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January 9, 2004 Immigration News Update
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1. US-VISIT Launched; Thousands Fingerprinted and Photographed in First Day Alone 1. US-VISIT Launched; Thousands Fingerprinted and Photographed in First Day Alone On January 5, 2004, the Department of Homeland Security (DHS) officially launched the US-VISIT border control program. With the program’s launch, 115 airports and cruise ship terminals at 14 seaports now require most foreign visitors traveling to the United States to have their index fingers scanned and a digital photograph taken to verify their identity. DHS claims that the US-VISIT program will enhance the security of U.S. citizens and visitors by verifying the identity of visitors with visas, while facilitating legitimate travel and trade by using technology to expedite processing at U.S. borders. However, because of significant under-funding, US-VISIT may not perform as effectively as DHS claims. A government task force determined that the creation of an entry-exit system that does not clog U.S. borders would require billions of dollars to be even minimally effective. But Congress only appropriated $380 million for the US-VISIT program in fiscal year 2003, and many worry that as a result US-VISIT may cause more problems than it solves. Either way, US-VISIT will continue to have a significant effect on all international travel, as Congress has mandated that an automated entry-exit program be implemented at the 50 busiest land ports of entry by December 31, 2004, and at all land ports by December 31, 2005. Updates on US-VISIT will be reported here as they become available, but until the full ramifications of this new program become clear, travelers should allow for significant delays when entering and exiting the country, and plan accordingly. For more information about US-VISIT, go to: http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0333.xml. 2. H-1B Cap Looming U.S. Citizenship and Immigration Services (CIS) is expected to announce soon that it has received enough petitions to fill the annual cap of 65,000 H-1B visas for fiscal year 2004. William R. Yates, Deputy Director, CIS, has recently stated that the cap will be reached early in 2004: "As I stated last week we will release information at the end of January regarding where we stand and at that time will decide whether we need to notify customers of a projected 'cap date.'... I still believe that we will hit the cap this spring, but I won't be more specific until I see the numbers in January." Once CIS has received enough H-1B petitions to fill the annual cap, it will publish a notice in the Federal Register announcing that any cases subject to the H-1B cap from that point on will not be accepted for the 2004 fiscal year. Cases received but not adjudicated by that point will continue to be considered until the cap is reached. At that point, another Federal Register notice will be published announcing that cases still waiting to be adjudicated will be held for processing until the beginning of fiscal year 2005, which starts October 1, 2004. With the cap looming and so little notice available before H-1B applications are cut off for the year, anyone looking to file new H-1B petitions should do so as soon as possible. For more information about the H-1B visa and the recent changes in the H-1B visa category, visit: http://www.millermayer.com/resources/nonimmigrant/h1changes.html Steve Yale-Loehr of True, Walsh & Miller, who chairs the business immigration committee of the American Immigration Lawyers Association (AILA), is working hard to find a legislative solution to this problem. 3. Diversity Visa Lottery Application Period Ends; 4.1 Million Fewer Submissions Received This Year Only 5.9 million diversity visa lottery applications were submitted to the State Department in 2003, down from 10 million just the year before. This significant drop-off has been widely reported in popular media, and generally is considered to be the result of this year’s shift from paper applications to an exclusively online application system. According to an article in the New York Times, State Department officials claim that the drop in submissions is due to a curtailing of duplications and fraud thanks to the new computerized application process. State Department officials say that they are now able to store information about applicants, electronically compare applications, and automatically disqualify anyone who applies more than once. The State Department points out that in the past multiple applications from many individuals went undetected. Immigrants and immigration advocates, however, point to the fear of giving information to the government online, lack of access to computers, and new opportunities for immigrants to be defrauded as the reasons for the drastic decrease in application submissions. Stuart Patt, a State Department spokesperson, did not do much to assuage the fears of would-be applicants when he told the New York Times that: "the information is not being collected to look for people to deport. It’s not being done as a tool for enforcement; it’s being done for administrative improvement." He