Headlines:

1. DHS Issues Supplemental Q&A on OPT Interim Rule for F-1 Students – Among other things, the supplemental Q&A discusses the e-mail notification process allowing an employer whose pending H-1B petition on behalf of an F-1 student was randomly selected to receive an H-1B visa number for FY 2009 to request change of status in lieu of consular processing, as originally indicated on the petition.

2. E-Verify Update: Naturalization, Arrival Data Incorporated – A series of enhancements to E-Verify are intended to improve the accuracy of the system’s automatic confirmation processes.

3. USCIS Plans to Propose Halting Concurrent I-140, I-485 Filings – USCIS plans to propose disallowing concurrent filings of the Application to Register Permanent Residence or Adjust Status with the Immigrant Petition for Alien Worker.

4. USCIS Announces Proposed Rule To Increase Periods of Stay for TN Professionals From Canada, Mexico – The proposal would extend the maximum period of admission for Trade NAFTA workers from one year to three years

5. Arizona Governor Signs Bill Amending Arizona Workers Act, Vetoes Bill Requiring Local Immigration Enforcement – An Arizona employer’s business license may not be suspended or revoked if an employee hired before January 1, 2008, is an undocumented worker.

6. Largest-Ever Immigration Raid Results in Nearly 400 Arrests, Lawsuit – Almost 400 people were arrested at Agriprocessors in Postville, Iowa.

7. Laptops, Storage Devices May Undergo Scrutiny At Border – The Ninth Circuit Court of Appeals held that the federal government has discretion to search a laptop or other personal electronic storage device at the border.

8. USCIS Ombudsman Recommends Clarification of Fee Refund Procedures – Once a refund has been requested at a field or district office, there is no way to follow up on the request or to determine the component within the office that is processing the request.

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

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

11. Government Agency Links – Government Agency Links

Details:

1. DHS Issues Supplemental Q&A on OPT Interim Rule for F-1 Students

The Department of Homeland Security (DHS) issued supplemental questions and answers (Q&A) on an interim final rule, effective April 8, 2008, that extends the maximum period of optional practical training (OPT) from 12 months to 29 months for F-1 students who have completed a science, technology, engineering, or mathematics (STEM) degree and accept employment with employers enrolled in U.S. Citizenship and Immigration Services’ (USCIS’) E-Verify employment verification program. Currently, F-1 students who have been enrolled on a full-time basis for at least one full academic year in a certified college, university, conservatory, or seminary are eligible for 12 months of OPT to work for a U.S. employer in a job directly related to the student’s major area of study.

Among other things, the supplemental Q&A notes that on April 18, 2008, USCIS announced an e-mail notification process allowing a petitioner whose pending H-1B petition on behalf of an F-1 student was randomly selected to receive an H-1B visa number for fiscal year (FY) 2009 to request change of status in lieu of consular processing, as originally indicated on the petition. Because some FY 2009 H-1B petitions for these students already may have been approved for consular processing when USCIS published this e-mail notification process, the Q&A asks: Can the petitioner still request change of status? The answer is yes. The Q&A states that the petitioner should send an e-mail to the USCIS service center that issued the approval, using the designated e-mail address (below). Such requests must include the H-1B receipt number, as well as the petitioner’s and the beneficiary’s names.

If the H-1B petition and change of status application are pending, the change of status request should be submitted to the center within 30 days of the receipt notice. In addition to including the receipt number and the name of the petitioner and beneficiary, the Q&A notes, the request also should include the beneficiary’s date of birth, I-94 (Arrival/Departure Record) number, and Student and Exchange Visitor Information System (SEVIS) number.

Separate e-mail addresses have been established for premium and non-premium processing cases:

Vermont Service Center

Premium processing cases: [email protected]
Non-premium cases: [email protected]

California Service Center

Premium processing cases: [email protected]
Non-premium cases: [email protected]

The second supplemental Q&A is available at http://www.uscis.gov/files/article/supplemental_opt_052308.pdf. The first supplemental Q&A is available at http://www.uscis.gov/files/article/OPT_4Apr08.pdf. The interim rule is available at http://edocket.access.gpo.gov/2008/pdf/E8-7427.pdf.

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2. E-Verify Update: Naturalization, Arrival Data Incorporated

Any participating company in the U.S. can access E-Verify through a government Web site that compares employee information taken from the employment authorization verification form (I-9) with more than 444 million records in the Social Security Administration (SSA) database, and more than 60 million records in Department of Homeland Security immigration databases.

U.S. Citizenship and Immigration Services (USCIS) claims that 99.5 percent of all work-authorized employees queried through E-Verify were verified without receiving a mismatch notice (Tentative Non-Confirmation (TNC)) or having to take any type of corrective action. This statistic is at odds with the view of many immigration advocates. Angela Kelley, director of the Immigration Policy Center, has noted that “[a]lmost 10 percent of naturalized citizens have received notifications about some error in their data since many of them, after their naturalization, don’t notify the Social Security [Administration] of their new citizenship status.” The New York Times said in an editorial on May 12 that “the Social Security database is rotten with errors” and the system “could force millions of Americans to battle a computerized bureaucracy that tells them, unjustly, that they cannot work.” The editorial also cites “evidence of employers abusing E-Verify” by “forcing workers who are tentatively flagged as unauthorized to take pay cuts or work longer hours until they can clear their names.”

USCIS says that employees whose work authorization cannot be instantly verified may work with SSA or USCIS, as appropriate, to confirm their work authorization. USCIS estimates that one percent of all queried employees choose to contest an initial, tentative result from E-Verify, and only half of those who contest that result are ultimately found to be authorized.

A series of enhancements, intended to improve the accuracy of the system’s automatic confirmation processes, was recently announced. USCIS said the E-Verify system will begin to include naturalization data, noting that naturalized citizens who have not yet updated their records with the SSA are the largest category of work-authorized persons who initially face an SSA mismatch in E-Verify. A naturalized citizen who receives a citizenship mismatch with SSA may call USCIS to resolve the issue, in addition to the option of resolving the mismatch in person at any SSA field office.

E-Verify also will now include real-time arrival data from the Integrated Border Inspection System. This additional data source is expected to reduce the number of immigration status-related mismatches for newly arriving workers.

USCIS also plans to initiate citizenship status records information-sharing with SSA to further prevent mismatches from occurring. E-Verify also plans to use checks against Department of State passport records in the near future.

More than 64,000 employers nationally participate in E-Verify, with approximately 1,000 new enrollments weekly. E-Verify evolved from the Basic Pilot/Employment Eligibility Verification Program originally developed in 1997 and made available to employers as a Web-based system in 2004. USCIS operates the program in partnership with SSA.

