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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Headlines:

1. ABIL Issues Holiday Travel Warning, Update on VWP Program, Biometric Passport Requirements – ABIL reminds travelers to ensure that their passports, visas, and other documents are current and in order well in advance of the busy holiday travel season; biometric passport requirements for VWP-participating countries are set to take effect on October 26.

2. USCIS Expands Premium Processing Service – EB-1, EB-2, and EB-3 immigrant visa categories have been added to premium processing service.

3. Shifts in Visa Number Availability Kick Off New Fiscal Year – Although visa numbers have not fully recovered, there has been some movement in the employment-based categories.

4. State Dept. Instructs on Effective Business Referral Programs – Posts throughout the world have established business facilitation programs to ensure that they are responsive to the needs of the U.S. business community.

5. 2008 Diversity Visa Lottery Instructions Released – Entries for the DV-2008 lottery must be submitted electronically between October 4 and December 3, 2006.

6. USCIS Eliminates Locally Produced Employment Authorization Cards – USCIS is phasing out the I-688B.

7. USCIS Expands Pilot Program on Permanent Resident Applications – USCIS has expanded a pilot program that changes the procedures for filing a green card application based on a family relationship, the diversity visa lottery, or qualification for most special immigrant categories.

8. Dep’t of Labor Updates Procedures on Backlogged Cases, Launches Web Site for Checking Status of Applications – The DOL has issued a FAQ on backlogged cases that have received “no contact” from the agency, and has launched a Web site for checking case status.

9. USCIS Announces Elimination of Naturalization Backlog – USCIS announced the elimination of the backlog for the N-400 Naturalization Application and the reduction of backlogs overall.

10. New Report Issued on Immigration and America’s Future – The Migration Policy Institute recommended policy changes to harness the benefits of immigration to advance U.S. interests in the 21st century.

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

Details:

1. ABIL Issues Holiday Travel Warning, Update on VWP Program, Biometric Passport Requirements

The Alliance of Business Immigration Lawyers (ABIL) reminds travelers to ensure that their passports, visas, and other documents are current and in order well in advance of the busy holiday travel season. Travelers should also remember that because of heightened security measures, delays are possible and full compliance with security procedures is necessary.

For most applicants, a personal appearance interview is required as a standard part of visa processing. Additionally, applicants affected by security procedures are informed of the need for additional screening at the time they submit their applications and are being advised to expect delays. The time needed for adjudication of individual cases will continue to be difficult to predict. For travelers, the need for an interview will mean additional coordination with the embassy or consulate to schedule an interview appointment. Individuals should build in ample time before their planned travel date when seeking to obtain a visa. To estimate how long you will have to wait to get an interview appointment to apply for a visa (not including any additional time required for special clearances and administrative processing), see the Department of State’s “Visa Wait Times for Interview Appointment,” http://travel.state.gov/visa/temp/wait/tempvisitors_wait.php (choose the consular location from the drop-down menu and click on “Get Wait Times”).

Some applicants must obtain advance parole (advance permission to travel) to leave the U.S. while their applications are pending. Advance parole processing time is now averaging about 3.5 months (up from about two months last year), so sufficient lead time to apply for parole, if needed, should be factored into travel preparations. For more information on advance parole requirements and procedures, see http://www.uscis.gov/graphics/services/Emergency/index.htm.

On September 7, 2006, at a hearing before the Senate Subcommittee on Terrorism, Technology, and Homeland Security, Jess T. Ford, Director of International Affairs and Trade for the U.S. Government Accountability Office (GAO), recommended that the Department of Homeland Security (DHS) strengthen its efforts to mitigate risks inherent in the Visa Waiver Program (VWP) available to citizens of specified countries. (See http://foia.state.gov/masterdocs/09fam/0941002X2.pdf for a list of countries eligible for admission for up to 90 days upon presentation of a round-trip ticket and passport of such a country.) The DHS has acknowledged that an undetermined number of inadmissible individuals may have entered the U.S. using stolen or lost passports from VWP countries, he noted. Because of such concerns, Congress periodically considers restricting the VWP. Mr. Ford’s testimony (GAO-06-1090T) is available at http://www.gao.gov/new.items/d061090t.pdf. The GAO’s related report (GAO-06-854) is available at http://www.gao.gov/new.items/d06854.pdf.

Biometric passport requirements for VWP-participating countries are set to take effect on October 26, 2006. Those countries will be required to begin issuing passports with integrated circuit chips containing biometric information. Each VWP country is at a different stage in its development of secure passports, but VWP travelers who obtained machine-readable passports (MRPs) before October 26, 2005, are not required to have a digital photograph or contact-less chip. This means that if you obtained or renewed/extended an MRP before October 26, 2005, you will not be required to get another passport for travel until your MRP expires. Passports issued or renewed/extended between October 26, 2005, and October 25, 2006, must be machine-readable and include a digital photograph printed on the data page; passports issued or renewed/extended on or after October 26, 2006, must be machine-readable and include the integrated chip.

A handy guide for VWP travelers is available at http://cbp.gov/linkhandler/cgov/travel/id_visa/vwp/vwp_timeline.ctt/vwp_timeline.pdf. For general information on biometrics and electronic tagging, see “The Frontiers of Privacy Law: Technology Marches On” (http://www.pli.edu/emktg/toolbox/Privacy_Tech33.doc – scroll down for article), published by the Practising Law Institute.

