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October 3, 2003 Immigration News Update
Click for a Printable Version of this Article
In this issue:
1. H-1B Regulations Change October 1 With the beginning of the new fiscal year on October 1, the law and regulations governing the H-1B nonimmigrant visa made some considerable changes. As of October 1, H-1B petitions no longer require the $1000 training fee, but the annual cap for H-1B visas is reduced from 195,000 to 65,000. These changes in visa policy will have a significant impact on those considering petitioning for an H-1B visa this fiscal year. Even with the recession, about 79,000 H-1B visas subject to the cap were approved last fiscal year, which is more than the limit available this fiscal year. Moreover, the elimination of the $1000 training fee may result in an early rush of applications for employers anticipating a legislative reinstatement of the $1000 fee later this year. This combination may lead to a shortage in available visas early in 2004. Certain categories of H-1B petitioners are exempt from the cap. Colleges, universities, and certain nonprofit or governmental research organizations are clearly exempt. It is less clear whether other categories will continue to be cap-exempt. Stay tuned for more guidance. For a detailed explanation of the implications of this change, see the following article on our web site: www.millermayer.com/resources/nonimmigrant/h1memo.html 2. Washington Debates H-1B Visas; Yale-Loehr Testifies The approach of the new fiscal year and the changes it heralds for the H-1B visa has sparked a series of debates in Washington. As legislators rush to determine an appropriate annual H-1B cap and possibly reinstate the visa's filing fee, both supporters and detractors of the nation's H-1B program have made their voices heard. The Senate Judiciary Committee held a hearing September 16 on the H-1B controversy. Representatives of Intel Corp, Ingersoll-Rand, and the Institute of Electrical and Electronics Engineers (IEEE) testified on their experiences with the H-1B visa, as did True, Walsh & Miller's own Steve Yale-Loehr . Steve testified both as a Cornell Law School professor and as chair of the Business Immigration Committee of the American Immigration Lawyers Association. Steve provided an overview of the current H-1B situation and explained the visa's economic importance. As he explained in his statement, highly educated foreign professionals allow U.S. employers to develop new products, conduct groundbreaking research, implement new projects, expand operations, create additional new jobs, and compete in the global marketplace. To preserve the delicate balance between protecting American workers and satisfying America's need for highly educated foreign professionals, Steve proposed a modest cap increase and expanded exemptions from the numerical cap on the visa. By contrast, the IEEE complained that H-1B workers are taking jobs away from U.S. workers and lowering wages. The full text of Steve’s testimony can be read at the Senate Judiciary Committee's web site: http://judiciary.senate.gov/testimony.cfm?id=913&wit_id=475 3. Service Centers Can Now Start Removal Proceedings Starting October 1, 2003 the four regional immigration service centers can start removal proceedings against applicants who have violated immigration law. If a Service Center's review of a petition or application for immigration benefits leads an examiner to believe that the beneficiary poses a threat to public safety and national security; has engaged in immigration fraud schemes; or has committed other acts that constitute a basis for removability, the service center may not only deny the application but may also issue the beneficiary a "Notice to Appear" (NTA) in immigration court. Procedurally, once the NTA is issued, the service center will transfer the file to the district office for further enforcement action. This change could have important consequences for people who have immigration violations and who are filing for immigration benefits. It is more important then ever to consult with an immigration attorney before filing anything with one of the service centers. 4. More Agency Name Changes at the Department of Homeland Security A little more than six months ago, the Department of Homeland Security took over all functions of the former Immigration and Naturalization Service (INS) and distributed them among three new bureaus: the Bureau of Citizenship and Immigration Services (BCIS), the Bureau of Customs and Border Protection (BCBP), and the Bureau of Immigration and Customs Enforcement (BICE). Now all three of the immigration-related bureaus within the DHS are dropping the word "Bureau" from their names. The three entities are now known as the United States Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE), respectively. For the time being, filing fee checks made out to USCIS, BCIS, and DHS will all be accepted, as will checks to the INS. 5. Government Establishes Terrorist Screening Center In yet another step toward consolidating intelligence on international and domestic terrorism, the Justice Department, the Department of Homeland Security (DHS), the Department of State, the FBI, and the Central Intelligence Agency announced the creation of a new comprehensive source for terrorist watch-list information called the Terrorist Screening Center (TSC). The various agencies involved in the project will determine what information will be available to those searching the database. The DHS insists that all information received and disseminated is subject to the same legal limits to which it would be subject if the information were not included in the database. The DHS also claims that the creation of the TSC does not by itself provide any new law enforcement or collection powers to any governmental official. Rather, it consolidates information from the agencies involved and makes it accessible to those who need it. The DHS also intends TSC data to be used by DHS officials abroad who are participating in visa issuance screening (see article below). A fact sheet about the TSC is available at the DHS web site at: http://www.dhs.gov/dhspublic/interapp/press_release/press_release_0246.xml 6. DOS and DHS Reach Agreement on Visa Policy and Management The ongoing restructuring of immigration and citizenship policy in the United States continues with a memorandum of understanding (MOU) signed September 30, 2003 by the Department of State (DOS) and the Department of Homeland Security (DHS) concerning the visa process. The memorandum transfers responsibility for visa policy and oversight from the DOS to the DHS. The DHS will now establish most visa policies, have final approval over most DOS-initiated guidance, review implementation of visa policies, and ensure that homeland security requirements are fully reflected in the visa process, while respecting the Secretary of State's role in leading and managing the consular corps and its functions, managing the visa process, and executing U.S. foreign policy. The DHS will also assign DHS officials to visa issuing posts, where they will perform several functions such as training consular officers regarding specific security threats, reviewing visa applications, and conducting investigations. In fact, DHS