Related notices are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f55d1443719b9110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD and http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=bca6fa693660a110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

Information on E-Verify and work authorization is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1914c9676d006110VgnVCM1000004718190aRCRD&vgnextchannel=1847c9ee2f82b010VgnVCM10000045f3d6a1RCRD.

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3. USCIS Plans to Propose Halting Concurrent I-140, I-485 Filings

U.S. Citizenship and Immigration Services (USCIS) plans to propose disallowing concurrent filings of the I-485 (Application to Register Permanent Residence or Adjust Status) with the I-140 (Immigrant Petition for Alien Worker), and instead mandate that a worker applying for adjustment of status be the beneficiary of an approved immigrant petition before filing the adjustment application.

U.S. Citizenship and Immigration Services (USCIS) plans to propose disallowing concurrent filings of the I-485 (Application to Register Permanent Residence or Adjust Status) with the I-140 (Immigrant Petition for Alien Worker), and instead mandate that a worker applying for adjustment of status be the beneficiary of an approved immigrant petition before filing the adjustment application.

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4. USCIS Announces Proposed Rule To Increase Periods of Stay for TN Professionals From Canada, Mexico

U.S. Citizenship and Immigration Services (USCIS) published a Notice of Proposed Rulemaking (NPRM) on May 9, 2008, to increase the maximum amount of time a Trade NAFTA (TN) professional worker from Canada or Mexico can remain in the U.S. before seeking readmission or obtaining an extension of stay. The proposal would extend the maximum period of admission for TN workers from one year to three years, the same term that USCIS currently may grant to H-1B specialty occupation workers.

The proposed rule would further allow eligible TN nonimmigrants to be granted an extension of stay in increments of up to three years, as opposed to the current maximum of one year. TN nonimmigrants are not subject to a maximum period of stay and thus may seek multiple readmissions or extensions, provided their intended professional activity continues and they remain otherwise eligible. Current regulations require that TN workers seek readmission or apply for an extension of stay each year.

Canadian and Mexican citizens seeking temporary entry to the U.S. as professionals may come into the country as TN nonimmigrants under the North American Free Trade Agreement (NAFTA). TN status is available to Canadian and Mexican citizens with a minimum of a bachelor’s degree, or appropriate professional credentials, who work in professions listed in Appendix 1603.D.1 to Annex 1603 of the NAFTA and under DHS regulations at 8 CFR 214.6(c). Eligible TN professions include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers.

USCIS said the rule is intended to ease administrative burdens and costs on TN nonimmigrants and will benefit U.S. employers. The proposed changes also would apply to spouses and unmarried, minor children of TN nonimmigrants in their corresponding nonimmigrant classifications as NAFTA dependents.

Alliance of Business Immigration Lawyers members have observed that the rule would lessen the burden on TNs who are in the permanent residence process who may fear difficulties in extending their TN status, which must be temporary, ending “at a predictable time.” This was not a problem when TN employers could time the filing of the immigrant petition to coincide with the foreign worker’s permanent residence application. This is no longer possible: immigrant petitions must now be filed within 180 days of approval of the labor certification under the Department of Labor’s “Anti-Fraud” rule. The additional two years allowable as a TN under this proposed rule will allow more “elbow room” to file all critical phases of the process without the needing to extend the TN stay, ABIL notes. However, the benefits could be undermined by the proposed halt of concurrent I-140 and I-485 filing because this will add to the time required for permanent residence processing.

The NPRM is available at http://edocket.access.gpo.gov/2008/pdf/E8-10343.pdf. Persons wishing to comment may access the Federal e-Rulemaking Portal and follow the instructions for submitting comments. USCIS will accept public comments until June 9, 2008.

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5. Arizona Governor Signs Bill Amending Arizona Workers Act, Vetoes Bill Requiring Local Immigration Enforcement

On May 1, 2008, Governor Janet Napolitano of Arizona signed into law amendments to the Legal Arizona Workers Act (LAWA). The amendments (H.B. 2745) specify that an Arizona employer’s business license may not be suspended or revoked if an employee hired before January 1, 2008, is an undocumented worker. In other ways, the amendments expand LAWA; for example, by including undocumented independent contractors among those an employer must not knowingly hire.

In other news, Governor Napolitano vetoed a bill (H.B. 2807) that would have required local law enforcement to work with federal authorities to address immigration violations. “House Bill 2807 is simply an unnecessary, unfunded mandate to law enforcement,” she wrote.

A lawsuit challenging LAWA is on appeal to the U.S. Court of Appeals for the Ninth Circuit in San Francisco. For more information on the lawsuit, see http://www.nilc.org/immsemplymnt/state_local/essl002.htm.

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6. Largest-Ever Immigration Raid Results in Nearly 400 Arrests, Lawsuit

Almost 400 people were arrested on May 12, 2008, by U.S. Immigration and Customs Enforcement (ICE) at Agriprocessors Inc. in Postville, Iowa. Of the 389 people arrested at the slaughterhouse and meatpacking plant, 297 pleaded guilty and were sentenced on federal felony charges. U.S. Attorney Matt Dummermuth said that “[b]ased on the number of criminal convictions, this is the largest criminal worksite enforcement operation ever in the United States.”

Among others, 230 defendants were sentenced to five months in prison and three years of supervision for using false identification to obtain employment after admitting to using an actual person’s identity; and 30 defendants were sentenced to five months in prison and three years of supervision for falsely using a social security number or card after admitting to using an actual person’s social security.

A lawsuit was filed on behalf of almost 150 of the workers, reportedly accusing the government of arbitrary and indefinite detention and seeking to prevent the government from moving them out of state while their cases are being processed.

The ICE-led, multi-agency investigation is ongoing. A press release announcing the raid and convictions is available at http://www.ice.gov/pi/news/newsreleases/articles/080515waterloo.htm. Additional information about the lawsuit is available at http://www.nydailynews.com/latino/2008/05/16/2008-05-16_federal_classaction_lawsuit_filed_in_iow.html and http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=/20080517/NEWS/805170337.

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7. Laptops, Storage Devices May Undergo Scrutiny At Border

The Ninth Circuit Court of Appeals held on April 21, 2008 (U.S. v. Arnold) that the federal government has discretion to search a laptop or other personal electronic storage device at the border. The court concluded that “reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border,” noting that “Arnold has failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicionless border searches of travelers’ luggage that the Supreme Court and we have allowed.”

In the brief for amici curiae, the Association of Corporate Travel Executives (ACTE) and the Electronic Frontier Foundation (EFF) noted that although laptop searches by border agents have raised increasing concerns during the last year, they still come as a surprise to most travelers. The brief notes that in an October 2006 survey of business travel managers, ACTE found that only six percent of the managers knew that border agents randomly search, seize, and copy the contents of travelers’ computers, and only one percent had received reports from travelers that their laptops had been seized by U.S. border officials. The survey results showed that “even very experienced business travelers are completely surprised to learn that the U.S. government conducts these searches and seizures randomly,” the brief noted.

