(http://www.millermayer.com/):

1. USCIS Expands Premium Processing Service, Issues New Form
2. USCIS Releases FAQ on Completing I-9 Verification Form; New Article on I-9 Compliance
3. State Dept. Proposes to Require Passports at Certain POEs Beginning in January
4. Labor Dept. Asks BALCA to Return Cases for Processing
5. USCIS Plans to Digitize Alien Files
6. Employment Third Preference Green Card Availability May Retrogress
7. Miller Mayer's Steve Yale-Loehr Listed in Chambers USA Directory
8. New Articles on Our Website
9. The Firm Speaks
10. Immigration Processing Times Links

1. USCIS Expands Premium Processing Service, Issues New Form

U.S. Citizenship and Immigration Services (USCIS) announced that as of August 28, 2006, it has begun accepting premium processing requests for EB-3 professional and EB-3 skilled worker petitions. EB-3 professionals include immigrant workers with bachelor's degrees who are members of the professions; EB-3 skilled workers include immigrant workers capable of performing skilled labor requiring at least two years of education, training, or experience.

Under premium processing, USCIS guarantees a petitioner that it will issue an approval notice, a notice of intent to deny, or a request for evidence, or that it will open an investigation for fraud or misrepresentation, within 15 calendar days of receipt. If the petition is not processed within 15 calendar days, USCIS will refund the fee and continue to process the request on an expedited basis. The fee for premium processing is $1,000. Employers may file for both categories using the Immigrant Petition for Alien Worker (Form I-140). A new Request for Premium Processing Services (Form I-907) has been issued and, as of August 28, 2006, previous versions of the form are no longer being accepted.

In addition to faster processing, participating petitioners may use a dedicated telephone number and e-mail address to check on the status of their petitions or ask questions.

Since 2001, premium processing has been available for several classifications using the Petition for Nonimmigrant Worker (Form I-129), including E treaty traders and investors, H-1B specialty occupation workers, H-2B temporary workers performing agricultural services, H-3 trainees, L intracompany transferees, O aliens of extraordinary ability and those performing essential support services, P performers and athletes and those performing essential services, Q international cultural exchange visitors, R religious workers, and NAFTA professionals from Canada and Mexico. I-129 petitions for these nonimmigrant worker classifications will continue to be eligible for premium processing service unless the filing period has closed (for example, when the annual numerical limit for a specific category has been reached).

USCIS's announcement is available at http://www.uscis.gov/graphics/publicaffairs/newsrels/PremProc081806NR.pdf.

2. USCIS Releases FAQ on Completing I-9 Verification Form; New Article on I-9 Compliance

U.S. Citizenship and Immigration Services' USCIS Today publication includes a frequently asked questions (FAQ) section. The August 2006 issue's FAQ provides answers to employers' questions about how to complete employment authorization verification using the I-9 form. Among other things, the FAQ notes that an employer "is not required to know with absolute certainty whether a document is genuine or false." USCIS notes that the law merely requires that an employer examine the original document, not a photocopy, and make a good-faith determination that the document appears to relate to the employee, appears to be genuine, and is listed as an acceptable document on the back of the I-9 form.

The FAQ is available at page 7 of USCIS Today, http://www.uscis.gov/graphics/publicaffairs/USCISToday_August_06.pdf.

Miller Mayer's  has written an article on I-9 compliance and related issues. The article discusses recent increases in enforcement against employers who hire undocumented workers, and provides tips for employers on how to comply with immigration rules without violating antidiscrimination laws. The article, entitled Criminalizing Employer Sanctions: Employers Walk a Tightrope, is available at http://www.law.com/jsp/nylj/PubArticleNY.jsp?hubtype=FeaturedContent&id=1156425446156

