|
July 6, 2004 immigration news update
Click for a Printable Version of this Article
1. 16,000 H-1B Petitions Approved Against Fiscal Year 2005 Cap U.S. Citizenship and Immigration Services (CIS) has announced that as of the end of May, 16,000 petitions for fiscal year 2005 H–1B visas have been approved. 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 CIS began accepting H-1B petitions for the 2005 fiscal year on April 1. While 16,000 visas out of the 65,000 cap is a significant number, those familiar with the situation consider it to be lower than expected. Many worried that enough H-1B petitions would be filed beginning in April that the cap would be met by October 1, the start of the 2005 fiscal year. That does not appear to be the case. At the current rate the cap will be reached in November. Nonetheless, that the cap will be reached only a few months into the new fiscal year remains a problem for both U.S businesses and foreign national employees. For a summary of recent changes to the H-1B category see: http://www.millermayer.com/resources/nonimmigrant/h1changes.html 2. Visa Revalidation Ending; Change Affects Few Nonimmigrants The State Department has announced that beginning July 16, 2004 it will no longer revalidate certain nonimmigrant (temporary) visa applications in Washington, DC. This affects nonimmigrant visa classifications C, E, H, I, L, O, and P. This change has received a lot of publicity, but it affects relatively few nonimmigrants. If you are in a work-authorized nonimmigrant category like H-1B or L-1, or you are a spouse or child of someone in one of those categories, and you do not travel outside the United States, the new change does not affect you. When your current admission, as reflected on your I-94 card expires, you will apply to U.S. Citizenship and Immigration Services (CIS) to have it extended, if you are eligible. You do not need to leave the United States to do this. However, if you are in one of the affected nonimmigrant classifications (C, E, H, I, L, O and P) and you travel outside the United States, you will no longer have the option of asking the State Department to renew your visa stamp here in the United States. Instead, you will have to go to a U.S. embassy or consulate outside the United States to get a new visa stamp. To understand why this change will have a relatively small impact on most foreign nationals, it is important to realize the difference between admission, as reflected on an I-94 card, and a visa in your passport. A visa is simply a document giving you permission to apply to be admitted to the United States. Most people coming to the United States in a working status must have a visa in a passport to be allowed into the country. Once a foreign national is in the United States, it is the I-94 card acquired upon entry that governs lawful immigration status and the ability to remain in the United States, and it is an expiring I-94, not the visa, that needs to be extended to remain legally in the United States. It is not necessary to leave to extend the I-94; extension applications can be sent to CIS. Further, foreign nationals whose visa stamp in their passport expires while still in the United States do not need to renew it unless they plan on traveling abroad and need to be re-admitted to the United States. This difference is explained in the following article on our web site: http://www.millermayer.com/resources/general20cont.htm. Note that in many instances, foreign nationals will need to have their employer apply to CIS on their behalf first to have their nonimmigrant classification approved before applying for a visa overseas. The State Department will no longer be revalidating visas because a new federal law requires the agency to incorporate biometric identifiers into every U.S. visa issued after October 26, 2004. Abroad, the State Department is accomplishing this by scanning applicant fingerprints when the foreign national applies at the consulate for a visa. Since fingerprinting cannot be accomplished in a mail-in procedure, and because the State Department does not have the means to scan fingerprints domestically, the domestic visa revalidation service must be discontinued. For regular updates from the State Department about visas for foreign nationals, visit: http://unitedstatesvisas.gov/visanews/index.html 3. DHS Sets SEVIS Fees The Department of Homeland Security (DHS) announced on July 1 that most foreign nationals applying for F, M, or J visas will have to pay $100 as part of the visa application process. F, M, and J visas are visas predominately obtained by students, scholars, and exchange visitors. This fee will affect students, scholars and exchange visitors applying for their F, M, or J visas after September 1. It also applies to spouses and children of F, M, or J visa holders who are seeking their respective derivative status visas for the first time. There will be no refunds for this fee if the visa application is denied. However, foreign nationals who have paid the fee do not have to pay to apply for the same visa classification within 12 months of their original application. The fee is required