In this issue:

1. Open for Business: HHS begins J-1 Waiver Program for Clinical Physicians
2. Earth to BCIS, Come in BCIS: The New BCIS Phone Policy
3. BCIS begins E-Filing – Our Firm’s Experience
4. PERM Regulation Delayed
5. Travel Delays: Check your Documents!
6. Department of Homeland Security to Implement US VISIT System
7. All Family Based Green Card Petitions to be Filed at National Benefits Center
8. State Department Announces Results of Diversity Visa Lottery
9. The Firm Speaks
10. Firm News and New Articles on Our Website

1. Open for Business: HHS begins J-1 Waiver Program for Clinical Physicians

On June 12, 2003, the U.S. Department of Health and Human Services (HHS) published its long awaited J-1 waiver program guidelines and announced that it has begun accepting applications. The program allows HHS to sponsor primary care physicians requesting waiver of the J-1 two-year home residency requirement. In return, physicians must agree to work forty hours a week for three years serving a health professional shortage area (HPSA) or medically underserved area or population (MUA/MUP).

The program is limited to primary care physicians who have completed training no more than twelve months before the date of commencement of employment in the waiver job contract. HHS defines primary care as general internal medicine, pediatrics, family care, obstetrics and gynecology, and general psychology. Only private or non-federal institutions, organizations, or agencies are allowed to submit an application. The application must demonstrate the health care facility’s failed, good faith recruitment effort. In addition, the recruitment effort must cover both regional and national markets. . For a full discussion of HHS requirements, please see our January 2003 newsletter article at: http://www.millermayer.com/new/news1_07_03.html

The HHS has no limit on the number of J-1 physician waivers it can issue, and will process the applications in the order received.

If you are interested in learning more about this beneficial program, please contact one of our immigration attorneys.

The HHS J-1 waiver program’s web page is: http://www.globalhealth.gov/exchangevisitor.shtml.

The HHS guidelines for the program can be viewed at: http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/2003/pdf/03-14882.pdf.

2. Earth to BCIS, Come in BCIS: The New BCIS Phone Policy

In an effort to enhance customer service, the Bureau of Citizenship and Immigration Services (BCIS) has centralized its telephone customer service. However, many may find the changes counterproductive.

Effective June 9, 2003, all telephonic inquiries to BCIS are received exclusively by the National Customer Service Center. The Vermont, Nebraska, Texas and California Service Centers no longer receive calls from the public on regularly filed cases. Only congressional liaison calls on regular cases are still received by the Service Centers. Premium processing units at the Service Centers, however, are still open to inquiries on premium processed cases.

Formerly, attorneys and clients were able to call the individual service centers to inquire about the status of a case, or to request corrections. For example, attorneys have often contacted BCIS service centers directly to make corrections to approvals, note changes in a country of citizenship, and to check on petition packages appearing to be lost or past normal processing times.

Now, attorneys and clients must contact the national customer service center and will have little hope of receiving any substantive information on cases. The operators answering calls will read from scripts and will have little knowledge of immigration processing or operation. Unless the question is very basic, the operator will not be able to answer. Instead, the operator will send a written inquiry to the appropriate service center. The service center then has 30 days to respond to the inquiry. Therefore, clients can expect at least a one-month delay before resolving even minor problems on non-premium processed cases.

The National Customer Service Center number is 1-800-375-5283. Information about the National Customer Service Center can be found on the BCIS website at: http://www.bcis.gov/graphics/services/NCSC.htm.

3. BCIS begins E-Filing – Our Firm’s Experience

On May 29, 2003 BCIS began accepting electronically submitted filings for two of the most commonly submitted immigration forms - the application to renew or replace a "green card" (Form I-90) and the application for an employment authorization document (EAD) (Form I-765).

Our firm found the system relatively user-friendly. The upside to e-filing is the instantaneous confirmation of a form’s receipt by BCIS. Additionally, a copy of the completed form is available for download in Adobe Acrobat’s PDF format once the form is submitted.

Unfortunately, e-filing has drawbacks. Currently, BCIS only accepts payment through an electronic transfer from a bank account. However, the Bureau is expected soon to begin accepting payment by credit card. Further, at least once during our firm’s e-filings, the BCIS website froze, forcing us to start anew with the filing we were currently completing. As another drawback, the e-filing system currently can only accept documentary evidence, if needed, by regular mail.

After e-filing, an applicant must schedule an appointment to visit an application support center (ASC) by calling the National Customer Service Center. In our experience, applicants were placed on hold for fifteen to twenty minutes before being able to schedule an appointment. At the appointment, the applicant will have their picture and fingerprint captured.

