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May 12, 2004 immigration news update
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1. Immigration Filing Fees Increase 1. Immigration Filing Fees Increase On April 30, 2004, a final rule implementing increases in USCIS filing fees went into effect. With the new rule, the fees for most applications have increased by $55. According to USCIS, this fee increase was necessary to "ensure sufficient funding to process incoming applications." Many applications are now accompanied by a fee of as much as $200 or $300. For example, when the rule went into effect: the fee for an I-129 temporary worker petition increased from $130 to $185; the fee for an I-140 employment-based immigrant visa petition increased from $135 to $190; and the fee for an I-485 adjustment of status application increased from $255 to $315. The American Immigration Lawyers Association (AILA) has questioned many aspects of the new rule, raising doubts about: (1) the appropriateness of raising filing fees at this time; (2) the items that supposedly will be funded by the increase; (3) the methodology for concluding that these are appropriate fee amounts; and (4) the administration's lack of action in determining adequate appropriations to "turn the ship around" at U.S. Citizenship and Immigration Services. As AILA points out, in January 1998 the Commissioner of the then-INS stated that the fee increase announced at that time would not be implemented until applicant wait times started to decrease. Today, no such reticence is shown. Even though the ordinary wait times on many applications are double or triple today what they were in 1998, the USCIS offers no such concession to those who must pay increasing amounts for deteriorating service. The current CIS fee schedule is available online at the USCIS web site: http://uscis.gov/graphics/publicaffairs/newsrels/USCISFeeStructure.pdf 2. Changes Loom for Travelers from Visa Waiver Countries Travelers from visa waiver program (VWP) countries can expect some significant changes beginning this fall, when biometric and machine-readable passport requirements are scheduled to go into effect. As of October 26, 2004, all visa waiver entrants must present machine-readable passports to gain visa-free entry into the United States. October 26 also marks the date after which all new passports issued in VWP countries must include biometric identifiers, such as fingerprints. Unlike the machine-readable passport requirement, which applies to all VWP arrivals beginning on October 26, the biometric requirement applies only to VWP travelers whose passports were issued that day or later. Any VWP travelers who do not fulfill either of these requirements will have to obtain a visa. Machine-readability and biometrics are not the same thing. A machine-readable passport is one that can be "read" mechanically when swiped through a passport reader. It contains two lines of text on the bottom of the data page which, when read, populate the bio-data fields for the data entry clerk at an embassy or an immigration inspector at a port of entry. A "biometric" or a "biometric identifier" is an objective measurement of a physical characteristic of an individual which, when captured in a database, can be used to verify identity or check against other entries in the database. The best known biometric is the fingerprint, but others include facial recognition and iris scans. A biometric passport will take a biometric and store it on a contactless chip embedded in the passport. The inspector at the port of entry can scan the passport to obtain the passenger's biodata. Thus, the passport can be read in three ways: with the machine-readable passport reader, with the biometric scanner, and with the human eye. Unfortunately, recent reports have indicated that almost none of the VWP countries will be able to meet the October 26 deadline to incorporate biometric identifiers into passports. Some countries have indicated that it might have been possible to implement a biometrics program by October 26, but because of questions of compatibility in design between countries, many programs have been halted. Most, including the major VWP countries in terms of travel such as Japan and the UK, simply cannot overcome the hard-technology hurdles of designing, testing, and rolling out biometric passports on a large scale before 2005. In response to this impending travel crisis, the Department of State and the Department of Homeland Security (DHS) have asked Congress to extend the biometric passport issuance requirement for VWP countries. The DHS has noted that like many of the VWP countries, the United States itself has encountered numerous technical difficulties, and as a result, will be unable to complete the transition to the embedded biometric passport until late 2005. If Congress does, in fact, postpone the biometric requirement for VWP countries, we will provide an update in an upcoming issue of this newsletter. In the context of requesting this extension, the DHS will also, by September 30, 2004, begin recording all visa waiver travel through the US-VISIT program. Currently, only nonimmigrant visa holders are subject to US-VISIT. For some background on the new restrictions on visa waiver entrants, read "Visa Worries, Visa Delays" on the True, Walsh & Miller web site at: