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January 7, 2008 Immigration News Update from Miller Mayer
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(http://www.millermayer.com/): 1. Fees Raised for Nonimmigrant, Immigrant Visa Applications; BCCs 1. Fees Raised for Nonimmigrant, Immigrant Visa Applications; BCCs The Department of State has published an interim final rule, effective January 1, 2008, that raises from $100 to $131 the fee charged to process an application for a nonimmigrant machine-readable visa (MRV) and Border Crossing Card (BCC). Applicants who paid the prior $100 application fee before January 1 will be processed only if they are scheduled and appear for a visa interview on or before January 31. Applicants who paid the prior $100 application fee and appear for visa interviews after January 31, 2008, must pay the difference ($31) before they will be interviewed. The rule also increases the immigrant visa fee by $20, to $355. The Department said it is adjusting the fees "as an emergency measure to ensure that sufficient resources are available to meet the costs of processing nonimmigrant and immigrant visas in light of increased security measures put in place since 2004 and fee collection mandates on behalf of the Federal Bureau of Investigation." The primary reason for increasing the fees, the Department noted, is that in January 2008, the Department "will begin paying fees to the FBI for checking the fingerprints against the FBI's Integrated Automated Fingerprint Identification System (IAFIS) and for running visa applicant names through Security Advisory Opinion (SAO) processes." The estimated total increase in cost for nonimmigrant visa applicants is $310 million ($31 per applicant, with an estimated 10,000,000 applicants). The estimated total increase in cost for immigrant visa applicants is $14 million ($20 per applicant, with an estimated 700,000 applicants). The full text of the interim final rule is available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-24646.pdf. The Department's related notice is available at http://www.state.gov/r/pa/prs/ps/2007/dec/97384.htm. 2. India Second Preference Immigrant Visa Cut-Off Date Retrogresses The Department of State announced that, for January, it has been necessary to retrogress the India employment second preference cut-off date because of continued heavy applicant demand for numbers by U.S. Citizenship and Immigration Services for adjustment of status cases. The Department said it is likely that the annual limit for this category will be reached within the next few months, at which time the category would become “unavailable” for the remainder of fiscal year 2008. The January 2008 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3897.html. 3. Revised I-9 Verification Forms Now Required U.S. Citizenship and Immigration Services (USCIS) reminded employers that they should have transitioned to using the revised Employment Eligibility Verification Form (I-9). The revised I-9, which includes the revision date (Rev. 06/05/07)N printed on the lower right corner of the form, is now the only version valid for use. Effective December 26, 2007, employers who fail to use the revised form are subject to applicable penalties. The revised form is available at http://www.uscis.gov/files/form/i-9.pdf, and accompanying instructions are at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=31b3ab0a43b5d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD. The "Handbook for Employers, Instructions for Completing the Form I-9" is available at http://www.uscis.gov/files/nativedocuments/m-274.pdf. The reminder is available at http://www.uscis.gov/files/pressrelease/FormI9Reminder112307.pdf. 4. Department of State Expands Fingerprinting and Name Checks The Department of State has issued a final rule on documentation of nonimmigrants entering the U.S. Specifically, the Department has begun performing fingerprint and name checks on all visa applicants except those falling within a narrow range of exceptions. Fingerprints are now required of all visa applicants except those under the age of 14 or over the age of 79 and certain diplomats and officials. Beginning on January 1, 2008, the cost of such checks is included in visa fees, including the fees for nonimmigrant visas. The final rule is available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-25417.pdf. 5. Oral Declarations of Citizenship No Longer Sufficient At Land, Sea POEs Citizens of the United States, Canada, and Bermuda entering the U.S. at land or sea ports-of-entry (POEs) must establish their identity and citizenship to the satisfaction of a U.S. Customs and Border Protection (CBP) officer. Under current CBP procedures, such individuals may provide any proof of identity and citizenship. Although most individuals provide documentary evidence of citizenship, such as a passport or birth certificate, individuals currently may be admitted on an oral declaration, depending on the circumstances. Effective January 31, 2008, however, all travelers must present documents proving citizenship (such as a birth certificate), and government-issued documents proving identity (such as a driver's license), when entering the U.S. through land and sea POEs. CBP retains its authority to request additional documentation when warranted and to make appropriate individual exceptions. For more on the new requirements, see http://travel.state.gov/travel/cbpmc/cbpmc_2223.html. 6. Department of State to Begin Issuing Passport