Late June- Early July IMMIGRATION NEWSLETTER

1. THIRD PREFERENCE IMMIGRANT VISAS/GREEN CARDS WILL BE UNAVAILABLE TILL OCTOBER 1st

According to the U.S. Department of State Visa Bulletin for July 2005, the Third (3rd) preference category (skilled workers, professionals and other workers) will not be available for the remainder of the fiscal year which ends September 30, 2005, due to heavy demand.

This means that any employment-based green card applicant within the Third (3rd) preference will not be able to complete adjustment of status or obtain an immigrant visa at a U.S. consulate abroad until visas become available in October 1, 2005.

Visa numbers remain available for the First (1st) and Second (2nd) employment-based preferences.

2. USCIS PROVIDES INFORMATION ON USAGE OF FY 2005 H-1B EXEMPTION NUMBERS

The USCIS recently reported that as of May 20, 2005, 6,393 of the 20,000 H-1B exemption numbers for fiscal year 2005 has been used.

3. THE RECAPTURED 50,000 SCHEDULE A VISA NUMBERS AND VISA AVAILABILITY PROJECTIONS FOR THE REMAINDER OF FY05

In general Schedule A includes qualifying physical therapists, personnel in the sciences and the arts and registered nurses, but it is believed that largely the recaptured 50,000 visas will go to registered nurses.

Most likely the Philippines demand will be covered but when it comes to 2,800 pending China/India E-3 applicants some questions are raised there.

The Visa Office is also trying to determine whether a new visa category code will be issued or whether it will remain under "LB" which stands for legalization beneficiaries.

4. PAYMENTS TO HELP HOSPITAL CARE FOR ILLEGAL IMMIGRANTS

The Bush Administration recently announced that it would start paying hospitals and doctors for providing emergency care to illegal immigrants. A total of $1 billion has been made available for services provided from May 10, 2005 to September 2008.

Members of Congress from border states had sought this money from the Federal government saying that the treatment of illegal immigrants imposed a huge financial burden on many hospitals. The largest allocations this fiscal year are going to California, Texas, Arizona, New York, Illinois, Florida, and New Mexico.

Under the new program, hospitals are supposed to ask patients for certain documents to substantiate claims for payment, but they are not required to ask a patient whether or not he or she is an undocumented alien.

Hospital executives and immigrant rights groups were concerned that such questions would deter illegal immigrants from seeking hospital care and could lead to serious public health problems by increasing the spread of communicable diseases. However, the Department of Health and Human Services, which is in charge of running the new program, has assured the public that it would not provide information about illegal immigrants to law enforcement officials for use in "routine civil immigration proceedings."

5. MACHINE-READABLE PASSPORT REQUIREMENTS TO TAKE EFFECT AT U.S. BORDERS ON JUNE 26, 2005

The Department of Homeland Security (DHS) recently announced that as of June 26, 2005, all persons traveling to the U.S. on Visa Waiver must present a machine readable passport. For a limited period that started on October 26, 2004, the DHS has provided immigration inspectors at U.S. borders and ports of entry the authority to grant one-time entry at no charge for Visa Waiver travelers arriving without machine-readable passports. This limited period will end on June 26, 2005. Starting on that date, transportation carriers will be fined $3,300 per violation for transporting any Visa Waiver traveler to the U.S. without a machine-readable passport.

Visa Waiver travelers who are not in possession of machine-readable passport may also apply for nonimmigrant visa at a U.S. embassy or consulate abroad if seeking entry for business or tourist visits.

6. DENIAL OF DRIVER'S LICENSES TO MANY IMMIGRANTS VOIDED

Justice Karen S. Smith of the State Supreme Court in Manhattan recently ruled that the State Department of Motor Vehicles exceeded its authority when it denied driver's licenses to immigrants who could not show that they were in the U.S. legally. According to the decision, the agency "cannot be an enforcer" for the federal Homeland Security authorities because it "lacks expertise and, more importantly, it has not been empowered by the State Legislature to carry out that function."

Raymond P. Martinez, the state's motor vehicles commissioner, said the agency would appeal the ruling. Judge Smith's ruling would be suspended during the state's appeal.