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2. USCIS Expands Premium Processing Service

U.S. Citizenship and Immigration Services (USCIS) has announced the addition of three categories to the premium processing service, which allows U.S. businesses to pay a $1,000 fee in exchange for 15-day processing of the case. On September 25, 2006, USCIS began accepting premium processing requests for the Immigrant Petition for Alien Worker (Form I-140) for the EB-1B (outstanding professors and researchers); EB-2 (members of professions with advanced degrees or exceptional ability not seeking a national interest waiver); and EB-3 (workers other than skilled workers and professionals, including unskilled labor requiring less than two years of training or experience) immigrant visa categories. In addition, on August 28, 2006, USCIS added EB-3 professionals and skilled workers to categories eligible for premium processing. After these two announcements, all I-140 employment-based immigrant visa petitions will qualify for premium processing other than EB-1A extraordinary ability, EB-1C multinational manager, EB-2 national interest waiver, and EW unskilled waiver petitions.

Since 2001, premium processing service has been available for several nonimmigrant classifications within the Petition for Nonimmigrant Worker (Form I-129), including E treaty traders and investors, H-1B specialty occupation workers, H-2B temporary workers performing nonagricultural 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.

For more information on premium processing for the three added EB immigrant visa categories, see http://www.uscis.gov/graphics/publicaffairs/newsrels/PremProc092206PR.pdf.

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3. Shifts in Visa Number Availability Kick Off New Fiscal Year

The Department of State has issued the Visa Bulletin for October 2006, which is the start of fiscal year 2007. Although visa numbers have not fully recovered, there has been some forward movement in the employment-based categories. For example, the EB-2 category for India was unavailable beginning in August; the new cut-off date for October is June 15, 2002 (although this actually represents a retrogression from the January 1, 2003, cut-off date in existence before the category became unavailable).

It has also been reported that numbers in the Schedule A category (nurses, physical therapists, and certain persons with exceptional abilities in the arts or sciences that are exempt from labor certification) may be exhausted soon, possibly as early as November. Once that occurs, it will still be possible to file immigrant visa applications for such persons, but they will be subject to the priority dates of the underlying visa category (e.g., EB-2 or EB-3) for their occupation.

Family-based visa numbers also recovered from the steep retrogression imposed last quarter, but not to the cutoff dates previously in existence.

The October Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3032.html.

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4. State Dept. Instructs on Effective Business Referral Programs

In a recent cable to all diplomatic and consular posts, the Department of State noted that facilitating access to timely visa appointments for business travelers is one of the Bureau of Consular Affairs’ highest priorities. Businesses are looking for a predictable way to factor the visa process into their travel planning. Posts throughout the world have established business facilitation programs to ensure that the Department is responsive to the needs of the U.S. business community while continuing to maintain visa security standards. Many such programs are conducted in coordination with American Chambers of Commerce (AMCHAMs) overseas.

The Department noted that the U.S. Chamber of Commerce recently polled regional AMCHAMs on consular sections’ business facilitation programs. Survey respondents commended consular sections that allow for group appointments or set aside a specific day or block of time to handle business visa applications. Respondents also cited clearly written procedures and established channels of communication as the most important factors in establishing a successful business facilitation program. Some AMCHAM members complained that programs seem to shift with the arrival of each new section chief, and that changes are not always communicated clearly and promptly.

The Department also noted that having a designated point of contact in the consular section is essential. Model programs include AMCHAM Buenos Aires, where each company designates its own specific officer to communicate with the Chamber’s Visa Office. The AMCHAM ensures that the visa application is arranged in a standard format, provides a job letter showing the applicant’s position, salary, and length of service, and provides remote data entry. The AMCHAM holds regular meetings with member-company coordinators and provides training to new and current members. It stresses the need to study each applicant thoroughly before scheduling appointments, noting that its productive relationship with the consular post stems from maintaining daily contact with the consular section and the call center.

For more information on these efforts and model programs, see the Department’s cable at http://travel.state.gov/visa/laws/telegrams/telegrams_3033.html.

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5. 2008 Diversity Visa Lottery Instructions Released

The Department of State’s Bureau of Consular Affairs has released instructions for the 2008 Diversity Immigrant Visa Program. Entries for the DV-2008 lottery must be submitted electronically between noon EDT (GMT-4) October 4, 2006, and noon EST (GMT-5) Sunday, December 3, 2006. Paper entries will not be accepted. Applicants may access the electronic DV entry form and instructions at http://travel.state.gov/visa/immigrants/types/types_1318.html during the registration period. Because heavy demand may result in Web site delays, applicants are strongly encouraged not to wait until the last week to enter. Also, receipt of more than one entry per person will disqualify the person from registration. There is no fee.

For DV-2008, natives of the following countries are not eligible to apply because these countries sent more than 50,000 immigrants to the U.S. over the previous five years: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, Russia, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.

To enter the lottery, a person must have either a high school education or its equivalent, or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform. The Department of Labor’s O*Net OnLine database will be used to determine qualifying work experience. Certain people from ineligible countries may qualify on the basis of their spouse’s or parent’s country of birth. For additional details on entry procedures and requirements, see http://travel.state.gov/pdf/DV_2008_Final.pdf.

