Headlines:

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

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

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

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

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

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

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

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

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

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

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

Details:

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

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

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

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

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

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

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

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

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

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

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

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

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2. Federal Court Strikes Down PA Illegal Immigration Law

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

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

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

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

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

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

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

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

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

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

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

The suspension will continue until further notice, USCIS said.

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

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5. USCIS Rescinds Earlier Update, Allows Prepaid Mailers

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

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

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

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6. DHS Exempts Portions of IDENT System From Privacy Act

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

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

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

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7. FBI Warns Employers About Potential ‘Spies’

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

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

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

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8. Passport Measures Relaxed in Response to Massive Backlogs

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

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

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

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

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

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9. House Passes Liberian TPS Measure

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

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

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

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

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

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

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11. Recent News from ABIL Members

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

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

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

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

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Headlines:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Details:

1. Senate Debates Immigration Reform Bill

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

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

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

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

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

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

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

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

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

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

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

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

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

The rule’s major provisions include:

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

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

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

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

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

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

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3. DOL Releases PERM Labor Certification FAQ

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

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

Selected specific increases include:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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9. Lawsuit Threats Discourage Foreign Investment, Top Executives Say

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

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

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

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

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

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13. CBP Border Patrol Sponsors NASCAR Car

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

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

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

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

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

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15. Recent News from ABIL Members

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

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

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

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

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

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

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

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Headlines:

1. H-1B Rush Begins and Ends; Reform Bill Introduced in House; Other Developments – The H-1B cap could be filled immediately; bipartisan reform legislation is introduced in the House.

2. USCIS Reminds Applicants of New Filing Procedures Effective April 2 – Effective April 2, 2007, all Forms I-129 and I-539 are to be filed directly with the California Service Center or the Vermont Service Center, whichever is applicable.

3. H-2B Cap Reached – USCIS has received a sufficient number of petitions to reach the H-2B cap for the final six months of fiscal year 2007.

4. USCIS Announces Extension Stickers for Certain Honduran, Nicaraguan, Salvadoran TPS Re-Registrants – Certain Hondurans, Nicaraguans, and Salvadorans will have the opportunity to have an extension sticker affixed to their EAD while USCIS completes their TPS application.

5. New Guidance Issued on National Interest Waivers and Adjustment Applications for Physicians in Underserved Areas – Among other things, physicians with an approved NIW petition will no longer be restricted to a specific time period in which to fulfill the medical service requirement.

6. FOIA ‘E-Delinquents’ Include DOL, ICE – A new report finds that, 10 years after passage of the Electronic FOIA Amendments, several federal agencies fall short of the law.

7. New GAO Report Outlines US-VISIT Challenges – DHS continues to face longstanding US-VISIT management challenges and future uncertainties.

8. Immigrants Driving Globalization, Report Finds – A new report on the future of small business finds that immigrant entrepreneurs will drive a new wave of globalization.

9. Resources on the Web – Web sites provide information on the latest legislative and prosecutorial developments.

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

Details:

1. H-1B Rush Begins and Ends; Reform Bill Introduced in House; Other Developments

April 2, 2007, marked the start and end of the annual H-1B rush. U.S. Citizenship and Immigration Services (USCIS) announced on April 3 that it had received many more than enough H-1B petitions to fill the annual quota on the very first filing day of the year. A random selection process will be employed to determine which cases will actually be accepted. The USCIS memo is at http://www.aila.org/content/default.aspx?docid=22017.

Also, a USCIS interoffice field memorandum noted that the Department of Labor (DOL) Web site through which labor condition applications (LCAs) are requested has occasionally been unable to print a copy of the certified LCA after completion of the certifying process. The USCIS guidance instructs officers to accept H-1B petitions filed without a copy of the certified LCA for the FY 2008 cap if the filings are accompanied by screen prints from the DOL Web site showing that the LCAs were in fact certified on March 30, 2007 (or any other date on which USCIS can verify with DOL that the DOL LCA Web site malfunctioned). The screen print must display the ETA case number, the petitioner EIN, and the employer name. Before final adjudication of the petitions, USCIS may require copies of the certified LCAs. The memorandum is posted at http://www.uscis.gov/files/pressrelease/FY08H1B_NoLCA033007.pdf.

Also, a USCIS interoffice field memorandum noted that the Department of Labor (DOL) Web site through which labor condition applications (LCAs) are requested has occasionally been unable to print a copy of the certified LCA after completion of the certifying process. The USCIS guidance instructs officers to accept H-1B petitions filed without a copy of the certified LCA for the FY 2008 cap if the filings are accompanied by screen prints from the DOL Web site showing that the LCAs were in fact certified on March 30, 2007 (or any other date on which USCIS can verify with DOL that the DOL LCA Web site malfunctioned). The screen print must display the ETA case number, the petitioner EIN, and the employer name. Before final adjudication of the petitions, USCIS may require copies of the certified LCAs. The memorandum is posted at http://www.uscis.gov/files/pressrelease/FY08H1B_NoLCA033007.pdf.

The new legislation also would establish an H-2C temporary visa, valid for three years and renewable for another three. Under the H-2C visa, employers would be required to attempt to hire U.S. workers first and would be barred from hiring new immigrant workers in areas with high unemployment rates for workers with no education beyond high school. The H-2C visa program would have an initial cap of 400,000, adjusted yearly based on market fluctuations, and would include labor rights and protections, such as visa portability and competitive wage protections.

The new bill also would create a new guestworker program under a conditional nonimmigrant visa for eligible undocumented workers and their spouses and children in the U.S., valid for six years. Such workers, if they qualify, would have the opportunity to apply for permanent residence and eventual “earned citizenship,” but would have to wait at the back of the line for green cards and would have to pay a hefty fine. Among other things, to gain earned citizenship, a worker in most cases would need to meet a “legal reentry” requirement, whereby the worker would “reboot” his or her status by leaving the U.S. and returning.

Also, the new legislation calls for an electronic work authorization verification system for employers. The bill also incorporates the DREAM Act of 2007 and the AgJOBS Act of 2007.

Passage of the House bill remains uncertain. Some Republicans condemned the bill as an amnesty program for illegals. Discussions between Republican lawmakers in the Senate and the White House could lead in a different direction. Sen. Arlen Specter (R-Pa.) is reportedly heading a group of Republicans who are drafting a competing set of proposals in consultation with the White House. The Bush administration released a new immigration reform plan on March 29, 2007, that would also include a temporary guestworker program, with a “Z” visa renewable every three years after payment of a large fine each time. Under the administration’s plan, undocumented workers would need to register for temporary status within six months of the bill’s passage for the worker to receive consideration for legal status.

A Senate vote on immigration reform may take place in June. Senate majority leader Harry Reid (D-Nev.) reportedly stated that the Senate immigration debate may be slated for the last two weeks of May. Hearings are expected in the House shortly. If legislation does not pass by the end of 2007, many expect that it will be difficult to move it forward in the 2008 presidential election year.

Compete America, a coalition of corporations, educators, research institutions, and trade associations, endorsed key provisions of the House bill, including updating the employment-based green card cap and exempting key categories of professional; creating exemptions from employment-based immigrant visa and H-1B caps for foreign students receiving an advanced degree from a U.S. university, as well as for foreign professionals who have earned advanced STEM degrees at foreign universities; updating the cap on H-1B visas for highly educated temporary workers; and creating a new student visa category to allow U.S. STEM degree holders who have a job offer to transition directly from student visa to green card. Compete America’s statement is available at http://www.competeamerica.org/news/alliance_pr/20070322_strive.html.

On March 7, 2007, at a hearing before the Senate Committee on Health, Education, Labor and Pensions, Microsoft Corporation Chairman Bill Gates recommended an increase in the H-1B cap and streamlining the green card process for highly skilled workers. He lamented the current state of the U.S.’s “obsolete immigration system,” recommended changes in STEM education in the U.S., and expressed concerns about the dissuasion of foreign students from studying in the U.S. by the immigration system and new security measures. “Unfortunately, America’s immigration policies are driving away the world’s best and brightest precisely when we need them most,” he said. Mr. Gates predicted that if current trends continue, a significant percentage of all scientists and engineers in the world will be working outside of the U.S. by 2010.

