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June 20, 2005 Immigration News Update
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1. The REAL ID Act: Driver’s Licenses; Asylum Restrictions 1. The REAL ID Act: Driver’s Licenses; Asylum Restrictions The REAL ID Act, recently enacted as part of a large supplemental appropriations law, has drawn much controversy and media attention. Perhaps the most controversial provision in the REAL ID Act has been the section on standardizing driver’s licenses. This section seeks to prevent state Department of Motor Vehicles (DMVs) from issuing federally-approved licenses to individuals who are in the country illegally. The provision imposes federal standards for all driver’s licenses. If a state refuses to adopt the new standards, its licenses will not be accepted by federal agencies as proof of identification. The new licenses will also require proof of legal immigration status. Moreover, licenses issued to legal non-permanent residents will only be valid for the period of time that they are authorized to stay in the United States. The REAL ID Act also complicates the process of applying for a driver’s license, imposing many restrictions on acceptable documents to complete the application. To issue a driver’s license, the state agency will require a photo ID, including full name and date of birth of the applicant, proof of social security number, documentation of the date of birth of the applicant, and proof of name and address. Foreign documents other than passports will no longer be acceptable in any of these categories. The law also requires verification of authenticity of all documents accepted for the application for the driver’s license with the agency from which the document was issued. For example, if a license applicant uses a utility bill to verify their address, a DMV agent will have to call the utility company. All states also must use digital photography technology in the production of licenses. The Department of Homeland Security (DHS) will collect all information compiled under this Act in a comprehensive database. The REAL ID Act also makes it more difficult for foreign nationals who are the victims of persecution to apply for asylum in the United States. The new law also decreases the standards of evidence required to deport an individual for involvement in terrorist activities. Under the Real ID Act, a non-citizen can be deported if the individual has contributed to a terrorist organization, even if the contribution was not in any way related to the group’s terrorist activities. To avoid deportation the individual must prove by “clear and convincing evidence” that he or she did not know the organization was involved in terrorist activities. The REAL ID Act also contains a new E-3 visa category for Australians and helps H-2B temporary workers. Those changes are discussed in the next two articles. 2. New E-3 Temporary Visa Category Created for Australians Among other changes, the REAL ID Act, discussed in the article above, added a new visa category for nationals of Australia. This new temporary visa category, designated E-3, is for Australian nationals who intend to perform services in a specialty occupation. Like the H-1B treaty agreements with Chile and Singapore, the E-3 category is for non-immigrants and is not counted toward the typical non-immigrant specialty worker category cap of 65,000. The E-3 visa is capped at 10,500 for each fiscal year. This does not include spouses and children. Steve Yale-Loehr has co-authored a new article discussing the E-3 visa and other business-related visa changes in the REAL ID Act in more detail. That article will be posted on the True, Walsh & Miller web site shortly. 3. Congress Acts to Alleviate H-2B Visa Shortage Congress recently enacted changes to the H-2B temporary visa category as part of the REAL ID Act, discussed in the first article in this newsletter. H-2B visas are reserved for non-citizens to work temporarily in non-agricultural jobs for which the Department of Labor has certified there are no available U.S. workers. H-2B petitions are valid for up to one year and are capped at 66,000. The main provisions of the new law are as follows: A foreign national who has been counted toward the H-2B cap in any one of the last three fiscal years will be exempted from this year's cap. Employers filing H-2Bs must pay a $150 fraud prevention and detection fee. The DHS must reallocate the 66,000 H-2B visas so that no more than 33,000 numbers can be used during the first 6 months of the fiscal year. This will allow employers filing in the last half of the fiscal year a chance to get an H-2B petition approved before the cap hits. The need for a restructuring the H-2B visa category first became apparent in March 2004, when the 66,000 visa cap was reached for the first time in 14 years. This need became more acute this January when U.S. Citizenship