MARCH 2004 NEWSLETTER

1. USCIS HAS ANNOUNCED H-1B CAP IS REACHED – New Procedures Advised

U.S. Citizenship and Immigration Services (USCIS) announced on February 17, 2004, that the H-1B cap has been reached.  As of February 18, 2004, the USCIS will not accept any new H-1B petitions subject to the cap. No new applications will be accepted until April and no additional visas will be issued until October 1, 2004, the start of Fiscal Year 2005.

USCIS has implemented the following procedures regarding cap cases for FY 2004 (October 1, 2003 – September 30, 2004): a) USCIS will process all H-1B petitions that are subject to the cap received by the end of business day of February 17, 2004, b) USCIS will return all H-1B petitions that are subject to the cap received after end of business day of February 17, 2004 with filing fees, c) H-1B petitions may be re-submitted when H-1B visas become available for FY 2005, which will be April 1, 2004 for an October 1, 2004 start date

Please note that the following H-1B petitions are not subject to the cap: a) Extension of existing H-1B petitions, b) Amendment of terms of employment for existing H-1B petitions, c) Change of employers for existing H-1B workers, d) Concurrent H-1B petitions for a second H-1B petition, d) Individuals who have already been counted against the cap during the previous six years (7th year extension based on American Competitiveness in the Twenty-First Century Act (AC-21))

There are special cap exempt new H-1B petitions, which are as follows: a) Petitioner is an institution of higher education, or a related or affiliated nonprofit entity, b) Petitioner is a nonprofit research organization or governmental research organization, c) Beneficiaries from Chile and Singapore – 6800 visas set aside under Free Trade Agreements until that number has been reached. Based on previous years, possible accommodations will likely be made for F-1 and J-1 nonimmigrants that have filed to change status to H-1B classification, though the details of this have yet to be seen.

According to the Federal Register, the Department of Homeland Security (DHS) will return petitions filed after February 17, 2004, adjudicate all petitions in the pipeline in the order they were received, and will not suspend premium processing.

2. U.S. PROPOSES FEE INCREASE

In early February, the Federal Register published a proposal by USCIS to increase the fees charged for processing immigration applications. The reason for this increase is due to the higher costs of processing these documents, the new procedures for national security efforts, plans for new programs and enhancements to other existing programs. In addition, the proposal includes a service fee of $70 for those who are required to have biometric processing in connection to an application or petition, and whose residence is in the U.S. The proposal also addresses the possibility of additional fee increases in the future

3. EXEMPTIONS FROM US-VISIT

According to a recent issue of the Federal Register, there are certain exemptions to the US-VISIT program, which is a program designed to track a foreign visitor's entry and exit with the U.S. through fingerprinting, photographing and other biometric identifiers. Certain individuals are exempt from US-VISIT if: a) It is determined that an exemption for the individual is in the "national interest," b) The individual is a member of the Permanent Observer Mission or Office to the United Nations who is granted a "B" visa or an immediate family member of such member who is granted a "B" visa for the purpose of accompanying the member, c) The individual is a nonimmigrant alien who qualifies for a Class A Referral under guidelines currently found at 9 FAM 302, App. K.

4. OUTCRY ON RIGHT WING OVER BUSH PLAN ON IMMIGRATION

President Bush's immigration plan continues to be a hot topic of debate within the Republican Party. Since the President's proposal in January, there has been rising opposition by Republican conservatives, particularly those vying for votes in House and Senate races in Illinois, North Carolina, California, and Kansas among others. The plan has left the party so divided that Republicans in Congress are now saying that it is unlikely that legislation supporting this plan will be introduced this year.

Some Republicans praise Bush for making it easier for businesses to employ workers who are willing to take on low-wage jobs that American workers are reluctant to accept. However, conservatives in the party are resistant to the proposal claiming that it is tantamount to an amnesty and will only encourage people to enter the country illegally.

With this plan, Mr. Bush hopes to revamp the immigration system while swaying Hispanic and swing voters. While some in the Hispanic community are in favor of the plan, again there is division as many Hispanic leaders criticize that the plan does not go far enough.

The President's immigration proposal, which he says is not an amnesty, will allow undocumented workers in the U.S. – approximately 8 million or more – to have temporary legal status for at least three years if they can show that they have jobs, and if their employers can prove that there are no American workers to be found for the jobs. The Bush administration claim that by legalizing millions of undocumented workers who are peaceful and hardworking, it will be easier for immigration officials to focus on foreigners who pose threats to national security. In addition, President Bush promises to enforce immigration policies and increase the number of people who can receive permanent residency status.

5. DOS ISSUES GUIDANCE ON PROCESSING MEXICAN TNs

The Department of State (DOS) has recently issued a cable on revisions to the processing of TN (NAFTA professional) visa for Mexicans. Mexican citizens can now apply for the visa directly at any US consulate. In addition, the procedure will be simplified in that the requirements for petitions and labor condition applications have been removed. Also, Mexicans will no longer be subjected to a numerical limitation for these professionals.

