MAY 2004 NEWSLETTER

1.   AILA’S STATEMENT ON THE SOLVE ACT

The American Immigration Lawyers Association (AILA) strongly urges senators and representatives to pass the SOLVE (Safe, Orderly Legal Visas and Enforcement) Act of 2004. This act will address the concerns of American families and businesses and enhance our national security.

The SOLVE Act will bring laws that make sense, make us feel safer and help families reunify. This act will provide undocumented people who have demonstrated their commitment to the U.S. by working hard, have paid taxes and have contributed to their community. They will also be given an opportunity to obtain permanent residence status.

Another program included is called “break the mold”; it will provide workers with legal status to work for employers who cannot find U.S. workers and where workers are thus needed. Such Act provides employers with the legal workforce they need in order to remain competitive. This program will also provide legal visas, family unit, full labor rights, labor mobility and a path to immigration by creating for the first time a workable, legal avenue to enter the U.S. and return as many times as they wish to their home countries, communities and families.

Also, a family reunification and backlog reduction will be included in this act, which will grant immediate relatives a permanent residency. The income test for the affidavit of support shall be reduced from 125% to 100% of the poverty level and the current 3 and 10 year bars to re-entry shall be repealed.

In terms of security measures, the SOLVE Act would require program participants to have machine-readable, tamper-resistant visas and documents with biometric identifiers for all programs. Background checks will be required before work permits and travel documents are issued, in addition, they would have to undergo criminal and national security checks.

2.   MEMORANDUM REGARDING NON-IMMIGRANT VISA EXTENSIONS

The USCIS Associate Director for Operations has issued a Memo on re-adjudications in order to guide USCIS examiners to not deny or challenge a previously approved petition or application. The Memo reestablishes that the USCIS has the authority to question prior determinations; however, it sets policy limits on when this questioning should occur. It is particularly addressed to situations without material changes in the underlying facts of the case.

Re-adjudication is a word used to describe the situation in an immigration matter where the prior approval of a petition or application is not granted deference and a subsequent examiner substitutes his or her judgment for the decision of the prior USCIS examiner. This arises in a variety of situations including H1B extensions. When requesting an extension of a previously approved H1B, despite that the extension includes the same job, same employer, and other similar or identical facts, it is nonetheless denied for a reason such as the position not qualifying as a “specialty” occupation even though the law has not changed in the interim.

USCIS does have the power to question its own prior decisions, and is not bound to a factual or legal determination simply because a previous examiner made a particular decision in the past. However, the Memo clarifies that USCIS examiners should not routinely question earlier decisions and re-adjudicate cases if there is no material change in the underlying facts. The Memo does not apply to certain types of cases where an approval is issued for the purpose of allowing an individual to carry out a business plan prospectively. These types of cases include L-1s for new offices and treaty investors. These individuals are given a limited period in which to establish businesses and meet regulatory criteria for any extensions. They must reach the stated or expected goals within the allotted time or their extension status will be denied.

The Memo does not limit an examiner’s ability to deny a request for an extension of status contained in the petition filing. It only addresses the extension of the validity of the petition. If the beneficiary is not eligible for an extension of status within the U.S. due to failure to maintain status or any other relevant factor then the petition itself can be approved but not the extension of the individual’s status. In that event, there will not be an I-94 form at the bottom of the approval notice and the individual will be directed to leave the United States and apply for a visa at the consulate or reenter the U.S. from foreign travel to return to legal status.

3.   A SHORTAGE OF SEASONAL WORKERS IS FEARED

As economists boast about jobs being taken away from Americans and given to employers overseas, business owners complain about the shortage of foreign temporary workers for this summer. Businesses will be in jeopardy if the H-2B cap is not lifted and many Americans that work for those companies will soon be unemployed. The employers are pressing for an immediate increase because the current limit of 66,000 has been reached.

