

Mark Ivener (bio: https://www.abil.com/lawyers/lawyers-ivener.cfm) and Cyrus D. Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) recently authored “Green Cards Through Investment.” The article discusses opportunities under the little-known EB-5 investor visa. It is available at http://www.cyrusmehta.com/news.aspx?SubIdx=ocyrus2007101911523.

Steve Garfinkel (bio: https://www.abil.com/lawyers/lawyers-garfinkel.cfm) presented on business immigration law issues at “Exposing the Dilemma: A Discussion of the Moral and Legal Complexities of U.S. Immigration Laws.” The forum, held at St. Peter’s Catholic Church on October 9, included Mr. Garfinkel’s discussion on the obligations of U.S. employers under U.S. immigration laws, the obstacles facing U.S. employers who seek to employ foreign labor legally, and the dilemmas of U.S. employers who are concerned about securing their existing workforce. Mr. Garfinkel will speak at The Employer’s Association (http://www.employersassoc.com) on January 30, 2008, regarding the newly revised I-9 employment verification form. Topics will include the proper completion of the form, the differences between the old and new versions, and the current situation regarding social security mismatch letters.

H. Ronald Klasko (bio: https://www.abil.com/lawyers/lawyers-klasko.cfm) will speak at the American Immigration Lawyers Association (AILA) New York Chapter Immigration Symposium in New York on December 13, 2007. He spoke at the New Jersey Institute for Continuing Legal Education Annual Immigration Conference in Newark, New Jersey, on November 14, 2007, where he discussed advanced corporate immigration law issues. Additionally, Mr. Klasko addressed the American Bar Association on November 9 at its Labor and Employment Law Conference in Philadelphia. Mr. Klasko’s presentation, “Advising Employers in the Era of Worksite Enforcement,” included topics such as the social security “no match” regulation, areas of potential employer liabilities, and advising employers regarding ICE workplace raids and I-9 compliance issues. Mr. Klasko also participated on two panels at the NAFSA Region VIII conference in Baltimore, Maryland, on November 8. One panel focused on visa issues for post-doctoral candidates; Mr. Klasko discussed appropriate visas for postdoctoral researchers and fellows and led a discussion of employer-sponsored and self-sponsored permanent residence applications. The second panel centered on how to deal with government adjudication delays, where Mr. Klasko offered possible remedies including litigation options (mandamus). Mr. Klasko’s recently authored article, “Litigation to Challenge Agency Delays: Frequently Asked Questions,” was presented at several conferences, including several NAFSA regional programs. This article is in question and answer format, and addresses mandamus filing concerns and issues. Mr. Klasko’s latest publication, “Employment Options for Foreign Nationals in the U.S.: Overview of U.S. Immigration Process,” was published in connection with the American Bar Association conference on November 9, in Philadelphia. For more information or to request presentation materials on any of the above events, e-mail Mr. Klasko at [email protected].

The Cornell Alumni Magazine has published an article about the asylum law clinic that Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) co-directs at Cornell Law School. “Many people don’t realize that, unlike in criminal cases, there’s no constitutional right to counsel in immigration proceedings,” says Mr. Yale-Loehr. “But too often in our immigration system, the most complex cases involve the people who can least afford a lawyer.” The asylum law clinic works to help close that gap. The article is online at http://cornellalumnimagazine.com/Currentissue/features/Feature2.asp.

Steve Clark (bio: https://www.abil.com/lawyers/lawyers-clark.cfm) addressed the Boston Bar Association Foreign Lawyer’s Committee with a presentation on Visa Options for Foreign Lawyers. Mr. Clark discussed some of the difficulties lawyers have in obtaining labor certification due to difficulties encountered obtaining licensure and the rather subjective process law firms use in recruiting and hiring lawyers. Flynn and Clark will be hosting a Breakfast Briefing for clients and friends on I-9 and Related Immigration Enforcement Issues after the first of the year. For more information or to request presentation materials, please e-mail Steve Clark at sclark@flynnclark.

News from Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm):

• Mr. Paparelli will speak on January 17, 2008, at 4:45 pm for the India Legal Process Outsourcing Summit at the Grand Hyatt, New York City. Mr. Paparelli, with another noted attorney, will address the topic of “Best Practices for the Ongoing Management of the Outsourcing Arrangement.” For more information, go to http://americanconference.com/Law_Firm_Management/LPO.htm.
• Susan Wehrer spoke December 3, 2007, on “HR Issues for the Mobil Workforce” at the 2007 International Tax and Business Conference in San Francisco, California. For more information, go to: http://www.entertheusa.com/events/0711_hrissues.pdf.
• Mr. Paparelli will speak at the Investors Visas Workshop on “EB-5 and E-2 Risk Management for Foreign Investors and Immigration Lawyers” on Friday, December 7, 2007, in New York City. For more information, go to: http://www.entertheusa.com/events/0711_investorsvisa.pdf.
• Andrew Lerner will speak on “Panel Covering Department of Labor Issues” at AILA’s 10^th Annual New York Chapter Immigration Law Symposium on December 13, 2007. For more information, go to: http://www.entertheusa.com/events/0711_laborissues.pdf.

Articles Mr. Paparelli was quoted in:

• Workforce Management Magazine in “DHS Rule Blocked.” To view excerpts of article quotes, the article and related article links, go to: http://www.entertheusa.com/news.html#news26.
• Aventura Magazine in “Lost in the Shadows Part II, Why America’s Affluent, Successful Illegal Immigrants Deserve our Help,” November Issue. For a synopsis of quotes and a link to the article, go to: http://www.entertheusa.com/news.html#news25.

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Headlines:

1. U.S. Adds Photo Verification, Sues Illinois on Verification Ban; Towns Rethink Anti-Illegal Laws – The photo tool will be available when a new employee presents an EAD or green card to complete the I-9.

2. USCIS Announces New Naturalization Test -The revised test emphasizes fundamental concepts of American democracy, U.S. history, and the rights and responsibilities of citizenship.

3. DV-2009 Lottery Application Period Begins – Entries for the DV-2009 diversity visa lottery must be submitted electronically between noon EDT, October 3, 2007, and noon EST, December 2, 2007.

4. Passports Now Required for Travel Within Western Hemisphere – The temporary Western Hemisphere Travel Initiative accommodation allowing U.S. citizens to travel by air within the Western Hemisphere using a Department of State proof of passport application receipt has ended.

5. IJs, Border Agents Google Applicants’ Names, Attorneys Warn – Some have been detained at the border or denied entry as a result.

6. U.S. Passport Services Back to Standard Processing Time, State Dept. Says – The Department announced that it has restored passport service to the standard six- to eight-week processing time for routine passport applications.

7. DED Extended for Liberians – The 18-month DED extension period expires on March 31, 2009.

8. New York Considers Proposal to Allow Driver’s Licenses Without Social Security Cards – New York’s Governor Eliot Spitzer has proposed allowing immigrants who reside in New York, regardless of status, to obtain driver’s licenses using foreign identity documents.

9. Lawsuit Challenges Constitutionality of ICE Raids – The suit charges that ICE agents unlawfully broke into and entered the homes of Latinos in the New York area without judicially issued warrants or other legal justification.

10. Video Debunks Immigration Myths, Calls for Reform – The American Immigration Lawyers Association has produced a video on immigration reform that challenges common myths.

Details:

1. U.S. Adds Photo Verification, Sues Illinois on Verification Ban; Towns Rethink Anti-Illegal Laws

In late September, U.S. Citizenship and Immigration Services’ E-Verify (formerly Basic Pilot) work authorization verification system added access to photographs. The photo tool will be available when a new employee presents an Employment Authorization Document (EAD) or Permanent Resident Card (green card) to complete the Employment Eligibility Verification Form (I-9). It allows an employer to compare identical photos: the individual’s photograph on the EAD or green card against the image stored in USCIS’s databases. The tool is intended to help an employer determine whether the document presented “reasonably relates to the individual presenting it” and contains a valid photo. Employers currently participating in E-Verify will be trained on the system enhancement through a mandatory refresher tutorial that launched automatically on September 17, 2007. New employers who registered after that date are learning how to use the photo tool through an updated E-Verify manual, tutorial, and memorandum of understanding.

Meanwhile, the Bush administration has sued Illinois to block a state law, to take effect January 1, 2008, that would prevent employers from using a federal database to check the work authorization of prospective employees under the E-Verify program. In a signal that the move is part of a nationwide effort, Secretary of Homeland Security Michael Chertoff said, “We will vigorously contest any effort to impede our enforcement measures.” A spokesperson for Illinois Governor Rod R. Blagojevich said he signed the bill because of concerns about delays in responding to employer inquiries and a reported 50 percent accuracy rate. More than 23,000 employers are enrolled in the system, and 2.9 million employer inquiries were handled in the most recent fiscal year.

Also, a handful of towns and cities around the nation have begun reexamining their newly passed anti-illegal immigration laws. Riverside, New Jersey, previously enacted a law to penalize anyone who employed or rented to an undocumented person. Many mostly Spanish- and Portuguese-speaking immigrants fled the town, and the local economy began to suffer. Shops and restaurants that had immigrant employees and customers began to shut down and storefronts were boarded up. The town also had mounting legal bills resulting from challenges to the law that delayed other high-priority projects. In September, Riverside rescinded the law. “I don’t think people knew there would be such an economic burden,” said Riverside’s current Mayor George Conard, who had been in favor of the original legislation. According to reports, it is unclear whether those who left will return any time soon.