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6. USCIS Eliminates Locally Produced Employment Authorization Cards

U.S. Citizenship and Immigration Services (USCIS) currently issues two types of employment authorization documents: Form I-766, Employment Authorization Document (EAD), and Form I-688B, Employment Authorization Card. The I-766 is produced in Kentucky and accounts for approximately 88 percent of the EADs produced on behalf of USCIS; the remainder are produced at various field offices. Because of various issues with the locally produced cards, such as outdated card technology, obsolete equipment, and lack of maintenance, USCIS is phasing out the I-688B. This affects both locally produced interim EADs and non-interim EADs.

As part of this initiative, USCIS will no longer accept I-765 filings for non-interim EADs at local offices. Applications that were received at any local office through September 30, 2006, have been forwarded to the appropriate Service Center or the Chicago Lockbox for processing. Such applications received on or after October 1, 2006, will be returned and the individual will be advised to file directly with the appropriate Service Center or Lockbox indicated on the I-765 instructions. The agency recommends that applicants seeking to replace an expiring EAD file the I-765 at least 100 days before the current card expires.

For additional information on filing procedures and adjudication issues, see http://www.uscis.gov/graphics/lawsregs/handbook/ElimI688B_081806R.pdf. For information specific to asylees’ EADs, see http://www.uscis.gov/graphics/publicaffairs/statements/AsyleeEAD091406PN.pdf.

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7. USCIS Expands Pilot Program on Permanent Resident Applications

U.S. Citizenship and Immigration Services has expanded a pilot program that changes the procedures for filing a permanent residence (“green card”) application (Form I-485) based on a family relationship, the diversity visa lottery, or qualification for most special immigrant categories. Under the expanded pilot program, affected applicants residing within the jurisdiction of the Dallas District Office (effective October 23, 2006; terminating on September 21, 2007), El Paso District Office, or Oklahoma City Sub-Office (the latter two offices are effective November 20, 2006; terminating on September 21, 2007) will be required to file the I-485 and any necessary documentation and fees in person at the appropriate local office, rather than by mail, after self-scheduling an appointment using the Internet-based InfoPass (http://infopass.uscis.gov/). The pilot program is intended to test this alternative to current filing and processing procedures with the goal of achieving a 90-day processing time for affected I-485s.

For more information on the pilot program, see http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-7791.pdf.

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8. Dep’t of Labor Updates Procedures on Backlogged Cases, Launches Web Site for Checking Status of Applications

The Office of Foreign Labor Certification (OFLC) of the Department of Labor (DOL) has developed a process for an employer or attorney who believes an application should be pending at a Backlog Elimination Center (BEC) but for which no contact (e.g., no 45-Day Center Receipt Notification Letter (CRNL), case closed letter, or other correspondence about the case) has been received from the BEC. To provide these employers with the opportunity to have their applications processed while also guarding against potential fraud, OFLC has established specific steps for employers or their attorneys to follow, which are outlined in a FAQ at http://www.ows.doleta.gov/foreign/pdf/backlog_faqs_09-11-06_nobec.pdf.

Inquiries must be sent to the appropriate e-mail provided in the FAQ by October 11, 2006. This process is only for employers or their designated attorneys; beneficiaries of labor certification applications are not authorized to use the process. The process is not intended for status checks or other case inquiries, but is to be used only in those cases for which the employer or attorney has received no contact whatsoever from the BEC.

The DOL also has launched a Web site for pending applications filed at a Backlog Elimination Center (BEC). The Office of Foreign Labor Certification (OFLC) has received many requests from employers, attorneys, and applicants regarding the status of applications being processed as part of the backlog elimination effort. To provide basic case status information on specific cases, OFLC introduced the Backlog Public Disclosure System. The status of a case (but not estimated processing times) may be checked at http://www.pbls.doleta.gov/pbls_pds.cfm by entering the ETA case number. The system currently checks only cases beginning with a D (Dallas) or P (Philadelphia).

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9. USCIS Announces Elimination of Naturalization Backlog

U.S. Citizenship and Immigration Services (USCIS) announced the elimination of the backlog for the N-400 Naturalization Application. USCIS completed approximately 342,290 backlogged cases and average processing times have fallen from a previous high of 14 months in February 2004 to approximately five months as of September 2006.

The overall backlog of all applications has decreased from 3.8 million in 2004 to just over 1.1 million as of July 2006, USCIS noted. Of the gross backlog of 1.1 million applications, 140,000 cases are considered “backlogged and under USCIS control” as of July. Cases considered as within USCIS’s control are defined as those that are ready to be adjudicated. Cases outside USCIS’s control that are not counted as included in the net backlog include cases that are pending law enforcement security checks, naturalization test retakes, naturalization candidates awaiting scheduling of a judicial ceremony, and cases in which an applicant has failed to respond to a request for additional evidence.

For more on the elimination of the naturalization backlog, see http://www.uscis.gov/graphics/publicaffairs/newsrels/N400Bklg091506NR.pdf.