However, Mexican citizens are still required to get a visa in order to be admitted to the U.S. and must show proof of their citizenship. Furthermore, they must submit a visa application form along with a letter of employment in the U.S. The letter must indicate that the position in question in the U.S. requires a person in a professional capacity consistent with the requirements in the NAFTA Chapter. The professional must then present evidence that he/she possesses the credentials necessary to fill that position according the requirements in the NAFTA Chapter.

U.S. Consulates in Mexico have been slow to accept direct applications and are awaiting further instructions from Washington. However, Mexico City DF has recently indicated that they will begin processing Mexican TN's in accordance with a recent change in policy.

6. PERM REGULATION IS AT OMB

The final regulation for PERM, a new, more automated Labor Certification process, was sent to the Office of Management and Budget (OMB) on February 23, 2004. OMB has 90 days to review the final regulation either return it to DOL for further revisions or send it to the Federal Register for publication. The final PERM regulation will take effect 120 days after publication in the Federal Register.

7. DECLINE SEEN IN SCIENCE APPLICATIONS FROM OVERSEAS

In a recent survey done by the General Accounting Office, the investigative arm of Congress, the number of foreign students applying to graduate and doctoral programs in science in American universities is declining significantly. One of the major reasons for the decline is the wait of an average of 67 days for foreign scholars to receive a visa. In some cases, it may take up to a year to get a visa approved.

According to the General Accounting Office, the reason for this delay is that the nation's system for issuing visas for scholars who will be researching sensitive areas such as technology and science is very slow and cumbersome. For example, the F.B.I., the State Department, and the Department of Homeland Security are all involved in researching applicants for visas, yet they do not have data banks that work with each other. Furthermore, it takes the State Department approximately two weeks to inform the consular officials abroad that a visa has been approved.

Administration official said that they are taking steps to reduce the delays. After the September 11 attacks, it was found that the visa system was in disarray and Congress ordered an overhaul. As a result, the increased scrutiny of foreign students particularly from areas deemed to be a security risk, and the imposition of restrictions on students of science and technology that could be used in making weapons have caused these delays.  However, Asa Hutchinson, under secretary for border and transportation security at the DHS, said that the administration's goal was to "remain a welcoming nation to foreign scholars and not compromise security requirements."

8. SUPREME COURT TO HEAR TWO DEPORTATION CASES

On February 23, 2004, the Supreme Court agreed to review two immigration cases regarding when people can be deported after being convicted of crimes. The appeals brought by two immigrants, one from Somalia and one from Haiti, will be reviewed in fall; the immigrants will fight to stay in the United States.

Keyse Jama, from Somalia, will be arguing that the government should not be able deport immigrants if their native country has not agreed to take them back. Mr. Jama came to the U.S. in 1996 as a refugee and was convicted of assault three years later after he got into a fight with another Somalian. His lawyer claimed that sending Mr. Jama back to Somalia would endanger his client because Mr. Jama would have no travel documents or identification in a country ravaged by war with no central government.

The Bush administration claimed, however, that they had been sending about 200 aliens back to Somalia since 1997. A divided appeals court ruled for the Bush administration, saying that since Somalia has no central government, it would be impossible to get official consent for Jama's return.

The other case deals with whether immigrants are liable to face deportation after being convicted of a drunk driving accident. The Supreme Court will decide whether a DUI resulting in an injury can be considered a "crime of violence", which would then allow the government to start deportation proceedings. This case is an appeal from a Haitian, Jose Leocal, who was convicted in an accident in 2000, and was sentenced 2 years in prison for felony charges. His lawyer argued that Mr. Leocal has never been arrested in the 20 years that he has been in the country and he is currently being treated for substance abuse.

9. MINORS MUST APPEAR IN PERSON TO APPLY FOR U.S. PASSPORT

The Bureau of Consular Affairs has recently stated that they now require all minors to be present when applying for passports – regular, official, and diplomatic – even if the child had already been issued a passport previously. Furthermore, parents will also have to show documentation of parental relationship and consent. According to the Bureau, this will "help verify the identity of minor applicants and aid in the prevention of international child abduction and trafficking."

10. SUPREME COURT WILL HEAR 3rd DETAINEE CASE

On February 20, 2004, The Supreme Court agreed to review a ruling that was made in December by a federal appeals court, which stated that the President had exceeded his authority in detaining an American on American soil by declaring him an enemy combatant.  Jose Padilla was seized at O'Hare International Airport in Chicago in 2002 because he had plotted with Al Qaeda to detonate a radiological bomb in the United States. Since then, he has not been granted to have his case reviewed by a court.

This is the third detainee case that the Supreme Court will be reviewing in April. The other two cases will also touch on the issue of civil liberties in times of war. The first case will decide whether the President may detain an American, Mr. Yaser Esam Hamdi, who was captured in Afghanistan. A federal appeals court in Virginia ruled for the President in his detainment of Mr. Hamdi, an enemy combatant, emphasizing that President Bush was within his authority as a wartime president. The other case involves 650 detainees at the naval base at Guantanamo Bay, Cuba. The Supreme Court will hear oral arguments on whether these detainees are beyond the reach of American law. Two federal appeals courts had opposite rulings. The District of Columbia appeals court accepted the administration's argument that the base is outside the U.S. territory, and, therefore, beyond the extent of the Constitution. The federal appeals court in San Francisco, however, held that the base is under the control of the U.S. government and that the detainees have the right to have their case reviewed in court.

