LATE JUNE – EARLY JULY 2004 NEWSLETTER

1.   USCIS REMINDS APPLICANTS FOR ADJUSTMENT OF STATUS TO OBTAIN ADVANCE PAROLE BEFORE SUMMER TRAVEL ABROAD

U.S. Citizenship and Immigration Services (“USCIS”) reminds all applicants with pending applications for adjustment of status to that of lawful permanent resident or those seeking asylum, that they must obtain Advance Parole before traveling abroad. This procedure may take between 90 and 150 days unless there is an emergency.

Advance Parole gives the traveler permission to return to the U.S. after traveling abroad in order to continue their process for adjustment of status. If applicants do not obtain Advance Parole they may suffer severe consequences such as denial of their application. In certain cases a waiver may be available.

2.   108TH CONGRESS 2D SESSION H.R. 4415

On May 20, 2004, a bill was proposed entitled “Save American Jobs Through L Visa Reform Act 2004”. Under this bill, the period of authorized admission shall not exceed 7 years for nonimmigrants that were admitted under Section 101(a)(15)(L).

Also, beginning with the fiscal year 2005, the total number of aliens who may be issued visas or otherwise provided nonimmigrant status under Section 101(a)(15)(L) may not exceed 35,000.

In regard to the prevailing wage, the bill states that “employers of nonimmigrants described in section 101(a)(15)(L) of the Immigration and Nationality Act should pay such nonimmigrants wages that are least the greater of the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question; or the prevailing wage level for the occupational classification in the area of employment”.

3.   HOUSE IMMIGRATION SUBCOMMITTEE MARKS-UP CONRAD 30 EXTENSION BILL

The “Access to Rural Physicians Improvement Act of 2004” (H.R. 4453) has been approved by the House Subcommittee on Immigration, which was proposed by Representative Jerry Moran. The bill will now pass to the full House Judiciary Committee. This bill will extend Conrad 30 waivers for physicians serving in medically underserved areas by one year and will make sure that their status would be changed to H-1B without regard to the numerical cap.

4.   DOS ANNOUNCES SIGNING OF U.S.-CANADA COOPERATION AGREEMENT

On June 1, 2004, the U.S. and Canada signed the “Agreement for Cooperation in Science and Technology for Critical Infrastructure Protection and Border Security” which will allow both countries the access to exchange information, material, and equipment, including classifieds and utilize international science and technology.

5.   REGULATIONS FOR U.S. PASSPORTS

An interim final rule in the Federal Register (22 CFR Part 51) on the aspects of U.S. Passport validity has been published on March 26, 2004, by the Department of State (DOS). The following amendments are:

• U.S. Passports which are revoked, reported lost, or reported stolen are invalid.
• All passport applicants who are not eligible to apply by mail are required to appear in person.
• All minors under the age 14 must appear in person for passport applications unless such appearance has been specifically waived.
• All applicants for U.S. passports must provide photographs in accordance with passport application instructions.

6.   HOSPITALS NOT REQUIRED TO REPORT UNDOCUMENTED ALIENS

Republican Representative Dana Rohrabacher from California recently introduced a bill “Undocumented Alien Emergency Medical Assistant Amendments of 2004” which was recently defeated with a vote of 331 to 88 at the U.S. House of Representatives. This bill would have required hospitals and other healthcare providers to provide information the to the Department of Homeland Security (“DHS”) including patients’ financial data, employer identification, and biometric information; in order to be reimbursed for providing care to those individuals, making inability to pay medical expenses a basis for removal from the U.S.

7.   ENHANCED SECURITY FEATURES FOR THE EMPLOYMENT AUTHORIZATION DOCUMENT

U.S. Citizenship and Immigration Services (“USCIS”) announced that they are now issuing a new version of the Employment and Authorization Document (“EAD”), which has several new and enhanced security features designed to prevent fraud and counterfeiting. These security features include: a magnetic strip, a two-dimensional barcode, and several features that can be used in forensic examination to “determine the card’s authenticity”.

8.   I-130 DIRECT FILING PROCEDURE TIGHTENED IN INDIA

The Department of State (“DOS”) Liaison Committee has recently learned that the New Delhi Department of Homeland Security (“DHS”) sub-office is tightening its procedures for U.S. citizens who directly file their I-130 petitions in this office which handles such filings for all of India. Whereas the United States citizen would normally have been able to simply show an entry stamp they must now demonstrate 60 days presence in India prior to filing.

9.   GAPS SEEN IN ‘VIRTUAL BORDER’ SECURITY SYSTEM

Last month, the Department of Homeland Security (“DHS”) announced the awarding of a contract to extend the reach of US-VISIT to allow Customs Service to capture fingerprints and other profile information of millions of people who enter or leave the U.S. each year. Aside from fingerprints, identification would also be made through the capture of other biometric data such as photographs and voiceprints. The system, which is estimated to cost as much as $15 billion over 10 years, is intended to identify: would be terrorists entering the U.S., those who have overstayed, and those who have violated the terms of their admission.

