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September 3, 2004 Immigration News Update
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1. 56,100 H-1B Petitions Approved Against Fiscal Year 2005 Cap 1. 56,100 H-1B Petitions Approved Against Fiscal Year 2005 Cap The U.S. Citizenship and Immigration Services (CIS) has announced that as of early August it had adjudicated 40,000 H-1B petitions for fiscal year 2005, which begins October 1, 2004. H-1B visas allow qualified foreign nationals to work temporarily in a specialty occupation that involves highly specialized knowledge and requires at least a bachelor's degree in the specialty or its equivalent. The total number of new H-1B petitions that can be approved each year is capped at 65,000. This number includes 6,800 H-1B numbers reserved for foreign nationals from Chile and Singapore, whose countries have recently entered into free trade agreements with the United States. The CIS began accepting H-1B petitions for the 2005 fiscal year on April 1. At the end of May the CIS announced a lower than expected number of approvals against the H-1B cap for fiscal year 2005. This number caused optimism that the cap would not be reached until November. However, at the current rate the cap may be reached this month. The fast-approaching cap does not mean it is impossible to obtain an H-1B visa. If the CIS follows last year as an example it will issue a deadline by which H-1B applications must be received for adjudication. This means that H-1B applicants would only have to have their petitions submitted before the deadline, not approved. There are also several major exemptions to the H-1B cap. These exemptions include foreign nationals already in H-1B status, physicians who have received J-1 waivers, and workers in nonprofit organizations or in institutions of higher learning. Members of these categories remain eligible for H-1Bs after the cap is reached. For a summary of recent changes to the H-1B category see the following article on the True, Walsh & Miller web site: 2. CIS Continues to Expand InfoPass Availability InfoPass, the U.S. Citizenship and Immigration Services' (CIS) Internet-based appointment system, is now available in most of the 33 CIS district offices, including all major districts on the East and West Coasts. The CIS hopes to have InfoPass servicing every district by October 1, 2004. Implemented as part of the CIS' backlog reduction strategy, InfoPass replaces the old process of standing in line to wait for a chance to see an immigration official. According to a CIS press release, in busy districts like New York City, which may serve over 350,000 people a year, those waiting to see immigration officials would line up before dawn to ensure they had a chance to get assistance. CIS Director Eduardo Aguirre touted InfoPass as "another important stride for the [CIS] in our commitment to offer customers first rate service." InfoPass is just one of several innovations designed to improve service. Most notably, the CIS provides an electronic filing system, E-filing, which supports eight of the most frequently used immigration application forms. By the end of 2006, the CIS hopes to offer 12 forms via e-filing, which would account for 90% of the applications filed yearly. Applicants are also able to check their statuses electronically and receive e-mail updates when their status changes. To read more about InfoPass and the other electronic services offered by the CIS, visit: www.uscis.gov. 3. US-VISIT Program Expands On August 3, 2004 the Department of Homeland Security (DHS) began the pilot phase of the U.S. Visitor and Immigration Status Program (US-VISIT) departure process at Chicago's O'Hare airport. US-VISIT is the system by which each foreign traveler entering the United States electronically registers their fingerprints and digital photograph, called "biometric data," at ports of entry. Upon exiting the country, visitors will go through much the same process, comparing their registered biometric data to their current data. The entry procedure of the US-VISIT program has already been implemented in 115 airports and 14 seaports. According to a State Department press release, the program has "helped to prevent hundreds of criminals and immigration violators from entering the country." The US-VISIT departure pilot program officially began this August at O'Hare. In September this program will expand to eleven other airports and two seaports. This piloting stage is necessary to refine their system, to "make exiting quick for visitors and effective for security," said Asa Hutchinson, Under Secretary of Transportation and Border Security at a press conference at O'Hare. As with any new system, there are kinks in the departure pilot program at O'Hare. Right now the US-VISIT exit kiosks are only in Terminal 5 at O'Hare, which is the international terminal. United, American, US Airways, and some Lufthansa flights do not leave from terminal 5. This can cause problems for travelers leaving the United States on those airlines. Foreign visitors may expect to either check out in an automated kiosk, or via a US-VISIT exit attendant using a hand-held scanner. To facilitate