ACTE and EFF noted the “wide ranging implications of the government’s arguments.” Indeed, they said, under the government’s reasoning, border authorities could systematically collect all of the information contained on every laptop computer, BlackBerry, and other electronic device carried across our national borders by every traveler, American or foreign. “The government could then store and search all of this information without justification and without oversight from the courts.” The Fourth Amendment simply does not apply. “If accepted, the government’s argument will establish an end run around the Constitution’s prohibition against unreasonable searches and seizures.”

While this issue remains unresolved, travelers handling sensitive information for corporations or clients may wish to work remotely online using a leased computer, or e-mail information, rather than storing it on a laptop and carrying it across the border. Even a BlackBerry could pose a serious breach of privacy if carried during international travel.

The opinion is available at http://www.ca9.uscourts.gov/coa/newopinions.nsf/6D5D931898D8168188257432005AC9B8/$file/0650581.pdf?openelement. The brief for amici curiae is available at http://w2.eff.org/legal/cases/US_v_arnold/arnold_amicus.pdf.

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8. USCIS Ombudsman Recommends Clarification of Fee Refund Procedures

U.S. Citizenship and Immigration Services’ (USCIS) ombudsman, Michael Dougherty, has recommended that the agency clarify its fee refund procedures and revise the Adjudicator’s Field Manual accordingly. Mr. Dougherty further recommended that USCIS provide a way to track the status of refunds.

Currently, applicants may claim a refund either by calling a toll-free number or by making a written request to their local USCIS office. Mr. Dougherty said he has heard concerns that USCIS has no clear procedure for requesting a refund of fees. Once a refund has been requested at a field or district office, he noted, there is no way to follow up on the request or to determine the component within the office that is processing the request. In some cases, USCIS employees were themselves unsure of the agency’s refund procedures.

The full text of the ombudsman’s recommendation is available at http://www.dhs.gov/xlibrary/assets/cisombudsman_uscis_recommendation_refund_of_fees_4-8-08.pdf.

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9. New Publications and Items of Interest

USCIS genealogy program. U.S. Citizenship and Immigration Services published a final rule on May 15, 2008, effective August 13, 2008, that establishes a fee-for-service Genealogy Program “to streamline and improve the process for acquiring historical records of deceased individuals.” The rule is available at http://edocket.access.gpo.gov/2008/pdf/E8-10651.pdf.

Immigration enforcement actions in 2006. The Department of Homeland Security’s Office of Immigration Statistics recently released 2006 statistics on immigration enforcement actions. The agency noted that in 2006, it apprehended more than 1.2 million foreign nationals, of whom 88 percent were natives of Mexico. In that year, there were 8,778 Immigration and Customs Enforcement Office of Investigations criminal arrests and 6,872 convictions for immigration-related crimes. Also in 2006, ICE detained approximately 257,000 foreign nationals and removed 272,389. The leading countries of origin of those removed were Mexico (67 percent), Honduras (10 percent), and Guatemala (7 percent). Over 1 million other foreign nationals accepted an offer to return to their home countries without a removal order. Expedited removals accounted for 110,147, or 40 percent, of all removals in 2006, and DHS removed 95,752 known criminals.

The report is available at http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_06.pdf.

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10. Recent News from ABIL Members

Steve Clark (bio: https://www.abil.com/lawyers/lawyers-clark.cfm), Managing Shareholder at Flynn & Clark, P.C., will be addressing the American Immigration Lawyers Association at the Annual Immigration Conference in Vancouver, British Columbia, on the new PERM form and the anti-fraud rule governing labor certifications. The conference will take place on June 25-28, 2008. Steve was recognized as a Most Valuable Player by the Boston Bar Association for his work as Co-Chair of its Immigration Committee.

Several ABIL members recently addressed over 75 corporate human resources managers and relocation specialists at a program co-sponsored by the Alliance of Business Immigration Lawyers and the Bay Area Professionals in Relocation Management. Charles H. Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) and Bernard P. Wolfsdorf (bio: http://www.abil.com/lawyers/lawyers-wolfsdorf.cfm) presented on legislative and agency updates, lobbying efforts, and predictions for the next administration. They covered recent and expected regulatory changes impacting employers and discussed anticipated and pending legislative proposals and congressional actions. H. Ronald Klasko (bio: https://www.abil.com/lawyers/lawyers-klasko.cfm), Sharon Mehlman (bio: https://www.abil.com/lawyers/lawyers-mehlman.cfm) and Angelo A. Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) discussed ‘hot” business immigration topics, where they offered strategies for H-1B winners and losers and examined the E-Verify program and the impact of state and local laws on immigration matters. Laura J. Danielson (bio: https://www.abil.com/lawyers/lawyers-danielson.cfm) and Kehrela M. Hodkinson (bio: https://www.abil.com/lawyers/lawyers-hodkinson.cfm) spoke about global immigration and advised on factors that companies may encounter when going global.The information from the seminar is available at https://secure31.hostek.net/abil-com/events/event.cfm

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11. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/jsps/ptimes.jsp

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

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Headlines:

1. Employers to File FY 2009 H-1B Petitions on April 1; USCIS Publishes Interim Rule Prohibiting Multiple H-1B Petitions for Same Employee – The H-1B supply is expected to be exhausted immediately; USCIS published an interim final rule prohibiting employers from filing multiple H-1B petitions for the same employee.

2. DHS Issues No-Match Supplemental Proposed Rule; Public Comments Accepted Until April 25 – The agency seems determined to press ahead with its previously stated plans despite concerns about their potential negative impact.

3. USCIS Issues Guidance on H-1B Specialty Occupation Licensure Requirements – USCIS issued guidance on H-1B petitions for specialty occupations when a required professional license cannot be obtained because of state licensing requirements mandating possession of a valid immigration document.

4. Biometrics Required for Re-Entry Permits and Refugee Travel Documents – The revised I-131 instructions require applicants for re-entry permits and refugee travel documents to provide biometrics.

5. PERM Data Released – More than 85,100 PERM cases were certified during FY 2007.

6. WHTI-Compliant Document To Be Required for Land, Sea Travel Into the U.S. – Effective June 1, 2009, travelers will be required to present a passport or other approved secure document denoting citizenship and identity for all land and sea travel into the U.S.

7. Around the States: Rhode Island, Virginia Crackdowns; NYC Losing to Competition – Along with a reduction in undocumented residents, immigration crackdowns will have a substantial impact on legal residents and on the economy.