added, "Would we make that information available if Homeland Security would make the request? I’m not saying we would deny it." Despite the fear of information sharing between governmental organizations, the diversity visa lottery remains one of the best opportunities for foreign nationals to acquire a green card. The program makes available 50,000 green cards each year to natives of certain countries. To be eligible, applicants need only a high school diploma (or equivalent) or two years work experience in an occupation that requires two or more years of training or on-the job experience. Applicants do not have to speak English or have U.S. relatives, and can enter the lottery whether they are living in the United States or abroad. Applicants are even eligible if they already have other visa petitions pending, such as a relative visa petition or an employer’s visa petition. Although the deadline for this year’s lottery has passed, the program runs annually, and applications are generally accepted for 60 days, usually beginning November 1. 4. IRS Makes it More Difficult to Obtain Individual Taxpayer Identification Numbers The Internal Revenue Service (IRS) has implemented several new measures to strengthen controls over the issuance of Individual Taxpayer Identification Numbers (ITINs). The numbers are intended for federal tax reporting only, but many have been used as a means of providing personal identification for those without a Social Security Number (SSN). According to IRS Commissioner Mark Everson, "About one-quarter of the ITINs issued for tax return purposes never actually find their way onto a tax return." After a review of the ITIN program, the IRS has implemented the following changes effective immediately: All new ITIN applicants will have to show a federal tax purpose for seeking the ITIN. For those seeking an ITIN to meet their income tax filing obligations, this will require attaching a federal tax return to the Form W-7 when they are ready to file their tax return with the IRS. ITIN applications without proof of need for tax administration purposes will be rejected. The IRS will reduce to 13 from 40 the number of documents it will accept as proof of identity to obtain an ITIN. The 13 acceptable documents are listed in the new Form W-7 instructions. The IRS also will change the appearance of the ITIN from a card to an authorization letter to avoid any possible similarities with a Social Security Number. Neither non-U.S. residents applying for an ITIN to report income under a tax treaty nor U.S. resident and non-resident applicants applying for an ITIN to report income from a U.S. bank or brokerage account will be required to file a tax return along with their ITIN application. However, non-resident applicants will be required to furnish evidence of their ownership of the asset that gave rise to the reporting obligation, and resident applicants will be required to furnish evidence of actual rather than intended ownership of the bank or brokerage account. ITINs are nine-digit tax processing numbers issued by the IRS, and always begin with the number 9 and have a 7 or 8 in the fourth digit, for example, 9XX-7X-XXXX. The numbers are issued to individuals who are required to have a U.S. taxpayer identification number but who do not have, and are not eligible to obtain a SSN from the Social Security Administration (SSA). ITINs are issued regardless of immigration status because both resident and nonresident aliens may have U.S. tax return and payment responsibilities under the Internal Revenue Code. ITINs are not appropriate for personal identification purposes because IRS does not apply the same documentation standards in assigning the numbers as agencies that provide genuine identity certification. Since the ITINs are intended strictly for tax processing, ITIN applicants are not required to apply in person, and IRS does not further validate the authenticity of identity documents. As such, ITINs do not prove identity outside the tax system, and should not be offered or accepted as identification for non-tax purposes. The IRS announcement regarding its changes to ITINs is at: http://www.irs.gov/newsroom/article/0,,id=112728,00.html A good summary of taxpayer identification numbers are available on the True, Walsh & Miller web site at: 5. SSA Proposed Rule Would Make it More Difficult for F-1 Students to Obtain SSNs The Social Security Administration (SSA) has proposed a rule that would add additional evidentiary requirements for F-1 students who are applying for a Social Security Number (SSN), but do not have an Employment Authorization Document (EAD). In addition to meeting SSA’s requirement to provide evidence of age, identity, legal alien status, and work authorization, F-1 students would also be required to present evidence that they have secured employment before an SSN is assigned. Current SSA procedures require an F-1 student who needs an SSN for work to present evidence of age, identity, lawful F-1 alien status, and work authorization. This work authorization can either be from U.S. Citizenship and Immigration Services (CIS) in the form of an employment authorization document (EAD) or from the F-1 student's school. In the past, when an F-1 