1. Miller Mayer Issues Holiday Travel Warning, Update on VWP Program, Biometric Passport Requirements
2. USCIS Expands Premium Processing Service for Employment-Based Green Cards
3. USCIS Announces New NTA Policy for Application Denials
4. Shifts in Visa Number Availability Kick Off New Fiscal Year
5. 2008 Diversity Visa Lottery Instructions Released
6. USCIS Eliminates Locally Produced Employment Authorization Cards
7. USCIS Expands Pilot Program on Permanent Resident Applications
8. Dep't of Labor Updates Procedures on Backlogged Cases, Launches Web Site for Checking Status of Applications
9. NIW Computer Scientist Works to Uncover Hidden Criminal Messages
10. New Articles on Our Website
11. The Firm Speaks
12. Immigration Processing Times Links

1. Miller Mayer Issues Holiday Travel Warning, Update on VWP Program, Biometric Passport Requirements

Miller Mayer reminds travelers to ensure that their passports, visas, and other documents are current and in order well in advance of the busy holiday travel season. Travelers should also remember that because of heightened security measures, delays are possible and full compliance with security procedures is necessary.

For most applicants, a personal appearance interview is required as a standard part of visa processing. Additionally, applicants affected by security procedures are informed of the need for additional screening at the time they submit their applications and are being advised to expect delays. The time needed for adjudication of individual cases will continue to be difficult to predict. For travelers, the need for an interview will mean additional coordination with the embassy or consulate to schedule an interview appointment. Individuals should build in ample time before their planned travel date when seeking to obtain a visa. To estimate how long you will have to wait to get an interview appointment to apply for a visa (not including any additional time required for special clearances and administrative processing), see the Department of State's "Visa Wait Times for Interview Appointment," http://travel.state.gov/visa/temp/wait/tempvisitors_wait.php (choose the consular location from the drop-down menu and click on "Get Wait Times").

Some applicants must obtain advance parole (advance permission to travel) to leave the U.S. while their applications are pending. Advance parole processing time is now averaging about 3.5 months (up from about two months last year), so sufficient lead time to apply for parole, if needed, should be factored into travel preparations. For more information on advance parole requirements and procedures, see http://www.uscis.gov/graphics/services/Emergency/index.htm.

On September 7, 2006, at a hearing before the Senate Subcommittee on Terrorism, Technology, and Homeland Security, Jess T. Ford, Director of International Affairs and Trade for the U.S. Government Accountability Office (GAO), recommended that the Department of Homeland Security (DHS) strengthen its efforts to mitigate risks inherent in the Visa Waiver Program (VWP) available to citizens of specified countries. (See http://foia.state.gov/masterdocs/09fam/0941002X2.pdf for a list of countries eligible for admission for up to 90 days upon presentation of a round-trip ticket and passport of such a country.) The DHS has acknowledged that an undetermined number of inadmissible individuals may have entered the U.S. using stolen or lost passports from VWP countries, he noted. Because of such concerns, Congress periodically considers restricting the VWP. Mr. Ford's testimony (GAO-06-1090T) is available at http://www.gao.gov/new.items/d061090t.pdf. The GAO's related report (GAO-06-854) is available at http://www.gao.gov/new.items/d06854.pdf.

Biometric passport requirements for VWP-participating countries are set to take effect on October 26, 2006. Those countries will be required to begin issuing passports with integrated circuit chips containing biometric information. Each VWP country is at a different stage in its development of secure passports, but VWP travelers who obtained machine-readable passports (MRPs) before October 26, 2005, are not required to have a digital photograph or contact-less chip. This means that if you obtained or renewed/extended an MRP before October 26, 2005, you will not be required to get another passport for travel until your MRP expires. Passports issued or renewed/extended between October 26, 2005, and October 25, 2006, must be machine-readable and include a digital photograph printed on the data page; passports issued or renewed/extended on or after October 26, 2006, must be machine-readable and include the integrated chip.

A handy guide for VWP travelers is available at http://cbp.gov/linkhandler/cgov/travel/id_visa/vwp/vwp_timeline.ctt/vwp_timeline.pdf.

2. USCIS Expands Premium Processing Service for Employment-Based Green Cards

U.S. Citizenship and Immigration Services (USCIS) has announced the addition of three categories to the premium processing service, which allows U.S. businesses to pay a $1,000 fee in exchange for 15-day processing of the case. On September 25, 2006, USCIS began accepting premium processing requests for the Immigrant Petition for Alien Worker (Form I-140) for the EB-1-2 (outstanding professors and researchers); EB-2 (members of professions with advanced degrees or exceptional ability not seeking a national interest waiver); and EB-3 (workers other than skilled workers and professionals, including unskilled labor requiring less than two years of training or experience) immigrant visa categories. In addition, on August 28, 2006, USCIS added EB-3 professionals and skilled workers to categories eligible for premium processing. After these two announcements, all I-140 employment-based immigrant visa petitions will qualify for premium processing other than EB-1-1 extraordinary ability, EB-1-3 multinational manager, EB-2 national interest waiver, and EW unskilled waiver petitions.

