Late September - October IMMIGRATION NEWSLETTER

1. EMPLOYMENT-BASED PREFERENCE RETROGRESSION

The State Department has recently issued its Visa Bulletin for November 2005. According to the latest bulletin, visa numbers for the EB-3 category are available only for those with priority (filing) dates of March 1, 2001. Priority dates for applicants from China, India, and Mexico are as follows: EB-1 category-China: January 1, 2000; India: August 1, 2002; EB-2-China: May 1, 2000; India: November 1, 1999; EB-3-China: May 1, 2000; India: January 1, 1998; Mexico: January 1, 2001.

An application for adjustment of status to lawful permanent resident (i.e. green card) cannot be filed until the filing or priority date is listed as current or available. Hence, this will affect many applications in terms of eligibility to file for adjustment of status as well as obtaining final green cards. It cannot be determined as of this time how soon visa numbers will become available in these categories. Estimates range from 1 to 3 years.

2. BUSH RENEWS PUSH FOR IMMIGRANT-WORKER PLAN

President Bush has recently urged Congress to adopt a temporary-worker program that would allow illegal immigrants to remain in the U.S. for as long as 6 years. At the same time, he also vowed to get tough on illegal immigrants saying that the government should do everything it can to find illegal immigrant and expeditiously return them to their countries once they are caught. He emphasized the border enforcement part of the plan and signed a $32 billion domestic security bill that will increase the allocation for the Border Patrol, including money to hire 1,000 new agents.

Under the proposed temporary-worker program, certain illegal immigrants already in the U.S. would have to pay a fee and then be given a temporary worker visa good for up to 3 years, with an option to renew for another three. After 6 years, they would have to leave the country, unless an employer sponsors them for a job that no qualified American could be found to take.

3. SENATE JUDICIARY COMMITTEE PASSES PROPOSAL TO PROVIDE H-1B VISA AND EMPLOYMENT-BASED IMMIGRATION RELIEF

The Senate Judiciary Committee recently held a markup of a proposal to provide temporary relief from the H-1B cap and the employment-based immigrant visa backlogs, in exchange for increased fees on some petitions. The final proposal would be as follows:

- Impose a new $500 fee for immigrant visa petitions in EB-1, EB-2, and EB-3 categories;

- Recapture unused employment-based visas from prior years for allocation of up to 90,000 per year;

- Exempt spouses and minor children from the annual cap on employment-based immigrant visas;

- Allow individuals to apply for adjustment of status before an immigrant visa is deemed currently available;

- Recapture approximately 300,000 unused H-1B numbers dating back to FY 1991, effectively raising the cap from 65,000 to 95,000 per year;

- Impose a new $500 fee on the additional 30,000 recaptured H-1B visas; and

- Impose a new $750 fee on L-1 visas.

This proposal must still be reconciled with the House's alternative budget reconciliation bill, which imposes a $1,500 fee increase on L-1 visas.

4. ILLEGAL IMMIGRATION HAS INCREASED

The Pew Hispanic Center recently reported that illegal immigration to the U.S. has increased despite tighter security measures, which seemed to have the effect of reducing legal immigration.

Since 2001, the number of legal permanent residents entering the U.S. declined from 578,000 to 455,000, while the number of illegal immigrants increased from 549,000 to 562,000. The decline in legal immigration appears to reflect processing backlogs, security delays and other development that followed the Sept. 11 attacks, according to the report.

The report also says that immigration levels generally parallel the economic conditions of the U.S. Immigration, both legal and illegal, reached a peak of 1.5 million in 1999 and 2000 but dropped off to 1.1 million in 2003. In 2004, immigration levels bounced back to 1.2 million.

Mexico accounted for about 1/3 of new immigrants. Those new immigrants appear to be shunning states with large immigrant communities and moving to states with smaller foreign-born populations, such as North Carolina and Iowa.

5. HOUSE PASSES BILL GRANTING SPECIAL IMMIGRANT STATUS TO KATRINA VICTIMS

The House recently passed a bill that would grant special immigrant status to aliens who were the beneficiaries of family-sponsored or employment-based petitions or labor certification applications that were revoked, terminated or rendered null because of a specified hurricane disaster. These cases would include the death or disability of the petitioner, applicant or beneficiary, or the loss of employment due to damage or destruction of the business.