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10. New Report Issued on Immigration and America’s Future

The Migration Policy Institute’s Independent Task Force on Immigration and America’s Future has released its final report, “Immigration and America’s Future: A New Chapter.” Recognizing that U.S. immigration policies are increasingly disconnected from the economic and social forces that drive immigration, the Independent Task Force asked what kind of immigration policy and system would harness the benefits of immigration to advance U.S. interests in the 21st century. Over the past year, the Task Force, a bipartisan panel of leaders and experts, evaluated the economic, social, and demographic factors driving today’s large-scale immigration to the U.S., both legal and illegal. The final report presents several far-ranging recommendations. For more information on the report, see https://secure2.convio.net/mpi/site/Ecommerce/251378812?store_id=1241&product_id=2161&VIEW_PRODUCT=true&JServSessionIdr006=6vton3y7f1.app13b.
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11. Recent News from ABIL Members

Angelo A. Paparelli (http://www.entertheusa.com/) was recently quoted in the American Bar Association’s eReport Journal. In U.S. v. Romm, the 9th Circuit declined to rule on whether searching the contents of a laptop is routine because the issue was not raised in an appeal. The Supreme Court has said, however, that “border searches of belongings are always routine, so long as the belongings aren’t hurt,” Mr. Paparelli noted. He said he is aware of at least one instance in which a customs agent asked for an e-mail password so the officer could examine the individual’s e-mail correspondence. “Imagine if that were the password of a company employee, and it led the agent into a corporate network database,” he noted. The article, Border Insecurity – 9th Circuit: Laptops May Be Subject to Customs Inspections After Overseas Trips, is available at http://www.abanet.org/journal/ereport/s15border.html.

Steven A. Clark, Alliance of Business Immigration Lawyers (ABIL) member and past president of the American Immigration Lawyers Association, will speak on a panel in New York on October 10, 2006, with William Carlson, Chief, National Headquarters, Division of Foreign Labor Certifications, U.S. Department of Labor at the Practising Law Institute’s Annual Immigration and Naturalization Institute. Further information is available at http://www.pli.edu/product/program_detail.asp?ptid=511&stid=3&id=EN00000000026844.

Cyrus D. Mehta (http://www.cyrusmehta.com/)has authored Finding the ‘Golden Mean’ in Dual Representation – Updated,” which appears in the August 2006 issue of Immigration Briefings. The “golden mean,” Mr. Mehta writes, serves as a starting point for a discussion on how an attorney can represent two clients with potentially differing interests.

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Headlines:

1. H-1B Exemption Cap Reached for FY 2007 – USCIS announced that it has met the exemption limit of 20,000 for fiscal year 2007 for H-1B petitions requesting foreign workers who have earned a master’s or higher degree from a U.S. institution of higher education.

2. USCIS Urges H-2B Employers To Continue To Identify, Certify “Returning Workers” Despite Expiration of Provisions – USCIS urges prospective H-2B employers to continue to identify and certify those workers who qualify as “returning workers” under current law when filing petitions for employment start dates in FYs 2006 and 2007.

3. USCIS Announces Transfer of Nonimmigrant Worker Cases – The Vermont Service Center transferred nearly 5,000 nonimmigrant worker petitions to the Texas Service Center.

4. DHS Proposes Expanding US-VISIT to Additional Non-U.S. Citizens; GAO Criticizes US-VISIT Contracts -The DHS issued a proposed rule that would expand processing in the US-VISIT program to an additional number of non-U.S. citizens.

5. USCIS Discontinues Locally Produced I-688B Employment Authorization Cards – USCIS is discontinuing local production of EACs in favor of the EAD produced at one central location.

6. DHS Seeks To Create ‘Industry Standard’ on Building Legal Workforces With New IMAGE Program – The ICE Mutual Agreement between Government and Employers (IMAGE) is intended to build cooperative government-business relationships to strengthen hiring practices and reduce unlawful employment of foreign workers.

7. Participation in Basic Pilot Verification Program Is Accelerating, USCIS Says – More than 10,000 U.S. employers are participating in the Basic Pilot employment verification program.

8. DHS Official Testifies at House Hearing on Regional Immigration Issues – The goal of visa policy coordination efforts with Canada and Mexico is that a traveler at a Canadian or Mexican port of entry will experience substantially the same screening as a traveler bound for the U.S.

9. TPS Extended for Somalia – The re-registration period began on July 27, 2006, and ends on September 25, 2006.

10. GAO Analyzes Benefits and Limitations of Using Earnings Data to Identify Unauthorized Work – The GAO outlined the key characteristics of possible data sources the DHS could use to identify unauthorized work.

11. State Dept. Announces Retrogression of India Employment-Based Category, Other News – For August, the Department of State’s Visa Office said it has been necessary to retrogress cut-off dates in several employment-based visa categories for India.

12. USCIS Issues Final Rule on Affidavits of Support – Among other things, the final rule retains a “significant ownership interest” threshold, for purposes of an affidavit of support, of five percent or more in a for-profit entity.

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

Details:

1. H-1B Exemption Cap Reached for FY 2007

U.S. Citizenship and Immigration Services (USCIS) announced on July 28, 2006, that it has met the exemption limit of 20,000 for fiscal year (FY) 2007 for H-1B petitions requesting foreign workers who have earned a master’s or higher degree from a U.S. institution of higher education. Petitions received on July 26, 2006 are being subjected to a random selection process, described below, and USCIS will reject petitions requesting such a worker that are received after that date unless the petition is otherwise eligible for a separate cap exemption.