student applied for an SSN, the SSA assumed that the student had a job or imminent plans to secure a job. However, the SSA’s recent experience has shown that some F-1 students apply for an SSN even when there is limited or no employment available. According to the SSA, "[a]dditional evidence requirements for F-1 student SSN applicants are needed because available SSA data suggest that some F-1 students assigned SSNs misuse those SSNs to work illegally in the United States…or engage in other fraudulent activities." Under the proposed rule, unless the F-1 student has an employment authorization document issued by CIS, they would be required to provide additional documentation of their authorization from the school to engage in employment and of their secured authorized employment. Furthermore, the SSA states: "Under this clarification of our policy, we would not assign an SSN to the F-1 student unless the student provides a Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Status, and provides written confirmation from the designated school official (DSO) of (1) the nature of the employment the F-1 student is or will be engaged in and (2) the identification of the employer for whom the F-1 student is or will be working." The proposed rule would also require that the F-1 student provide the SSA with documentation that he or she is engaged in or has secured employment, e.g., a statement from the F-1 student's employer. The SSA believes that by adding these requirements, there will be fewer opportunities for abuse of the enumeration process without having any adverse effects on F-1 students who need to work while they are in the United States. The proposed rule can be found at: http://frwebgate3.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=66810929354+1+0+0&WAISaction=retrieve For an overview of social security and taxpayer ID requirements for noncitizens, visit: http://www.millermayer.com/resources/general28cont.htm 6. Conrad State 30 J-1 Waiver Chart for Foreign Medical Graduates Updated 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. Satisfaction or waiver of this requirement is necessary before moving from J visa status to most any other visa status. Therefore, in most cases a return to the home country for two years or a waiver of this requirement is necessary before a foreign doctor can obtain employment in the United States. J-1 waivers are sometimes available to foreign medical graduates who have an employment offer that is important to a state department of health, usually if the doctor is working in primary care in a medically underserved area in the state. This waiver option is called the Conrad State 30 Program, because it is limited to 30 foreign medical graduate waivers per state per year. It is named for Senator Kent Conrad of North Dakota, who sponsored the legislation that started this waiver program. Each year True, Walsh & Miller compiles a chart summarizing which states will sponsor foreign medical graduates for J-1 waivers under the Conrad State 30 program, and under what conditions. Not all states participate in this program. To view the revised chart, visit http://www.millermayer.com/resources/medical/conrad.html. We caution that states change their policies all the time and without warning, so it is best to check with us for the latest information. 7. Check Your Case Status and Processing Times on the Internet Clients with cases pending at U.S. Citizenship and Immigration Services (CIS) should use the National Customer Service Center (NSSC)’s case status and processing time web page. The NCSC web site is by far the quickest way to find accurate updates about the status of a pending application. On one extremely useful agency web page, https://egov.immigration.gov/graphics/cris/jsps/index.jsp?textFlag=N , both individual case status information and processing times can be accessed. All that is required to make use of this free service is a receipt/tracking number (for example: "EAC 00123456789") and access to the Internet. A good summary of the services that the National Customer Service Center offers is available on the True, Walsh & Miller web site at: http://www.millermayer.com/resources/ncsc.html
8. New Articles on Our Web Site We have a new article about visa options for foreign nurses at: We have updated the Conrad State 30 chart on our website for 2004 at: We have a new article summarizing the EB-5 immigrant visa category at: We have a long article on the foreign residence requirement for J-2 visa holders at:
9. The Firm Speaks Steve Yale-Loehr will speak on immigration issues on January 15 at the Cornell Cooperative Extension building in Ithaca from 8:30-9:30 am with Brendan O'Brien, director of the international students and scholars office at Cornell, and Dan Lamb, legislative assistant for Rep. Maurice Hinchey. Steve will talk to foreign students about visa options after graduation at Cornell University on February 26 and at Binghamton University on March 24. Contact Steve at mailto:syl@millermayer.com for more details on any of these talks. _____________________ For answers to any of your immigration questions, contact: Hilary Fraser (mailto:htf@millermayer.com)
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