LATE NOVEMBER – EARLY DECEMBER 2004

1.   CONGRESS MAKES WAY FOR HI-TECH WORKERS

Congress has passed a law exempting from the annual H-1B visa cap 20,000 foreign students with a Master’s or higher degree from a U.S. institution of higher learning. This was in response to complaints made by businesses, such as Microsoft, Texas Instruments, Hewlett Packard and Motorola, that they would lose talented university graduates and potential employees to competitors overseas.

Businesses are limited to hiring no more than 65,000 workers annually through the current H-1B visa program. For the current fiscal year beginning October 1, 2004, that ceiling was reached in one day.

Dan Kane, a spokesman for the USCIS, said the exemptions for foreign students will be applicable this year. The USCIS will release details on how employers can apply for visas made available after President Bush signs the bill into law which is expected shortly.

Congress, however, doubled the H-1B visa application fees from $1,000 to $2000 ($500 of which is designated as a fraud fee). Small businesses with fewer than 25 employees pay application fees totaling $1,250.00 for each application.

On a separate issue, Congress tightened the rules for using L-1 visas, which allow companies to transfer employees from overseas offices to U.S. offices, while paying the employees their home country wages. This is to curb abuse of the L-1 visa program.

2.   LABOR CERTIFICATION UPDATE: STATE WORKFORCE AGENCY FOREIGN LABOR CERTIFICATION FY 2005 TRANSITION GUIDANCE

At present, the PERM Regulation has been drafted and is awaiting clearance by the Office of Management and Budget (OMB) for publication. Under the proposed regulation, State Workforce Agencies (SWAs) would no longer be responsible for accepting and processing permanent labor certification applications, but would continue to perform other alien labor certification functions such as determining the applicable prevailing wage and H-2A and H-2B program functions.

The Department of Labor (DOL) expects PERM to be published before the end of the calendar year 2004 and the new program to be operational within 60 days of publication. Should the regulation not be published, however, the DOL has developed a contingency plan. The DOL has announced that SWAs will change their roles in FY 2005 regardless of whether PERM is published, shifting the processing of permanent labor certification cases from the SWAs to a centralized Federal location.

At present, the Employment and Training Administration (ETA) has in place an Interim Final Rule (IFR) which allows the ETA to transfer permanent labor certification cases pending at a regional office or SWA to one or more centralized processing locations and to consolidate state and Federal processing functions in a central location. Further to the IFR, the ETA has established two backlog elimination centers (one each in Philadelphia and Dallas). Permanent labor certification cases at the Federal level will begin to be processed by these backlog elimination centers, initially to address the regional office backlogs and eventually to handle cases currently backlogged at the SWAs. The ETA expects these temporary centers to complete their work within two years, at which point they will be closed.

This center-based approach, as opposed to the traditional method of sequential state and Federal processing, is meant to eliminate the permanent program’s backlog. In addition, the ETA is also establishing national processing centers in Atlanta and Chicago where all permanent labor certification applications will be processed.

If PERM is published, SWAs should stop accepting applications for permanent labor certification from employers 61 days after publication. If it is not published, SWAs shall continue to accept and process permanent labor certification cases until January 1, 2005. After January 1, 2005, SWAs shall continue to “date stamp” and log in permanent labor certification applications they receive from employers. However, these cases shall not be “opened,” but instead forwarded to either the Atlanta or Chicago national processing centers.

3.   PRESIDENTIAL DETERMINATION NO. 2004-53 OF SEPTEMBER 30, 2004

The President recently made a determination and authorized the admission of up to 70,000 refugees to the United States for Fiscal Year 2005. The 70,000 admission numbers shall be allocated as follows: Africa – 20,000; East Asia – 13,000; Europe & Central Asia – 9,500; Latin America & Caribbean – 5,000; Near East/South Asia – 2,5000; and Unallocated Reserve – 20,000. The 20,000 unallocated refugee numbers shall be allocated to regional ceilings as needed. The transfer of unused numbers allocated to a particular region to one or more other regions, should the need arise, is likewise authorized.

Further, an additional 10,000 refugee admission numbers shall be made available during FY 2005 for the adjustment to permanent resident status of aliens granted asylum in the U.S. Moreover, for FY 2005, persons from the following countries may be considered refugees for purposes of admission to the U.S.: (a) Vietnam; (b) Cuba; (c) former Soviet Union; and (d) in exceptional circumstances, persons identified by a U.S. Embassy.

4.   RIDGE ANNOUNCES RESIGNATION

Homeland Security Secretary Tom Ridge announced recently that he is stepping down from his post. The former two-term governor of Pennsylvania said he will remain at the helm of the agency until February 1, unless a successor is confirmed before then.

