LATE SEPTEMBER – EARLY OCTOBER 2004

1.   245 PILOT PROGRAM EXTENDED INDEFINITELY

According to a memorandum issued by the AILA New York Chapter dated October 11, 2004, the New York District Office has confirmed that the Pilot Program with reference to application for adjustment of status based upon marriage to a United States citizen has been extended indefinitely. 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.

2.   ACTION ALERT: DOOR SHUTS ON THE H-1B VISAS, LETTERS TO CONGRESS AND EXAMPLES NEEDED

USCIS officials announced on October 1, 2004, that the H-1B cap on visas for highly educated foreign professionals had been reached. Consequently, employers will be barred from hiring new H-1B foreign professionals for an entire year, unless Congress takes action before the end of the 108th session. AILA is pushing for such legislation and has urged companies to send letters and examples to the members of Congress to demonstrate the positive contributions of H-1B professionals to the U.S. economy.

Out of the annual H-1B cap 65,000, 6,800 visas are set aside for the H-1B program in accordance with US-Chile and US-Singapore Free Trade Agreements. Hence, the total H-1B cap for the fiscal year is 58,200.

The earliest date a petitioner may file a petition requesting FY 2006 H-1B employment with an employment start date of October 1, 2005, would be April 1, 2005.

Petitions seeking extensions or modifications to current H-1B employment are not counted against the cap. In addition, persons working for employers statutorily exempt from the cap (such as institutions of higher education, or non-profit research organizations) are not counted against the cap.

3.   DOL REITERATES “NO EXPEDITE” POLICY FOR LABOR CERTIFICATIONS

The Chief of the Division of Foreign Labor Certification has issued a memorandum instructing certifying officers to deny requests for expedites and to process applications in filing date order. According to the memo, requests are frequently received from the employers asking the FLC to take applications out of date order and to process them on an expedited basis for a number of reasons, such as to prevent a child from “aging out,” to enable a child to remain in the United States to receive medical treatment, to prevent the alien beneficiary from being deported, or to obtain a home care attendant to care for a terminally ill parent. The memo mandates that such requests must be uniformly denied. The memo further reiterates the National Office policy that all applications for alien employment certification for permanent residence in the Unites States are to be processed in the order they are received, i.e. filing date. However, the memorandum also states that particular types of cases, such as RIRs, may be queued and processed in order within that queue.

4.   TRAVEL WITHOUT A VISA: VISA WAIVER PROGRAM

As of October 26, 2004, travelers from Visa Waiver countries who wish to enter the United States without a visa must have a machine-readable passport. Travelers who entered the United States on Visa Waiver prior to October 26, 2004 will not be required to depart but can stay for as long as they were authorized by the border inspector at their port of entry. For those entering the United States after October 26, 2004, however, travelers from Visa Waiver countries must either have a machine-readable passport or a non-immigrant visa.

5.   DELAYS AT NEW YORK STATE LABOR DEPARTMENT

The New York State Labor Department has reduced staffing from forty-five (45) to fourteen (14) creating significant delays in the processing of labor certification applications in New York.

6.   HOUSE REPUBLICANS EXPECTED TO INTRODUCE ANTI-IMMIGRANT LEGISLATION

House Republicans are likely to introduce legislation that would allegedly implement the recommendations of the “National Commission on Terrorist Attacks upon the United States,” more commonly referred to as the 9-11 Commission. After reviewing the draft bill, however, AILA commented that far from reflecting the recommendations of the Commission, the bill includes provisions that “top immigration restrictionists’ anti-immigration wish list and would severely diminish civil liberties.” These anti-immigration provisions include those pertaining to state and local law police enforcing civil violations of immigration laws, anti-matricula provisions, provisions expanding the PATRIOT Act, habeas-stripping provisions, and provisions that allow removal to countries without functioning governments.

The Senate, on the other hand, is set to begin floor debate on a bill that would implement the intelligence-related recommendations of the 9-11 Commission. Proposed amendments include immigration – related provisions which would affect border security, US-VISIT, identification security, travel to the U.S. and database integrity.

AILA is hopeful that before the end of the 108th Session, Congress will pass the Agjob and DREAM Act, as well as relief for the H-1B and H-2B visas.

7.   URGENT ACTION NEEDED ON ASYLUM CAPS

Senator Brownback (R-KS) is said to offer a floor amendment to the Foreign Operations bill that would eliminate the numerical caps preventing asylees from becoming permanent residents and assimilating into the U.S. At present, only 10,000 asylees are authorized to adjust their status to permanent resident and only 1,000 individuals are eligible for asylum every year.