Before foreign workers can come to the U.S., businesses need to show that they have made the effort in hiring local workers, for example, by placing ads in newspapers. When the Department of Labor agrees that the employer needs to look abroad for an employee the company must submit a request to the Department of Homeland Security. After the Department of Labor approves the application, the worker may apply for a visa at a United States consulate or an embassy overseas. The whole procedure, if put on a fast track, takes about 90 days, which costs the company at least $1,000 for each application. In general, businesses are not allowed to apply for foreign workers until 120 days before they will need them. Unfortunately this information was known too late because many of the visas that were available have gone to ski instructors, hockey players and other winter workers. Meanwhile, summer positions are stranded without employers such as: North Carolina crab processors, Virginia hoteliers and helicopter operators working for fire departments across the West. Other summer jobs include camp counselors, bellhops, casino and hotel workers.

Employers wrote panicking letters to Congress after the Department of Labor have announced that for the first time the 66,000 limit has been reached, six months before the end of the fiscal year of 2004, and the reasons for this are being disputed. Some critics say that Americans often are not willing to work at temporary positions that provide no benefits and typically last for only a few months. Others say that employers just want foreign workers for cheaper labor.

In recent weeks, at least three different plans have been proposed to Congress to relax the current H-2B restrictions. On March 29, 2004 Senator Edward M. Kennedy and Representative Bill Delahunt, both Democrats of Massachusetts, submitted the Save the Summer Act. It would immediately raise the cap of H-2B visas to 106, 000 for this year only. Critics say that this plan will not affect American workers in any way. The second plan was submitted by Senator Orrin Hatch, Republican of Utah, who introduced the Summer Operations and Services Relief and Reform Act, which would exclude from this year’s cap all foreign workers returning from the last two seasons. This would open visas for new workers. Sen. Hatch has explained that the fact that visa ceiling was reached was perhaps “a sign of out economy’s increasing vitality”. The third plan was introduced by Representative Bob Goodlatte, a Virginia Republican, who proposed that his plan would let employers who used H-2B workers last year receive the same number again this year, regardless of the overall cap.

4.   U.S. WANTS TO PLACE IMMIGRATION INSPECTORS AT FOREIGN AIRPORTS

The Customs Commissioner recently announced that the government would send teams of inspectors abroad to screen visitors who are coming into the United States by plane. Their purpose is to seek out potential terrorists that are coming into U.S. He stated “it’s far better to catch that person before thy board a commercial airliner with passengers on it heading for the United States, than after they arrive here.” This system will go into effect within the next six months.

The Warsaw International Airport was the first to ask to participate. Another location under consideration is Amsterdam’s Schiphol Airport. Other countries such as Canada, Britain and Australia already use inspectors at foreign airports. Customs Commissioner explained, “countries and airliners will appreciate the addition of U.S. inspectors to help identify security risks and immigration violators…it adds to overall security and it’s in the economic self-interest and benefit of the airlines that are flying to the United States”.

During September 11, 2001, 19 hijackers entered the U.S. 33 times before 9/11. Several were stopped by border inspectors at different times and referred for secondary screening but were still allowed to enter the country, even though two out of 19 were identified by the CIA as having terrorist connections. If this new system would have been done before, it could have prevented 9/11 from occurring. The difference between this system and the one that was done before is: before they were not looking for terrorists, instead they were looking for aliens who might overstay their visas, those might attempt to stay in the U.S. illegally, and those who might be smuggling drugs. Also, inspectors were not trained enough, but Customs Commissioner contended “Nearly everyday, we’re refusing entry to someone that we believe may well be associated with terrorism”.

5.   GREEN CARD BACKLOG INCREASES

More people than ever are faced with longer delays even though President Bush promised to slash backlog of applications for legal immigrants. President Bush guaranteed that the wait will be no longer than six months. However, green card applications that have taken 14 months in 2001 will now take on average 33 months.

Those that are awaiting replacements for their green cards have increased to 60 percent or 6.2 million applications. Cases that have been around for more than 6 months have grown by 89 percent since 2000, from 1.8 million to 3.4 million.