8. NYC Staffing Company Charged With Violating H-1B Program – An investigation by the Department of Labor’s Wage and Hour Division found that 156 H-1B workers from the Philippines, brought into the U.S. by Advanced Professional Marketing, Inc. (APMI), a medical staffing company, are owed almost $3 million in back wages.

9. Company Managers Indicted for Hiring Unauthorized Workers; E-Mails Used as Evidence – In 2006, raids were conducted on 52 IFCO workshops, which revealed problems with the Social Security numbers of half of the company’s 5,800 employees.

10. India Second Preference Visa Numbers Available in April; Iraqi, Afghani Translator Numbers Going Fast – Visa numbers have once again become available to the India employment second preference category; the FY 2008 numerical limitation of 500 visas in the special immigrant translator category will be reached soon.

11. DHS Collecting 10 Fingerprints at JFK Airport – JFK is the tenth port of entry to begin collecting 10 fingerprints from international visitors.

12. Hard Times Expected at Toronto Consulate – The consulate expects a severe staffing shortage this summer.

13. Visa Waiver Agreements Signed With Eastern European Countries – Visa waiver agreements have been signed with Slovakia, Hungary, Lithuania, Estonia, and Latvia, putting those countries on the path toward possible designation as Visa Waiver Program members later this year.

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

15. Recent News from ABIL Members – Recent News from ABIL Members

Details:

1. Employers to File FY 2009 H-1B Petitions on April 1; USCIS Publishes Interim Rule Prohibiting Multiple H-1B Petitions for Same Employee

On April 1, 2008, employers may file petitions requesting H-1B workers for fiscal year (FY) 2009 employment starting on October 1, 2008. For FY 2009, Congress has once again set a tight limit of 65,000 for most H-1B workers, and the supply is expected to be exhausted immediately. Last year, the cap was reached in one day.

USCIS published an interim final rule, effective March 24, 2008, that prohibits employers from filing multiple H-1B petitions for the same employee. USCIS said the changes “will ensure that companies filing H-1B petitions subject to congressionally mandated numerical limits have an equal chance to employ an H-1B worker.” USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions. USCIS noted that the interim rule does not preclude related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same worker for different positions, based on a legitimate business need.

The first 20,000 H-1B workers who have a U.S. master’s degree or higher are exempt from the cap. Under current procedures, which are not changed by this rule, once USCIS receives 20,000 petitions for aliens with a U.S. master’s degree or higher, all other cases requesting the educational exemption are counted toward the 65,000 cap. Once the 65,000 cap is reached for a fiscal year, USCIS announces that the cap has been filled and rejects further petitions subject to the cap.

The rule stipulates that if USCIS determines that the number of H-1B petitions received meets the cap within the first five business days of accepting applications for the coming fiscal year, USCIS will apply a random selection process among all H-1B petitions received during that time period. If the 20,000 advanced-degree limit is reached during the first five business days, USCIS will randomly select from those petitions before conducting the random selection for the 65,000 limit. Petitions subject to the 20,000 limit that are not selected in that random process will be considered along with the other H-1B petitions in the random selection for the 65,000 limit.

The interim rule further clarifies that USCIS will deny petitions that incorrectly claim an exemption from any H-1B numerical limits. Those filing fees will not be returned. Under current procedures, which are not changed by this rule, once U.S. Citizenship and Immigration Services (USCIS) receives 20,000 petitions for aliens with a U.S. master’s degree or higher, all other cases requesting the educational exemption are counted toward the 65,000 cap. Once the 65,000 cap is reached for a fiscal year, USCIS will announce that the cap has been filled and reject further petitions subject to the cap.

As noted above, H-1B availability is likely to be exhausted immediately. Contact your Alliance of Business Immigration Lawyers member for guidance in particular cases.

The interim final rule is available at http://edocket.access.gpo.gov/2008/pdf/E8-5906.pdf. A USCIS press release announcing the interim rule is available at http://www.uscis.gov/files/article/H-1B_multi_filing_19Mar08.pdf. A fact sheet with additional details is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=fb68c9b9d87c8110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. Questions and answers are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=0189c9b9d87c8110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

In other H-1B news, the March 2008 edition of Business Week noted that two outsourcing companies based in Bangalore, India, top the list of approved H-1B visa petitions in 2007: Infosys Technologies (4,559 visas) and Wipro (2,567 visas). Six of the top 10 H-1B visa recipients are based in India, and Indian outsourcers received nearly 80 percent of the visas approved for the top 10 participants in the H-1B program. Infosys has 88,000 workers worldwide, with 9,000 of those in the U.S., including 7,500 H-1Bs.

Bill Gates testified on March 12, 2008, before the House of Representatives’ Committee on Science and Technology about the “gathering threat to U.S. preeminence in science and technology innovation.” He proposed a four-part plan, including revamping immigration rules for highly skilled workers so that U.S. companies can attract and retain the world’s best scientific talent. As a result of an artificially low H-1B cap and “counterproductive immigration policies,” he said, many U.S. firms, including Microsoft, have been forced to locate staff in countries that welcome skilled foreign workers to do work that otherwise could have been done in the U.S. Mr. Gates said that an increase in the number of H-1B visas likely would increase employment of U.S. nationals as well, citing a study of technology companies in the S&P 500 that found that for every H-1B visa requested, leading U.S. technology companies increased their overall employment by five workers.

Mr. Gates’s testimony before the House committee is available at http://democrats.science.house.gov/Media/File/Commdocs/hearings/2008/Full/12mar/gates_testimony_12mar08.pdf.

A policy brief on H-1B visas and job creation by the National Foundation for American Policy (NFAP), which notes that hiring H-1B visa holders is associated with increases in employment at U.S. technology companies, is available at http://www.nfap.com/pdf/080311h1b.pdf. An NFAP policy brief on job openings and the need for skilled labor in the U.S. economy is at http://www.nfap.com/pdf/080311talentsrc.pdf.

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2. DHS Issues No-Match Supplemental Proposed Rule; Public Comments Accepted Until April 25

On March 26, 2008, the Department of Homeland Security (DHS) issued a supplemental proposed rule on procedures for employers who receive a “no-match letter” from the Social Security Administration (SSA) or a “notice of suspect document” from the Department of Homeland Security (DHS) casting doubt on the employment eligibility of the employer’s workers. The previous final rule, which was published on August 15, 2007, was preliminarily enjoined by the U.S. District Court for the Northern District of California on October 10, 2007. The DHS issued the new supplemental proposed rule to clarify certain aspects of the August 2007 final rule and to respond to three findings underlying the district court’s injunction.

