Headlines:

1. U.S. Chamber of Commerce Challenges Legality of E-Verify Requirement for Federal Contractors – The U.S. Chamber of Commerce filed a lawsuit against the DHS challenging the legality of requiring federal contractors to begin using E-Verify by January 15.

2. DHS Issues Interim Rule on I-9 Verification Documents – The interim rule, among other things, requires that all documents presented during the verification process be unexpired.

3. US-VISIT Expanded To Nearly All Noncitizens – The population of those subject to US-VISIT requirements has been expanded to nearly all non-U.S. citizens, including lawful permanent residents, with some exceptions.

4. New York Documents Designated for Western Hemisphere Travel Initiative – DHS has designated enhanced driver’s licenses and identity documents issued by New York State as acceptable identity and citizenship documents for entering the U.S. at land and sea ports of entry.

5. EADs Extended for Salvadoran TPS Beneficiaries – USCIS announced an automatic extension of the validity of Employment Authorization Documents (EADs) for eligible Salvadoran TPS beneficiaries for six months, through September 9, 2009.

6. Company Agrees To Pay Largest Settlement Ever in Worksite Enforcement Case – IFCO, the largest pallet management services company in the U.S., has agreed to pay $20.7 million in civil forfeitures and penalties for employing undocumented workers.

7. DHS Issues Final Rule, Notice on H-2B Temporary Nonagricultural Workers – DHS has amended its H-2B regulations regarding temporary nonagricultural workers and their U.S. employers.

8. DHS Issues H-2A Final Rule – DHS has amended its H-2A regulations regarding temporary and seasonal agricultural workers and their U.S. employers.

9. USCIS Announces New Mailing Address Format for National Capital Region Offices – USCIS announced a new address format for offices within the National Capital Region (NCR), affecting all USCIS headquarters offices, the Arlington Asylum Office, and the Washington District Office.

10. ABIL GLOBAL – Current immigration news regarding a specific country each month.

11. New Publications and Items of Interest – New Publications and Items of Interest

12. Recent News from ABIL Members – Recent News from ABIL Members

13. Government Agency Links – Government Agency Links

---

Details:

1. U.S. Chamber of Commerce Challenges Legality of E-Verify Requirement for Federal Contractors

Under new regulations, federal contractors and subcontractors will be required to begin using the E-Verify online work authorization verification system starting January 15, 2009. The U.S. Chamber of Commerce filed a lawsuit on December 23, 2008, against the Department of Homeland Security (DHS) that challenges the legality of that requirement.

Joining the Chamber as co-plaintiffs in the lawsuit, filed in the U.S. District Court for the District of Maryland, were the Associated Builders and Contractors, the Society for Human Resources Management, the American Council on International Personnel, and the HR Policy Association.

Robin Conrad, executive vice president of the National Chamber Litigation Center (NCLC), the Chamber’s public policy law firm, said, “the Administration can’t use an Executive Order to circumvent federal immigration and procurement laws. Federal law explicitly prohibits the secretary of Homeland Security from making E-Verify mandatory or from using it to reauthorize the existing workforce.”

The Chamber’s lawsuit challenges the government’s use of an Executive Order coupled with federal procurement law to make E-Verify mandatory for federal contractors with projects exceeding $100,000 and for subcontractors with projects exceeding $3,000. The Chamber also challenged expanding E-Verify to require the reauthorization of existing workers.

“The DHS intends to expand E-Verify on an unprecedented scale in a very short timeframe, and to impose liability on government contractors who are unable to comply,” said Randy Johnson, vice president of Labor, Immigration and Employee Benefits at the Chamber. “Given the current economy, now is not the time to add more bureaucracy and billions of dollars in compliance costs to America’s businesses.”

The Chamber is the world’s largest business federation, representing more than 3 million businesses and organizations of every size, sector, and region. The American Immigration Lawyers Association (AILA), among others, applauded the Chamber’s challenge. Charles H. Kuck, president of AILA, noted, “The idea of using an Executive Order to go beyond clear federal immigration and procurement laws and to impose liability on government contractors who are unable to comply is simply misguided and unlawful.”

Back to Top

---

2. DHS Issues Interim Rule on I-9 Verification Documents

The Department of Homeland Security (DHS) is amending its regulations governing the types of acceptable identity and employment authorization documents and receipts that employees may present to their employers for employment authorization verification (Form I-9). The interim rule, effective February 9, 2009:

• requires that all documents presented during the verification process be unexpired;
• eliminates List A identity and employment authorization documentation forms I-688, I-688A, and I-688B (Temporary Resident Card and outdated Employment Authorization Cards);
• adds foreign passports containing certain machine-readable immigrant visas to List A;
• adds to List A as evidence of identity and employment authorization valid passports for citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI), along with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI ; and
• makes technical updates.

The DHS noted that it issues temporary I-551 stamps to legal permanent residents (LPRs) on either unexpired foreign passports or the Arrival-Departure Record (Form I-94), to serve as temporary documentation of LPR status while they wait for the actual Form I-551. Although the regulations refer to temporary I-551 “stamps,” the DHS noted that the Department of State has been affixing machine-readable immigrant visas (MRIVs) that contain a pre-printed temporary I-551 notation in the foreign passports of those immigrating to the U.S. for several years. The pre-printed temporary I-551 notation is triggered after the bearer is admitted to the U.S. as an LPR. To update the regulations to reflect this alternate temporary I-551 document, this rule modifies the reference in List A [8 CFR 274a.2(b)(1)(v)(A)(3)] to temporary I-551 stamps on unexpired foreign passports to include pre-printed temporary I-551 notation on MRIVs. Because the pre-printed notation is not included on the I-94, this rule does not make any changes to regulatory references to temporary I-551 stamps on I-94s.

The rule also updates the list of acceptable documents and receipts by including “Form I-94A” next to each reference to the I-94 because the I-94A is nearly identical to the I-94 except that all fields are computer-generated rather than annotated by hand.

The interim rule also replaces the term “employment eligibility” with “employment authorization.” The amended I-9 form reflecting these and other form-related changes was published as an attachment to this rule for “informational purposes.” USCIS’s Web site still has the version of the I-9 form that was revised June 5, 2007.

The interim rule is available at http://edocket.access.gpo.gov/2008/pdf/E8-29874.pdf. Questions and answers are available at http://www.uscis.gov/files/article/I9_qa_12dec08.pdf.

Back to Top

---

3. US-VISIT Expanded To Nearly All Noncitizens

The Department of Homeland Security has published a final rule, effective January 18, 2009, that expands the population of those who will be subject to US-VISIT requirements to nearly all non-U.S. citizens, including lawful permanent residents. Exceptions include Canadian citizens seeking short-term admission for business or pleasure under B visas and individuals traveling on A and G visas, among others. Those subject to US-VISIT may be required to provide finger scans, photographs, or other biometric identifiers upon arrival in the U.S. Currently, noncitizens arriving at a U.S. port of entry with a nonimmigrant visa, or those traveling without a visa under the Visa Waiver Program, are subject to US-VISIT requirements with certain limited exceptions.

On August 31, 2004, the Department promulgated an interim final rule that expanded the US-VISIT program to include those seeking admission under the Visa Waiver Program and travelers arriving at designated land border ports of entry. This rule also finalizes that interim final rule and addresses public comments.

The final rule is available at http://edocket.access.gpo.gov/2008/pdf/E8-30095.pdf.

Back to Top

---

4. New York Documents Designated for Western Hemisphere Travel Initiative

Effective December 2, 2008, the Department of Homeland Security has designated enhanced driver’s licenses and identity documents (EDLs) issued by the state of New York as acceptable identity and citizenship documents for entering the U.S. at land and sea ports of entry. U.S. citizens possessing these EDLs will be permitted to present the EDLs, in lieu of passports, as acceptable documents under the Western Hemisphere Travel Initiative (WHTI) when entering the U.S. at land and sea ports of entry.

On October 27, 2007, the Secretary of Homeland Security and the Governor of New York signed a Memorandum of Agreement (MOA) to develop, issue, test, and evaluate an enhanced driver’s license and identification card with facilitative technology to be used for border crossing purposes. Under the terms of the agreement between DHS and the State of New York, New York will only issue EDLs to U.S. citizens. EDLs also may be issued as photo identification cards to non-drivers.

The notice is available at http://edocket.access.gpo.gov/2008/pdf/E8-28535.pdf.

Back to Top

---

5. EADs Extended for Salvadoran TPS Beneficiaries

USCIS announced an automatic extension of the validity of Employment Authorization Documents (EADs) for eligible Salvadoran TPS beneficiaries for six months, through September 9, 2009. Initially, the expiration date for Salvadoran EADs was March 9, 2009. USCIS has automatically extended the EAD validity period to allow for the agency to process and re-issue new EADs for such beneficiaries.

USCIS announced on September 24, 2008, that it would extend through September 9, 2010, TPS status for nationals of El Salvador who have already been granted TPS. Salvadoran nationals (and people having no nationality who last habitually resided in El Salvador) who had been granted TPS must have re-registered for the 18-month extension during the 90-day re-registration period that ended on December 30, 2008. TPS does not apply to nationals of El Salvador who entered the U.S. after February 13, 2001.

Details on the automatic extension of the EADs, including the application requirements and procedures, were published on December 15, 2008, at http://edocket.access.gpo.gov/2008/pdf/E8-29511.pdf.

Back to Top

---

6. Company Agrees To Pay Largest Settlement Ever in Worksite Enforcement Case

After a large worksite enforcement operation conducted by U.S. Immigration and Customs Enforcement (ICE), IFCO Systems North America, headquartered in Houston, Texas, and the largest pallet management services company in the U.S., has agreed to pay $20.7 million in civil forfeitures and penalties over four years for employing undocumented workers at its plants.

The settlement amount includes $2.6 million in back pay and penalties relating to IFCO’s overtime violations with respect to 1,700 of its pallet workers. IFCO is also paying $18.1 million in civil forfeitures that will be available to support future law enforcement activities.

Following a tip to ICE in February 2005 that undocumented workers at an IFCO plant in Albany, New York, were observed ripping up their W-2 forms, on April 19, 2006, ICE agents, in concert with other federal and state authorities, conducted a worksite enforcement action at over 40 IFCO pallet plants in 26 states, which resulted in the detention of 1,182 undocumented workers. The U.S. Attorney’s Office in New York has prosecuted several IFCO managers and employees for criminal offenses associated with the employment of those workers. To date, nine IFCO managers and employees have entered guilty pleas related to such criminal conduct. Four managers are currently pending trial on a felony indictment in the U.S. District Court in the Northern District of New York and the investigation of IFCO employees is continuing. The IFCO settlement agreement concerns only the liability of the corporation and does not address any pending or possible future criminal charges against individual employees, ICE noted.

ICE found that several IFCO managers and employees harbored and transported undocumented workers, and encouraged and induced them to remain in the U.S. as pallet workers. An analysis of the payroll information IFCO submitted to the Internal Revenue Service (IRS) and the Social Security Administration (SSA), and the hiring patterns and practices at IFCO, suggested to ICE that from 2003 through April 2006, as many as 6,000 undocumented workers were employed at IFCO pallet plants.

IFCO received repeated notices from the SSA and others, dating back to at least 2000, of irregularities in the social security numbers used for employment purposes by many of its pallet workers. ICE found that IFCO failed to take significant measures to verify the social security numbers of these workers, and in 2004 and 2005, failed to make any effort to address the use of invalid social security numbers by numerous pallet employees. Investigative entities further concluded that at 30 of IFCO’s pallet plants, the company owed back wages to piece-wage pallet workers, the vast majority of whom were undocumented. Under the settlement agreement, ICE noted, IFCO acknowledged and accepted responsibility for the unlawful conduct of its managers and employees, as described in the agreement. The agreement includes a compliance and reporting program intended to prevent the employment of undocumented workers at IFCO plants in the future. The company will take remedial actions in hiring, such as using the E-Verify online work authorization verification system for all new hires, and will verify the social security numbers of all IFCO employees through SSA.

IFCO also must maintain an employee hotline to receive reports of any suspected violations of law at the company. The agreement runs through the year 2012, at which time, if the company has been in full compliance with all of the agreement’s terms and conditions, the U.S. Attorney’s Office will not seek to prosecute the company for any criminal charges related to the conduct of its employees before April 2006.

“Today’s announcement that IFCO Systems North America will pay the largest settlement amount ever in a worksite enforcement case and the fact that nine IFCO managers have admitted their guilt related to the employment of illegal aliens will send a powerful message that ICE will investigate and bring to justice companies which hire illegal workers,” said John P. Torres, Acting Assistant Secretary of Homeland Security for ICE.