under the Student and Exchange Visitor Information System (SEVIS). SEVIS is a central, computerized system that maintains and manages data about foreign students and exchange visitors during their stay in the United States. The new fee is to be used to defray the cost of collecting information on foreign students and exchange visitors. The fee has caused some controversy, particularly among higher education institutions. The original SEVIS fee proposal would have allowed only two methods of payment: electronic payment using U.S. credit cards or payment by mail using a check backed by a U.S. bank. Because these payment options could prove difficult for foreign nationals to use, concerned parties have tried to come up with alternative payment methods. The result of this discussion has been an expanded list of payment options, including payments through third parties and bulk payments through J-1 exchange visitor sponsors. The rule further clarifies that the fee may be paid through a foreign bank that has an arrangement with a U.S. bank permitting the foreign bank to draw on its U.S partner. The final SEVIS fee rule can be accessed at: http://www.gpoaccess.gov/fr/advanced.html under 69 FR 39814, 7/1/04 4. CIS Announces Backlog Reduction Plan On June 23 the House immigration subcommittee held a hearing about the impact immigration backlogs are having on foreign nationals and employers. As of September 30, 2003 the number of backlogged immigration files totaled 3.7 million cases, and the time between the submission of a visa application and its adjudication could last anywhere between 26 to 29 months. This does not include the amount of time requests for additional information take to be adjudicated. The day before the hearing the U.S. Citizenship and Immigration Services (CIS) announced a plan to reduce its immigration backlog. Under the plan, the CIS claims that by the end of 2006, it will eliminate the immigration backlog and reduce application waiting times to an average of six months. To achieve that goal, however, the agency estimates that it must increase productivity by 19.6 percent, a Herculean task. The backlog reduction plan is at http://uscis.gov/graphics/aboutus/repsstudies/backlog.htm. Paul Zulkie, president of the American Immigration Lawyers Association (AILA), testified at the House hearing. He applauded some of the CIS’s approaches to decrease the backlog. He cited in particular technological advances such as Infopass, an online system that allows visa applicants to electronically arrange personal interviews with immigration officials, thereby cutting the time applicants have to wait in line at government offices. Indeed, some of these changes have had an effect. However, Mr. Zulkie warned that many of the proposed CIS changes are double-edged swords. Several of the changes may not make a substantial impact on the backlog, or they may even contribute to the problem. For example, in an effort to reduce the number of requests for evidence (RFEs), the CIS recently instructed its adjudicators to deny cases that would have needed RFEs. Mr. Zulkie argued that this solution would only shift the backlog to administrative appeals. Also, some of the CIS’s responsibilities have been outsourced to companies whose employees are not trained in immigration or given full access to immigration case files. The result, according to Mr. Zulkie, is additional work for the CIS and lower quality customer service. Additionally, despite processing fees and requests for more funding, the CIS is presently may not be generating enough money to sustain itself. Mr. Zulkie urged Congress and the CIS to examine what resources are needed to perform the latter’s tasks and to finally authorize them. It is important to note that the CIS is not solely responsible for the backlog. In the case of a worker applying for a green card, the employer must obtain a labor certification from the Department of Labor (DOL), which can take up to three years. A labor certification certifies that there are no U.S. workers available for the job the foreign national will be taking. A new article about immigration backlogs is on the True, Walsh & Miller web site at: http://www.millermayer.com/resources/managingilaw.html. 5. U.S. Government Changes Visa Procedures in India On June 30 the U.S. consulate in Chennai, India, stopped accepting nonimmigrant visa applications by mail. The U.S. embassy in New Delhi is expected to soon announce the dates for the end of this process, known as the drop-box procedure, in India’s other three consulates in New Delhi, Mumbai, and Calcutta. The end of the drop-box procedure is the result of the push towards a more modern and secure method of distributing visas globally. Over 150 U.S. consular posts around the world have already begun collecting biometric data (fingerprints and digital photographs) from visa applicants and are requiring personal interviews with consular officers. As fingerprints must be taken in person, the mail-in process necessarily had to be eliminated. The exceptions to this process are travelers with official government business and people under 14 and over 79. The