The agency seems essentially determined to press ahead with its previously stated plans despite concerns about their potential negative impact. The New York Timeswarned in a March 27, 2008, editorial that the DHS’s plan will “throw thousands of law-abiding American workers and companies off a cliff in perilous economic times,” noting that the SSA’s inspector general estimated that about 17.8 million of the agency’s 435 million records contain errors that could lead to a no-match letter, and that 70 percent of those 17.8 million records belong to native-born Americans.

The DHS’s supplemental proposed rule addresses three findings of the district court, which questioned whether the DHS had: (1) supplied a reasoned analysis to justify what the court viewed as a change in the DHS’s position: that a no-match letter may be sufficient, by itself, to put an employer on notice, and thus impart constructive knowledge, that employees referenced in the letter may not be work-authorized; (2) exceeded its authority (and encroached on the authority of the Department of Justice [DOJ]) by interpreting the antidiscrimination provisions of the Immigration Reform and Control Act of 1986; and (3) violated the Regulatory Flexibility Act by not conducting analysis of the rule’s impact on small businesses.

The DHS noted that although the mere receipt of an SSA no-match letter may not obligate employers to repeat the full I–9 employment verification process, employers “cannot turn a blind eye to SSA no-match letters and should perform reasonable due diligence.” The supplemental proposed rule emphasizes the idea of eliminating ambiguity and confusion regarding an employer’s responsibilities upon receipt of a no-match letter, acknowledging that previous guidance was in the form of case-by-case responses to individual queries from employers and others, resulting in a lack of uniformity and multiple interpretations by employers.

The DHS said that SSA no-match letters are sent to employers whose wage reports reveal at least 11 workers with no-matches, and where the total number of no-matches represents more than 0.5 percent of the employer’s total Forms W-2 in the report. The agency believes these criteria limit the recipients of employer no-match letters to those who have potentially significant problems with their employees’ work authorization. Employers with stray mistakes or minor inaccuracies in their records, the DHS said, do not receive employer no-match letters. As a result, the DHS concluded that employers who receive no-match letters cannot reasonably assume the problems are merely trivial clerical errors, and therefore cannot reasonably simply ignore those letters. The DHS therefore finds that an employer’s failure to conduct reasonable due diligence upon receipt of an SSA no-match letter can, in the totality of the circumstances, establish constructive knowledge of an employee’s unauthorized status.

The DHS noted that the August 2007 final rule specifies actions that can be taken by an employer that the agency will consider to be a reasonable response to receiving an SSA no-match letter or DHS letter, which “will eliminate the possibility that either letter can be used as any part of an allegation that an employer had constructive knowledge that it was employing an alien not authorized to work in the United States.”

In light of the district court’s concerns about the DHS’s possible encroachment into the authority of DOJ, in the March 2008 supplemental proposed rule the DHS rescinds the statements in the preamble of the August 2007 final rule describing employers’ obligations under antidiscrimination law and discussing the potential for antidiscrimination liability faced by employers that follow the “safe-harbor” procedures set forth in the August 2007 rule. For example, the DHS is rescinding conclusive statements from the preamble of the August 2007 final rule such as, “employers who follow the safe harbor procedures…will not be found to have engaged in unlawful discrimination.” The DHS said it also will “revisit” the language in its insert letter after the supplemental proposed rule is finalized. The rescissions do not change existing law or require any change to the rule text, the DHS noted.

Employers seeking information regarding their antidiscrimination obligations in following the safe harbor procedures in the August 2007 final rule, as modified by the March 2008 supplemental rule, should review new guidance from the DOJ’s Office of Special Counsel for Immigration-Related Unfair Employment Practices at http://www.usdoj.gov/crt/osc/index.html. Employers may also seek advice on a case-by-case basis through OSC’s toll-free employer hotline at 1–800–255–8155. The DOJ’s public guidance on employers’ antidiscrimination obligations will be published in a Federal Register notice when the DHS promulgates the March 2008 supplemental proposed rule as a final rule.

The DHS is proposing to further clarify two aspects of the August 2007 final rule. First, the rule instructs employers seeking safe harbor that they must “promptly” notify an affected employee after the employer has completed its internal records checks and has been unable to resolve the mismatch. After reviewing the history of the rulemaking, the DHS believes that this obligation for prompt notice ordinarily would be satisfied if the employer contacts the employee within five business days after the employer has completed its internal records review. The DHS emphasized that an employer does not need to wait until after completing this internal review to advise affected employees that the employer has received the no-match letter and request that the employees seek to resolve the mismatch: “Immediately notifying an employee of the mismatch upon receipt of the letter may be the most expeditious means of resolving the mismatch.”

Second, plaintiffs in the litigation before the district court raised a question as to whether, under the August 2007 final rule, an employer could be found liable on a constructive knowledge theory for failing to conduct due diligence in response to the appearance of an employee hired before November 6, 1986, in an SSA no-match letter. The DHS noted that when Congress enacted INA section 274A as part of the 1986 Immigration Reform and Control Act, it included a grandfather clause in that legislation exempting workers hired before IRCA’s date of enactment from the provisions of section 274A(a)(1) and (a)(2). Because those statutory bars against hiring or continuing to employ individuals without work authorization do not apply to workers within that grandfather clause, the DHS said that the August 2007 final rule, as published and as supplemented, does not apply to any such workers that may be listed in an SSA no-match letter.

The DHS said it has filed an appeal to have the preliminary injunction dissolved. The agency is continuing this simultaneous rulemaking in the meantime, which it said is intended to lead to the rule becoming effective as quickly as possible and “is not a concession of any issue pending in the litigation.”

Comments are due by April 25, 2008, and should be submitted using the procedures outlined in the supplemental proposed rule, which details the DHS’s position on the district court’s ruling and includes information on estimated costs of compliance for employers. The supplemental proposed rule is available at http://edocket.access.gpo.gov/2008/pdf/E8-6168.pdf. A press release is available at http://www.dhs.gov/xnews/releases/pr_1206124972832.shtm.

Employers may also wish to consider using E-Verify, an Internet-based system operated by the DHS in partnership with the SSA that allows participating employers to verify the employment eligibility of their newly hired employees, including the validity of their Social Security Numbers. E-Verify is available at http://www.dhs.gov/ximgtn/programs/gc_1185221678150.shtm.

Contact your Alliance of Business Immigration Lawyers member for legal guidance and assistance in particular cases.

