Alerts and Updates

Recent Developments in Immigration Law

January 2008

Department of State Updates

Employment-Based Immigrant Visa Availability Update

The January Visa Bulletin issued by the Department of State (DOS) showed additional, significant retrogression in the second preference employment-based (EB) categories for nationals of India and slight forward movement in the third preference EB categories for most foreign nationals.

EB-1

All countries: Current

EB-2

India: Unavailable (complete retrogression)
China: January 1, 2003 (no forward movement
All other countries: Current

EB-3

India: May 8, 2001 (forward movement of 1 week)
Mexico: April 22, 2001 (no forward movement)
China: November 15, 2001 (forward movement of 2 weeks)
Philippines: November 1, 2002 (forward movement of 2 weeks)
All other countries: November 1, 2002 (forward movement of 2 weeks)

For a link to the current Visa Bulletin and listing of all categories, including family-based immigrant visa categories, please visit the DOS website at: http://www.travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.

The new cut-off dates became effective on January 1, 2008. Foreign nationals may either file their application for adjustment of status to permanent residence or may apply for an approval of their immigrant visa at a U.S. consular post abroad, if their immigrant visa priority date is before the cut-off date in their category outlined above.

DOS has advised that the additional retrogression on the second preference category for India is a direct result of extraordinarily heavy applicant demand for numbers, primarily by Citizenship and Immigration Services offices for adjustment of status cases. DOS has also advised that additional retrogressions in that category cannot be ruled out during the second quarter of the fiscal year, and that the third preference category is expected to move forward slowly as demand is evaluated.

Duane Morris is working with clients with current priority dates to gather the documentation and prepare applications for those now eligible to apply for permanent residence.

DOS Fees Increased on January 1, 2008

The State Department increased both non-immigrant and immigrant visa fees for applicants of non-immigrant visa stamps (such as H-1B, L-1, O-1) and immigrant visas (permanent residence visas) at American Embassies and Consulates around the world. The increased fee for non-immigrant visas rose from $100 to $131, and the fee for immigrant visas increased by $20 per person.

The fee increase is based on the costs of systems already being used as well as the FBI's approved increase in its charge to the State Department of $20 per fingerprint for their work in providing records (security) clearances.

DOS Announces a New PIMS System

Non-immigrant Visa Delays Caused by Electronic Verification Requirement

According to a Department of State cable (No. 155679) sent to the field on November 13, 2007, consular posts are now able to access the details of approved non-immigrant visa petitions in a new report called "PIMS" (Petition Information Management Service). The Kentucky Consular Center (KCC) has stopped emailing scanned copies of approved petitions to posts. The electronic PIMS record created by the KCC will now be the primary source of evidence to be used in determining petition approval. This applies to all non-immigrant petition-based visa categories (H, L, O, P and Q). The PIMS Petition Report contains a record of all petitioners recorded by the KCC as having approved petitions since 2004. In addition, many of the records contain information from KCC's Fraud Prevention Unit.

This unanticipated change has reportedly resulted in delays at many posts from interview to visa issuance for these categories.

DOS Implements Changes to Exchange Visitor Program - Training and Internship (J-1) Programs

Final rules became effective for Exchange Visitor Program — Training and Internship (J-1) Programs. The existing J Trainee category is split into trainees and interns. The new rule generally includes the following changes:

  1. Establishes new criteria for eligibility for programs for companies, trainees and the new "intern" category;
  2. In certain cases, changes the maximum length of stay; and
  3. Requires a placement plan signed by the visa sponsor, training supervisor and trainee on DS-7002.

Under the new rules, a participant in the J-1 trainee program is categorized as an intern or trainee. The differences between the two categories are significant, and large numbers of individuals who heretofore were able to participate in J-1 trainee programs in the United States are now excluded.

Department of Homeland Security Updates

H-2B Quota Filled

CIS announced that the quota for H-2B petitions for the second half of the 2007-08 fiscal year has been filled. This means that employers cannot file again until April 1, 2008, for a start date effective October 1, 2008. We encourage employers who are eager to get involved to call or send letters on letterhead to their Congressional representatives, and to also get involved in the Save Small Business coalition: http://www.savesmallbusiness.org/.

H-1B Filing: April 1, 2008 for FY 2008-09

This year, as in prior years, the number of H-1B petitions to be filed is expected to be high for both the 65,000 quota as well as the 20,000 additional numbers provided for holders of U.S. master's degrees. Employers should begin preparing lists of current employees who may need to have their status changed or future employees who will need to apply for H-1B status now. Our immigration group can assist you in gathering the required documents for these H-1B petitions now.

Please note that the new H-1B petitions, which are subject to the H-1B cap, can only be filed for receipt as of April 1, 2008 — but can be prepared further in advance. In addition, it is important to note that last year's cap was reached within the first two days of the fiscal year, and many H-1B petitions were rejected through a random lottery established by Congress for such circumstances.