Since 2001, premium processing service has been available for several nonimmigrant classifications within the Petition for Nonimmigrant Worker (Form I-129), including E treaty traders and investors, H-1B specialty occupation workers, H-2B temporary workers performing nonagricultural 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 support services, Q international cultural exchange visitors, R religious workers, and NAFTA professionals from Canada and Mexico.

For more information on premium processing for the three additional EB immigrant visa categories, see http://www.uscis.gov/graphics/publicaffairs/newsrels/PremProc092206PR.pdf.

3. USCIS Announces New NTA Policy for Application Denials

The U.S. Citizenship and Immigration Services (USCIS) has apparently issued a new policy that will result in more noncitizens being placed into removal proceedings if their visa applications are denied. Effective October 1, 2006, if a visa applicant appears to be out of status when the USCIS denies an application, the USCIS is supposed to issue a notice to appear (NTA) to have the person appear in removal proceedings.

If this new policy is true, it may force noncitizens to keep their underlying statuses in effect while they pursue a green card. For example, many adjustment of status applicants currently do not maintain their underlying H-1B or L-1 status while their adjustment of status application is pending, relying instead on advance parole and interim work authorization. Based on the new USCIS policy, doing that may expose them to removal proceedings if their adjustment application is denied.

Stay tuned for developments on this apparent new policy. We say "apparently" because the new policy has not officially appeared in writing. However, it has appeared on a number of listservs.

4. Shifts in Visa Number Availability Kick Off New Fiscal Year

The Department of State has issued the Visa Bulletin for October 2006, which is the start of fiscal year 2007. Although visa numbers have not fully recovered, there has been some forward movement in the employment-based categories. For example, the EB-2 category for India was unavailable beginning in August; the new cut-off date for October is June 15, 2002 (although this actually represents a retrogression from the January 1, 2003, cut-off date in existence before the category became unavailable).

It has also been reported that numbers in the Schedule A category (nurses, physical therapists, and certain persons with exceptional abilities in the arts or sciences that are exempt from labor certification) may be exhausted soon, possibly as early as November. Once that occurs, it will still be possible to file immigrant visa applications for such persons, but they will be subject to the priority dates of the underlying visa category (e.g., EB-2 or EB-3) for their occupation.

Family-based visa numbers also recovered from the steep retrogression imposed last quarter, but not to the cutoff dates previously in existence.

The October Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3032.html.

5. 2008 Diversity Visa Lottery Instructions Released

The Department of State's Bureau of Consular Affairs has released instructions for the 2008 Diversity Immigrant Visa Program. Entries for the DV-2008 lottery must be submitted electronically between noon EDT (GMT-4) October 4, 2006, and noon EST (GMT-5) Sunday, December 3, 2006. Paper entries will not be accepted. Applicants may access the electronic DV entry form and instructions at http://travel.state.gov/visa/immigrants/types/types_1318.html during the registration period. Because heavy demand may result in Web site delays, applicants are strongly encouraged not to wait until the last week to enter. Also, receipt of more than one entry per person will disqualify the person from registration. There is no fee.

For DV-2008, natives of the following countries are not eligible to apply because these countries sent more than 50,000 immigrants to the U.S. over the previous five years: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, Russia, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.

To enter the lottery, a person must have either a high school education or its equivalent, or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform. The Department of Labor's O*Net OnLine database will be used to determine qualifying work experience. Certain people from ineligible countries may qualify on the basis of their spouse's or parent's country of birth. For additional details on entry procedures and requirements, see http://travel.state.gov/pdf/DV_2008_Final.pdf.

6. USCIS Eliminates Locally Produced Employment Authorization Cards

U.S. Citizenship and Immigration Services (USCIS) currently issues two types of employment authorization documents: Form I-766, Employment Authorization Document (EAD), and Form I-688B, Employment Authorization Card. The I-766 is produced in Kentucky and accounts for approximately 88 percent of the EADs produced on behalf of USCIS; the remainder are produced at various field offices. Because of various issues with the locally produced cards, such as outdated card technology, obsolete equipment, and lack of maintenance, USCIS is phasing out the I-688B. This affects both locally produced interim EADs and non-interim EADs.

As part of this initiative, USCIS will no longer accept I-765 filings for non-interim EADs at local offices. Applications that were received at any local office through September 30, 2006, have been forwarded to the appropriate Service Center or the Chicago Lockbox for processing. Such applications received on or after October 1, 2006, will be returned and the individual will be advised to file directly with the appropriate Service Center or Lockbox indicated on the I-765 instructions. The agency recommends that applicants seeking to replace an expiring EAD file the I-765 at least 100 days before the current card expires.

For additional information on filing procedures and adjudication issues, see http://www.uscis.gov/graphics/lawsregs/handbook/ElimI688B_081806R.pdf. For information specific to asylees' EADs, see http://www.uscis.gov/graphics/publicaffairs/statements/AsyleeEAD091406PN.pdf.

