FEBRUARY 2004 NEWSLETTER

1.   H-1B CAP UPDATE

U. S. Citizenship and Immigration Services (USCIS) has announced that based on first quarter tabulations, 43,500 H-1B cap-subject cases have either been approved or are pending for adjudication.  This total number includes cases approved by Premium Processing through early January 2004. The cap on H-1B visas reverted to 65,000 for FY 2004, which began on October 1, 2003, which includes 6800 visas set aside for Chile and Singapore, under Free Trade Agreements that took effect this year, which leaves 58,200 visas for the standard H-1B category.

Some believe that H-1B numbers will be running out at the end of February.  Once H-1B numbers run out, beneficiaries will not be able to start employment until October 1, 2004-the start of the new fiscal year. It is unlikely that the cap will be raised by Congress this year.

Once USCIS believes it has sufficient cases approved or in the adjudication pipeline to reach the H-1B cap limit, it will publish a notice in the Federal Register announcing that new cap-subject cases for that fiscal year will no longer be accepted.  Cases that are already received but not adjudicated on the date that the Federal Register announces that sufficient cases have been approved or received to reach the cap, will continue to be adjudicated until the cap is actually reached. At some point, a further notice will be published in the Federal Register to announce the cap has been met and that any petitions that remain unadjudicated will be processed with an October 1, 2004 start date, which will signify the start of FY 2005. 

Please note that not all H-1B petitions count against the cap, including amended petitions and extensions, whether for an existing or a new employer.  Petitions filed in concurrent employment are also exempt. Also, an individual who has already been counted against the cap during the previous six years is exempt (7th year extension based on American Competitiveness in the Twenty-First Century Act (AC-21)).

2.   IMMIGRATION REFORM BY HAGEL AND DASCHLE

Senators Chuck Hagel (R-NE) and Tom Daschle (D-SD) recently introduced the bill “The Immigration Reform Act of 2004: Strengthening America’s National Security, Economy, and Families.” It aims to strengthen national security, improve economic stability, and reunite families.

The bill intends to strengthen national security by identifying illegal immigrants who reside outside the U.S. and also track foreign workers in the U.S. The bill would require immigrants to undergo criminal and national security background checks prior to authorization. Participants in the bill’s worker programs would be required to maintain counterfeit resistant authorization cards issued by the Department of Homeland Security. All individuals who continue to break immigration laws would be barred from these programs.

The proposed bill will also provide funding to the Department of Homeland Security in order to increase national security. It will also fund criminal and complete background checks on visa applicants.

In addition, in order to maintain economic stability, the bill will provide foreign workers with jobs that would otherwise go unfilled.  The bill will therefore admit a limited number of workers through a Willing Worker Program. Employers who intend to hire foreign workers must demonstrate that there are no qualified U.S. workers for the position, but that they will provide the same wage level, cited amount of time and will be permitted to change employers; visa renewals will be available.

The bill will increase the number of visas available for those who have not violated laws and are waiting to be with their family members who reside in the U.S. The bill would therefore reduce the existing backlog of applications for family sponsored visas to ensure that immigrants will be allowed to reunite with their family members.

The proposed bill will also provide undocumented workers and families currently living in the U.S. the opportunity to become invested stake holders in this country if they can demonstrate that they have met all of the following requirements: passed national security and criminal background checks, resided in the U.S. for at least five years preceding the date of introduction of the bill, worked for a minimum of four years in the U.S., paid all federal taxes, demonstrated knowledge of English language and American civics requirements, and paid a $1,000 fine, in addition to the required fees.

3.   PRESIDENT’S PROPOSED PLAN

On January 7, 2004, President Bush proposed a plan that would help millions of illegal immigrants working in the United States. His proposal of a “temporary worker program” will allow foreign workers to come to the United States for specific jobs with specific employers. Undocumented men and women who are now employed in the United States can also take advantage of the program, provided that no American workers could be found to fill the jobs.  The legal status granted by this program will last three years and will be renewable – but will have an end.  Those who do not remain employed, do not follow the rules of the program, or break the law will not be eligible for the continued participation and will be required to return to their home country.  Undocumented workers will be required to pay a one-time fee to register for the temporary worker program. Participants who will be issued temporary worker card will be allowed to travel to their home country and return to the United States without the fear of being denied to reenter into the country.

In addition, those who decide to pursue American citizenship will have to apply in the same way as those who have followed legal procedures from the start. However, many in Congress may have expressed opposition to this proposal.

4.   OPPOSITION TOWARDS BUSH PROPOSAL

According to the President’s recent immigration plan, he wants employers, either from abroad or from among those already working illegally in this country, to hire immigrant workers for positions that no Americans will take. The workers whom obtain new visas would have them for a limited amount of years.  Under the proposal, which has yet to be drafted in legislative form, an estimated eight million undocumented immigrants in the United States would be eligible for temporary legal status. How many workers would be allowed into the program and what would happen to them when the visas expire are some of the many unanswered questions in this proposal.  Therefore, the president’s proposal is nebulous in the extreme, with important details left to either still be determined or up to Congress.

