1. DOS, USCIS Reverse Policies, Release Guidance in Response to July Visa Number Debacle
2. Federal Court Strikes Down Hazleton, PA’s Illegal Immigration Law
3. New Application and Petition Fees Went Into Effect on July 30, 2007
4. USCIS Announces Extension of Temporary Suspension of Premium Processing Service for I-140s
5.  Long Nonimmigrant Visa Wait Times at Some U.S. Consulates
6. USCIS Rescinds Earlier Update, Allows Prepaid Mailers
7. Passport Measures Relaxed in Response to Massive Backlogs 
8. Steve Yale-Loehr Listed in Chambers USA Directory
9. Success Story:  EB-1-1 Petition Approved for Entrepreneur with Extraordinary Ability in Business
10. Immigration Processing Times

1. DOS, USCIS Reverse Policies, Release Guidance in Response to July Visa Number Debacle

The Department of State and U.S. Citizenship and Immigration Services (USCIS) reversed themselves on July 17, 2007, to resolve the dilemma of tens of thousands of skilled workers who had been left out in the cold by the Department's sudden announcement on July 2, 2007, that there would be no further employment-based green card numbers available until October.

In response to the controversy over the sudden cut-off, USCIS and the State Department reversed themselves. "The public reaction to the July 2 announcement made it clear that the federal government's management of this process needs further review," said Emilio Gonzalez, USCIS's Director. "I am committed to working with Congress and the State Department to implement a more efficient system in line with public expectations."

Commenting on the July visa numbers fiasco and the Department of State's subsequent efforts to resolve the problem, Miller Mayer’s Steve Yale-Loehr said in the July 18, 2007, edition of the Wall Street Journal, "Without saying so explicitly, the government has admitted its error. This will bring relief to the people who were hurt, but it shows our immigration system is broken."

The July 2 announcement resulted in much outrage among workers, employers, and their attorneys, and lawsuits were filed and threatened. Rep. Zoe Lofgren (D-Cal.), whose district includes Silicon Valley, wrote to Homeland Security Secretary Michael Chertoff asking for "all correspondence, emails, memoranda, notes, field guidance or other documentation" leading to the sudden decision. Microsoft Corporation announced on July 5 that it plans to open soon a software development center in Vancouver, Canada, to "recruit and retain highly skilled people affected by immigration issues in the U.S." S. Somasegar, corporate vice president of Microsoft's Developer Division, noted that "Microsoft is a global company, and our greatest asset is smart, talented, highly skilled people. Our goal as a company is to attract the next generation of leading software developers from all parts of the world, and this center will be a beacon for some of that talent."

After consulting with USCIS, the Visa Office advised that Visa Bulletin #107 (dated June 12, available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3258.html) should be relied upon as the July Visa Bulletin for purposes of determining employment-based visa number availability, and that Visa Bulletin #108 (dated July 2) has been withdrawn. USCIS announced that it is accepting employment-based applications to adjust status (Forms I-485) filed by aliens whose priority dates are current under Visa Bulletin #107. USCIS will accept applications filed no later than August 17, 2007. Those applications may no longer be filed electronically and must be submitted to a Service Center via regular mail or courier service, USCIS said. Applications already properly filed with USCIS also will be accepted. The current fee schedule will apply to all applications filed under Visa Bulletin #107 through August 17, 2007. The new fee schedule that became effective on July 30, 2007, applies to all other applications filed on or after July 30, 2007.

USCIS also subsequently released several FAQs containing detailed guidance, discussed below.

On July 27, 2007, USCIS released a FAQ (#2) on employment-based adjustment applications filed by those whose priority dates were "Current" under Department of State July Visa Bulletin No. 107. The FAQ makes the following points, among others:     

·         USCIS will permit applicants who filed adjustment applications between July 2 and July 17, 2007, but who have not yet received a USCIS-generated receipt notice, to file for Advance Parole and Employment Authorization based on proof of delivery of the I-485 application.

·         The receipt date for such applications will be based on the date the applications were physically received by USCIS.

·         USCIS will accept medical examinations completed abroad by physicians authorized by the Department of State. Applicants must be physically present in the United States when filing for adjustment of status.