A press release and fact sheet about the new photo verification capability of E-Verify are available at http://www.uscis.gov/files/pressrelease/EVerifyRelease25Sep07.pdf and http://www.uscis.gov/files/pressrelease/EVerifyFS25Sep07.pdf. Employers can register online for E-Verify at click here.

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2. USCIS Announces New Naturalization Test

U.S. Citizenship and Immigration Services (USCIS) has released the 100 questions and answers that comprise the civics component of the new naturalization test. USCIS will administer the new test to citizenship applicants beginning in October 2008. The revised naturalization test emphasizes fundamental concepts of American democracy, basic U.S. history, and the rights and responsibilities of citizenship, and “promote[s] patriotism among prospective citizens,” USCIS said.

Earlier this year, more than 6,000 citizenship applicants volunteered to take a pilot version of the test at 10 USCIS sites across the country, including Boston, during a four-month period. Volunteers achieved a 92.4 percent overall pass rate on the first try, USCIS noted. The pass rate on the current test is 84 percent, which includes the wider universe of test-takers who did not volunteer for the pilot test. The 100 new civics items on the new naturalization test were selected after USCIS, a panel of history and government scholars, and English as a Second Language (ESL) teachers conducted a review of their responses to the 142 items on the pilot test. Following the pilot, USCIS refined the questions and answers, dropped several and adjusted others to increase clarity, and conducted a second review, eventually narrowing the list to the new 100 questions. The range of acceptable answers to questions will increase so that applicants may learn more about a topic and select from a wider range of responses.

ABIL member Steve Clark reports that in Boston few clients had difficulty with the new test format, but only those with total comfort in English elected to take the test using the new format. He comments that “it will be interesting to see the percentage passing when the new format becomes mandatory.”

The following guidelines will determine whether naturalization applicants will take the current test or the redesigned version:

If an applicant:

– Applies for citizenship before October 1, 2008, and is scheduled for his or her naturalization interview before October 1, 2008, he or she will take the current test.

– Applies before October 1, 2008, and is scheduled for his or her naturalization interview after October 1, 2008, he or she can choose totake either the current test or the redesigned version.

– Applies after October 1, 2008, he or she will take the redesigned version.

– Is scheduled for his or her naturalization interview after October 1, 2009, regardless of when he or she applied, he or she will take the redesigned version. USCIS has posted the 100 new question and answers, the reading and writing vocabulary lists, a side-by-side comparison of the current and new test, answers to frequently asked questions and other information about the new test online at http://www.uscis.gov/newtest.The related press release is available at http://www.uscis.gov/files/pressrelease/NatzTest_27sep07.pdf.

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3. DV-2009 Lottery Application Period Begins

Entries for the DV-2009 diversity visa lottery must be submitted electronically between noon EDT, Wednesday, October 3, 2007, and noon EST, Sunday, December 2, 2007. Applicants must use the electronic entry form at http://www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in Web site delays. There is no fee to enter the DV lottery.For DV-2009, natives of the following countries are not eligible to apply because they sent a total of more than 50,000 immigrants to the U.S. over the period of the previous five years: Brazil, Canada, China (mainland born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, Russia, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.A computer will select individuals randomly from among all qualified entries. They will be notified by mail between May and July 2008 and will be provided further instructions, including information on fees connected with immigration to the U.S. Those selected in the random drawing are not notified by e-mail. Individuals not selected will not receive any notification. U.S. embassies and consulates will not be able to provide a list of successful entrants. Spouses and unmarried children under age 21 of successful entrants may also apply for visas to accompany or follow to join the principal applicant. DV-2009 visas will be issued between October 1, 2008, and September 30, 2009. To receive a diversity visa to immigrate to the U.S., those chosen in the random drawing must meet all eligibility requirements. Processing of entries and issuance of diversity visas to individuals and their eligible family members must occur by midnight on September 30, 2009. Several questions and options for answers have been added to the DV-2009 program to gather additional information, including the country where the applicant lives today, the highest level of education the applicant has achieved, and the term “legally separated” instead of “separated” as an option under the marital status question. Legal separation means that a court has formally declared that the applicant and his or her spouse are legally separated, and means that the spouse would not be eligible to immigrate as the applicant’s derivative.Those electing to file a DV lottery application should be aware that the State Department considers the DV application to be a petition to be reported in the standard visa application Form DS-156 (item 36). While this may be safe enough if seeking an H or L nonimmigrant visa, any others choosing to participate should seek legal advice first to see if the application will adversely impact a future visa application.

Detailed information on how to apply, eligibility requirements, and frequently asked questions is available at http://travel.state.gov/pdf/2009DVinstructions.pdf.

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4. Passports Now Required for Travel Within Western Hemisphere

The Department of Homeland Security (DHS) has reminded air carriers and the traveling public that the temporary Western Hemisphere Travel Initiative (WHTI) accommodation allowing U.S. citizens to travel by air within the Western Hemisphere using a Department of State (DOS) official proof of passport application receipt has ended as scheduled at midnight on September 30, 2007. U.S. citizens who departed the country under this travel accommodation before October 1 with an official proof of passport application receipt and government-issued identification will be readmitted with these same documents if returning to the U.S. after September 30. Effective October 1, U.S. citizens traveling by air to Canada, Mexico, the Caribbean, and Bermuda must present a passport or other WHTI-compliant documentation to enter or depart from the U.S.DHS and DOS announced the temporary WHTI accommodation for air travel in June because of lengthy processing times for passport applications amid record-breaking demand.

The announcement is available at http://www.dhs.gov/xnews/releases/pr_1188939218061.shtm.

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5. IJs, Border Agents Google Applicants’ Names, Attorneys Warn

Immigration attorneys have reported that immigration judges, adjudicators, and border agents sometimes google (perform an Internet search) applicants’ names, even printing out items from sites like MySpace, published articles, or letters to the editor and questioning petitioners about them. Some have been detained at the border or denied entry as a result.In one incident, a Canadian psychologist attempting to enter the U.S. was reportedly detained at the border in Blaine, Washington. He was barred from entering the U.S. and told he could apply to the Department of Homeland Security for a waiver. The border guard had conducted a random Internet search and found an article published in 2001 in which the psychologist discussed his LSD use some 40 years earlier. “Admitted drug use is admitted drug use,” a spokesman for the Border Patrol said. He noted that “[a]nyone who is determined to be a drug abuser or user is inadmissible. A crime involving moral turpitude is inadmissible and one of those areas is a violation of controlled substances.” The psychologist complained to the U.S. consulate in Vancouver, which sent this reply via e-mail: “Both our countries have very similar regulations regarding issuance of visas for citizens who have violated the law. The issue here is not the writing of an article, but the taking of controlled substances. I hear from American citizens all the time who have decades-old DUI convictions who are barred from entry into Canada and who must apply for waivers. Same thing here. Waiver is the only way.”In another case, a Muslim American firefighter from Toledo, Ohio, was born in the U.S. and converted to Islam, changing his name from Edward Eugene Reed, Jr., to Zakariya Muhammad Reed. He had also spent 20 years serving in the National Guard. After visiting his wife’s family in Ontario, he has been detained at the U.S. border a number of times. He says he has been asked why he changed his name and what his faith is, and alleges that one guard muttered, “You know, we’re really too good to these detainees. We should treat them like we do in the desert. We should put a bag over their heads and zip tie their hands together.” Another agent asked him about a letter to the editor he had written in 2006 that was critical of Israel’s actions toward Lebanon and the Palestinians, as well as the U.S. invasion of Iraq. The agents would not tell him why he had been detained, Mr. Reed said, although one border agent said there was a “problem with his name.” He contacted his representative in Congress, Marcy Kaptur, whose aide, Daniel Foote, suggested the trouble may have resulted from his changing his name to a Muslim one. Rep. Kaptur wrote on his behalf to the congressional liaison at U.S. Citizenship and Immigration Services, but despite assurances that his record has been corrected, he continues to be detained and questioned at the border.Ron Smith, a Customs and Border Protection public affairs officer based in Detroit, Michigan, said that “Customs does not practice [or] condone any kind of profiling. It’s completely against our policies. If an individual is found doing so, they would be subject to discipline, up to and including dismissal. Regarding the alleged hooding and zip-tying comment, Smith said: “That would be something we would definitely take action on. It’s not allowed. It’s not something we allow our officers to say.”An article detailing Mr. Reed’s experience is available at http://www.commondreams.org/archive/2007/05/10/1088/.For more on the incident involving the Canadian psychologist, see http://select.nytimes.com/2007/05/14/us/14bar.html.

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6. U.S. Passport Services Back to Standard Processing Time, State Dept. Says

The Department of State announced that it has restored passport service to the standard six- to eight-week processing time for routine passport applications, and to no more than three weeks for expedited service. To date, over 16 million passports have been issued in fiscal year (FY) 2007, compared with 12.1 million issued in FY 2006. The Department said it plans to expand passport facilities and to hire more passport specialists to increase production capacity and meet rising demand expected in the coming years, as passport requirements are extended to land and sea borders. By January 2008, production capacity at the National Passport Center in New Hampshire, the largest passport facility, is expected to have doubled. Longer-term expansion plans include new passport facilities around the country.The Department’s notice is available at http://www.state.gov/r/pa/prs/ps/2007/sep/91868.htm.

