1. State Dept., DHS Announce New Passport Requirement for Air Travelers
2. USCIS Expands Premium Processing to EB-1 Extraordinary Ability Category
3. Labor Dept. Inadvertently Withdraws Labor Certification Cases, Corrects Error
4. SEVP Implements Five-Year Maximum Program Duration for J Professors and Research Scholars
5. 'Schedule A' Immigrant Visa Numbers Used Up
6. USCIS Announces Case Processing Target Times
7. USCIS Realigns Regional, District, Field Offices
8. USCIS Revamps Web Site, Moves Many Pages
9. USCIS Launches Pilot Test for New Naturalization Exam
10. Miller Mayer Obtains J-1 Waiver and O-1 Approvals for Clients
11. New Articles on Our Website
12. The Firm Speaks
13. View Our Immigration Group's Holiday Card!
14. Immigration Processing Times Links

1. State Dept., DHS Announce New Passport Requirement for Air Travelers

The Departments of State and Homeland Security announced that as of January 23, 2007, citizens of the U.S., Canada, Mexico, and Bermuda traveling to the U.S. by air from any part of the Western Hemisphere must present a passport or other accepted document (such as a Merchant Mariner Document or a NEXUS Air card at designated sites). Permanent residents (green card holders) will continue to be able to use their Alien Registration Card (Form I-551) or other valid evidence of permanent resident status to apply for entry to the U.S. Children who are U.S. citizens will need a passport even if their parents are green card holders.

An individual traveling as a member of the U.S. armed forces on active duty is not required to present a valid passport to enter or depart the U.S. Spouses and dependents, however, must present a passport and valid visa, if applicable.

In the second phase of the Western Hemisphere Travel Initiative, targeted for implementation on January 1, 2008, U.S. citizens traveling between the U.S. and Canada, Mexico, Central and South America, the Caribbean, and Bermuda by land or sea may be required to present a valid U.S. passport or other document.

The notice announcing the new travel document requirements is posted at http://www.state.gov/r/pa/prs/ps/2006/76752.htm. A FAQ (frequently asked questions) page is available at http://www.travel.state.gov/travel/cbpmc/cbpmc_2225.html. The full text of the final rule is posted at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-9402.pdf.

2. USCIS Expands Premium Processing to EB-1 Extraordinary Ability Category

U.S. Citizenship and Immigration Services (USCIS) announced that starting on November 13, 2006, premium processing service may now be requested for EB-1 extraordinary ability cases. Premium processing allows U.S. businesses to pay a $1,000 fee in exchange for 15-calendar-day processing of their case.

Since 2001, premium processing service has been available for several nonimmigrant worker classifications, including E treaty traders and investors, H-1B specialty occupation workers, H-2B temporary workers performing non-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 support services, Q international cultural exchange visitors, R religious workers, and NAFTA professionals from Canada and Mexico. Form I-129 petitions for those nonimmigrant worker classifications will continue to be eligible for premium processing service unless the filing period has closed (for example, when the annual numerical cap for a specific visa classification has been reached).

Also, earlier this year, USCIS began accepting premium processing service requests for petitions involving five other immigrant visa categories: EB-1 outstanding professors and researchers, EB-2 members of professions with advanced degrees or exceptional ability not seeking a national interest waiver, EB-3 professionals, EB-3 skilled workers, and EB-3 workers other than skilled workers and professionals.

The notice announcing the expansion is posted at http://www.uscis.gov/files/pressrelease/PremiumProcessingRelease_08No06.pdf. For general information about EB-1 extraordinary ability cases, go to http://www.millermayer.com/resources/immigrant/eb1immigrationresources.html.

3. Labor Dept. Inadvertently Withdraws Labor Certification Cases, Corrects Error

The Department of Labor's Office of Foreign Labor Certification (OFLC) reported on November 15, 2006, that because of a "technical issue," a number of traditional and reduction-in-recruitment (RIR) labor certification cases were identified inadvertently as pending PERM re-file applications and were thus withdrawn from backlog processing. OFLC stated that it was identifying the affected cases and reinstating them to the "appropriate processing status in proper order."