3. State Dept. Proposes to Require Passports at Certain POEs Beginning in January

The Department of State (DOS) issued a notice of proposed rulemaking on August 11, 2006, that would require as of January 8, 2007, that U.S. citizens and nonimmigrants from Canada, Bermuda, and Mexico entering the U.S. at air ports of entry (POEs) and most sea POEs, with certain limited exceptions, present a valid passport. The proposed rule would not change the requirements for U.S. citizens and nonimmigrant aliens entering from Canada, Bermuda, and Mexico and certain types of arrivals by sea (e.g., ferries and pleasure vessels), which will be addressed in a separate, future rulemaking. The DOS said this proposed rule is the first phase of a joint plan by the Departments of Homeland Security (DHS) and State to implement new requirements under the Intelligence Reform and Terrorism Prevention Act of 2004, which provides that U.S. citizens and nonimmigrant aliens may enter the U.S. as of January 1, 2008, only with passports or alternative documents designated by the DHS.

General information about the Western Hemisphere Travel Initiative, as it is called, is available at http://travel.state.gov/travel/cbpmc/cbpmc_2223.html. The proposed rule is available at http://frwebgate2.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=990935416742+0+0+0&WAISaction=retrieve. Comments on the proposed rule are due September 25.

4. Labor Dept. Asks BALCA to Return Cases for Processing

The Department of Labor (DOL) has asked the Board of Alien Labor Certification Appeals (BALCA) to return to the DOL's certifying officers (COs) for processing numerous cases the BALCA was holding pending a decision in In re HealthAmerica. In that decision, which was the first appeal of a labor certification denial under the new PERM system, the BALCA found that the CO abused his discretion in denying the employer's labor certification application. Specifically, the application had been denied on the basis of a non-material typographical error. The employer, on a motion to reopen, presented evidence that was in existence at the time the application was filed that demonstrated its compliance with the law.

The letter from Gary M. Buff, the DOL's Associate Solicitor for Employment and Training, to John M. Vittone, BALCA Chairman, states that the COs have reviewed HealthAmerica and concluded that no purpose would be served in filing briefs in cases that were held in abeyance pending the decision. There may be potentially significant differences between the facts in at least some of these cases and the facts in HealthAmerica, Mr. Buff acknowledged, but he said that how those distinctions affect the adjudication of a particular case would be dealt with "more appropriately" by the COs in a new determination. The DOL therefore requested that "the relief provided for in HealthAmerica be applied to all of the cases being held in abeyance. Those cases should be returned to the [CO] for review in order to complete processing of these cases in accordance with that decision."

The HealthAmerica decision is available at http://www.oalj.dol.gov/Decisions/ALJ/PER/2006/In_re_HEALTHAMERICA_2006PER00001_(JUL_18_2006)_072241_CADEC_SD.PDF. Mr. Buff's August 2 letter is at http://www.bibdaily.com/pdfs/Sheinfeld 8-2-06.pdf.

5. USCIS Plans to Digitize Alien Files

U.S. Citizenship and Immigration Services (USCIS) announced on August 17, 2006, that it has established a new Records Digitization Facility (RDF) in Williamsburg, Kentucky, to digitize more than one million USCIS alien files (A-files). USCIS said it plans to use the digitized files "to begin the transformation of its business processes." Congress has provided funding for the digitization of approximately one million files per year. There are approximately 70 million immigration records, which means it would take USCIS 70 years to digitize all its records.

USCIS said the digitized A-files can be made available to multiple users at the same time, and can be made available immediately without shipping or handling. The agency noted that the ability to make the files available to multiple users simultaneously is valuable especially when files are needed "for law enforcement or national security reasons."

The multi-year contract to support the digitization effort has been awarded to Datatrac Information Services, Inc., which will operate the facility and provide document scanning, physical and electronic records management, metadata capture, and data transmission into the USCIS document management system.

The announcement is available at http://www.uscis.gov/graphics/publicaffairs/newsrels/Digitizn081706PR.pdf.

