1. Top Ten Items re the New PERM Labor Certification System
2. H-2B Cap Reached
3. DHS Announces Expedited Traveler Program at JFK
4. US-VISIT Exit Program Extended to Newark
5. DOS Announces Extension for B Visas for Chinese
6. USCIS Announces Temporary Relief for Nationals from Tsunami-Struck Countries
7. True, Walsh & Miller Wins Pro Bono Asylum Case
8. New Articles on Our Web Site
9. TWM Lawyers Lead March 9 Seminar on Business-Related Immigration Issues
10. The Firm Speaks

1. Top Ten Items re the New PERM Labor Certification System

Our January 2005 newsletter (<http://www.millermayer.com/resources/news1_5_05.html>) briefly summarized the new PERM system. PERM is an electronic process for filing and processing labor certification applications for permanent employment-based immigration. The new PERM system is intended to help streamline the permanent labor certification system and thus combat the current labor certification backlog. The PERM program takes effect March 28.

As the Department of Labor (DOL) moves closer to implementing the PERM program, it is becoming clear that:

1) There is no such thing as "conversion" of a pending labor certification, as any labor certification application already filed will require new advertising;

2) Only the priority date (date of filing) of a now pending reduction in recruitment (RIR) labor certification application can be preserved, and only in very limited circumstances;

3) To preserve a priority date from an earlier filed RIR, an applicant must complete the recruitment and filing required under PERM, file a new PERM application, and withdraw the pending RIR;

4) After March 28, no labor certification applications may be filed using the RIR or standard labor certification method;

5) Filing PERM cases on or close to March 28 may be impossible, as the state workforce agencies (state labor departments or SWAs) have not yet developed a method for the job order or prevailing wage determination that is required to be done 30 days before filing;

6) DOL has announced it will soon publish two related sets of regulations. One is a rule designating which pending RIR cases will be sent to which DOL Backlog Reduction Centers, and a tracking system for monitoring such cases. A second rule will address prevailing wages;

7) By April, no SWA will be permitted to work on pending RIR cases. All such cases will be transferred to DOL Backlog Reduction Centers in Dallas and Philadelphia;

8) Presently, the Backlog Reduction Centers have about 100,000 pending labor certification cases, and have only accomplished data entry, not adjudication, of these cases;

9) For pending cases, DOL is sending letters to employer-sponsors to wean out cases that are not being pursued or were not genuine; and

10) DOL advises that its present website for tracking regional and state processing times for labor certification applications is inaccurate. DOL promises a revamped web site and new tracking system in the coming month.

The bottom line: The PERM labor certification system is suffering major birthing pains. Stay tuned to see how well and quickly DOL can get the new system up and running.

True, Walsh & Miller lawyer Steve Yale-Loehr is editing a book about the new PERM labor certification system to be published by LexisNexis later this spring.  Our next newsletter will include information on how to order the book.

2. H-2B Cap Reached

The U.S. Citizenship and Immigration Services (USCIS) recently announced that it had enough petitions to reach the annual H-2B cap of 66,000. The H-2B visa category allows noncitizens to work temporarily in a non-agricultural job for which the Department of Labor has certified there are no available U.S. workers. H-2B petitions are valid for up to one year.

The main recipients of H-2B visas are largely seasonal workers like camp counselors, hotel help at summer resorts, ski instructors, and shellfish shuckers. The USCIS processed all petitions received by January 3 and will return all applications received after that point, along with the accompanying fees. Petitioners will be able to resubmit H-2B applications when they have received temporary labor certification approval to begin work after October 1. This means that employers will be unable to hire new H-2B workers until then.

The implications of petitioners reaching the cap nine months before more H-2B petitions can be filed are severe. Although winter season businesses may have enough H-2B workers, summer resorts and camps will be short staffed. This shortage problem began last year, when the cap for the H-2B category was reached for the first time in 14 years. Businesses' pleas to Congress to increase H-2B visa numbers have been to no avail so far.

To read more about the H-2B cap and possible coping strategies, please visit:
<http://www.millermayer.com/resources/h1h2.html>

3. DHS Announces Expedited Traveler Program at JFK

The Department of Homeland Security (DHS) recently announced that it would begin implementing technology to expedite the trip through customs and security checks for certain qualified travelers. This program will be open to U.S. citizens, permanent residents and foreign nationals who frequently travel internationally and voluntarily submit to a background check. According to the DHS, this background check may include "checks of various biometric and biographic watch lists, including a 10-fingerprint criminal history check, a face-to-face interview with a DHS officer, and a review of any other pertinent information."

This program is currently slated for prescreened international travelers through John F. Kennedy airport in New York City. However, pointing to the success of the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) program, DHS Secretary Tom Ridge said that he hoped that this expedited traveler program would evolve into a "truly international registered traveler program that enhances security for all travelers."