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7. DED Extended for Liberians

Effective October 1, 2007, U.S. Citizenship and Immigration Services has announced an 18-month automatic extension of employment authorization for Liberians (and persons without nationality who last habitually resided in Liberia) who have been provided deferred enforced departure (DED) under a memorandum sent on September 12, 2007, from President Bush to Secretary of Homeland Security Michael Chertoff. A copy of USCIS’s notice in conjunction with an employment authorization document (EAD) expiring on September 30, 2007, that was issued previously to the person as a beneficiary of temporary protected status may be accepted as evidence of a covered individual’s continued work authorization through March 31, 2009. The notice provides information on how Liberians and their employers may determine which EADs are automatically extended. The notice also provides instructions for Liberians who have DED and would like to apply for permission to travel outside the U.S. during the 18-month DED extension period, which expires on March 31, 2009.The notice is available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/07-4645.htm. A fact sheet is available at http://www.uscis.gov/files/pressrelease/LiberiaFS_19Sep07.pdf.

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8. New York Considers Proposal to Allow Driver’s Licenses Without Social Security Cards

New York’s Governor Eliot Spitzer has proposed allowing foreign nationals who reside in New York, regardless of status, to obtain driver’s licenses using foreign identity documents, such as passports and birth certificates, without having to present Social Security cards. The idea is to reduce the number of unlicensed, uninsured drivers while aiding law enforcement efforts by increasing the number of license records that could be used in conducting investigations. The proposal has drawn criticism from New York City Mayor Michael Bloomberg and others. Mayor Bloomberg said the proposal would conflict with identity document requirements. “People would need other government ID, generally a passport, and that would be a very big problem. The state’s going to have to work with the federal government in terms of having to fix that problem.” New York Senate Homeland Security Chairman Vincent Leibell (R-Brewster) said the new licensing proposal would not fly. “Just because you change a regulation doesn’t mean you change our statute,” Leibell said, referring to a 1995 law that requires New York’s driver’s license applicants to present a valid Social Security number. In most cases, New York also allows people to drive using valid foreign driver’s licenses. Additional details on the proposal and the reaction are available at http://www.ny.gov/governor/press/0921071.html. For more information on current New York driver’s license requirements for foreign nationals, see http://www.nydmv.state.ny.us/license.htm#driversfromothernations.

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9. Lawsuit Challenges Constitutionality of ICE Raids

Several Latino families and individuals, represented by the Puerto Rican Legal Defense and Education Fund and an international law firm, filed a class action suit on September 20, 2007, against the Immigration and Customs Enforcement (ICE) division of the Department of Homeland Security, charging that its agents unlawfully broke into and entered the homes of Latinos in the New York area without judicially issued warrants or other legal justification. The complaint describes armed ICE agents breaking down doors or forcing their way into Latino households in the pre-dawn hours without court warrants, terrifying children and adults, and looking for individuals who often do not even reside in the homes. A press release announcing the suit is available at http://www.prldef.org/Press/Press%20Releases/ICE/Press%20Release%20-%20Latinos%20Challenge%20Constitutionality%20of%20Home%20Raids%20Conducted%20by%20ICE.pdf. A related article is at http://jurist.law.pitt.edu:80/paperchase/2007/09/ice-sued-over-immigration-raids.php.

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10. Video Debunks Immigration Myths, Calls for Reform

The American Immigration Lawyers Association has produced a video on immigration reform. The video debunks common myths, such as that immigrants are a drain on the economy, that Americans do not support comprehensive immigration reform, that legalizing the undocumented is unfair to those who are waiting in line, that immigration reform is really an “amnesty” program for those in the U.S. illegally, and that enforcement of existing laws is sufficient to fix the system. The video is critical of enforcement-only efforts, which the narrator and commentators say tend to drive the undocumented further underground and contribute to smuggling and fraud.The video is available at: mms://a1791.v167312.c16731.g.vm.akamaistream.net/7/1791/16731/1189998/stream-1.onstreammedia.com/cdn_stream/multivu/14574/29806_300k.wmv.

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Headlines:

1. DOS, USCIS Reverse Policies, Release Guidance in Response to July Visa Number Debacle -The Department of State and USCIS reversed course to resolve the dilemma of tens of thousands of skilled workers who were left out in the cold by the State Department’s sudden announcement on July 2 that there would be no further employment-based green card numbers available this fiscal year.

2. Federal Court Strikes Down PA Illegal Immigration Law – In a ruling viewed as a setback to similar measures in cities and states nationwide, a federal court has struck down Hazleton, Pennsylvania’s “Illegal Immigration Relief Act.”

3. New Application and Petition Fees Went Into Effect on July 30; Rep. Lofgren Introduces Bill to Void New Fees – USCIS issued a reminder that the new fee schedule is effective as of July 30, 2007, with one exception.

4. USCIS Announces Extension of Temporary Suspension of Premium Processing Service for I-140s – USCIS announced an extension of the temporary suspension of Premium Processing Service for the Immigrant Petition for Alien Worker (Form I-140).

5. USCIS Rescinds Earlier Update, Allows Prepaid Mailers – USCIS is, once again, allowing the public to enclose prepaid mailers in connection with applications or petitions filed with USCIS.

6. DHS Exempts Portions of IDENT System From Privacy Act – The Department of Homeland Security issued a final rule exempting portions of the Automated Biometric Identification System from certain provisions of the Privacy Act.

7. FBI Warns Employers About Potential ‘Spies’ – The FBI advises employers to be on the lookout for suspicious people who have favorite “disguises,” including representatives of research institutes, visiting business professionals and scientists, tourists or visitors on nonimmigrant visas, diplomatic officials, false front companies, and students and educators.

8. Passport Measures Relaxed in Response to Massive Backlogs – The State Department has relaxed the passport rules temporarily for North American travel.

9. House Passes Liberian TPS Measure – The House has an extension of the designation of temporary protected status (TPS) for Liberia for an additional 12 months, through September 30, 2008; attention next will focus on the Senate.

10. GAO Reports on Challenges in Attracting International Students and Implications for Global Competitiveness -Recent trends have raised concerns about whether the U.S. will continue to attract talented international students.

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

Details:

1. DOS, USCIS Reverse Policies, Release Guidance in Response to July Visa Number Debacle

The Department of State and U.S. Citizenship and Immigration Services (USCIS) reversed themselves on July 17, 2007, to resolve the dilemma of tens of thousands of skilled workers who had been left out in the cold by the Department’s sudden announcement on July 2, 2007, that there would be no further employment-based green card numbers available until October.

In response to the controversy over the sudden cut-off, USCIS and the State Department reversed themselves. “The public reaction to the July 2 announcement made it clear that the federal government’s management of this process needs further review,” said Emilio Gonzalez, USCIS’s Director. “I am committed to working with Congress and the State Department to implement a more efficient system in line with public expectations.”

The July 2 announcement resulted in much outrage among workers, employers, and their attorneys, and lawsuits were filed and threatened. Rep. Zoe Lofgren (D-Cal.), whose district includes Silicon Valley, wrote to Homeland Security Secretary Michael Chertoff asking for “all correspondence, emails, memoranda, notes, field guidance or other documentation” leading to the sudden decision. Microsoft Corporation announced on July 5 that it plans to open soon a software development center in Vancouver, Canada, to “recruit and retain highly skilled people affected by immigration issues in the U.S.” S. Somasegar, corporate vice president of Microsoft’s Developer Division, noted that “Microsoft is a global company, and our greatest asset is smart, talented, highly skilled people. Our goal as a company is to attract the next generation of leading software developers from all parts of the world, and this center will be a beacon for some of that talent.”

After consulting with USCIS, the Visa Office advised that Visa Bulletin #107 (dated June 12, available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3258.html) should be relied upon as the July Visa Bulletin for purposes of determining employment-based visa number availability, and that Visa Bulletin #108 (dated July 2) has been withdrawn. USCIS announced that it is accepting employment-based applications to adjust status (Forms I-485) filed by aliens whose priority dates are current under Visa Bulletin #107. USCIS will accept applications filed no later than August 17, 2007. Those applications may no longer be filed electronically and must be submitted to a Service Center via regular mail or courier service, USCIS said. Applications already properly filed with USCIS also will be accepted. The current fee schedule will apply to all applications filed under Visa Bulletin #107 through August 17, 2007. The new fee schedule that became effective on July 30, 2007, applies to all other applications filed on or after July 30, 2007.

USCIS also subsequently released several FAQs containing detailed guidance, discussed below.