Mr. Gates noted that the number of H-1B visas available “runs out faster and faster each year.” The current cap of 65,000 “is arbitrarily set and bears no relation to U.S. industry’s demand for skilled professionals,” he said, noting that for fiscal year 2007, the H-1B supply “did not last even eight weeks into the filing period, and ran out more than four months before that fiscal year even began.” For fiscal year 2008, Mr. Gates noted, H-1Bs are expected to run out in April, the first month that it is possible to apply for them. “This means that no new H-1B visas — often the only visa category available to recruit critically needed professional workers — will be available for a nearly 18-month period,” he warned.

Moreover, this year, for “the first time in the history of the program, the supply will run out before the year’s graduating students get their degrees. This means that U.S. employers will not be able to get H-1B visas for an entire crop of U.S. graduates. We are essentially asking top talent to leave the U.S.” He noted similar trends with the employment-based green card categories. Among other things, Mr. Gates called for “expedit[ing] the path to permanent resident status for highly skilled workers.” He said, “If Social Security is the dreaded third rail of politics, immigration is its downed electrical wire: a problem everyone knows about, but no one’s sure how to fix, so they just walk away.” Mr. Gates’s testimony is available at http://help.senate.gov/Hearings/2007_03_07/Gates.pdf.

Meanwhile, a coalition of organizations has released a set of visa policy recommendations, posted online at http://www.nafsa.org/press_releases.sec/press_releases.pg/coalitionvisarecs07_2. The policy proposals emphasize the important role that visa policy plays in both the security of the U.S. and its capacity to attract the best talent from other countries. The coalition includes the Alliance for International Educational and Cultural Exchange, the Coalition for Employment Through Exports, the Heritage Foundation, NAFSA: Association of International Educators, and the National Foreign Trade Council.

An overview of the STRIVE Act from Rep. Flake’s office is available at http://flake.house.gov/UploadedFiles/STRIVE%20Overview.pdf. The full text of the lengthy bill is available at http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.1645.IH:.

Testimony from Emilio Gutierrez, USCIS Director, at a hearing on March 27, 2007, on immigration reform and temporary workers before the House Subcommittee on Homeland Security is available at http://www.uscis.gov/files/pressrelease/27mar07.pdf.

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2. USCIS Reminds Applicants of New Filing Procedures Effective April 2

U.S. Citizenship and Immigration Services (USCIS) has issued a reminder to applicants that, effective Monday, April 2, 2007, all Forms I-129 (Petition for a Nonimmigrant Worker) and I-539 (Application to Change/Extend Nonimmigrant Status) are to be filed directly with the California Service Center or the Vermont Service Center, whichever is applicable. USCIS has released two separate filing charts for the forms to assist applicants in determining the direct filing location for their petition or application. Applicants are responsible for filing the forms with the correct Service Center and should verify that they are using the correct filing address by referring to the instructions on the relevant form.

USCIS said that the center where an applicant files a petition will generate the receipt notice and adjudicate the case. Compliance with the revised filing instructions “will ensure timely intake and case processing,” USCIS said.

USCIS’s reminder notice is available at http://www.uscis.gov/files/pressrelease/I129andI539filing_033007.pdf, and the filing charts for the forms are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3df261151e821110VgnVCM1000000ecd190aRCRD&vgnextchannel=fe529c7755cb9010VgnVCM10000045f3d6a1RCRD (Form I-129) and http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=2eede945cbc21110VgnVCM1000000ecd190aRCRD&vgnextchannel=fe529c7755cb9010VgnVCM10000045f3d6a1RCRD (Form I-539).

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3. H-2B Cap Reached

U.S. Citizenship and Immigration Services (USCIS) announced on March 23, 2007, that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the final six months of fiscal year 2007. March 16, 2007, is the “final receipt date” for new H-2B worker petitions requesting employment start dates before October 1, 2007. The final receipt date is 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 2007. USCIS will reject petitions for new H-2B workers seeking employment start dates before October 1, 2007, that arrived after March 16, 2007.

Petitions for both current and returning H-2B workers do not count toward the congressionally mandated biannual H-2B cap, USCIS noted. To qualify as a returning worker, the worker must have counted against the H-2B numerical cap between October 1, 2003, and September 30, 2006. USCIS said it would reject petitions received after the final receipt date that contain a combination of returning workers and workers subject to the H-2B cap. Petitioning employers will receive partial approvals for those who qualify as returning workers if otherwise approvable.

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;
• Allow current H-2B workers to change or add employers and extend their stay; or
• Request eligible H-2B “returning workers.”

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4. USCIS Announces Extension Stickers for Certain Honduran, Nicaraguan, Salvadoran TPS Re-Registrants

U.S. Citizenship and Immigration Services (USCIS) announced on March 9, 2007, that certain Hondurans, Nicaraguans, and Salvadorans eligible for temporary protected status (TPS) re-registration, who have an application pending with USCIS and are awaiting an employment authorization document (EAD), will receive a letter giving them the opportunity to have an extension sticker affixed to their EAD while USCIS completes their TPS application.

USCIS said it will not issue a Federal Register notice automatically extending previously issued EADs further for this group. Applicants should not appear at USCIS district offices to seek an extension sticker or an interim EAD. Instead, USCIS will mail eligible TPS re-registrants a letter instructing them to proceed to a USCIS Application Support Center (ASC) to receive the short-duration extension sticker.

Those who receive the sticker while USCIS continues processing their applications will receive an extension valid through June 2007 for I-9 employment authorization verification purposes. USCIS began mailing letters giving eligible re-registrants the opportunity to appear at an ASC to receive the extension sticker beginning on March 5, 2007. One can verify an applicant’s continuing status and employment authorization by using the case receipt number to check USCIS Case Status Online athttps://egov.immigration.gov/cris/jsps/index.jsp, or by calling the USCIS National Customer Service Center at 1-800-375-5283.

USCIS said it recognizes that the automatic extension of existing EADs expired on Friday, January 5, 2007, for Honduras and Nicaragua and on March 9, 2007, for El Salvador. USCIS said it is working diligently to produce and mail the letters giving eligible re-registrants the opportunity to appear at an ASC to receive the extension sticker in the coming days “to minimize any lapse in documentation of employment authorization” for those TPS beneficiaries who have not received a renewal EAD.

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5. New Guidance Issued on National Interest Waivers and Adjustment Applications for Physicians in Underserved Areas

U.S. Citizenship and Immigration Services (USCIS) has established interim procedures for adjudicating national interest waiver (NIW) immigrant petitions and related adjustment of status applications filed on behalf of physicians practicing in medically underserved areas or at facilities operated by the Department of Veterans Affairs (VA), in light of the U.S. Court of Appeals for the Ninth Circuit’s decision in Schneider v. Chertoff. Among other things, physicians with an approved NIW petition will no longer be restricted to a specific time period in which to fulfill the medical service requirement.

USCIS said it is implementing the Schneider decision nationwide not only to ensure immediate compliance with the decision in cases within the jurisdiction of the Ninth Circuit, but also to ensure consistent adjudication of all NIW physician cases nationwide. The interim guidance will be followed by amended regulations to give regulatory effect to the Schneider decision, USCIS said.

In addition, although not mandated by Schneider, USCIS is expanding the fields of medical specialty that may qualify physicians for NIWs by accepting petitions on behalf of physicians who provide “specialty care.” USCIS said it will adjudicate and approve NIW petitions for physicians who work in geographic areas that are designated by the Secretary of Health and Human Services as having a shortage of medical specialists for the Physicians Scarcity Area (PSA) program.

Also, the Conrad State 30 Program, established to address the shortage of qualified physicians in medically underserved areas, has been extended until June 1, 2008.

