News from the Alliance of Business Immigration Lawyers Vol. 2, No. 6 • June 01, 2006

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Headlines:

1. H-1B Cap Reached – USCIS announced that the H-1B cap for fiscal year 2007 has been reached.

2. USCIS to Expand Premium Processing Service to Most Employment-Based Green Card Petitions – USCIS will soon open the agency’s premium processing service to nearly all employment-based green card applications.

3. Senate Passes Immigration Legislation, Compromise With House Remains Uncertain – The Senate has passed sweeping immigration reform legislation that includes both a guestworker program and enforcement components.

4. Many Hondurans, Nicaraguans in Danger of Losing Work Authorization; Salvadorans Face TPS Renewal Period at End of Summer – Hondurans and Nicaraguans who are re-registering for TPS after the June 1 re-registration deadline may submit their applications with a letter explaining a “good cause for failure to timely file.”

5. USCIS Reminds Adjustment Applicants to Obtain Advance Parole Before Summer Travel – Persons failing to do so may have their immigration benefit applications denied.

6. Hearings Focus on Physicians for Underserved Areas, Impact of Visa Delays – The House of Representatives recently held hearings on foreign doctors who work in underserved areas and the impact of visa processing delays on the arts, education, and American innovation.

7. DHS Cracks Down on Nonimmigrant Visa Overstays, Worksite Violations – The DHS is increasing visits to nonimmigrants with expired status and stepping up enforcement actions against employers.

8. Third Preference “Other Worker” Visa Category Becomes Unavailable – The employment-based third preference “Other Worker” green card category will remain unavailable for the remainder of the fiscal year.

9. Labor Dept. to Close America’s Job Bank – The Department of Labor has informed states that America’s Job Bank will close by June 30, 2007.

10. DOS Amends Regulations to Require Mexican Passport for BCC/Laser Visa Application – The presentation of a Mexican federal passport is now a necessary condition for Mexican citizens applying for combined Border Crossing Cards (BCCs) and B-1/B-2 visas (laser visas).

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

Details:

1. H-1B Cap Reached

U.S. Citizenship and Immigration Services (USCIS) has announced that as of May 26, 2006, all of the “regular” H-1B visa numbers for start dates effective October 1, 2006, have been used up. The H-1B cap for FY 2007 was 58,200; the agency also added back 6,100 unused FY 2006 H-1B1 visa numbers, for a total of 64,300.

Any additional petitions subject to the fiscal year 2007 H-1B annual cap received after May 26, 2006, will be rejected and returned along with the filing fee. Petitions that were received on May 26, 2006, are being subjected to a computer-generated random selection process to enable USCIS to apply the remaining number of H-1B visas available on that date to those petitions. Petitioners may resubmit their petitions when H-1B visas become available for FY 2008. The earliest date for filing an H-1B petition subject to the FY 2008 cap, with an employment start date of October 1, 2007, is April 1, 2007.

The first 20,000 H-1B petitions filed on behalf of those with U.S.-earned master’s or higher degrees are exempt from the fiscal year cap on available H-1B visas. The advanced degree cap could be met in September 2006, however. USCIS reports that it has received apprxoimately 5,830 exempt petitions in that category so far. For that reason, any such person who is eligible to file for H-1B status should do so immediately.

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 who previously 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.

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 petitions filed to: (1) extend the amount 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.

The USCIS’s press release is at http://www.uscis.gov/graphics/publicaffairs/newsrels/FY07H1Bcap_060106PR.pdf. Additional information regarding the specific number of H-1B petitions processed is at: http://www.uscis.gov/graphics/services/tempbenefits/cap.htm.

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2. USCIS to Expand Premium Processing Service to Most Employment-Based Green Card Petitions

U.S. Citizenship and Immigration Services (USCIS) published a notice in the Federal Register on May 23, 2006, that will soon open the agency’s premium processing service to nearly all Form I-140 employment-based immigrant worker petitions (also known as green card applications). The agency also will extend premium processing to certain Form I-539 applications to change or extend nonimmigrant status, as well as to Form I-765 applications to renew employment authorization for foreign nationals with pending employment-based applications for adjustment of status.

USCIS’s premium processing program allows petitioners and applicants to request expected adjudication of certain cases. Upon payment of a $1,000 fee, designated applications and petitions are slated for adjudication within 15 calendar days of filing. If the agency does not act on the case within the stated period — by issuing an approval, a denial or a request for evidence in the case — the $1,000 fee is refunded.

USCIS will extend premium processing service to Form I-765 applications to renew employment authorization for foreign nationals who have pending Form I-485 applications to adjust status that are supported by immigrant visa petitions in the EB-1 through EB-5 classifications.

In addition, USCIS will permit concurrent filing of Forms I-539 and I-765 for certain nonimmigrant classifications. Premium processing, if requested, will apply only to Form I-539. USCIS will not guarantee 15-day processing for an I-765 filed concurrently with a premium-processed I-539.

The USCIS premium processing notice is at: http://frwebgate5.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=398853149330+2+0+0&WAISaction=retrieve. A separate USCIS notice clarified that USCIS Service Centers will not accept filings for any of these form types under the premium processing service until a formal announcement is made on the USCIS Web site announcing the specific start dates for acceptance of the new form types. Until that date is established and announced, USCIS Service Centers will reject any premium process filings for I-140s, I-539s or I-765s. That USCIS clarification is at http://www.uscis.gov/graphics/publicaffairs/statements/PremProcess052406PN.pdf.

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3. Senate Passes Immigration Legislation, Compromise With House Remains Uncertain

On May 25, 2006, after months of back-and-forth wrangling, the U.S. Senate passed S. 2611, a sweeping immigration reform package that includes both a guestworker program and border control and enforcement components. The House of Representatives passed its own version of immigration reform legislation last December (H.R. 4437). The House bill focuses on border enforcement and lacks a guestworker program. The two bills must be reconciled before a final bill can be enacted. In hopes of bringing the immigration reform legislation to a conclusion, Senate majority leader Bill Frist (R-Tenn.) is calling for swift negotiations with the House of Representatives.