Andrew T. Baxter, Acting United States Attorney, stated, “This settlement accomplishes the government’s objective of deterring employers who might seek to subvert the immigration laws of this country. The Agreement severely punishes IFCO for its serious immigration and employment violations; but it also allows the corporation to continue its operations, so that its lawful employees and innocent shareholders do not suffer the consequences of a business failure in this economy. It is our hope that the compliance and reporting requirements under the agreement will serve as a model for other businesses.”

ICE’s announcement is at http://www.ice.gov/pi/nr/0812/081219albany.htm.

Back to Top

---

7. DHS Issues Final Rule, Notice on H-2B Temporary Nonagricultural Workers

The Department of Homeland Security (DHS) has amended its H-2B regulations regarding temporary nonagricultural workers and their U.S. employers. The final rule, effective January 18, 2009, generally removes the requirement for H-2B petitioners to state on petitions the names of prospective H-2B workers who are outside the U.S. The rule also reduces the waiting period from six months to three months for an H-2B worker who has reached his or her maximum three-year period of stay in H-2B nonimmigrant status before such person may seek an extension of nonimmigrant stay, change of status, or readmission to the U.S. in any H or L nonimmigrant status.

The rule also adjusts the definition of “temporary services or labor,” which is generally defined as a period of one year but could be for a specific one-time need of up to three years. The rule also eliminates the DHS’s current practice of adjudicating H-2B petitions where the Secretary of Labor or the Governor of Guam has not granted a temporary labor certification. The rule also prohibits H-2B petitioners from requesting an employment start date on the Petition for a Nonimmigrant Worker (Form I-129) that differs from the date of need listed on the approved temporary labor certification. The final rule requires H-2B petitioners to notify the DHS when the H-2B worker fails to report for work, is terminated before completing the work for which he or she was hired, or absconds from the worksite.

The final rule also precludes employers from passing the cost of recruiter fees charged by a petitioner, agent, facilitator, recruiter, or similar employment service to prospective H-2B workers as a condition of an offer of H-2B employment. Under this rule, however, employers and H-2B workers may agree that certain transportation costs and government-imposed fees be borne by H-2B workers, if the passing of such costs to these workers is not prohibited under the Fair Labor Standards Act or any other statute.

Moreover, the rule enforces existing penalties in the case of an employer who fails to meet any of the conditions of the H-2B petition, or who willfully misrepresents a material fact in the H-2B petition. Employers who fail to meet the H-2B conditions or who willfully make material misrepresentations on an H-2B petition may be precluded from approval for a period of up to five years of any H (except H-1B1), L, O, or P-1 nonimmigrant visa petition, or any immigrant visa petition described in section 204 of the INA.

Nationals from the following countries are eligible to participate in the H-2B visa program:

Argentina; Australia; Belize; Brazil; Bulgaria; Canada; Chile; Costa Rica; Dominican Republic; El Salvador; Guatemala; Honduras; Indonesia; Israel; Jamaica; Japan; Mexico; Moldova; New Zealand; Peru; Philippines; Poland; Romania; South Africa; South Korea; Turkey; Ukraine; and United Kingdom.

This rule also provides that DHS will publish a notice in the Federal Register listing the countries that the Departments of Homeland Security and State have designated as eligible for their nationals to participate in the H-2B program.

Finally, this rule establishes a pilot exit control program for certain H-2B workers, by requiring them to report their departures at designated ports of entry. U.S. Customs and Border Protection (CBP) published a notice in the Federal Register describing the procedures and requirements for participation in this pilot program at http://edocket.access.gpo.gov/2008/pdf/E8-29787.pdf.

The DHS also published a separate notice, effective January 18, 2009, announcing the manner in which H-2B petitioners must notify U.S. Citizenship and Immigration Services regarding their employment of nonagricultural workers in H-2B nonimmigrant status or job placement fee information. Among other things, the notice sets forth the procedures for H-2B petitioners to notify USCIS when:

• an H-2B worker fails to report to work within five work days of the employment start date on the H-2B petition;
• when the temporary labor or services for which H-2B workers were hired is completed more than 30 days early; or
• when the H-2B worker absconds from the worksite or is terminated before the completion of the temporary labor or services for which he or she was hired.

Regulations require H-2B petitioners to retain evidence of such notification sent to USCIS for a one-year period.

The notice further provides the procedures for H-2B petitioners to notify USCIS, after an H-2B petition has been filed, within two work days of learning that an H-2B worker paid a fee or other compensation to a facilitator, recruiter, or similar employment service as a condition of the offer of obtaining the H-2B employment.

The text of the final rule is available at http://edocket.access.gpo.gov/2008/E8-30094.htm. The notice is available at http://edocket.access.gpo.gov/2008/E8-30098.htm. Another notice announcing the list of eligible H-2B countries is at http://edocket.access.gpo.gov/2008/E8-30114.htm.

Back to Top

---

8. DHS Issues H-2A Final Rule

The Department of Homeland Security (DHS) has amended its H-2A regulations regarding temporary and seasonal agricultural workers and their U.S. employers. The final rule, effective January 17, 2009, lengthens the amount of time an agricultural worker may remain in the U.S. after his or her employment has ended and shortens the time period that an agricultural worker whose H-2A nonimmigrant status has expired must wait before he or she is eligible for H-2A nonimmigrant status again.

The rule also provides temporary employment authorization for agricultural workers seeking an extension of their H-2A nonimmigrant status through a different U.S. employer, provided that the employer is a registered user in good standing with the E-Verify employment eligibility verification program.

In addition, the rule modifies the current notification and payment requirements for employers when a worker fails to show up at the start of the employment period, an H-2A employee’s employment is terminated, or an H-2A employee absconds from the worksite. The rule also requires certain employer attestations and precludes the imposition of fees by employers or recruiters on prospective beneficiaries.

Under the final rule, the DHS also will revoke an H-2A petition if the Department of Labor revokes the petitioner’s underlying labor certification.

Finally, the rule establishes criteria for a pilot program under which workers admitted on certain temporary worker visas at a port of entry participating in the program must also depart through a port of entry participating in the program and present designated biographical information upon departure. U.S. Customs and Border Protection (CBP) will publish a notice designating which temporary workers must participate in the program, which ports of entry are participating in the program, and the types of information that CBP will collect from the departing workers.

Nationals from the following countries are eligible to participate in the H-2A visa program: Argentina; Australia; Belize; Brazil; Bulgaria; Canada; Chile; Costa Rica; Dominican Republic; El Salvador; Guatemala; Honduras; Indonesia; Israel; Jamaica; Japan; Mexico; Moldova; New Zealand; Peru; Philippines; Poland; Romania; South Africa; South Korea; Turkey; Ukraine; and United Kingdom.

The DHS also published a notice, effective January 17, 2009, announcing the manner in which petitioners must notify U.S. Citizenship and Immigration Services regarding their employment of agricultural workers in H-2A nonimmigrant status or job placement fee information. Among other things, the regulations require H-2A petitioners to provide notification to DHS within two work days in the following instances:

• when an H-2A worker fails to report to work within five work days of the employment start date on the H-2A petition or within five work days of the start date established by the petitioner, whichever is later;
• when the agricultural labor or services for which H-2A workers were hired is completed more than 30 days early; or
• when the H-2A worker absconds from the worksite or is terminated before the completion of agricultural labor or services for which he or she was hired.

The regulations also require H-2A petitioners to retain evidence of the notification filed with DHS for a one-year period beginning from the date of the notification. Petitioners who use a different employment start date than that stated on the H-2A petition must retain evidence of the changed start date and make such evidence available for inspection by DHS officers for a one-year period beginning on the newly established employment start date.

The final rule is available at http://edocket.access.gpo.gov/2008/E8-29888.htm. The notice is available at http://edocket.access.gpo.gov/2008/E8-29786.htm. The list of eligible H-2A countries is at http://edocket.access.gpo.gov/2008/E8-29785.htm.

Back to Top

---

9. USCIS Announces New Mailing Address Format for National Capital Region Offices

U.S. Citizenship and Immigration Services (USCIS) announced on December 3, 2008, a new address format for offices within the National Capital Region (NCR), affecting all USCIS headquarters offices, the Arlington Asylum Office, and the Washington District Office.

To ensure the timely delivery of USCIS mail, correspondence addressed to the affected offices should list a unique mailstop and corresponding ZIP code + 4 number. If the address does not list a mailstop and corresponding ZIP code + 4 number, the correspondence will still be delivered but may be subject to minor delays as a result of the new mail process.

The new format for the address of the Information and Customer Service Division, which handles all general inquiries, is:

Information and Customer Service Division MS 2260
U.S. Citizenship & Immigration Services
111 Massachusetts Ave. N.W.
Washington, D.C.  20529-2260

This address format change does not apply to USCIS offices outside the National Capital Region (such as the Baltimore District). It also currently does not apply to the Alexandria Application Support Center.

The notice is available at http://www.uscis.gov/files/article/update_addresschange_3dec2008.pdf. The list of the unique mailstop and corresponding ZIP code + 4 number for each affected office is at http://www.uscis.gov/files/article/external_mailstop_plus_four_chart_3dec08.pdf.

Back to Top

---

10. ABIL GLOBAL

German business visas. A new article by Dr. Gunther Mävers (bio: http://www.abil.com/lawyers/lawyers-mavers.cfm), “What One Should Know With Regard to a German Business Visa,” has been posted to the Alliance of Business Immigration Lawyers’ Web site. Dr. Mävers notes that employees of internationally operating companies often use a visitor’s visa for business trips to Germany without being aware of which activities are actually permitted under this visa. Even if violations of the legal provisions of residence and work permits are often unnoticed and consequently not punished, Dr. Mävers says, there are considerable consequences for all persons concerned if violations are detected. The article, which provides information about compliance with visa requirements when traveling to Germany on business, is available, along with other articles by ABIL Global members, at http://www.abil.com/global_immigration.cfm.
Back to Top

---

11. New Publications and Items of Interest

U.S. Citizenship and Immigration Services Ombudsman reports. USCIS’s Ombudsman released several reports in December:

Observations on the E-Verify Experience in Arizona & Recommended Customer Service Enhancements found that mid-sized and large employers appear relatively satisfied with the speed and accuracy of E-Verify. Smaller employers, however, expressed varying levels of concern with user-friendliness. Also, the report found that confusion remains about the exact timing and the specific processes that employers and employees must follow after E-Verify returns a Tentative Nonconfirmation (TNC) determination. Apart from these operational observations, the Ombudsman found that USCIS outreach and education efforts have been well received by system users, but may not be reaching smaller-sized employers that represent 50 percent of the existing private U.S. payroll. The Ombudsman recommends that USCIS:

1. Simplify the language used in all E-Verify instructions and supporting documentation.
2. Make all registration and operational documents publicly available online for review by prospective E-Verify end users and employees.
3. Ensure that USCIS’s education and outreach efforts reach small business communities.
4. Develop and add a tickler/calendar system in E-Verify that can issue timely prompts to employers to advise them of their next appropriate course of action for each specific open and unresolved TNC.
5. Announce as a stated goal an intention to replace the current Form I-9 employment authorization verification process for employers that voluntarily use E-Verify.

The E-Verify report is available at http://www.dhs.gov/xlibrary/assets/cisomb_everify_recommendation_2008-12-22.pdf.

Study and Recommendations on Naturalization Oath Ceremonies recommends, among other things, that USCIS should provide new citizens information on how to contact the Social Security Administration to prevent employment eligibility verification problems, given the increased utilization of E-Verify. The naturalization report is available at http://www.dhs.gov/xlibrary/assets/cisomb_naturalization_recommendation_2008-12-16.pdf.

Improving the Processing of “Schedule A” Nurse Visas recommends that USCIS adjust its normal procedures for processing Schedule A nurse applications. Specifically, USCIS should separate and prioritize, as well as centralize, its process for these applications in accordance with Congress’s expressed concern about the national nursing shortage and to ensure consistent adjudication of applications. In addition, the Ombudsman suggested that USCIS may wish to consider establishing points of contact with the Department of Labor (DOL) on the processing of Schedule A nurse applications as partners hoping to achieve the same goal: the expeditious processing of Schedule A nurse applications.

The Ombudsman recommends that USCIS (1) separate and prioritize Schedule A green card nurse applications so that they can be expedited, without the requirement of a written request, upon immigrant visa availability; and (2) centralize Schedule A nurse applications at one designated USCIS service center to facilitate more efficient and consistent processing of Schedule A applications.

Additionally, the Ombudsman suggests that USCIS regularly communicate with DOL and develop points of contact at DOL to discuss concerns and direct inquiries regarding the processing of nurse immigration applications.

The nurse report is available at http://www.dhs.gov/xlibrary/assets/cisomb_ead_recommendation_36.pdf.