On July 27, 2007, USCIS released a FAQ (#2) on employment-based adjustment applications filed by those whose priority dates were “Current” under Department of State July Visa Bulletin No. 107. The FAQ makes the following points:

• USCIS will permit applicants who filed adjustment applications between July 2 and July 17, 2007, but who have not yet received a USCIS-generated receipt notice, to file for Advance Parole and Employment Authorization based on proof of delivery of the I-485 application.
• The receipt date for such applications will be based on the date the applications were physically received by USCIS.
• USCIS will accept medical examinations completed abroad by physicians authorized by the Department of State. Applicants must be physically present in the United States when filing for adjustment of status.
• An e-filed I-140 petition (that is not based on a required labor certification) filed on July 31, 2007, will receive a priority date of July 31, 2007, if the supporting documents arrive at a later date. In accordance with e-filing standard procedures, the date on which the I-140 petition is received by USCIS will be the priority date. Supporting documentation must be filed within allotted time limitations.
• A receipt notice from a courier service or overnight mailing service constitutes a “postmark” for fee determination purposes.
• For those who fell out of valid nonimmigrant status between July 2 and July 16, 2007, as a direct result of the inability to file for employment-based adjustment during that period, USCIS said it “has discretion to consider extraordinary circumstances that are beyond the alien’s control and may forgive a short gap in status for such aliens.”
• If an individual’s pre-August 1, 2007, priority date based on an approved labor certification and approved I-140 petition is transferred to a subsequently filed I-140 petition, the later filed I-140 petition may be concurrently filed with an I-485 application between August 1, 2007, and August 17, 2007. An approved I-140 petition on behalf of a beneficiary accords the beneficiary the priority date of the approved I-140 petition for any subsequently filed I-140 petitions on his or her behalf. Therefore, as long as the initial priority date remains current under Visa Bulletin No. 107, a subsequently filed I-140 and an adjustment application may be filed until August 17, 2007.
• If an alien has a pre-August 1, 2007, priority date based on an approved labor certification and a pending I-140 petition, the alien may not be accorded the earlier priority date on a subsequently filed I-140 petition such that the later I-140 and adjustment application may be filed between August 1, 2007, and August 17, 2007. In accordance with 8 CFR 204.5(e), only an approved I-140 petition on behalf of a beneficiary accords the beneficiary the priority date of the approved I-140 petition for any subsequently filed I-140 petitions on his or her behalf. A priority date may only be retained for use in conjunction with a subsequently filed Form I-140 petition if the previous petition was approved and not revoked. If the first petition remains pending, then the filing date of the labor certification submitted in support of the petition may not be used as a basis for a request to retain the priority date.
• The version date on the new I-485 form is 7/30/07 and it has an “N” designation after it, but this does not mean that the I-485 applications arriving at the Service Center on or after July 30, 2007, must use the new I-485 form or it will be rejected at the mailroom. The “N” designation on the new version was inadvertently uploaded to the USCIS Web site and has since been removed, USCIS explained. The new and corrected I-485 application form that will be uploaded will have the “Y” designation, which means that the earlier version of the form will not be rejected.
• All applications, petitions, and notices of legal representation must be properly signed. For more information, see the Reminder Regarding Signature Requirements, available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=9453d59ae8a8e010VgnVCM1000000ecd190aRCRD&vgnextchannel=fe529c7755cb9010VgnVCM10000045f3d6a1RCRD.
• A visa number must be available at the time of filing for adjustment of status. Thus, if a principal applicant with a current priority date under Visa Bulletin No. 107 files for adjustment of status between July 17 and August 17, 2007, any derivative family members must either also file during this time period, or wait until immigrant visa numbers become available at a later date pursuant to the Visa Bulletin.
• The correct filing fee for a concurrently filed I-140 with an adjustment application filed between July 30, 2007, and August 17, 2007, is $475. The new increased fee applies to Forms I-140, whether or not concurrently filed with an employment-based adjustment application, filed on or after July 30, 2007.

USCIS also released an earlier FAQ (#1) regarding the same topic. That FAQ makes the following points, among others:

• The fee of $180 for Forms I-765 and the fee of $170 for Form I-131 will remain in effect for those eligible to file an employment-based adjustment of status application pursuant to July Visa Bulletin No. 107. These fees will remain in effect for all such applications filed between July 17 and August 17, 2007.
• Applicants will not have the option of paying the new filing fees for adjustment applications. USCIS has determined that those in employment-based categories filing applications pursuant to July Visa Bulletin No. 107 should be subject to the pre-July 30, 2007, fees because that fee schedule would have applied had they been allowed to file throughout the month of July.
• USCIS will not accept employment-based adjustment of status applications under July Visa Bulletin No. 107 if the priority date is August 1, 2007 or later.
• USCIS will accept adjustment applications under July Visa Bulletin No. 107 that are submitted by August 17, 2007, if the priority date is before July 31 but the certification is granted after August 1.
• USCIS will accept properly filed Forms I-140 filed on behalf of beneficiaries with a priority date on or after August 1, 2007; however, pursuant to August Visa Bulletin No. 109, USCIS will reject any concurrently filed adjustment of status applications filed by those with a priority date on or after August 1, 2007.
• USCIS will accept adjustment of applications filed pursuant to Visa Bulletin No. 107 without a completed medical examination. In such cases, USCIS will issue a request for evidence.
• Applications delivered on August 17, 2007, will be accepted but those arriving August 18, 2007, will be rejected.
• USCIS interprets AC21 §104(c) (for three-year H-1B extensions) as only applicable when a beneficiary of an approved I-140 petition is eligible to be granted lawful permanent resident status but for application of the per-country limitations. Any petitioner seeking an H-1B extension on behalf of a beneficiary pursuant to AC21 §104(c) must thus establish that at the time of filing for such extension, the beneficiary is not eligible to be granted lawful permanent resident status on account of the per-country immigrant visa limitations.
• Depending on the volume of applications received as a result of the July 17 notice reopening the filing period for employment-based adjustment applications under the July Visa Bulletin, there may be some delay in the issuance of receipt notices. Processing times will be updated on the USCIS Web site.
• USCIS advises applicants filing a Form I-485 that does not contain a copy of an I-797 receipt notice for a previously filed Form I-140 to put a “brightly colored sheet of paper” on top of the filing with the following notice and information: “TO THE MAILROOM: The enclosed I-485 Adjustment Application(s) should be matched with a pending I-140 Immigrant Petition for which no Receipt Notice has been received. The Immigrant Petition [type, e.g., I-140] was delivered to [Service Center] on [date of filing and tracking number]; Petitioner’s name; Beneficiary’s name; Beneficiary’s date of birth; Beneficiary’s country of birth.”

For August, all employment-based preference categories are “Unavailable.” The Department said it is uncertain whether any numbers will be returned and can be reallocated at a future date. Until informed otherwise, the categories will remain unavailable until October, when the new federal fiscal year begins.

USCIS’s announcement is available at http://www.uscis.gov/files/pressrelease/VisaBulletinUpdate17Jul07.pdf. The August Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3269.html. FAQ #2 is available at http://www.uscis.gov/files/pressrelease/FAQ2.pdf. FAQ #1 is available at http://www.uscis.gov/files/pressrelease/EBFAQ1.pdf. Information on fees is available at http://www.uscis.gov/files/pressrelease/Update_eFiling073007.pdf.

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2. Federal Court Strikes Down PA Illegal Immigration Law

In a ruling viewed as a setback to similar measures in cities and states nationwide, a federal court has struck down Hazleton, Pennsylvania’s “Illegal Immigration Relief Act,” a 2006 law that fined landlords who rented to undocumented persons and revoked the business permits of employers who hired them. About a third of Hazleton’s estimated 21,100 to 30,000 residents are from Central America, up from about five percent in 2000, and up to a quarter of those may be undocumented, according to some estimates.

Ruling that the local law is preempted by federal immigration law, U.S. District Judge James M. Munley noted that “[a]llowing states or local governments to legislate with regard to the employment of unauthorized aliens would interfere with congressional objectives.” Judge Munley further opined that “[e]ven if federal law did not conflict with Hazleton’s measures, the City could not enact an ordinance that violates rights the Constitution guarantees to every person in the United States, whether legal resident or not. The genius of our Constitution is that it provides rights even to those who evoke the least sympathy from the general public.” He noted that “[w]hatever frustrations officials of the city of Hazleton may feel about the present state of federal immigration enforcement, the nature of the political system in the United States prohibits the city from enacting ordinances that disrupt a carefully drawn federal statutory scheme.”

The ruling was welcomed by immigrant advocates and the U.S. Chamber of Commerce. “Today’s decision sends an unmistakable message to local officials across the nation that these types of ordinances are a waste of taxpayers’ money, anathema to American values and a violation of the Constitution,” said Omar Jadwat of the ACLU Immigrants’ Rights Project. The U.S. Chamber of Commerce’s National Chamber Litigation Center released a statement noting that “[s]tate and local governments have no business setting national immigrant policy.” The fight is not over yet, however. Bob Dane, a spokesman for the Federation for American Immigration Reform, said, “We are planning to join with the mayor and appeal” the ruling in the U.S. Court of Appeals for the Third Circuit.

The National Conference of State Legislatures estimated that in just the first four months of 2007, states have introduced more than 1,100 bills and resolutions related to immigration. The total last year was 570 bills. In June, Colorado’s Supreme Court ruled that Colorado’s controversial measure to prevent undocumented persons from receiving some government services violated a state constitutional requirement that initiatives address a single subject. Immigration is expected to continue to factor in elections in that state. Meanwhile, Georgia and Arizona are requiring employers to participate in the Basic Pilot work authorization verification program. Beaufort County, South Carolina, plans a mass audit of businesses’ immigration records.

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3. New Application and Petition Fees Went Into Effect on July 30; Rep. Lofgren Introduces Bill to Void New Fees

U.S. Citizenship and Immigration Services (USCIS) issued a reminder that, with the exception noted below, the new fee schedule is effective as of July 30, 2007. Applications or petitions postmarked or otherwise filed on or after that date must include the new fees. The exception is that the fee schedule in place before July 30 will apply to “[a]ll I-765 and I-131 applications based on employment-based adjustment of status applications filed pursuant to Visa Bulletin #107” through August 17, 2007. Those applications may no longer be electronically filed and must be submitted to a Service Center via regular mail or courier service, USCIS said.