These benefits would extend to spouses and children accompanying or following to join the principal alien, as well as grandparents of orphans who lost their USC or LPR parents in the storm.

6. 2007 DIVERSITY LOTTERY REGISTRATION BEGINS

Registration for the 2007 Diversity Visa (DV) Lottery began on October 5, 2005. Persons seeking to enter the lottery program must register online at www.dvlottery.state.gov. Paper entries and mail-in requests are no longer accepted.

The website will be available from noon of October 5, 2005 through noon of December 4, 2005. The Department of State encourages people to submit their information early in two-month registration period.

There is no fee charged for entering the Diversity Visa Lottery.

7. U.S. CONSULATE GENERAL IN TORONTO

The Consulate General in Toronto has recently announced that they will process E-3 visas for Australian nationals once the required system upgrades are completed. Applicants who wish to apply for an E-3 visa must schedule an appointment by phone or online through the website. The Treaty Visa (E-1/E-2) Unit will not handle these applications. They will instead be handled in accordance with established procedures for H, L, or other work visas.

8. SENATE PANEL APPROVES IMMIGRATION NOMINEE

A senate committee has recently voted to approve the nomination of Julie L. Myers as head of the Homeland Security Department's immigration agency. Concerns had previously been raised that Ms. Myers lacked management experience. However, members of the committee said their previous concerns about her lack of experience were relieved after talking to her. Should she win the Senate approval, Myers would run the Immigration and Customs Enforcement bureau, the second-largest investigative force of the federal government. Her nomination is also expected to be considered by the Senate Judiciary Committee.

9. STUDY RANKS HOMELAND SECURITY DEPARTMENT LOWEST IN MORALE

The Center for American Progress published a new study comparing employee attitudes in various U.S. agencies. The research organization used data from a survey taken by the federal Office of Personnel Management between August and December 2004.

According to the study, the responses of the Homeland Security employees were less favorable than those of all the 30 departments and large agencies surveyed. Experts in human resources said the morale problems indicated in the survey should be serious concern to the top officials at the department.

The employees at the National Aeronautics and Space Administration and the National Science Foundation appeared to have the highest morale among all the department and agencies surveyed. One the other hand, the morale at the Department of Homeland Security was far worse than that at the agency where the survey showed morale to be the next lowest, the Small Business Administration.

10. DIGITAL PHOTO DEADLINE FOR PASSPORTS

The Department of Homeland Security recently issued a press release reminding visitors that Visa Waiver Program (VWP) countries were required to issue passports with digital photographs by October 26, 2005. Visitors with valid machine-readable passports issued prior to October 26, 2005, may continue to travel without visa under the VWP. However, passports issued on or after October 26, 2005, must now have the digital photo. Visitors who are issued a passport after the October 26 deadline that does not meet these requirements will be required to obtain a visa to travel into the U.S.

Beginning October 26, 2005, transportation carriers will be fined up to $3,300 per violation for transporting any visitor traveling under the VWP to the U.S. who does not meet these requirements. Similarly, visitors traveling under the VWP arriving in the U.S. without the proper passport should not anticipate being granted entry into the country.

11. REPORT FINDS U.S. FAILING ON OVERSTAYS OF VISAS

The Inspector General recently issued a report indicating that the Department of Homeland Security frequently fails to follow up on leads that foreign visitors have overstayed their visas. According to the report, of the 301,046 leads received by the Immigration and Customs Enforcement Agency (ICE) in 2004, only 4,164 were formally pursued, resulting in just 671 apprehensions.

In 2004, only 51 full-time agents were assigned to work on visa overstays, which the study estimates amounts to at least 3.6 million, out of the 9-10 million illegal immigrant population. Hence, half of the referrals the auditors examined were not followed up within a two-month period.

Responding to the report, former ICE director Michael J. Garcia, said the agency focused not on how old a lead was, but its threat or public safety potential. However, he did not dispute the report's basic findings.

Secretary of Homeland Security. Michael Chertoff also recently acknowledged to the Senate Judiciary Committee that his department was not doing enough to prevent illegal immigration.

12. USCIS IMPOSES NEW FEES

USCIS issued a revised fee structure that went into effect in October 26th, adding an average of $10 to each application and petition. The fees were last adjusted in April 2004 to account for additional security enhancements. The latest fee structure reflects an inflation adjustment to fund the full cost of providing immigration benefits.