Finding a compromise may be difficult because the two bills are so different. Rep. James Sensenbrenner, Jr. (R-Wis.), however, who will lead the House negotiators, signaled a general willingness to compromise: “I don’t think anything is a deal-breaker. We can’t have legal proceedings to deport 11 to 12 million people; that is evident.”

The Senate bill contains numerous business-related provisions. For example, the Senate bill would:

  • Raise the cap on H-1B nonimmigrant visas for highly educated temporary workers to 115,000 — with a flexible market-based annual adjustment.
  • Raise the employment-based green card cap and exempt key categories of workers from the cap.
  • Provide exemptions for both H-1B and employment-based green card caps for certain workers who have earned an advanced degree in science, technology, engineering or mathematics.
  • Allot two-thirds of the 50,000 green cards granted annually by the diversity visa lottery to those with advanced degrees.
  • Establish a new electronic employment verification system that would replace the current paper-based I-9 system.

Meanwhile, the Bush administration said the “five clear objectives of comprehensive immigration reform” include “securing our borders, creating a temporary worker program, making it easier for employers to verify employment eligibility and continuing to hold them to account for the legal status of workers they hire, dealing with the millions of illegal immigrants who are already here, and honoring the great American tradition of the melting pot.”

A White House fact sheet on comprehensive immigration reform is at: http://www.whitehouse.gov/news/releases/2006/05/20060515-7.html.

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4. Many Hondurans, Nicaraguans in Danger of Losing Work Authorization; Salvadorans Face TPS Renewal Period at End of Summer

As of May 25, 2006, fewer than half of Hondurans in the U.S. under the temporary protected status (TPS) program have re-registered to meet the June 1 re-registration deadline, sources say. Many of the 75,000 eligible Hondurans reportedly are awaiting immigration legislation they believe is imminent, and they do not want to spend several hundred dollars to renew their TPS if they may have a chance to apply for permanent resident status under new legislation. Lawyers and advocates warn that many could lose their work authorization as a result, placing them in illegal status after their TPS expires on July 5, 2007, and thereby rendering them potentially ineligible for citizenship in the future. “It is a serious problem. We believe they are wasting their opportunity to continue having an employment authorization document,” said Antonio Amaya, executive director of La Comunidad, Inc., an immigrant services organization in Massachusetts.

There also are about 4,000 Nicaraguans in the U.S. under TPS, with the same deadline as the Hondurans. Only 1.700 had renewed their TPS as of May 25. The later re-registration period for approximately 225,000 Salvadorans in the U.S. under TPS is expected at the end of this summer. Advocates report that Salvadorans seem more aware of the risk of allowing their TPS status to lapse. Salvadoran TPS expires on September 9, 2007.

U.S. Citizenship and Immigration Services (USCIS) instructs Hondurans and Nicaraguans who are re-registering for TPS after the June 1 re-registration deadline to submit their applications with a letter explaining a “good cause for failure to timely file” (by USPS or other carrier) to:

Vermont Service Center
Attn: TPS Good Cause Exception
75 Lower Welden Street
St. Albans, VT 05479-0001

Additional information and details on the TPS requirements and deadlines for the three groups, including information on late initial registration and links to the relevant Federal Register notices, are available at: http://www.usdoj.gov/crt/osc/htm/work_extension.html and http://www.uscis.gov/graphics/services/tps_hond.htm.

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5. USCIS Reminds Adjustment Applicants to Obtain Advance Parole Before Summer Travel

U.S. Citizenship and Immigration Services issued a statement on May 24, 2006, reminding those who have: (1) been granted temporary protected status; (2) applied for adjustment of status; (3) applied for relief under the Nicaraguan Adjustment and Central American Relief Act; or (4) filed asylum applications that they must apply for and obtain advance parole (permission to re-enter the U.S.) at a USCIS Service Center before traveling abroad. Persons failing to do so may have their immigration benefit applications denied.

The announcement is available at: http://www.uscis.gov/graphics/publicaffairs/newsrels/TravAdvisory052406PR.pdf. Additional information on how to apply for various travel documents is at: http://www.uscis.gov/graphics/howdoi/travdoc.htm. The I-131 Application for Travel Document is at: http://www.uscis.gov/graphics/formsfee/forms/files/I-131.pdf.

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6. Hearings Focus on Physicians for Underserved Areas, Impact of Visa Delays

The House Judiciary committee held a hearing on May 18, 2006, on H.R. 4997, the Physicians for Underserved Areas Act. The bill would reauthorize the J-1 visa waiver program, which provides opportunities for graduates of foreign medical schools who have trained in U.S. medical residency programs on J-1 cultural exchange visas to stay in the U.S. if they serve for three years in a designated health professional shortage area. Such areas are located in both rural and urban areas.

Leslie G. Aronovitz, Director of Health Care for the U.S. Government Accountability Office, (GAO) testified that the use of J-1 waivers remains a major means of placing physicians in underserved areas of the U.S., with more than 1,000 waivers requested in each of the past three years for physicians to practice in nearly every state. About 44 percent of states’ waiver requests in fiscal year 2005 were for physicians to practice exclusively in primary care, while about 41 percent were for physicians to practice in nonprimary care specialties such as anesthesiology or cardiology. An additional seven percent were for physicians to practice psychiatry. More than three-fourths of the states’ waiver requests were for physicians to work in hospitals or private practices. The GAO also noted that over 6,100 foreign physicians with J-1 visas took part in U.S. graduate medical education programs during academic year 2004-05, which was about 40 percent lower than was the case a decade earlier. The reasons for the decline are not completely understood.

The GAO noted that some states filled the per-state 30-waiver limit, but others reported needing more. Some states that had a sufficient allotment expressed their willingness under certain circumstances to share their allotment, but such redistribution would require legislation.

The GAO’s testimony is at: http://www.gao.gov/new.items/d06773t.pdf. The hearing testimony on physicians in underserved areas is at: http://judiciary.house.gov/hearings.aspx?ID=142.

