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February 13, 2008 Immigration News Update from Miller Mayer
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(http://www.millermayer.com/): 1. Naturalization Processing Times Increase Drastically 1. Naturalization Processing Times Increase Drastically Because of a surge in applications over the summer and resulting massive backlogs, partly in anticipation of fee increases, the average processing time for naturalization applications has increased for applications filed after June 1, 2007, from the past average of seven months or less to approximately 18 months, U.S. Citizenship and Immigration Services (USCIS) said. Family-based adjustment of status applications increased from the past average of six months or less to 12 months. Specifically, USCIS noted that in July and August of 2007, the agency received nearly 2.5 million applications and petitions, which was double the number typically received in a two-month period. In fiscal year (FY) 2007, USCIS received 1.4 million applications for naturalization, more than the totals from FYs 2006 and 2005 combined. Forty percent of those, or 562,000, were filed in the fourth quarter. Applications for employment- and family-based adjustment of status increased by 76 percent, from 497,000 in FY 2006 to 875,000 in FY 2007. USCIS said it plans to reduce processing times to six months by the third quarter of fiscal year 2010. USCIS Director Emilio Gonzalez noted that up to several thousand new employees are being hired and trained to deal with the "deluge." This is in addition to about 700 retired federal government employees who are being hired back without having to sacrifice their pensions, under a plan proposed by Sen. Charles Schumer (D-N.Y.). A sign-on letter expressing deep concern about the delays notes, among other things, that "[m]any of the undersigned organizations opposed fee increases of the magnitude that USCIS proposed and warned that if USCIS were to proceed with the fee increases, it must prepare for a surge in applications from immigrants wishing to avoid the fee increases. In fact, USCIS did move forward with the fee increases, but did not adequately prepare to handle such a surge." The sign-on letter is available at http://www.aila.org/content/default.aspx?docid=24331. An announcement about processing times and case status is available on page 5 of USCIS's December 2007 newsletter at http://www.uscis.gov/files/nativedocuments/USCIS_Monthly_Dec07.pdf. Related testimony from Mr. Gonzalez on January 17, 2008, before the House of Representatives' immigration subcommittee is available at http://www.uscis.gov/files/testimony/testimony_ETG_17jan08.pdf. 2. H-2B Cap Reached U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the second half of fiscal year (FY) 2008. USCIS stated that January 2, 2008, is the "final receipt date" for new H-2B worker petitions requesting employment start dates before October 1, 2008. The final receipt date is defined as the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the second half of FY 2008. USCIS said it is rejecting any petitions for new H-2B workers seeking employment start dates before October 1, 2008, that arrive after January 2, 2008. The agency will apply a computer-generated random selection process to all petitions subject to the cap that were received on January 2, 2008, to select the number of petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected. Petitions for workers who are currently in H-2B status do not count toward the congressionally mandated biannual H-2B cap. USCIS will continue to process petitions filed to extend the stay of a current H-2B worker in the U.S.; change the terms of employment for current H-2B workers and extend their stay; or allow current H-2B workers to change or add employers and extend their stay. Kathleen Campbell Walker, President of the American Immigration Lawyers Association (AILA), said, "This continuing failure to connect the dots between meeting valid labor needs and our immigration laws is inexcusable. Placing America at a competitive disadvantage is unacceptable. Maxing out on a cap four months before the applicable period even begins shows how little relation there is between immigration policy and the needs of the economy." AILA said that service industries such as hospitality, including restaurants and hotels, landscaping, construction, and seafood processing are among those most damaged by Congress's inaction. The USCIS announcement is available at http://www.uscis.gov/files/pressrelease/H-2B_3jan08.pdf. AILA's press release is available at http://www.aila.org/content/default.aspx?docid=24215. 