The Schneider guidance is available at http://www.uscis.gov/files/pressrelease/SchneiderIntrm012307.pdf. The Conrad State 30 announcement is available at http://www.uscis.gov/files/pressrelease/ConradExtnsn012907.pdf.

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6. FOIA ‘E-Delinquents’ Include DOL, ICE

The National Security Archive at George Washington University has released a new report finding that, 10 years after passage of the Electronic Freedom of Information Act (FOIA) Amendments, several federal agencies fall short of the law. The Department of Labor was cited for having no central reading room and no required documents available, and a lack of FOIA Web sites for several components. Immigration and Customs Enforcement had no dedicated FOIA page, very limited guidance, and no required documents.

The National Security Archive at George Washington University has released a new report finding that, 10 years after passage of the Electronic Freedom of Information Act (FOIA) Amendments, several federal agencies fall short of the law. The Department of Labor was cited for having no central reading room and no required documents available, and a lack of FOIA Web sites for several components. Immigration and Customs Enforcement had no dedicated FOIA page, very limited guidance, and no required documents.

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7. New GAO Report Outlines US-VISIT Challenges

The U.S. Government Accountability Office (GAO) has issued a report analyzing challenges that continue to face the US-VISIT program. The GAO noted that US-VISIT has improved the Department of Homeland Security’s (DHS’s) ability to process visitors and verify identities upon entry, but found that management controls in place to identify and evaluate computer and other operational problems at land ports of entry were insufficient and inconsistently administered. In addition, the GAO noted, a biometric exit capability is not yet available. The GAO said that DHS continues to face longstanding US-VISIT management challenges and future uncertainties.

The GAO recommended that critical acquisition management processes be established and followed to ensure that program capabilities and expected mission outcomes are delivered on time and within budget. Such processes include, the GAO said, effective project planning, requirements management, contract tracking and oversight, test management, and financial management. Until these issues are addressed, the risk of US-VISIT continuing to fall short of expectations is increased, the GAO concluded. The report, “Homeland Security: US-VISIT Faces Operational, Technological, and Management Challenges” (GAO-07-632T), is available at http://www.gao.gov/new.items/d07632t.pdf.

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8. Immigrants Driving Globalization, Report Finds

A new report on the future of small business, authored by the Institute for the Future, finds that immigrant entrepreneurs will drive a new wave of globalization, and that U.S. immigration policy and the outcome of the current immigration debates will affect how this segment performs over the next decade.

The “Intuit Future of Small Business Report” is available at http://www.intuit.com/futureofsmallbusiness/ (see pages 8 and 9 for information on immigrant entrepreneurs).

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9. Resources on the Web

Roll Call and GalleryWatch have launched Congress Now!, an online source of legislative news. The newsletter for CongressNow! will appear in mid-afternoon, five days per week, and will feature news, analysis, and information on committee markups. Breaking news will be posted to CongressNow.com throughout the day and sent via e-mail alerts. These features are available free to congressional staff and members of Congress, and by subscription otherwise, at http://www.congressnow.com/subscribe. See http://www.gallerywatch.com/CN_release_031907.pdf for more information.

GovTrack provides a hyperlinked version of the Congressional Record for the current session, at http://www.govtrack.us/congress/recordindex.xpd. Custom “monitors” of subject areas to track, such as bills in Congress, may be set up at http://www.govtrack.us/users/aboutmonitors.xpd.

The latest Transactional Records Access Clearinghouse (TRAC) data tool, covering the five-year period through the end of November 2006, notes that criminal immigration charges by federal prosecutors have declined substantially in the last year. TRAC documents trends for the overall number of prosecutions filed and convictions obtained under U.S. immigration law in federal districts around the country. U.S. District Court judges who handled the largest number of immigration cases also are highlighted. For this and many other immigration reports by TRAC, see http://trac.syr.edu/immigration/reports/.

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10. Recent News from ABIL Members

In the March 2007 edition of California Lawyer, Mark A. Ivener (bio: https://www.abil.com/lawyers-ivener.htm), author of Handbook of Immigration Law, Volumes I and II, was quoted in “Fed Up With The Feds,” an article about frustrated local jurisdictions passing their own immigration-related measures. He said he is amazed that some of these ordinances see the light of day and that, in his view, “the whole area is preempted by federal law.” In the case of landlords, for example, Mr. Ivener said such local laws impermissibly force them to be “immigration officers enforcing federal harboring laws.” The article is available at http://californialawyermagazine.com/index.cfm?sid=&tkn=&eid=884307&evid=1. For more on Mr. Ivener’s practice, see http://www.usworkvisa.com/.

On a related topic, Stephen Yale-Loehr (bio: https://www.abil.com/lawyers-loehr.htm) testified on March 19, 2007, as an expert witness in the American Civil Liberties Union’s lawsuit challenging the constitutionality of Hazleton, Pennsylvania’s “Illegal Immigration Relief Act.” In an article published by the Scranton, PA Times-Tribune, Mr. Yale-Loehr pointed out that someone in the U.S. without authorization may be entitled to legal status in a number of ways. He noted that “[o]nly an immigration judge in an immigration proceeding can determine your status once and for all.” The article is available at http://www.thetimes-tribune.com/site/news.cfm?newsid=18097976&BRD=2185&PAG=461&dept_id=415898&rfi=. For more information on Mr. Yale-Loehr’s practice, see http://www.millermayer.com/.

Mr. Yale-Loehr chaired a day-long basic immigration law seminar sponsored by the Practising Law Institute in New York City on March 23, 2007. Over 100 new immigration lawyers attended. Among the speakers was ABIL member Cyrus Mehta.

Angelo A. Paparelli (bio: https://www.abil.com/lawyers-paparelli.htm) , president of the Alliance of Business Immigration Lawyers and a critic of the Hazleton law, noted that a federal judge had struck down Proposition 187, the 1994 California ballot measure that sought to deny public services to undocumented people, because it conflicted with federal immigration law. His comment appeared in an Associated Press article, available at http://www.wtop.com/?nid=104&pid=0&sid=1038524&page=2. For more information on Mr. Paparelli’s practice, see http://www.entertheusa.com/.

Mr. Paparelli also was recently quoted in an article about immigrants and taxes. “A very large number of entrepreneurs are not, in my experience, the type who are going to cross the border in the dead of night,” he said. “Most people come here in a lawful status, and then in one way or another – by design or by unwitting behavior or by failure to act – fall out of status. That is not an easy situation for people.” He noted that “[t]hey may have hired U.S. workers, they may have signed a lease on a building. All of that gets thrown into a situation of jeopardy” if the owner falls out of status or undergoes immigration-related scrutiny. The article is available at http://www.smartmoney.com/tax/filing/index.cfm?story=ia.

Mr. Paparelli spoke on “Supercharging Your Immigration Practice” at an Immigration Lawyers on the Web seminar held on March 30, 2007, in New York City. Mr. Paparelli offered his ideas on how to identify new revenue streams, build a loyal network of referral sources, enhance practice efficiency and customer service, and maintain firm morale. He also spoke on a panel on “Resuscitating Out of Status Aliens,” which explored extraordinary remedies for out-of-status nonimmigrants and adjustment of status applicants.

On March 26, 2007, Cyrus D. Mehta (bio: https://www.abil.com/lawyers-mehta.htm) spoke at New York Law School on Hiroshi Motomura’s new book, “Americans in Waiting: The Lost Story of Immigration and Citizenship in the U.S.” The book reveals how immigrants historically have been considered presumptive citizens rather than visitors who had to earn rights over time. By conferring additional rights and benefits on permanent residents until they can become U.S. citizens, but withdrawing those rights and benefits if they choose not to pursue citizenship when the opportunity is available to them, the book suggests that a return to this historical practice could strengthen the U.S. immigration legal system and create a more unified society. More information on the book is available at http://www.us.oup.com/us/catalog/general/subject/Law/ImmigrationLaw/?view=usa&ci=9780195163452. For more information on Mr. Mehta’s practice, see http://www.cyrusmehta.com/.