Also, the House Government Reform committee held a hearing recently on the impact of visa processing delays on the arts, education, and American innovation. Committee chairman Tom Davis (R-Va.) noted that U.S. businesses need to be able to bring foreign partners and customers in on short notice; U.S. universities need to continue attracting top foreign students, many of whom will choose to stay in the U.S. and bolster the economy as a result; and “the U.S. cultural scene will continue to remain vibrant only as long as foreign artists are able to bring their work to American stages and galleries.” He also noted that trade shows and arts presenters in particular “represent a significant segment of the U.S. economy, comprised largely of small businesses that don’t always have the resources to cope with the significant additional expense of an inefficient visa process.”

The hearing testimony on visa delays, which includes a statement by famed cellist Yo-Yo Ma, among others, is available at: http://reform.house.gov/GovReform/Hearings/EventSingle.aspx?EventID=41471.

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7. DHS Cracks Down on Nonimmigrant Visa Overstays, Worksite Violations

According to reports from the field, U.S. Immigration and Customs Enforcement (ICE) has been visiting those whose nonimmigrant visa status has expired, even if such a person has obtained another status. In some cases, ICE agents are unable to verify the new status. Meanwhile, the Department of Homeland Security (DHS) announced last month that it is stepping up enforcement efforts against employers who knowingly hire undocumented workers. In addition, the DHS plans to work with Congress to build employer compliance systems. “Employers who want to stay within the law need a clear set of rules to follow. ICE and DHS will seek to develop an administrative regulatory program to provide clearer guidance to employers,” the DHS said.

For more on the DHS’s new efforts, see http://www.dhs.gov/dhspublic/display?content=5546.

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8. Third Preference “Other Worker” Visa Category Becomes Unavailable

The Department of State announced that continued heavy demand for visa numbers in the employment-based third preference category for unskilled workers will result in the 5,000 annual numerical limit for that category being reached during the month of May. Therefore, the employment-based third preference “Other Worker” category has become “unavailable” for June and will remain so for the remainder of the fiscal year.

The Visa Bulletin for June is available at: http://travel.state.gov/visa/frvi/bulletin/bulletin_2924.html.

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9. Labor Dept. to Close America’s Job Bank

Citing costs that outweigh benefits, the Department of Labor recently informed states that America’s Job Bank (AJB) will be phased out gradually and will close by June 30, 2007. AJB, which aggregates job listings online of 2,000 state employment offices nationwide, lists more than 682,000 resumes and 2.1 million job openings. “The Department recognizes there will be a periodic need for a national job board due to unique circumstances, such as the recent dislocations related to the hurricanes in the Gulf Coast,” the notice said. “It is the Department’s assessment that it will be more cost effective to contract for this type of service with the private sector on an ‘as needed basis.’ ”

AJB is often used by lower-skilled workers seeking jobs through state agencies and by employers seeking such workers to meet labor certification recruitment requirements or to demonstrate good-faith compliance with federal hiring guidelines.

AJB is at: http://www.ajb.dni.us/.

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10. DOS Amends Regulations to Require Mexican Passport for BCC/Laser Visa Application

On May 30, 2006, the Department of State (DOS) issued a final rule, effective the same day, to require the presentation of a Mexican federal passport as a necessary condition for Mexican citizens applying for combined Border Crossing Cards (BCCs) and B-1/B-2 visas (laser visas). The final rule also removes the conditions under which certain beneficiaries of waivers of ineligibility may receive laser visas.

The DOS noted that most Mexican visitors to the U.S., whether traveling to the border region or beyond, receive a laser visa. The DOS and U.S. Citizenship and Immigration Services jointly administer the laser visa program; the DOS issues the combined BCC/B-1/2 under its exclusive authority over visa issuance. The DOS cited national security concerns, among other reasons, for the change in documentation requirements.

The full text of the final rule is available at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-8288.pdf.

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11. Recent News from ABIL Members

Mark A. Ivener, Managing Partner of Ivener & Fullmer LLP, has been named one of the top 100 wealth advisors and managers in the Americas by Citywealth magazine’s poll of 2,000 wealth advisors around the world. Mr. Ivener, the only immigration attorney on the list, has practiced immigration law exclusively for more than 30 years and has authored five books on the subject. Ivener & Fullmer is headquartered in Los Angeles, with offices in New York, Tokyo, and Vancouver. Mr. Ivener told Citywealth that immigration issues “can tremendously impact foreign nationals of high net worth, and an important green card option is often overlooked. For example, through [a U.S. Citizenship and Immigration Services] Regional Center, an individual can apply under the EB-5 investor category by making an investment in a real estate limited partnership, and greatly accelerate the process of obtaining a green card.” For more information on Ivener & Fullmer, see http://www.usworkvisa.com.

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News from the Alliance of Business Immigration Lawyers Vol. 2, No. 5 • May 01, 2006

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Headlines:

1. Immigration Reform Action Stalls in Congress; ‘SKIL’ Bill Introduced – The Senate has failed to pass any immigration reform proposals, including legislation to establish a guestworker program. Sen. John Cornyn, however, has just introduced the “SKIL” (Securing Knowledge Innovation and Leadership) bill.

2. ICE Steps Up Enforcement, Arresting Managers and Over a Thousand Employees of Pallet Company – ICE agents arrested several managers of IFCO Systems North America, Inc. (IFCO), the largest pallet services company in the United States, and many unauthorized workers.

3. State Dept. Proposes to Eliminate Specialty Occupation Distinction for J Trainees – The State Dept. has issued a proposed rule to revise its training program regulations under the Exchange Visitor Program to eliminate the distinction between “non-specialty occupations” and “specialty occupations.”

4. DHS Wants to Mine SSA Data – In an effort to identify undocumented workers and their employers, the DHS is seeking authority from Congress to mine Social Security Administration databases for information.

5. German Emergency/Temporary Passports No Longer Valid for Travel to U.S. Under VWP – As of May 1, 2006, German emergency and temporary passports will no longer be valid for travel to the U.S. under the Visa Waiver Program.