personnel have been deployed in Saudi Arabia since August. The DHS officials there are required to review every visa application at the Riyadh and Jeddah posts. The DHS asserts that with the publication of the MOU and the deployment of DHS personnel abroad, those sent to consular and diplomatic posts will actively seek to enhance interagency sharing of terrorist information. The Homeland Security side of this movement will be embodied in the Visa Security Information Integration working group that will coordinate directly with the newly announced Terrorist Screening Center (discussed in the article above) to provide DHS officers at consular posts with access to information on potential terrorists and individuals with criminal intentions towards the United States. A statement by Under Secretary of Homeland Security Asa Hutchinson before the Senate immigration subcommittee about the MOU is available online at: 7. Social Security Administration Imposes Greater Restrictions on Social Security Numbers In a reaction to a wave of alleged fraud involving misappropriated social security numbers (SSNs), the Social Security Administration (SSA) has finalized a rule toughening its regulations for distributing SSNs. The new rule clarifies the definition of "valid nonwork reasons" for which social security numbers may be obtained by foreign nationals without work authorization, requires more people to have interviews before obtaining a SSN, and revokes the provision that waived the identity document requirement for children under the age of seven. Despite considerable national and international criticism that it presents a major hardship for many foreign nationals living legally in the United States, the new rule expressly states that "valid nonwork reasons" do not include the acquisition of a driver's license. Now, the only valid reason for a foreign national without work authorization to get a social security number is to satisfy a federal, state, or local law that requires foreign nationals to have a social security number before they can seek public assistance benefits. The new rule also changes age limits for in-person interviews by requiring all applicants twelve and older to meet with a SSA officer. There, SSA officers will attempt to determine whether an SSN has been previously assigned, and if it has not been, why one was not obtained earlier. Previously, in-person interviews were only required for those aged eighteen and older. Finally, the old provision allowing children under the age of seven to obtain a social security number with only a birth certificate as documentation has been effectively removed as a result of this new rule. Birth certificates alone are no longer considered sufficient, and all children applying for a new SSN must provide more extensive identity documentation, such as a medical record or school record. The full text of this new rule, including responses to public comments, can be found at the SSA's Social Security web site: http://www.ssa.gov/regulations/articles/rin0960_af05f.htm 8. Implementation of Machine-Readable Passport Requirement Postponed for 21 Countries The Department of State has temporarily waived for 21 countries the requirement that all travelers seeking admission to the United States under the visa waiver program possess a valid unexpired machine-readable passport. The action postpones until October 26, 2004 the machine-readable passport requirement for 21 of the 27 countries participating in the visa waiver program. The countries benefiting from this extension are: Australia, Austria, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Spain, Sweden, Switzerland, and the United Kingdom. Although Andorra, Brunei, Liechtenstein, Luxembourg, and Slovenia were eligible for an extension, none of these countries requested one, as the vast majority of their citizens already have machine-readable passports. Belgium, on the other hand, was ineligible for the postponement. Their citizens have been required since May 15, 2003 to present a machine-readable passport for visa-free entry into the United States. As reported by the New York Times on September 9, this action was ordered because of the chaos that could have resulted in the immediate aftermath of the implementation of the rule at the nation's ports of entry. The action created an interagency conflict between State Department officials looking to minimize delays for non-U.S. travelers and Department of Homeland Security officials, who considered the rule to be a valuable antiterrorist tool. To read the full text of the State Department decision, visit the State Department's website at: http://travel.state.gov/mrppostponed.html. 9. Government Makes Concession on Photographs with Religious Headgear U.S. Citizenship and Immigration Services (USCIS) has eased a ban on religious headgear in immigration photographs. Earlier this month, William R. Yates, Associate Director of Operations at USCIS, issued a memorandum announcing that immigration photographs will no longer be considered unacceptable if, for religious reasons, the subject's hair and/or right ear are concealed by a religious headcovering. However, those seeking to take advantage of this new rule must submit, in addition to the photographs, a written statement explaining why a photograph that meets the standard requirements of an uncovered head and/or visible right ear cannot be submitted. This USCIS memo is an attempt to bring its policy into conformity with a State Department policy that says "Head coverings and hats are only acceptable due to religious beliefs, and even then, may not obscure any portion of the applicant's face." While the new memo allows for the hair and/or right ear to be covered, USCIS remains adamant that for a photograph to be accepted, the subject should remain clearly identifiable. The memo reminds applicants that photographs in which religious garments cover the eyes or any other part of the face are still unacceptable. 10. Immigration Processing Times Now Publicly Available Current processing times for the four immigration regional service centers, local immigration offices, and state and regional Labor Department offices, are now publicly available on the American Immigration Lawyers Association web site. Just go to http://www.aila.org/ and go to the bottom of the page. Accessing that information will give you a better idea of how long immigration petitions are taking in your part of the country. 11. The Firm Speaks Steve Yale-Loehr will speak about visa options for students after they graduate at Cornell University on either October 21 or 23 at 7:30 pm. (The date has not been finalized.) Contact the Cornell ISSO for details. Steve will also speak about security clearances and other visa concerns for students and scholars at the NAFSA regional conference in Lake George, NY on November 10. Steve will also moderate a panel on current immigration controversies at a December 8, 2003 conference sponsored by the American Immigration Lawyers Association in New York City. _____________________ For answers to any of your immigration questions, contact: Hilary Fraser (mailto:htf@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. Copyright (c) 2003 Miller Mayer, LLP. All rights reserved.
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