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Headlines:

1. ABIL Issues H-1B Application Alert – The FY 2008 cap is expected to be met quickly; ABIL advises clients to begin preparing well in advance of the April filing start date.

2. USCIS Proposes Large Fee Increases – Business immigration forms will cost a lot more to file under USCIS’s proposal.

3. ABIL Invites Companies to Sign Letter to Congress Urging Innovation Measures – ABIL invites leaders of American business and higher education to sign on to a letter calling on Congress to act quickly on an innovation agenda that will ensure U.S. competitiveness.

4. Change of Address Function Introduced on Web – USCIS has launched a new Web-based service allowing most noncitizens to submit change-of-address information online.

5. H-1C Nursing Relief Program Reauthorized – USCIS recently released guidance on the reauthorization for an additional three years of the Nursing Relief for Disadvantaged Areas Act of 1999.

6. Colorado Passes Law Requiring Employers to Verify Work Authorization – Employers who fail to maintain the required documentation will be subject to fines.

7. USCIS Clarifies P-1 Expansion – USCIS recently released a memorandum on P-1 admission for minor league professionals, entertainers, and teams under the COMPETE Act of 2006.

8. New Naturalization Test Pilot Emphasizes Civics, History – USCIS has released details about its pilot naturalization exam beginning in February.

9. USCIS Releases TPS Details for Honduras, Nicaragua, El Salvador – USCIS has approved a majority of temporary protected status applications received from Hondurans, Nicaraguans, and Salvadorans.

10. Foreign Entrepreneurs Start 25 Percent of New U.S. Technology Companies, Study Estimates – A new study estimates that one out of every four U.S. technology start-ups over the past 10 years has at least one senior executive who was born outside the U.S.

11. Small Businesses Agree That Undocumented Immigration is a Problem, But Are Divided on Solution; Lawsuits Filed – Ninety percent of small business owners surveyed agreed that undocumented immigration is a problem, but differed on solutions; some are choosing to sue rivals for immigration violations.

12. Wired Editor Wins US-VISIT FOIA Case – A California court has ordered U.S. Customs and Border Protection to release documents revealing that US-VISIT computers malfunctioned because of a common computer “worm.”

13. Google Tools Allow Custom Searches; ABIL Releases Tips on Navigating USCIS Web Site – Google has a variety of search tools and tips.

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

Details:

1. ABIL Issues H-1B Application Alert

The Alliance of Business Immigration Lawyers (ABIL) advises graduating students and their employers to contact their ABIL member now to help them identify potential H-1B candidates and prepare H-1B paperwork. H-1B applications to be filed under the fiscal year 2008 cap will be accepted by U.S. Citizenship and Immigration Services (USCIS) no earlier than April 2, 2007, and the cap is expected to be met quickly.

It is possible that a gap will occur between H-1B workers’ employment authorization granted under Optional Practical Training (OPT) and their H-1B work start date. The 60-day grace period at the end of OPT allowing the student to remain in the U.S. does not include H-1B work that may not start before October 1, the beginning of the 2008 fiscal year. Employers are encouraged to contact their ABIL member for advice in specific situations, and to contact their representatives in Congress to address the problem and the shortage of skilled professionals.

For H-1B filings not subject to the annual cap, it is still possible to obtain H-1B status with an immediate start date for new employees who currently maintain H-1B status with another employer or have been in H-1B status in the past six years and subsequently have been absent from the U.S. for less than one year. In addition, institutions of higher education, nonprofits related or affiliated to such institutions, and nonprofit or governmental research organizations are exempt from the cap and may continue to obtain H-1B status for new employees.

USCIS also will continue to process H-1B petitions filed to: (1) extend the period of time a current H-1B worker may remain in the U.S.; (2) change the terms of employment for current H-1B workers; (3) allow current H-1B workers to change employers; or (4) allow current H-1B workers to work concurrently in a second H-1B position.

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2. USCIS Proposes Large Fee Increases

U.S. Citizenship and Immigration Services (USCIS) has proposed large filing fee increases for many immigration-related forms. In addition to raising fees, the rule proposes to merge the fees for certain applications so applicants will pay a single fee rather than paying several fees for related services. There is a 60-day comment period on the proposed rule, and the increases are not expected to take effect until at least six months after publication.

U.S. Citizenship and Immigration Services (USCIS) has proposed large filing fee increases for many immigration-related forms. In addition to raising fees, the rule proposes to merge the fees for certain applications so applicants will pay a single fee rather than paying several fees for related services. There is a 60-day comment period on the proposed rule, and the increases are not expected to take effect until at least six months after publication.

Some of the business-related forms that will be affected by the proposed increases, and their current and proposed fees, include:

• I-129, Petition for a Nonimmigrant Worker: current, $190; proposed, $320.
• I-140, Immigrant Petition for Alien Worker: current, $195; proposed, $475.
• I-485, Application to Register Permanent Residence or Adjust Status: current, $325; proposed, $905 for applicants 14 years of age or older (except certain refugees).
• I-765, Application for Employment Authorization: current, $180; proposed, $340.
• N-400, Application for Naturalization: current, $330; proposed, $595.

Sens. Patrick Leahy (D-Vt.), Ted Kennedy (D-Mass.), John Conyers (D-Mich.), and Zoe Lofgren (D-Cal.) sent a letter on January 22, 2007, expressing their concern about the proposed fee increases to USCIS Director Emilio Gonzalez. They said they want to review the “extraordinary circumstances that could justify such a massive increase.” Their letter is posted at http://www.aila.org/content/default.aspx?docid=21505.

Comments on the proposed rule (Docket No. USCIS-2006-0044), which was published in the Federal Register on February 1, 2007, should be sent to USCIS by April 2, 2007. Supporting documentation and any comments received will be posted on http://www.regulations.gov. An advance copy of the regulation circulated on January 31, 2007, is posted at http://bibdaily.com/pdfs/FeeRule.pdf. Related announcements and fact sheets are posted at http://www.uscis.gov/files/pressrelease/PRBuilding1.pdf, http://www.uscis.gov/files/pressrelease/FSbuilding.pdf, http://www.uscis.gov/files/pressrelease/QABuilding1.pdf, and http://www.uscis.gov/files/pressrelease/FSmethod.pdf.

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3. ABIL Invites Companies to Sign Letter to Congress Urging Innovation Measures

The Alliance of Business Immigration Lawyers (ABIL) invites leaders of U.S. businesses and higher education institutions to sign on to a letter calling on Congress to act quickly on an innovation agenda that will ensure U.S. competitiveness. The letter recommends that Congress act to double the basic research budgets at the National Science Foundation, the National Institute of Standards and Technology, the Department of Energy’s Office of Science, and the Department of Defense; increase funding of proven programs and incentives for science and math teacher recruitment and professional development; reform U.S. visa policies to welcome highly educated foreign professionals, particularly those holding advanced science, technology, engineering, or mathematics degrees, especially from U.S. universities; and make permanent a strengthened research and development tax credit.

The sign-on letter is available on the American Electronics Association’s Web site at http://www.aeanet.org/GovernmentAffairs/gajl_proclamation0107.asp. A similar letter urging Congress to enact comprehensive immigration reform is available at http://capwiz.com/aila2/issues/alert/?alertid=9221981.

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4. Change of Address Function Introduced on Web

U.S. Citizenship and Immigration Services (USCIS) announced on January 12, 2007, that it has launched a new Web-based service allowing most noncitizens to submit change-of-address information online. USCIS noted that all noncitizens in the U.S. are legally required to keep USCIS informed of any change of address within 10 days of a move by completing an Alien Change of Address Card (Form AR-11). USCIS processes more than one million change-of-address requests each year.

The new change-of-address Web tool is at http://www.uscis.gov/AR-11. Before using the online system, users should have available their USCIS receipt number (if their case is pending before USCIS), their new and old addresses, the names and biographical information of family members for whom the applicant has filed a petition, and the date and location (port of entry) of the applicant’s last entry into the U.S.