USCIS also recently posted and then withdrew an announcement that it would take offline for maintenance its e-filing system and posted the new I-485 application form to reflect higher fees, despite the dispensation to file at the old fee through August 17.

Meanwhile, Rep. Zoe Lofgren (D-Cal.) introduced a bill on July 30, 2007, to void the increases in immigration fees. The bill, which would reinstate the previous fee structure, states that USCIS has failed to reduce application backlogs and has suffered from a lack of transparency and effective management. “Our immigration services need to move into the 21^st century,” Rep. Lofgren said. “But USCIS has consistently failed to explain or justify the amounts and distributions of this new fee increase. While I agree that USCIS needs to modernize its existing infrastructure and procedures, they must do so in a transparent and open manner. After repeated requests over several months, USCIS has yet to provide Congress with a detailed plan for its infrastructure modernization efforts. Our immigration system should be both effective and fair; sacrificing one to achieve the other should not be an option.”

The new fee schedule that became effective on July 30, 2007, applies to all other applications filed on or after July 30, 2007. Overall, application and petition fees have increased, on average, about 66 percent. The new fee schedule is available at http://www.uscis.gov/files/nativedocuments/FinalUSCISFeeSchedule052907.pdf. Information on the exception under Visa Bulletin #107 is available at http://www.uscis.gov/files/pressrelease/VisaBulletinUpdate17Jul07.pdf and http://www.uscis.gov/files/pressrelease/Update_eFiling073007.pdf. Rep. Lofgren’s press release announcing the new bill is available at http://lofgren.house.gov/PRArticle.aspx?NewsID=1819.

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4. USCIS Announces Extension of Temporary Suspension of Premium Processing Service for I-140s

U.S. Citizenship and Immigration Services (USCIS) announced on July 24, 2007, an extension of the temporary suspension of Premium Processing Service for the Immigrant Petition for Alien Worker (Form I-140). USCIS anticipates that the volume of I-140 petitions filed that request Premium Process Service will continue to exceed the agency’s capacity to provide the service according to the program guidelines. Premium Processing Service guarantees that within 15 calendar days of receipt of a petition, USCIS will issue an approval or denial notice, a notice of intent to deny, or a request for evidence, or will open an investigation for fraud or misrepresentation.

The suspension will continue until further notice, USCIS said.

The notice is available at http://www.uscis.gov/files/pressrelease/PremProcI140_072407.pdf.

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5. USCIS Rescinds Earlier Update, Allows Prepaid Mailers

On July 27, 2007, U.S. Citizenship and Immigration Services (USCIS) retracted a July 23 update regarding the discontinuance of prepaid mailers for issuing notices and documents. Before the July 23rd announcement, USCIS allowed the public to enclose prepaid mailers in connection with applications or petitions filed with USCIS. A prepaid mailer is essentially a self-addressed envelope, where postage is paid by the addressee, that USCIS may use for mailing a document to the petitioner/applicant or authorized representative. USCIS said it “is aware that the July 23rd announcement caused anxiety for several of its customers and USCIS is committed to finding an alternative that will allow the public the continued convenience of using prepaid mailers while not unduly impacting its operations.” Thus, USCIS is reinstating the practice of allowing prepaid mailers as an alternate method of delivering notices and documents to the public.

USCIS noted that prepaid mailers are not required. If an applicant/petitioner nonetheless wishes to submit one, it should meet the following criteria: Express and Priority mail (including FedEx, DHL, or UPS) with appropriate postage, with a prepaid shipping label on the package, already paid by the person who sends it; e.g., FedEx’s “Expanded Billable Stamp” or DHL’s “Easy Return Label,” among others.

The notice is available at http://www.uscis.gov/files/pressrelease/RescindMailerUpdate072707.pdf.

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6. DHS Exempts Portions of IDENT System From Privacy Act

The Department of Homeland Security issued a final rule on July 16, 2007, that exempts portions of the Automated Biometric Identification System (IDENT) system of records from certain provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements. IDENT is the primary repository of biometric information held by the DHS in connection with the enforcement of civil and criminal laws, including immigration law; related investigations, inquiries, and proceedings; and national security and intelligence activities.

Specifically, the DHS said the exemptions are required to preclude the subjects of these activities from frustrating related processes; to avoid disclosure of activity techniques; to protect the identities and physical safety of confidential informants and of immigration and border management and law enforcement personnel; to ensure the agency’s ability to obtain information from third parties and other sources; to protect the privacy of third parties; and to safeguard classified information. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension, the DHS said, noting that “the exemptions are standard law enforcement and national security exemptions exercised by a large number of Federal law enforcement and intelligence agencies. In appropriate circumstances, where compliance would not appear to interfere with or adversely affect the law enforcement purposes of this system and the overall law enforcement process, the applicable exemptions may be waived.”

The final rule is available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-13576.pdf.

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7. FBI Warns Employers About Potential ‘Spies’

The Federal Bureau of Investigation recently released a controversial warning about potential spies. In the notice, the FBI advises employers to be on the lookout for suspicious people who have favorite “disguises,” including representatives of research institutes; visiting business professionals and scientists “who want to tour your state-of-the-art plants and operations worldwide”; tourists or visitors on nonimmigrant visas; diplomatic officials; false front companies; and students and educators. The notice warns about hypothetical scenarios such as: “You hire a foreign-born engineer who has been educated in this country. Over a 10-15 year period, she rises to mid-level management. Then, she returns to her home country – where she gets paid by that government to set up a business that competes with yours.”

According to news reports and blog entries, Indian students, among others, are not pleased by the FBI’s broad-brush characterization. Kaushik Biswas, a student, noted that “[a] student applying for an F-1 visa at a U.S. consulate is expected to return to his country and not stay back [in the U.S.]. If he even hints at staying back permanently, the consular officer rejects the visa application summarily. So the U.S. government fully expects that these highly skilled, educated, trained people will one day return to their homeland to share that knowledge. Add to that the state of immigration laws in this country that discourage skilled people from migrating here in any case. H-1Bs have now become a lottery, and the average wait time for an MS to get a green card is 6-12 years. So why does the fact of people returning to their home countries come as a shock to FBI?” A researcher employed by an American company, “Camille,” noted that “[b]usinesses and institutes already know how to protect themselves without FBI help. As for the lady ‘who returns to her home country’, isn’t it a touch paranoid to model Asian-born R&D executives as spies just because their home-country governments have decided to engage in venture capitalism?”

The FBI’s notice is available at http://www.fbi.gov/page2/july07/spying070907.htm.

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8. Passport Measures Relaxed in Response to Massive Backlogs

Over the past several months, many U.S. travelers have encountered substantial delays in obtaining passports as a result of new rules imposing passport requirements for North American travel, for national security reasons. Some have missed important trips as a result. In response, the State Department has relaxed the rules temporarily. Assistant Secretary of State Maura Harty, who oversees passports for U.S. citizens, recently acknowledged the problem: “Over the past several months, many travelers who applied for a passport did not receive their document in time for their planned travel. I deeply regret that. I accept complete responsibility for this.”

A Department statement noted that “[w]e are aware that some travelers have not been able to obtain passports because of longer processing times caused by record-setting demand. Accordingly, we’re allowing flexibility because we are hearing about more cases of Americans missing flights. As a service organization dedicated to helping Americans, we cannot let this happen.”

U.S. citizens traveling to Canada, Mexico, the Caribbean and Bermuda who have applied for but not yet received passports can temporarily enter and depart from the U.S. by air with a government-issued photo identification and Department of State official proof of application for a passport through Sept. 30, 2007. U.S. citizens who take advantage of this accommodation will need to present the official proof of passport application to air carriers and to Customs and Border Protection (CBP) officers at air ports of entry. Such individuals may be subject to secondary inspection.

Travelers who have not applied for passports should plan 10 to 12 weeks for standard passport processing and two to three weeks for expedited processing, the Department said.

Details are available at http://travel.state.gov/travel/cbpmc/cbpmc_3254.html.

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9. House Passes Liberian TPS Measure

The House of Representatives has passed H.R. 3123, which extends the designation of temporary protected status (TPS) for Liberia for an additional 12 months, through September 30, 2008. Attention next will focus on the Senate’s Liberian legislation, S. 656. The text of the bill is available at http://www.govtrack.us/congress/bill.xpd?bill=h110-3123.
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10. GAO Reports on Challenges in Attracting International Students and Implications for Global Competitiveness

The U.S. Government Accountability Office (GAO) has released “Higher Education: Challenges in Attracting International Students to the United States and Implications for Global Competitiveness.” The report notes that more international students obtain a higher education in the U.S. than in any other country, and they make valuable contributions while they are here. For those students returning home after their studies, the GAO said, such exchanges support federal public diplomacy efforts and can improve understanding among nations. The GAO noted that international students have earned at least a-third of all U.S. degrees at both the master’s and doctoral levels in several science, technology, engineering, and mathematics fields. Yet recent trends, including a drop in international student enrollment in U.S. colleges and universities, and policy changes after September 11, 2001, have raised concerns about whether the U.S. will continue to attract talented international students.

