Late April- Early May IMMIGRATION NEWSLETTER

1. USCIS IMPLEMENTS H-1B VISA REFORM ACT OF 2004

USCIS recently forwarded to the Federal Register new regulations implementing sections of the H-1B Visa Reform Act of 2004. The regulations make available 20,000 new H-1B visas only for foreign workers with a minimum Master's level degree from a U.S. academic institution, in addition to the Congressionally mandated annual cap of 65,000 H-1B visas.

USCIS has determined that it is a reasonable interpretation of the Act to reopen the filing period for FY 2005 on Thursday, May 12, 2005, and make available 20,000 new H-1B numbers limited solely to those aliens who have received a Master's or higher degree from a U.S. institution of higher learning.

Beginning in FY 2006, USCIS will exempt the first 20,000 H-1B petitions reflecting an alien beneficiary with a U.S.-earned Master's or higher degree from the H-1B cap.

2. CIRCUIT AFFIRMS RIGHT OF APPELATE PANELS TO REVIEW IMMIGRATION DETERMINATIONS

The U.S. Court of Appeals for the Second Circuit has recently ruled in the case of Sepulveda v. Gonzales that Federal appeals courts have the power to review an immigration court's refusal to reopen deportation proceedings. The Circuit held that the "jurisdiction bar" of 8 U.S.C. ß1252(a)(2)(B) "does not strip courts of jurisdiction to review nondiscretionary decisions regarding an alien's eligibility"

3. AMERICANS MAY NEED PASSPORTS TO ENTER FROM CANADA OR MEXICO

Under new rules that will be phased in by January 2008, U.S. Citizens seeking to re-enter the U.S. from Canada, Mexico or Bermuda will have to show a passport or another appropriate security identity card or citizenship document. Presently, citizens can re-enter the country from Canada and often from Mexico, the Caribbean, Bermuda and Panama by showing a driver's license.

Under the intelligence reform act that was passed in December, passports will be required for U.S. citizens returning from the Caribbean, Bermuda, Central and South America beginning December 31 of this year. Passports will also be required from Canadians and citizens of Bermuda entering from the same countries.

As of December 2006, the passport requirement will be expanded to travel to the U.S. from anywhere in the Western Hemisphere by air or sea, including Canada and Mexico. As of January 1, 2008, all travel, including by land, into the U.S. by citizens or by Canadians or Mexicans will require a passport or other accepted forms of identification.

4. FIGHT OVER IMMIGRANTS' DRIVING LICENSES IS BACK IN COURT

Acting State Supreme Court Justice Karen S. Smith recently heard oral arguments on whether a preliminary injunction should be issued to stop the practice of demanding proof of "legal presence" in the U.S. from non-citizens in New York state applying for or renewing their driver's license. The judge had earlier issued a preliminary ruling that the commission of the Department of Motor Vehicles probably went too far in denying license renewals and suspending licenses of non-citizens without a Social Security card or a visa deemed satisfactory by a motor vehicles clerk. This interim order was however blocked by an appeal by the state.

DMV Commissioner Raymond Martinez recently issued a statement that the requirements were consistent with existing laws and the interest of public safety. Earlier this year, the House passed a bill that would effectively forbid states to issue driver's licenses to illegal immigrants and require verification of all documents supplied by citizens for a driver's license.

5. DEPARTMENT OF HOMELAND SECURITY BEGINS US-VISIT BIOMETRIC EXIT PILOT AT HARTSFIELD-JACKSON INTERNATIONAL AIRPORT

The Department of Homeland Security recently announced that the US-VISIT biometric procedure Exit Pilot Program is now in effect in Hartsfield-Jackson Atlanta International Airport. Foreign visitors departing from this airport are not required to follow checkout procedures before departing from their flight. They are either required to check out through an exit station, where their travel documents will be read, their index fingers will be scanned, and their digital picture will be taken, after which they will receive a printed receipt verifying that they have checked out. Departing foreigners may also be subject to an additional step-verification-at the departure gate where a workstation attendant will scan the receipt and scan the visitor's index finger to match the person's identity with the receipt.

