AUGUST 2004 NEWSLETTER

1.   NEW CIS PILOT PROGRAM

Citizenship & Immigration Service (“CIS”) recently announced a fast-track green card program for applications involving spouses and children of U.S. citizens resulting in interviews within 90 days. This temporary program is set to expire on September 30th.

2.   STATUS OF H-1B CAP UPDATE FOR FISCAL YEAR 2005

It has been announced that as of August 4, 2004, USCIS had received 40,000 H-1B applications subject to the Fiscal Year 2005 cap.

The cap on H-1B remains at 65,000 for the FY 2005, which begins on October 1, 2004. This includes 6,800 visas set aside for Chile and Singapore, under Free Trade Agreements that took effect this year, thus leaving only 58,200 visas for the regular H-1B category.

In view of the foregoing, we strongly recommend that any proposed H-1B petitions subject to the cap be filed as soon as possible utilizing “premium” processing to ensure timely receipt.

3.   DHS ADDS SIX PORTS TO US-VISIT

The Department of Homeland Security (“DHS”) has added six new sea and air ports of entry for inclusion in the US-VISIT which are: Albany International Airport, New York; St. Petersburg/Clearwater International Airport, Florida; Port Everglades seaport, Florida; Andrews Air Force Base, Maryland; New York City seaport, New York; and Port Canaveral, Terminal 10, Florida. DHS has also deleted one port for the exit pilot program: Alfred Whitted Airport in St. Petersburg, Florida.

4.   DOS INSTRUCTS POSTS ON TIMING OF ISSUANCE OF F AND J VISAS AND REGARDING PROSPECTIVE STUDENTS

The Department of State (“DOS”) recently instructed its posts that while students may apply for F visas at any time, consular officers may not physically issue them until 90 days before the program start date nor may students use these visas to enter the United States until 30 days before their program start date. J visas may be applied for and issued at any time, but the 30-day period likewise applies to initial-entry J visitors.

Persons planning to change status in order to study in the U.S. may be issued “prospective student” visas, but incoming students who enter on a “prospective student” B status will not be allowed to study until the change of status is approved.

5.   DHS EXPANDS EXPEDITED REMOVAL TREATMENT AND EXTENDS LENGTH OF STAY WITH BORDER CROSSING CARDS

In a Federal Register Notice dated August 3, 2004, the Department of Homeland Security (“DHS”) announced that effective August 11, 2004, aliens who are not inspected by an immigration officer at their port of entry, are encountered within 100 air miles from a U.S. international land border, and are unable to show that they have been present in the U.S. for 14 consecutive days shall be subject to expedited removal proceedings. Under these proceedings, the person apprehended shall be detained and removed to his home country as soon as circumstances allow, without a hearing before an Immigration Judge unless asylum is sought.

In a related press release issued on August 10, 2004, the DHS announced that it would be extending the time during which holders of border crossing cards are allowed to remain in the U.S., within the border vicinity, to up to 30 days. Current rules limit visits to 72 hours and only within the border zones. Border crossing cards are used by Mexicans to enter the U.S. for temporary visits. In order to travel to the U.S. for longer periods or outside the border zone, a cardholder must apply for and obtain an I-94 form.

6.   USCIS LAUNCHES INFOPASS IN NEW JERSEY, PENNSYLVANNIA AND UPSTATE NEW YORK

USCIS has announced that InfoPass, its internet-based appointment system, was formally launched in the New Jersey and Buffalo, New York offices on August 9, 2004 and in the Philadelphia and Pittsburgh offices on August 5, 2004. InfoPass allows the public to go online to schedule a date and time to meet with an immigration information officer, avoiding the need to wait in line. InfoPass first debuted in Miami last year and has eliminated the lines in that office completely. USCIS aims to have InfoPass in all 33 USCIS Districts by early September 2004. It is now offered in 12 languages including: Arabic, Chinese, Creole, English, French, Korean, Polish, Portuguese, Spanish, Tagalog, Russian, and Vietnamese. USCIS plans to add additional languages in the future.