In May, USCIS plans to include allowing applicants with pending naturalization applications to report their change of address online. Until then, those individuals should continue to call USCIS at 1-800-375-5283 to report their changes of address.

The notice is posted at http://www.uscis.gov/files/pressrelease/OnlineCoA.pdf.

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5. H-1C Nursing Relief Program Reauthorized

U.S. Citizenship and Immigration Services (USCIS) recently released guidance to the field on the reauthorization for an additional three years of the Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA). Specifically, USCIS noted that all I-129 petitions for H-1C classification will be adjudicated exclusively at the Vermont Service Center, in accordance with previous practice.

The NRDAA established the H-1C program to reduce the shortage of qualified nurses in health professional shortage areas by allowing qualified hospitals to employ temporary foreign workers as registered nurses for up to three years. NRDAA expired on June 13, 2005; the reauthorization, enacted on December 20, 2006, took effect immediately and expires on December 20, 2009. Regulations will follow, USCIS said.

The notice is posted at http://www.uscis.gov/files/pressrelease/H1CReauth122606.pdf.

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6. Colorado Passes Law Requiring Employers to Verify Work Authorization

The Colorado General Assembly recently passed a law requiring Colorado employers, effective January 1, 2007, to verify the employment authorization status of new employees within 20 days. Employers who fail to maintain the required documentation will be subject to fines. An “Affirmation of Legal Work Status” is required to be attached with supporting documents to the federally mandated I-9 work authorization verification form.

The full text of the legislation is posted at http://www.leg.state.co.us/Clics2006B/csl.nsf/fsbillcont3/C25514D38E296.

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7. USCIS Clarifies P-1 Expansion

U.S. Citizenship and Immigration Services (USCIS) recently released a memorandum to the field on P-1 admission for minor league professionals, entertainers, and teams under the COMPETE Act of 2006, which expanded the P-1 nonimmigrant visa classification to include certain athletes who were admitted formerly as H-2B nonimmigrants.

The following types of athletes and performers who seek admission for the purpose of performing in a competition or theatrical ice skating production fall under the P-1 nonimmigrant visa classification:

• An individual who performs as an athlete, individually or as part of a group, at an internationally recognized level of performance.
• A professional athlete employed by: (1) a team that is a member of an association of six or more professional sports teams whose total combined revenues exceed $10 million per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage, or (2) any minor league team that is affiliated with such an association.
• Individual coaches or athletes performing with teams or franchises located in the U.S. that are part of an international league or association of 15 or more amateur sports teams if: (1) the foreign league is operating at the highest level of amateur performance in the relevant foreign country; (2) participation in that foreign league renders the players ineligible, whether on a temporary or permanent basis, to earn a scholarship or participate in the sport at a college or university in the U.S. under the rules of the National Collegiate Athletic Association; and (3) where a significant number of players who play in the foreign leagues are drafted by major league or minor league affiliates of such sports leagues in the U.S.
• Amateur or professional ice skaters who perform, individually or as part of a group, in theatrical ice skating productions or tours.

Amateur or professional ice skaters who perform, individually or as part of a group, in theatrical ice skating productions or tours.

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8. New Naturalization Test Pilot Emphasizes Civics, History

On January 22, 2007, U.S. Citizenship and Immigration Services (USCIS) released details about its pilot naturalization exam. The new exam is intended, USCIS said, to “encourage civic learning and patriotism among prospective citizens.” USCIS noted that studies have shown nationwide inconsistencies in the way the test was administered and there was no assessment of whether applicants had a meaningful understanding of U.S. history and government. The new test will emphasize the fundamental concepts of American democracy and the rights and responsibilities of citizenship.

The reading and writing portions of the pilot naturalization exam are similar to those in the current test, except the new exam contains more civics-based vocabulary. Applicants will still have up to three chances to read and write a sentence correctly in English. In the writing section of the test, the testing officer will dictate a sentence and ask the applicant to write everything the officer reads. During the reading portion of the test, the testing officer will ask the applicant to read each word out loud in that sentence. The proposed format for the new civics exam will still require applicants to answer correctly six out of 10 questions chosen from a master list of 100 civics questions and answers. The difference is that the new questions will focus on civics and history topics rather than on the general range of topics on the current test.

The pilot testing program will begin in 10 cities beginning in February 2007 and will last two to three months. The 10 cities are Albany, NY; Boston, MA; Charleston, SC; Denver, CO; El Paso, TX; Kansas City, MO; Miami, FL; San Antonio, TX; Tucson, AZ; and Yakima, WA. USCIS will administer about 6,000 tests under the pilot, and will use 142 U.S. history and government questions and approximately 36 reading and 36 writing items. Topic areas include principles of American democracy, system of government, rule of law, rights and responsibilities, American history, and geography. Citizenship applicants in the 10 pilot areas who are scheduled for their naturalization tests during the pilot will receive advance copies of the civics questions and the reading and writing vocabulary lists for self-study. Applicants may decline participation in the pilot.

USCIS has posted the two vocabulary lists and other study materials at http://www.uscis.gov/natzpilot. The announcement, which includes a fact sheet, is posted at http://www.uscis.gov/files/pressrelease/natztestfs.pdf.

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9. USCIS Releases TPS Details for Honduras, Nicaragua, El Salvador

On January 26, 2007, U.S. Citizenship and Immigration Services (USCIS) announced that it has received approximately 80,000 temporary protected status (TPS) applications from nationals of Honduras and Nicaragua, and approved nearly 70,000 of those cases. USCIS has received approximately 236,000 TPS applications from nationals of El Salvador and has approved nearly 196,000. Approved individuals should have already received, or will be receiving, an approval notice and notice of appointment to report to an Application Support Center for issuance of an extension sticker to extend their Employment Authorization Documents (EADs) through July 2007, or a new EAD “very shortly.” Those who have been denied have either already received their denial notices or will be receiving them shortly.

USCIS noted that re-registrants who have already had their biometrics appointment but are still awaiting a final decision on their application will either receive an interim card valid through July 2007, for Hondurans and Nicaraguans, or through September 2007, for Salvadorans, or have a hold on their case because of “some as yet unresolved issue.” Cases on hold should have received, or will be receiving, written notification from USCIS regarding any outstanding issues.

USCIS noted that applicants who fail to comply with the biometrics collection requirements risk denial of their TPS re-registration and the withdrawal of TPS.

The notices are posted at http://www.uscis.gov/files/pressrelease/TPSMitch012607FS.pdf (Honduras and Nicaragua) and http://www.uscis.gov/files/pressrelease/TPSElSal_012607FS.pdf (El Salvador.

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10. Foreign Entrepreneurs Start 25 Percent of New U.S. Technology Companies, Study Estimates

A new study by Duke University researchers has estimated that one out of every four U.S. technology start-ups over the past 10 years has at least one senior executive who was born outside the U.S. The study’s lead researcher, Vivek Wadhwa, who was born in India and founded two technology companies, noted, “It’s one thing if your gardener gets deported. But if these entrepreneurs leave, we’re really denting our intellectual property creation.” The most likely niches that immigrant entrepreneurs entered were semiconductors, communications, and software; least likely was defense. Mr. Wadhwa called the new study “the most comprehensive study to date on the contribution of skilled U.S. immigrants.”

he study is posted at http://memp.pratt.duke.edu/downloads/americas_new_immigrant_entrepreneurs.pdf. Mr. Wadhwa has authored a related article that recommends lifting the H-1B cap, among other things. The article, “Keeping Research and Leadership at Home,” is posted at http://www.businessweek.com/smallbiz/content/jan2007/sb20070118_135378.htm.

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11. Small Businesses Agree That Undocumented Immigration is a Problem, But Are Divided on Solution; Lawsuits Filed

In a National Federation of Independent Business (NFIB) survey, 90 percent of small business owners agreed that undocumented immigration is a problem. “Like most Americans, small-business owners are troubled by the problem of illegal immigration,” said Dan Danner, NFIB’s executive vice president of NFIB. “As Congress debates this issue, it is important that they take into account how any legislation will affect small-business owners and the economy. A thoughtful and deliberate process is the best path for lawmakers as they consider this contentious issue.”