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3. USCIS Issues Guidance on H-1B Specialty Occupation Licensure Requirements

U.S. Citizenship and Immigration Services (USCIS) sent guidance to the field on March 21, 2008, updating the Adjudicator’s Field Manual on accepting and adjudicating H-1B petitions for specialty occupations when a required professional license cannot be obtained because of state licensing requirements mandating possession of a valid immigration document, such as an approved H-1B petition, as evidence of employment authorization before the license can be issued. USCIS noted that this situation creates a “Catch-22” adjudicative difficulty for the agency because approval of the H-1B petition may be contingent on the beneficiary’s possession of the required license. USCIS stated that in such situations, it will allow the temporary approval of the petition provided all other requirements are met. Such an approval will not constitute authorization for the beneficiary to practice his or her profession without the required license but should be considered “merely a means to facilitate the State or local licensing authority’s issuance of such a license.”

USCIS instructed adjudicators to approve an H-1B petition for a one-year validity period if a state or local license to engage in the profession is required and the appropriate licensing authority will not grant the license absent evidence that the beneficiary has been granted H-1B status. As a condition to approving such a petition, USCIS stated, the beneficiary must demonstrate that he or she has filed the licensing application in accordance with state or local rules and procedures. Further, adjudicators should verify that the beneficiary is fully qualified to receive the license, meaning that all educational, training, experience, and other substantive requirements must be met at the time of filing of the petition. Where appropriate, USCIS noted, the adjudicator may issue a request for evidence.

Any petition that requests an extension of stay on behalf of a beneficiary who has been granted H-1B status under this provisional measure, USCIS said, must show that the beneficiary has obtained the requisite license. If he or she has not obtained the license at the time the petition and extension are filed, the petition will be denied.

USCIS referenced earlier guidance applicable in other contexts. For example, in 2001 the agency’s precursor, the Immigration and Naturalization Service, instructed adjudicators to approve H-1B petitions for a one-year period for teachers who could not obtain state licensure unless they could obtain social security numbers, which in turn could not be obtained unless the teachers were already authorized to work in the U.S. At the end of the one-year period, the teacher was required to file another petition with a request for extension, and also present evidence at such time that the license had been obtained.

The memorandum is available at http://www.uscis.gov/files/pressrelease/AFM_Update_Chap31_21Mar08.pdf.

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4. Biometrics Required for Re-Entry Permits and Refugee Travel Documents

U.S. Citizenship and Immigration Services (USCIS) issued revised instructions, effective March 5, 2008, for the Application for Travel Document (Form I-131). The revised instructions require applicants for re-entry permits and refugee travel documents to provide biometrics (e.g., fingerprints, photographs) at USCIS Application Support Centers (ASCs). USCIS will notify applicants of their appointments at designated ASCs after submission of the I-131 application.

The new instructions for the I-131 require that applicants for re-entry permits and refugee travel documents who are ages 14 through 79 provide biometrics before departing from the U.S. Applicants for re-entry permits and refugee travel documents who are in the U.S. must pay an $80 biometrics fee or submit a fee waiver request with sufficient documentation. The $305 I-131 application fee cannot be waived. The I-131 instructions also provide guidance for certain persons applying for refugee travel documents (not re-entry permits) who are abroad at the time of filing, on visiting a U.S. Embassy or consulate for fingerprinting.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=9c7c6a41ccf78110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The I-131 instructions are available at http://www.uscis.gov/files/form/I-131instr.pdf and the form is at http://www.uscis.gov/files/form/I-131.pdf.

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5. PERM Data Released

The Employment and Training Administration’s Office of Foreign Labor Certification (OFLC) recently released fiscal year (FY) 2007 data covering cases processed under the Permanent Labor Certification Program. Selected statistics include:

• More than 85,100 PERM cases were certified during FY 2007.
• Foreign workers representing 176 countries were certified for permanent work in the U.S.
• Nearly 6 out of 10 PERM cases were certified for small employers (defined as fewer than 250 workers).
• Top states: California (20,222), New York (8,843), New Jersey (6,594), Texas (6,534), Florida (5,128).
• Top countries: India (24,573), China (6,846), Mexico (6,442), South Korea (5,159), Canada (4,837).
• Top employers: Microsoft Corporation; Cognizant Technologies; Oracle USA, Incorporated; Intel Corporation; Ernst & Young, LLP; Motorola Incorporated.

The PERM data is available at http://www.foreignlaborcert.doleta.gov/pdf/PERM_Data_FY07_Announcement.pdf.

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6. WHTI-Compliant Document To Be Required for Land, Sea Travel Into the U.S.

Effective June 1, 2009, travelers will be required to present a passport or other approved secure document denoting citizenship and identity for all land and sea travel into the U.S., the Departments of Homeland Security and State announced. The final rule for the land and sea portion of the Western Hemisphere Travel Initiative (WHTI), announced March 27, 2008, will apply to previously exempt travelers, including citizens of the U.S., Canada and Bermuda.

The DHS said it is releasing the WHTI land and sea final rule more than a year in advance of its implementation to give the public ample notice and time to obtain the WHTI-compliant documents they will need to enter or re-enter the U.S. on or after June 1, 2009. The agency noted that many cross-border travelers already have WHTI-compliant documents, such as a passport or a Trusted Traveler Card (NEXUS, SENTRI, and FAST), or a Washington state enhanced driver’s license (EDL). The Department of State is already accepting applications for new passport cards and additional states and Canadian provinces will be issuing EDLs in the next several months, all of which the DHS said are options specifically designed for land and sea border use.

Beginning June 1, 2009, DHS will institute special provisions that allow school or other organized groups of children ages 18 and under who are U.S. or Canadian citizens to enter the U.S. with proof of citizenship alone.

Information on specific documentation requirements is available for U.S. citizens at http://www.cbp.gov/xp/cgov/travel/vacation/ready_set_go/ and for non-U.S. citizens at http://www.cbp.gov/xp/cgov/travel/id_visa/. The full text of the final rule is available at http://www.dhs.gov/xlibrary/assets/whti_landseafinalrule.pdf. The DHS has also designated the enhanced driver’s license and identity document issued by Washington state as a travel document under the WHTI. Questions and answers on the WHTI final rule are available at http://www.dhs.gov/xnews/releases/pr_1206635771151.shtm.

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7. Around the States: Rhode Island, Virginia Crackdowns; NYC Losing to Competition

State and local authorities in several locations continued efforts to crack down on undocumented immigration. In Rhode Island, Governor Don Carcieri, under pressure because of a massive budget deficit, signed an executive order directing state police to enter into an agreement with federal immigration authorities to permit access by the police to immigration databases. Such access would give them the ability to check the immigration status of criminals, victims, witnesses, and those supplying the police with confidential tips, according to state police Major Steven O’Donnell. The prison system is expected to negotiate a similar agreement. The executive order also requires businesses and state agencies to verify the status of employees.

As of March 3, 2008, Prince William County in Virginia requires police officers to inquire about immigration status during arrests or traffic stops whenever there is probable cause to suspect that an immigration violation has occurred. The Board of County Supervisors resolution also requires verification of immigration status by county staff before certain public services can be provided.