3. H-1B Cap for Fiscal Year 2009 Likely to be Reached on April 1, 2008 The U.S. Citizenship and Immigration Services (USCIS) announced that it anticipates April 1, 2008 will see a repeat of the mass filings from last year. USCIS will begin accepting H-1B petitions for the upcoming fiscal year (October 1, 2008 to September 30, 2009) beginning on Tuesday, April 1, 2008. We expect that all H-1B cap numbers, including those in the cap for U.S. graduate degree holders, to be taken from filings received on April 1. Therefore, if you need to file an H-1B petition for your employment or for an employee, your petition will have to be sent out on March 31 for receipt on April 1. If you would like us to prepare and file that petition for you, we ask that you contact us as soon as possible, and preferably before the end of February, so that we can prepare your petition for a timely filing. Please email any of our attorneys or our legal assistant, Peter Joseph (pj@millermayer.com) to begin this process. Despite two retrogressions of the India employment second preference cut-off date recently, demand for numbers by U.S. Citizenship and Immigration Service offices for adjustment of status cases has remained extremely high in recent months, the Department of State reported in the February 2008 Visa Bulletin. As a result, the annual limit for the India employment second preference immigrant visa category has been reached, and the category has become “unavailable." The latest Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3925.html. 5. State Dept. Issues Travel Documentation Reminder The Department of State issued a reminder that effective January 23, 2007, all persons traveling by air between the U.S. and Canada, Mexico, Bermuda, and the Caribbean region must present a passport or other valid travel document to enter or re-enter the U.S. Beginning January 31, 2008, U.S. and Canadian citizens need to present either a Western Hemisphere Travel Initiative (WHTI)-compliant document, or a government-issued photo ID, such as a driver’s license, plus proof of citizenship, such as a birth certificate. At a later date, to be determined, the Departments of State and Homeland Security will implement the full requirements of the land and sea phase of WHTI. Proposed rules require most U.S. citizens entering the U.S. at sea or land ports of entry to have either a U.S. passport; a U.S. passport card; a trusted traveler card such as NEXUS, FAST, or SENTRI; a valid Merchant Mariner Document (MMD) when traveling in conjunction with official maritime business; or a valid U.S. Military identification card when traveling on official orders. Members of the U.S. Armed Forces on active duty traveling on orders are exempt from the passport requirement. The passport requirement does not apply to U.S. citizens traveling to or returning directly from a U.S. territory. U.S. citizens may begin applying in advance for the new, limited-use, wallet-size passport card beginning February 1, 2008. The Department said it expects that the cards will be available and mailed to applicants in spring 2008. When available, it will only be valid for land and sea travel between the U.S. and Canada, Mexico, the Caribbean region, and Bermuda. A related 23-page letter on the WHTI from Richard Stana, Director of Homeland Security and Justice Issues for the Government Accountability Office, to the House of Representatives' Subcommittee on Border, Maritime and Global Counterterrorism, is available at http://www.aila.org/content/default.aspx?docid=24355. Among other things, Mr. Stana noted that the GAO "acknowledge[s] that DHS has taken a number of actions to prepare for testing and deploying technologies and managing the implementation of other WHTI activities. However, as key elements of planning for program management and execution remain uncertain, we continue to believe that DHS faces challenges deploying technology, and staffing and training officers to use it." More information on the WHTI is available at http://travel.state.gov/travel/cbpmc/cbpmc_2223.html. 6. Steve Yale-Loehr Published in New York State Bar Association Personal Injury Treatise Attorney Steve Yale-Loehr authored Chapter 18, titled “The Immigrant Client”, in the Personal Injury Treatise – The Plaintiff’s Personal Injury Action in New York State - soon to be published by the New York State Bar Association. The book aims to provide the most comprehensive review of plaintiff personal injury practice in New York State by having legal experts write respective chapters pertinent to their area of expertise. Steve’s chapter focuses on how to handle personal injury cases when representing an immigrant plaintiff. More specifically, it highlights the significance of identifying an immigrant’s status in the U.S., analyses the key cases in both the federal and New York courts, and emphasizes the benefits of consulting with a good immigration lawyer when involved in this area of law. Furthermore, the chapter scrutinizes a recent New York State Court of Appeals decision, Balbuena v. IDR Realty LLC, and how that decision has set precedence in this niche of personal injury law. Lindsay Schoonmaker, an immigration researcher/writer at Miller Mayer, assisted Steve with the chapter. 7. 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 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: 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. 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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