GAO identified the following key issues that it said may affect the U.S.’s ability to continue attracting the world’s most talented international students:

• The global higher education landscape is changing and providing more alternatives for students, as other countries expand their educational capacity and technology-based distance learning opportunities. In addition, U.S. universities are establishing branch campuses in other countries and partnerships with international institutions, allowing international students to receive a U.S. education without leaving home. Some countries also have developed strategic plans or offices focused on attracting international students.
• The cost of obtaining a U.S. degree is among the highest in the world and rising. Average tuition in 2003 at public U.S. colleges and universities was second only to Australia.
• Visa policies and procedures, tightened after September 11 to protect our national security, contributed to real and perceived barriers for international students. Post-September 11 changes included a requirement that almost all visa applicants be interviewed, affecting the number of visas issued and extending wait times for visas under certain circumstances. GAO has made several recommendations to strengthen the visa process in a way that reduces barriers for international students while balancing national security, and the agency said that recent changes have improved the process.

The GAO said that the U.S. must maintain an appropriate balance between protecting national security interests and ensuring long-term competitiveness. “Monitoring current trends and federal policies is essential to ensuring that the United States continues to obtain talented international students in the face of greater global competition,” the GAO concluded.

The report, GAO-07-1047T, which contains testimony presented on June 29, 2007, before the Subcommittee on International Organizations, Human Rights, and Oversight of the House of Representatives’ Committee on Foreign Affairs, is available at http://www.gao.gov/new.items/d071047t.pdf.

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11. Recent News from ABIL Members

Angelo Paparelli (bio: https://www.abil.com/lawyers-paparelli.htm), president of the Alliance of Business Immigration Lawyers, was quoted in the July 27, 2007, edition of the Los Angeles Times on the recent federal court ruling that struck down Hazleton, Pennsylvania’s “Illegal Immigration Relief Act.” Mr. Paparelli, who opposes the Hazleton law, said, “I think the cities and states will be given a handy justification for not taking action, and I hope the pressure will be redirected back at Congress, where it belongs.” In the July 27, 2007, issue of the Los Angeles/San Francisco Daily Journal, he also noted that “[b]y interposing the city official, it created a blockage that the federal law never contemplated or tolerates. The problem is it would inevitably disrupt the timing of employment.” Also, Mr. Paparelli was quoted by the Associated Press as predicting that courts will use the decision as a template. “[The judge] rebutted and threw down as wrongheaded every legal argument the city made,” he said.

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers-loehr.htm) testified as an expert witness for the American Civil Liberties Union in the lawsuit challenging the constitutionality of the Hazleton law. In the July 27, 2007, edition of the Dallas Morning News, he noted that “[o]ne of the main themes of the ruling is that federal law preempts local and state immigration laws.” He also was quoted in the July 26, 2007, edition of the Financial Times. “The Hazleton ruling should be a big red stoplight to other cities
thinking of enacting anti-immigrant laws,” Mr. Yale-Loehr said.

Mr. Yale-Loehr also was quoted in the July 21, 2007, edition of Information Week in an article about the myths and facts driving the H-1B debate. He disputed speculation that there is a “huge fraud problem” in the H-1B program. Noting that competition for high-tech talent is global for premier U.S. employers, Mr. Yale-Loehr also noted that “[a]t the very top end, for truly multinationals like Microsoft and Oracle, it really is a competition for the best and brightest.” That article is available online at http://www.informationweek.com:80/news/showArticle.jhtml?articleID=201200100.

Commenting on the July visa numbers fiasco and the Department of State’s subsequent efforts to resolve the problem, Mr. Yale-Loehr said in the July 18, 2007, edition of the Wall Street Journal, “Without saying so explicitly, the government has admitted its error. This will bring a relief to the people who were hurt, but it shows our immigration system is broken.”

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Headlines:

1. Senate Debates Immigration Reform Bill – The Senate’s bipartisan bill on comprehensive immigration reform is being vigorously debated this week, with over 100 amendments being considered.

2. DOL Publishes Final Labor Certification Rule, Prohibits Substitutions; USCIS Terminates Premium Processing for I-140s Requesting Substitutions – The regulation’s provisions apply to permanent labor certification applications and approved certifications filed under both the Program Electronic Review Management (PERM) program regulation and previous regulations.

3. DOL Releases PERM Labor Certification FAQ – The Department of Labor released the Tenth Round of Frequently Asked Questions on PERM labor certification.

4. USCIS Issues Final Rule Increasing Fees – USCIS has issued a final rule that drastically increases fees for many immigration benefits.

5. DOL Clamps Down on Extensions for Labor Cert NOF Rebuttals – The BECs will no longer routinely grant extensions to the time allotted by regulation for employers or representatives to rebut a Notice of Findings.

6. USCIS Announces H-1B Cap Receipting Time Frames – USCIS provided projections for fee receipting and data entry processing for H-1B cap cases currently at the Service Centers.

7. DOL Holds H-2B Briefings, Releases Filing Tips – The DOL held two national briefing sessions to discuss recently updated guidance for State Workforce Agencies and ETA National Processing Centers when processing H-2B labor condition applications in nonagricultural occupations.

8. June Visa Bulletin Shows Significant Advances in EB-2 for China, India; All EB-3 Categories – The Department of State’s Visa Office has advanced the June cut-off dates significantly.

9. Lawsuit Threats Discourage Foreign Investment, Top Executives Say – Several CEOs of foreign companies invested in the U.S. said that litigation is a disincentive to conduct business here.

10. U.S. Consulate in Toronto Announces Minimum Two-Day Wait for Passports – All stateside visa applicants and those with urgent travel plans now have to wait a minimum of two business days for return of their passports if their visas have been approved.

11. State Dept. Publishes Key Officers Directory – The Department of State has released the latest version of its Telephone Directory, which includes key officers of foreign service posts and contact information.

12. Regulation Tracker Enables Searches for Rules, Proposed Rules, and Notices – Justia Regulation Tracker allows a user to search and track the Federal Register with a drop-down menu of all departments and agencies.

13. CBP Border Patrol Sponsors NASCAR Car – U.S. Customs and Border Protection’s Border Patrol has sponsored a NASCAR Busch Series car to “rev up” its ambitious hiring and recruiting of individuals interested in pursuing a career in border security.

14. TPS Extended for Nicaraguans, Hondurans – An 18-month extension of temporary protected status (TPS) for Nicaraguans has been granted, from July 5, 2007, to January 5, 2009.

15. Recent News from ABIL Members -Recent News from ABIL Members

Details:

1. Senate Debates Immigration Reform Bill

The Senate’s bipartisan bill on comprehensive immigration reform (S. 1348) is being debated this week. Among other things, the new legislation would establish a guestworker program and allow many undocumented persons to remain in the U.S. under a new “Z” visa program. The bill features a “points system” in lieu of many of the current family- and employment-based visa categories. Those with certain types of education and experience, and those with English skills, would be favored under the legislation. The bill contains additional enforcement and border control provisions. Sen. Edward M. Kennedy (D-Mass.) called it “the most far-reaching immigration reform in our history.”

Under the Senate bill, up to 200,000 temporary guestworker (Y-1) visas would be provided in the first year, with increases or decreases depending on whether and when the cap is reached in the previous year. A separate guestworker program for farm laborers is also included.

The bill would increase the H-1B cap from 65,000 to 115,000 beginning in fiscal year 2008 and 180,000 annually after that, and would exempt from the annual cap a worker who has: (1) earned a master’s or higher degree from an accredited U.S. university; or (2) been awarded a medical specialty certification based on post-doctoral training and experience in the U.S.

The bill would require employers and subcontractors, within 18 months, to verify the legal status of new hires by using an electronic verification system. The maximum fine for hiring an undocumented worker would increase to $20,000 for each worker and repeat offenders could be sent to jail.

The Information Technology Association of America (ITAA), a lobbying group that represents high-tech companies, fears the bill will not address sufficiently the shortage of skilled workers and will make it harder to hire qualified foreign workers. ITAA President and CEO, Phillip J. Bond, noted in a letter to Sens. Harry Reid and Mitch McConnell how quickly the H-1B cap for fiscal year 2008 was reached, thus preventing many employers from recruiting skilled foreign nationals.

Among other things, the ITAA expressed concerns that the bill eliminates existing “degree equivalency” provisions so that employers would be barred from obtaining H-1B workers if their formal degrees do not correlate exactly to proposed positions; and ends dual intent for both H-1B and L-1B nonimmigrants, “interfering with the ability of companies to recruit from U.S. universities and seek a green card for them while employing them on an H-1B.”

The ITAA also said the proposed point system would “diminish America’s competitiveness by making nonimmigrant visas and green cards even more difficult to obtain.” Among other things, the ITAA noted, highly skilled professionals recruited by firms would be forced to compete with self-nominated applicants for the small number of available visas. “The proposal will move America’s immigration system away from one that is sensitive to business needs to one driven by the perceptions of government employees,” the ITAA said. The ITAA added that the proposed employment verification system, which is based on the current Basic Pilot Program, “needs a significant IT investment to make the system scalable for all employers to use as well as to reduce the current error rate within the system.”

Opposition to the bill is fierce. The White House reportedly favors the bill, but its lobbying efforts are being resisted by many Republicans, who fear anti-“amnesty” sentiment among their constituents. Some Democrats also oppose the bill, fearing that the temporary worker program will create an underclass of indentured workers. Over 100 amendments are being considered in the Senate.

