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July 31, 2003 Immigration News Update
Click for a Printable Version of this Article In this issue:
1. Congress Mulls L-1 Visa Reform; Yale-Loehr Testifies Several bills have been introduced recently in Congress that would restrict use of the L-1 visa category. This nonimmigrant visa category is reserved for foreign employees of multinational companies who seek to temporally enter the United States to fill an executive, managerial or “specialized knowledge” position within the United States. To qualify for an L-1 visa an employee normally must have worked for one year abroad at a foreign affiliate of the U.S. business that sponsors him or her. Background information about the L visa program is available at: http://www.millermayer.com/new/L-1visa.html In this sour economy, the L-1 visa has become a lightening rod for criticism from immigration opponents who blame companies of abusing the category and taking away jobs from U.S. workers. See generally http://www.millermayer.com/new/L1Visaprogramunderattack.html. While the bills differ in detail, many of them would make the requirements for the L-1 visa category similar to the requirements for the H-1B visa category, such as imposing attestation requirements on L-1 employers. Some of the bills would also cap the number of L-1 visas that could be issued annually. Additionally, the bills would forbid L-1 visa holders from working at third party worksites. The Senate immigration subcommittee held a hearing on the L-1 visa on July 29, 2003. As a leading national expert on immigration law, True, Walsh & Miller’s own Steve Yale-Loehr testified before the committee, stating that “proposals to restrict use of the L-1 visa would unnecessarily limit its legitimate use, thereby diminishing the economic competitiveness of U.S. companies, impeding foreign investment in the United States, and resulting in the loss of American jobs.” The link for the hearing, which should eventually include the witness statements, is online at: http://judiciary.senate.gov/hearing.cfm?id=878 2. State Department Requires Interviews for Most Nonimmigrant Visa Applicants In another example of increased security after the terrorist attacks of September 11, 2001, the State Department has published a rule requiring most nonimmigrant visa applicants to be interviewed. Effective August 1, 2003, interview waivers will no longer be granted to applicants for B, C-1, H-1, I, J, and crewmember visas. This could mean significant delays for nonimmigrants applying for these visas as well as for other visa applicants. On the positive side, the State Department has instructed its consular posts to give priority to visa interviews for students and exchange visitors in the professor, student, and research scholar categories so that they may timely begin their fall programs. Once the regulation takes effect on August 1, only nonimmigrant visa applicants in the following six categories will be eligible for an interview waiver: (1) children age 16 and under; (2) persons age 60 and over; (3) most people applying for A, C-2, C-3, G, or NATO visas (except attendants, servants and personal employees); (4) foreign nationals applying for diplomatic or official visas; (5) most people seeking re-issuance of a nonimmigrant visa within 12 months of the expiration of their previous visa; and (6) foreign nationals for whom an interview waiver is warranted in the national interest or because of unusual circumstances, as determined by the consular officer. The new regulation can be found at: http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/2003/03-17044.htm 3. Machine-Readable Passport Required for Visa Waiver Travelers Beginning October 1, 2003, nonimmigrant travelers visiting the United States from countries in the visa waiver program must have a machine-readable passport. Anyone in this program without a machine-readable passport will be required to obtain a U.S. nonimmigrant visa before entering the United States. This new requirement applies to both adults and children, including infants, and all passport categories: regular, official and diplomatic. Any traveler without a machine-readable passport attempting to enter the United States on a visa waiver basis after the new regulation takes effect may be denied entry by immigration inspectors. A machine-readable passport can generally be identified by the presence of two typeface lines printed at the bottom of the biographical page that can be read by machine. Anyone that has any doubt about whether a passport qualifies as machine-readable should check with the passport issuing authority for that country. People affected by this new rule are citizens of any of the 27 countries currently in the visa waiver program, which permits entry into the United States for tourist or general business purposes for up to 90 days without a visa. These countries are: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. Canadian citizens are not affected by the new regulation. Canadian visitors to the United States with a passport that is not machine readable will not be required to obtain either a visa or a machine readable passport for the foreseeable future. Canada is not part of the visa waiver program. For more information on the visa waiver program rules and regulations, visit the Department of State’s web site at http://travel.state.gov/vwp.html. 