·         For those who fell out of valid nonimmigrant status between July 2 and July 16, 2007, as a direct result of the inability to file for employment-based adjustment during that period, USCIS said it "has discretion to consider extraordinary circumstances that are beyond the alien's control and may forgive a short gap in status for such aliens."

·        A visa number must be available at the time of filing for adjustment of status. Thus, if a principal applicant with a current priority date under Visa Bulletin No. 107 files for adjustment of status between July 17 and August 17, 2007, any derivative family members must either also file during this time period, or wait until immigrant visa numbers become available at a later date pursuant to the Visa Bulletin.

·        The correct filing fee for a concurrently filed I-140 with an adjustment application filed between July 30, 2007, and August 17, 2007, is $475. The new increased fee applies to Forms I-140, whether or not concurrently filed with an employment-based adjustment application, filed on or after July 30, 2007.

USCIS also released an earlier FAQ (#1) regarding the same topic. That FAQ makes the following points, among others:

·        The fee of $180 for Forms I-765 and the fee of $170 for Form I-131 will remain in effect for those eligible to file an employment-based adjustment of status application pursuant to July Visa Bulletin No. 107. These fees will remain in effect for all such applications filed between July 17 and August 17, 2007.

·        Applicants will not have the option of paying the new filing fees for adjustment applications.

·        USCIS will not accept employment-based adjustment of status applications under July Visa Bulletin No. 107 if the priority date is August 1, 2007 or later.
USCIS will accept adjustment applications under July Visa Bulletin No. 107 that are submitted by August 17, 2007, if the priority date is before July 31 but the certification is granted after August 1.

·        USCIS will accept adjustment of applications filed pursuant to Visa Bulletin No. 107 without a completed medical examination. In such cases, USCIS will issue a request for evidence.

·        Depending on the volume of applications received as a result of the July 17 notice reopening the filing period for employment-based adjustment applications under the July Visa Bulletin, there may be some delay in the issuance of receipt notices. Processing times will be updated on the USCIS Web site.

For August, all employment-based preference categories are “Unavailable.” The Department said it is uncertain whether any numbers will be returned and can be reallocated at a future date. Until informed otherwise, the categories will remain unavailable until October, when the new federal fiscal year begins.

USCIS's announcement is available at http://www.uscis.gov/files/pressrelease/VisaBulletinUpdate17Jul07.pdf. The August Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3269.html. FAQ #2 is available at http://www.uscis.gov/files/pressrelease/FAQ2.pdf. FAQ #1 is available at http://www.uscis.gov/files/pressrelease/EBFAQ1.pdf. Information on fees is available at http://www.uscis.gov/files/pressrelease/Update_eFiling073007.pdf.

2. Federal Court Strikes Down Hazleton, PA’s Illegal Immigration Law

In a ruling viewed as a setback to similar measures in cities and states nationwide, a federal court has struck down Hazleton, Pennsylvania's "Illegal Immigration Relief Act," a 2006 law that fined landlords who rented to undocumented persons and revoked the business permits of employers who hired them. About a third of Hazleton's estimated 21,100 to 30,000 residents are from Central America, up from about five percent in 2000, and up to a quarter of those may be undocumented, according to some estimates.

Ruling that the local law is preempted by federal immigration law, U.S. District Judge James M. Munley noted that "[a]llowing states or local governments to legislate with regard to the employment of unauthorized aliens would interfere with congressional objectives." Judge Munley further opined that "[e]ven if federal law did not conflict with Hazleton's measures, the City could not enact an ordinance that violates rights the Constitution guarantees to every person in the United States, whether legal resident or not. The genius of our Constitution is that it provides rights even to those who evoke the least sympathy from the general public." He noted that "[w]hatever frustrations officials of the city of Hazleton may feel about the present state of federal immigration enforcement, the nature of the political system in the United States prohibits the city from enacting ordinances that disrupt a carefully drawn federal statutory scheme."

The ruling was welcomed by immigrant advocates and the U.S. Chamber of Commerce. "Today's decision sends an unmistakable message to local officials across the nation that these types of ordinances are a waste of taxpayers' money, anathema to American values and a violation of the Constitution," said Omar Jadwat of the ACLU Immigrants' Rights Project. The U.S. Chamber of Commerce's National Chamber Litigation Center released a statement noting that "[s]tate and local governments have no business setting national immigrant policy." The fight is not over yet, however. Bob Dane, a spokesman for the Federation for American Immigration Reform, said, "We are planning to join with the mayor and appeal" the ruling in the U.S. Court of Appeals for the Third Circuit.