6. Temporary Protected Status Extended for Honduras, Nicaragua – The TPS designation for Honduras and Nicaragua has been extended until July 5, 2007.

7. State Dept. Reports on China, India Visa Availability, “Other Worker” Category Retrogression for May – The State Department has retrogressed the employment third preference “Other Worker” cut-off date.

8. USCIS Establishes Records Verification Directorate – USCIS has established a new National Security and Records Verification Directorate.

9. GAO Recommends Measures to Reduce Visa Wait Times at Consular Posts – The GAO is calling for a comprehensive assessment of staffing requirements for visa operations worldwide.

10. Fewer H-1B Numbers Used Than Expected for FY 2007 So Far – H-1B numbers are being used up more slowly so far than many expected for FY 2007, although early filing is still recommended.

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

Details:

1. Immigration Reform Action Stalls in Congress; ‘SKIL’ Bill Introduced

As of press time, the Senate failed to pass any of the sweeping immigration reform proposals we reported on last month, including legislation to establish a guestworker program, although action remains possible this session. Any legalization program that is enacted will put demands on U.S. Citizenship and Immigration Services, generating backlogs. If such a provision becomes law, it will be important to file for permanent residence before such backlogs develop.

It is unclear whether further progress will be possible this session on comprehensive immigration reform, although Senate Majority Leader Bill Frist (R-Tenn.) said he wants the Senate to pass such legislation by Memorial Day. Such legislation then would have to be reconciled with the House of Representatives version in conference committee, and passed by both houses. “It would be a tough conference, candidly, with the House, but we were able to work through the Patriot Act although there were big disagreements,” Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, reportedly said on CNN’s “Late Edition.”

On April 24, President George W. Bush gave a speech in California on immigration reform. Once again, he supported a guestworker program, among other measures. Voice of America quoted President Bush as noting that: “[i]t is really hard to enforce the border with people sneaking across to take jobs. Doesn’t it make sense to have a rational temporary worker plan that says you don’t need to sneak across the border?” He said in his radio address on April 22 that “[i]n the coming weeks, I’ll press Congress to pass comprehensive immigration reform that secures our border, enforces our laws, meets the needs of our economy, and upholds our highest ideals.” The Associated Pressreported on April 26 that at a recent White House meeting convened to help push immigration reform action in Congress, President Bush said he believes undocumented workers should have a chance to obtain legal status without leaving the country but does not endorse such a measure publicly because of opposition from House Republicans. “I understand that he wants to maintain latitude as he heads into negotiations with the House,” said Sen. John McCain (R-Ariz.), who supports that proposal.

Meanwhile, Sen. John Cornyn (R-Tex.) has just introduced the “SKIL” (Securing Knowledge Innovation and Leadership) bill shortly. Among other things, the SKIL bill would increase the annual H-1B cap from 65,000 to 115,000, and exempt certain professionals from the H-1B and immigrant visa caps. The bill also would raise the latter cap from 140,000 to 290,000. A pre-certification program would be created for employers filing multiple applications with no history of abuse. Pre-certification would allow such employers to file their applications on a separate, more streamlined, track.

The Alliance of Business Immigration Lawyers signed a letter supporting the SKIL bill that is being circulated by the Compete America Coalition. “Being able to recruit and retain foreign-born talent — including those who are educated in U.S. universities — is critical to our nation’s ability to remain competitive, and we encourage you to support this legislation and enact reforms this year,” the letter says. For more information, or to add your organization’s name to the letter, e-mail [email protected] (Sandra Boyd, Vice President, Human Resources Policy, National Association of Manufacturers), and include information on how the organization should be listed and clear permission to add it to the letter. For more information, see http://www.competeamerica.org/.

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2. ICE Steps Up Enforcement, Arresting Managers and Over a Thousand Employees of Pallet Company

U.S. Immigration and Customs Enforcement (ICE) agents arrested seven current and former managers of IFCO Systems North America, Inc. (IFCO), the largest pallet services company in the United States headquartered in Houston, Texas, pursuant to criminal complaints issued on April 19, 2006. The managers were charged with conspiring to transport, harbor, and encourage and induce unauthorized workers to reside in the United States for commercial advantage and private financial gain. The conspiracy charge carries a penalty of up to 10 years in prison and a fine of up to $250,000 for each worker with respect to whom the violation takes place, ICE explained. Two other IFCO employees were arrested on criminal charges relating to fraudulent documents.

In addition to the criminal arrests, ICE agents conducted “consent” searches or executed criminal search warrants at more than 40 IFCO plants and related locations in 26 states that resulted in the apprehension of approximately 1,187 undocumented IFCO employees.

According to a government affidavit filed in the Northern District of New York, the investigation began in February 2005 when ICE agents received information that IFCO workers in Guilderland, New York, were witnessed ripping up their W-2 tax forms and that an IFCO assistant general manager had explained that these workers were undocumented, had fake Social Security cards and did not intend to file tax returns.

Subsequent investigation revealed that IFCO officials transported undocumented employees to and from work, paid rent for their housing, and deducted money from their monthly paychecks to cover these expenses. Former IFCO employees also said it was common practice for IFCO to hire workers who lacked Social Security cards or produced bogus identification cards.

The affidavit also alleges that IFCO officials knowingly hired an undocumented worker who was an informant for ICE. In numerous recorded conversations, IFCO officials reimbursed this person for obtaining fraudulent identity documents for other undocumented employees, used the person to recruit other unauthorized workers, and advised the person and other undocumented employees on how to avoid law enforcement detection, the affidavit alleges.

Meanwhile, DHS Assistant Secretary Julie Myers’ op-ed, “Expect More Arrests,” was published in USA Today on April 26, 2006. Ms. Myers said DHS is bolstering its criminal investigations against employers who hire unauthorized workers. For many employers, she said fines had become just another cost of doing business. “More robust criminal cases against unprincipled employers are a much more effective deterrent than fines. The prospect of 10 years in federal prison or a federal forfeiture carries much sharper teeth. We believe this is the future of worksite enforcement,” Ms. Myers said.