USCIS Ombudsman questions and answers from teleconferences. The Ombudsman’s office has made available notes on the following topics from its teleconferences:

• How is USCIS Working for You?
• USCIS Refunds: How Is the Process Working for You?
• The K3 Visa Family Unification Process: How Is It Working for You?
• N-648 Medical Waivers – How Are They Working For You?
• Questions and Answers on The New Naturalization Test
• USCIS Receipting Delay – How Does This Affect You?
• Temporary Worker Visas
• E-Verify in Arizona – How is it Working for Your Business?
• Visas for Nurses: How Does This Impact Your Medical Facility?
• USCIS Summer 2007 Application Surge: How Is It Affecting You Now?
• CIS Ombudsman’s 2008 Annual Report: Your Questions and Comments
• U Visa: One Year After the Interim Final Rule
• Teleconference on Biological Relationship Testing: Opportunities and Challenges

The links to notes from these teleconferences are available at http://www.dhs.gov/xabout/structure/gc_1171038701035.shtm (scroll down).

Back to Top

---

12. Recent News from ABIL Members

In an article published on December 16, 2008, in California Executive, “Stimulating the U.S. Economy Through Immigration Reform,” Angelo Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm), managing partner of Paparelli & Partners LLP, said that approximately 500,000 allocated family- and employment-based visas are lost each year “either because of paperwork delays, security clearances or ineptitude.” Mr. Paparelli also predicted an increase in the need for foreign workers as the new administration embarks on an economic improvement plan. “I would say that Obama has been blessed with an ability to act on his agenda very quickly, because of the exigent economic realities. It appears that there will be money for large infrastructure projects; I believe he has fallen into a huge opportunity.”

John Nahajzer (bio: http://www.abil.com/lawyers/lawyers-nahajzer.cfm), of Maggio & Kattar, P.C., was quoted in “Obama Could Raise Cap On H-1B Skilled Workers,” which was published on November 24, 2008, in Law360, The Newswire for Business Lawyers (http://www.law360.com/). An article by Mr. Nahajzer on electronic I-9 employment authorization verification will appear in Workforce Management (http://www.workforce.com/index.html) in January 2009. Mr. Nahajzer will be speaking at the American Health Lawyers Association’s conference, “Legal Issues Affecting Academic Medical Centers and Other Teaching Institutions,” to be held January 29-30, 2009, at the Ritz-Carlton in Washington, D.C. For details, see http://www.sonnenschein.com/docs/docs_healthcare/AMC09_brochure.pdf.

Alliance of Business Immigration Lawyers speakers at the American Immigration Lawyers Association’s (AILA) New York Chapter annual immigration law symposium, held at the New York Marriott Marquis on December 3, 2008, included Mr. Paparelli, Cyrus Mehta (bio: http://www.abil.com/lawyers/lawyers-mehta.cfm), Charles Kuck (bio: http://www.abil.com/lawyers/lawyers-kuck.cfm), and Bernard Wolfsdorf (bio: http://www.abil.com/lawyers/lawyers-wolfsdorf.cfm).

Mr. Mehta was on an AILA Web seminar panel on “Equivalency Degree Issues for Advanced Practitioners,” held on December 11, 2008.

Mr. Mehta and Poorvi Chothani (bio: http://www.abil.com/lawyers/lawyers-chothani.cfm), both ABIL Global members, will speak in Pune, India, on January 2, 2009, in a program sponsored by the Indo-American Chamber of Commerce. Topics include immigration to the U.S. pre- and post-Obama, and employing foreign nationals in India.

Back to Top

---

13. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/jsps/ptimes.jsp

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

Back to Top

Headlines:

1. USCIS Estimates 21 Percent of H-1B Cases Involve Fraud or Technical Violations – USCIS concluded that there is a 21 percent baseline fraud and technical violation rate for H-1B petitions and plans procedural changes as a result.

2. U.S. Increases Period of Stay for Trade-NAFTA Professionals From Canada and Mexico – The final rule changes the initial period of admission for TN workers from one to three years.

3. Seven Countries To Be Added to Visa Waiver Program – The Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, and South Korea will be added soon.

4. USCIS Withdraws Lockbox for Naturalization Applications – USCIS has decided to delay implementation of the lockbox while technical issues are resolved.

5. State Dept. Issues Final Rule on Foreign Health Care Worker Certifications – The rule, adopted without change, requires certain health care workers seeking admission to the U.S., excluding physicians, to present certificates establishing competency in a specific health care field.

6. Department of State Requests Proposals for International Visitor Program – A cooperative agreement for $195,000 is expected to be awarded in early 2009.

7. Department of Homeland Security Streamlines Process for Short-Term Visitors Infected With HIV – DHS will allow those who are HIV-positive to enter as visitors for a temporary period not to exceed 30 days, without being required to seek such admission under the current case-by-case process.

8. State Dept. Eliminates Board of Appellate Review – Determinations related to loss of citizenship and passport denials now are being made by the Bureau of Consular Affairs instead.

9. DHS Exempts Certain Systems From Privacy Act Requirements, Including Legal Records, SEVIS – DHS is claiming exemption from certain requirements of the Privacy Act for various systems.

10. Slow Forward Movement Predicted for Employment Categories – Slow forward movement is expected in the cut-off dates for most employment visa categories during the next few months, and retrogressions cannot be ruled out.

11. New Publications and Items of Interest – New Publications and Items of Interest

12. Recent News from ABIL Members – Recent News from ABIL Members

13. Government Agency Links – Government Agency Links

---

Details:

1. USCIS Estimates 21 Percent of H-1B Cases Involve Fraud or Technical Violations

U.S. Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security, a division of the National Security and Records Verification Directorate, collaborated with other USCIS components on a new report, “H-1B Benefit Fraud & Compliance Assessment,” released in September 2008. The report estimates that about one in every five H-1B cases involves either fraud or a technical violation.

There were a total of 51 cases within the sample of 246 H-1B petitions that USCIS said represented either fraud, a technical violation, or multiple technical violations. USCIS said the cases reviewed constituted “a statistically valid random sampling of pending and completed cases over a recent six-month period.” The agency noted that “not all violations will rise to the level that would warrant a criminal investigation or prosecution,” and that the “vulnerabilities and abuses” identified “need not lead to a criminal investigation and/or prosecution in order to be reported for [Benefit Fraud and Compliance Assessment] purposes since systemic vulnerabilities ultimately may contribute to higher rates of successful fraudulent filings.” USCIS used the “overall violation rate” of 20.7 percent to extrapolate an estimate of approximately 20,000 petitions nationwide that “may have some type of fraud or technical violation(s).”

USCIS also identified “primary fraud or technical violation indicators,” including:

1. Firms with 25 or fewer employees have higher rates of fraud or technical violation(s) than larger-sized companies.
2. Firms with an annual gross income of less than $10 million have higher rates of fraud or technical violations than firms with an annual gross income greater than $10 million.
3. Firms in existence less than 10 years have higher incidences of fraud or technical violations than firms with an annual gross income greater than $10 million.
4. The results indicate that H-1B petitions filed for accounting, human resources, business analysts, sales, and advertising occupations are more likely to contain fraud or technical violations than other occupational categories.
5. Beneficiaries with only bachelor’s degrees had higher fraud or technical violation rates than did those with graduate degrees.

USCIS concluded that the results of this study “have established a 21% baseline fraud and technical violation(s) rate for H-1B petitions. Given the significant vulnerability, USCIS is making procedural changes, which will be described in a forthcoming document.”

The Alliance of Business Immigration Lawyers expressed concerns about the small sample size (0.2 percent of the 96,827 H-1B petitions filed between October 1, 2005, and March 31, 2006) and the fact that over 80 percent of the violations found by the USCIS involved Department of Labor regulations outside of USCIS’s mission of adjudicating requests for immigration benefits.

The USCIS report is available at http://www.ieeeusa.org/policy/reports/DHSH1BFraudRpt.pdf.

Back to Top

---

2. U.S. Increases Period of Stay for Trade-NAFTA Professionals From Canada and Mexico

U.S. Citizenship and Immigration Services (USCIS) has increased the maximum period of time a Trade-NAFTA (TN) professional worker from Canada or Mexico may remain in the U.S. before seeking readmission or obtaining an extension of stay. The final rule changes the initial period of admission for TN workers from one to three years, making it equal to the initial period of admission for H-1B professional workers.

Eligible TN nonimmigrants now may receive extensions of stay in increments of up to three years instead of the previous maximum period of stay of one year. Spouses and unmarried minor children of TN nonimmigrants in their corresponding nonimmigrant classifications will also benefit from the new regulation.

The TN nonimmigrant visa classification is available to eligible Mexicans and Canadians with at least a bachelor’s degree or appropriate professional credentials who work in certain qualified fields pursuant to the North American Free Trade Agreement (NAFTA). Qualified professions identified within NAFTA include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers.

The final rule, effective October 16, 2008, is available at http://edocket.access.gpo.gov/2008/pdf/E8-24600.pdf. The announcement, issued on October 14, 2008, is available at http://www.uscis.gov/files/article/tn_nonimmigrant_changes_update.pdf.

Back to Top

---

3. Seven Countries To Be Added to Visa Waiver Program

The Bush administration announced on October 17, 2008, that it plans to add seven countries to the Visa Waiver Program (VWP): the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, and South Korea. President George W. Bush said that eligible citizens of those countries will be able to travel to the U.S. for up to 90 days without a visa “in about a month.” So-called “roadmap” countries, which are on track to qualify for VWP admission, include Bulgaria, Cyprus, Greece, Malta, Poland, and Romania.

The VWP currently allows the citizens of 27 countries to travel to the U.S. for tourism or business without obtaining a visa. Nationals participating in the VWP must travel only for business, pleasure, or transit; stay in the U.S. for 90 days or fewer; and, if arriving by sea or air, hold a valid ticket for return or onward travel and enter the U.S. aboard an air or sea carrier that has been designated as a participant in the VWP.

President Bush’s statement is available at http://www.whitehouse.gov/news/releases/2008/10/20081017-5.html. A fact sheet is available at http://www.whitehouse.gov/news/releases/2008/10/20081017-15.html.

Back to Top

---

4. USCIS Withdraws Lockbox for Naturalization Applications

U.S. Citizenship and Immigration Services (USCIS) has withdrawn its instruction issued on September 12, 2008, that in certain instances the Application for Naturalization (Form N-400) would be filed at a USCIS lockbox facility rather than at the USCIS Service Center. The notice was to take effect on October 14, 2008. USCIS has decided to delay implementation while technical issues are resolved and has withdrawn as of October 10, 2008, the notice published in September. Applicants should continue to file their N-400s according to the instructions on the form.

The new notice is available at http://edocket.access.gpo.gov/2008/pdf/E8-24095.pdf.

Back to Top

---

5. State Dept. Issues Final Rule on Foreign Health Care Worker Certifications

The Department of State (DOS) issued a final rule effective October 20, 2008, that adopts as final without change the Department’s interim rule published at 67 Fed. Reg. 77158 (Dec. 17, 2002). The rule requires certain health care workers seeking admission to the U.S., excluding physicians, to present certificates establishing competency in a specific health care field. This certification is issued by the Commission on Graduates of Foreign Nursing Schools (CGFNS) or other credentialing organizations that have been approved by the Department of Homeland Security (DHS) in consultation with the Department of Health and Human Services. DOS said this rule facilitates greater uniformity between the regulations of DHS and the Department of State.

The final rule is available at http://edocket.access.gpo.gov/2008/pdf/E8-24474.pdf. The interim rule is available at http://edocket.access.gpo.gov/2002/pdf/02-31603.pdf.

Back to Top

---

6. Department of State Requests Proposals for International Visitor Program

The Community Relations Branch of the Department of State’s Office of International Visitors, Bureau of Educational and Cultural Affairs, issued a request for grant proposals (RFP) on October 9, 2008, on the design and implementation of an airport arrival and departure program at New York’s John F. Kennedy (JFK) International Airport and New Jersey’s Newark International Airport.

A cooperative agreement for $195,000 is expected to be awarded in early 2009, pending availability of fiscal year 2009 funds. The 18-month award will begin on or about January 1, 2009, and end on September 30, 2010.

Proposed funding would support the following activities: Meet incoming International Visitor Leadership Program (IVLP) participants at JFK International Airport and assist them to their connecting flights; meet incoming IVLP participants at Newark International Airport and assist them to their connecting flights; provide assistance to outgoing IVLP participants, through U.S. Customs at JFK International Airport and Newark International Airport; and liaise with U.S. Customs and Border Protection, Transportation Security Administration officials, and Port Authority officials at both airports.

The RFP is available at http://edocket.access.gpo.gov/2008/pdf/E8-24020.pdf.