A team of sociologists and law enforcement experts from the University of Virginia, James Madison University, and the Police Executive Research Forum is expected to conduct a two-year study to examine the consequences of the Prince William policy. Meanwhile, Latinos reportedly already have been fleeing the county for months because of a combination of factors, including the immigration crackdown, a downturn in the construction industry, and the mortgage crisis. Latino-run businesses are teetering on the brink of bankruptcy, and churches and soccer leagues are losing members. Entire strip malls have been “transformed into ghost towns,” according to the WashingtonPost.

Legal immigrants are also feeling the pinch. Santos Perdomo, a Prince William legal resident and business owner who also owns two houses, noted that many Hispanics are leaving. He plans to stay, although he noted that he no longer wants to give to the county police fund. “Even though I am legal, I feel rejected. This law has ruined all the good feelings. When I came here 12 years ago, my neighbors sent me pies. Now they look at me differently.”

The crackdown is expected to cost the county millions of dollars in enforcement costs and to affect tax revenues. The county has proposed a 28 percent property tax increase to make up for budget shortfalls. Similar efforts in Riverside, New Jersey, led to “chang[ing] the face of Riverside,” according to former mayor Charles Hilton, who noted that “[t]he business district is [now] fairly vacant.”

Along with a reduction in undocumented residents, it is clear that the policy in Prince William, and others like it nationwide, will have a substantial impact on legal residents and on the local economy over the next few years.

In other news, senior executives of large corporations, small and midsize companies, and investment banks have expressed concerns that harsh immigration policies are threatening New York City’s ability to compete with foreign cities because the people chosen to take high-paying jobs cannot gain admission to the U.S. Some officials reportedly said that they have shifted dozens of jobs to other financial capitals because of the difficulty in obtaining visas for foreign workers.

Kathryn S. Wylde, president of the Partnership for New York City, said, “New York’s ability to compete with London, which has much more open immigration, or with the emerging financial capitals in Asia and the Middle East, depends on mobility of talent, both in terms of new and current employees. What people miss is, New York’s standing as an international capital of business and finance depends on the professionals within these companies being able to come to New York to be trained and groomed for leadership positions around the world.” She noted that opposing business immigration is “a 20th-century, pre-globalization mentality that thinks somehow American companies and jobs can grow if we cut ourselves off from foreign talent.” A senior project manager for British bank Barclays said he took a job in London over one in New York City mainly because of the uncertainty of H-1B renewals and the “whole visa situation,” which he termed a “nightmare.”

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8. NYC Staffing Company Charged With Violating H-1B Program

An investigation by the Department of Labor’s Wage and Hour Division found that 156 H-1B workers from the Philippines, brought into the U.S. by Advanced Professional Marketing Inc. (APMI), a medical staffing company based in New York City, to be employed primarily as physical therapists in hospitals and other medical facilities in the New York metropolitan area, are owed almost $3 million in back wages. The investigation revealed that APMI willfully failed to pay required wages, filed lawsuits seeking penalties against some H-1B employees for early cessation of employment, failed to make required documents available for examination, failed to maintain required documentation, and used incorrect prevailing wage rates on labor condition applications.

A determination letter outlines the alleged violations and assesses civil money penalties totaling $512,000 for the violations. It also directs APMI and the company’s president, Marissa Beck, to pay back wages in the amount of $2,920,270 to the 156 H-1B workers. Finally, the letter informs the company and Ms. Beck of their right to request a hearing on this determination before a Labor Department administrative law judge within 15 days.

The Wage and Hour Division maintains a list below of “willful violator employers” under the H-1B program at http://www.dol.gov/esa/whd/immigration/H1BWillfulViolator.htm, and a fact sheet defining what a willful violator employer is at http://www.dol.gov/esa/regs/compliance/whd/FactSheet62/whdfs62S.pdf.

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9. Company Managers Indicted for Hiring Unauthorized Workers; E-Mails Used as Evidence

Five managers of the pallet management division of IFCO Systems North America were recently indicted on felony charges of conspiracy to harbor, encourage and induce, and transport illegal aliens. The evidence included e-mails between middle managers and their superiors. Seven middle managers had pleaded guilty to charges a year ago and promised to cooperate in the investigation. In 2006, raids were conducted on 52 IFCO workshops, which revealed problems with the Social Security numbers of half of the company’s 5,800 employees. The news release announcing the indictments is available at http://www.ice.gov/pi/news/newsreleases/articles/080228albany.htm.
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10. India Second Preference Visa Numbers Available in April; Iraqi, Afghani Translator Numbers Going Fast

The Department of State’s Visa Office announced in the April 2008 Visa Bulletin that visa numbers have once again become available to the India employment second preference category.

The Department noted that if total demand is insufficient to use all available numbers in a particular employment preference category in a calendar quarter, the unused numbers may be made available without regard to the annual “per-country” limit. Based on the current level of demand, the Department said, there would be otherwise unused numbers in the employment second preference category. The rate of number use in that category will continue to be monitored, and the Department said it may be necessary to make adjustments should the level of demand increase substantially.

The Department also stated that the National Visa Center has already scheduled 485 Iraqi and Afghani special immigrant translator cases for interview in fiscal year 2008. Of these, 332 special immigrant visa numbers have been issued to principal applicants and another 170 cases are scheduled for March. Given the number of cases scheduled, along with those still pending, the Department said it is likely that the FY 2008 numerical limitation of 500 visas in this category will be reached soon.

The April 2008 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4177.html.

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11. DHS Collecting 10 Fingerprints at JFK Airport

The Department of Homeland Security (DHS) announced on March 25, 2008, that it has begun collecting additional fingerprints from international visitors arriving at New York’s John F. Kennedy International Airport (JFK). The change is part of the DHS’s upgrade from two- to 10-fingerprint collection to enhance security and facilitate legitimate travel.

On an average day at JFK, the DHS noted, almost 14,400 international visitors complete biometric procedures. Visitors from Mexico, the United Kingdom, Germany, Italy, France, and Japan comprise the largest numbers of international visitors arriving at JFK.

JFK is the tenth port of entry to begin collecting 10 fingerprints from international visitors. Washington Dulles International Airport began 10-fingerprint collection on November 29, 2007. Hartsfield?Jackson Atlanta International Airport, Boston Logan International Airport, Chicago O’Hare International Airport, George Bush Houston Intercontinental Airport, San Francisco International Airport, Miami International Airport, Orlando International Airport, and Detroit Metropolitan Wayne County Airport have also begun 10-fingerprint collection.