Despite the lack of details, the president’s guidelines clearly do not constitute a sweeping amnesty. It is a long way from that; in fact, due to the lack of clarity in the plan, there is reason to worry that if participants in this guest program have no hope of eventually qualifying for permanent legal residence, they may well slip back into the dark when the visas come to an end.

It seems that, despite whether the proposal may become a success, Democrats do not wish to permit Bush to have a victory in the election year; moreover, there is also significant opposition from conservative Republicans. Many liberal Democrats say the plan does not go far enough in helping immigrants attain U.S. citizenship. A former Democrat governor claimed that it simply aims to aid big corporations who currently employ undocumented workers.  And many conservative Republicans say it goes too far in rewarding foreigners who broke the law to enter the country.  However, perhaps if the president clarifies his immigration proposal, he will be able to attain some sort of support, whether through a political party or interest group.  Hence, it is anticipated that other legislators will offer similar proposals in the months to come.

5.   US-VISIT SYSTEM LAUNCHED

On January 5, 2004, the United States Department of Homeland Security (DHS) launched its U.S. Visitor and Immigration Status Indication Technology (US-VISIT) system, a “check-in/check-out” mechanism that will record the entry and exit of all nonimmigrant visa holders (e.g. H, L, O, F, J, etc.), scan each visitor’s fingerprints and photographs against national security and law enforcement databases, and maintain each visitor’s travel history. In conjunction with US-VISIT, all U.S. Consular posts abroad will be required to issue biometric visas by October 26, 2004.  This involves two (2) digital index fingerprints and a photo that will be taken of all visa applicants.  Their information will then be checked against the Automated Biometric Identification System (IDENT) database.

6.   ITIN APPLICATION REVISIONS

The Internal Revenue Service recently announced several steps to restrict the issuance of Individual Taxpayer Identification Numbers (ITINs). The IRS wants to ensure that ITINs are being used for their intended tax administration purpose only, which is federal tax reporting. These changes are important in the immigration context because many who cannot get a Social Security Number, such as foreign nationals and certain non-resident aliens, depend on ITINs for various financial matters, like opening up a bank account, purchasing property and more. ITINs are issued regardless of immigra-tion status because both resident and nonresident aliens may have US tax return and payment responsibilities under the Internal Revenue Code.

Effective immediately, each ITIN applicant must now: apply using the revised Form W-7, Application for IRS Individual Taxpayer Identification Number; and attach a federal income tax return to the Form W-7.  In addition, the applicant must provide proof of identity and foreign status by presenting pertinent documents.

IRS issues ITINs to help individuals comply with the US tax laws, and to provide a means to efficiently process and account for tax returns and payment for those not eligible for Social Security Numbers. By law, however, an individual cannot have both an ITIN and an SSN.

7.   FEAR AND TIGHT SCREENING STEM GREEN CARD LOTTERY

As the December 30th deadline passed last year for the annual green card lottery with 55,000 green cards at stake, there was a huge decline in the number of applications, falling to 5 million from approximately 13 million. Everyone agrees that a major reason for this decline was the fact that, for the first time, applications are only being accepted by computer, which has limited fraud and duplicate applications according to government officials.

So far, according to a State Department Spokesman, with the new electronic process, the flow of applications still follows past patterns, with Bangladesh, Nigeria, and Ethiopia in the lead, and more than 170 countries represented. But the estimate of 5 million applicants at the end of December is much lower than the 10 million applications received last year.

The lottery is open to people whose countries have sent fewer than 50,000 people to the United States in the past five years. From the millions of applications, the State Department randomly chooses about 110,000 “winners” and sends them an invitation to proceed to the nearest consulate to apply for a visa. About half do not complete the process in time or are disqualified. The diversity visas are processed on a first-come, first-serve basis.

8.   FEDERAL JUDGE RULES PART OF THE PATRIOT ACT UNCONSTITUTIONAL

On January 23, 2004, a federal judge declared that a part of the Patriot Act, which banned giving expert advice or assistance to groups that are designated as non-U.S. terrorist organizations, unconstitutional. This is the first court decision that declares a part of the post-9/11 anti-terrorism statute unconstitutional. U.S. District Judge Audrey Collins stated that the ban was vague and in violation of the First and Fifth Amendments.
The lawsuit arose in response to threats received by five groups and two U.S. citizens who sought to provide support for lawful, nonviolent activities on behalf of Kurdish refugees in Turkey. The Humanitarian Law Project, who brought the lawsuit, said that the plaintiffs were threatened with 15 years in prison if they continued to advise groups seeking a peaceful resolution of the Kurds’ campaign for independence in Turkey.
Judge Collins declared that the USA Patriot Act did not distinguish the type of expert advice or assistance to be banned, but instead placed these limitations regardless of whether the advice was directed towards violence or peaceful, non-violent means of achieving a goal.

9.   JUSTICES REFUSE TO REVIEW CASE ON SECRECY AND 9/11 DETENTIONS

On January 12, 2004, the Supreme Court declined to review a case concerning the government’s refusal to disclose any information about foreigners who were detained after the September 11, 2001 terrorist attacks. The Supreme Court upheld a ruling made by the Federal Appeals Court last June, which stated that the Justice Department was within its rights to withhold the names of more than 700 people, most of them Arabs or Muslim, who were detained in connection with immigration violations after 9/11.