According to legal experts, the resolution of these three cases will have an important and long-term impact on how much power the executive branch will have during times of war and whether the president will be subject to any limitation in the Constitution for the detainment of American citizens.

11.  UNDOCUMENTED IMMIGRANTS: FACTS AND FIGURES

In response to the Bush administration's proposed plan to grant temporary status to undocumented workers, the Urban Institute Immigration Studies Program have accumulated the following facts and figures from various sources, particularly from "A Profile of Low-Wage Immigrant Workforce, "The Dispersal of Immigrants in the 1990s", and the March 2002 Current Population Survey: A) TOTAL NUMBER: There are approximately 9.3 undocumented immigrants in the U.S., representing 26 percent of the total foreign-born population. B) COUNTRIES OF ORIGIN: Of the total undocumented immigrants, Mexicans make up more than half – 57 percent, with 23 percent from other Latin American countries, 10 percent from Asia, 5 percent from Europe and Canada, and 5 percent from the rest of the world. C) DISTRIBUTION BY STATE: Almost two-thirds of the undocumented population lives in just six states: California (26 percent), Texas (12 percent), Florida (10 percent), New York (8 percent), Illinois (4 percent), and New Jersey (4 percent). However, the most rapid growth of undocumented workers since the mid-1990s has been outside these states. D) STATES WHERE THE UNDOCUMENTED REPRESENT HIGH SHARES OF THE IMMIGRANT POPULATION:  In the mid-1990's, certain states experienced a rapid growth of undocumented immigrants. High-growth regions are the Rocky Mountains, the Midwest, and the Southeast. The undocumented populations of Arizona, Georgia, and North Carolina may have already surpassed New Jersey's. E) NUMBER OF UNDOCUMENTED PERSONS IN THE LABOR FORCE: There are approximately 6 million undocumented workers in the country, representing about 5 percent of U.S. workers. Under the Bush administration's proposal, this group of undocumented workers is potentially eligible for temporary legal status.

12.  DHS BEGINS REPATRIATION OF HAITIAN MIGRANTS

On February 27, 2004, the U.S. Coast Guard began the repatriation of Haitian migrants which is being conducted in coordination with Haitian authorities. Approximately 530 migrants, who were rescued from 13 boats in the Windward Pass over the past several days, were turned over to the Haitian Coast Guards. U.S. Coast Guard officials said that they have picked up 695 Haitians this month alone.

Government officials say that they will continue to deport illegal immigrants and those caught at sea, adding that most of the Haitian refugees are fleeing poverty and not political repression. A spokesperson from the Department of Homeland Security said that those who presented a well-founded fear of persecution would not be sent back. At least three people who feared persecution in Haiti were sent to the American naval base in Guantanamo Bay, Cuba.

Advocates for immigrants and more than two dozen Democrats, however, criticize the Bush administration for abdicating its responsibility to Haitian refugees.  They said that the government is not giving the refugees fair access to the American asylum process. Furthermore, they also argued that the government should not send Haitians back to Haiti, which was deemed dangerous enough to evacuate non-essential U.S. personnel and deploy marines to guard the American embassy.

13.  USCIS ANNOUNCED H-2B CAP REACHED

On March 10, 2004, USCIS announced that the 66,000 cap for H-2Bs has been reached as of March 9. Petitions received after March 9, will thus be rejected except for those not subject to the cap.

14. CONSULAR UPDATES

Montreal is booked for the next 1.5 months, and all other posts in Canada only have dates available in April. Processing time required for all nonimmigrant visas are three (3) business days.  Calgary is the only post that can provide same day service (morning appointment—return same afternoon for visa). In addition, Mexico City D.F. has recently indicated that they will begin processing Mexican TN's in accordance with a recent change in policy.

15.  SOCIAL SECURITY CHECKS ON DRIVER'S LICENSES

The NYS Department of Motor Vehicles has threatened about 500,000 drivers to revoke their licenses.  The letters being sent require drivers to clear up discrepancies within 15 days, or else they will be faced with possible suspension. Thus far, the response rate is at 68%; 3.2 million records have been cleaned. However, about one third of the letters remain uncontested.  DMV intends to do such actions for the purpose of systematically correcting databases and to eliminate fraudulent cases; however, they do not aim to prosecute illegal immigrants.  People who will get caught in this process include women who changed their maiden name, those who failed to report their change of address, or parents who refuse to provide their children with child support.  Those who have produced fraudulent documents will be arrested and charged with a felony.

In most states, social security numbers were required due to the nation's 1996 welfare overhaul to improve child support enforcement.  Nonetheless, it only applied to those who held a valid social security number.  About six years ago, in order to obtain a license, undocumented aliens have presented their passport, birth certificate, proof of address, and supplied DMV with an invented social security number. At the start of 2002, D.M.V. began to require immigrants to present their foreign passport, as well as a valid unexpired visa.