Computer scientists and engineers, however, are critical of this multibillion-dollar computer system. In the past, government contracts for unproven technologies were frequently saddled with problems and led to big cost overruns. In addition to these concerns, experts also point out that this plan has drawbacks in that it is not designed to keep terrorists out, especially if these attackers are not yet known to the government. Computer scientists assert that more tests and small experiments should be conducted in order to increase the success of such a project.

10.   TECHNOLOGY STRAINS TO FIND MENACE IN THE CROWD

Since September 11, 2001, face-recognition technology that would identify suspected terrorists and criminals in a crowd had earned a bad reputation yet the technology’s performance is improving and business has been growing. Face-recognition systems, using cameras and computers to map someone’s facial features, collect data for storage in the databases or on a microchip on documents like passports. The International Civil Aviation Organization, a division of the United Nations, began laying down the groundwork for adding face-recognition technology and fingerprints in all visa applications in addition to passports. Making this technology work has required nearly perfect lighting and cooperative subjects, conditions that are not present when trying to spot suspected terrorists and criminals in a crowd.

11.   JUDGE ORDERS NAZI CAMP GUARD DEPORTED

On June 10, 2004, Judge Robert Owens ordered the deportation of an 80-year-old man who served in the SS at a Nazi concentration camp. Jakiw Palij, who denied committing any atrocities, told federal investigators that he was recruited from his Polish village and worked at the Trawniki forced-labor camp for two months in 1943. Later that year, approximately 600,000 people were shot to death, making it one of the largest massacres of the Holocaust.

Last year, when a federal judge found that Palij had helped persecute civilians and lied about his wartime service when he moved to the U.S. in 1949, he was stripped of his U.S. citizenship.

After a review of that decision, Judge Owens ordered that Palij be deported to Ukraine where his native village now stands. Palij has 30 days to appeal the decision before he is sent to Ukraine.

12.   CENSUS BUREAU SHOW LATINO AND ASIAN POPULATIONS SURGING

According to a report released by the Census Bureau the growth rate of Hispanics and Asians in America grew dramatically since 2000. The Hispanic and Asian population growth is approximately quadruple the rest of the nation’s, with Hispanics having the biggest increase.

Hispanics had a 13 percent increase from April 2000 compared to the national 3.3 percent. Nearly half of the 9.4 million American residents added since 2000 have been Hispanic. The Hispanic growth is due as much to second- and third- generation births, which is numbered at 867,000, as it is to the arrival of 662,000 immigrants.

On the other hand, the Asian growth is mostly due to immigration. The Asian population, which now totals to at least 11.9 million, had growth of a 12.6 percent and is the next largest percentage increase.

Officials say that 9/11 did nothing to staunch the flow of Hispanic and Asian immigrants. Immigration is the primary reason for the upsurge in these populations, despite the recession and 9/11 restrictions. Furthermore, this population growth is no longer just a New York or Los Angeles phenomenon. It is now the story of the whole United States.

13.   STATEMENT OF ADMINISTRATION POLICY H.R. 4417 DEADLINE EXTENSION FOR MACHINE-READABLE, TAMPER-RESISTANT ENTRY AND EXIT DOCUMENTS

The Administration supports the passage of H.R. 4417 which would extend the deadline for countries participating in Visa Waiver Programs (“VWP”) which issue machine readable, tamper-resistant entry and exit documents. Although the Administration requested a two-year extension through November 30, 2006, the bill only provides for a one-year extension to 2005. This additional time will give our global VWP partners to fully address the complex technological and privacy issues.

If the deadlines are not extended then the United States would be faced with serious disruptions to travel and tourism, which could possibly result in multi-billion dollar losses to the Nation’s economy.

14.   A LONGER WAIT FOR CITIZENSHIP AND THE BALLOT IN NEW YORK

In New York the backlog of pending citizenship applications exceeds 100,000, more than any other district in the country. The problem that arises is that the waiting list will most likely prevent a large number of would-be citizens from voting in this year’s election.

Most of the immigrants that are eligible to apply for citizenship are in highly concentrated states, such as: California, New York, Texas, Florida, New Jersey and Illinois. Yet, it shows that New York now has one of the nation’s longest backlogs of newcomers awaiting answers to their citizenship applications.

In West Palm Beach it takes 19 months to process the application, more than twice as long as the seven months in Seattle. In Detroit it takes more than two and a half times as long as they do in Phoenix. But the longest wait is in Cleveland: more than three years from application to oath of allegiance.

Both immigration advocates and government officials agree that the post-9/11 era has caused delays for citizenship due to centralized fingerprint and background checks, and the shift of immigration personnel into enforcement.

15.   USCIS BACKLOG ELIMINATION STRATEGY

U.S. Citizenship and Immigration Services (“USCIS”) is working on strategies and initiatives in order to tackle the backlog issue head-on. The backlog at the end of FY 2003 was 3.7 million cases and included all cases that exceeded their cycle time (six months). The goal is to eliminate the backlog during the next three years and ensure a six-month or less processing time by the end of 2006.

Some initiatives that will be focused upon are: electronic biometrics, online customer service (ex. E-Filing, Case Status Online) and a proposal to extend the validity period of EADs.