7. ADDED VISAS COULD ENCOURAGE U.S. HIRING OF AUSSIES

Congress recently passed legislation approving a separate visa category for Australian professionals. The E-3 visa program provides the country with 10,500 slots annually, relieving Australians of the need to jockey with other foreigners for H-1B visas, which are currently limited to 65,000 a year.

Last year, only 900 Australians received H-1B visas under the quota. Even at current limits, however, Australians are already frequent hires at major U.S. law firms who overcome the short supply of top U.S. associates by hiring the cream of the crop overseas rather than settling for second-best at home. In the legal arena, though, Britain has been a greater influence and remains a larger magnet for young Australian lawyers. About half a million Australians live in London, while the U.S. has a 150,000 Australian expatriate community, 20,000 of whom are in New York.

8. ROUTINE LICENSE CHECK CAN MEAN JAIL AND DEPORTATION

Mr. Jorge Medina-Gonzalez was close to home when two Nutley, NJ police offices stopped his jeep Cherokee because of a broken taillight. They asked for his license, registration and Social Security number. When the police did a curbside search of the national database, they found out that immigration authorities, at one point, had ordered Mr. Medina deported after his bid for political asylum was denied.

According to Father Jordan, a Franciscan friar and immigrant advocate, Mr. Medina was taken to the Nutley police station, put in a cell and was never told why he was being incarcerated. Because immigration authorities had no agent to pick him up, Mr. Medina was released but was told to report to an immigration office in Newark. When Mr. Medina reported to the office, he was immediately detained and faced deportation.

Mr. Medina had no prior criminal record, is the father of two U.S. citizens, and is a cook at a New York catering company that is sponsoring him for a green card.

9. IMMIGRANTS IN TENNESSEE ISSUED CERTIFICATES TO DRIVE

Tennessee is now issuing two different driver's permits: a license, for citizens and permanent residents; and a certificate for driving, primarily for those who cannot prove they are here legally, but also for temporary legal residents.

The certificate must be renewed every year. For temporary residents, it expires at the same time as their visas. To satisfy security concerns, the state has tried to forbid the certificate's use as identification. The certificate is vertical, instead of horizontal like the regular license, and has the words "Not Valid for Identification."

Certificates have posed problems for their bearers, They are rejected by banks and there have been reports that insurance agents are refusing to honor them or are charging high-risk rates. Bearers also cannot travel with a certificate.

According to a civil rights lawyer in Nashville, the problem with the system is that it treats lawful aliens differently. "They are being punished and treated like second-class citizens, and for what? So illegal aliens wouldn't have a scarlet letter."

10. COURT BLOCKS DEPORTATION AFTER REVIEW OF STATE PENAL STATUE, SCIENTER REQUIREMENT

The federal trial court for the Southern District of New York recently reversed a removal order upheld by the Bureau of Immigration Appeals (BIA), ruling that the alien was not convicted of an aggravated felony.

In 2002, Xiomara Gonzalez, a lawful permanent resident, was ordered removed from the U.S. on the ground that she had been convicted of an aggravated felony in 1998. Gonzalez is a citizen of the Dominican Republic and became a lawful permanent resident on May 28, 1983, when she was 24 years old. Her application for citizenship was denied in 1997 based on her lack of English language ability.

Between 1993 and 1994, Gonzalez took several pictures of her two youngest children in the bath with their father while the children were unclothed. Gonzalez was arrested and charged with the "use of a child in a sexual performance" under the New York Penal Law. Gonzalez pleaded guilty and was sentenced to five years probation. INS then commenced removal proceedings against Gonzalez.

Both the Immigration Judge and the BIA ordered that she be removed to the Dominican Republic, ruling that her conviction under the state statute constituted the aggravated felony of "sexual abuse of a minor" as defined by the Immigration and Naturalization Act.

In this case, the federal court held that the relevant state statute under which Gonzalez was convicted had a lower "scienter" requirement than the federal statute. Hence, the habeas petition was granted and the removal order was cancelled.

11. SUPPORT BI-PARTISAN IMMIGRATION REFORM

A recently proposed bill, Secure America and Orderly Immigration Act of 2005, seeks to provide a mechanism through which undocumented immigrants present in the U.S. on the date of the bill's introduction could earn the opportunity to adjust to a permanent status, reduce backlog in family-based immigration, establish a new essential worker visa program, protect individuals from immigration fraud, promote circular migration, create a national strategy for border security and enhanced border intelligence, and develop enforcement initiatives, including a new Employment Eligibility Confirmation system.