Miller Mayer’s Steve Yale-Loehr testified as an expert witness for the ACLU in the Hazleton case. In the July 27, 2007, edition of the Dallas Morning News, he noted that "[o]ne of the main themes of the ruling is that federal law preempts local and state immigration laws." He also was quoted in the July 26, 2007, edition of the Financial Times. "The Hazleton ruling should be a big red stoplight to other cities thinking of enacting anti-immigrant laws," Steve said.

The National Conference of State Legislatures estimated that in just the first four months of 2007, states have introduced more than 1,100 bills and resolutions related to immigration. The total last year was 570 bills. In June, Colorado's Supreme Court ruled that Colorado's controversial measure to prevent undocumented persons from receiving some government services violated a state constitutional requirement that initiatives address a single subject. Immigration is expected to continue to factor in elections in that state. Meanwhile, Georgia and Arizona are requiring employers to participate in the Basic Pilot work authorization verification program. Beaufort County, South Carolina, plans a mass audit of businesses' immigration records.

3. New Application and Petition Fees Went Into Effect on July 30, 2007

U.S. Citizenship and Immigration Services (USCIS) issued a reminder that, with the exception noted below, the new fee schedule is effective as of July 30, 2007. Applications or petitions postmarked or otherwise filed on or after that date must include the new fees. The exception is that the fee schedule in place before July 30 will apply to "[a]ll I-765 and I-131 applications based on employment-based adjustment of status applications filed pursuant to Visa Bulletin #107" through August 17, 2007. Those applications may no longer be electronically filed and must be submitted to a Service Center via regular mail or courier service, USCIS said.

USCIS also recently posted and then withdrew an announcement that it would take offline for maintenance its e-filing system and posted the new I-485 application form to reflect higher fees, despite the dispensation to file at the old fee through August 17.

The new fee schedule that became effective on July 30, 2007, applies to all other applications filed on or after July 30, 2007. Overall, application and petition fees have increased, on average, about 66 percent. The new fee schedule is available at http://www.uscis.gov/files/nativedocuments/FinalUSCISFeeSchedule052907.pdf. Information on the exception under Visa Bulletin #107 is available at http://www.uscis.gov/files/pressrelease/VisaBulletinUpdate17Jul07.pdf and http://www.uscis.gov/files/pressrelease/Update_eFiling073007.pdf.

4. USCIS Announces Extension of Temporary Suspension of Premium Processing Service for I-140s

U.S. Citizenship and Immigration Services (USCIS) announced on July 24, 2007, an extension of the temporary suspension of Premium Processing Service for the Immigrant Petition for Alien Worker (Form I-140). USCIS anticipates that the volume of I-140 petitions filed that request Premium Process Service will continue to exceed the agency's capacity to provide the service according to the program guidelines. Premium Processing Service guarantees that within 15 calendar days of receipt of a petition, USCIS will issue an approval or denial notice, a notice of intent to deny, or a request for evidence, or will open an investigation for fraud or misrepresentation.

The suspension will continue until further notice, USCIS said.

The notice is available at http://www.uscis.gov/files/pressrelease/PremProcI140_072407.pdf.  

5.  Long Nonimmigrant Visa Wait Times at Some U.S. Consulates  

Wait times for nonimmigrant visa interview appointments at some U.S. consulates and embassies are getting extremely long during these summer months.  Bern, Switzerland currently has a wait time of 52 days, while London’s wait time is now 40 days.  North America isn’t much better, with a wait time of 41 days in Ottawa and 22 days at the U.S. consulate in Toronto.  Heading south to Rio de Janeiro, expect to wait 58 days.  Things improve slightly in Shanghai with a wait of 22 days and are better in Beijing, with only a 10 day wait.  For those lucky enough to consular process in Muscat, Oman, there is no wait at all.  Appointments are made for the same day.  