Expedited traveler program participants will not have to undergo the usual questioning to enter the United States unless they are randomly selected. Instead they will undergo biometric procedures similar to those employed in the US-VISIT program. Participating travelers will enter a dedicated kiosk at J.F.K. airport, present their machine-readable passport, submit their fingerprints for verification, and be photographed.

Travelers inadmissible to the United States for legal reasons, including criminals and immigration law violators, cannot participate in this program. Also, travelers who provide false or incomplete information on their application will not qualify for the program.

For the DHS press release about this program visit:
<http://www.dhs.gov/dhspublic/display?content=4292>

4. US-VISIT Exit Program Extended to Newark

The Department of Homeland Security (DHS) has announced that the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) program has been extended to Newark International Airport. The US-VISIT system requires two digital index finger scans and a digital photograph from a traveler to verify their identity and compare it to a database of known criminals.

Since its institution, the US-VISIT program has undergone several major expansions. On August 3, 2004 the DHS began the pilot phase of the US-VISIT program departure process at Chicago's O'Hare airport. The departure pilot program has since been expanded to several other airports and seaports. To test all aspects of the program, all visitors leaving the country from Newark Airport are required to participate in one of three processes.

The first option is to follow procedures like those for the US-VISIT entry program. Travelers will have their picture taken and submit their fingerprints for verification at dedicated exit kiosks. Travelers will then receive a receipt proving that their identity was successfully verified. The second option will be for participants to go through the aforementioned process and then undergo an additional step. After their initial verification, travelers will proceed to their gates of departure, where they must present their receipt and have their fingerprints scanned a second time to match their identity with their travel documents. Once this is verified, the traveler can enter the plane. The third option is that travelers will be checked out by a US-VISIT attendant equipped with a handheld fingerprint scanner and a digital camera.

Several days after its Newark implementation, the DHS expanded the US-VISIT exit program to airports in San Juan, San Francisco, and Detroit. To facilitate the US-VISIT departure process, participating airports distribute printed cards detailing the exit process to passengers upon their arrival in the United States.

On December 29, 2004 the DHS met its congressionally mandated goal of expanding the US-VISIT entry-exit system to the nation's 50 busiest land ports. According to the DHS, the US-VISIT program has cut border processing time in half, from ten minutes to five. However, the results of the DHS' US-VISIT efforts at airports have been less sunny. The Washington Post has reported a high-ranking DHS official as noting long lines at airports. The Department's next goal is to install the US-VISIT program at all of the country's land borders by the end of 2005.

To read True, Walsh and Miller's summary of the US-VISIT program please visit:
<http://www.millermayer.com/new/usvisit.html>

For more information about the US-VISIT program generally please visit: <http://www.dhs.gov/dhspublic/display?theme=91>

5. DOS Announces Extension for B Visas for Chinese

The Department of State (DOS) has announced that eligible Chinese nationals who wish to visit the United States on B-1 or B-2 visas can now be issued visas valid for 12 months and multiple entries. Previously, B visas issued to Chinese foreign nationals remained valid for a maximum of six months. U.S. consulates issue B visas to foreign nationals seeking to enter the U.S. as business visitors (B-1) or tourists (B-2).

This reciprocity extension came as a result of negotiations between the U.S. Embassy in Beijing and the Chinese Ministry of Foreign Affairs. Despite the extension, both sides reserve the ability to limit the length of visas and the number of entries on a case-by-case basis. The DOS believes that this extension will "significantly benefit" business and tourism. According to the DOS, 77% of non-immigrant visas issued in 2004 in China were B-1 and B-2 visas. With longer validity periods, U.S. consulates in China will have fewer cases to adjudicate, allowing the offices to dedicate their resources elsewhere.

To read the DOS announcement please visit: <http://www.state.gov/r/pa/prs/ps/2005/40818.htm>

For more information about the B visa please visit: <http://www.millermayer.com/new/b-1.html>

6. USCIS Announces Temporary Relief for Nationals from Tsunami-Struck Countries

The U.S. Citizenship and Immigration Services (USCIS) recently announced temporary relief measures to aid foreign nationals from areas affected by the December 26 Asian tsunami. First, the USCIS will expedite the processing of several of certain immigrant visa applications, including requests for advance parole and relative petitions for minor children in affected areas. The USCIS will also "more readily approve" applications for changes or extensions of nonimmigrant status for nationals from affected countries.