push for modernization and security also includes changes in how U.S. officials scrutinize nonimmigrant foreign nationals at ports of entry. The United States has implemented the United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT) program in 115 U.S., Canadian, Caribbean and European airports and 15 seaports. This program requires nonimmigrant foreign nationals to both check-in and out of the country. Officials will compare data acquired either at their personal visa interviews or their arrival within the country with information collected upon their departure to identify and stop terrorists and wanted criminals at U.S. ports of entry. The United States intends to extend this program to all land ports of entry by December 31, 2005. To learn more about the US-VISIT program, who it affects, and what employers can do to expedite their employees’ entrance and exit from the United States, read True Walsh & Miller’s article "US Visit Program" at: http://www.millermayer.com/resources/usvisit.html 6. Customs and Border Patrol to Allow Discretion in Permitting Foreign Journalists Entry to the United States U.S. Customs and Border Protection (CBP) has issued a guidance to all U.S. ports of entry giving Port Directors discretionary authority to permit entry to foreign journalists who attempt to enter the U.S. with the wrong visa, while reminding those foreign journalists that they should be aware of immigration policies before they leave the United States. In the past, representatives of foreign press, radio, television, or other foreign information media have been admitted to the United States as nonimmigrants with B-1 business visas or as business visitors under the Visa Waiver Program. However, the Immigration and Nationality Act does not allow them to enter in that manner. Foreign journalists are instead supposed to enter in the “I” visa category for foreign journalists. Soon after immigration functions were transferred to the new Department of Homeland Security, immigration officials began strictly enforcing this long-ignored distinction. Beginning in March 2003, a number of journalists were, according to Reporters Without Borders, "interrogated, searched, detained, photographed, fingerprinted, and taken to planes in handcuffs." http://www.rsf.org/article.php3?id_article=10003. This crackdown was widely reported in major media, drawing the criticism of the New York Times, London Times, and other international papers. Under the new CBP policy, a Port Director may consider a one-time discretionary authorization to enter the United States. If that discretion is exercised, the journalist will be advised of the requirement to have a visa in the correct classification for any future trips to the United States. "Customs and Border Protection's priority mission is keeping terrorists from entering this country. We also enforce all laws, including immigration laws at our borders and ports of entry," said CBP Commissioner Robert C. Bonner. "While we carry out our mission and enforce our laws, we realize there is a difference between fraud and failure to be informed of the legal requirements for entering the Unites States. That is why we are giving our Port Directors leeway when it comes to allowing journalists to enter the U.S. who are clearly no threat to our security." Read the True Walsh & Miller Visa Overview for a summary of the many immigrant and nonimmigrant visa categories at: http://www.millermayer.com/resources/general1cont.htm 7. Hilary T. Fraser on Sabbatical Until January 2005 Clients: Please be advised that in accordance with our law firm’s sabbatical policy, Hilary T. Fraser will be taking a sabbatical leave from July 1, 2004 to January 1, 2005. This leave will not cause disruption in your case. Hilary will be available to return email messages from her usual law firm email address once a week, most likely on Wednesdays, for the month of July, and September through December. In August, she will be traveling and unavailable. She will also maintain accountability for her clients' bills, along with the other True, Walsh & Miller immigration staff who work on your case. Otherwise, work on your case will be handled by the True, Walsh & Miller immigration practice staff, including Steve Yale-Loehr, Rosie Mayer, Carolyn Lee, Gloria Huizinga, Coralie Gahn, Christine Watson, Michelle Trotman and our office support staff. Our staff can ably answer your questions and continue handling of your filings. We can also open new and related matters for you while Hilary is out of the office. Hilary wishes you best regards for the balance of 2004 and looks forward to resuming work in January. 8. New Articles on Our Web Site We have posted a new article about “special handling” labor certification procedures at: http://www.millermayer.com/resources/immigrant/sphandling.html. "Special handling" allows universities and colleges to apply for labor certification to employ a foreign national as a college or university teacher in a more expedited way than normal labor certification procedures. For answers to any of your immigration questions, contact: Hilary Fraser (mailto:htf@millermayer.com)
|