Additional information on the case is available at http://www.dhs.gov/dhspublic/display?content=5547.

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3. State Dept. Proposes to Eliminate Specialty Occupation Distinction for J Trainees

The Department of State is proposing to revise its training program regulations under the J nonimmigrant exchange visitor program to eliminate the distinction between “non-specialty occupations” and “specialty occupations.” Also, a new 12-month “intern” program is proposed to permit recent foreign graduates of degree-granting post-secondary accredited educational institutions to come to the United States to pursue work-based learning experiences in the fields in which they received their degrees.

A requirement that sponsors complete an individualized Form DS-7002 Training/Internship Placement Plan for each trainee and intern prior to issuing a Form DS-2019 to the trainee or intern is also proposed. The Department plans to publish a notice regarding the design of the proposed Form DS-7002, soliciting public comment regarding all recordkeeping, reporting, and data collection units.

The proposed regulation would require that trainees have at least three years of previous related work experience in their occupational fields before being eligible to participate in the Exchange Visitor Program. The regulation also would require that trainees have a minimum TOEFL (Test of English as a Foreign Language) score of 550 or its equivalent.

The Department will accept comments on the proposed regulation from the public until June 6, 2006. Comments should be sent to the office designated in the supplementary information to the proposed rule, which is available at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-4946.pdf.

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4. DHS Wants to Mine SSA Data

The Department of Homeland Security (DHS), in an effort to identify undocumented workers and their employers, is seeking authority from Congress to mine Social Security Administration databases for information on Social Security numbers that do not match names, GovExec.com reported on April 20, 2006. “One of the key challenges that supports illegal migration is abuse of our Social Security system and the Social Security document,” DHS Secretary Michael Chertoff said at a news conference. “We’ve been urging Congress to pass legislation, now before the Senate, that would grant the Department of Homeland Security some carefully crafted access to Social Security no-match data so we can detect those employers who are systematically employing workers, despite the fact that there’s an obvious mismatch between the names and the Social Security numbers in question.”
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5. German Emergency/Temporary Passports No Longer Valid for Travel to U.S. Under VWP

As of May 1, 2006, German emergency and temporary passports are no longer valid for travel to the U.S. under the Visa Waiver Program, the U.S. Embassy in Germany reported. Holders of these passports who intend to travel to or through the United States must either obtain a regular German passport for Visa Waiver Program travel, or obtain a visa.

Additional information is available at http://www.usembassy.de/germany/visa/vwp_faqs.html and http://germany.usembassy.gov/germany/temporary_passports.html.

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6. Temporary Protected Status Extended for Honduras, Nicaragua

The temporary protected status (TPS) designation for Honduras and Nicaragua has been extended until July 5, 2007. Given the large numbers affected, many re-registrants may not receive an extension sticker or new employment authorization document (EAD) until after their current EADs expire on July 5, 2006. Accordingly, the validity of EADs issued under the TPS designations has been extended automatically until January 5, 2007. The notices explain how TPS beneficiaries and their employers may determine which EADs are automatically extended. The 60-day re-registration period began on April 1, 2006, and will remain in effect until June 1, 2006. To facilitate processing, applicants are strongly encouraged to file as soon as possible.

The notices are available at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-4685.pdf (Honduras) and http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-4686.pdf (Nicaragua).

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7. State Dept. Reports on China, India Visa Availability, “Other Worker” Category Retrogression for May

The Department of State noted in its Visa Bulletin for May 2006 that continued heavy demand for visa numbers (particularly for adjustment of status cases at U.S. Citizenship and Immigration Services offices) has brought allocations close to the 5,000 annual numerical limit for “other worker” green cards in the employment-based third preference category. The Department said it has been necessary as a result to retrogress the employment third preference “Other Worker” cut-off date in an effort to limit future demand. If the annual limit is reached, it will become necessary to make the category unavailable for the remaining months of the fiscal year, the Department said.

The Department also noted that there has been a significant amount of forward movement in the China-mainland born and India employment first and second preference cut-off dates during recent months. This was done in an effort to generate demand for numbers. It cannot be assumed, the Department warned, that these cut-off dates will continue to advance at this pace during the remainder of the fiscal year. “It remains to be seen how heavy the demand for visa numbers by applicants from those areas will be in the coming months,” the Department said.

The latest Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_2868.html.

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8. USCIS Establishes Records Verification Directorate

U.S. Citizenship and Immigration Services (USCIS) announced on April 10, 2006, that it has established a new National Security and Records Verification Directorate. This new Directorate is made up of two divisions formerly embedded within the Domestic Operations Directorate, the Fraud Detection and National Security (FDNS) Division and the Records Division, along with a new Verifications Division.

FDNS functions as USCIS’s law enforcement liaison and handles the agency’s intelligence work, fraud detection and, as part of the new Directorate, the national security cases previously handled in Domestic Operations. The Records Division handles the storage and retrieval of close to 100 million immigration records, virtually all paper-based. The new Verification Division now encompasses the Basic Pilot and SAVE (Systematic Alien Verification for Entitlements) volunteer employment and status verification programs, which allows participating employers to confirm the employment eligibility of newly hired employees.

The National Security and Records Verification Directorate will be led by Acting Associate Director Janis Sposato, a 31-year veteran of the Department of Justice and the Department of Homeland Security, and the former Deputy Associate Director of the Domestic Operations Directorate.

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9. GAO Recommends Measures to Reduce Visa Wait Times at Consular Posts

The U.S. Government Accountability Office (GAO)’s new report, Border Security: Reassessment of Consular Resource Requirements Could Help Address Visa Delays, notes that applicants have faced extensive wait times at some consular posts. New post-9/11 security requirements have increased delays. Additional factors, the GAO said, may include a resurgence in visa demands and facility limitations at some posts, as well as a lack of needed personnel. Although the Department of State has increased hiring of consular officers, the GAO called for a comprehensive assessment of staffing requirements for visa operations worldwide. The report includes statistics on maximum wait times for temporary business and tourism visa interview appointments; the longest is at the post in Chennai, India, with a maximum wait time of 168 days. The full text of the report is available at http://www.gao.gov/new.items/d06542t.pdf.
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10. Fewer H-1B Numbers Used Than Expected for FY 2007 So Far

As noted in last month’s issue, U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B filings under the fiscal year 2007 cap beginning on April 1, 2006. H-1B numbers are being used up more slowly so far than many expected, although filing as early as possible is still recommended. As of April 24, 2006, USCIS reported that only 12,713 standard H-1B numbers and only 2,358 advanced degree H-1Bs have been allocated.