Cards To be "responsive to the needs and concerns of the border communities and to facilitate the travel of border community residents," the Department of State has finalized a proposed rule issued in October 2006 providing for a card-format passport as a less expensive and more portable alternative to the passport book. The final rule explains that the passport card does not need to be signed to be valid, whereas the passport book requires a signature to be valid. In addition, it makes clear that those requesting and eligible for a no-fee passport will receive a passport in book form only. The Department said it received over 4,000 comments regarding the proposed rule. Among those submitting comments were four members of Congress; the governments of Canada and two of its provinces (Manitoba and New Brunswick); a Native American government (Haudenosaunee Confederation, New York); and dozens of city, county, and municipal governments. Also represented were the U.S. Postal Service, the Air Transport Association, over two dozen technology companies and privacy interest groups, five tourism interest groups, and three offshore drilling concerns. All four members of Congress, as well as technology, security, and privacy groups, said they were concerned about the choice of "vicinity read'' radio frequency identification (RFID) technology for the passport card. The opinion expressed by many commenters was that vicinity read technology is not as secure as the proximity read technology currently used in the U.S. e-Passport because it could result in the unauthorized reading of information that could lead to identity theft and tracking of U.S. citizens by terrorists or the government. Several commenters mentioned a 2006 Government Accountability Office review of the US-VISIT program, which reported a low read rate using this type of technology and a statement in the report that it should be used only to track goods, not to identify people. A private company that designs, manufactures, and markets both vicinity and proximity read technology chips commented that the choice of vicinity read technology could have the unexpected result of compromising the security of U.S. borders while severely affecting the personal privacy of U.S. citizens. They also questioned whether vicinity read technology would necessarily improve border crossing times. The Department said that the vast majority of such comments "reflected an improper understanding of the business model that WHTI [the Western Hemisphere Travel Initiative] is designed to meet and how the technology selected would actually be implemented." Vicinity-read RFID technology "should allow CBP [Customs and Border Protection] officers to quickly obtain information about the border crosser and perform terrorist watch list checks while they are still awaiting a personal inspection and to read multiple cards simultaneously." To ensure compatibility and interoperability with the Department of Homeland Security's border management system, and to secure "significant travel facilitation advantages," the Department of State said it will produce the passport card using vicinity RFID technology. "The operational concept that this rule promulgates should enable information about a border crosser to be queued while they are awaiting their interviews with the border officers, rather than waiting until they are face-to-face with the officer to provide their personal information," the Department said, adding that this approach "is designed to substantially reduce wait times at the border, which was the key driver in development of the WHTI passport card business case." The Department explained that the vicinity RFID electronic chip contains only one item of information: a unique identifying number that has meaning only inside the secure CBP computer system. No other form of personally identifiable information, such as name, date of birth, Social Security number, or place of birth, will be stored electronically on the passport card or transmitted through RFID. All personal information will be contained in Department of Homeland Security systems and will be accessible only by authorized personnel through secure networks, the Department said. Upon receipt of the passport card number, the border crosser's personal information will be downloaded from the CBP system and provided to the CBP officer. The CBP officer will then interview the individual, verify his or her identity, and determine the appropriate action to take. All card holders will also be issued a protective sleeve for the card, which prevents transmission of the card's unique identifying number. Additionally, use of the passport card is not mandatory. Border crossers who would prefer to use traditional passports may continue to do so, the Department said. Many commenters also discussed the technology solution in the e-passport, whose business model is different from that of the WHTI, the Department said. In the e-passport case, a different technology solution was selected that enables transfer of personal information in a secure, encrypted, manner. The technology solution for e-passports does not meet the business model for the specific WHTI application, so it was not selected, the Department noted. The final rule is available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-25422.pdf. 7. State Dept. Issues Final Rule on Exchange Visitor Program Sanctions, Terminations Effective January 22, 2008, the Department of State is adopting as final, with "minor