This fall the BCIS will begin expanding the program by allowing other commonly used forms to be submitted electronically, including Form I-129, Petition for Nonimmigrant Worker; Form I-131, Application for Travel Document; Form I-140, Immigrant Petition for Alien Worker; Form I-539, Application to Extend/Change Nonimmigrant Status; Form I-821, Application for Temporary Protected Status; and Form I-907, Request for Premium Processing. According to the BCIS, 90% of all immigrations forms will be available for online filing by 2005.

The BCIS provides an introduction to the new e-filing program at: http://www.immigration.gov/graphics/formsfee/forms/eFiling.htm .

4. PERM Regulation Delayed

The long awaited PERM regulation is now delayed until September, a U.S. Department of Labor (DOL) official recently advised. The PERM regulation seeks to streamline labor certification for companies seeking to employ and sponsor, foreign nationals as permanent residents within the United States.

The PERM regulation, first proposed in May 2002, was expected to be finalized in April of 2003 and implemented in July 2003. Now, the PERM regulation is expected to be issued in September 2003 and implemented in October or November 2003.

The PERM program aims to reduce backlogs in the labor certification process by removing state departments of labor from the review process, and making the federal application process a “pledge” system similar to LCA filings for H-1B temporary visa petitions. Under the PERM program, an employer will request and receive a prevailing wage from the state DOL, advertise the position, and file a report with the federal DOL describing the recruitment. USDOL will certify all complete applications in a matter of weeks, and conduct post-certification audits on only a portion of filings. PERM is expected to require more detailed job description and advertisement, than the current labor certification program. However, the expected dramatic reduction in processing time, if realized, will benefit businesses and beneficiaries.

Currently, the labor certification process takes years to complete. Even the DOL’s first attempt at streamlining the process, the Reduction in Recruitment (RIR) process, is now extending into many months or even years to complete. Many unanswered questions, particularly regarding the “upgrading” of now pending RIR cases once the PERM program starts, await resolution in the final rule.

The proposed PERM regulations from May 2002 can be viewed at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2002_register&docid=02-10570-filed.pdf

5. Travel Delays: Check your Documents!

Delay is the best one-word description of what foreign nationals may expect during travel outside the United States. Increased security measures are slowing the U.S. Department of State’s ability to process visa applications at U.S. consulates abroad.. Consular processing is also slowed and even suspended at some consular posts due to safety concerns. Moreover, the State Department will soon require all non-immigrant applicants to be interviewed by a consular official, which will further delay visa issuance and require foreign nationals to plan longer trips abroad. Travelers who seek visa issuance are reminded to call the U.S. consulate to confirm visa application procedures, and to allocate extra time for interviews. The State Department’s visa revalidation and reissuance program is also fraught with delays, is not available to applicants subject to security clearances, and may be ended altogether once nonimmigrant visa interviews become universal consular practice.

To project whether you may be subject to a security clearance, foreign nationals are recommended to check two important web sites: the Technology Alert List (TAL) at http://www.travel.state.gov/state147566.html , and our Travel Warning Alert at http://www.millermayer.com/resources/securityclearance.html .

Inspection and admission to the United States now also requires more time and patience. Registration requirements, background checks, and complicated travel rules and complicated new lines of authority among the five federal agencies now responsible for immigration burden inspectors. For example, while H portability permits a foreign national to be admitted to the United States carrying an unexpired H visa for one company and an approval notice or receipt for another, airline officials may not be familiar with this rule and may prevent boarding. Foreign nationals are reminded to carry all immigration filing receipts and be prepared to show proof of employment. It is also a good idea to check your I-94 card before leaving the U.S. inspection station to ensure that no mistakes were made by the inspector. Adjustment applicants who travel using advance parole are also reminded that secondary inspection is required and may cause additional delay at entry.

6. Department of Homeland Security to Implement US VISIT System

The Department of Homeland Security (DHS), in consultation with the Department of State, plans to implement an automated entry and exit system named the United States Visitor and Immigrant Status Indicator Technology (US VISIT) System. When fully implemented, US VISIT will provide the government with a single database of almost all foreign nationals in the United States.

When foreign nationals arrive in the United States, the US VISIT System will scan their travel documents, take their fingerprints, and photograph them. That information will then be checked against databases containing names of suspected terrorists and criminals. The procedure will be repeated when foreign nationals leave the country. The National Security Entry Exit Registration System (NSEERS) and the Student and Exchange Visitor Information System (SEVIS) will be incorporated into US VISIT. The DHS has referred to NSEERS as the “pilot project” of US VISIT.