In other cases, however, withdrawal was appropriate and those cases will not be reinstated. Such cases include PERM re-filings where the use of the earlier traditional or RIR priority date was requested and, therefore, the earlier case was withdrawn.

Affected employers and their attorneys will not be receiving an additional notice of reinstatement but are invited to verify that their case has been reinstated by using the Public Disclosure System (PDS). Users can access the PDS at http://pds.pbls.doleta.gov/ or by clicking on the "Check Backlog Case Status" link on DOL's Backlog Centers' Web page (http://www.foreignlaborcert.doleta.gov/times.cfm). Once the PDS Web page is open, users should enter the 10-digit case number, which begins with a "D" if the case is located in the Dallas BEC or "P" if the case is in the Philadelphia BEC. (Some cases may have had case numbers staring with "T" before data entry was completed at a BEC. All such cases have since been converted and now begin with either "D" or "P," which should be used for case status checks on the PDS.) After entering the case number, the search results show the current case status. Case status definitions are provided at the bottom of the PDS Web page.

A FAQ about the PDS is available at http://www.workforcesecurity.doleta.gov/foreign/pdf/backlog_faqs_09-11-06_pds.pdf.

Because verification will be available online, OFLC asks employers and attorneys not to contact the BECs regarding the status of such cases. The appropriate BEC will notify the employer or attorney if additional documentation is needed.

OFLC's notice is posted at http://www.foreignlaborcert.doleta.gov/ (scroll down to "What's New").

4. SEVP Implements Five-Year Maximum Program Duration for J Professors and Research Scholars

The Student and Exchange Visitor Program (SEVP) Office has announced that SEVIS 5.4, implemented on November 17, 2006, contains the changes necessary to raise from three to five years the maximum duration of participation for J professors and research scholars, based on a regulation that was published in May 2005. SEVP noted that only exchange visitors administratively classified in a G-7 program will be able to submit a request for an extension beyond the maximum duration of participation of five years. The countdown of the five-year maximum duration begins with the program's start date and ends five years later, provided that the sponsor does not end or terminate the exchange visitor's SEVIS record. There is also a new two-year bar on repeat participation in the J professor and research scholar categories for those who complete program participation.

G-7 participants are those under the direct sponsorship of a federally funded national research and development center or a U.S. federal laboratory. These sponsors will be identified in SEVIS as G-7 to differentiate them from other J-1 sponsors. The Department of State directly contacts those sponsors eligible for G-7 classification; no request is necessary on the part of existing sponsors.

SEVP also noted that there has been ongoing discussion about incorporating the J-1 skills list into SEVIS, but no decision has been made.

A related technical conference call report is posted at http://www.ice.gov/doclib/sevis/pdf/tech_con_call_qa_20061025.pdf. The May 2005 regulation is posted at http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-10020.htm. Additional information on changes in SEVIS 5.4 is posted at http://www.ice.gov/doclib/sevis/pdf/sevis_release_5_4_conference_slides.pdf. An implementation notice is posted at http://www.nafsa.org/_/Document/_/anticipated_sevis_release_2.pdf. Details about the changes, including information about how the five-year period is calculated and who is subject to the two-year bar, is posted at http://www.nafsa.org/regulatory_information.sec/get_sevis_information/nafsa_sevis_resources/information_on_sevis.

The Department of State initially announced that the effective date would be November 4, 2006 (see http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-18409.pdf), but implementation of SEVIS 5.4, which was necessary for the rule's implementation, was delayed until November 17, 2006.

5. 'Schedule A' Immigrant Visa Numbers Used Up

The Department of State's Visa Office announced in the latest Visa Bulletin that the 50,000 immigrant visa numbers provided for Schedule A workers have become "Unavailable" for December. The Schedule A worker category is shown in the December cut-off date table but will be removed from future listings.