Some immigrant advocacy groups blame the Bureau of Citizenship and Immigration Services (BCIS) for their lack of insufficient funds and their lack of personnel. However, the Bush administration explains that the reason for the increased backlog is because of the heightened security since September 11, 2001. The U.S. Citizenship and Immigration Services, a branch of the Department of Homeland Security, are still being optimistic that the agency will send Congress a backlog elimination plan to meet Bush’s six-month goal in 2006.

6.   BALDACCI ORDER BARS QUESTIONS BY STATE ON IMMIGRATION STATUS

On April 9, 2004, Maine’s Governor John Baldacci signed an executive order to prohibit people who work in public services from asking another person’s immigration status. This policy sends a strong message to all people that the state is a welcoming place and its services are open to all who are in need. Several officials have said, “Issues of ethnicity, religion, gender or sexual orientation cannot influence decisions regarding services, particularly in the areas of public health and safety.” The only time that the public service officials can ask a person’s immigration status is when there is a court order or when federal law obligates them when that person is charged for illegal activity.

The reason that this policy is being adopted is because of the incident that has occurred recently in Portland. An investigation was being conducted in Portland by federal immigration and border patrol agents. Residents were meeting to discuss the current issues in their communities; but these community meetings have lacked the participation of the undocumented immigrant residents. Such individuals were afraid to leave their homes and even send their children to school. This new policy hopes to connect with minorities and the issues that affect them. However, some critics explain that this policy makes no sense because it only opens the door for illegal aliens and will damage the ability to enforce immigration and customs laws. Nonetheless, this policy does in fact encourage agencies to better address issues of diversity.

7.   INFO-PASS – IMMIGRATION INFORMATION BY APPOINTMENT

Info-Pass is a Web-based system that enables the public to go online to schedule appointments with immigration information officers at select USCIS offices, specifically only at Dallas TX, Los Angeles CA, and Miami FL. This system offers a convenient alternative to waiting in line for assistance. It is a secure internet site and its only purpose is to schedule appointments with USCIS information officers. In order to access Info-Pass, simply use a computer with a browser and Internet access and go to www.uscis.gov. The Info-Pass home page will ask for the preferred language (English or Spanish), and then will request information such as zip code, name, birth date, phone number, desired appointment type, date and time. Info-Pass will generate a electronic appointment notice and the appointments are available in two week blocks. What must be brought to the appointment is the printout of the electronic appointment notice, personal identification (passport, I-94, work authorization card, etc.), forms, receipts, or translations and original documents that is related to the purpose of your visit. Cancellation or rescheduling can be done on the website using the identification numbers located at the bottom of the electronic appointment notice.

8.   USCIS CUSTOMER SERVICE AND STATUS CHECKS

USCIS has recently expanded the Case Status Online System. It now offers customers the ability to build a portfolio of up to 100 cases (application receipt notices) and check those cases online at all times. This expansion will help individuals, employers, immigration attorneys, and community based organizations to better monitor the status of cases for their employees or clients. Customers may choose to have USCIS automatically send an e-mail informing them of any status change for a pending case. These services are offered in English and Spanish. Customers or authorized representatives can access Case Status Online by establishing a user ID and password, and logging into a secure area online to create their portfolio cases.

9.   CONSULAR UPDATE

Due to Chinese government action which resulted in closure of the visa information and appointment call center, consular posts in China are unable to schedule appointments for visa interviews. We advise that visa applicants refer to each post’s website, for updated information.

10.   VISA WAIVER UPDATE

In a recent debate about adding more European Countries to the Visa Waiver Program, the spokesman from the Bureau of Public Affairs discussed statutes required for countries to be part of the current Visa Waiver Program. Such statutes include countries that have: a nonimmigrant visa applicant refusal rate less than 3%, machine readable passport program, adequate safeguards against fraudulent passports, stable conditions that will not change, effective border controls, and law enforcement that has significant cooperation with U.S. counterparts. Such issue is raised as European countries such as Greece, now desire to participate.