Possible candidates to replace Mr. Ridge include Asa Hutchinson, undersecretary for border and transportation security; Frances Townsend, White House adviser on homeland security; and Mitt Romney, governor of Massachusetts.

5.   DV2006 LOTTERY REGISTRATION BEGAN ON NOVEMBER 5, 2004

The State Department announced that the registration period for the DV2006 visa lottery would run from November 5, 2004 to January 7, 2005. Registration may be done exclusively on-line. Applicants must submit an Electronic Diversity Visa Entry Form, available only at http://www.dvlottery.state.gov/

6.   ASHCROFT RESIGNS FROM CABINET

The White House recently announced the resignation of Attorney General John Ashcroft. A former senator and two-term governor of Missouri, Ashcroft garnered criticism during his nearly four years as attorney general on issues like the Patriot Act, which backers say helps the government fight against terrorism and critics say infringes on civil liberties.

In a statement from the White House, President Bush said that Ashcroft “transformed the department (of Justice) to make combating terrorism the top priority, including making sure our law enforcement officials have the tools they need to disrupt and prevent attacks.”

Meantime, the President has appointed 49-year-old White House counsel Alberto Gonzales to be Mr. Ashcroft’s replacement. Mr. Gonzales, a Harvard graduate and son of migrant farm workers, is the first Hispanic to be the nation’s top law enforcement officer.

Gonzales drew criticism after the terrorist attacks in 2001 when he wrote a memo in which Bush claimed the right to waive anti-torture law and international treaties providing protections to prisoners of war. Specifically, Gonzales’ memo said the Geneva Convention that had long governed the treatment of prisoners did not apply to al-Qaida or the war in Afghanistan. The memo said some of the Geneva Convention’s provisions were “quaint.”

7.   DHS ANNOUNCES 18-MONTH EXTENSION OF TEMPORARY PROTECTED STATUS (TPS) FOR NATIONALS OF HONDURAS AND NICARAGUA

The Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) recently announced an 18-month extension of Temporary Protected Status (TPS) for nationals of Honduras and Nicaragua. The extension of TPS is effective January 5, 2005 and will remain in effect until July 5, 2006. Under this extension, those who have already been granted TPS are eligible to live and work in the U.S. for an additional 18 months and continue to maintain their status. Qualified nationals must re-register for the 18-month extension during the 60-day re-registration period, which began on November 3, 2004 and remains in effect until January 3, 2005. DHS is granting a six-month automatic extension of the expiration date of current TPS-related EADs to July 5, 2005.

There are approximately 81,875 nationals of Honduras and 4,309 nationals of Nicaragua who are eligible for re-registration. A TPS extension is also pending with DHS for El Salvador. The current TPS designation for El Salvador expires March 9, 2005.

8.   TAKE ACTION AGAINST H.R. 10

The American Immigration Lawyers Association (AILA) has urged its members to continue to take action against the House passed-bill, H.R. 10, on intelligence reform. House and Senate conferees meeting on the bill have yet to agree on many provisions, among the most controversial of which are the anti-immigrant and anti-civil liberty measures contained in the House bill. House Republicans are continuing to push for the provisions included in H.R. 10 and some conferees are hoping to get an agreement and vote on a bill during the upcoming lame duck session now scheduled to begin on November 16.

Opposition to the ill-conceived anti-immigrant and anti-civil liberties provisions can be made by contacting local Senators and Representatives through Contact Congress or through the Capital Switchboard (202-224-3121). President Bush, who supports most of the H.R. 10 provisions of concern, may also be contracted through the White House comment line (202-456-1111).

9.   USCIS CONFIRMS CONTINUED ISSUANCE OF ADIT (I-551) STAMP

USCIS confirmed that, until further notice, it would continue the practice of issuing I-551 ADIT (temporary green card) stamps in passports and on I-94s. An ADIT stamp is added to a passport or an I-94 card as temporary proof of residence. To alleviate inconvenience, USICS continues to aggressively pursue technological improvements to allow the prompt issuing of permanent resident cards without the need to issue these temporary stamps.

10.   DHS ISSUES PRESS RELEASE AND FACT SHEET AS REMINDERS ON VWP MACHINE READABLE PASSPORT REQUIREMENTS

DHS has issued a press release and fact sheet reminding Visa Waiver Program (VWP) travelers that, effective October 26, 2004, the Bureau of Customs and Border Protection began enforcing the requirements that travelers (including children) applying for admission under the VWP must possess a machine-readable passport. If a VWP national presents him or herself for admission to the U.S. without a machine-readable passport or a non-immigrant visa, a CBP officer is permitted to grant a one-time exemption to admit the traveler to the U.S. The traveler will be issued a letter explaining the U.S. entry requirements and his or her passport will be annotated that a one-time exemption has been granted. If a traveler fails to obtain a machine-readable passport or a non-immigrant visa for subsequent visits, they may be refused entry under the VWP.