this process, travelers will receive printed cards explaining the process when they arrive in the United States. Children under the age of 14 and adults over the age of 79 are exempt from the US-VISIT requirements. Neither entry nor exit procedures have been established yet for land ports of entry. To find out which ports of entry are affected by this pilot program please visit: http://www.dhs.gov/dhspublic/display?content=3875 4. DHS Extends Expedited Removal, Length of BCC Visits On August 10 Asa Hutchinson, Undersecretary of Border and Transportation Security at the Department of Homeland Security (DHS), announced that the United States will exercise "expedited removal" within 100 miles of the United States' north and south borders. Expedited removal is the process where border officials can detain and immediately return to their countries of origin foreign nationals who cannot prove they are legally staying in the country. While expedited removal has previously been exercised at ports of entry, this will be the first time that this process will happen within U.S. borders. Expedited removal is conducted without any system of independent adjudication or appeals, a fact that bears heavy implications. Immigration officials are instructed to decide who to place on expedited removal based on the following factors: if the foreign national is within 100 miles of the border; if the foreign national does not have proper documentation or has previously misrepresented themselves; or if the foreign national cannot establish that they have been present in the United States for over 14 days. Since expedited removal is a sudden and unappealable process, a legally visiting foreign national may not be able to present convincing documentation before they are removed from the country. Without proper supervision there is opportunity for abuse, discrimination and mistakes. According to the American Immigration Law Foundation (AILF), even expedited removal procedures at ports of entry have yielded mistakes and reports of abuse. In anticipation of this concern, the DHS says it will not expand expedited removal until all concerned officers go through a "rigorous training program." Also, expedited removal is only intended for third country nationals. The DHS will not attempt to remove Mexican or Canadian citizens through the expedited removal process unless they known to be criminals or smugglers. Undersecretary Hutchinson indicated that expedited removal is being extended in part because of previous disregard for more modest border rules. In the past 16 months around 26,000 third country nationals were issued notices to appear in immigration court after being caught along the southern U.S. border; 90% of those individuals did not show up for their hearings. According to Undersecretary Hutchinson, the DHS wants "to send a clear message that those individuals who follow legal immigration procedures will benefit while those who choose to break our nation's immigration laws will be promptly removed from the U.S." The DHS has also announced that it will extend the amount of time legal Mexican visitors with Border Crossing Cards (BCC) can stay in the United States. Currently, BCC holders can remain in the United States for up to 72 hours and need to remain within a certain distance from the Mexican border depending, on the state. To stay longer, or to go beyond the distance restriction BCC holders had to apply for an I-94 form. The new rule will allow BBC holders to remain within the United States for up to 30 days. However, to leave the border restriction, the BCC holder would have to be processed through the US-VISIT program and apply for an I-94 form. To read more about the extended expedited removal program and whom it affects visit: http://www.ailf.org/lac/lac_pa_081704.asp 5. State Department Improves Its Web Site The U.S. Department of State (DOS) continues to make its web site more user friendly. Earlier this August, the DOS added an additional function to its web site: visa wait times. Citing the additional scrutiny visa applications currently undergo when compared to just a few years ago, the DOS has now made it possible to electronically check how long visa applicants have to wait at U.S. embassies and consulates overseas before receiving an interview. This way applicants can make travel plans well in advance based on estimates provided by the DOS. The web site also provides information about how long it takes for nonimmigrant visas to be processed at consular sections as well as consulate-specific information detailing local procedures and instructions for specific types of visitors. This additional functionality comes as part of a larger push by the DOS to make its web site more user-friendly. In July the DOS Bureau of Consular Affairs completely overhauled its site (http://travel.state.gov/). The Bureau also added increased functionality to its web site, introducing the Internet Based Registration System (IBRS) which allows U.S. citizens to electronically register themselves, their itineraries, and contact information in case of an emergency. This information will allow the State Department to update registrants on safety issues