Late FEBRUARY – Early MARCH 2005

IMPORTANT H-1B VISA UPDATE

The U.S. Citizenship & Immigration Service (USCIS) recently announced that the additional 20,000 visas, provided under the Omnibus Appropriations Act for Fiscal Year 2005, will be made available to all qualified H-1B non-immigrant aliens for FY 2005 and not limited only to those holding a master's degree or higher from a U.S. institution of higher learning as was originally understood. USCIS is currently preparing regulations to implement the Omnibus Appropriations Act for Fiscal Year 2005 and advises employers not to file H-1B petitions for workers who may benefit from these provisions until USCIS publishes its rule. USCIS will reject any new H-1B petition that is received prior to the filing date set forth in the regulations.

BRIEF SUMMARY OF REAL ID ACT PROVISIONS

Representative Sensenbrenner's proposed legislation, H.R. 418, more commonly known as REAL ID Act, has been criticized for being anti-asylum, anti-immigrant, and anti-civil liberties. Some of its pertinent provisions are: (a) Restrictions on Asylum - this provision would deny asylum to applicants who cannot prove the central motive of their persecutor, who cannot produce corroborating evidence of their account, who provide inconsistent testimony on minor facts, or whose demeanor is inconsistent with an immigration judge's preconceived expectations; (b) Waiver of Laws Related to Border Fences - this provision would provide the Secretary of Homeland Security unfettered discretion and authority to waive all laws deemed necessary to expedite construction of security fences and barriers in the Mexico and Canada borders; (c) Expansion of Grounds of Inadmissibility and Removal - this provision would permit the deportation of non-citizens who are member of or support any political organization that has used or threatened to use, violence, even if the organization has not been designated as a "foreign terrorist organization"; (d) Restriction on Habeas Review and elimination of Temporary Stays - this provision would restrict all judicial review for individuals with legitimate challenges to their orders of detention or deportation and would effectively eliminate the power of federal court to temporarily stay a removal order while appeal of the order is pending before the court; (e) Expansion of Bails Bondsmen's Authority - this provision would provide unprecedented authority to bail bondsmen to pursue, apprehend, detain and surrender immigrants in removal proceedings and set the minimum bond amount to 10,000; (f) Improved Security for DriverÕs Licenses and ID Cards - this provision would restrict immigrant's access to driver's licenses and state issued ID cards.

NYS DEPARTMENT OF LABOR BACKLOG CASES

New York State Department of Labor (NYS-DOL) has further reduced its staff to 10. According to reports, 600 boxes of pending labor certification applications were shipped to the Philadelphia Backlog Center in early January 2005. New York has the biggest volume of unprocessed labor certifications turned-over to the Philadelphia Backlog Center. Backlog centers have started sending out Notification Letters to sponsoring entities to confirm whether they are still interested in continuing the processing of their application. Sponsors are given 45 days from the date of the letter to reply.

NYC IMMIGRATION

A recent report by the City Planning Department found that there are an estimated 3.2 million immigrants in New York - 36% of the population. If their offspring are included, the percentage rises to 55%. Immigrants make up 43% of New York's workforce.

The report emphasizes the economic beliefs that new immigrant population brings to the city. Immigrants, the report indicates, replace residents who have died or moved out, fill housing vacancies, and revitalize small business.

ALBANY TRIES TO RESTORE LIMITS ON LICENSES FOR IMMIGRANTS

Acting Justice of New York State Supreme Court Karen S. Smith recently issued a Temporary Restraining Order (TRO) halting Department of Motor Vehicles (DMV) to crackdown on giving driver's licenses to non-citizens by requiring them to provide satisfactory immigration documents before they could renew their driver's licenses. The DMV, however, filed a notice of appeal of this order, which state officials claim automatically cancels the TRO. On the other hand, lawyers who filed the class-action lawsuit on behalf of immigrants contend that the judge's restraining order remains in effect.

As a practical matter, however, Judge Smith's order may never have been put into practice, according to several immigrants and their advocates, who said the DMV continued to require all the identity documents, despite the RO. Some immigrants who rushed to renew expired licenses before the state's notice of appeal was filed, said their licenses were confiscated instead. Others were sent from one government office to another, searching for documents.