7.   PRESIDENT SIGNS ONE YEAR EXTENSION OF BIOMETRIC FOR VWP

On August 9, 2004, President Bush signed into law H.R. 4417 to extend by one year the requirement for Visa Waiver Program countries to include biometrics in passports. The law extends to October 26, 2005 the deadline by which new passports issued must be biometrically enabled. The extension was necessary to avoid potential disruption of international travel and provide the international community adequate time to develop viable programs for producing a more secure, biometrically enabled passport.

The United States recognizes the benefits of biometric identity verification and strives to remain at the forefront of international travel document security. By the end of 2005, all domestically produced U.S. passports will be biometric passports.

8.   WAL-MART IS SAID TO BE IN TALKS TO SETTLE ILLEGAL-IMMIGRANT CASE

Nine months after it was informed that it was the target of a grand jury investigation for its alleged use of illegal immigrants in its stores, Wal-Mart is now said to be in settlement talks with federal prosecutors, seeking to forestall an indictment.

In October of last year, 250 illegal immigrants were rounded up in 60 Wal-Mart stores in 21 states. Wal-Mart officials maintain that they were not aware that its janitorial contractors had hired illegal immigrants to clean its stores. Lawyers suing Wal-Mart claimed otherwise, saying that complaints about the treatment of illegal immigrant janitors had been filed with Wal-Mart even prior to the federal investigations. A Wal-Mart spokesman said that the company is cooperating with prosecutors. If found liable, Wal-Mart could face fines of up to $10,000 for each illegal immigrant hired.

9.   SENSING THE EYES OF BIG BROTHER, AND PUSHING BACK

On July 20, 2004, the City Council of Tumwater, Washington passed a resolution calling on city employees not to follow certain provisions of the Patriot Act claiming them to be in violation of the Constitution and basic civil liberties.

One such provision empowers authorities to search people’s homes without prior notice. Another grants the government authority to go through personal libraries, business, medical and other personal records.

The government is said to have used such provisions against several individuals, one an American citizen and another a Saudi graduate student, suspected of terrorist activities. They were later exonerated after the suspicions were found to be unsubstantiated, but not after their fundamental civil rights were allegedly compromised.

Back in Tumwater, the Councilman who drafted the resolution expressed hope that the resolution, coming from a small town, would remind people that “big laws like the Patriot Act affect people at the lowest level.”

10.   IMMIGRATION GROUP TO SUE STATE OVER LICENSE CRACKDOWN

A class action lawsuit against New York Governor George E. Pataki and Motor Vehicles Commissioner Raymond P. Martinez is set to be filed on behalf of all New Yorkers who have been denied a driver’s license or state ID for lack of a Social Security number or a valid visa. The lawsuit challenges New York’s policy that is projected to take away the driver’s licenses of hundreds of thousands of immigrants on the ground that it “usurps federal responsibility for immigration, oversteps state law on issuing licenses, and ignores due process.”

Under the policy, the Department of Motor Vehicles may deny or revoke the issuance of a license or an ID to an applicant who is unable to provide a social security number or an immigration document granting one year legal residence and expiring in no less than six months. Plaintiffs’ lawyers claim that New York State “has no expertise in enforcing immigration laws,” and “it makes no sense…for New York State to have undertaken this new policy…”

On the other hand, Commissioner Martinez vigorously defended the policy as a public security measure. He said New York was just one of many states tightening the rules for obtaining a driver’s license since 9/11. Notably, New York remains among a dozen states that by law do not limit driver’s licenses to legal residents.

11.   USCIS ANNOUNCES CHANGE IN PHOTO STANDARD

On August 2, 2004, USCIS announced a change in the photo requirements for all applicants from a three-quarter face position to a standard, full frontal face position. USCIS will accept both the three-quarter and full frontal photographs until September 1, 2004, after which only full frontal color will be accepted. Applications that were sent in with three-quarter standard before August 2 will not be affected by this change.

12.   STUDY CONFIRMS FOREIGN-BORN PROFESSIONALS AND STUDENTS ARE VITAL TO AMERICA’S ECONOMY

A recent study found that immigrant children account for an “astounding 60 percent of all top science students in the United States and 65 percent of all top math students in the United States.” The conclusion reached by groups and organizations is that foreign professionals and their families are key contributors to America’s economic success.