16.   CUSTOMS EYES PAKISTANI FLIERS

The Department of Homeland Security (“DHS”) recently issued an internal warning to Customs officials in a total of six airports, including JFK and Newark, to be on the lookout for Pakistani passengers who show signs of having been in terrorist training camps. Officials were instructed to observe Pakistani fliers for any indication of “rope burns, unusual bruises [and] scars” which would suggest training in paramilitary camp. Officials point out, however, that there is no evidence that a specific threat is imminent.

17.   EIGHTY-FOUR PERCENT OF NY CAB DRIVERS FOREIGN-BORN

A new study, based on the 2000 Census figures and Taxi and Limousine Commission licensing records, shows that the number of immigrant drivers of yellow cabs and livery taxis has been skyrocketing in New York over the last 20 years. New York leads the nation with 84% of cabbies who are foreign-born, Washington, DC with 62%, Chicago and Los Angeles with 59%, and 57% in San Francisco.

The largest portion of yellow cab and livery taxi drivers in New York come from the Dominican Republic, followed closely by Pakistan, India, Bangladesh and Haiti. Bangladeshis, however, have replaced Pakistanis as the largest percentage of newly licensed drivers.

According to Bruce Schaller, who conducted the study, these trends in the taxicab industry are closely related to the increased growth in the immigrant population. For example, the rise in new Bangladeshi drivers reflects the sharp increase in Bangladeshi immigration in the city. Furthermore, another trend that is beginning to show is the growth in the African population in the city. This corresponds with the fact that the number of drivers from Egypt, Morocco, Ghana and Nigeria has crept up over the last decade.

Mr. Schaller explains that the cab industry is appealing to immigrants because it is relatively easy to get into and offers those with limited English skills a chance to make a decent living, though they do have to pass an English exam to become drivers.

Taxicab drivers are the third-highest percentage of immigrants in occupations, behind tailors and farm laborers.

18.   RECENT SUPREME COURT DECISIONS

Rasul v. Bush

In Rasul v. Bush, No. 03-334, the Court held by a vote of 6 to 3 that the United States naval base in Guantanamo Bay is within the jurisdiction of the federal courts, which entitles citizens and non-citizens held in open-ended detention to challenge their designation as “enemy combatants before a federal judge” or “neutral decision maker.”

Hamdi v. Rumsfield

The Court ruled in Hamdi v. Rumsfield, No. 03-6696, that the two-year detention of a U.S. citizen, Yaser Esam Hamdi, was invalid for various reasons. According to the Court’s 8-to-1 ruling, Mr. Hamdi, who was picked up at a battlefield in Afghanistan, had a due process right to a “meaningful opportunity” to contest the factual basis for his detention. Furthermore, it was noted that Congress itself suspends the right to habeas corpus, the government must either try Mr. Hamdi for a crime with the normal protections accorded to a criminal defendant, or release him.

Rumsfield v. Padilla

In a 5-to-4 ruling for Rumsfield v. Padilla, the Court held that Jose Padilla, a U.S. citizen who was arrested at O’Hare International Airport and is now confined in a naval brig in Charleston, S.C., must file a new lawsuit in federal district court there. Mr. Padilla initially filed his lawsuit in New York where he was first detained, until the court held that the federal courts in New York lacked jurisdiction.

19.   HOUSE REFUSES TO CURB PATRIOT ACT

An effort to block a portion of the Patriot Act was recently defeated in a 210–210 vote, with a majority needed to win. Led by a coalition of Democrats and conservative Republicans, this measure intended to block a section of the law that lets the authorities obtain special court orders requiring book dealers, libraries and others to surrender records such as purchases and Internet sites visited on a library computer.

Critics of the Patriotic Act argued that it is still possible to obtain bookstore and other records by means of subpoenas and search warrants. However, these traditional investigative tools are more difficult to get from grand juries or courts than the orders issued under the Patriot Act, which do not require authorities to show probable cause. Still, critics say that this provision in the law undermines civil liberties and allows the government to snoop into the reading habits of innocent Americans.

20.   NEWS BRIEFS

A. H-1B Numbers – According to the latest available information, 16,000 H-1Bs have been used against the fiscal year beginning October 1st.

B. Cap Gap Policy – There is still no official policy regarding “cap gap” cases, e.g. person in F-1 status that expires before October 1st.

C. Visa Revalidation – The cut-off date for visa revalidation has been changed to July 16th but only for applications pending on that date if additional information has been requested.

D. EAD Changes – USCIS officials will soon be publishing a rule that will allow Employment Authorization Documents (“EADs”) to be valid for duration of processing dates at each district office or service center Currently, many service centers are taking up to 6 months to process EADS.

E. I-129s to Kentucky Consular Center – The Department of State has indicated that, as of July 6, 2004, USCIS has been sending approved I-129s to the Kentucky Consular Center (“KCC”) rather than to the consular post. The KCC will scan and transmit approved petitions electronically.

F. I-130 – USCIS is now processing Form I-130, Petition for Alien Relative, as a visa number becomes available.