The case, Center for National Security Studies v. Justice Department, 03-472, was an effort by civil liberties groups to compel the Justice Department to release the names of foreigners held on immigration charges after 9/11. According to these civil liberties groups, the Justice Department is required to do so under the Freedom of Information Act. However, the government countered that in certain cases they are entitled to an exemption from this law, especially in recent matters of national security when disclosing too much may give Al Qaeda a window into law enforcement.

Although this was a significant victory for the Bush administration, there is still a continuing debate about the right of the public to know the details of how its government operates versus the government’s need to keep some information secret in order to protect national security.

10.  JUSTICES TO RULE ON HOLDING ILLEGAL IMMIGRANTS

On January 16, 2004, the Supreme Court agreed to review a case in which they would decide whether foreigners who were not legally admitted into the United States may be held indefinitely while immigration officials arrange their deportation.

Solicitor General Theodore B. Olsen told the Court that there were more than 1000 immigrants who were never lawfully admitted, were found to be deportable, and had remained in detention for more than six months. Most are Cubans who arrived in the 1980 Mariel boatlift and whose return Cuba has refused to accept.

The case that the Supreme Court has accepted, Benitez v. Mata, No. 03-7434, is an appeal filed on behalf of Mr. Daniel Benitez, one of the Mariel Cubans who were formally denied entry at the time and given temporary parole, not legal resident status. Mr. Benitez compiled a criminal record which made him ineligible for lawful permanent residency, and he was detained in October 2001.

With his detention approaching six months, Mr. Benitez filed a habeas corpus petition in which he argued that he was entitled to release under the Zadvydas ruling. However, both the Federal District Court in Panama City, Fla., and the United States Court of Appeals for the 11th circuit, in Atlanta, held that the ruling only applied to “resident aliens.” Lawyers for Mr. Benitez countered that the Zadvydas case did not specify whether the ruling applied only to resident aliens or “excludable” ones such as Mr. Benitez. Mr. Benitez’s lawyers claim that the Zadvydas decision should not interpreted one way for resident aliens and another way for non-admitted aliens.

11.  IMMIGRATION NEWS BRIEFINGS

USCIS Proposed Fee Schedule Increase: Rule proposes to increase application fees by about $55 per application, and increase the biometric fee to $70.

Democratic House Finds need for Principles for Immigration Policy: On 1/28/04, Democrats issued a set of principles to be incorporated into immigration policies. Such principles are: family reunification, earned access to legalization immigrant student adjustment, border safety and protection, enhanced   temporary worker program, civil liberties, and fairness for immigrants and legal residents.

AILF Statistics on Policy for Guest Workers: According to recent polls, Hispanics have shown divided sentiments towards the President’s Guest worker proposal. AILF argues that a temporary program is an unlikely fit for undocumented immigrants who lived and worked in the U.S. for many years.

12.  NON-CRIMINAL DATA TO BE INCLUDED IN NCIC

Over eighty thousand law enforcement agencies use the main criminal fugitive database, National Crime Information Center.  Due to the September 11 2001 terrorist attacks, the database has presently expanded to include over 140,000 non-criminal deported undocumented aliens, in addition to those who have committed and presently commit immigration related violations.  Such act has induced a lawsuit, National Council of La Raza (NCLR) v. Ashcroft, to emerge alleging that the government is improperly using the NCIC database.

The NCLR claims that the database is an effort to facilitate local police to make federal immigration arrests; previously, Congress has barred the police from making such arrests. They also claim that local police are not trained in immigration law and may therefore make unlawful arrests.  The case is still pending in court, and being handled by Magistrate Judge A. Simon Chrein.

13.  PROPOSAL OF NEW REQUIREMENT FOR F-1 STUDENTS APPLYING FOR SSN

On December 16, 2003, the Social Security Administration has proposed to add evidentiary requirements to provide proof of age, identity, immigration status, and work authorization.  In addition, under the proposed rule, F-1 students would be required to present evidence that employment has been secured before the administration will assign social security numbers.

14.  SEVIS 4.8 SYSTEM RELEASED

As of December 31, 2003, SEVIS Release 4.8 System has been available in view of DHS’ anticipated changes.  Among the amendments, modifications include: sending all data changes (not simply status changes) to the Dept. of State’s Bureau of Consular Affairs, process updates received on benefit requests even if a previous adjudication result has been received and recorded, and users will be able to view saved school certification updates filed on petitions for Approval of School Attendance by Nonimmigrant Students, as well as those updates whom are awaiting adjudication.

15.    MEXICAN TNs

Since January 1, 2004, Mexican TN applicants will be able to apply for the TN visas at the U.S. Consulate.  TN Mexican applicants will no longer need to submit the nonimmigrant application to CIS.

16.  BIOMETRIC REQUIREMENT AT CONSULATES

As required by the U.S. Patriot Act, all consular posts will implement the new biometric requirements by October 26, 2004. The biometric includes two digital index finger prints and digital photo, which are checked and recorded through the biometric database. Interview delays are expected.