Back to Top

---

7. Department of Homeland Security Streamlines Process for Short-Term Visitors Infected With HIV

The Department of Homeland Security (DHS) issued a final rule effective October 6, 2008, to provide, on a “limited and categorical” basis, a more streamlined process for nonimmigrants infected with human immunodeficiency virus (HIV) who wish to visit the U.S. on a short-term basis. Under the final rule, DHS will allow those who are HIV-positive to enter as visitors (for business or pleasure) for a temporary period not to exceed 30 days, without being required to seek such admission under the more complex (individualized, case-by-case) process provided under current DHS procedures. Additionally, DHS has decided to permit an additional “period or periods of satisfactory departure in exigent circumstances” under a provision modeled after the Visa Waiver Program.

Nonimmigrants who do not meet the specific requirements of the rule or who do not wish to consent to the conditions imposed by the final rule may seek admission under current procedures and obtain a case-by-case determination of their eligibility for a waiver of the nonimmigrant visa requirements concerning inadmissibility for those infected with HIV.

The final rule is available at http://edocket.access.gpo.gov/2008/pdf/E8-23287.pdf.

Back to Top

---

8. State Dept. Eliminates Board of Appellate Review

The Department of State (DOS) issued a final rule effective October 20, 2008, that eliminates the Department’s Board of Appellate Review (L/BAR), which had been authorized to review certain Department determinations, in particular those related to loss of citizenship and passport denials. Because L/BAR’s jurisdiction has been superseded or made obsolete, and in large part replaced by review of loss of citizenship and passport matters by the Bureau of Consular Affairs, this rule eliminates L/BAR and authorizes on a discretionary basis an “alternative, less cumbersome” review of loss of nationality determinations by the Bureau of Consular Affairs.

The rule is available at http://edocket.access.gpo.gov/2008/pdf/E8-24472.pdf.

Back to Top

---

9. DHS Exempts Certain Systems From Privacy Act Requirements, Including Legal Records, SEVIS

The Department of Homeland Security (DHS) has published final rules exempting certain systems from some provisions of the Privacy Act because of “criminal, civil, and administrative enforcement requirements.” The systems include the General Counsel Electronic Management System (GEMS). The DHS noted that Immigration and Customs Enforcement (ICE) attorneys work closely with investigators throughout the process of adjudicating immigration cases. ICE attorneys “must have access to investigative documents and related materials in order to form their decisions about how to handle particular cases.” Additionally, DHS noted, ICE attorneys create attorney work product associated with immigration proceedings. The GEMS system will facilitate the collection and maintenance of materials used by ICE attorneys in immigration adjudications. “It will supplement and ultimately replace the current attorney work product paper files that are primarily stored and managed in the hardcopy alien file commonly known as the ‘A-file,’ ” DHS noted.

DHS also is claiming exemption from certain requirements of the Privacy Act for the Student and Exchange Visitor Information System (SEVIS). DHS noted that because the purpose of the SEVIS system is to collect and maintain pertinent information on nonimmigrant students and exchange visitors, and the schools and exchange visitor program sponsors that host them while in the U.S., “it is possible that the information in the record system may pertain to national security or law enforcement matters.” Disclosure of related information would therefore present a “serious impediment” to law enforcement and national security efforts, DHS said. Disclosure of the information also would permit an individual who is the subject of a record “to impede the investigation and avoid detection or apprehension, which undermines the entire system.” DHS said this exemption is “a standard law enforcement and national security exemption utilized by numerous law enforcement and intelligence agencies.”

DHS said it is establishing a new agency-wide system of records under the Privacy Act for DHS General Legal Records. This will ensure that all components of DHS follow the same privacy rules for collecting and handling general legal records. DHS is proposing to exempt its general legal records from provisions of the Privacy Act.

The GEMS final rule is available at http://edocket.access.gpo.gov/2008/pdf/E8-24996.pdf. The SEVIS final rule is available at http://edocket.access.gpo.gov/2008/pdf/E8-25000.pdf. The General Legal Records proposed rule is available at http://edocket.access.gpo.gov/2008/pdf/E8-24997.pdf.

Back to Top

---

10. Slow Forward Movement Predicted for Employment Categories

The Department of State’s Visa Office reported in the November 2008 Visa Bulletin that the level of demand being received from U.S. Citizenship and Immigration Services (USCIS) offices indicates that USCIS has a significant number of cases with priority dates that are earlier than the established cut-offs. This is likely to result in slow forward movement of the cut-off dates for most employment visa categories during the next few months, the Department said. Sudden changes in the USCIS demand patterns could result in fluctuations in the monthly cut-off dates, and retrogressions cannot be ruled out during fiscal year 2009.
Back to Top

---

11. New Publications and Items of Interest

Customs searches, questioning of travelers. The Asian Law Caucus and the Electronic Frontier Foundation reported that earlier this year, they sued the Department of Homeland Security under the Freedom of Information Act (FOIA) for failing to turn over records on Customs searches and questioning. This summer, they received many of the documents they had sought showing how much Immigration and Customs Enforcement agents’ power to read and copy the personal papers of travelers has increased over the years. The documents also showed that Customs issued a directive (first issued in 2004, revised in 2006) that called for intensive questioning of individuals deemed to be suspected terrorists, which the Asian Law Caucus said may account for the rise in complaints from Muslim Americans and others of invasive searches and interrogations at the U.S. border. The Asian Law Caucus continues to gather reports of invasive searches and questioning to support its advocacy efforts, and has released Tips for Travelers on handling encounters with Customs, including filing complaints and FOIA requests. The tips include travelers returning to the U.S. and immigrants leaving the U.S. See http://www.asianlawcaucus.org/site/alc_dev/section.php?id=99.

USCIS ombudsman issues recommendations on EAD delays. The U.S. Citizenship and Immigration Services ombudsman (ombudsman) reported on October 2, 2008, that it has recently received many complaints from foreign nationals who have lost, or are in danger of losing, their jobs in the U.S. because the agency is not issuing Employment Authorization Documents (EADs) within 90 days of application receipt and is not granting interim EADs, as required by regulation. USCIS has posted processing dates over 90 days for EADs at service centers but, the ombudsman found, “has not provided a sufficient explanation on the delays or consistent information on alternative measures that may assist in addressing EAD delays.” In a preliminary response, USCIS informed the ombudsman that it will immediately (1) audit its caseload to determine which cases have been pending for more than 70 days, (2) process service requests at 75 days rather than 90 days, and (3) adjudicate EADs that are outside normal processing times within four hours for customers who appear at local offices.

To address long-term trends in EAD processing, and to maintain confidence in the work authorization system, the ombudsman recommends that USCIS adhere to regulations; provide information on delays expeditiously; provide consistent guidance to the public; and reconsider the ombudsman’s recommendation to issue multi-year EADs. The ombudsman also suggested additional operational procedures.

The report, “Recommendations on USCIS Processing Delays for Employment Authorization Documents,” is available at http://www.dhs.gov/xlibrary/assets/cisomb_ead_recommendation_35.pdf.

The October 2008 issue of the ABIL Immigration Insider included steps the ombudsman recommends people take if their EADs are delayed by 90 days or more.

Back to Top

---

12. Recent News from ABIL Members

Steve Garfinkel (bio: http://www.abil.com/lawyers/lawyers-garfinkel.cfm) spoke to the North Carolina College and University Professional Association for Human Resources (NCCUPA-HR) on October 23, 2008, in Concord, North Carolina. Mr. Garfinkel presented an in-depth discussion of the H-1B visa as it relates to colleges and universities, and addressed other nonimmigrant and immigrant visa issues.

Angelo A. Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm) has co-authored a new article, “Radioactive Immigration Risks: Real Threats to the New Government,” which was published in the New York Law Journal. The text of the article is available at http://www.nationofimmigrators.com/wp-content/uploads/2008/10/NYLJ%20article%20on%20benefit%20fraud%20-%20FINAL%20-%20long%20form.doc.

Mr. Paparelli was quoted in the October 17, 2008, issue of the E-Commerce Times regarding the low H-1B cap: “I think that the reality over the last few years has been that when a nation has a visa quota that runs out within the first day or two of being opened, and then all economic growth that should be derived is put in suspended animation for another year — it suggests that something is wrong.” For the full text of the story, see http://www.ecommercetimes.com/story/64850.html.

At a conference at the Practising Law Institute (PLI) on October 14, 2008, speakers noted that the inconsistency of laws and practices among states regarding the use of the E-Verify employment authorization verification program has created compliance issues for companies operating in more than one state. Charles Kuck (bio: http://www.abil.com/lawyers/lawyers-kuck.cfm) noted that the Department of Homeland Security encourages the passage of state laws requiring the use of E-Verify. “I don’t think it will matter who our next president is; there will still be movement toward making E-Verify mandatory,” Mr. Kuck said.

Bernard Wolfsdorf (bio: http://www.abil.com/lawyers/lawyers-wolfsdorf.cfm) also spoke on consular and border processing at the PLI conference. Sharon Mehlman (bio: http://www.abil.com/lawyers/lawyers-mehlman.cfm) spoke about USCIS issues.

Mr. Paparelli spoke at the PLI conference of concerns about an increase in L-1B visa denials. He noted that USCIS has issued key policy memos over the years that conflict with a nonbinding decision from the agency’s Administrative Appeals Office. Some USCIS officers are using that decision as a basis for L-1B denials, Mr. Paparelli said. He noted that it helps to build an L-1B case to include evidence of “substantial economic inconvenience” to the company if the visa is denied. A USCIS spokesperson said the agency intends to issue guidance on the issue of specialized knowledge in a few months.

H. Ronald Klasko (bio: http://www.abil.com/lawyers/lawyers-klasko.cfm) recently addressed immigration lawyers in Florida on options for wealthy investors and retirees to obtain permanent resident status in the U.S. His presentation was made at the 22^nd Annual American Immigration Lawyers Association (AILA) Central Florida Chapter Immigration Law Seminar. Mr. Klasko addressed the advantages and disadvantages of choosing between E-2 and L-1 visas and individual and regional EB-5 centers.

Mr. Klasko’s firm, Klasko, Rulon, Stock & Seltzer, announced four new associates: Neelam Ihsanullah, Alan Seagrave, Jonathan Willmoth, and Kate Kalmykov. The firm has offices in Philadelphia and New York.

Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) also spoke at the same Florida seminar on EB-5 immigrant investor issues. On October 24, Mr. Yale-Loehr addressed another seminar in Orlando, Florida, on EB-5 issues.

Steve Clark (bio: http://www.abil.com/lawyers/lawyers-clark.cfm) participated in a panel at the Boston Bar Association Solo and Small Firm Section last month on Immigration Practice Tips for Non-Immigration Experienced Lawyers.

Several ABIL members have blogs, including ABIL President Angelo Paparelli (http://www.nationofimmigrators.com/) and Charles Kuck (http://www.immigration-blog.net/blog1/). Mr. Paparelli commented on the recent H-1B report on both of his blogs, including the one noted above and on Immigration Lawyers on the Web, http://blogs.ilw.com/angelopaparelli/.

Back to Top

---

13. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/jsps/ptimes.jsp

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

Back to Top

 

Headlines:

1. New Passport Card Is Acceptable For Employment Eligibility Verification – The passport card is considered a “List A” document that may be presented by newly hired employees during the employment eligibility verification process.

2. USCIS Issues Work Authorization Application Version Reminder – USCIS issued a reminder to use the correct version of the I-765 dated May 27, 2008.

3. E-Verify Provokes Controversy – The Department of Homeland Security’s plan to expand the E-Verify online work authorization verification program to all federal contractors has led to controversy.

4. Fragomen Files Lawsuit Against DOL Over Special Audit; DOL Releases Guidance – The firm has moved for a preliminary injunction that would prevent the DOL from enforcing its new interpretation of the law.

5. Electronic VWP Application System Now Available – Effective January 12, 2009, all VWP travelers will be required to obtain an electronic travel authorization before boarding a carrier to travel by air or sea to the U.S. under the VWP.

6. Global Entry Program Expands – The U.S. Department of Homeland Security recently announced the expansion of the “Global Entry” pilot program to four additional airports.

7. USCIS Extends TPS to Sudan – The extension will last 18 months, through May 2, 2010; eligible Sudanese must apply by October 14.

8. USCIS Proposes Changes to H-2B Temporary Nonagricultural Worker Program, Withdraws Earlier Proposed Rule – The changes, if implemented, would make the H-2B visa a viable option for many more jobs with U.S. employers, including professional occupations with project-based timelines.

9. Mississippi Raid Largest in U.S. History; ICE Arrests Hundreds in Other Raids – U.S. Immigration and Customs Enforcement (ICE) agents took nearly 600 plant workers into custody.

10. New Naturalization Test Implemented; USCIS Updates Processing Times – USCIS will begin administering the redesigned naturalization test on October 1, 2008.

11. Third Preference Category Unavailable for September – Many other employment-based dates are current for September 2008 but the third preference and “other workers” categories are unavailable.