when they are abroad and to more easily locate them if necessary. To check visa wait times, visit: http://travel.state.gov/visa/tempvisitors_wait.php. 6. Biometric Passport Deadline Extended President Bush has signed a new law allowing countries in the visa waiver program (VWP) an additional year to produce a secure biometric passport. The new law extends the requirement for VWP citizens to have biometrically-enabled passports until October 26, 2005. The VWP allows citizens of 27 countries to enter the United States as visitors without first applying for visas. However, recent concerns about terrorist have prompted legislation that would tighten security at ports of entry, even for VWP citizens. To address security concerns caused by this extension, as of September 30, 2004, people entering the country under the VWP will have to participate in the U.S. Visitor and Immigration Status (US-VISIT) program. Through this program, participants overseas register their fingerprints and a photograph. This information is first checked against a database of known criminals and suspected terrorists when the traveler enters the United States. This information is checked again to verify identity when the traveler leaves the United States. Although the biometric passport requirement deadline has been extended a year, the October 26, 2004 deadline for VWP travelers to have machine-readable passports remains the same. Machine-readable passports are passports that meet internationally agreed-upon standards for size, shape, typeset and biographical data. These standards allow customs officers' machines to scan passports at ports of entry. To find out more about the visa waiver program and VWP participants' passport and biometric data requirements, visit: http://travel.state.gov/visa/tempvisitors_novisa_waiver.html#3 7. Receipts Now Direct Applicants to CIS Web Site I-797 forms, which are receipt notices issued by the U.S. Citizenship and Immigration Services (CIS), now advise customers to check the CIS web site for application processing times. Previously, I-797 forms gave incorrect processing times, sparking customer complaints. According to the CIS, processing times listed on the CIS web site should be more frequently updated and therefore more accurate than printed processing time reports. 8. Conrad State 30 Reauthorization Legislation Negotiations Continue Negotiations about the language and benefits of a bill to reauthorize the Conrad State 30 program continue in Congress. Almost all foreign medical graduates in J-1 status are subject to a requirement that they return to their home country at the completion of the training program for two years. The Conrad State 30 program provides waivers of this two-year requirement to foreign medical graduates who have an employment offer that is important to a state Department of Health. This usually applies to doctors working in primary care in a medically underserved area in the state. This waiver option is called the State 30 program, because it is limited to 30 foreign medical graduate waivers per state per year. Senator Saxby Chambliss of Georgia, chairman of the Senate Judiciary Committee, has made it clear that he will work to reauthorize the bill. However he has made no commitment to change the State 30 program. This is in contrast to several states that want to expand the benefits provided by the legislation. Several larger states would like to use smaller states' unused waivers. Other states would like to expand the program to benefit other health care professionals. With several other major bills to be decided upon, swift agreement will be necessary to get the bill re-approved before Congress adjourns this fall. It appears that concerned parties recognize this and are working towards having the program reauthorized for one year. It is probable that no other changes will probably be decided upon until after the November election. 9. New Article on True, Walsh & Miller Web Site We have a new article about the exploitation of undocumented workers: 10. The Firm Speaks On September 17 Steve Yale-Loehr will participate in a meeting with senior immigration officials in Washington, DC about the EB-5 immigrant investor program. On October 1 Steve will speak on H-1B issues at a conference sponsored by the American Immigration Lawyers Association at Niagara on the Lake, Ontario. On October 21 Steve will speak to international students from 7-9 pm in the Hollis Cornell auditorium in Goldwin Smith Hall at Cornell University on visa options after graduation On November 5 Steve and Rosanne Mayer will give two presentations at the University of Buffalo, one to foreign medical students and another to international students, about visa options after graduation. On November 8 Steve will participate in a panel entitled "Beyond Immigration--When Student's Lives Collide with the Law" at a regional conference of NAFSA: Association of International Educators on Long Island. Contact Steve at syl@millermayer.com for more details on any of these events. For answers to any of your immigration questions, contact: Hilary Fraser (mailto:htf@millermayer.com)
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