12. USCIS UPDATES ON NEW "GREEN CARD" FILING PROCEDURE

The USCIS recently announced that, starting May 31, 2005, individuals must mail applications to renew or replace Permanent Resident Cards directly to the Los Angeles Lockbox.

13. HOUSE OF REPRESENTATIVES EXPANDS AGGRAVATED FELONY DEFINITION

The House of Representatives recently passed the Gang Deterrence and Community Protection Act of 2005 which would expand the definition of the federal "crime of violence" and, by extension, the aggravated felony definition for immigration law purposes.

Current law defines a crime of violence as one that involves a substantial risk that physical force will be used against person or property. The Supreme Court recently interpreted this and held that driving under the influence offenses requiring a mens rea (criminal intent) of negligence do not constitute crimes of violence and therefore does not qualify as aggravated felonies under the Immigration and Nationality Act.

The new bill seeks to expand the crime of violence definition to include nonviolent, negligent acts or omissions that place another person or property at risk of injury, even if no injury actually occurs. Crimes so classified carry incredibly harsh immigration-related consequences, including mandatory detention and removal-even for longtime lawful permanent residents.

14. HOUSE OF REPRESENTATIVES CONSIDERS IMMIGRATION-RELATED PROVISIONS

The House of Representatives recently took up two bills-the Department of Homeland Security (DHS) Appropriations bill and the DHS Authorization bill. Several amendments to the later bill were passed including the disbursement of $40 million in federal for state and local police agencies that enter into Memoranda of Understanding with ICE to enforce immigration laws. Another proposed amendment seeks to declare that state and local law enforcement officers have inherent authority to enforce federal immigration laws, including the apprehension, detention, and removal of aliens in the United States.

15. REPORT DESCRIBES IMMIGRANTS AS YOUNGER AND MORE DIVERSE

On June 9th the U.S. Census Bureau issued a report that immigrants in the United States are now younger than previously.

The survey shows immigrants over 40 years old are significantly white while immigrants that are under 40 are mainly Hispanic, Asian and from other minority groups. The largest minority, 2.9 million people from 2003 to 2004, was found to be Hispanics half of whom are under the age of 27, and one of every five children is Hispanic under the age of eighteen.

For Hispanics the growth rate is at 3.6 percent which is three times the 1 percent of the entire population. On the other hand, it was 3.4 percent for Asians, 1.9 percent for Pacific Islanders, 1.2 percent for American Indians, 1.1 percent for blacks and 0.3 percent for whites.

The census showed, in general, that there were 41.3 million Hispanics out of a national population of 294 million. Some immigration experts and political scientist are wondering whether they will successfully assimilate after two or three generations just as well as the Greeks, Italians and other Europeans succeeded during the last century.

Although, most of the Hispanic population comes to the United States with poor education and often employed at low paying jobs, some believe that they represent a strong force.

Overall, the Census Bureau concluded that the more diverse the United States is, the more productive it becomes.

16. USCIS MEMO SUMMARIZES REAL ID PROVISIONS

The USCIS recently released a memo summarizing the pertinent immigration-related provisions of the REAL ID Act of 2005. Among the provisions are: Section 101, which tightens evidentiary standards and burdens of proof for applicants for asylum and for relief protection from removal, removes the annual numerical limit of 10,000 green cards for asylees and of 1,000 asylum or refugee status to persons resisting coercive population control methods; Section 103, which expands the terrorism-based ground of deportability; Section 106, which limits judicial review of removal orders; Section 201-07, which provides the requirements that States must meet for their drivers' licenses to be accepted for Federal purposes; Section 401-07, which contains a number of provisions intended to provide additional H-2B visas; Section 501, which provides up to 10,000 specialty occupation visas (E-3) for nationals of Australia; and Section 502, which provides for the recapture of up to 50,000 employment-based immigrant visas authorized but unused in fiscal years 2001-04 for immigrants described in Department of Labor's schedule A (primarily, but not exclusively, nurses) and their accompanying family members.