and Immigration Services (USCIS) announced that it had enough petitions to reach the annual H-2B cap of 66,000. This meant that employers would not be able to hire new H-2B workers until October 1, when the new federal fiscal year begins. The implications of petitioners reaching the H-2B cap nine months before more H-2B petitions can be filed have been severe. The main recipients of H-2B visas are largely seasonal workers like camp counselors, hotel help at summer resorts, ski instructors, and shellfish shuckers. Summer resorts and camps have been short staffed, which may force some businesses to close. On May 14, the Department of State and USCIS estimated that 35,000 H-2Bs would be freed up as a result of this new law. USCIS began accepting new H-2B applications on May 25, 2005 for H-2Bs for the additional 35,000 H-2B numbers. To read more about the H-2B cap and possible coping strategies, please visit: 4. EB-3 Backlog May Spread to Other Green Card Categories The Department of State (DOS) Visa Bulletin warns that the demand for employment-based third preference (EB-3) green cards remains very high. Indeed, the DOS Visa Bulletin for July states that no more EB-3 green cards can be handed out until October 1, when the new federal fiscal year begins. There is an exception, however, for Schedule A EB-3 cases. These are cases primarily benefiting nurses, in which the Labor Department has pre-certified that there are no U.S. workers available. According to the DOS, the tightening of EB-3 visa numbers is a result of successful efforts by the U.S. Citizenship and Immigration Services (USCIS) to reduce the number of backlogged adjustment of status applications. Currently, USCIS is implementing a number of new procedures to process their backlogged cases rapidly. As of January 2004, the number of backlogged immigration files reached 3.8 million cases, and an adjustment application could take over two years to be decided. The USCIS has since reduced its overall backlog by 2.3 million cases. The USCIS’s continuing efforts to reduce its backlog, combined with increased demand for employment-based green cards generally, could mean priority dates retrogressing in other employment-based green card categories over the next few months or years. For that reason it is wise to start your green card case as soon as possible. The availability of visa numbers is listed in the DOS Visa Bulletin, which is issued monthly. To view the current DOS Visa Bulletin please visit: http://travel.state.gov/visa/frvi/bulletin/bulletin_2539.html To read more about the USCIS backlog reduction campaign, please visit: http://www.millermayer.com/resources/news7_6_04.html (article no. 4). 5. New H-1Bs Available from USCIS for Graduates with Advanced Degrees Following a 2004 congressional mandate, U.S. Citizenship and Immigration Services (USCIS) has reopened the 2005 fiscal year filing period to grant access to additional H-1B visas for applicants with a master’s degree or higher from a U.S. institution. Although the annual cap of 65,000 H-1B visas has already been surpassed, since May 12 USCIS has been accepting applications for the 20,000 additional H-1B visas. Foreign workers with at least a master’s degree should apply for one of the 20,000 H-1B offered for the 2005 fiscal year as soon as possible, it is likely that USCIS will issue these visas quickly. H-1B applicants who have already applied for the 2006 fiscal year are also allowed to “upgrade” their application and file for one of the 20,000 FY 2005 numbers available for those with advanced degrees. In future years, the first 20,000 H-1B applications for foreign workers with a master’s degree or higher will be cap-exempt, while the rest will take one of the 65,000 available to all those who apply. H-1B visas are generally open to foreign workers who seek employment in a field that requires highly specialized knowledge and a minimum of a bachelor’s degree level of education in that field. USCIS has also issued new forms, fees, and a special address at the Vermont Service Center for the application, which are available on their website at http://www.uscis.gov/. Please visit http://www.millermayer.com/resources/nonimmigrant/tempworker.html for general information on H-1B visas. 