Under the US?VISIT program, the agency is evaluating 10?fingerprint collection at these airports. It will use the results to inform the deployment of the technology to the remaining air, sea, and land border ports of entry that will transition to collecting 10 fingerprints by December 2008.

The DHS announcement is available at http://www.dhs.gov/xnews/releases/pr_1206470846443.shtm.

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12. Hard Times Expected at Toronto Consulate

Jeffrey S. Tunis, the consular chief for the U.S. Consulate in Toronto, issued a memorandum on March 5, 2008, stating that the consulate expects a severe staffing shortage this summer and noting that the facility is “solidly booked” with respect to nonimmigrant visa appointments. The consulate is taking steps to reduce its workload, including not accepting any unsolicited telephone calls. The consulate’s Web site is at http://toronto.usconsulate.gov/content/index.asp.
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13. Visa Waiver Agreements Signed With Eastern European Countries

Secretary of Homeland Security Michael Chertoff has signed visa waiver agreements with the governments of Slovakia, Hungary, Lithuania, Estonia, and Latvia. The agreements outline security enhancements that put the countries on the path toward visa-free travel to the U.S. and possible designation as Visa Waiver Program (VWP) members later this year.

The DHS said it will establish an electronic system of travel authorization for air passengers. VWP travelers will be asked to provide some basic information online in advance of their trip, which will generate an authorization number for travel. The DHS plans to announce details on how the authorization systems will work, and when they will begin, later in 2008.

The announcements are available at http://www.dhs.gov/xnews/releases/pr_1205782432579.shtm (Slovakia, Hungary, Lithuania) and http://www.dhs.gov/xnews/releases/pr_1205358177498.shtm (Estonia, Latvia). A transcript of Secretary Chertoff’s remarks are available at http://www.dhs.gov/xnews/speeches/sp_1205872910529.shtm.

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14. New Publications and Items of Interest

Multilingual resources on entry/exit procedures. US-VISIT biometric entry procedures are currently in place at 116 airports, 15 seaports, and the secondary inspection areas of 154 land ports of entry. Multilingual videos and brochures on the US-VISIT Program’s entry and exit procedures are available in English, Spanish, Portuguese, Chinese, Korean, Arabic, French, German, Hebrew, Japanese, Polish, Russian, Ukrainian, Vietnamese, and Tagalog. Links to these videos and brochures are available at http://www.dhs.gov/xtrvlsec/programs/editorial_0435.shtm. A list of the current ports of entry under US-VISIT is available at http://www.dhs.gov/xtrvlsec/programs/editorial_0685.shtm.

Social Security Trustees report. The 2008 report of the Social Security Trustees notes that last year, there was an estimated overall 75-year deficit of 1.95 percent of taxable payroll; this year, the shortfall is down to 1.70 percent. This translates into a benefit to the Social Security system of about $13 billion per year, according to the Political Animal blog on the CBS News Web site. The main reason for the adjustment was an improvement in the methodology used to estimate taxes and benefits received from “other immigration,” which is undocumented immigration.

The report is available at http://www.ssa.gov/OACT/TR/TR08/trTOC.html. An appendix showing figures related to estimates of net immigration is at http://www.ssa.gov/OACT/TR/TR08/VI_LRsensitivity.html#92900. The article on Political Animal is available at http://www.cbsnews.com/stories/2008/03/25/politics/animal/main3968207.shtml.

Immigration fact sheets. The Immigration Policy Center has launched Immigration OnPoint, an online compilation of fact sheets on immigration. OnPoint documents “aim to confront myths and provide timely and accurate information on a range of immigration-related topics.” Materials will be added and updated on a regular basis. For more information, see http://www.immigrationpolicy.org/onpoint.

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15. Recent News from ABIL Members

H. Ronald Klasko (bio: https://www.abil.com/lawyers/lawyers-klasko.cfm) addressed over 300 immigration lawyers at the Florida Bar Association’s Annual Immigration Law Update in February. He served as a panelist on “Employment Based Immigration: Where Are We Now?” and as the discussion leader on “Federal Court Redress for Adjudication Delays.” He also recently addressed immigration lawyers from Florida on the advantages of using the EB-5 Regional Center Investment Program to assist their foreign clients wishing to invest in the U.S. and get a visa. His speech was part of a program organized by the Philadelphia Regional Center. Mr. Klasko is listed in the 2008 edition of the Best Lawyers in America and was named one of the country’s top immigration lawyers by Chambers Global: The World’s Leading Lawyers for Business 2008.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm), president of the Alliance of Business Immigration Lawyers, was quoted in the March 14, 2008, edition of the New York Sun commenting on Emilio Gonzalez, director of U.S. Citizenship and Immigration Services, who is resigning soon. “He really barely rearranged the deck chairs on the Titanic, and has really not done anything to ameliorate the problems of the past few years,” Mr. Paparelli said.

Mr. Paparelli also recently authored, with Lily Hensel, “Immigration and Employment Law in 21st Century America – Parallel Universes Coming Together.” The article notes that increasingly, these specialty areas intersect in many significant ways, particularly as the HR imperatives of “global mobility management” create collaborative opportunities for both practice areas, and the U.S. and state governments introduce and enforce greater worker protections and stricter limits on employer conduct in the immigration space. The article is available at https://www.abil.com/articles/Parallel%20Universes%20Article.pdf.

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) was quoted in the business section of the March 16, 2008, edition of the New York Times. Commenting on the EB-5 immigrant investor program’s progress, he noted, “There were fears that the program wasn’t achieving its intended purpose,” but as a result of streamlining efforts, including permitting “Regional Centers” outside the federal government to screen investors and monitor job creation efforts, “the EB-5 program has risen from the ashes.” Mr. Yale-Loehr is listed in Who’s Who in America and was named one of the country’s top immigration lawyers by Chambers Global: The World’s Leading Lawyers for Business 2008.

Poorvi Chothani (bio: https://www.abil.com/lawyers/lawyers-chothani.cfm), an ABIL Global member, has published information on Indian immigration, available at http://manupatra.com/etc/mailer/e-Newsline/Upload/default.htm. Ms. Chothani was quoted in the February 21, 2008, edition of a leading business newspaper in Mumbai, the Economic Times. She advised companies and skilled individuals to start planning ahead for their H-1B applications and not leave things to the last moment. The article is available at http://economictimes.indiatimes.com/articleshow/2799405.cms.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) was the Program Chair of the Practising Law Institute’s Immigration Law Basic Seminar on March 20, 2008, in New York and was a speaker at the American Immigration Lawyers Association’s New York Chapter Ethics CLE 101 on March 10, 2008. Additional information on the PLI program and DVDs are available at http://www.pli.edu/product/av_detail.asp?ptid=507&stid=99&id=EN00000000039421.

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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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