edits," its proposed rule on exchange visitor program sanctions and terminations as published on May 31, 2007. The final rule includes two new grounds for sanctions or terminations: actions that may compromise national security or undermine U.S. foreign policy objectives. The Department also eliminated the requirement that it find alleged violations to be willful or negligent before imposing sanctions. "Since knowledge and ability to comply and remain in full compliance with the regulations are fundamental requirements of sponsor designation, it is essentially irrelevant whether a sponsor violates regulations willfully, negligently, or even inadvertently," the Department noted. "Violations, whether or not willful or negligent, may harm the national security or the public diplomacy goals of the United States, or pose a threat to the health, safety or welfare of program participants, and the Department must have the capacity to respond appropriately. Moreover, the process set forth in the revised sanctions regulations provides that a sponsor being sanctioned may submit a statement in opposition to or mitigation of the proposed sanction." The supplementary information to the final rule, which was published on December 20, 2007, and is available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-24650.pdf, includes a number of comments received on the proposed rule, along with the Department's responses. 8. Cap-Subject H-1B Applicants: Contact Our Office ASAP to File On April 1, 2008 Anyone who is planning on applying for a cap-subject H-1B nonimmigrant visa in the coming months should contact our office as soon as possible. This especially applies to H-1B applicants with Master’s degrees. The filing will be accepted by USCIS in the order received beginning April 1, 2008, which means you will want the petition ready to go well before that date. 9. New Article on Our Website: “USCIS Increases Oversight of EB-5 Regional Centers” Attorney Steve Yale-Loehr and Research Assistant Lindsay Schoonmaker have co-written an article about the recent increased oversight of already existing EB-5 regional centers and of new applications for EB-5 regional center designation. This trend in U.S. immigration law is becoming increasingly important, as cited in the article: “As the number of EB-5 immigrant investor applicants ramps up, so too does the number of regional center applications. Likewise, USCIS is stepping up its review of new regional center applications and increasing oversight of existing regional centers to ensure that the EB-5 program grows in a responsible way.” The full text of the article can be found at http://www.millermayer.com/new/eb5_reg_ctrs.html. 10. Complete Summary of Conrad State 30 Program Available on Our Website Almost all foreign medical graduates in J-1 status in the United States are subject to a two year home-residency requirement. One of the ways to waive this requirement is the Conrad State 30 program, which allows for the condition to be waived as long as the doctor agrees to work in a designated Health Shortage Professional Area (HPSA) for a period of three years. The complete summary now available on our website offers a state-by-state review of the Conrad 30 Program, including: practice areas needed; whether Fellowship training is allowed; notable requirements; and contact information. The full summary can be found at http://www.millermayer.com/resources/medical/conrad.html. 11. Success Story: EB-1-1 Green Card Approval for Ballerina Attorney Carolyn S. Lee had a recent EB-1-1 extraordinary ability immigrant visa petition approved for a world-class ballerina. This ballerina’s credentials included not only recognition in her home country, but also a renowned name in the United States where she performs as a soloist for one of the leading American ballet companies. She has had reviews published in prestigious newspapers such as the New York Times and been featured in leading industry journals. She has danced in many of the top ballet companies of the world, has been chosen to perform with many of the other principal ballet performers of the world, and has been chosen to model and be the spokesperson for one of the main ballet shoe companies. Carolyn emphasized this dancer’s satisfaction of six, not the merely the three required, criteria for the EB-1-1 category and it was approved without a request for additional evidence. For more on EB-1-1 cases generally, visit our web site at http://www.millermayer.com/resources/immigrant/eb1immigrationresources.html 12. Success Story: H-3 Approval for Trainee at Arts Organization Carolyn Lee also recently received an approval in just six days for an H-3 trainee petition. The applicant had been shut out of the H-1B cap lottery in FY 2007. The position was for a trainee in a prominent arts organization in NYC. Detailed information about the training program and how it was a unique U.S.-based opportunity was included, allowing for such quick processing time. 13. 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 _____________________
Some of the information in this issue also comes from the Alliance 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: 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. To unsubscribe to this newsletter, email mailto:gjh@millermayer.com. Please type "unsubscribe to millermayer.com immigration newsletter" in your subject line. Copyright (c) 2008 Miller Mayer, LLP. All rights reserved.
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