11.   OBTAINING EMPLOYMENT AUTHORIZATION AND ADVANCE PAROLE DOCUMENTS UNDER THE NEW INFOPASS SYSTEM

Processing times for initial and renewal employment authorization documents (EADs) and advance parole documents (APs) can be lengthy but there is a procedure for obtaining same-day issuance of an EAD or AP at the District Office, if the EAD or AP is not granted within 90 or 120 days of the receipt date, respectively. Recently, though, the USCIS has begun to require applicants to obtain an appointment through the USCIS InfoPass system in order to obtain the same-day EAD and AP.

Frequently, no appointments are immediately available on InfoPass for the New York and Newark offices. Available appointments will often be approximately two weeks from the scheduling date. Therefore, it is suggested that applicants apply well in advance of the expiration date to allow time for these procedural requirements.

12.   I-9 E-STORAGE/E-SIGNATURE BILL SIGNED INTO LAW

The President has signed into law H.R. 4306, which allows employers to electronically complete and store employment eligibility verification (I-9) forms. In addition to e-storage, the law permits the use of handwritten or electronic signatures in completing the I-9 forms.

13.   SUPREME COURT OPINION

The Supreme Court recently held that DUI offenses, which either did not have a criminal intent component or required only a showing of negligence in the operation of a vehicle, were not crimes of violence under 18 USC 16. This decision, penned by Chief Justice Rehnquist, will likely affect many cases in several circuits, not limited to DUI cases, including decisions where aliens committed offenses without a criminal intent element. This decision also points to the increasing complexity in our immigration statute which makes such clarifications by the High Court a necessity.

Chief Justice Rehnquist, though a conservative, reached a progressive decision that shows that many aliens who committed offenses have not committed crimes of violence for immigration purposes. This shows that the ideological differences between liberals and conservatives in the High Court are not quite the cause of anxiety that some in the immigration community seem them to be.

14.   USCIS ANNOUNCES NEW LOOK TO “GREEN CARD”

USCIS announced that in compliance with Department of Homeland Security (DHS) branding guidelines, it has made minor changes to the look of the Permanent Resident Card (Form I-551) commonly known as the “Green Card.” The new card now features the DHS seal on the front and prominently mentions “Department of Homeland Security” on the back. USCIS has also taken this opportunity to add enhanced security features to the new cards. USCIS began mailing the new Permanent Resident Cards to qualified immigrants approved for either renewal of their car or for adjustment of status to lawful permanent resident. Those cards already in circulation remain valid until the expiration date listed on the card or until recalled by USCIS.

Last year, USCIS produced and distributed more than 2.5 million Permanent Resident Cards.

15.   IMMIGRATION ROUNDUP

We wish to advise that same-day H-1B visas are currently being issued by the U.S. Consulates in Montreal, Calgary and Ottawa, Canada. On the other hand, the Consular Section Chief at the U.S. consulate in Nogales, Mexico has announced that effective November 15, 2004, the post will no longer permit attorneys to accompany clients to interviews.

On a separate issue, many applicants are experiencing problems at U.S. Consulates in India and the Philippines – especially for dependent spouses seeking to come on H-4.

16.   245 PILOT PROGRAM EXTENDED INDEFINITELY

The Pilot Program with reference to application for adjustment of status based upon marriage to a United States citizen is still in effect. The objective of the program is to expedite applications for adjustment of status filed concurrently with I-130 petitions of U.S. citizen spouses. The goal is to complete processing within three months with prompt issuance of the actual green cards, foregoing the need to issue advance parole authorizations, EAD cards, and temporary I-551 stamps. However, the program only applies to persons who entered with a valid visa and does not benefit those who entered the U.S. without inspection.

17.   ILLEGAL IMMIGRANT CAN SUE FOR LOST EARNINGS

A Brooklyn judge recently ruled that undocumented aliens who suffer work-related injuries may sue for lost wages in New York state courts. Supreme Court Justice David I. Schmidt ruled in favor of Rodolfo Celi’s claim for both past and future lost earnings after suffering various injuries while performing demolition work at a construction site south of Times Square.