For more on proposed H-1B legislation, see the first article in this issue.

To monitor the count, see http://www.uscis.gov/graphics/services/tempbenefits/cap.htm.

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11. Recent Articles & News from ABIL Members

ABIL co-sponsors seminar on labor certification. The Alliance of Business Immigration Lawyers will co-sponsor a seminar with the Association of the Bar of the City of New York on “Labor Certification Fundamentals and Best Practice Under the New PERM System to Benefit Your Client and Your Immigration Practice,” on Wednesday and Thursday, May 10-11, 2006, from 6 to 9 p.m. at the New York City Bar, 42 West 44th Street. The program chair is Cyrus D. Mehta; moderators include H. Ronald Klasko and Stephen Yale-Loehr. Among the faculty are ABIL members Charles H. Kuck, Edward R. Litwin, and Angelo A. Paparelli. For more information or to register, call (212) 382-6663 or see https://www.nycbar.org/CLE/show_course.php?cnameid=1213.
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News from the Alliance of Business Immigration Lawyers Vol. 2, No. 4 • April 01, 2006

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Headlines:

1. Immigration Reform Action Heats Up in Congress – The Senate is poised to debate and seek compromise on a variety of sweeping immigration reform proposals.

2. USCIS Notifies Employers of Filing Changes – USCIS announced changes to the filing locations for foreign worker petitions.

3. USCIS Issues Sample H-2B Attestation – USCIS has issued a sample H-2B returning worker attestation for employers to follow when filing petitions including returning H-2B workers.

4. State Dept. Announces Changes in Earliest Issuance Dates for F, M Visas – Students applying for certain initial-entry visas now may be issued these visas up to 120 days before the program start date; the State Dept. also announced a plan to allow initial-entry students to apply for admission to the U.S. up to 45 days before their program start dates.

5. Reminders Issued on Eve of New H-1B Filing Period – USCIS issued reminders of important regulatory requirements in anticipation of the agency’s acceptance of H-1B filings under the fiscal year 2007 cap beginning on April 1, 2006.

6. Cut-Off Dates Advance in Several Employment Preference Categories – Cut-off dates for the China and India employment-based first preference (EB-1) categories have advanced six months.

7. Labor Dept. Releases FAQs on Labor Certifications – The Department of Labor has released guidance on procedures for requesting a duplicate labor certification when the original has been lost or misplaced.

8. New Report Counters Perception That H-1B Workers Harm U.S. Labor – The National Foundation for American Policy released a policy brief countering the perception that the entry of skilled H-1B professionals harms native U.S. workers.

9. DHS Releases Report on L-1 Visa Fraud; Other Reports Rebut Allegations – The Department of Homeland Security’s Inspector General’s controversial new report charges that the L-1 program is vulnerable to fraud in several respects.

10. GAO Issues Report on Benefit Fraud – The GAO’s new report recommends that USCIS implement additional internal fraud controls and best practices, and develop a strategy for implementing a sanctions program.

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

Details:

1. Immigration Reform Action Heats Up in Congress

As of press time, the full Senate is debating and seeking compromise on a variety of sweeping immigration reform proposals, including border enforcement measures, work authorization verification provisions, and a temporary worker plan. The Judiciary Committee marked up the legislation on March 27, 2006. Sen. Bill Frist (R-Tenn.) said the goal is to pass a bill by April 7, which would have to be reconciled with the House version. The timeline remains uncertain, however, because the legislation continues to generate controversy among lawmakers torn between the appeal of get-tough measures and concerns about alienating Latino voters.

During the mark-up on March 27, the Judiciary Committee passed a variety of amendments. Among the more noteworthy are amendments to create a temporary worker program, which President George Bush has long sought, and to apply a one-year limit on an initial L visa if the worker is coming to open a new office in the U.S., after which the worker would have to submit evidence supporting the viability of the office before applying for an extension of L status. New F-4 student visa provisions also were approved that would, among other things, raise the application fee from $1,000 to $2,000.

The National Association of Manufacturers weighed in with a letter to the Senate recommending that “[a]ny new legislation should include a market-based cap on H-1B visas; exemptions from EB caps for an expanded group of workers that are needed for their knowledge or contributions to innovation in fields like science, technology, engineering and mathematics (STEM); and…a direct path to green cards for STEM advanced degree graduates of U.S. universities.” Meanwhile, the American Civil Liberties Union and an assortment of other groups from both sides of the political aisle, including privacy rights groups, opposed a provision that would mandate the use of the Basic Pilot employment verification database by all United States employers to verify the work-eligibility of both current employees and future hires, which the organizations said would lead to privacy violations and a national identification system.

Some of the enforcement-related proposals that the Judiciary Committee did not pass included making unlawful presence in the U.S. a felony and criminalizing those who aid the undocumented. Sen. Hillary Clinton (D-N.Y.) had opined that such provisions would “literally criminalize the Good Samaritan and probably even Jesus himself.” The proposed legislation sparked some of the largest protests in U.S. history. “I’ve been on the force 38 years and I’ve never seen a rally this big,” said Louis Gray, Jr., incident commander at the March 25 rally held in Los Angeles, at which an estimated 500,000 people turned out.

The earlier text of the various pieces of the proposed legislation can be found at http://thomas.loc.gov (type the bill number in the search field): H.R. 4437 (Sensenbrenner bill); S. 1438 (Cornyn-Kyl bill); S. 2454 (Frist bill) (PDF available at http://frist.senate.gov/_files/031706bill.pdf); and S. 1033 (Kennedy-McCain bill). A PDF of the unnumbered Specter bill is available at http://www.aila.org/content/default.aspx?docid=18639.