12. Canada Introduces Fast Track to Permanent Residence – The Canadian Experience Class, a new proposed avenue for immigration for certain temporary foreign workers and foreign student graduates with Canadian work experience, would allow an applicant’s Canadian experience to be considered a key factor when immigrating to Canada.

13. ABIL Immigration Compliance & Strategies Conference – ABIL Immigration Compliance & Strategies Conference

14. Recent News from ABIL Members – Recent News from ABIL Members

---

Details:

1. New Passport Card Is Acceptable For Employment Eligibility Verification

U.S. Citizenship and Immigration Services (USCIS) announced that the new U.S. passport card may be used in the employment eligibility verification (Form I-9) process.

Last month, the Departments of State and Homeland Security announced that the new passport card was in full production. The new card “provides a less expensive and more portable alternative to the traditional passport book, and will expedite document processing at United States land and sea ports-of-entry for U.S. citizens traveling to Canada, Mexico, the Caribbean, and Bermuda,” the agencies said.

The new passport card is limited in its uses for international travel (e.g., it may not be used for international air travel), but it is a valid passport that attests to the U.S. citizenship and identity of the bearer. Accordingly, USCIS said, the card may be used for the I-9 process and can also be accepted by employers participating in the E-Verify program.

The passport card is considered a “List A” document that may be presented by newly hired employees during the employment eligibility verification process to show work authorized status. “List A” documents are those used by employees to prove both identity and work authorization when completing the I-9.

The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=8daff5a7ebd9b110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

Back to Top

---

2. USCIS Issues Work Authorization Application Version Reminder

U.S. Citizenship and Immigration Services (USCIS) issued a reminder to use the correct version of the Application for Employment Authorization (Form I-765) dated 05/27/08. The edition date appears in the lower right hand corner of the form as “Form I-765 (Rev. 05/27/08) N.”

Submission of an earlier version of the I-765 may result in rejection of the application, USCIS said.

The I-765 instructions and application are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=73ddd59cb7a5d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD. The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e8de36ad2e9cb110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

Back to Top

---

3. E-Verify Provokes Controversy

The Department of Homeland Security’s plan to expand the E-Verify online work authorization verification program to all federal contractors has led to controversy.

Randy Johnson, the U.S. Chamber of Commerce’s Vice President for Labor, Immigration, and Employee Benefits, told Federal News Radio that “[i]f they go forward with the final rule and don’t respond to our concerns, I think very well we’ll go into court. I think there’s a good chance we’ll go into court anyway[ ] because…the Congressional statute actually says that the program is voluntary and, in our view, making it a condition of a federal contract, in fact, renders it mandatory in violation of the underlying Congressional statute.” He said the expansion was “too quick” and untested, noting that “frankly, there’s some legal problems with regard to whether or not the agencies even have the legal authority to do it.”

Mr. Johnson said the Government Accountability Office needs to study E-Verify further. He noted that some companies “are concerned about this regulation because of immigration concerns, but then there’s another raft of companies, such as major contractors who are household names, that are concerned about it because it’s just going to slow down the procurement process and already make it more complicated.” He noted that colleges and universities that have federal contracts also have raised concerns.

Jennifer Kerber, Senior Director of ITAA’s Federal and Homeland Security Programs, told Federal News Radio that ITAA would welcome E-Verify but is concerned about “the scalability of the system, the accuracy of the underlying data and the increased burden on federal contractors and government agencies.” She noted that “today, according to the E-Verify system officials, there’s an eight percent no-match rate. So, you take eight percent for 61,000 people using it [now], and you put eight percent on 7.4 million people using it [if it becomes mandatory] — what kind of increased delays in government contract performance are we going to have?”

The Department of Homeland Security plans to offer a half-day information session on the E-Verify program. The session will include a live demonstration of the E-Verify system followed by a question-and-answer session. Dates and times have not yet been announced. For more information on the seminar, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=539248ea3a72b110VgnVCM1000004718190aRCRD&vgnextchannel=a16988e60a405110VgnVCM1000004718190aRCRD. General information about E-Verify is available at http://www.uscis.gov/e-verify.

Back to Top

---

4. Fragomen Files Lawsuit Against DOL Over Special Audit; DOL Releases Guidance

On August 8, 2008, Fragomen, Del Rey, Bernsen & Loewy, LLP (Fragomen) filed a lawsuit in federal district court in Washington, D.C., seeking an injunction against the U.S. Department of Labor’s (DOL’s) special audit of labor certification applications filed by the firm.

Fragomen said it believes that “it was necessary to file a lawsuit because DOL’s actions have been unlawful and unconstitutional. The Department has sought to deny our clients’ right to counsel under the Constitution, and is retroactively applying a new interpretation of its own regulations.”

The firm has moved for a preliminary injunction that would prevent the DOL from enforcing its new interpretation of the law and has asked the court to order the agency to abide by its own regulations and the Constitution. The relief requested includes an order cancelling the special audit component of pending PERM cases so that those cases could return to the regular review queue.

The Department of Labor posted on its Web site related guidance released in June regarding labor certifications. A new “restatement” issued on August 29, 2008, supersedes the earlier guidance in response to the agency’s receipt of “considerable feedback” from employers. The earlier guidance noted, among other things, that:

Where the Department finds evidence of potentially improper attorney, agent, or foreign worker involvement in considering U.S. worker applicants, the Department may audit applications to determine whether the employer’ recruitment and hiring processes were conducted in good faith and to ensure adherence to all statutory and regulatory requirements.

The earlier guidance outlined the following prohibitions:

• Attorneys and agents may receive resumes and applications from U.S. workers who respond to the employer’s recruitment efforts. They may not conduct any preliminary screening of applications before the employer does so, however, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. The attorney or agent may not withhold from the employer any resumes or applications that it receives from U.S. workers.
• Attorneys and agents may not participate in the interviewing of U.S. worker applicants, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. Such involvement, because of its uniqueness, has resulted in an impermissible “chilling effect” on the interests of U.S. worker-applicants in the position.
• After the evaluation of applications by the employer has been completed, the employer may consult with its attorney or agent about the implications of its qualification determinations on the labor certification application. Those consultations can encompass the question of whether applicants who were found by the employer to be unqualified were rejected for lawful, job-related reasons. Under no circumstances, however, should an attorney or agent seek to dissuade an employer from its initial determination that a particular applicant is minimally qualified, able, willing and available for the position in question.

The August 29 restatement notes that:

• [G]iven that the permanent labor certification program imposes recruitment standards on the employer that may deviate from the employer’s normal standards of evaluation, the Department understands and appreciates the legitimate role attorneys and agents play in the permanent labor certification process. Additionally, the Department respects the right of employers to consult with their attorney(s) or agent(s) during that process to ensure that they are complying with all applicable legal requirements.
• By prohibiting attorneys, agents, and foreign workers from interviewing and considering U.S. workers during the permanent labor certification process,…the Department does not thereby prohibit attorneys and agents from performing the analyses necessary to counsel their clients on legal questions that may arise with respect to this process. The employer, and not the attorney or agent, must be the first to review an application for employment, and must determine whether a U.S. applicant’s qualifications meet the minimum requirements for the position, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. By requiring that initial reviews of and final determinations on all applications are made by the employer, the Department seeks to ensure that the consideration process is as close to the employer’s non-immigration-related hiring process as possible and that U.S. workers receive full and fair consideration by the employer for the job. Attorneys (and, to the extent it is consistent with state rules governing the practice of law, agents) may, however, provide advice throughout the consideration process on any and all legal questions concerning compliance with governing statutes, regulations, and policies.

The August 29 restatement notes that where the Department finds evidence of “potentially improper” attorney, agent, or foreign worker involvement in considering U.S. worker applicants, the Department will audit those applications and subsequently may require supervised recruitment.

The DOL’s August 29 restatement is available at http://www.foreignlaborcert.doleta.gov/pdf/PERM_Guidance_Final_082908.pdf. The agency’s earlier guidance is available at http://www.foreignlaborcert.doleta.gov/pdf/PERMRule20CFR65610b2.pdf. Fragomen’s announcement is available at http://pubweb.fdbl.com/news1.nsf/9abe5d703b986cff86256e310080943a/f08d74778d94da65852574a200680691?OpenDocument.

Back to Top

---

5. Electronic VWP Application System Now Available

The Electronic System for Travel Authorization (ESTA) is now accessible online for citizens and eligible nationals of Visa Waiver Program (VWP) countries to apply for advance authorization to travel to the United States under the VWP. Effective January 12, 2009, all VWP travelers will be required to obtain an electronic travel authorization before boarding a carrier to travel by air or sea to the U.S. under the VWP.

To use the system, log onto the ESTA Web site at https://esta.cbp.dhs.gov and complete an online application in English. Travelers are encouraged to apply early. The Web-based system will prompt you to answer basic biographical and eligibility questions typically requested on a paper I-94W form. Basic information on ESTA is available in Dutch, English, French, German, Italian, Japanese, Portuguese, Spanish, and Swedish.

Applications may be submitted at any time before traveling. The Department of Homeland Security recommends, however, that applications be submitted at least 72 hours before traveling. In most cases, the DHS promises, you will receive one of the following responses “within seconds”:

1. Authorization Approved: Travel is authorized.
2. Travel Not Authorized: The traveler must obtain a nonimmigrant visa at a U.S. Embassy or Consulate before traveling to the U.S.
3. Authorization Pending: The traveler will need to check the ESTA Web site for updates within 72 hours to receive a final response.

An approved travel authorization via ESTA is:

• Required for all VWP travelers before boarding a carrier to travel by air or sea to the U.S. under the VWP beginning January 12, 2009;
• Valid, unless revoked, for up to two years or until the traveler’s passport expires, whichever comes first;
• Valid for multiple entries into the U.S. As future trips are planned, or if an applicant’s destination addresses or itineraries change after authorization has been obtained, the applicant may update that information through the ESTA Web site; and
• Not a guarantee of admissibility to the U.S. at a port of entry. ESTA approval only authorizes a traveler to board a carrier for travel to the U.S. under the VWP. Additional information is available in “For International Visitors” at http://www.CBP.gov/travel. The ESTA Web site is at http://www.cbp.gov/xp/cgov/travel/id_visa/esta/esta_intro/.

Additional information is available in “For International Visitors” at http://www.CBP.gov/travel. The ESTA Web site is at http://www.cbp.gov/xp/cgov/travel/id_visa/esta/esta_intro/.

 

Back to Top

---

6. Global Entry Program Expands

The U.S. Department of Homeland Security recently announced the expansion of the “Global Entry” pilot program to four additional airports: Los Angeles International, Hartsfield-Jackson Atlanta International, Chicago O’Hare International, and Miami International.

Upon arrival at the airport, Global Entry-approved participants bypass the regular passport control line and proceed directly to the Global Entry kiosk. At the kiosk, Global Entry travelers activate the system by inserting their passports or U.S. permanent resident cards into a document reader. The kiosk directs travelers to provide digital fingerprints and compares them with the fingerprints on file.

The new Global Entry sites are expected to be operational in the fall of 2008, and will be equipped with kiosks for expedited processing. As part of the program’s expansion, U.S. Customs and Border Protection (CBP) will install Global Entry kiosks at additional international terminals at John F. Kennedy International Airport (JFK). The Global Entry pilot program began June 10 at JFK, George Bush Intercontinental Airport, and Washington Dulles International Airport. Approximately 1,100 members have already enrolled and about 370 Global Entry members have used kiosks at the existing pilot locations.

Global Entry travelers are photographed and prompted to answer declaration questions on the kiosk’s touch-screen. A transaction receipt is issued upon completion, which must be presented to CBP officers before leaving the inspection area.

The dates of the expansion of the Global Entry pilot program to the individual airports will be announced at http://www.cbp.gov. For more information on the program, see http://www.cbp.gov/xp/cgov/travel/trusted_traveler/global_entry/. The expansion was announced in a Federal Register notice available at http://edocket.access.gpo.gov/2008/pdf/E8-18724.pdf.

Back to Top

---

7. USCIS Extends TPS to Sudan

U.S. Citizenship and Immigration Services (USCIS) announced that it is extending temporary protected status (TPS) to nationals of Sudan or people having no nationality who last habitually resided in Sudan. The extension covers an estimated 500 Sudanese who have already applied for and received benefits under TPS since the October 7, 2004, re-designation. The extension will last 18 months, through May 2, 2010. Applicants must file during the 60-day re-registration period (August 14, 2008, through October 14, 2008).

Sudanese currently registered under TPS who desire an extension must re-register by filing both an Application for Temporary Protected Status (Form I-821) and an Application for Employment Authorization (Form I-765), with the appropriate fees or fee waiver requests. The I-821 has been revised and applicants must use the version dated 10/17/2007 or later. The I-765 also has been revised and applicants must use the version dated 5/27/2008 or later. Failure to use these versions of the forms may result in rejection of the application. Certain nationals of Sudan who have not previously applied for TPS may be able to apply under the late initial registration process.