The database will be shared with U.S. consular officials, port-of-entry officials, the Bureau of Immigration and Customs Enforcement (BICE), the Bureau of Citizenship and Immigration Services (BCIS), and other law enforcement agencies.

US VISIT will be implemented in stages. By December 31, 2003, all air and sea ports-of-entry are expected to be equipped with US VISIT. Land border posts are expected to be equipped with US VISIT a year or so later.

A DHS press release on the US VISIT program is available at: http://www.dhs.gov/dhspublic/display?content=736

7. All Family Based Green Card Petitions to be Filed at National Benefits Center

BCIS Director Eduardo Aquirre, Jr. recently approved the reconfiguration of the Missouri Service Center into the National Benefits Center (NBC). Once the transition is complete, NBC will begin accepting all family based immigrant visa petitions. Family based petitions include the I-130, I-485, I-765, I-131 and I-601 forms. NBC is also expected to eventually accept all N-400 (Application for Naturalization) forms.

This change will be gradually implemented starting in July 2003. At first, NBC will only accept family based petitions from the Pacific Northwest region of the United States (HI, AK, WA, MT, OR, ID, UT, WY and CO) and move clockwise around the country roughly every 60 days.

8. State Department Announces Results of Diversity Visa Lottery

On June 24, the U.S. Department of State announced the results of the 2004 diversity visa lottery program for people who applied last fall. A total of 7.3 million qualified entries were received out of 10.2 million who applied. The State Department reported that 2.9 million applications were either received outside of the mail-in period or were disqualified for failing to properly follow directions.

The green cards have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country. During the visa interview, principal applicants must provide proof of one of the following: (1) a high school education or its equivalent, or (2) two years of work experience within the past five years in an occupation that requires at least two years of training or experience.

Those selected will need to act on their immigrant visa applications quickly once the new federal fiscal year begins October 1. They must obtain their green cards by September 30, 2004.

Only participants in the DV-2004 program who were selected for further processing have been notified. Those who have not received notification were not selected. They may try for the upcoming DV-2005 lottery if they wish. The dates for the mail-in period for the DV-2005 lottery will be announced in August 2003.

To read the complete State Department announcement, which includes a statistical breakdown by country of those who were selected for DV-2004, go to: http://travel.state.gov/dv2004results.html

9. The Firm Speaks

Steve Yale-Loehr recently moderated a panel on June 19, 2003 at the annual conference of the American Immigration Lawyers Association (AILA). The panel provided an overview of immigration law, including recent developments, for beginning immigration lawyers.

Steve will chair a one-day conference for beginning immigration lawyers at the Practicing Law Institute in New York City on September 3. Information about the program can be found at: http://www.pli.edu/product/upprog_prod_detail/product_overview.asp?wtype=1&ptid=3&stid=8&pid=EN00000000011703

10. Firm News and New Articles on Our Website

Steve Yale-Loehr has co-authored a major new report entitled “America’s Challenge: Domestic Security, Civil Liberties, and National Unity After September 11.” It provides the most comprehensive analysis to date of our government’s immigration actions taken since September 11, from three distinct perspectives. America’s challenge is to both defend our nation and protect core U.S. values without alienating whole communities and groups. Doing so requires a different approach that is outlined in the report’s analysis and detailed recommendations. A summary of the report and its findings and recommendations can be downloaded at: http://www.migrationpolicy.org/ The report has received wide attention in the press.

Steve Yale-Loehr has been appointed to head AILA’s business immigration committee for 2003-04. The committee advises AILA on major business immigration issues and lobbies the immigration agencies and on Capitol Hill for sensible business immigration measures. Steve expects to be particularly busy this fall on H-1B and L-1 visa issues.

Hilary Fraser has been named a member of AILA’s liaison committee to the Vermont Service Center for 2003-04. This means Hilary will be on top of the latest developments at the VSC for our clients and AILA members.

Steve Yale-Loehr has co-authored a new article about recent controversies in the L-1 intracompany transferee visa category. The article is at: http://www.millermayer.com/new/L1Visaprogramunderattack.html. Background information about the L visa program is available at: http://www.millermayer.com/new/L-1visa.html

A new fact sheet about the Student and Exchange Visitor Information System (SEVIS) program for international students and scholars is available at: http://www.millermayer.com/resources/nonimmigrant/sevisfact.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.

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.

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Copyright (c) 2003 True, Walsh & Miller, LLP. All rights reserved.