6. June 26 is Deadline for Machine Readable Passports After over a year of postponements, the Department of Homeland Security (DHS) has set June 26, 2005 as the deadline for visitors from Visa Waiver Program countries to obtain machine-readable passports (MRPs). The VWP allows citizens of 27 participating countries, mostly in Europe, to enter the United States as visitors for up to 90 days without first applying for visas. The original date for obtaining MRPs was October 1, 2003. However, to obtain full compliance and notify as many travelers as possible, the DHS postponed the requirement until October 26, 2004. Since then, the DHS has been issuing one-time waivers to foreign travelers without MRPs. Beginning June 26, travelers without MRPs will be refused admission onto airplanes. Air carriers that do not make sure that all United States bound passengers have machine-readable passports will be fined $3,300 for each violation. The DHS hopes that MRPs will cut down the time it takes travelers to get through security checks. According to Randy Beardsworth, Acting Under Secretary for Border and Transportation Security, “The machine-readable passport benefits foreign visitors as much as it does homeland security. With one fast swipe, front line officers can pull up the information that they need to process legitimate travelers quickly. At the same time, this immediate information access enables our officers to focus even more on identifying and interdicting potential threats.” MRPs are equipped with barcodes that code biographical information about the traveler. Machine-readable passports are also tamper-resistant and comply with international aviation standards. Travelers without machine readable passports may apply at U.S. embassies of consulates for business or tourist visas. To read the DHS memo on the machine readable passport deadline visit: http://www.dhs.gov/dhspublic/interapp/press_release/press_release_0673.xml To read the Department of State memo on the machine-readable passport deadline please visit: http://www.state.gov/r/pa/prs/ps/2005/46138.htm 7. Internationally-Acclaimed Researchers Approved for National Interest Waivers True, Walsh & Miller would like to share our excitement about successful green card applications we filed for two clients in the national interest waiver (NIW) category. One is a researcher of composite materials, the other a materials scientist with a focus in lead-free solders. Currently, the electronics industry in the United States uses lead-based solders, which are now banned in Europe and Japan. The materials scientist’s research focuses on developing a lead-free solder, which will lead to advances in the U.S. microelectronics industry as well as open markets in Europe and Japan. Her work is widely acclaimed in the national as well international microelectronics industries. Our second success story comes from a highly-praised stress analysis engineer. His work in composite materials and stress analysis affects an assortment of industries, including the airline, military, semiconductor, and computer industries. Among other fields, his research includes developing a material that is much lighter and stronger than aluminum that will be used in the military, airline, and space industries, among others. His research also investigates stresses on microchips to predict when they will lead to computer failure. Congratulations to the new NIW researchers and TWM attorney Rosanne Mayer for all of her hard work on these two cases! For general information about NIW green cards, please see our website at. http://www.millermayer.com/resources/immigrant/immigrant9cont.htm For an article about NIWs for researchers, see http://www.millermayer.com/resources/niwrdm.html 8. The Firm Speaks; Attends AILA Conference On Tuesday June 7 Steve testified in Ottawa, Canada before a Parliamentary commission on the legality of extraordinary rendition (the outsourcing of torture). His testimony was mentioned extensively the following day in the Canadian press. On June 22-25 the firm’s immigration lawyers will be attending the annual conference of the American Immigration Lawyers Association in Salt Lake City. If you have a question about your case during that time, please contact the immigration assistant assigned to your case. 9. Revised EB-5 Article Posted on our Web Site Steve Yale-Loehr has written his annual update for the EB-5 investor green card category. The revised article is on our web site at http://www.millermayer.com/resources/immigrant/eb5.html. It will also be published in the annual conference handbook of the American Immigration Lawyers Association. The EB-5 category is becoming more popular. For an overview of recent changes to the category, see http://www.millermayer.com/EB5NYLJ0405.html. Steve has set up a new Immigrant Investor Association to promote the interests of EB-5 investors, developers, and promoters. For more information, contact Steve at mailto:syl@millermayer.com. _____________________ That's it for this issue. Some of the information in this issue comes from the American Immigration Lawyers Association. Thanks to AILA for allowing us to reprint their information. For answers to any of your immigration questions, contact: Hilary Fraser (mailto:htf@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. To unsubscribe to this newsletter, email mailto:syl@millermayer.com. Please type "unsubscribe to millermayer.com immigration newsletter" in your subject line. Copyright (c) 2005 True, Walsh & Miller, LLP. All rights reserved.
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