In addition, the House immigration subcommittee held a hearing on March 30 to discuss raising the H-1B cap. In other congressional news, a House panel approved a variety of measures to reform and strengthen management of the Department of Homeland Security. An amendment to merge the Customs and Border Protection and Immigration and Customs Enforcement agencies was withdrawn after an agreement to hold a hearing on the subject. A report by the DHS’s Inspector General on the proposal is available at http://www.dhs.gov/interweb/assetlibrary/OIG_06-04_Nov05.pdf. The DHS reform legislation has been sent to the full House Committee on Homeland Security for consideration. More details are available at http://www.govexec.com/dailyfed/0306/031606c1.htm.

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2. USCIS Notifies Employers of Filing Changes

On March 24, 2006, U.S. Citizenship and Immigration Services (USCIS) announced changes to the filing locations for two popular employer-sponsored immigration forms. Beginning April 1, 2006, employers filing a Petition for a Nonimmigrant Worker (Form I-129) should mail it to the Vermont Service Center. Also beginning April 1, 2006, employers filing an Immigrant Petition for an Alien Worker (Form I-140) should mail it to the Nebraska Service Center. Employers should file any accompanying forms at these same centralized locations.

USCIS explained that these changes mark the first phase of an initiative to use centralized filing and “bi-specialized” adjudication. USCIS plans to align similar workloads between two “sister” service centers. After April 1, the Vermont and California Service Centers will process all I-129s and related dependent applications, and the Nebraska and Texas Service Centers will process all I-140s and related permanent residence applications. Applicants and petitioners should note that the filing location for the form type is not necessarily the Service Center that will decide the case; the “sister” service center may perform the actual processing. Applicants will be sent a receipt notice from the service center that will process their cases.

USCIS will continue to process cases received before April 1 using pre-existing procedures. Once the amended filing instructions take effect on April 1, the agency will not reject any I-129s or I-140s sent to the incorrect service center. Instead, USCIS will accept the filing, redirect it to the correct location, and honor the initial receipt date. The new filing locations do not affect other aspects of the forms’ instructions and do not change the forms themselves. USCIS will continue to honor previous versions of the forms.

Additional details, such as information on premium processing and where to file dependent applications when the principal application has already been filed, are included in a USCIS fact sheet available at http://uscis.gov/graphics/publicaffairs/factsheets/BiSpecPh01_24Mar06FS.pdf.

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3. USCIS Issues Sample H-2B Attestation

U.S. Citizenship and Immigration Services (USCIS) issued a sample H-2B returning worker attestation on March 16, 2006, for employers to follow when filing petitions including returning H-2B workers. Petitions for returning H-2B workers do not count toward the congressionally mandated biannual H-2B cap. The H-2B category is for temporary nonprofessional workers.

To qualify as a returning worker, a worker must have counted against the H-2B numerical cap during any one of the three fiscal years before the fiscal year of the approved start date of the H-2B petition. For example, to qualify as a returning worker for fiscal year 2006, a worker must have counted against the H-2B cap between October 1, 2002, and September 30, 2005.

The sample attestation is available at http://www.uscis.gov/graphics/formsfee/forms/files/H2B_Attestation.pdf.

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4. State Dept. Announces Changes in Earliest Issuance Dates for F, M Visas

The Department of State (DOS) recently announced that persons applying for initial-entry F-1, F-2, M-1 and M-2 visas now may be issued these visas up to 120 days before the program start date as listed on their I-20s, although such students may not enter the U.S. more than 30 days in advance of the beginning of studies. These changes apply only to initial-entry students; continuing students may apply for new F or M visas at any time, as long as they have been maintaining student status and their SEVIS records are current. Continuing students may enter the U.S. at any time before their classes start.

The DOS also announced a plan to allow initial-entry students to apply for admission to the U.S. up to 45 days before their program start dates, although the Department of Homeland Security (DHS) must publish a regulation to implement this change. The Department of State said it would notify posts when the DHS does so. Until then, posts were instructed to continue informing initial-entry students that they may not enter the U.S. more than 30 days before their program start dates.

The DOS’s announcement, which also includes information on J visas, is available at http://travel.state.gov/visa/laws/telegrams/telegrams_2843.html.

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5. Reminders Issued on Eve of New H-1B Filing Period

U.S. Citizenship and Immigration Services (USCIS) issued reminders of important regulatory requirements in anticipation of the agency’s acceptance of H-1B filings under the fiscal year 2007 cap beginning on April 1, 2006. H-1B petitioners should keep these requirements in mind to avoid delays in processing and possible requests for evidence.

USCIS noted that if work is to be performed in more than one location, H-1B petitioners must provide a detailed itinerary of the dates and places where the work will be performed. For example, a labor contractor or consultant who hires H-1B workers to work at client sites must provide in advance an itinerary with the dates and places where the worker will perform services for the clients.

Also, in situations in which an H-1B worker is changing to an employer other than the one for which the initial H-1B petition was approved, the worker must demonstrate that he or she performed work for the original petitioning employer for a “significant length of time.” If the H-1B worker is processing abroad, USCIS will work with the Department of State to ensure that the same level of scrutiny is applied to consular-processed H-1Bs.

The reminder notice is available at http://uscis.gov/graphics/publicaffairs/statements/H1Bnotice_24Mar06PN.pdf.