USCIS has implemented the following procedure for FY 2007 H-1B filings:

• If USCIS determines that the numerical limits have been exceeded, the agency will identify those H-1B petitions seeking a FY 2007 number that were received on that date.
• USCIS will then conduct a computer-generated random selection of the petitions received on that date to allocate any remaining FY 2007 H-1B numbers.
• After random selection, any remaining H-1B petitions that do not receive a FY 2007 number and are not otherwise exempt will be rejected and returned.
• Returned petitions will be accompanied by the filing fee.
• Petitioners may resubmit their petitions when H-1B visa numbers become available for FY 2008.
• The earliest date a petitioner may file a petition requesting FY 2008 H-1B employment with an employment start date of October 1, 2007, would be April 1, 2007.

Petitions for current H-1B workers do not count toward the H-1B cap. Accordingly, USCIS will continue to process petitions filed to extend the amount of time a current H-1B worker may remain in the U.S., change the terms of employment for current H-1B workers, allow current H-1B workers to change employers, or allow current H-1B workers to work concurrently in a second H-1B position.

USCIS also noted that petitions for new H-1B employment are exempt from the annual cap if the worker will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or governmental research organization.

The USCIS announcement is available at http://www.uscis.gov/graphics/publicaffairs/newsrels/H1BMasters072806PR.pdf.

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2. USCIS Urges H-2B Employers To Continue To Identify, Certify “Returning Workers” Despite Expiration of Provisions

U.S. Citizenship and Immigration Services (USCIS) has reminded employers using the H-2B nonimmigrant visa program that the “returning worker” provisions of the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) are set to expire on October 1, 2006, the first day of fiscal year (FY) 2007. USCIS urges prospective H-2B employers to continue to identify and certify those workers who qualify as returning workers under current law when filing petitions for employment start dates in FYs 2006 and 2007. USCIS said this will enable the agency to maintain an accurate cap count of H-2B nonimmigrant workers for FY 2007 regardless of whether the returning worker provisions expire or are reauthorized.

To ensure accurate H-2B cap counting, USCIS is preparing for several scenarios: (1) the provisions are not extended, or (2) the provisions are extended by future legislation, either before or after the scheduled sunset of the provision at the close of FY 2006. Bills extending the provisions have been passed by the Senate, but whether or when they will be extended by Congress in enacted legislation “is a matter entirely within the discretion of Congress,” USCIS noted.

Petition forms and processing will follow current rules, with additional requirements for returning workers, USCIS said. Details on the additional requirements are available at http://www.uscis.gov/graphics/publicaffairs/statements/H2BSOSExmp072806PN.pdf. A sample returning worker attestation may be found at http://www.uscis.gov/graphics/formsfee/forms/files/H2B_Attestation.pdf.

USCIS noted that petitions filed by prospective H-2B employers for returning workers with requested employment start dates of September 30, 2006 or earlier will continue to be approved by USCIS if all other eligibility requirements are met, and those returning workers identified and certified within such petitions will be deemed exempt from the FY 2006 cap despite the fact that their work for the H-2B employer will almost certainly extend into FY 2007, even if the SOS Act is not extended.

As a result of the expiration of the returning worker provisions of the SOS Act, however, USCIS noted that all petitions requesting H-2B workers for new employment with a start date of October 1, 2006 or later (FY 2007 employment) must be counted toward the annual H-2B cap of 66,000 for FY 2007, whether or not the workers would be recognized as H-2B returning workers under the provisions currently applicable to FY 2006 start dates. In the event that the “returning worker” provisions of the SOS Act are reauthorized by FY 2007, and if employers continue to identify and certify “returning workers” in their H-2B filings, USCIS will be able to identify appropriate individuals as cap-exempt and adjust the running cap count for H-2Bs accordingly, thus making more numbers available to other workers. USCIS said that if Congress has not extended the SOS Act by the time USCIS reaches the 33,000 cap for the first half of FY 2007 for H-2B workers (including those provisionally designated as “returning workers”), USCIS will give notice that the cap has been reached and will reject further cap-subject H-2B filings.

Petitions for current H-2B workers do not count toward the congressionally mandated H-2B cap. Accordingly, 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 a current H-2B worker, or allow a current H-2B worker to change or add employers.

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3. USCIS Announces Transfer of Nonimmigrant Worker Cases

U.S. Citizenship and Immigration Services (USCIS) announced on July 26, 2006 that the Vermont Service Center (VSC) recently transferred nearly 5,000 nonimmigrant worker petitions (Forms I-129) to the Texas Service Center (TSC). VSC also transferred approximately 22,000 alien relative immigrant visa petitions (Forms I-130) to the California Service Center (CSC). USCIS said “[c]ustomers should not be alarmed if they receive notices” from TSC or CSC about a case initially mailed to VSC. “When customers receive such a notice, they should route any questions about their case to the service center from which they received their last notice.” USCIS said it reserves the right to transfer additional cases in the future should that become necessary to ensure timely case processing in the event of workload surges.
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4. DHS Proposes Expanding US-VISIT to Additional Non-U.S. Citizens; GAO Criticizes US-VISIT Contracts

The Department of Homeland Security (DHS) issued a proposed rule on July 27, 2006 that would expand processing under the US-VISIT program to an additional number of non-U.S. citizens, including:

• lawful permanent residents of the U.S.;
• individuals entering the U.S. who seek admission on immigrant visas;
• individuals entering the U.S. who seek admission as refugees and asylees;
• certain Canadian citizens entering the U.S. for specific business or employment reasons (Form I-94 holders) (excluding most Canadian citizens entering the U.S. as B-1/B-2 visitors to shop, visit friends and family, vacation, or take a short business trip);
• individuals paroled into the U.S.; and
• individuals applying for admission to Guam under the Guam Visa Waiver Program.