6. Employment Third Preference Green Card Availability May Retrogress

The Department of State noted in its Visa Bulletin for September 2006 that the employment third preference immigrant visa cut-off date for most countries has advanced rapidly in recent months in an effort to maximize number use under the annual numerical limit. As a result, applicant demand for numbers, particularly for adjustment of status cases at U.S. Citizenship and Immigration Services (USCIS) offices, is expected to increase significantly. Therefore, it cannot be assumed that such advances will continue during the coming months. The Visa Bulletin noted that the Department of Labor expects to complete its backlog reduction effort during fiscal year (FY) 2007. This effort "will result in tens of thousands of cases, including many with very early priority dates, becoming eligible for processing" at USCIS offices, which could require the retrogression of the employment third preference cut-off dates at any time during FY 2007, the Department said.

The Visa Bulletin for September 2006 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3009.html.

7. Miller Mayer's Steve Yale-Loehr Listed in Chambers USA Directory

Once again Steve Yale-Loehr's legal acumen has been recognized by the legal community. In addition to the nod given to Miller Mayer in the 2006 edition of Chambers Global (see our March 2006 newsletter at http://www.millermayer.com/new/3-13-06.html (article no. 7)), Steve has been listed in the most recent edition of Chambers USA, a directory of the United State's leading lawyers. The Chambers directories base their rankings on technical legal ability, professional conduct, client service, commercial awareness and astuteness, diligence, commitment, and other qualities valued by clients. The Chambers' guide commented on Steve's "encyclopedic knowledge" and the "fantastic advocacy skills that he regularly employs on behalf of his clients". Chambers reports that its rankings and comments are "independent and objective".

8. New Articles on Our Website

A new article describing the Individual Taxpayer Identification number and explaining how to apply for one is at http://www.millermayer.com/new/ITIN0806.html.

9. The Firm Speaks

Steve Yale-Loehr will moderate a panel on Thursday September 14 in New York City at the 60th anniversary symposium of the American Immigration Lawyers Association (AILA). The panel will discuss how to balance national security interests with economic and other goals in the U.S. immigration system. More information about the conference is available at http://www.aila.org/content/default.aspx?docid=17314.

Steve will speak about visa options after graduation to international students and scholars at Cornell University on Monday October 23 from 7-9 pm at Hollis E. Cornell auditorium in Goldwin Smith Hall on the main Arts quad.

Steve will speak about visa options after graduation to international students and scholars at the University of Buffalo on Friday November 3 in 120 Clemens Hall on the UB North Campus.

Hilary Fraser will moderate a panel advising foreign nationals how to deal with H-1B cap problems during the NAFSA Region X conference in Rochester, New York November 5-7. Miller Mayer's Rosanne Mayer and Steve Yale-Loehr will also be on the panel.

Contact Steve at mailto:syl@millermayer.com for more details on any of these talks.

10. Immigration Processing Times Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Centers: https://egov.immigration.gov/cris/jsps/index.jsp

Department of Labor: http://www.ows.doleta.gov/foreign/times.asp

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

_____________________

That's it for this issue. Some of the information in this issue comes from the American Immigration Lawyers Association. Thanks to AILA for allowing us to reprint their information.

Some of the information in this issue also comes from the Academy of Business Immigration Lawyers (ABIL). Steve Yale-Loehr is a founding member of ABIL, the think tank of premier business immigration counsel.

For answers to any of your immigration questions, contact:

Hilary Fraser (mailto:htf@millermayer.com)
Carolyn Lee (mailto:csl@millermayer.com)
Rosie Mayer (mailto:rm@millermayer.com) or
Steve Yale-Loehr (mailto:syl@millermayer.com).

For general information, visit our web site at http://www.millermayer.com/

The usual required legal disclaimers (we ARE attorneys, after all): Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. The information in this newsletter is for general purposes only, and is not intended as legal advice for any particular situation. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

Copyright (c) 2006 Miller Mayer, LLP. All rights reserved.