To check on specific wait times at U.S. consulates go to:

http://travel.state.gov/visa/temp/wait/tempvisitors_wait.php

6. USCIS Rescinds Earlier Update, Allows Prepaid Mailers

On July 27, 2007, U.S. Citizenship and Immigration Services (USCIS) retracted a July 23 update regarding the discontinuance of prepaid mailers for issuing notices and documents. Before the July 23rd announcement, USCIS allowed the public to enclose prepaid mailers in connection with applications or petitions filed with USCIS. A prepaid mailer is essentially a self-addressed envelope, where postage is paid by the addressee, that USCIS may use for mailing a document to the petitioner/applicant or authorized representative. USCIS said it "is aware that the July 23rd announcement caused anxiety for several of its customers and USCIS is committed to finding an alternative that will allow the public the continued convenience of using prepaid mailers while not unduly impacting its operations." Thus, USCIS is reinstating the practice of allowing prepaid mailers as an alternate method of delivering notices and documents to the public.

USCIS noted that prepaid mailers are not required. If an applicant/petitioner nonetheless wishes to submit one, it should meet the following criteria: Express and Priority mail (including FedEx, DHL, or UPS) with appropriate postage, with a prepaid shipping label on the package, already paid by the person who sends it; e.g., FedEx's "Expanded Billable Stamp" or DHL's "Easy Return Label," among others.

The notice is available at http://www.uscis.gov/files/pressrelease/RescindMailerUpdate072707.pdf.

7. Passport Measures Relaxed in Response to Massive Backlogs

Over the past several months, many U.S. travelers have encountered substantial delays in obtaining passports as a result of new rules imposing passport requirements for North American travel, for national security reasons. Some have missed important trips as a result. In response, the State Department has relaxed the rules temporarily. Assistant Secretary of State Maura Harty, who oversees passports for U.S. citizens, recently acknowledged the problem: “Over the past several months, many travelers who applied for a passport did not receive their document in time for their planned travel. I deeply regret that. I accept complete responsibility for this.”

A Department statement noted that "[w]e are aware that some travelers have not been able to obtain passports because of longer processing times caused by record-setting demand. Accordingly, we’re allowing flexibility because we are hearing about more cases of Americans missing flights.  As a service organization dedicated to helping Americans, we cannot let this happen."

U.S. citizens traveling to Canada, Mexico, the Caribbean and Bermuda who have applied for but not yet received passports can temporarily enter and depart from the U.S. by air with a government-issued photo identification and Department of State official proof of application for a passport through Sept. 30, 2007. U.S. citizens who take advantage of this accommodation will need to present the official proof of passport application to air carriers and to Customs and Border Protection (CBP) officers at air ports of entry. Such individuals may be subject to secondary inspection.

Travelers who have not applied for passports should plan 10 to 12 weeks for standard passport processing and two to three weeks for expedited processing, the Department said.

Details are available at http://travel.state.gov/travel/cbpmc/cbpmc_3254.html.  

8. 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 Steve in the 2007 edition of Chambers Global (see our July 5, 2007 newsletter at http://www.millermayer.com/new/news7_5_07.html (article no. 10)), Steve has again been listed in the 2007 edition of Chambers USA, a directory of the leading lawyers in the United States. 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 noted that “both [Steve’s] advocacy and [his] scholarship ensure his place in the highest echelon of the immigration bar.”   The guide also commented that Steve has “a terrific reputation that is thoroughly deserved.” Chambers reports that its rankings and comments are "independent and objective.”  

9.  Success Story:  EB-1-1 petition approved for extraordinary ability in business  

Attorney Carolyn Lee received an approval recently for an EB-1-1 petition for extraordinary ability in business.  Her client, a foreign national from Germany, has successfully founded three companies, as well as advised both the German and U.S. governments in his specialty of e-commerce and Digital Rights Management (DRM).  Carolyn argued that this client's extraordinary skill in running a business, originality documented by numerous patents, as well as his prestige and recognition in the field documented by many feature articles in business journals and significant awards, easily qualified him in the extraordinary ability category.  The service agreed and approved this petition in just eight days.  

10.  Immigration Processing Times

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.uscis.gov/cris/jsps/ptimes.jsp  

Department of Labor: http://www.foreignlaborcert.doleta.gov/times.cfm

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 immigration counsel. ABIL's web site is: http://www.abil.com/

For answers to any of your immigration questions, contact:

Hilary Fraser (mailto:htf@millermayer.com)
Nicolai Hinrichsen (mailto:nh@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. Prior results do not guarantee a similar outcome.

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