New York allows people without Social Security number, including illegal immigrants, to obtain licenses if they have a letter from the Social Security Administration saying they are ineligible for number. DMV employees, however, insist that proper immigration documents be presented anyway. For this reason, immigration advocates at the St. Francis Immigration Center urged non-citizens to stay away from DMV offices until its commission, Mr. Raymond P. Martinez, signs an order of compliance with the judge's TRO.

On a similar note, individuals seeking to renew their driver's licenses in Virginia are sometimes turned over or referred to USCIS.

NEWS ROUND UP

There have been several reports of undocumented aliens being turned over to USCIS after going to Department of Motor Vehicles (DMV) to renew expired driver's licenses. In one case, an alien with a deportation order was turned over to the CIS and placed under detention after he went to the New Jersey DMV to renew his license. According to reports, the same procedure of reporting illegal aliens to CIS has been adopted by the New York DMV in Queens.

STILL FEWER FOREIGNERS APPLYING TO AMERICAN GRADUATE SCHOOLS

According to a survey conducted by the Council of Graduate Schools, international interest in studying in American graduate schools continued to decline for the second straight year. This decline may be attributed to visa delays and growing competition from foreign universities.

Applications to graduate programs in the US for the coming school year were down 5%, compared with a 28% decline in applications last year. Universities argue that the trend is a threat to America's research standing as they depend heavily on foreign graduate students for teaching and research - particularly in engineering and science.

American universities enroll about 215,000 foreign graduate students, compared with about 350,000 foreign undergraduates. Applications from China and India, two of the largest countries providing students, are down 13% and 9%, respectively. Those students are increasingly being lured by stronger domestic programs or by universities in Europe and Australia that are aggressively recruiting.

DEPORTATION CASE FOCUSES ON DEFINITION OF TORTURE

Napoleon Bonaparte Auguste, a Queens man with a cocaine conviction who is facing deportation to Haiti, is arguing that the Bush administration's narrowed definition of torture could wrongly lead to his deportation. In 2002, as part of its anti-terrorism efforts, the Bush administration sharply narrowed the definition of torture in connection with the methods used in interrogating prisoners, requiring "specific intent" to inflict severe pain and not merely the infliction of severe pain. Mr. Auguste argues that in upholding his deportation, a three-judge panel of the court wrongly bowed to this narrow definition.

Under Haitian policy, deportees with a criminal record are placed in indefinite preventive detention, without food, water or toilets, in cells so crowded they cannot lie down; prisoners are subjected to police beatings, and burned with cigarettes, choked, hooded and given electric shocks. Nevertheless, the Third Circuit panel ruled that indefinite detention in Haiti did not constitute torture because Haitian officials intended the detention to prevent crime, not specifically to inflict severe pain and suffering amounting to torture.

Anti-torture laws bar the U.S. from handing over people, even criminals, to countries where they are likely to experience torture.

NEW FORM I-129

The USCIS has recently issued a new version of Form I-129 for petitions for non-immigrant workers (i.e. H-1B, O, P, etc.). It announced that petitioners can file petitions using either the new Form I-129 or the old Form I-129 and I-129W through April 30, 2005.

However, if the old Form I-129 and I-129W are used, petitioners must provide such information as current number of employees; beneficiary's highest level of education, whether this education was received in the U.S., and if the name and location of U.S. Institution of Higher Education.

Beginning May 1, 2005, all H-1B petitions must use the new Form I-129.

UPDATE ON BACKLOG REDUCTION CENTERS

As of March 3, 2005, the Department of Labor reported that over 180,000 applications have been shipped from the State Workforce Agencies (SWA) to the Backlog Reduction Centers (BRC). Data from 86,000 applications have been inputted into the new database system and 40,000 45-day letters have been mailed out. Through February 2005, there have been 300 withdrawals filed.

DOL projects that it will take 24 to 30 months for the backlog reduction process to be completed. They hope to finish data entry on all cases by the end of summer 2005. After data entry is completed on all cases, workers will begin processing each case.

DOL is working on getting information on their website about which cases hve been shippped. They are also working on e-mail capability to enable a party to find out whether a case is located at the BRC.