Those subject to US-VISIT may be required upon entry or departure to provide fingerscans, photographs, or other biometric identifiers. Comments on the proposed rule may be submitted by August 28, 2006. For details, see the announcement (http://www.dhs.gov/dhspublic/display?theme=43&content=5762&print=true) and proposed rule (http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-11993.pdf).

Meanwhile, the U.S. Government Accountability Office (GAO) recently issued a report finding that US-VISIT contracts have not been managed or overseen effectively. The GAO made recommendations to the DHS to ensure that effective contract management and financial controls are established and implemented both for contracts managed by the US-VISIT program office and for those managed by other agencies. The full text of the GAO report, “Homeland Security: Contract Management and Oversight for Visitor and Immigrant Status Program Need to be Strengthened” (GAO-06-404), is available at http://www.gao.gov/new.items/d06404.pdf.

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5. USCIS Discontinues Locally Produced I-688B Employment Authorization Cards

U.S. Citizenship and Immigration Services (USCIS) announced on July 28, 2006 that it is discontinuing local production of Employment Authorization Cards (EACs/Forms I-688B) in favor of the Employment Authorization Document (Form I-765) produced at one central location. USCIS said the locally produced I-688B lacks security features and is not well-suited to verification.

USCIS explained that as of April 1, 2005, applications for employment authorization were centralized at the USCIS service centers and the National Benefits Center (via the Chicago Lockbox). Some local USCIS offices continued to accept employment authorization applications, however, and produced EACs using local systems. USCIS said that such offices, in their discretion, may continue to accept “certain employment authorization applications until October 1, 2006.” After September 1, 2006, however, such local offices will no longer directly process those cases but will forward them for service center processing. Those seeking the fastest service should send their applications directly to the appropriate service center or Chicago Lockbox, as set forth in the I-765 instructions. As of October 1, 2006, USCIS local offices will no longer accept any I-765 filings.

The discontinuation of locally produced EACs will not prohibit people from using InfoPass to schedule an appointment for an interim employment document when USCIS has not adjudicated the original I-765 within 90 days, USCIS said. The agency recommends that applicants seeking to replace an expiring EAD file the I-765 at least 100 days before the current card expires.

The USCIS announcement is at http://www.uscis.gov/graphics/publicaffairs/statements/EADFilingCh072806PN.pdf.

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6. DHS Seeks To Create ‘Industry Standard’ on Building Legal Workforces With New IMAGE Program

The Department of Homeland Security announced on July 26, 2006 an initiative and best business practices to help employers ensure that they are building legal workforces through voluntary partnerships with the U.S. government. The “ICE Mutual Agreement between Government and Employers (IMAGE)” is intended to build cooperative government-business relationships to strengthen hiring practices and reduce unlawful employment of foreign workers. The initiative also seeks to effect greater industry compliance and corporate due diligence through enhanced federal training and education of employers, DHS said.

The DHS said IMAGE has been designed to provide answers to the flood of questions the agency has received from employers seeking information on how to avoid hiring unauthorized workers. “[P]rosecutions are only part of the solution,” said DHS Secretary Michael Chertoff. “If the government is going to fully address the problem of illegal alien employment, it must partner with employers, educate them and provide them with the tools they need to develop a stable, legal workforce.”

Companies that join the program and comply with the terms of IMAGE will become “IMAGE certified,” a distinction that U.S. Immigration and Customs Enforcement (ICE), a DHS agency, believes will become an industry standard. Under the program, ICE will partner with companies representing a broad cross-section of industries. The companies will serve as “charter members” of IMAGE and will be liaisons to the larger business community, DHS said. As part of the program, businesses must adhere to a series of best practices, including the use of the Basic Pilot employment verification program administered by U.S. Citizenship and Immigration Services. ICE will provide training and education to IMAGE partners on proper hiring procedures, fraudulent document detection, and antidiscrimination laws. ICE will share data with employers on the latest schemes used to circumvent legal hiring processes. The agency also will review the hiring and employment practices of IMAGE partners and will work collaboratively with them to correct “isolated, minor compliance issues.”

As a first step, companies must agree to an audit of their Employment Eligibility Verification (I-9) forms, and must use the Basic Pilot program when hiring employees. For more information on this and other USCIS verification programs, see https://www.vis-dhs.com/EmployerRegistration/StartPage.aspx?JS=YES&AccessMethod=.

To become IMAGE-certified, partners also must adhere to best practices, including the creation of internal training programs for completing I-9s and detecting fraudulent documents. IMAGE partners must arrange for audits by “neutral parties” and must establish protocols for responding to Social Security no-match letters. ICE also is asking employers to establish a tip line for employees to report violations and mechanisms to self-report violations to ICE. A full list of best practices is available at http://www.ice.gov/partners/employers/worksite/besthire.htm.