The USCIS has also granted a 90-day stay of removal to citizens of Sri Lanka and Maldives. This stay was granted due to the extensive infrastructure damage visited upon these nations. This stay is automatic; those eligible do not need to apply for it. Foreign nationals from other affected nations may request a similar stay of removal. However, such stays will be adjudicated on a case-by-case basis. Affected foreign nationals may also apply for employment authorization to financially support themselves or to send financial support to their countries during their stay.

The USCIS also issued a press release addressing the issue of adopting children orphaned by the disaster. The agency does not recommend this as an immediate solution to the problem. Rather, the immigration agency has decided it would be in keeping with the international standard of adoption professionals to keep the children as close to relatives as possible. Further, it is too early to determine if a child has truly been orphaned. The USCIS notes that only after months of national recovery and rebuilding will orphans be positively identified and available for adoption.

To view the USCIS press release on its temporary relief measures, please visit:
<http://uscis.gov/graphics/publicaffairs/newsrels/Tsunami2005_01_10.pdf>

To view the USCIS press release on adopting children orphaned by the tsunami go to:
<http://uscis.gov/graphics/publicaffairs/newsrels/010505Tsunami.pdf>

7. True, Walsh & Miller Wins Pro Bono Asylum Case

True, Walsh and Miller recently won asylum for a victim of religious persecution. The client approached our law firm after an immigration judge denied her asylum claim. Carolyn Lee of our firm filed a successful appeal to the Board of Immigration Appeals (BIA). The BIA remanded the case to the immigration judge for reconsideration. On remand, Carolyn argued the facts so persuasively that the judge quickly granted asylum. Needless to say, our client is delighted to be able to begin a new life safely in the United States.

8. New Articles on Our Web Site

Steve Yale-Loehr has co-authored two articles in the American Immigration Lawyers Association's new book, Immigration Options for Academics and Researchers. One article concerns current trends in EB-1-2 outstanding researcher cases. The other article addresses national interest waiver petitions for researchers. Slightly different versions of the two articles are on our web site at <http://www.millermayer.com/new/eb1_2.html> and <http://www.millermayer.com/resources/niwrdm.html>, respectively.

We have revised our H-1B temporary worker fact sheet to reflect recent changes in the law. The revised memo is at <http://www.millermayer.com/resources/nonimmigrant/h1fact.html>

9. TWM Lawyers Lead March 9 Seminar on Business-Related Immigration Issues

On March 9, True, Walsh & Miller and the Emerging Technology Alliance will co-host a seminar entitled New Trends in Immigration Law and Policy Affecting Upstate NY Employers. This seminar is designed both for employers who know nothing about immigration law and those experienced in immigration issues. Topics will include: recruiting, hiring, and firing foreign nationals; visa sponsorship and government delays; how to keep good foreign national employees; travel and security concerns; and I-9 and antidiscrimination issues. The seminar will be held at the Cortland Country Club in Cortland NY from 9 am to noon, and will cost $20. To participate in the seminar please RSVP by March 5 to eta@cortlandbusiness.com <mailto:eta@cortlandbusiness.com?subject=March%209%20eta%20workshop%20registation> or call (607) 756-5005. For additional information contact Steve Yale-Loehr at syl@millermayer.com

The Emerging Technology Alliance is a consortium of education-industry partners in Upstate New York, working to transfer technology and develop business in fast-growing regional technology sectors. Partners in the project include departments within Binghamton, Cornell and Syracuse Universities, the Central New York Technology Development Organization, and the Alliance for Manufacturing and Technology.

10. The Firm Speaks

On March 10 Steve Yale-Loehr will discuss visa options after graduation for international students and scholars. The talk will be in the Lewis auditorium of Goldwin Smith Hall at Cornell University, starting at 7 pm. Steve will discuss F-1 and J-1 practical training options after graduation, H-1B and other temporary worker visas, and green cards.

On March 23 Steve will chair the PLI annual basic immigration law seminar in New York City. Details about the seminar are available at <http://www.pli.edu/product/program_detail.asp?ptid=511&stid=3&id=EN00000000020270>

On April 6 at 4 pm Steve will discuss visa options after graduation for international students and scholars at Binghamton University. Steve will discuss F-1 and J-1 practical training options after graduation, H-1B and other temporary worker visas, and green cards.

On May 4 Steve will moderate a panel on PERM at an immigration conference in New York City sponsored by the NY State Bar Association.

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

_____________________
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.

For answers to any of your immigration questions, contact:

Hilary Fraser (mailto:htf@millermayer.com)
Carolyn Lee (mailto:csl@millermayer.com)
Rosie Mayer (mailto:rma@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.

To unsubscribe to this newsletter, email mailto:syl@millermayer.com. Please type "unsubscribe to millermayer.com immigration newsletter" in your subject line.

Copyright (c) 2005 True, Walsh & Miller, LLP. All rights reserved.