A notice announcing the TPS extension is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=c024c623f8dbb110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A fact sheet is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5f27c623f8dbb110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

Back to Top

---

8. USCIS Proposes Changes to H-2B Temporary Nonagricultural Worker Program, Withdraws Earlier Proposed Rule

U.S. Citizenship and Immigration Services (USCIS) published a proposed rule on August 20, 2008, that would streamline procedures for hiring workers under the H-2B program, supplementing the changes the agency proposed last spring. The H-2B nonimmigrant temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs for which U.S. workers are not available.

The most important changes include:

• The employer’s “temporary need” for a worker could be as long as three years. Until now, it has been believed widely that the need could not exceed nine months per stay, followed by a hiatus of at least three months. This has limited the number of assignments for which the H-2B is attractive, but many employers have projects that could end within three years, followed by a three-month absence from the US. Specifically, USCIS proposes changing the definition of “temporary employment” to include jobs for which the work will end in the near, definable future and to eliminate the requirement that employers show “extraordinary circumstances” to be eligible to hire H-2B workers for up to three years.
• The wait outside the U.S. for those who want to switch from H-2B to H-1B or L-1 visas would be reduced to three months (instead of the current six months).

These two changes, if implemented, would make the H-2B visa a viable option for many more jobs with U.S. employers, including professional occupations with project-based timelines. Several other provisions are proposed for purposes of fraud prevention in the H-2B program.

The agency also withdrew an earlier proposed regulation published in 2005 that would have established a one-step petition process for U.S. employers seeking H–2B temporary workers, eliminating the need for employers to apply for a labor certification; required electronic filing of the Petition for a Nonimmigrant Worker, Form I–129, within 60 days in advance of the requested employment start date; eliminated the use of agents as H–2B petitioners; and established new management mechanisms. In light of the public’s comments, USCIS said it is no longer moving forward with the proposed rule as designed and will publish a new proposed rule for public comment.http://edocket.access.gpo.gov/2008/pdf/E8-19322.pdf.

USCIS will accept public comments until September 19, 2008, on the new proposed rule, which is published at http://edocket.access.gpo.gov/2008/pdf/E8-19306.pdf. The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5d07a176642cb110VgnVCM1000004718190aRCRD&vgnextchannel=3381c0ed71f85110VgnVCM1000004718190aRCRD. A fact sheet is available at http://www.uscis.gov/files/pressrelease/h-2-faq-15Aug08.pdf.

Back to Top

---

9. Mississippi Raid Largest in U.S. History; ICE Arrests Hundreds in Other Raids

U.S. Immigration and Customs Enforcement (ICE) agents took nearly 600 plant workers into custody on August 25, 2008, in what is reportedly the largest immigration raid in U.S. history. The raid at the Howard Industries transformer plant was the result of an investigation prompted by a tip from a union member. The workers were from Brazil, El Salvador, Germany, Guatemala, Honduras, Mexico, Panama, and Peru, ICE said. The agency also arrested 400 workers on May 12 at the Agriprocessors meatpacking plant in Iowa, and seized a number of fraudulent green cards from the company’s human resources department.

Meanwhile, ICE arrested 42 undocumented men at Washington Dulles International Airport as part of a critical infrastructure protection (CIP) operation. ICE agents, with support of airport security agencies, arrested the men just inside the airport grounds at a checkpoint established to verify the identity and immigration status of workers entering a service gate.

ICE agents interviewed more than 200 individuals to verify their identities, immigration status, and eligibility for lawful employment in the U.S. Among those arrested were nationals of Argentina, Bolivia, El Salvador, Guatemala, Mexico, and Peru. Most of the individuals encountered worked on construction projects at the airport. Those detained are being interviewed, fingerprinted, photographed, and entered into Department of Homeland Security databases at a local ICE office.

In another action, 57 undocumented workers at Mills Manufacturing Corporation (MMC) in Asheville, North Carolina, were arrested by ICE special agents. MMC is a Department of Defense contractor responsible for the manufacturing of parachutes for the U.S. military. Among those arrested were nationals of Mexico, Guatemala, Ecuador, and Honduras.

The arrests were based on an ICE investigation that revealed, ICE said, that the workers had used fraudulent social security numbers to obtain employment. The agency said the company has been fully cooperative and is not a target of the ICE investigation.

All of those arrested were transferred to the Henderson County Sheriff’s Office for immigration processing, and all were placed into removal proceedings for being in violation of U.S. immigration law. Those arrested were interviewed by ICE agents to determine if they had medical, caregiver, or other humanitarian issues. ICE identified approximately 29 individuals who qualified for humanitarian release and will be required to appear before a federal immigration judge.

In fiscal year 2008, ICE agents have made more than 700 administrative arrests and 100 criminal arrests at critical infrastructure facilities. As of July 2008, ICE has made more than 3,800 administrative arrests overall for immigration violations during worksite enforcement operations.

The Mississippi announcement is available at http://www.ice.gov/pi/nr/0808/080826laurel.htm. The Dulles announcement is available at http://www.ice.gov/pi/nr/0808/080813washington.htm. The MMC announcement is available at http://www.ice.gov/pi/nr/0808/080812asheville.htm.

Back to Top

---

10. New Naturalization Test Implemented; USCIS Updates Processing Times

U.S. Citizenship and Immigration Services (USCIS) will begin administering the redesigned (new) naturalization test on October 1, 2008. The revised test emphasizes the fundamental concepts of American democracy and the rights and responsibilities of citizenship.

USCIS has released a chart showing who may take the current or the new test. For the chart and additional details, including links to the test and the naturalization application, see http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=ebf1bece24e7b110VgnVCM1000004718190aRCRD&vgnextchannel=ebf1bece24e7b110VgnVCM1000004718190aRCRD.

USCIS also announced that it anticipates naturalization application processing will average 10-12 months nationally by the end of September 2008. Last year, its estimated average processing time was 16-18 months.

Estimated naturalization times as of September 2008, broken down by field office, are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=72fd5d63502bb110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

Back to Top

---

11. Third Preference Category Unavailable for September

Many other employment-based dates are current for September 2008 but the third preference and “other workers” categories are unavailable. The cut-off date for both the China-mainland born and India second preference categories is August 1, 2006.

The Mexico employment third preference category is unavailable for September, the State Department’s Visa Office said, because the fiscal year 2008 annual limit has been reached. The Visa Office initially anticipated that this would be temporary until the start of the new fiscal year in October. Continued heavy demand may require the establishment of a cut-off date earlier than anticipated, the Visa Office noted. The October cut-off dates have not yet been announced.

The September 2008 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4328.html.

Back to Top

---

12. Canada Introduces Fast Track to Permanent Residence

The Canadian Experience Class, a new proposed avenue for immigration for certain temporary foreign workers and foreign student graduates with Canadian work experience, would allow an applicant’s Canadian experience to be considered a key selection factor when immigrating to Canada, according to Citizenship and Immigration Canada.

The Canadian Experience Class would allow certain temporary foreign workers and certain foreign student graduates with managerial, professional, or technical or trade work experience to apply to become permanent residents, and eventually Canadian citizens. All applicants, depending on their occupational skill level, would be required to demonstrate either basic or moderate language skills.

“The Canadian Experience Class is one more measure this government is proposing to make our immigration system more attractive and accessible to individuals with diverse skills from around the world, and more responsive to Canada’s labour market needs,” said Minister of Citizenship and Immigration Diane Finley. “This new proposed avenue for immigration would also go further to spread the benefits of immigration into smaller centres across Canada.” Temporary foreign workers and foreign students are generally spread out across Canada and contribute to the growth of smaller communities as well as metropolitan areas. Individuals applying for permanent residence through this new avenue could apply from within Canada while continuing to work and to contribute to their local communities.

The Canadian Experience Class comes after a number of recent initiatives the Canadian government has undertaken to help newcomers succeed and to help make Canada a more attractive destination for skilled individuals from around the world, the agency said. These initiatives include changes to the Post-Graduation Work Permit Program; the establishment of the Foreign Credentials Referral Office; increased investments in language training and other programs and services aimed at helping newcomers settle and integrate into their new communities successfully; and, most recently, changes to the immigration system that would allow for priority processing of certain skilled applicants and reduced wait times for those wanting to immigrate to Canada.

“Choosing newcomers based on knowledge of our labour market and experience within Canadian society would make Canada a more attractive destination for skilled individuals from around the world,” noted Minister Finley. “International students and skilled workers would be more likely to choose Canada if they knew their time in Canada and contribution to Canadian society would assist in their eligibility to apply to stay permanently.”

The announcement is available at http://www.cic.gc.ca/english/department/media/releases/2008/2008-08-12.asp.

Back to Top

---

13. ABIL Immigration Compliance & Strategies Conference

The Alliance of Business Immigration Lawyers (ABIL) will present a high-level half-day seminar for corporate human resources and in-house legal professionals, including immigration specialists, HR managers, and general counsel and paralegal staff with a wide range of experience in immigration compliance, in Washington, D.C., on Thursday, October 30, 2008. Topics include immigration compliance, I-9s, E-Verify, H-1Bs, LCAs and PERM, and strategies and solutions for moving employees from F-1 to H-1B visa status and to permanent resident status. For more information, e-mail ABIL Administrator Lauren Anderson at lauren@abil.com. Registration will close on October 2, 2008.
Back to Top

---

14. Recent News from ABIL Members

The Alliance of Business Immigration Lawyers (ABIL) filed an amicus brief in Brazil Quality Stones Inc. v. Chertoff, 531 F.3d 1063 (9^th Cir. 2008), in which the court concluded that U.S. Citizenship and Immigration Services did not abuse its discretion in denying a small corporation’s petition to extend the visa of its Brazilian president and chief executive officer. The opinion is available at http://www.ca9.uscourts.gov/coa/newopinions.nsf/3526B4ED6EBB65A288257481007E9F9D/$file/0655879.pdf?openelement.

Several ABIL Global Members have published articles recently in Who’s Who Legal Briefing:

• “A Three-Point Immigration Manifesto for Chief Legal Officers and Outside Counsel,” by Angelo A. Paparelli, President of ABIL (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm), available at http://www.whoswholegal.com/news/article/1190/newsletter
• “Good Migrations,” by Laura Devine (bio: http://www.abil.com/lawyers/lawyers-devine.cfm), available at http://www.whoswholegal.com/news/article/1192/newsletter
• “Going Green – U.S. Consular Processing Enters the Electronic Paperless Era in 2008,” co-authored by Bernard Wolfsdorf (bio: http://www.abil.com/lawyers/lawyers-wolfsdorf.cfm), available at http://www.whoswholegal.com/news/article/1194/newsletter

ABIL Global Members ranked highly in The International Who’s Who of Corporate Immigration Lawyers 2008; see http://www.whoswholegal.com/news/article/1198/newsletter/ for the rankings.

Mr. Paparelli (bio link above) recently blogged on the Department of Labor’s announcement of the audit of all labor certification clients of Fragomen, Del Rey & Bernsen, and the agency’s subsequent backtracking and August 29, 2008, “restatement.” See http://blogs.ilw.com/angelopaparelli/.

Steve Garfinkel (bio: http://www.abil.com/lawyers/lawyers-garfinkel.cfm) will be speaking at the North Carolina SHRM State Conference on September 11 in Concord, North Carolina. Mr. Garfinkel will serve on a panel, “The Face of Immigration in America,” and will discuss employment-based immigration law challenges. He also has been invited to speak at Florida State University’s Center for Human Resource Management in Ft. Lauderdale on October 3, 2008, on employment-based immigration law issues.

H. Ronald Klasko (bio: http://www.abil.com/lawyers/lawyers-klasko.cfm), the founding partner of the immigration law firm Klasko, Rulon, Stock & Seltzer LLP, has been named Corporate Immigration Lawyer of the Year by Who’s Who Legal 2008: The International Who’s Who of Business Lawyers for the second consecutive year. Nominations for this award were made by clients and fellow professionals. According to the publication, Mr. Klasko “was the most highly nominated individual overall.”

Mr. Klasko also recently addressed immigration lawyers nationwide on the advantages of using the EB-5 Regional Center Investment Program to assist their foreign clients wishing to invest in the United States and get a green card. His speech was part of a national teleconference held on September 4, 2008, and organized by the Alliance of Business Immigration Lawyers.