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6. Cut-Off Dates Advance in Several Employment Preference Categories

The Department of State announced in the April Visa Bulletin that cut-off dates for the China employment-based first preference (EB-1) category have advanced six months, to January 1, 2004. The India EB-1 category also has moved ahead six months, to January 1, 2005. Six-month advances are also noted in the employment-based second preference category (EB-2) for both China (January 1, 2003) and India (July 1, 2002). All other EB-1 and EB-2 categories remain Current. The full text of the April Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_2847.html.
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7. Labor Dept. Releases FAQs on Labor Certifications

The Department of Labor has released guidance on procedures for requesting a duplicate labor certification when the original has been lost or misplaced. The guidance is available at http://workforcesecurity.doleta.gov/foreign/pdf/perm_faqs_3-20-06.pdf. Other recent FAQs on labor certifications are available at http://workforcesecurity.doleta.gov/foreign/pdf/perm_faqs_2-21-06.pdf and http://workforcesecurity.doleta.gov/foreign/pdf/perm_faqs_2-14-06.pdf. The full set of PERM FAQs in PDF format is available for download at http://workforcesecurity.doleta.gov/foreign/ (scroll to Quick Links).
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8. New Report Counters Perception That H-1B Workers Harm U.S. Labor

The National Foundation for American Policy released a policy brief countering the perception that the entry of skilled H-1B professionals harms native U.S. workers. The brief discusses common misconceptions and fallacies that affect people’s understanding of high-skilled immigration, and research showing no negative impact of H-1B professionals on native workers’ opportunities and wages. The policy brief, H-1B Professionals and Wages: Setting the Record Straight, is available at http://www.nfap.com/researchactivities/articles/NFAPPolicyBriefH1BProfessionalsAndWages0306.pdf.
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9. DHS Releases Report on L-1 Visa Fraud; Other Reports Rebut Allegations

The Department of Homeland Security’s Inspector General’s new report, Review of Vulnerabilities and Potential Abuses of the L-1 Visa Program, charges that the L-1 program is vulnerable to fraud in several respects. For example, adjudicators “find it difficult to be confident” that a firm truly intends to use an imported worker in a managerial or executive capacity as claimed. Also, “specialized knowledge” is so broadly defined that adjudicators “believe they have little choice but to approve almost all petitions.” Further, adjudicators have little ability to evaluate the substantiality of foreign operations, and the program encompasses petitioners who do not yet have their first U.S. office and permits petitioners to transfer themselves to the U.S. The report makes several recommendations, including that U.S. Citizenship and Immigration Services (USCIS) establish a procedure to obtain overseas verification of pending H and L petitions by Department of State officers; that USCIS explore with U.S. Immigration and Customs Enforcement whether experienced criminal investigators assigned abroad could check the bona fides of L petitions submitted by petitioners in the countries in which the officers are assigned; and that USCIS seek “legislative clarification” of various terms, concepts, and criteria used in the L program.

The Inspector General’s report, including USCIS’s responses to the Inspector General’s recommendations, is available at http://www.dhs.gov/interweb/assetlibrary/OIG_06-22_Jan06.pdf.

The National Foundation for American Policy issued a report on the L visa program that questions aspects of the Inspector General’s recommendations and counters claims of widespread abuse. That report, Understanding L-1 Visas and the Recent OIG Report, is available at http://www.nfap.com/researchactivities/articles/NFAPPolicyBriefUnderstandingL1Visas0306.pdf.

The Global Personnel Alliance (GPA) reiterated in a rebuttal to the Inspector General’s report that there is no widespread evidence of L program misuse and noted that the Inspector General’s office did not speak to any users of the L-1 program. Had it done so, GPA said, it would have found that L-1 users have had petitions rejected for incorrect or unclear reasons and have been subjected to repeated requests for additional supporting evidence and required to make trips overseas to satisfy consular officers’ skepticism. The report also notes that smaller businesses, such as those started by a handful of managers and executives sent to the U.S. to expand operations, provide much of the new employment available to U.S. workers. The GPA’s report, Mixed Messages in DHS Office of Inspector General’s Report on L-1 Program, is available at http://www.aila.org/content/fileviewer.aspx?docid=18810&linkid=143200. For more on the importance of small business to American enterprise and invention, see Inventors, Inventions, and Innovative Small Business, http://www.sba.gov/advo/factsinventors06_03.pdf.

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10. GAO Issues Report on Benefit Fraud

The U.S. Government Accountability Office (GAO)’s new report, “Immigration Benefits: Additional Controls and a Sanctions Strategy Could Enhance DHS’s Ability to Control Benefit Fraud,” recommends that U.S. Citizenship and Immigration Services implement additional internal fraud controls and best practices, and develop a strategy for implementing a sanctions program that includes a mechanism for assessing the effectiveness and considering the costs and benefits of sanctions, including their deterrence value. The GAO report, Immigration Benefits: Additional Controls and a Sanctions Strategy Could Enhance DHS’s Ability to Control Benefit Fraud, is available at http://www.gao.gov/new.items/d06259.pdf.
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11. Recent Articles & News from ABIL Members

ABIL co-sponsors seminar on Global Migration Issues. While members of the Academy of Business Immigration Lawyers are in London to attend their semi-annual meeting, they will co-sponsor a seminar, “Managing Global Mobility,” with British American Business Inc. (BABi). The seminar will be held on April 20, 2006, at the Marriott Hotel, Grosvenor Square, London, from 2:00 to 5:30 p.m. Panels will address Effective Global Migration Management – An Essential Element for Competitive Success; Compensation, Benefits and Tax Planning for International Assignments; and Global Immigration Systems – Similarities and Differences. ABIL moderators and faculty will include Angelo A. Paparelli, Steven Trow, H. Ronald Klasko, Laura Danielson, and Bryan Funai. The program chair is Kehrela Hodkinson. For additional information and to register, call +44 20 7493-0381 or see http://www.babinc.org/events/loneventcalendar.html.

ABIL co-sponsors seminar on labor certification. The Alliance of Business Immigration Lawyers will co-sponsor a seminar with the Association of the Bar of the City of New York on “Labor Certification Fundamentals and Best Practice Under the New PERM System to Benefit Your Client and Your Immigration Practice,” on Wednesday and Thursday, May 10-11, 2006, from 6 to 9 p.m. at the New York City Bar, 42 West 44th Street. The program chair is Cyrus D. Mehta; moderators include H. Ronald Klasko and Stephen Yale-Loehr. Among the faculty are ABIL members Charles H. Kuck, Edward R. Litwin, and Angelo A. Paparelli. For more information or to register, call (212) 382-6663 or see https://www.nycbar.org/CLE/show_course.php?cnameid=1213.

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