8.   PERM REMAINS PENDING AT OMB; DOL PROVIDES PERM AND BACKLOG REDUCTION PRGRAM UPDATES

The PERM regulations intended to expedite the processing of labor certification applications remain pending at the OMB and are not likely to be published until after the election. Department of Labor (“DOL”) officials said recently that labor certification application pending at the Dallas and Philadelphia regional offices are being transferred to the backlog reduction centers in those cities. These offices are said to be sending letters to request updated information, and files will supposedly be closed if responses are not received within 45 days or are incomplete.

9.   USCIS MEMO SAYS CHEFS OR SPECIALTY COOKS ARE RARELY QUALIFIED FOR L-1B

The U.S. Citizenship and Immigration Services (“USCIS”) has issued a memorandum stating that chefs and specialty cooks “generally are not considered to have ‘specialized knowledge’ for L-1B (intra-company transferee) purposes.” The memo reiterated that “it is necessary to determine the extent to which the petitioning entity would suffer economic inconvenience or learned through exposure for a brief or moderate period of disruption to its U.S. or foreign-based operations if it had to hire someone other than the particular overseas employee.” It clarifies the recipes and cooking techniques that could be time generally do not constitute specialized knowledge. Likewise, an alien’s knowledge of minor variations in style or manner of operations, standing alone, cannot be considered “specialized.”

10.   A SCHOOL FOR IMMIGRANTS?

Houston school officials have proposed a high school designed specifically for immigrants. The proposed school would offer weekend classes, customized instructions and flexible yearlong schedules.

Interim Houston superintendent Abe Saavedra said immigrant students need more support than conventional schools can provide, The proposed school, which would open in 2005 to about 125 students, is geared towards immigrant students who are forced to work to help their families make ends meet.

Schools elsewhere, such as in New York and Chicago, have experimented with similar flexible high school schedules for immigrants. School board member Harvin Moore says: “Flexibility is so crucial in order to give students what they need in order to succeed in life.”

11.   JUDGE STRIKES DOWN SECTION OF PATRIOT ACT

Judge Victor Merrero of the Federal District Court of Manhattan recently struck down an important surveillance provision of the Patriot Act, ruling that it violated the Constitution by giving federal authorities unchecked powers to obtain private information.

The said provision authorized the issuance of a kind of subpoena, known as a national security letter, which would require Internet service companies to provide personal information about subscribers and would bar them from disclosing to anyone that they had received a subpoena. Such subpoena could be issued without court review and under provisions that seemed to bar the recipient from discussing it with a lawyer. The federal judge found this provision in violation of both free speech guarantees and protection against unreasonable searches.

The suit was brought by the A.C.L.U on behalf of John Doe, an Internet provider company that received a national security letter from the F.B.I. The company was required to provide customers’ name, addresses, credit card data and details of their Internet use.

The A.C.L.U. had filed similar cases questioning the constitutionality of the provisions of the Patriot Act in other jurisdictions. In January, the Federal District Court in Los Angeles struck down, for being too vague and broad, a clause of the act that barred providing material support for terrorist groups. In Michigan, a suit is pending challenging a section of the act that allows the F.B.I. to obtain a court order to force any organization to turn over tangible evidence.

12.   ICE DETAINEE TRANSFER STANDARDS

The Immigration and Customs Enforcement (“ICE”) has issued a memorandum regarding its policy on the transfer of detainees. The ICE Detention Standard prescribes procedures and notification requirements to be followed when transferring a detainee.

According to the memo, if the detainee is represented by counsel, the ICE shall notify the representative of record of such transfer, but such notification shall not be until the detainee is en route to the new detention location. It will be the responsibility of the attorney or the detainee to notify any family members of the transfer. Further, the detainee shall not be notified of the transfer until immediately prior to leaving the facility. At the time of the transfer, ICE will provide the detainee, in writing, with the name, address, and telephone number of the facility he/she is being transferred to.

A transfer may be allowed for a number of reasons, including medical, change of venue, recreation, and security.

13.   DOL PUBLISHES NOTICE ON H-2B FILINGS FOR EMPLOYMENT IN FY 2005

The Department of Labor issued a notice stating that the USCIS continues to accept H-2B labor certifications with a date of need prior to October 1, 2004, for processing. The notice clarifies that employers with a valid labor certification with a date of need prior to October 1, 2004, but that includes periods of planned employment after October 1, 2004, are encouraged to file H-2B certifications with the CIS if some portion of the employment period remains. ETA will continue to process new H-2B applications with dates of need within FY 2005 (starting October 1, 2004 or later). These new H-2B applications must be filed with the State Workforce Agency no earlier than 120 days and at least 60 days prior to date of need.