More information on IMAGE is available at http://www.ice.gov/partners/opaimage/index.htm. Frequently asked questions can be found at http://www.ice.gov/partners/opaimage/image_faq.htm. Information packets can be requested at http://www.ice.gov/exec/opaimage/image_program_request.asp. The press release announcing the IMAGE initiative is available at http://www.dhs.gov/dhspublic/display?theme=43&content=5757&print=true.

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7. Participation in Basic Pilot Verification Program Is Accelerating, USCIS Says

U.S. Citizenship and Immigration Services (USCIS) announced recently that more than 10,000 U.S. employers are participating in the Basic Pilot employment verification program, which allows employers to run online work authorization checks against Social Security Administration and Department of Homeland Security databases. Participation in the free program has more than doubled during the first three quarters of this fiscal year, USCIS said. Participating businesses are verifying the work authorization of over one million new hires each year at 36,000 hiring sites across the U.S.

The program was launched in selected states beginning in late 1997, and was expanded in late 2004 to allow employers in all 50 states and the District of Columbia to participate. Employers may register online for the program at https://www.vis-dhs.com/EmployerRegistration.

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8. DHS Official Testifies at House Hearing on Regional Immigration Issues

Cresencio Arcos, the Assistant Secretary for International Affairs of the Department of Homeland Security (DHS), testified at a hearing held on July 26, 2006 in the House of Representatives’ Subcommittee on the Western Hemisphere on regional immigration issues. Mr. Arcos said, among other things, that the DHS and the Department of State are working on visa policy coordination with Canada and Mexico “as an effort to implement policies and procedures that will lead to comparable decisions about travelers destined to North America.” The goal, he said, is that a traveler at a Canadian or Mexican port of entry will experience substantially the same screening as a traveler bound for the U.S.

Mr. Arcos also noted that the two departments are working with Canada and Mexico to further coordinate the list of countries whose nationals are permitted to travel “visa free” to or within North America. He pointed out that since the terrorist attacks in the U.S. on September 11, 2001, a notable visa policy change included Canada’s decision to impose a visa requirement on nationals of Saudi Arabia, Malaysia, and Costa Rica, while Mexico decided to require citizens of South Africa, Brazil, and Ecuador to present a visa to enter Mexico lawfully. The reimposition last year by Mexico of a visa requirement for Brazilians decreased dramatically the inflow of undocumented Brazilians across the southwest border, Mr. Arcos said.

Mr. Arcos urged Congress to pass comprehensive immigration reform legislation that includes a combination of border enforcement efforts in cooperation with international partners; increased enforcement within the U.S., including an expanded employment compliance and enforcement program to address unauthorized employment; and a temporary worker program that will provide “a legal avenue for employers to fill their labor needs when U.S. workers are available.”

The full text of Mr. Arcos’s testimony is available at http://wwwc.house.gov/international_relations/109/arc072606.pdf.

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9. TPS Extended for Somalia

The Department of Homeland Security announced on July 27, 2006, an 18-month extension of Temporary Protected Status (TPS) for nationals of Somalia until March 17, 2008. Under the extension, Somalis who already have TPS are eligible to live and work in the U.S. for an additional 18 months while maintaining their status. DHS also automatically extended the validity of their employment authorization documents for an additional six months until March 17, 2007. Approximately 250 nationals of Somalia (or aliens having no nationality who last habitually resided in Somalia) may be eligible for re-registration.

Nationals of Somalia with TPS must re-register during the 60-day re-registration period, which began on July 27, 2006, and ends on September 25, 2006. For details, see the USCIS press release announcing the extension, http://www.uscis.gov/graphics/publicaffairs/newsrels/Somalia_TPS_060727.pdf; a related fact sheet, http://www.uscis.gov/graphics/publicaffairs/questsans/Somalia_TPS_060727.pdf; and the Federal Register notice, http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-6401.pdf.

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10. GAO Analyzes Benefits and Limitations of Using Earnings Data to Identify Unauthorized Work

As the House of Representatives and Senate consider immigration reform legislation, some proposals would give the Department of Homeland Security (DHS) access to earnings data to identify unauthorized workers. To better understand how such data could be used, the House Ways and Means Subcommittees on Social Security and Oversight asked the Government Accountability Office (GAO) to review how the DHS uses earnings data that it already receives from the Social Security Administration (SSA) and recommend changes or improvements.

The GAO noted that access to earnings data maintained by the SSA and the Internal Revenue Service (IRS) could help the DHS target its limited worksite enforcement resources to help identify potential unauthorized work. The GAO outlined key characteristics of the following possible data sources, which the GAO noted contain sensitive personal information:

• SSA’s Nonwork Alien File: This file contains earnings and demographic data for over 500,000 individuals who earned income using Social Security numbers (SSNs) issued for nonwork purposes. The DHS estimated that about one-third are work-authorized.
• SSA’s Earnings Suspense File: This file contains earnings reports with names and SSNs that do not match the SSA’s records. Employers submitting large numbers of unmatched reports may indicate the employment of unauthorized workers. The file also includes much information about U.S. citizens, however, including records that are the result of errors, in addition to persons using false SSNs or SSNs belonging to others, or persons for whom the employer has no SSN. About 8 million to 11 million records are added annually, but the number of unauthorized workers is unknown.
• The Department of Health and Human Services’ National Directory of New Hires: This file contains updated reports on new hires and quarterly wages on almost all workers, including U.S. citizens, for child support enforcement purposes. Over 500 million quarterly wage records and over 60 million new hire reports are entered yearly. The file contains only records with names and SSNs that match the SSA’s records; names and SSNs that do not match are maintained separately.
• IRS’s Individual Taxpayer Identification Numbers (ITINs) with wage income: The IRS could identify taxpayers who filed tax returns using an ITIN and had wage income. To be issued an ITIN, an individual must be ineligible for an SSN. About 530,000 ITIN holders submitted tax returns with wage income in 2001. IRS officials believe that almost all returns filed with ITINs claiming wages are from unauthorized workers.
• DHS’s Electronic Employment Eligibility Verification Transaction Data: DHS maintains transaction records of employment eligibility verification queries electronically submitted by participating employers. Under the voluntary Basic Pilot program, employers made over 900,000 queries in fiscal year 2005. If made mandatory, these data potentially could be used for worksite enforcement.

The full text of the GAO report, “Immigration Enforcement: Benefits and Limitations to Using Earnings Data to Identify Unauthorized Work” (GAO-06-814R), is available at http://www.gao.gov/new.items/d06814r.pdf.

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11. State Dept. Announces Retrogression of India Employment-Based Category, Other News

For August, the Department of State’s Visa Office said it has been necessary to retrogress cut-off dates in several employment-based visa categories for India in an effort to hold issuance levels within the applicable annual numerical limits for the affected categories. Employment-based retrogressions include India’s employment-based second preference category, which has become “Unavailable,” and India’s employment-based third preference category, which has retrogressed to April 1, 2001.

Also, the Department noted that immigrant visa number use is approaching the annual limits for the year in many categories, and the supply of numbers remaining for allocation is limited. Therefore, it is increasingly possible that additional retrogressions of cut-off dates in September, similar to those experienced in August, will occur. Readers should not assume visa availability until the cut-off dates are announced. Categories that could experience retrogressions include the Worldwide employment-based fourth preference category; the China employment-based second and third preference categories; the India employment-based first preference category; and the Mexico employment-based third preference category.

A total of 50,000 numbers were provided for use in the Schedule A (EX) visa category established last May. Visa demand in this category is approaching that limit and may require the establishment of a cut-off date as early as October, the Department reported. Once all 50,000 numbers have been made available under the current limitation, processing under this category will end.

Also, the Department has determined the employment-based numerical limits for fiscal year 2006. The numerical limit for the Worldwide employment-based preference category is 143,949.

The full text of the August 2006 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_2978.html.

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12. USCIS Issues Final Rule on Affidavits of Support

U.S. Citizenship and Immigration Services (USCIS) issued a final rule, effective July 21, 2006, that applies to any immigrant visa or adjustment of status application decided on or after that date even if the case was filed beforehand. Among other things, the final rule eliminates the affidavit of support requirement in cases where the sponsored immigrant establishes, on the basis of Social Security Administration records, that he or she has already worked, or can be credited with working, 40 quarters of covered employment.

The final rule also clarifies that the sponsor’s income in the year in which the intending immigrant filed the application, rather than the earnings last reported to the Internal Revenue Service, generally bears the greatest evidentiary weight in determining whether the affidavit of support is sufficient, although USCIS may request updated evidence.

The law and regulations require the submission of an affidavit of support in the case of an employment-based immigrant if a relative of the immigrant either filed the visa petition or has a “significant ownership interest” in the entity that did so. The interim affidavit of support regulation defined “significant ownership interest” as an ownership interest of five percent or more in a for-profit entity. The final rule retains the five percent threshold adopted in the interim rule.

Also, several commenters asked USCIS whether the affidavit of support requirement applies to employment-based immigrants if the relative with the significant ownership interest is not a U.S. citizen or resident alien. USCIS explained that, for employment-based immigrants, the purpose of the affidavit of support is to ensure that a relative who could file a family-based visa petition will not use employment as a means to avoid the affidavit of support requirement that would apply if the relative were to file a relative visa petition. Relatives who are not U.S. citizens or resident aliens are ineligible to file relative visa petitions. For this reason,the regulations define “relative,” for purposes of the affidavit of support requirement, to include only those family members who can file relative visa petitions. The final rule clarifies that a relative must be either a “U.S. citizen or a resident alien” for the affidavit of support requirement to apply to an employment-based immigrant.

The final rule, published in 71 Fed. Reg. 35732–35757 (June 21, 2006), is available at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-5522.pdf. A related Department of State cable is available at http://travel.state.gov/visa/laws/telegrams/telegrams_2863.html.

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13. Recent News from ABIL Members

ABIL co-founding member Stephen Yale-Loehr, who also chairs the business immigration committee for the American Immigration Lawyers Association, was quoted on July 14, 2006, by GovExec.com on the Senate immigration reform bill. He said that new requirements for employers will help to constrain cheating. The Senate bill requires more stringent job applicant identification, makes employers liable if they show “reckless disregard” when workers present fake documents, and requires employers to store employment documents for five years, he told GovExec.com. He cautioned that the desire for rapid identification must be balanced with privacy concerns. “We need some hard data” on the effectiveness of employment verification technology before making its use mandatory, he said. The full text of the article is at http://www.govexec.com/dailyfed/0706/071406nj1.htm.
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