Laura J. Danielson (bio: http://www.abil.com/lawyers/lawyers-danielson.cfm) and Cyrus D. Mehta (bio: http://www.abil.com/lawyers/lawyers-mehta.cfm) spoke during an American Immigration Lawyers Association Audio Seminar on August 19, 2008. The topic was green card (permanent residence) self-sponsorship, including what self-sponsorship means; whether creating a separate business entity helps; and self-sponsorship in the immigrant visa context (labor certification; EB-1 extraordinary ability; outstanding researchers and multinational managers; EB-2 national interest waivers; and EB-5 investors.

Steve Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) will speak on immigration law issues at a conference sponsored by the Migration Policy Institute in Washington, D.C., on September 24, 2008. Mr. Yale-Loehr also will speak on EB-5 immigrant investor issues at the 22^nd annual AILA Central Florida Chapter immigration law seminar in Clearwater, Florida, on October 3, 2008.

Upon Juan P. Osuna’s being named the first Latino chairman of the Board of Immigration Appeals, Mr. Yale-Loehr (bio link above) said, “Juan is very well-qualified to be the head of the BIA. He has the institutional memory and knows what is important for the BIA to function well and fulfill its purpose.” Mr. Paparelli (bio link above) said he thinks Mr. Osuna’s appointment “is confirmation of a job well done as the acting chairman. The system is in quite a state of structural chaos.” He noted that “[i]t’s a very positive change because Juan’s a judge committed to justice, rather than committed to politics.”

Back to Top

Headlines:

1. Federal Contractors Must Use E-Verify, White House Orders – Under a new executive order, federal contractors must check the immigration status of their current and future employees through the E-Verify online employment authorization verification system.

2. CBP Issues Tips for U.S.-Canadian Border Travelers – With the onset of summer travel, U.S. Customs and Border Protection recently released tips for cross-border travelers between the U.S. and Canada.

3. USCIS To Issue Two-Year EADs for Certain LPR Applicants – The two-year EAD is available to certain pending adjustment applicants who are currently unable to adjust status because an immigrant visa number is not available.

4. USCIS Issues Supplemental Guidance on Processing Petitions Affected by AC21 and ACWIA – USCIS plans to incorporate all previous still-applicable guidance into forthcoming rulemaking relating to various AC21 and ACWIA statutory provisions.

5. USCIS Offers Premium Processing Service for Certain Immigrant Worker Petitions – USCIS will make available Premium Processing Service for designated I-140 petitions filed for H-1B nonimmigrant workers who are reaching the end of their sixth year in H-1B nonimmigrant status.

6. U.S., U.K. Border Agencies Agree to Expedite Travel Between Nations – The International Expedited Traveler Initiative will integrate CBP’s Global Entry program with the British registered traveler program.

7. Homeland Security Tech Undersecretary, Others Warn of Skills Crisis – The U.S. workforce is “in crisis” because of insufficient numbers of students going into math and science fields.

8. DOL Audits Labor Cert Applications Filed By Fragomen – The Department of Labor has decided to conduct an audit of all permanent labor certification applications filed by Fragomen, Del Rey, Bernsen & Loewy, LLP.

9. Court Rules Del Monte Cannot Avoid Liability for Wage Violations of Contractor – A federal court ruled that Fresh Del Monte Produce Southeast, Inc., is liable for worker wage violations by a labor contractor.

10. State Dep’t Issues Final Rule To Offer Electronic Nonimmigrant Visa Applications – The Department has developed and introduced an electronic application process for nonimmigrant visas to eventually replace the current application process.

11. USCIS Closing Tijuana, Hong Kong Field Offices – USCIS released details on where applications will be forwarded and processed.

12. Federal Court Enjoins Oklahoma From Enforcing State Immigration Law – The judge found that it was “substantially likely” that Oklahoma’s law is preempted by federal immigration law.

13. State Dept. Releases Information on Employment Second and Third Preference Availability for July – The employment third preference will become unavailable in July.

14. Diversity Visa Lottery Results Announced – Those selected will need to act on their immigrant visa applications quickly.

15. New Publications and Items of Interest – New Publications and Items of Interest.

16. Recent News from ABIL Members – Recent News from ABIL Members.

Details:

1. Federal Contractors Must Use E-Verify, White House Orders

President Bush issued an executive order on June 9, 2008, requiring that Federal contractors check the immigration status of their current and future employees through the E-Verify online employment authorization verification system.

The order states that “adherence to the general policy of contracting only with providers that do not knowingly employ unauthorized alien workers and that have agreed to utilize an electronic employment verification system designated by the Secretary of Homeland Security to confirm the employment eligibility of their workforce will promote economy and efficiency in Federal procurement.”

The text of the executive order is available at http://www.whitehouse.gov/news/releases/2008/06/print/20080609-2.html.

Back to Top

2. CBP Issues Tips for U.S.-Canadian Border Travelers

With the onset of summer travel, U.S. Customs and Border Protection (CBP) recently released tips for cross-border travelers between the U.S. and Canada.

U.S. and Canadian citizens are now required to present proof of citizenship and identity to enter the U.S. at land and sea ports of entry. This may include a passport, trusted traveler program card (NEXUS), or birth certificate with a driver’s license. Travelers 18 and under may present just a birth certificate. A passport has been required for all travelers entering and departing the United States by air since January 2007.

CBP also reminded U.S. lawful permanent residents that the I-551 form (green card) is acceptable for land and sea travel into the U.S.

CBP’s tips include:

• Tip #1 – Travelers should familiarize themselves with the “Know Before You Go” section of the CBP Web site to avoid fines and penalties associated with the importation of prohibited items. “Know Before You Go” brochures are also available at border ports of entry.
• Tip #2 – Travelers should prepare for the inspection process before arriving at the inspection booth. Individuals should have their crossing documents available for the inspection and they should be prepared to declare all items acquired abroad. In addition, individuals should end cellular phone conversations before arriving at the inspection booth.
• Tip #3 – Members of the traveling public should consult the CBP Web site to monitor border wait times for various ports of entry, including Blaine and Sumas, Washington; Sweetgrass, Montana; and Pembina, North Dakota. Information is updated hourly and is useful in planning trips and identifying periods of light use and short waits.
• Tip #4 – During periods of heavy travel, border crossers may wish to consider alternative, less heavily traveled entry routes.
• Tip #5 – Travelers should plan to build extra time into their trips in the event they cross during periods of exceptionally heavy traffic (e.g., Canada Day and the Fourth of July holidays and adjacent weekends).
• Tip #6 – Know the difference between goods for personal use and goods for commercial use.
• Tip #7 – Do not attempt to bring fruits, meats, dairy, poultry products, or firewood into the U.S. from Canada without first checking whether they are permitted.
• Tip #8 – CBP officers have the authority to conduct enforcement examinations without a warrant, ranging from a simple luggage examination up to and possibly including a personal search. Even during the summer vacation season, international border crossers should continue to expect a thorough inspection process when they enter the U.S. from Canada.

CBP said its officials continually monitor traffic and border crossing times at area ports of entry. CBP plans to fully staff all inspection lanes during peak periods and to implement various traffic management operations to maintain the flow of traffic during periods of exceptionally heavy usage.

The tips are available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/06272008.xml.

Back to Top

3. USCIS To Issue Two-Year EADs for Certain LPR Applicants

U.S. Citizenship and Immigration Services (USCIS) announced on June 12, 2008, that certain lawful permanent resident applicants may file a Form I-765 (Application for Employment Authorization) to request a two-year employment authorization document (EAD). The two-year EAD is available to pending adjustment applicants (those who have filed a Form I-485, Application to Register Permanent Residence or Adjust Status) who have filed for an EAD under 8 CFR § 274.a.12(c)(9) and who are currently unable to adjust status because an immigrant visa number is not available. USCIS will continue to grant EADs that are valid for one year for adjustment applicants who have an available immigrant visa number and are filing for employment authorization under that section. The agency will decide whether to renew an EAD for either a one- or two-year validity period based on the most recent Department of State Visa Bulletin. We can anticipate that under this month’s Visa Bulletin, the only employment-based applicants to benefit from the two-year period will be in the EB-3 classification, or EB-2 applicants who are natives of China or India.

USCIS said it expects to implement this initiative for cases pending on June 30, 2008. Applicants filing an I-765 under § 274.a.12(c)(9) should begin to receive their two-year EAD several weeks after the June 30, 2008, implementation date.

The announcement is available at http://www.uscis.gov/files/article/employ_auth_docs_061208.pdf. A related fact sheet is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=62ae15d3ffd7a110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

Back to Top

4. USCIS Issues Supplemental Guidance on Processing Petitions Affected by AC21 and ACWIA

U.S. Citizenship and Immigration Services (USCIS) released supplemental guidance on May 30, 2008, relating to processing forms I-140 (employment-based immigrant petitions), I-129 (H-1B petitions), and I-485 (adjustment of status applications) affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). The guidance discusses a variety of issues, such as the application of several Department of Labor rules related to labor certification; documentation; H-1B petitions; and portability issues under AC21. USCIS plans to incorporate all previous still-applicable guidance into forthcoming rulemaking relating to various AC21 and ACWIA statutory provisions.

Among other things, the guidance notes that to determine an H-1B beneficiary’s eligibility for an extension of H-1B status under § 104(c) of AC21, USCIS adjudicators are instructed to review the Department of State’s Visa Bulletin that was in effect at the time of filing of the I-129 petition. If, on the date of filing of the H-1B petition, the Visa Bulletin shows that the beneficiary was subject to a per-country or worldwide visa limitation in accordance with the beneficiary’s immigrant visa priority date, the H-1B extension request under AC21 § 104(c) may be granted. To establish the priority date, USCIS may accept a copy of the H-1B beneficiary’s I-140 petition approval notice.

The guidance also notes that USCIS adjudicators are instructed that if credible documentary evidence is provided in support of an H-1B petition that the beneficiary faced retaliatory action from his or her employer based on reporting a violation of INA § 212(n)(2)(C)(iv), USCIS adjudicators may consider any related loss of H-1B status by the beneficiary as an “extraordinary circumstance.” This process may allow the beneficiary additional time to acquire new H-1B employment and remain eligible to apply for a change of status or extension of stay notwithstanding the termination of employment or other retaliatory action by the employer.

The guidance is available at http://www.uscis.gov/files/nativedocuments/AC21_30May08.pdf.

Back to Top

5. USCIS Offers Premium Processing Service for Certain Immigrant Worker Petitions

U.S. Citizenship and Immigration Services (USCIS) will make available Premium Processing Service for designated Form I-140 petitions (Immigrant Petition for Alien Worker) filed for H-1B nonimmigrant workers who are reaching the end of their sixth year in H-1B nonimmigrant status. Starting on June 16, 2008, USCIS is accepting Form I-907, Request for Premium Processing Service, for I-140s filed for beneficiaries who, as of the date of filing the I-907:

• are currently in H-1B nonimmigrant status;
• will reach the end of their sixth year of H-1B nonimmigrant stay in 60 days;
• are only eligible for a further H-1B extension under § 104(c) (three-year extension provision) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) upon approval of their I-140; and
• are ineligible to extend their H-1B status under AC21 § 106(a)^.(i.e., failed to file a labor certification application before the end of the final year of H-1B status)

Premium Processing Service guarantees petitioners that within 15 calendar days of receipt of a petition, USCIS will issue an approval or denial notice, a notice of intent to deny, a request for evidence, or a notice of investigation for fraud or misrepresentation. Because of the limitations imposed by USCIS, relatively few people will be able to take advantage of this new announcement.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=7e3355fe4a37a110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

Back to Top

6. U.S., U.K. Border Agencies Agree to Expedite Travel Between Nations

U.S. Customs and Border Protection has signed a joint agreement with the government of the United Kingdom to develop a bilateral pilot program to facilitate travel between the two nations. The International Expedited Traveler Initiative will integrate CBP’s Global Entry program with the British registered traveler program.

CBP announced the Global Entry pilot program April 11 to build upon other CBP trusted traveler programs, such as NEXUS and SENTRI, designed to facilitate and expedite the entry process for pre-registered low-risk international travelers into the U.S. NEXUS is a joint program with the Canada Border Services Agency that allows expedited processing into the U.S. and Canada at the land border and at Canadian pre-clearance airports. SENTRI provides for dedicated processing at the U.S.-Mexico land border.

The Global Entry pilot kicked off for U.S. citizens and U.S. permanent residents on June 6 at three airports: John F. Kennedy International Airport in New York; George Bush Intercontinental Airport in Houston, Texas; and Washington Dulles International Airport. CBP began accepting online applications on May 12. CBP expects that citizens of the United Kingdom will be invited to apply as soon as late this year. CBP signed a similar agreement with the government of the Netherlands on May 19.

The announcement is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/06242008_4.xml.

Back to Top

7. Homeland Security Tech Undersecretary, Others Warn of Skills Crisis

Jay Cohen, the Department of Homeland Security Department’s undersecretary for science and technology, warned during his keynote address at a recent University of Maryland global security summit that the U.S. workforce is “in crisis” because of insufficient numbers of students going into math and science fields. Mr. Cohen said students view those topics as too difficult.