A summary of the Senate bill’s main provisions is available at http://immigrationforum.org/documents/PolicyWire/Legislation/110/SenateBillQ&A.pdf. The bill and amendments are available at http://thomas.loc.gov (search S. 1348). The ITAA’s letter to the Senate is at http://www.itaa.org/upload/news/docs/s1348letter.pdf; an attachment outlining the ITAA’s key concerns is at http://www.itaa.org/upload/news/docs/1348concerns.pdf.

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2. DOL Publishes Final Labor Certification Rule, Prohibits Substitutions; USCIS Terminates Premium Processing for I-140s Requesting Substitutions

The Department of Labor (DOL) published a final rule, effective July 16, 2007, to “enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States.” The provisions apply to permanent labor certification applications and approved certifications filed under both the Program Electronic Review Management (PERM) program regulation, effective March 28, 2005, and previous regulations implementing the permanent labor certification program.

In general, the DOL rebutted commenters’ concerns about a wide variety of issues, such as increased costs and the loss of priority dates resulting from the new prohibition on substitution of beneficiaries, by maintaining that the benefits of the new provisions to the labor market and in preventing fraud outweigh the concerns of individual employers.

Meanwhile, U.S. Citizenship and Immigration Services (USCIS) announced that beginning on Friday, May 18, 2007, Premium Processing Service is no longer available for Immigrant Petition for Alien Worker (Form I-140) petitions that request labor certification substitution. USCIS anticipates a substantial increase in the number of petitioning employers that will file I-140 petitions requesting Premium Processing Service and seeking labor certification substitution before July 16, 2007. The volume of such petitions is expected to exceed USCIS’ capacity to provide the service according to the program guidelines.

The rule’s major provisions include:

A prohibition on the substitution of beneficiaries. This prohibition will apply to all pending permanent labor certification applications and to approved permanent labor certifications. The prohibition does not affect substitutions approved by the DOL or Department of Homeland Security (DHS) before the effective date. It also does not affect substitution requests in progress as of the rule’s effective date. The final rule also prohibits the sale, barter, and purchase of labor certification applications and approved labor certifications.

A 180-day validity period for approved labor certifications. Employers will have 180 calendar days within which to file an approved permanent labor certification in support of an I-140. All permanent labor certifications approved on or after the effective date will expire 180 calendar days after certification, unless filed before expiration in support of a Form I-140 petition with DHS. Likewise, all certifications approved before the final rule’s effective date will expire 180 calendar days after the effective date unless filed in support of a Form I-140 petition with DHS before the expiration date.

A requirement that employers pay the costs of labor certification, including preparing, filing, and obtaining certification. The beneficiary may pay attorneys’ fees for representation of the beneficiary or other “legitimate” costs incurred by him or her, but an employer’s transfer to the beneficiary of the employer’s costs incurred is strictly prohibited. Prohibited payments include, but are not limited to, employer fees for hiring the beneficiary; receipt of part of the beneficiary’s pay, whether through a payroll deduction or otherwise, as reimbursement; reducing the beneficiary’s pay for purposes of reimbursement or pre-payment; goods and services or other wage or employment concessions; kickbacks, bribes or tributes; receipt of payment from beneficiaries, attorneys, or agents for allowing a permanent labor certification application to be filed on behalf of the employer; or the payment by the beneficiary of the employer’s attorneys’ fees.

The establishment of procedures for debarment from the permanent labor certification program. The DOL may debar an employer, attorney or agent for up to three years based on certain enumerated actions such as fraud, willful provision of false statements, or a pattern or practice of noncompliance with PERM requirements, regardless of whether the labor certification application involved was filed under the previous or current regulation. The rule extends from 90 to 180 days the period during which the DOL may suspend processing of applications under criminal investigation. The rule adds an intent requirement (“willful”) to the false information section; to be actionable, the employer must willfully provide false or inaccurate information to the DOL. The rule expands the existing provision for a right to review the DOL’s denial of an application or revocation of a certification, to encompass a right to review of a debarment action. The request for review would be made to, and in appropriate cases a concomitant hearing would be held by, the Board of Alien Labor Certification Appeals (BALCA).

Clarification of the DOL’s “no modifications” policy for applications filed on or after March 28, 2005, under the PERM process. The rule finalizes with minor changes a provision in the proposed rule prohibiting modifications to permanent labor certification applications once such applications are filed with the DOL.

The final rule includes details on issues raised by public comment and the DOL’s resolution of those issues, the DOL’s cost-benefit analysis, and statistics on small businesses’ use of labor certification. It was published on May 17, 2007, and is available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-9250.pdf. USCIS’s new procedures under the final rule are available at http://www.uscis.gov/files/pressrelease/PermRuleLaborCert052407.pdf. USCIS’s press release announcing termination of Premium Processing Service is at http://www.uscis.gov/files/pressrelease/PPSPermRule051707.pdf.

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3. DOL Releases PERM Labor Certification FAQ

On May 10, 2007, the Department of Labor released the Tenth Round of Frequently Asked Questions on PERM labor certification. The FAQ includes information on notices of filing, advertisement content, and types of evidence in response to audit requests. See http://www.foreignlaborcert.doleta.gov/pdf/perm_faqs_5-9-07.pdf.
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4. USCIS Issues Final Rule Increasing Fees

U.S. Citizenship and Immigration Services (USCIS) has issued a final rule, effective 60 days from the May 30, 2007, publication date in the Federal Register, that, for the most part, drastically increases fees for many immigration benefits. USCIS said that without these fee adjustments, the agency would not be able to maintain critical business functions, properly address fraud and national security issues, and process incoming applications and petitions in a timely manner. The rule also expands the proposed fee waiver policy to include additional classes of applicants and petitioners who may apply for a waiver of certain application and petition fees for certain services.

Selected specific increases include:

• Petition for a Nonimmigrant Worker (Form I-129): Fee increased from $190 to $320
• Application for Travel Document (Form I-131): Fee increased from $170 to $305
• Immigrant Petition for Alien Worker (Form I-140): Fee increased from $195 to $475
• Application to Register Permanent Residence or Adjust Status (Form I-485): Fee increased from $325 to $930
• Immigrant Petition by Alien Entrepreneur: Fee increased from $480 to $1,435
• Application to Extend/Change Nonimmigrant Status: Fee increased from $200 to $300
• Application for Waiver of the Foreign Residence Requirement: Fee increased from $265 to $545
• Application for Status as a Temporary Resident (Form I-687): Fee increased from $255 to $710
• Application to Adjust Status from Temporary to Permanent Resident (Form I-698): Fee increased from $180 to $1,370
• Application for Employment Authorization (Form I-765): Fee increased from $180 to $340
• Biometric Services: Fee increased from $70 to $80

The final rule, published at 72 Fed. Reg. 29852 (May 30, 2007), is available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-10371.pdf. USCIS’s press release is available at http://www.uscis.gov/files/pressrelease/FinalFeeRulePressRelease052907.pdf. Questions and answers from USCIS are available at http://www.uscis.gov/files/pressrelease/FinalFeeRuleQsAs052907.pdf.

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5. DOL Clamps Down on Extensions for Labor Cert NOF Rebuttals

Employers with permanent labor certification applications pending at the Backlog Elimination Centers (BECs) should note that the BECs will no longer routinely grant extensions to the time allotted by regulation for employers or representatives to rebut a Notice of Findings (NOF). The Department of Labor’s Office of Foreign Labor Certifications will only grant such extensions for the “most extreme extenuating circumstances.” In the absence of a granted extension, applications for which a timely rebuttal is not posted by the deadline stated in the NOF will be denied. OFLC also strongly encourages employers and representatives to send in their responses to NOF letters and Recruitment Report Instructions letters as soon as a response is prepared. Although regulations set forth specific timelines for the maximum time allowed for a response, employers and representatives need not use the full allotted time to respond.

These notices, and additional information on labor certifications, are available at http://www.foreignlaborcert.doleta.gov/.

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6. USCIS Announces H-1B Cap Receipting Time Frames

Because of the unprecedented volume of recent H-1B filings, U.S. Citizenship and Immigration Services (USCIS) is temporarily experiencing a receipting/data-entry “frontlog” at its Service Centers. USCIS provided the following projections for fee receipting and data entry processing for H-1B cap cases currently at the Service Centers. These projections do not apply to Premium Processing or I-129 H-1B (cap or non-cap) cases:

California Service Center. USCIS expects to provide in time-compliance for receipting of all form types by June 15, 2007.

Nebraska Service Center. USCIS is currently providing in time-compliance for receipting of all form types as of May 10, 2007.

Texas Service Center. USCIS is currently providing in time-compliance for receipting of all form types as of May 10, 2007.

Vermont Service Center. USCIS expects to provide in time-compliance for receipting of all form types by June 2, 2007.

USCIS noted that it may take additional time for a Service Center to complete fee receipting and data entry of an application or petition received and for the receiving Center to mail the appropriate receipt notice. USCIS recommends that persons who have filed a petition or application with USCIS wait at least 30 days from the applicable receipt processing time frame noted above before contacting USCIS with inquiries. If a response is not received from USCIS within 30 days of the dates listed above, USCIS recommends checking the Web site at http://www.uscis.gov or calling USCIS customer service at 1-800-375-5283 for updated processing information.

USCIS’s announcement is available at http://www.uscis.gov/files/pressrelease/H1BReceipts051107.pdf.