The survey respondents have a mixed view on “amnesty” proposals, however. NFIB reported that 63 percent oppose amnesty for undocumented individuals if they only need to prove that they have been living in the U.S. for at least three years, but members are split on amnesty if the individuals are employed and not dependent on government services (45 percent in favor and 45 percent opposing). When asked who should be considered first priority for legal immigration, 43 percent said those who have job skills or qualifications that are in short supply, followed by 23 percent choosing those with family ties, and 20 percent preferring a “first-come, first-serve” system. Fifty-six percent of NFIB members support admitting foreign workers to fill skilled jobs where shortages exist, and 62 percent favor allowing people to enter the U.S., work for a specified period, and return home.

Increasing penalties for employers who knowingly hire undocumented workers was supported by 78 percent of the survey respondents. Small-business owners consider verification of identification documents used by an employee to prove eligibility to work a moderate burden that could be reduced by a single location verification/authorization system that would certify document authenticity, NFIB reported.

The survey announcement is posted at http://www.nfib.com/object/immigrationsurvey.html.

Meanwhile, some entrepreneurs and workers are not waiting for action in Congress. A variety of lawsuits have been filed to compel employers to meet their obligations under the law. For example, when Munger Bros., a California blueberry farm, decided to use a rival labor supplier instead of Global Horizons, Global filed a suit claiming that Munger Bros. hired the rival supplier (J&A Contracting) because it provides cheaper, illegal workers. Specifically, Global alleges that Munger Bros. and J&A “engaged in an illegal trust to restrict trade or commerce and conspired to restrain trade or commerce and lessen competition by Defendants’ use of illegal immigrant labor and violation of California wage and hour laws to those workers, the effect of which restrains and directly affects Plaintiff’s ability to compete in the marketplace.” The full text of the complaint is posted at http://www.fearnotlaw.com/gallery/download.php?id=34.

And in a suit against Zirkle Fruit in Washington, a $1.3 million settlement was recently reached. That suit, based on anti-racketeering laws, was filed by Zirkle’s employees, who claimed that their employer depressed wages by hiring undocumented workers. A similar suit has been filed by workers against Mohawk Industries in Georgia.

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12. Wired Editor Wins US-VISIT FOIA Case

Last year, Wired News editor Kevin Poulsen sued U.S. Customs and Border Protection (CBP) under the Freedom of Information Act, because CBP refused to disclose documents related to a US-VISIT computer failure. A federal court in California recently ordered the agency to release the documents, which revealed that the computers had been infected with a common worm. The court also granted Mr. Poulsen $66,000 in attorney’s fees.
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13. Google Tools Allow Custom Searches; ABIL Releases Tips on Navigating USCIS Web Site

Google Custom Search Engine allows a user to create a customized search engine using Google technology and the user’s own customized index; see http://google.com/coop/cse/overview. At Google Scholar, the user can search using any language or a specified language: http://scholar.google.com/scholar_preferences. Google search tips can be found at http://www.googleguide.com/advanced_operators_reference.html, and a listing of special features and what they can be used for is posted at http://www.google.com/help/features.html.

On November 1, 2006, U.S. Citizenship and Immigration Services (USCIS) announced that it had replaced its existing Web site with a “new and improved” site that promised to offer “easier access” to immigration information. Unfortunately, many users have disagreed. The new site has buried popular pages in nooks and crannies difficult to find for most searchers. If you’re having trouble navigating the revised USCIS Web site, these tips might help:

Google: The Google search engine is sometimes better at finding relevant pages than the USCIS Web site’s own search engine. You can use Google’s advanced search to “only return results from the site or domain” or search the keywords that you want, followed by “site: uscis.gov”.

Customer Guides: If you are looking for a specific page, another option is to start with a general category on the Customer Guides page, and navigate to the page you need from there.

Old USCIS Web site: Yet another method if you are looking for a specific page that you used before the change is to use the old Web site address at http://149.101.23.2. Beware, however, that this site has not been updated since October 30, 2006, so you should only use this site if you know that the information has not changed since then.

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14. Recent News from ABIL Members

Steve Clark of Cambridge, Massachusetts, chaired a workshop at the Boston Bar Association on Visa Options for Artists, Entertainers and Athletes on January 11, 2007.

Angelo A. Paparelli recently co-authored an article for NAFSA: Association of International Educators on preparing for contact by U.S. Immigration and Customs Enforcement (ICE) agents, including how to determine what student information can be released. Among other things, the article recommends having a consistent protocol for dealing with government inquiries, and educating students on maintaining immigration status and complying with campus policies. The article also advises keeping a written record of any phone calls from ICE agents, asking the agent to fax a written inquiry on ICE letterhead, and making sure to follow through on any ICE inquiry in order not to jeopardize the school’s ability to enroll international students. The full text of the article, “How Can I Prepare for a Contact from Immigration and Customs Enforcement,” is posted at http://www.nafsa.org/_/Document/_/how_to_prepare_for_a_2.pdf.

Mr. Paparelli also was quoted recently by the American Management Association in an article on building an immigration-friendly company that appeared in the January 2007 issue of Leader’s Edge. Mr. Paparelli, noting that luring top talent through an effective immigration strategy has become increasingly important, along with other forms of support offered to foreign workers adjusting to their new country. “More and more companies are trying to put themselves in the shoes of the individual,” Mr. Paparelli noted. Instead of a piecemeal, case-by-case approach, Mr. Paparelli recommends what he calls “global migration management,” a holistic strategy that streamlines the immigration process through establishing a set of standards, and “brands” the company as immigration-friendly, thus giving the company an edge in recruiting top foreign talent. “Building an Immigration-Friendly Company,” which includes more tips on attracting quality foreign workers, is posted at http://www.amanet.org/LeadersEdge/editorial.cfm?Ed=268&BNKNAVID=16&display=1.

Mr. Paparelli will present a seminar for immigration attorneys in New York City on March 30, sponsored by Immigration Lawyers on the Web (ilw.com). Topics will include, among other things, the immigration consequences of a merger or acquisition, EB-5 programs for immigrant investors, substantive case studies, and solutions to real-world issues. For more information, see http://www.ilw.com/workshops/march2007challenges.shtm.

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Headlines:

1. State Dept., DHS Announce New Passport Requirement for Air Travelers -As of January 23, 2007, citizens of the U.S., Canada, Mexico, and Bermuda traveling to the U.S. by air from any part of the Western Hemisphere will be required to present a passport or other accepted document.

2. USCIS Expands Premium Processing to EB-1 Category – Expedited service may now be requested for EB-1 extraordinary ability cases.

3. Labor Dept. Inadvertently Withdraws Labor Certification Cases, Corrects Error – The Office of Foreign Labor Certification is identifying the affected cases and reinstating them.

4. SEVP Implements Five-Year Maximum Program Duration for J Professors and Research Scholars – The new SEVIS release contains the changes necessary to raise from three to five years the maximum duration of participation for J professors and research scholars, among other effects.

5. ‘Schedule A’ Immigrant Visa Numbers Used Up – The 50,000 visa numbers provided for Schedule A workers have become “Unavailable.”

6. USCIS Announces Case Processing Target Times – The agency issued recent guidance to the field outlining case processing timeframes.

7. USCIS Realigns Regional, District, Field Offices – As part of the realignment, USCIS will establish a new Southeast Regional office in Orlando, Florida.

8. USCIS Revamps Web Site, Moves Many Pages – Readers may want to update their bookmarks.

9. Many Venture Capital-Backed Start-Ups Founded by Immigrants, Study Finds – A key lesson of the study is the importance of an open legal immigration system.

10. Uptick in Foreign Student Enrollments Reported – The overall decline in foreign student enrollments appears to have slowed.

11. U.S. ‘World’s Worst’ for Entry Hassles, Survey Finds – But foreign travelers like it here once they get past the initial obstacles.