The exit pilot program has been operating for a number of months in Baltimore/Washington International Airport, Chicago O'Hare International Airport, Denver International Airport, Dallas/Fort Worth International Airport and the Miami International Cruise Line Terminal. Exit procedures also became operational at Newark Liberty International Airport, Luis Munoz International Airport in San Juan, Puerto Rico, San Francisco International Airport, and Detroit Metropolitan Wayne Country Airport in January. Exit pilots will begin shortly in Philadelphia International Airport and Los Angeles' San Pedro and Long Beach Seaports.

US-VISIT entry procedures are currently in place at 115 airports, 15 seaports and in the secondary inspection areas of the 50 busiest land ports of entry. To date, more than 23 million foreign visitors have been processed through US-VISIT and more than 500 criminals or immigration violators have been denied admission to the U.S. because of US-VISIT.

6. FIVE MUSLIMS TO SUE U.S. OVER BORDER DETENTIONS

Five American Muslims, all U.S. citizens, recently filed a federal lawsuit against the U.S. government alleging that they were detained by U.S. border agents as they returned home from a religious conference in Toronto.

According to the plaintiffs, they and dozens of others were help up to six and half hours at border crossings, interrogated, photographed and fingerprinted as they tried to re-enter the U.S. after attending "Reviving the Islamic Spirit," a large annual conference organized by Muslim organizations in Canada. Border agents were alleged to have searched the cares of those detained and confiscated some of their cellphones after the detainees tried to call their lawyers.

Homeland Security officials acknowledged that at least 34 people were stopped by border agents after attending the conference. According to a spokesperson for the department, Muslims who attended the conference were stopped because the government had "ongoing credible information" that Islamic conferences may be used to promote terrorist activities, including fundraising.

Plaintiffs include an orthodontist , a teacher, a hotel manager, and a graduate student. They claim that the detention and interrogation violated their constitutional rights. The lawsuit seeks to have the government's actions declared unlawful and an injunction issued against further enforcement of such "policies and practices."

7. SENATE APPROVES $81.26 BILLION IN A MILITARY EMERGENCY BILL

The Senate recently approved its version of an $81.26 billion supplemental emergency military spending bill. The House version incorporated provisions blocking states from issuing standard driver's licenses to illegal immigrants, making it harder for immigrants to win asylum, and circumventing environmental rules to build a barrier along the border with Mexico near San Diego.

The Senate, however, moved in the opposite direction, expanding the number of foreigners whom employers would hire as temporary seasonal workers. The Senate also added two amendments to pay for more border patrol agents, taking $400 million from the budget of the State Department and $147 million from international peace-keeping accounts, respectively.

The final bill is likely to have a major impact on U.S. policy on immigration and border security. The White House has expressed support for the driver's license restrictions. Making it more likely that they will remain in the final bill.

8. COURT-STRIPPING IN RELATIVELY PLAIN ENGLISH: AN ANALYSIS OF SECTION 105 OF THE "REAL ID ACT OF 2005"

Section 105 of the REAL ID Act, as passed by the House of Representatives as part of the supplemental appropriations bill, restricts the oversight role of the federal courts by (a) eliminating habeas review to challenge the legality of a deportation order; and (b) limiting the court's ability to issue a "stay of deportation" before the appeal has been decided.

For many decades, a habeas petition was the only way for an immigrant to appeal a ruling in a deportation case. Habeas petitions are reviewed by federal district (trial) courts. In 1961, Congress moved appeals in deportation cases directly into federal appellate courts by means of a petition for review. In 1996, however, Congress eliminated petitions for review for immigrants convicted of most criminal offenses. Many immigrants had no alternative but to rely once again on habeas as the only available route into federal court.