The court distinguished the case from Hoffman Plastic v. NLRB, which held that an award of back pay to a foreign worker lacking appropriate status would contravene congressional policy. In Hoffman, the U.S. Supreme Court held that the NLRB could not award back pay to a foreign worker who had been fired for participating in union activities. The court said that this is distinguishable from the Celi case where the claim alleged a physical inability to work due to injuries sustained in the accident. The judge added that Hoffman was silent on the issue of future wages, and therefore did not require the dismissal of the claim for future lost earnings. According to the decision, plaintiff’s immigration status is merely a relevant factor for the jury to consider in determining whether he is entitled to any future lost wages.

18.   TRAVEL ADVISORY

Travelers from Visa Waiver countries are advised of the possibility that they may be refused re-entry or denied the issuance of a new I-94 card (with a fresh 90-day validity) should they seek to re-enter the United States from Mexico or Canada on or before the expiration of their present 90 day stay. In fact, many such applicants are denied re-entry because they are not regarded as bona fide visitors. We strongly urge clients to take this into consideration when making their travel plans.

19.   FEDS CHARGE 26 WITH OPERATING ASYLUM RING

Sixteen people were arrested and ten more are facing federal charges for asylum and labor-certification fraud after fraud ring operations that helped more than 1,000 Indonesian immigrants file bogus asylum applications were discovered in Northern Virginia.

The 26 defendants all worked for companies that charged $2,000 or more to help them file fraudulent asylum claims or improperly obtain labor certifications or Virginia driver’s licenses. The applicants, mostly ethnic Chinese, were coached to tell authorities they had been beaten or raped by Muslims in Indonesia because they were Chinese or Christians. According to U.S. Attorney Paul McNulty, however, the stories were fabricated and were repeated word for word by immigrants who were coached to memorize them exactly. McNulty’s office has made immigration fraud a priority since the Sept. 11 attacks, when it was discovered that seven of the nineteen hijackers had fraudulently obtained Virginia driver’s licenses.

20.   FOREIGN-BORN POPULATION TOPS 34M

According to the Center for Immigration Studies, a private research group, more than 34 million U.S. residents were born outside of the United States. The foreign-born population grew at a rate of over 1 million a year between 2000 and 2004, with arrivals from Mexico driving much of the growth.

The report came a few days after President Bush discussed immigration matters with Mexican President Vicente Fox and other Latin American leaders in meetings abroad. Bush renewed a call for a law that would allow millions of undocumented laborers to work legally in the U.S. on temporary visas but would not provide a path to citizenship.

Nearly 10.5 million U.S. residents are from Mexico, close to one-third of the total U.S. foreign-born population. Overall, more than 9 million immigrants in the United States are illegal, with almost 2 million entering since 2000. The last estimate of the undocumented population from federal immigration officials, released in 2003, placed the number at 7 million in 2000, most of them Mexican.

21.   DEPORTED AFTER TRIP TO DMV

An undocumented Bangladeshi mother of two U.S.-born children visited a Department of Motor Vehicles office after receiving a letter asking her to clear up questions regarding her driver’s license. Three days later, immigration agents appeared in her Queens home, put her in handcuffs and drove her to a New Jersey jail. She was then taken to Kennedy Airport, where she was put on a plane to her homeland under an outstanding deportation order.

This was the first apparent instance in which a New York immigrant was deported after going to a state agency. Advocates for immigrants have warned that local government agencies may be asked to help enforce immigration laws, something they say could discourage undocumented residents from turning to police, hospitals, schools and other government agencies for help. The DMV however denied sending the woman a letter saying she had a valid license with an accurate Social Security number.

According to advocates, the woman came to the U.S. to escape persecution by the Bangladesh government for her pro-democracy activism. Her application for political asylum was denied and she was issued two deportation orders. She is now barred from returning to the U.S. for 20 years – 10 years for each deportation order.

22.   BUSH PICKS IMMIGRANT WHO ROSE TO EXECUTIVE FOR COMMERCE POST

President Bush recently nominated Cuban-American Carlos M. Gutierrez to be Secretary of Commerce. Mr. Gutierrez would replace Donald L. Evans who has announced his resignation and is seen as a possible Republican candidate for governor in Texas.

The President said that under Mr. Gutierrez’s leadership, small businesses would be encouraged, junk lawsuits would be reduced, and the outdated tax code would be reformed to eliminate needless paperwork and encourage savings, investment and growth.

Mr. Gutierrez, who is 51, married and a father of three, fled the Castro revolution with his family in 1960. He joined the Kellogg company in 1975 as a cereal salesman and rose to become the company’s president and CEO in 1999 and later Chairman in 2000. His confirmation by Congress seems assured as his personal story is proof that America is truly the land of opportunity.