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7. DOL Holds H-2B Briefings, Releases Filing Tips

In early May, the Department of Labor (DOL) held two national briefing sessions in Chicago and Atlanta to discuss recently updated guidance for State Workforce Agencies and ETA National Processing Centers (NPCs) when processing H-2B labor condition applications in nonagricultural occupations. The purpose of the briefing sessions was to inform the user community of the processing protocols implemented at the NPCs in Chicago and Atlanta. To ensure that all employers are aware of the filing requirements, and to ensure that applications for H-2B visas are processed in the most efficient manner, the DOL has released filing tips for employers submitting H-2B applications.

The DOL also has released updated guidance for State Workforce Agencies and ETA National Processing Centers when processing H-2B labor condition applications in nonagricultural occupations. The guidance replaces and supersedes previous operating procedures issued under General Administrative Letter (GAL) 01-95, GAL 01-95, Change 1, and Field Memorandum (FM) 25-98. The DOL said that the guidance is intended to work in concert with the new centralized filing process at the NPCs to ensure greater consistency in the processing of H-2B applications. Special handling procedures for certain nonagricultural occupations, such as forestry workers and boilermakers, will be issued through separate guidance letters by the National Office of Foreign Labor Certification.

The guidance is available at http://wdr.doleta.gov/directives/attach/TEGL/TEGL21-06.pdf. A related Federal Register notice is at http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2007_register&position=all&page=19961. The filing tips are at http://www.foreignlaborcert.doleta.gov/pdf/H-2B_Stakeholder_Application_Filing_Tips_050807_FINAL1.pdf. Separate PDFs are available for employers in the entertainment (http://www.foreignlaborcert.doleta.gov/pdf/OFLC_Briefing_May_Sessions_Entertainers_FINAL.pdf) and forestry (http://www.foreignlaborcert.doleta.gov/pdf/OFLC_Briefing_May_Sessions_Forestry_FINAL1.pdf) industries. A PDF of the presentation for employers is at http://www.foreignlaborcert.doleta.gov/pdf/OFLC_Briefing_May_sessions_FINAL.pdf.

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8. June Visa Bulletin Shows Significant Advances in EB-2 for China, India; All EB-3 Categories

The current level of demand in many of the employment-based visa categories has been much lower than anticipated. As a result, the Department of State’s Visa Office has advanced the June cut-off dates significantly in an effort to maximize number use under the annual numerical limits. The Department said that additional advances during the coming months are likely.

The Department noted that such cut-off date movements should allow for action to be finalized on a significant number of U.S. Citizenship and Immigration Services adjustment of status cases. Once that level of demand begins to exceed the supply of available numbers, it will be necessary to make adjustments to the cut-off dates, and retrogressions are possible.

The June Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3236.html#bulletin_3236.html#.

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9. Lawsuit Threats Discourage Foreign Investment, Top Executives Say

While lobbying members of Congress, several CEOs of foreign companies invested in the U.S. reportedly said that litigation is a disincentive to conduct business in the U.S. Gary Elliot, chairman and CEO of ThyssenKrupp USA, a German steelmaker that is spending $3.7 billion to build a plant in Alabama, said litigation “is a major business expense in comparison to Europe.” He noted that as a result, insurance costs also are much higher. Zin Smati, president and CEO of SUEZ Energy North America, noted that “[o]nce you open plants, you have to factor in the cost of doing litigation.” He estimated that each of his company’s 50 plants must deal with a lawsuit every 15 months. The CEOs noted, however, other factors that continue to make the U.S. attractive for investment, such as the robust U.S. market and intellectual property controls. The CEOs were in Washington, DC, for a conference organized by the Organization for International Investment (OFII). They met with Treasury Secretary Henry Paulson, Democratic Caucus Chairman Rahm Emanuel (Ill.) and Sens. Trent Lott (R-Miss.) and Jeff Bingaman (D-N.M.).
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10. U.S. Consulate in Toronto Announces Minimum Two-Day Wait for Passports

All stateside visa applicants and those with urgent travel plans now have to wait a minimum of two business days for return of their passports if their visas have been approved. Clients should plan their travel accordingly.
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11. State Dept. Publishes Key Officers Directory

The Department of State has released the latest version of its Telephone Directory, which includes key officers of foreign service posts and contact information, including posts’ telephone and fax numbers, business hours, and Web addresses. The directory is available at http://www.state.gov/documents/organization/82081.pdf.
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12. Regulation Tracker Enables Searches for Rules, Proposed Rules, and Notices

Justia Regulation Tracker allows a user to search and track the Federal Register with a drop-down menu of all departments and agencies. A search can be conducted by date or keyword, as well as type of document: rule, proposed rule, notice, administrative or executive order, notice, or proclamation. Users also may browse by government agency.

The Web site also has links to Supreme Court cases and laws, including federal laws and state and local government laws. See http://regulations.justia.com/.

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13. CBP Border Patrol Sponsors NASCAR Car

U.S. Customs and Border Protection’s Border Patrol has sponsored a NASCAR Busch Series car to “rev up” its ambitious hiring and recruiting of individuals interested in pursuing a career in border security. The Border Patrol has teamed up with Jay Robinson Racing for a 25-race sponsorship on the #28 Chevy that will run through the remainder of the 2007 NASCAR Busch Series season. The #28 Chevy made its debut with the Border Patrol sponsorship at Darlington Raceway during the Diamond Hill Plywood 200 on May 11, 2007. The announcement is at http://www.cbp.gov/xp/cgov/newsroom/news_releases/05112007_5.xml.
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14. TPS Extended for Nicaraguans, Hondurans

During the past year, the Departments of Homeland Security (DHS) and State have continued to review conditions in Nicaragua. They have concluded that an 18-month extension of temporary protected status (TPS), from July 5, 2007, to January 5, 2009, is warranted because there continues to be a substantial, but temporary, disruption of living conditions in Nicaragua resulting from Hurricane Mitch. Although significant progress has been made, Nicaragua remains unable, temporarily, to adequately handle the return of its nationals, as required for TPS designations based on environmental disasters.

DHS has also automatically extended the validity of Employment Authorization Documents (EADs) for eligible Hondurans and Nicaraguans for six months, through January 5, 2008. This extension is intended to allow sufficient time for eligible TPS beneficiaries to apply for and receive a new EAD without any lapse in employment authorization.

All TPS beneficiaries must comply with the re-registration requirements in order to maintain TPS benefits through January 5, 2009. U.S. Citizenship and Immigration Services noted that information about the re-registration period for Salvadorans “will be forthcoming. Re-registration applications from nationals of El Salvador will not be accepted at this time.”

Additional information on the Nicaraguan TPS extension, including a table showing the necessary application forms and fees depending on eligibility, is available at http://www.uscis.gov/files/pressrelease/TPSNicExtendQA052907.pdf. Additional information on both the Nicaraguan and Honduran extensions is available at http://www.uscis.gov/files/pressrelease/TPSHonNicExtend052907.pdf.

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15. Recent News from ABIL Members

Angelo A. Paparelli (bio: https://www.abil.com/lawyers-paparelli.htm), who represents high-tech companies and is president of the Alliance of Business Immigration Lawyers, was quoted in the Wall Street Journal on May 18, 2007. Commenting on the new immigration deal between the White House and certain Senators that, among other things, includes mandatory work authorization verification against a federal database, Mr. Paparelli predicted that “[w]e will have a harrowing period of pressure on employers with the risk of criminal prosecution and discrimination lawsuits.”

Steve Clark (bio: https://www.abil.com/lawyers-clark.htm) made a presentation on PERM labor certification changes and coping with backlogs in employment-based immigration at the Massachusetts Continuing Legal Education (MCLE) advanced immigration seminar in Boston on May 11, 2007.

Stephen W. Yale-Loehr (bio: https://www.abil.com/lawyers-loehr.htm) was quoted in the May 17, 2007, issue of the New York Times as noting that the new legislation “represents a major philosophical shift. It tells the world that we are emphasizing characteristics that will enhance our global competitiveness, like education and job skills. We would not rely as much on family background as we have in the past.” Under the proposed legislation, he said, “foreign-born spouses and minor children of United States citizens could still get green cards, but foreign-born siblings and adult children of citizens would be hurt.”

Mr. Yale-Loehr also was interviewed on National Public Radio’s Morning Edition on May 23, 2007. He noted, among other things, that the proposed immigration bill “would be the biggest change in immigration policy in over 40 years.” An audio link is at http://www.npr.org/templates/story/story.php?storyId=10344628.

Mr. Yale-Loehr also was quoted in the June 5, 2007, issue of the New York Times. Mr. Yale-Loehr criticized the Senate bill’s proposed points system for selecting economic immigrants because it would lock in the criteria for selecting immigrants for at least 14 years. ” The economy changes much faster than that,” he noted.

Mr. Yale-Loehr spoke on May 30 at the national conference of NAFSA: Association of International Educators in Minneapolis. He provided an overview of immigration law to international educators and summarized the current immigration reform bills pending in Congress.

Cyrus Mehta (bio: https://www.abil.com/lawyers-mehta.htm) spoke on a panel at a Council on Foreign Relations program on immigration from Latin America on May 19. A transcript of the symposium is at http://72.14.209.104/search?q=cache:KNG79XjCa6AJ:www6.lexisnexis.com/publisher/EndUser%3FAction=UserDisplayFullDocument%26orgId=574%26topicId=25151%26docId=l:617189143%26start=22+council+on+foreign+relations+++”cyrus+mehta”&hl=en&ct=clnk&ch.

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