http://www.millermayer.com/resources/visaworry.html To find out more about US-VISIT, read: http://www.millermayer.com/resources/usvisit.html 3. U.S. Biometric Visas Could Mean the End of Domestic Visa Revalidation Not only does October mark the deadline to implement biometrics in visa waiver program country passports; it also marks the deadline for the incorporation of biometrics into U.S. visas. Unfortunately, the U.S. Citizenship and Immigration Services has indicated that this requirement may ultimately mean the end of domestic visa revalidation service, as the revalidation unit is not equipped to interview or fingerprint visa applicants. If the State Department's visa revalidation unit is to be shut down this fall and current processing times of approximately 10-12 weeks stand, it would be advisable to submit all revalidation applications by this summer to ensure the adjudication of the application. After the October deadline, the Department of State cannot issue non-biometric visas. As more details about the effect of biometric visa requirements on the domestic visa revalidation service come into focus, we will report them. In the meantime, visit the True, Walsh & Miller web site to find out more about current domestic visa revalidation rules: http://www.millermayer.com/resources/visareval.html 4. New National Customer Service Center Phone System to Offer Direct Access to Immigration Employees After many complaints about the poor service provided to callers of the National Customer Service Center (NCSC)'s 1-800 number, U.S. Citizenship and Immigration Services (USCIS) has committed to restoring some direct phone access to the four regional service centers. As reported in our December 2003 newsletter, a new phone system is in the final stages of development that will allow customers direct access to U.S. Citizenship and Immigration Services (USCIS) officers at the service centers for questions regarding pending cases and to facilitate problem resolution. The rollout date for the new system has not been set, but its implementation is projected for sometime later this year. On June 1, 2003, the USCIS ended direct call contact with the regional service centers that process applications for temporary visa applications, green cards, and other immigration benefits. Now, only congressional offices can contact the service centers directly regarding pending immigration applications. All other telephone inquiries are received by the NCSC, which is not staffed by immigration agency employees. The proposed new system is a component of the USCIS customer service plan. The first step was Case Status On-Line, to which new features were added on April 19. One of these new features allows users to crease a profile and maintain an inventory of up to 100 cases for which status information will be maintained. A second new feature allows users to register an e-mail address and automatically receive e-mail notification of action of a pending case. USCIS is also developing a "customer service portal" on the USCIS web site. This portal will allow users to generate their own referrals ad inquiries, which will go directly to the service center or office processing the case. Even in its current form, the NCSC can answer many immigration-related questions. Learn more about the services offered by the NCSC on the True, Walsh & Miller web site: http://www.millermayer.com/resources/ncsc.html 5. State Department Encourages Posts to Issue FY 2005 H-1B and H-2B Visas With Deferred Validity Dates Posts that anticipate a large volume of H-1B or H-2B temporary worker applicants in the weeks leading up to FY 2005 have been advised by the State Department to begin issuing FY 2005 H visas before September 20, 2004. U.S. Citizenship and Immigration Services (USCIS) regulations prohibit the entry of a temporary worker on an H-1B or H-2B visa more than ten days before the start of his or her authorized employment. Therefore, the State Department typically prohibits the issuance of H-1B and H-2B visas more than ten days before the petition validity date: September 20 in the case of H-lB's or H-2B's with an October 1 start date. However, due to the potentially large volume of approved H-1B and H-2B visa petitions with a beginning validity date of October 1, the failure to accept and process these applications before September 20 could lead to a significant workload burden on some of the larger H-lB and H-2B issuing posts. As such, high-volume posts may start issuing H-1B and H-2B visas before September 20, 2004. Such visas will be annotated "not valid until (ten days before petition validity date)." The State Department has advised posts to make every effort to educate local immigration and airline representatives regarding the deferred validity of these visas to avoid inappropriate boarding of the visa holders. Issuing posts were also advised to ensure that the H-1B or H-2B holder is clearly informed of the visa's validity date. A letter or stamp in the nonimmigrant visa holder's passport should clearly state this deferred validity. Both the H-1B and H-2B caps have been met for this fiscal year, and the USCIS is no longer accepting any new H-1B or H-2B petitions subject to the fiscal year 2004 cap. These H-visa caps present real problems for U.S. companies. However, not all H-visa eligible workers are subject to the cap. H-1B workers not subject to the numerical