Schedule A, Group I includes physical therapists and nurses. Schedule A, Group II includes aliens of exceptional ability in the sciences and arts (except performing arts).

The Visa Bulletin for December 2006 is posted at http://travel.state.gov/visa/frvi/bulletin/bulletin_3086.html.

6. USCIS Announces Case Processing Target Times

U.S. Citizenship and Immigration Services (USCIS) issued recent guidance outlining case processing timeframes:

Rescheduling interviews: USCIS said interviews should be rescheduled at the individual's request only when there are "compelling extenuating circumstances beyond the individual's control," and that the rescheduled interview should occur within 11 weeks of the initially scheduled interview.

Requests for Evidence (RFEs): USCIS noted that an RFE is a "single opportunity" for an individual to provide the requested information and an extension of the standard timeframe cannot be provided. On an application where the applicant could receive interim benefits, USCIS's objective is to pre-screen the employment authorization document (EAD) and/or advance parole application, the underlying application, and any pending underlying petition within 10 days of filing to identify whether there is any missing initial evidence or required additional evidence. USCIS noted that finding such missing initial evidence or required additional evidence early affects the timing for eligibility for interim benefits (such as advance parole or work authorization).

When a case is missing initial evidence, the RFE stops the 90-day processing clock on the associated EAD and/or advance parole application. The clock starts over when USCIS receives a timely response to a request for required initial evidence. An RFE for additional evidence, however, only suspends the processing clock, which resumes, when USCIS receives a timely response, at the point where it had stopped.

When necessary evidence or information is identified at the interview and USCIS decides that a short-term (generally one to two weeks and no more than a month) opportunity to submit the materials is appropriate, it may be done as an extension of the interview. When more time is warranted, USCIS stated, it should be done as an RFE.

USCIS's memorandum, which includes additional timeframes, is posted at http://www.uscis.gov/files/pressrelease/casemgmt.pdf.

7. USCIS Realigns Regional, District, Field Offices

U.S. Citizenship and Immigration Services (USCIS) announced on November 3, 2006, that it has realigned the management structure of the agency's regional, district, and field offices. The realignment is intended to better balance workload and personnel among USCIS field offices but does not affect the locations of, or services offered by, local USCIS district offices.

As part of the realignment, USCIS will establish a new Southeast Regional office in Orlando, Florida, which will manage all district and field offices in the southeast region of the U.S. In Florida, the northern district will be based in Tampa and the southern district will be based in Miami. USCIS is also creating two new management districts in Sacramento, California, and Tampa, Florida.

The press release announcing the realignment is posted at http://www.uscis.gov/files/pressrelease/RealignNR_110306.pdf.

8. USCIS Revamps Web Site, Moves Many Pages

U.S. Citizenship and Immigration Services (USCIS) has replaced its Web site with a redesigned Web portal at the same Internet address (http://www.uscis.gov). Many USCIS Web pages that users have bookmarked have moved as a result of the redesign. USCIS's Web portal is one of the most heavily trafficked Web sites in the federal government, serving an average of 135,000 visitors daily.

A fact sheet that lists the most frequently requested USCIS Web pages and their new addresses is posted at http://www.uscis.gov/files/pressrelease/WebFactSheet_110106.pdf. The revised Web site has many flaws, so not all pages on the prior Web site are available yet at the revamped site.

9. USCIS Launches Pilot Test for New Naturalization Exam

U.S. Citizenship and Immigration Services (USCIS) announced on November 30, 2006, the release of 144 questions and answers for a pilot test intended to help the agency revise the naturalization exam. USCIS will administer the pilot exam in early 2007 to about 5,000 volunteer citizenship applicants in 10 U.S. cities. USCIS Director Emilio Gonzalez explained that the agency wants to deemphasize the rote memorization of facts. The pilot test includes new questions that focus on the concepts of democracy and the rights and responsibilities of citizenship. To draft the new exam questions, USCIS worked with a variety of stakeholders, including history and government scholars, immigrant advocacy groups, citizenship instructors, district adjudications officers, and English as a second language experts.