4. BCIS May Implement Pilot Precertification Program Bureau of Citizenship and Immigration Services (BCIS) officials recently announced that they are thinking of starting a pilot program to “pre-certify” employers filing a high number of employment-based immigrant visa petitions. Such a program would greatly reduce needless duplication of documentation. Currently, business employers must submit financial and managerial information for each employee they sponsor for a green card. For example, employers submitting multiple I-140 immigrant visa petitions must demonstrate the ability to pay each foreign national beneficiary. For companies submitting numerous green card petitions each year the process is needlessly burdensome for both the company and the BCIS. The company must organize, copy and submit information that it has already been submitted to the BCIS, and the BCIS must review company information anew even though it has reviewed the information before. If implemented, the “pre-certification” program will allow companies to submit only one set of managerial and financial documentation to the BCIS each year. At first the pilot would only be available to a very limited number of companies with high BCIS usage. The pilot program could begin as early as September 2003. 5. Immigration Statistics for Fiscal Year 2002 Released The BCIS recently released immigration statistics for fiscal year (FY) 2002. According to BCIS statistics, 1,063,732 persons immigrated to the United States in FY 2002. This number is almost the same as for FY 2001 and reflects the continuing influence of adjustment of status application backlogs on immigration law. Most of the legal immigrants were eligible through family connections as either an immediate relative of a U.S. citizen (486,748 or about 46%) or as a family preference immigrant (187,069 or about 18%). Only 179,968 immigrants (or about 17%) were eligible as employment-based immigrants. 126,084 adjusted from asylee or refugee classification, while an additional 42,829 were diversity program recipients. The BCIS’ press release announcing the release of the immigration numbers for FY 2002 is available at http://www.bcis.gov/graphics/publicaffairs/newsrels/legalimmfig.htm. 6. Health Care Workers Beware: Certification Soon Required The Department of Homeland Security (DHS) has issued regulations requiring all foreign healthcare workers to possess certification verifying that their education, experience, and English language ability and training are equivalent to that of a U.S. health care worker. The regulations take effect September 23, 2003. However, due to prior mandate, a blanket waiver of the certification requirement is in place until July 26, 2004. Thus, the true effective date of the regulations is July 26, 2004. Both immigrants and nonimmigrants are subject to this rule. However, immigrants are not truly affected by the rule because the requirements for permanent residency as a health care worker already require certification. Certification will be required of (1) licensed practical nurses, licensed vocational nurses, and registered nurses; (2) occupational therapists; (3) physical therapists; (4) speech language pathologists and audiologists; (5) medical technologists; (6) physician assistants; and (7) medical technicians (clinical laboratory technicians). Physicians, students and exchange visitors, and non-clinical health care occupations are currently exempt from the regulation. Certification can be obtained through agencies recognized by the DHS and announced in the Federal Register. One such agency is the Commission of Graduates of Foreign Nursing Schools (CGFNS). All subject foreign nationals must be certified, even if they were educated within the United States. However, graduates from certain English-speaking countries are exempt from the English language requirement. As of July 26, 2004, certain nonimmigrant workers in the health care field will have to present certifications each time they apply for a visa, admission into the United States, a change in status or an extension of stay. A subject health care worker within the United States who does not possess certification after July 26, 2004 should not travel, as they will be required to present certification upon their reentry into the United States. The full text of the regulation is at: 7. The Firm Speaks Steve Yale-Loehr 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 Steve Yale-Loehr will participate on a panel about security clearances and other visa concerns for students and scholars at the NAFSA regional conference in Lake George, NY on November 10. 8. New/Revised Articles on Our Website We have a new article about export controls as they affect immigration issues at http://www.millermayer.com/new/exportcontrol.html A revised article about the blanket L visa program is at http://www.millermayer.com/new/L-1 blanket visa.html We have revised our memo about the pros and cons of adjustment of status versus consular processing. The revised memo is at http://www.millermayer.com/resources/immigrant/immigrant13cont.htm We have also updated our memo about the labor certification process. See http://www.millermayer.com/resources/immigrant/immigrant2cont.htm For answers to any of your immigration questions, contact: Hilary Fraser (mailto:htf@millermayer.com)
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