cap will continue to be able to apply for the nonimmigrant work visas during the remainder of fiscal year 2004. Those not subject to the cap include most current H-1B workers as well as: (1) new workers at nonprofit research organizations, government research organizations, and institutions of higher education and related or affiliated nonprofit entities; and (2) new H-1B workers from Singapore and Chile. For current H-1B workers, the USCIS will continue to process petitions filed to: (1) extend the amount of time the worker may remain in the U.S.; (2) change the terms of their employment; (3) allow the worker to change employers; or (4) allow the worker to work concurrently in a second H-1B position. Similarly, the H-2B cap applies only to new H-2B workers, so the USCIS will continue to accept petitions for H-2B nonimmigrants who are: (1) extending their stay in the United States; (2) changing the terms of their employment; or (3) changing or adding employers. Since April, workers who are subject to the H-1B or H-2B caps have been applying for fiscal year 2005 H-visas with October 1 start dates. It is due to the concern that visa issuing posts overseas will see a surge in DHS-approved H-visa applicants that the State Department has decided to begin issuing the visas so far in advance of their validity start date. Like the officials at the Department of State, those familiar with the H-1B situation expect a surge in cap-subject applications now that the USCIS that has begun accepting H-1B applications for fiscal year 2005, so potential new workers should plan accordingly. It is possible that the fiscal year 2005 H-1B cap will be reached by October 1, the first day of the new fiscal year. An article summarizing the problems caused by the H-1B and H-2B visa caps is on the True, Walsh & Miller web site at: http://www.millermayer.com/resources/h1h2.html Please contact your members of Congress to tell them to address this problem. Unless they hear from you, they will assume they don't need to do anything. A sample letter is at http://capwiz.com/aila2/mail/oneclick_compose/?alertid=5183421 It only takes a few seconds to fill out and send. If you would like to learn more about the H-1B visa and the issues surrounding the annual cap, read Stephen Yale-Loehr’s testimony before the Senate Judiciary Committee on "Examining the Importance of the H-1B Visa to the American Economy." It is available on our web site at: http://www.millermayer.com/new/htestimony.htm. Steve chairs the AILA business visa committee, and is actively involved in lobbying Congress to increase exemptions from the H-1B cap for needed groups of temporary professional workers. 6. USCIS Launches Electronic Appointment Scheduling in Dallas Along With New Rapid Adjustment Pilot Program On April 21, 2004, the U.S. Citizenship and Immigration Services (USCIS) launched the InfoPass program, an Internet-based system that allows customers to go online to schedule an appointment with an immigration information officer at the Dallas USCIS District Office. Exclusive to the Dallas District, InfoPass will allow customers to participate in the Dallas Office Rapid Adjustment Pilot Program. This USCIS initiative aims to complete the adjustment of status process within 90 days of filing for forms I-130 (family-based immigrant visa petition) and I-485 (adjustment of status application). According to the USCIS, InfoPass is a critical component to the success of the pilot that they claim will "revolutionize customer service; help control the backlog; while enhancing national security." The InfoPass program being tested in Dallas is just one of several Internet-based services now offered on the USCIS website. Last year, USCIS initiated "e-filing" for certain immigration applications, including the renewal and replacement of "green cards," (Form I-90) and plans to include more forms for applicants online in the near future. USCIS also encourages customers to use the Internet to check the status of applications filed with any of the agency's service centers. A good summary of the online services offered by the USCIS is available at the True, Walsh & Miller web site: http://www.millermayer.com/resources/ncsc.html 7. New Articles on Our Web Site Steve Yale-Loehr has co-authored an article about the H-1B and H-2B visa caps at: http://www.millermayer.com/resources/h1h2.html 8. The Firm Speaks On Monday May 17 Steve Yale-Loehr will participate in an immigration roundtable for key members of the hospitality industry sponsored by the Cornell Hotel School. On Friday June 11 Steve will moderate a panel on advanced naturalization issues at the American Immigration Lawyers Association (AILA) annual conference in Philadelphia. On Saturday June 12 Steve will moderate a panel on H and L visa issues at the AILA annual conference in Philadelphia. Contact Steve at mailto:syl@millermayer.com for more details on any of these talks. 9. Responses to Our Immigration Haiku Contest We received many responses to the immigration haiku contest we announced in our April newsletter (http://www.millermayer.com/resources/news4_6_04.html, item 8). Here is one we particularly liked, from Richard Victorio: If hurt, asylum. Keep those entries coming! For answers to any of your immigration questions, contact: Hilary Fraser (mailto:htf@millermayer.com)
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