USCIS plans to work out any problems that are revealed by the pilot test and refine the exam before it is fully implemented nationwide in 2008. When finalized, the exam will have 100 questions but the range of acceptable answers will increase. USCIS also will soon release a new "civics-based vocabulary" to help applicants study for the reading and writing portions of the test.

The announcement is available at http://www.uscis.gov/files/pressrelease/NatzTestQs113006.pdf. A fact sheet is posted at http://www.uscis.gov/files/pressrelease/FactSheetNatzTest113006.pdf. To view the actual pilot exam questions, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=dcf5e1df53b2f010VgnVCM1000000ecd190aRCRD.

For a New York Times column about some problems with the new naturalization test, go to http://select.nytimes.com/2006/12/05/nyregion/05nyc.html (available only to New York Times Select members).

10. Miller Mayer Obtains J-1 Waiver and O-1 Approvals for Clients

Our immigration attorneys are always involved in interesting cases. Two recent approvals exemplify our practice.

First, Miller Mayer attorney Carolyn Lee recently obtained an O-1 extraordinary ability nonimmigrant visa petition approval for a Kenyan African history professor. Carolyn argued that due to the professor's extensive publication record, obvious work of significance and originality, and prestigious awards, he was eligible to be classified as a nonimmigrant of extraordinary ability. The USCIS agreed and the petition was approved in under two months!

For general information about O-1 extraordinary ability cases, go to http://www.millermayer.com/resources/nonimmigrant/extraordinary.html.

Second, Carolyn recently received a waiver of the normal two-year home residency requirement for a J-1 professor in African religions because of the undue hardship it would cause her U.S. citizen-born children. Two of her four children were born in the U.S., and one in particular struggles with an Autism Spectrum Disorder (ASD). With other health ailments affecting the family, the combination created a strong case for hardship to the U.S. citizen children if the professor had to return to her home country with or without her family accompanying for the required two years. Fortunately, the waiver was granted and the professor will be able to apply for a visa to allow her family to remain in the U.S. and continue to receive medical and social services provided by the U.S. that would not be accessible in her home country.

For general information about J-1 waivers, go to http://www.millermayer.com/resources/nonimmigrant/exchangevisitors.html. Also, Miller Mayer's Steve Yale-Loehr has co-authored a book all about J visas, including J waivers. Information about the J Visa Guidebook is at: http://bookstore.lexis.com/bookstore/catalog?action=product&pk=12991

11. New Articles on Our Website

Steve Yale-Loehr has co-authored an article about key trends in immigration law for business executives. The article is at http://www.millermayer.com/new/key_trends.html

Steve has co-authored an article concerning when immigrants can receive public benefits without violating their immigration status. The article is at http://www.millermayer.com/new/NYLJ%20public%20charge%20BIB.html.

Steve has also written an article about immigration issues that may arise in personal injury cases if the injured worker is undocumented. Steve has served as an expert witness in two such cases recently. The article is at http://www.millermayer.com/new/personalinjury.html

12. The Firm Speaks

Steve Yale-Loehr will give a talk about visa options after graduation at Columbia University on Wednesday December 13 at 3:30 pm in room 142 of Uris Hall. Contact Steve at mailto:syl@millermayer.com for more details on this talk.

13. View Our Immigration Group's Holiday Card!

Our 2006 immigration group's holiday card is on the following page of our web site: http://www.millermayer.com/resources/generalcont.htm. This year we decided to give a taste of Ithaca's downtown Commons to those of you who do not have the pleasure of visiting us. Please view our holiday card for a special season's greetings from us to you!

14. 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.