DHS Begins Collecting 10 Fingerprints at Washington Dulles International Airport

For travelers who enter the U.S. through Washington Dulles International Airport, the Department of Homeland Security (DHS) is now requiring a full set of 10 fingerprints, instead of just two, from each individual upon entry. This requirement will be expanded to nine additional airports next spring:

  • Boston Logan International Airport
  • Chicago O'Hare International Airport
  • Detroit Metropolitan Wayne County Airport
  • George Bush Houston Intercontinental Airport
  • Hartsfield Jackson Atlanta International Airport
  • John F. Kennedy International Airport (NYC)
  • Miami International Airport
  • Orlando International Airport
  • San Francisco International Airport

DHS plans to expand this 10-fingerprint system to 107 other airports and to begin collecting 10 fingerprints at other ports of entry by the end of 2008. DOS currently uses scanners for ten fingerprints at most of its visa-issuing posts and will complete use of this system worldwide this year.

E-Verify Employment Eligibility Verification Report

Recent findings about the Web-based Basic Pilot program, now called E-Verify, have been released. Among other items, the new report notes that employers are satisfied with many aspects of the new online version of the former Basic Pilot program. Also, the accuracy of the U.S. Citizenship and Immigration Services (USCIS) database used for verification has "improved substantially" since the start of Basic Pilot. However, the report notes that further improvements are needed, especially if the program is mandated nationally.

Most importantly, the report states, the database used for verification "is still not sufficiently up to date to meet the [Illegal Immigration Reform and Immigrant Responsibility Act of 1996] requirement for accurate verification, especially for naturalized citizens." The report notes that USCIS and the Social Security Administration accommodate this problem by providing for a manual review of these cases, which is "time-consuming and can result in discrimination against work-authorized foreign-born persons during the period that the verification is ongoing, if employers do not follow procedures designed to protect employee rights."

E-Verify allows employers to get automated confirmation of a newly hired employee's work authorization after an Employment Eligibility Verification (Form I-9) has been completed. Employers who sign up to participate complete the I-9 process as usual, but then enter and submit I-9 information through a Web-based computer program to the Social Security Administration (SSA) database. If the SSA does not have sufficient information to confirm work authorization status, queries are sent to USCIS for confirmation. If more information is required to complete the confirmation process, the employer is asked to have the employee contact the SSA or USCIS to provide the needed information.

The report, which includes recommendations, is available at: http://www.uscis.gov/files/article/WebBasicPilotRprtSept2007.pdf.

USCIS Releases List of EB-5 Regional Centers

An updated list of approved EB-5 "Regional Centers" was released by the USCIS, with active Centers as of October 2007. These centers are public or private entities approved to participate in the EB-5 immigrant investor program (which provides a path to permanent residence for the investor and their family). The Regional Center program provides an alternative for potential immigrant investors who are not able to individually to invest the requisite $1 million, as this system allows them to make $500,000 investments.

Conversion of Checks into Electronic Transfers

DHS is now converting funds from checks into electronic funds transfers for the Form I-765, Application for Employment Authorization. Please note that all checks should now be made payable to "U.S. Department of Homeland Security."

This change is explained in the DHS instructions to the form, which read: "[y]ou will not receive your original check back. We will destroy your original check, but we will keep a copy of it. If the EFT [electronic funds transfer] cannot be processed for technical reasons, you authorize us to process the copy in place of your original check. If the EFT cannot be completed because of insufficient funds, we may try to make the transfer up to two times."

This change may be a concern because a canceled check itself has been useful in one's ability to track cases. For example, the receipt number could be retrieved from the canceled check to track the application if the actual fee receipt issued by USCIS was lost in the mail.

Customs and Border Protection Update: Border Crossing Cards

Mexican citizens who hold border crossing cards (a card with a "laser" visitor visa) can now apply in advance for their I-94, Arrival-Departure Record, instead of waiting to apply on the actual date of entry. This will alleviate the need for a long wait at the border.

To date, these advance I-94 cards can be obtained in Calexico, Otay Mesa and San Ysidro. The I-94 card, which costs $6, permits visitors to travel within 25 miles from the border and to stay up to six months in the United States.

New Travel Documentation Requirements

As of January 31, 2008, new travel document requirements go into effect for U.S., Canadian and Bermudian citizens entering the United States at land or sea ports-of-entry. They must present proof of citizenship, such as a birth certification, and proof of identity (e.g., a driver's license) to the U.S. Customs and Border Protection (CBP) officer. An oral declaration of citizenship will no longer be sufficient.

For children ages 18 years and under, they will be required only to present proof of citizenship and not the additional proof of identity. Passport cards will continue to be valid for cross-border travel (for departure from and entry to the United States through land and sea ports-of-entry between the United States and Mexico, Canada, the Caribbean and Bermuda.) Passport cards, unlike passport books, are valid without signature but are not globally interoperable international travel documents.

For Further Information

If you have any questions about this Alert or would like more information, please contact one of the attorneys in our Immigration Law Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.