Section 105 of the REAL ID Act would eliminate, for the first time in U.S. history, any habeas review of removal orders for both criminal and non-criminal immigrants. In addition Section 105 also retains almost all of the restrictions on petitions for review in the courts of appeal. For example, courts of appeal cannot review "mixed questions of law," even in asylum and torture claims.

Further, Section 105 would make it significantly more difficult for a court to issue a stay of deportation. Specifically, a court would have to find, by "clear and convincing evidence," that an immigrant is likely to prevail on the merits in an appeal. Under current law, in order for any federal court to issue a stay of deportation, an immigrant must show the he or she is likely to win the merits of appeal.

9. OTHER NEWS

The New York City Police Department (NYPD) is presently checking with Department of Homeland Security (DHS) regarding foreign individuals stopped for traffic violations. Individuals with outstanding deportation/removal orders are being turned over to DHS.

10. IN RARE ACCORD, SPURNED ASYLUM SEEKER TO GET $87,500

The Federal government has recently agreed to pay $87,500.00 to a woman from Kenya who was denied entry into the U.S. even though she had expressed fear for her life if sent back home. She was returned to Kenya by immigration officials at the San Francisco International Airport in March 2001 but she managed to return on a tourist visa six months later. She was granted political asylum in September 2002, and now lives in Santa Rosa, California with her two daughters.

According to the lawsuit, the petitioner fled Kenya with one of her daughters after being beaten by Kenyan authorities for anti-government political activities. Kenyan police allegedly put plastic bags over the heads of her two children and made her husband strip naked, beating him until he was unconscious.

Petitioner had her arm bandaged from a beating when she arrived in San Francisco and expressed fear of being killed should she be required to return home. Under federal law, immigration officials are required to refer people who express fear of returning to their home country to an asylum officer. This did not happen in this case.

This case is the first time in which an arriving refugee had successfully sued the federal government by accusing immigration officials of negligence.

11. BOWING TO CRITICS, U.S. TO ALTER DESIGN OF ELECTRONIC PASSPORTS

The State Department recently announced that it intends to modify the design of new electronic passports so that the embedded radio chip holding a digitized photograph and biographical information is more secure. The radio chip is supposed to broadcast personal information to speed processing of travelers. Government tests, however, confirmed privacy advocates' suspicions that the electronic passport might be vulnerable to so-called skimming from a greater distance than officials had previously said.

To prevent that, the special electronic passport readers used by Customs officials in the United States and their counterparts around the world would use data printed on the new passport to effectively unlock the radio chip before it would transmit the personal electronic information it holds.

The personal data flowing to the passport reader would also be encrypted, so that someone trying to use an unauthorized electronic reader in the area could not intercept and decipher the identity of the passport holder.

12. CONGRESS MAY REQUIRE CLOSER SCRUTINY TO GET A DRIVER'S LICENSE

Congress is moving quickly toward setting strict rules on how states issue driver's licenses, requiring them to verify whether each applicant for a new license or a renewal is in this country legally.

Under the rules being considered, before granting a driver's license, a state would require a birth certificate, a photo ID, proof of Social Security number, and a document with full name and home address. It would need to check the legal status of non-citizens against a national immigration database, to save copies of any documents shown and to store a digital image of the face of each applicant.

The licenses issued must include the driver's address and a digital photograph, and would incorporate new authentication features designed to prevent counterfeits. The new law would also require that the licenses of legal temporary residents expire when their visas do. The rules would also apply to renewals.

States could still give licenses to illegal immigrants, but they would have different designs or colors to alert security officers that they are unacceptable as IDs for boarding planes or entering federal buildings.

Uniform requirements for driver's license applications were among proposals accepted by House and Senate negotiators trying to resolve differences in their versions of a bill to pay for military operations in Iraq and Afghanistan. They also agreed on changes in asylum laws but remained divided over how much money to spend on border security.