7. USCIS Expands Pilot Program on Permanent Resident Applications

U.S. Citizenship and Immigration Services has expanded a pilot program that changes the procedures for filing a permanent residence ("green card") application (Form I-485) based on a family relationship, the diversity visa lottery, or qualification for most special immigrant categories. Under the expanded pilot program, affected applicants residing within the jurisdiction of the Dallas District Office (effective October 23, 2006; terminating on September 21, 2007), El Paso District Office, or Oklahoma City Sub-Office (the latter two offices are effective November 20, 2006; terminating on September 21, 2007) will be required to file the I-485 and any necessary documentation and fees in person at the appropriate local office, rather than by mail, after self-scheduling an appointment using the Internet-based InfoPass (http://infopass.uscis.gov/). The pilot program is intended to test this alternative to current filing and processing procedures with the goal of achieving a 90-day processing time for affected I-485s.

For more information on the pilot program, see http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-7791.pdf.

8. Dep't of Labor Updates Procedures on Backlogged Cases, Launches Web Site for Checking Status of Applications

The Office of Foreign Labor Certification (OFLC) of the Department of Labor (DOL) has developed a process for an employer or attorney who believes an application should be pending at a Backlog Elimination Center (BEC) but for which no contact (e.g., no 45-Day Center Receipt Notification Letter (CRNL), case closed letter, or other correspondence about the case) has been received from the BEC. To provide these employers with the opportunity to have their applications processed while also guarding against potential fraud, OFLC has established specific steps for employers or their attorneys to follow, which are outlined in a FAQ at http://www.ows.doleta.gov/foreign/pdf/backlog_faqs_09-11-06_nobec.pdf.

Inquiries must be sent to the appropriate e-mail provided in the FAQ by October 11, 2006. This process is only for employers or their designated attorneys; beneficiaries of labor certification applications are not authorized to use the process. The process is not intended for status checks or other case inquiries, but is to be used only in those cases for which the employer or attorney has received no contact whatsoever from the BEC.

The DOL also has launched a Web site for pending applications filed at a Backlog Elimination Center (BEC). The Office of Foreign Labor Certification (OFLC) has received many requests from employers, attorneys, and applicants regarding the status of applications being processed as part of the backlog elimination effort. To provide basic case status information on specific cases, OFLC introduced the Backlog Public Disclosure System. The status of a case (but not estimated processing times) may be checked at http://www.pbls.doleta.gov/pbls_pds.cfm by entering the ETA case number. The system currently checks only cases beginning with a D (Dallas) or P (Philadelphia).

9. NIW Computer Scientist Works to Uncover Hidden Criminal Messages

Another Miller Mayer client has joined the ranks of those whose work in the U.S. will undoubtedly benefit the country thanks to their approved national interest waiver immigrant visa. His eight years of research has produced some of the earliest and most influential work in the rapidly growing field of steganography, the science of hidden information in digital media. Steganography is different from encryption because the outsider does not even know that the secret message exists. The field has applications to national security, the music industry and copyright law. For example, to combat online piracy, online music stores now use steganography to hide data in music tracks so that purchasers can only use them as authorized.

Our client is an expert in accurately identifying embedded data where it was previously undetectable. Before, people did not know how to embed data into files so that the secret message is extractable without distortion in the original file. The federal government has taken an interest in this tool as it creates the possibility of marking digital files as authentic, similar to what the music industry has done. With a watermark, the government can use digital files in court without fear that someone has tampered with them. Criminals and terrorists have taken advantage of steganography to communicate transnationally via the Internet, embedding secret messages on otherwise benign websites. The huge volume of information on the Internet makes it nearly impossible to search and find secret messages. The national interest waiver researcher pioneered RS Steganalysis, the powerful tool behind detection of embedded information over the Internet. Once found, it is possible to disable these secret messages so that the recipient cannot extract them. Because of these applications, a boon for national security, the steganographer has received significant support from the Air Force Research Laboratory and several other governmental agencies. Our national interest waiver petition was approved without any problems.

10. New Articles on Our Website

A revised version of our popular foreign medical graduate fact sheet is now at http://www.millermayer.com/resources/medical/medical4cont.htm.

11. The Firm Speaks

Steve Yale-Loehr 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 at the NAFSA Region X conference in Rochester, New York November 7. Miller Mayer's Rosanne Mayer and Steve Yale-Loehr will also be on the panel.

Steve will participate on another panel at the NAFSA Region X conference. On November 6 he will serve as a judge on a panel called "Advising with the Stars." Steve and two other judges will judge NAFSA members' answers to complex immigration questions. Information about both NAFSA panels is at http://www.region10.nafsa.org/Conf2006.html.

Steve will speak on November 29 in Rochester at a New York State Bar Association seminar entitled "Handling Tough Issues in Plaintiffs' Personal Injury Actions. Steve will discuss immigration issues that affect personal injury claims and damage awards. More information about the seminar is available at http://www.nysba.org/Template.cfm?Section=Calendar_of_Events25&Template=/Conference/ConferenceDescByRegClass.cfm&ConferenceID=2134.

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

12. 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

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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.