12. USCIS Launches Pilot Test for New Naturalization Exam – The agency wants to deemphasize the rote memorization of facts.

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

Details:

1. State Dept., DHS Announce New Passport Requirement for Air Travelers

The Departments of State and Homeland Security announced that as of January 23, 2007, citizens of the U.S., Canada, Mexico, and Bermuda traveling to the U.S. by air from any part of the Western Hemisphere must present a passport or other accepted document (such as a Merchant Mariner Document or a NEXUS Air card at designated sites). Permanent residents (green card holders) will continue to be able to use their Alien Registration Card (Form I-551) or other valid evidence of permanent resident status to apply for entry to the U.S. Children who are U.S. citizens will need a passport even if their parents are green card holders.

An individual traveling as a member of the U.S. armed forces on active duty is not required to present a valid passport to enter or depart the U.S. Spouses and dependents, however, must present a passport and valid visa, if applicable.

In the second phase of the Western Hemisphere Travel Initiative, targeted for implementation on January 1, 2008, U.S. citizens traveling between the U.S. and Canada, Mexico, Central and South America, the Caribbean, and Bermuda by land or sea may be required to present a valid U.S. passport or other document.

The notice announcing the new travel document requirements is posted at http://www.state.gov/r/pa/prs/ps/2006/76752.htm. A FAQ (frequently asked questions) page is available at http://www.travel.state.gov/travel/cbpmc/cbpmc_2225.html. The full text of the final rule is posted at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-9402.pdf.

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2. USCIS Expands Premium Processing to EB-1 Category

U.S. Citizenship and Immigration Services (USCIS) announced that starting on November 13, 2006, premium processing service may now be requested for EB-1 extraordinary ability cases. Premium processing allows U.S. businesses to pay a $1,000 fee in exchange for 15-calendar-day processing of their case.

Since 2001, premium processing service has been available for several nonimmigrant worker classifications, including E treaty traders and investors, H-1B specialty occupation workers, H-2B temporary workers performing non-agricultural services, H-3 trainees, L intracompany transferees, O aliens of extraordinary ability and those performing essential support services, P performers and athletes and those performing essential support services, Q international cultural exchange visitors, R religious workers, and NAFTA professionals from Canada and Mexico. Form I-129 petitions for those nonimmigrant worker classifications will continue to be eligible for premium processing service unless the filing period has closed (for example, when the annual numerical cap for a specific visa classification has been reached).

Also, earlier this year, USCIS began accepting premium processing service requests for petitions involving five other immigrant visa categories: EB-1 outstanding professors and researchers, EB-2 members of professions with advanced degrees or exceptional ability not seeking a national interest waiver, EB-3 professionals, EB-3 skilled workers, and EB-3 workers other than skilled workers and professionals.

The notice announcing the expansion is posted at http://www.uscis.gov/files/pressrelease/PremiumProcessingRelease_08No06.pdf.

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3. Labor Dept. Inadvertently Withdraws Labor Certification Cases, Corrects Error

The Department of Labor’s Office of Foreign Labor Certification (OFLC) reported on November 15, 2006, that because of a “technical issue,” a number of traditional and reduction-in-recruitment (RIR) labor certification cases were identified inadvertently as pending PERM re-file applications and were thus withdrawn from backlog processing. OFLC stated that it was identifying the affected cases and reinstating them to the “appropriate processing status in proper order.”

In other cases, however, withdrawal was appropriate and those cases will not be reinstated. Such cases include PERM re-filings where the use of the earlier traditional or RIR priority date was requested and, therefore, the earlier case was withdrawn.

Affected employers and their attorneys will not be receiving an additional notice of reinstatement but are invited to verify that their case has been reinstated by using the Public Disclosure System (PDS). Users can access the PDS at http://pds.pbls.doleta.gov/ or by clicking on the “Check Backlog Case Status” link on DOL’s Backlog Centers’ Web page (http://www.foreignlaborcert.doleta.gov/times.cfm). Once the PDS Web page is open, users should enter the 10-digit case number, which begins with a “D” if the case is located in the Dallas BEC or “P” if the case is in the Philadelphia BEC. (Some cases may have had case numbers staring with “T” before data entry was completed at a BEC. All such cases have since been converted and now begin with either “D” or “P,” which should be used for case status checks on the PDS.) After entering the case number, the search results show the current case status. Case status definitions are provided at the bottom of the PDS Web page.

A FAQ about the PDS is available at http://www.workforcesecurity.doleta.gov/foreign/pdf/backlog_faqs_09-11-06_pds.pdf.

Because verification will be available online, OFLC asks employers and attorneys not to contact the BECs regarding the status of such cases. The appropriate BEC will notify the employer or attorney if additional documentation is needed.

OFLC’s notice is posted at http://www.foreignlaborcert.doleta.gov/ (scroll down to “What’s New”).

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4. SEVP Implements Five-Year Maximum Program Duration for J Professors and Research Scholars

The Student and Exchange Visitor Program (SEVP) Office has announced that SEVIS 5.4, implemented on November 17, 2006, contains the changes necessary to raise from three to five years the maximum duration of participation for J professors and research scholars, based on a regulation that was published in May 2005. SEVP noted that only exchange visitors administratively classified in a G-7 program will be able to submit a request for an extension beyond the maximum duration of participation of five years. The countdown of the five-year maximum duration begins with the program’s start date and ends five years later, provided that the sponsor does not end or terminate the exchange visitor’s SEVIS record. There is also a new two-year bar on repeat participation in the J professor and research scholar categories for those who complete program participation.

G-7 participants are those under the direct sponsorship of a federally funded national research and development center or a U.S. federal laboratory. These sponsors will be identified in SEVIS as G-7 to differentiate them from other J-1 sponsors. The Department of State directly contacts those sponsors eligible for G-7 classification; no request is necessary on the part of existing sponsors.

SEVP also noted that there has been ongoing discussion about incorporating the J-1 skills list into SEVIS but no decision has been made.

A related technical conference call report is posted at http://www.ice.gov/doclib/sevis/pdf/tech_con_call_qa_20061025.pdf. The May 2005 regulation is posted at http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-10020.htm. Additional information on changes in SEVIS 5.4 is posted at http://www.ice.gov/doclib/sevis/pdf/sevis_release_5_4_conference_slides.pdf. An implementation notice is posted at http://www.nafsa.org/_/Document/_/anticipated_sevis_release_2.pdf. Details about the changes, including information about how the five-year period is calculated and who is subject to the two-year bar, is posted at http://www.nafsa.org/regulatory_information.sec/get_sevis_information/nafsa_sevis_resources/information_on_sevis.

The Department of State initially announced that the effective date would be November 4, 2006 (see http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-18409.pdf), but implementation of SEVIS 5.4, which was necessary for the rule’s implementation, was delayed until November 17, 2006.

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5. ‘Schedule A’ Immigrant Visa Numbers Used Up

The Department of State’s Visa Office announced in the latest Visa Bulletin that the 50,000 immigrant visa numbers provided for Schedule A workers have become “Unavailable” for December. The Schedule A worker category is shown in the December cut-off date table but will be removed from future listings.

Schedule A, Group I includes physical therapists and nurses. Schedule A, Group II includes aliens of exceptional ability in the sciences and arts (except performing arts).

The Visa Bulletin for December 2006 is posted at http://travel.state.gov/visa/frvi/bulletin/bulletin_3086.html.

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6. USCIS Announces Case Processing Target Times

U.S. Citizenship and Immigration Services (USCIS) issued recent guidance to the field outlining case processing timeframes:

Rescheduling interviews: USCIS said interviews should be rescheduled at the individual’s request only when there are “compelling extenuating circumstances beyond the individual’s control,” and that the rescheduled interview should occur within 11 weeks of the initially scheduled interview.