13.   USCIS ANNOUNCES EXTENSION OR CERTIFICATION DEADLINE FOR CERTAIN CANADIAN AND MEXICAN FOREIGN HEALTH CARE WORKERS

USCIS announced last month that certain foreign health care workers from Canada and Mexico have an extension of one year for foreign health care workers who were employed as TN non-immigrant health care workers before September 23, 2003 and held a valid license from a U.S. jurisdiction before September 23, 2003.

Last year, USCIS announced that, after July 26, 2004, foreign health care workers, other than physicians, who are subject to the foreign health care worker certification requirement, are inadmissible, and ineligible for an extension of status or change of status if already in the U.S., unless they present a certificate granted by an approved credentialing organization.

Although the one-year transition was sufficient for most foreign health care workers, Canadian and Mexican TN health care workers were found to need an extended transition period. Many Canadian and Mexican citizens working in the border regions regularly travel across their respective borders. Furthermore, the process of obtaining a certification is not an immediate one. USCIS, therefore, determined that the additional year would be sufficient and would ensure that there is no disruption to the regional health care system along the Canadian and Mexican borders.

14.   DETENTION OF BRITISH TRAVELERS BRINGS NEW POLICY

The Department of Homeland Security (“DHS”) is now changing its policy regarding the treatment of travelers from Britain and other countries that do not require a visa: Travelers who overextend their 90-day stay during a previous trip to U.S. will no longer be searched, handcuffed and detained should they return to the U.S. This decision will affect about 27 countries including Britain, Germany and Japan, who are allowed to visit the U.S. for 90 days without a visa.

Previously, travelers from these countries who had overstayed their 90-day visit and tried to return to the U.S., although neither criminals nor potential terrorists, were usually handcuffed and detained overnight and then sent on the first plane back home. One British citizen was detained and denied the opportunity to call his wife or lawyer, while another was placed in ankle cuffs. The DHS said that this new policy will allow officers to concentrate their efforts against potential terrorists while showing a welcoming attitude toward foreign visitors who mean the U.S. no harm.

15.   DIVERSITY VISA LOTTERY 2005 (DV-2005) RESULTS

The Kentucky Consular Center has registered and notified the winners of the DV-2005 diversity lottery. The diversity lottery makes available 50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States.

Applicants for the DV-2005 were selected at random from more than 9.5 million entries received during the 60-day application period that ran from November 1, 2003 to December 30, 2003. Only those who were selected for further processing were notified. The nations with the highest amount of lottery winners were Bangladesh (7,404), Nigeria (6,725), Ethiopia (6,060), and Morocco (5,298).

Natives of the following countries were ineligible to participate in DV-2005: Canada, China (main-land born, excluding Hong Kong, S.A.R., and Taiwan), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, the Philippines, Russia, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

16.   STUDY FINDS MOST BORDER OFFICERS FEEL SECURITY OUGHT TO BE BETTER

A survey was conducted from July 30 through August 7, for the unions representing 500 border agents and immigration inspectors, which found that 60 percent of Border Patrol agents and immigration officers felt that Department of Homeland Security (“DHS”) could do more to stop potential terrorists from entering the country, whereas, more than one third said they were not satisfied that the employees have the tools and training to do so. The survey also found that 53 percent felt that the country is safer now than before September 11, 2003, while 44 percent believed that the country is not safer or was less safe. Meanwhile, there were also some positive findings: 64 percent of the employees described themselves to be satisfied or somewhat satisfied with their workload and 59 percent of the employees said that they received the support they needed from their supervisors.

After the survey was reviewed by DHS, it was dismissed by officials who said it is biased and inaccurate because it provided a limited snapshot of the views of the department’s 42,000 employees. In the past six months, the officials explained that the department has turned away hundreds of criminals, travelers with fake documents, including fraudulent passports, and others were barred from entering the United States.

17.   ADJUSTMENT OF CONSULAR FEES

The Federal Register recently published a proposal to adjust the current consular fees. The Department of State has reviewed its current consular fees and compared them with a cost of services study. This review resulted in nine proposed fee changes on the Schedule of Fees for Consular Services, of which seven are increases and two are decreases of the existing fees. The most notable change would be an increase in the Diversity Visa Lottery surcharge for immigrant visa applications from $100 to $375. The adjusted fees would take effect on October 1, 2004.