Requests for Evidence (RFEs): USCIS noted that an RFE is a “single opportunity” for an individual to provide the requested information and an extension of the standard timeframe cannot be provided. On an application where the applicant could receive interim benefits, USCIS’s objective is to pre-screen the employment authorization document (EAD) and/or advance parole application, the underlying application, and any pending underlying petition within 10 days of filing to identify whether there is any missing initial evidence or required additional evidence. USCIS noted that finding such missing initial evidence or required additional evidence early affects the timing for eligibility for interim benefits (such as advance parole or work authorization).

When a case is missing initial evidence, the RFE stops the 90-day processing clock on the associated EAD and/or advance parole application. The clock starts over when USCIS receives a timely response to a request for required initial evidence. An RFE for additional evidence, however, only suspends the processing clock, which resumes, when USCIS receives a timely response, at the point where it had stopped.

When necessary evidence or information is identified at the interview and USCIS decides that a short-term (generally one to two weeks and no more than a month) opportunity to submit the materials is appropriate, it may be done as an extension of the interview. When more time is warranted, USCIS stated, it should be done as an RFE.

USCIS’s memorandum, which includes additional timeframes, is posted at http://www.uscis.gov/files/pressrelease/casemgmt.pdf.

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7. USCIS Realigns Regional, District, Field Offices

U.S. Citizenship and Immigration Services (USCIS) announced on November 3, 2006, that it has realigned the management structure of the agency’s regional, district, and field offices. The realignment is intended to better balance workload and personnel among USCIS field offices but does not affect the locations of, or services offered by, local USCIS district offices.

As part of the realignment, USCIS will establish a new Southeast Regional office in Orlando, Florida, which will manage all district and field offices in the southeast region of the U.S. In Florida, the northern district will be based in Tampa and the southern district will be based in Miami. USCIS is also creating two new management districts in Sacramento, California, and Tampa, Florida.

The press release announcing the realignment is posted at http://www.uscis.gov/files/pressrelease/RealignNR_110306.pdf.

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8. USCIS Revamps Web Site, Moves Many Pages

U.S. Citizenship and Immigration Services (USCIS) has replaced its Web site with a redesigned Web portal at the same Internet address (http://www.uscis.gov). Many USCIS Web pages that users have bookmarked have moved as a result of the redesign. USCIS’s Web portal is one of the most heavily trafficked Web sites in the federal government, serving an average of 135,000 visitors daily.

A fact sheet that lists the most frequently requested USCIS Web pages and their new addresses is posted at http://www.uscis.gov/files/pressrelease/WebFactSheet_110106.pdf. The revised Web site has many flaws, so not all pages on the prior Web site are available yet at the revamped site.

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9. Many Venture Capital-Backed Start-Ups Founded by Immigrants, Study Finds

A new study published by the National Venture Capital Association analyzes the positive impact immigrant entrepreneurs and professionals have on the U.S. economy and job creation by starting and working for leading-edge companies in the U.S. Among other things, the study finds that of its 342 survey respondents, 47 percent of the founders of venture capital-backed private companies were immigrants. Almost two-thirds of these founders have started or intend to start more companies in the U.S. Most public and private venture-backed companies founded by immigrants were headquartered in California, and the top industry sectors for private immigrant-founded venture-backed companies were software, semiconductors, and biotechnology. The most common place of birth for the founders of both public and private venture-backed companies was India.

Interestingly, few of the immigrant entrepreneurs identified by the study came to the U.S. ready to start a company. Most entered either as children, teenagers, or graduate students, or were hired on H-1B visas to begin a first job while in their twenties, the study notes.

A key lesson of the study is the importance of an open legal immigration system. Although nearly all the immigrant founders of private companies would still start their companies in the U.S. if given the choice today, more than two-thirds of immigrant entrepreneurs agreed that U.S. immigration policy has made it more difficult than in the past to start a business in the U.S.

Nearly two-thirds of company respondents who use H-1B visas said that current U.S. immigration laws affecting skilled professionals harm American competitiveness, and one-third of privately held venture-backed companies said the lack of H-1B visas had influenced their firm’s decision to place more personnel abroad.

The study, “American Made: The Impact of Immigrant Entrepreneurs and Professionals on U.S. Competitiveness,” is posted at http://www.nvca.org/pdf/AmericanMade_study.pdf.

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10. Uptick in Foreign Student Enrollments Reported

NAFSA: Association of International Educators announced on November 13, 2006, that although overall foreign student enrollments at U.S. higher education institutions are down by more than 20,000 from the all-time high of the 2002 academic year, 52 percent of institutions surveyed reported an increase in foreign student enrollments this year as compared to last. Among responding institutions with the largest foreign enrollments, 73 percent reported an increase this year. NAFSA CEO and Executive Director Marlene Johnson said, “While the latest numbers are cause for optimism that the troubling declines of the last several years may be headed toward a recovery, the United States has a lot of work to do to restore its competitiveness for international students and scholars.”

NAFSA also estimated that foreign students and their families spent $13.49 billion in the U.S. during the 2005-2006 academic year, including tuition and fees as well as living expenses. For details on foreign student spending, see http://www.nafsa.org/public_policy.sec/international_education_1/the_economic_benefits.

NAFSA’s announcement about the survey results is posted at http://www.nafsa.org/press_releases.sec/press_releases.pg/06enrollsurveyrel. The full survey report and analysis conducted by a variety of higher education associations are available at http://opendoors.iienetwork.org/page/Fall2006Survey/.

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11. U.S. ‘World’s Worst’ for Entry Hassles, Survey Finds

The Discover America Partnership, a travel industry initiative, has released the results of a survey finding that foreign travelers, by a two-to-one margin, named the U.S. as the “world’s worst” for obtaining a visa and entering the country. On the positive side, a majority had an “extremely favorable” experience in the U.S. once they got past the initial hurdles.

Of 2,011 travelers interviewed outside the U.S., 36 percent said they did not want to come to the U.S. because of fears of detention or delay. A full 40 percent said they tried but failed to obtain a visa within the previous two years.

More information and links, including the survey findings and audio of a related conference call, are posted at http://www.poweroftravel.org/release-11-20-06.aspx.

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12. USCIS Launches Pilot Test for New Naturalization Exam

U.S. Citizenship and Immigration Services (USCIS) announced on November 30, 2006, the release of 144 questions and answers for a pilot test intended to help the agency revise the naturalization exam. USCIS will administer the pilot exam in early 2007 to about 5,000 volunteer citizenship applicants in 10 U.S. cities. USCIS Director Emilio Gonzalez explained that the agency wants to deemphasize the rote memorization of facts. The pilot test includes new questions that focus on the concepts of democracy and the rights and responsibilities of citizenship. To draft the new exam questions, USCIS worked with a variety of stakeholders, including history and government scholars, immigrant advocacy groups, citizenship instructors, district adjudications officers, and English as a second language experts.

USCIS plans to work out any problems that are revealed by the pilot test and refine the exam before it is fully implemented nationwide in 2008. When finalized, the exam will have 100 questions but the range of acceptable answers will increase. USCIS also will soon release a new “civics-based vocabulary” to help applicants study for the reading and writing portions of the test.

The announcement is available at http://www.uscis.gov/files/pressrelease/NatzTestQs113006.pdf. A fact sheet is posted at http://www.uscis.gov/files/pressrelease/FactSheetNatzTest113006.pdf. To view the actual pilot exam questions, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=dcf5e1df53b2f010VgnVCM1000000ecd190aRCRD.

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13. Recent News from ABIL Members

Stephen Yale-Loehr (https://www.abil.com/lawyers-loehr.htm) was interviewed recently by the Associated Press about a recently disclosed Department of Homeland Security data-mining and terrorist/criminal risk-assessment scoring system, the Automated Targeting System (ATS). Under ATS, collected data on travelers may be shared with foreign, federal, or state governments for many purposes, including hiring decisions, security clearances, licensing, contracting, or other benefits. “Everybody else can see [the data], but you can’t,” he noted.

The full text of the article is posted at http://news.yahoo.com/s/ap/20061201/ap_on_go_ca_st_pe/traveler_screening. The DHS’s privacy impact statement for ATS is available at http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_cbp_ats.pdf.

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