Mr. Cohen also noted that “[w]e don’t have the leadership in industry to make the sustained investment in basic and applied research because of [falling] monthly and quarterly returns.”

Among other things, Mr. Cohen noted, the U.S. government may soon sign an agreement with the European Union, which has promised an investment of 1.3 billion euros in security-related projects, including the development of new technologies.

Rep. Judy Biggert (R-Ill.) and 10 other lawmakers sent a recent letter on the same issue to House Speaker Nancy Pelosi (D-Cal.), Minority Leader John Boehner (R-Ohio), and others, asking that they reinstate a portion of U.S. competitiveness funds cut in the fiscal year 2008 omnibus appropriations bill.

Additional information about the global security summit is available at http://www.rhsmith.umd.edu/ciber/globalsecurity2008/agenda.html.

Back to Top

8. DOL Audits Labor Cert Applications Filed By Fragomen

The Department of Labor has decided to conduct an audit of all permanent labor certification applications filed by Fragomen, Del Rey, Bernsen & Loewy, LLP (Fragomen). The Department alleged that it “has information indicating that in at least some cases the firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified U.S. workers.” The audits will determine which, if any, applications should be denied or placed into department-supervised recruitment “because of improper attorney involvement in the consideration of U.S. worker applicants,” the Department said.

Fragomen responded in a statement released on its Web site that “DOL, by its audit, seeks to limit the right to counsel. In order to make its point, DOL presses to make a radical departure from past practice and create a new regulatory interpretation which would limit the role of employers’ attorneys and bar them from giving guidance on specific fact situations.” Fragomen noted “widespread outrage” in the business community and in the immigration bar at the Department’s “unprecedented sweeping audit and its misinterpretation of the law.” Also voicing support, Fragomen noted, are the American Immigration Lawyers Association, “which ha[s] challenged and criticized DOL’s new interpretation and also the manner in which it has publicly announced the audits,” and the U.S. Chamber of Commerce. Fragomen said it is working to reach an agreement “that will enable us to move forward quickly to a resolution and have DOL release cases from audit in the near future, so cases will be back on track in the routine process.”

The Department of Labor’s announcement is available at http://www.dol.gov/opa/media/press/eta/eta20080752.htm. Fragomen’s statement is available at http://pubweb.fdbl.com/news1.nsf/9abe5d703b986cff86256e310080943a/13b637d2e0930e1d852574750003a7d6?OpenDocument. Fragomen’s update is available at http://www.ilw.com/immigdaily/news/2008,0630-fragomen.pdf. See also http://mondaq.com/article.asp?articleid=62392.

Back to Top

9. Court Rules Del Monte Cannot Avoid Liability for Wage Violations of Contractor

A federal court ruled that Fresh Del Monte Produce Southeast, Inc., is liable for worker wage violations by a labor contractor. The lawsuit was filed by the Southern Poverty Law Center (SPLC) in April 2006 on behalf of up to 500 field and factory H-2A agricultural workers working in Georgia on planting, harvesting, and packaging onions.

Mary Bauer, director of the SPLC’s Immigrant Justice Project, said the decision was particularly significant “because it provides a roadblock to a disturbing trend by large corporate growers that import workers. Increasingly, those corporations attempt to evade responsibility for their workers by having middlemen — generally penniless crew leaders — submit the applications for H-2A workers, instead of the wealthy corporations doing so themselves.”

Additional information about the case, Luna v. Del Monte Fresh Produce, is available at http://www.splcenter.org/news/item.jsp?aid=304.

Back to Top

10. State Dep’t Issues Final Rule To Offer Electronic Nonimmigrant Visa Applications

The Department of State has issued a final rule, effective April 29, 2008, to offer a completely electronic application procedure for nonimmigrant visas as an alternative to submission of the Form DS-156.

The Department has developed and introduced an electronic application process for nonimmigrant visas to eventually replace the current application process, which depends on a paper form (the DS-156, and other forms when required, such as the DS-157 and DS-158). The first step in paper reduction efforts was to offer an electronic visa application form (EVAF) as a voluntary alternative way of obtaining and preparing the DS-156. While a nonimmigrant visa applicant could obtain and prepare the DS-156 electronically, he or she was required to sign the DS-156 manually.

On October 1, 2006, the EVAF was made mandatory worldwide wherever possible. Now, although the Department will continue to accept the EVAF where necessary, it plans to eventually eliminate the DS-156 entirely and replace it with the DS-160, an electronic form designed to be completed and signed electronically. The procedure is the same for the nonimmigrant visa applicant except that he or she will not be required to print and sign a form to take to the visa interview. All information entered into the DS-160 will be available to the consular officer at the time of the interview. The applicant is required to “sign” the DS-160 electronically.

The full text of the final rule is available at http://edocket.access.gpo.gov/2008/E8-9336.htm.

Back to Top

11. USCIS Closing Tijuana, Hong Kong Field Offices

U.S. Citizenship and Immigration Services (USCIS) announced on June 18, 2008, that it is closing its Tijuana and Hong Kong field offices.

Details on where applications sent to the Tijuana office will be forwarded and processed are at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=29b534a30f49a110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

Details on where applications sent to the Hong Kong office will be forwarded and processed are at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=a70af774c6c9a110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

Back to Top

12. Federal Court Enjoins Oklahoma From Enforcing State Immigration Law

On June 4, 2008, a federal court in Oklahoma City enjoined Oklahoma from enforcing portions of the state’s immigration law, H.B. 1804, that were scheduled to take effect July 1. Among them were a requirement that employers use E-Verify to check work authorizations of employees, which is currently voluntary for private employers under federal law. Judge Robin J. Cauthron found that it was “substantially likely” that Oklahoma’s law is preempted by federal immigration law. The lawsuit was filed by the U.S. Chamber of Commerce and other groups.

The court noted that:

[W]hile the public clearly has an interest in issues of illegal immigration, and no court should treat the prospect of overturning state law without grave consideration, the Constitution requires that the will of the States must occasionally give way to the need for uniformity among the States, and that uniformity can only be accomplished through congressional action. Thus, for now, the provisions of H.B. 1804 challenged by Plaintiffs must be enjoined until a final determination can be made about the extent to which States can permissibly regulate without interfering with areas reserved exclusively for congressional action. The Court is not deciding that Plaintiffs will ultimately prevail, rather, when the materials before the Court are viewed as the facts and law exist today, it appears that Plaintiffs are likely to prevail and consequently are entitled to a preliminary injunction.

The decision is available at http://www.uschamber.com/assets/nclc/henrypreliminjunction.pdf. For additional details and a history of the case, see http://www.nfib.com/object/IO_37522.html and http://hr.cch.com/news/employment/062008a.asp.

Back to Top

13. State Dept. Releases Information on Employment Second and Third Preference Availability for July

The Department of State’s Visa Office has released the following information on employment second and third preference visa number availability for July 2008:

Employment second preference. The Department noted that questions have been raised regarding the way visa numbers have been provided to China and India in the employment second preference categories beginning in April. Under the Immigration and Nationality Act, if total demand for visas in an employment preference category is insufficient to use all available visa numbers in that category in a calendar quarter, the unused numbers may be made available without regard to the annual per-country limit, the Department noted. For example, if the second preference annual limit were 40,000, number use by “All Other Countries” were estimated to be only 25,000, and the China/India combined number use based on their per-country limits were 6,000, there would be 9,000 numbers unused. Those 9,000 numbers could then be made available to China and India applicants without regard to their per-country limits.

The Department determined that the demand from “All Other Countries” for second preference numbers, plus the quantity of numbers available under the China and India second preference per-country limit, would be insufficient to use all available numbers under the annual limit for this category. Therefore, the unused numbers have been made available to China and India second preference applicants. Because such unused numbers must be made available strictly in priority date order, the China and India applicants have been subject to the same cut-off date as worldwide applicants. As there are more employment second preference applicants from India and the Indian applicants may have earlier priority dates, the Department said it is likely that Indian applicants will receive a larger portion of the available numbers than Chinese applicants.

The employment second preference category is “Current” for all countries except China and India. If at any point it appears to the Department that demand from “All Other Countries” would use all available numbers, an adjustment would be made to the China/India cut-off date. Therefore, providing the unused numbers to China and India “in no way disadvantages applicants from any other country, and helps to insure that the worldwide annual limit can be reached,” the Department noted.

Employment third preference. Demand for numbers, primarily by USCIS for adjustment of status cases, has brought the entire employment third preference category to the annual numerical limit by the end of June. As a result, this category will become “unavailable” beginning in July and will remain so for the remainder of fiscal year 2008, the Department said. Such action will be temporary, and employment third preference availability will return to the cut-off dates established for June in October, the first month of the new fiscal year.

The latest Visa Bulletin containing this and other information on priority dates is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4252.html.

Back to Top

14. Diversity Visa Lottery Results Announced

The Department of State’s Visa Office has reported that the Kentucky Consular Center in Williamsburg, Kentucky, has registered and notified the winners of the DV-2009 diversity lottery. The DV lottery makes available 50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States. Over 9.1 million people applied for the DV lottery this year. Of that number, approximately 99,600 applicants have been registered and notified and may now make an application for an immigrant visa. Because it is likely that some of the first 50,000 persons registered will not pursue their cases to visa issuance, the Department said this larger figure should ensure that all DV-2009 numbers will be used during fiscal year 2009 (October 1, 2008, to September 30, 2009). Those selected will need to act on their immigrant visa applications quickly. Applicants should follow the instructions in their notification letter and must fully complete the information requested.

The latest Visa Bulletin for July 2008 contains a country-by-country breakdown of those registered for DV-2009, at http://travel.state.gov/visa/frvi/bulletin/bulletin_4252.html.

Back to Top

15. New Publications and Items of Interest

New USCIS ombudsman postings:

• Questions & Answers from CIS Ombudsman’s Teleconferences – updated 6/16/2008
• N-648 Medical Waivers – How Are They Working For You? – updated 6/11/2008

These items are available at http://www.dhs.gov/xabout/structure/editorial_0482.shtm.

Globalization links. The University of Maryland’s Center for International Business Education and Research has posted a number of links to information about globalization, trade, merging economies, and American competitiveness at http://www.rhsmith.umd.edu/ciber/resources.html.

DOJ Inspector General report on name check and fingerprint processes. The Department of Justice’s Office of the Inspector General has released “The Federal Bureau of Investigation’s Security Check Procedures for Immigration Applications and Petitions” (Audit Report 08-24, June 2008). The report notes that the FBI’s largest name check and fingerprint identification user is the Department of Homeland Security’s U.S. Citizenship and Immigration Services, for use in adjudications of immigration and naturalization benefits. The volume of requests for name checks and fingerprint identification has surged since the terrorist attacks of September 11, 2001. More than 4 million name checks were performed in fiscal year (FY) 2007, and 26 million fingerprint identification requests were made in FY 2007. The Inspector General’s audit found that the FBI’s name check processes performed under the National Name Check Program (NNCP) are “inefficient and untimely, rely on outdated technology, and provide little assurance that pertinent and derogatory information is being retrieved and transmitted to customer agencies.” The Inspector General found, however, that the fingerprint identification process performed under the Integrated Automated Fingerprint Identification System (IAFIS) is generally “accurate and timely” because of enhanced technology, well-trained personnel, efficient tracking mechanisms, and proficient interaction with requesting agencies.

The DOJ Inspector General’s report is available at http://www.usdoj.gov/oig/reports/FBI/a0824/final.pdf.

DOL Inspector General report on labor certification applications. The Department of Labor’s Inspector General issued a semiannual report to Congress on May 31, 2008, recommending that Congress authorize the Department to verify information on labor certification applications. The report stated that “[i]f DOL is to have a meaningful role in the H-1B specialty occupations foreign labor certification process, it must have the statutory authority to ensure the integrity of that process, including the ability to verify the accuracy of information provided on labor condition applications.” The Department recommends consideration with USCIS of a legislative proposal that would “require foreign nationals to have their eligibility determined by USCIS before the employer’s labor certification application is reviewed by DOL.”

The DOL Inspector General’s report is available at http://op.bna.com/dlrcases.nsf/r?Open=gcii-7falst.

Back to Top

16. Recent News from ABIL Members

Charles Kuck (bio: http://www.abil.com/lawyers/lawyers-kuck.cfm) was recently elected President of the American Immigration Lawyers Association (AILA) for the 2008-2009 term. Mr. Kuck is Managing Partner of Kuck Casablanca LLC. He has served on the National Executive Committee of AILA for five years. Previously, Mr. Kuck served in a variety of executive capacities for AILA, notably on the Board of Governors of AILA, Chair of the Atlanta Chapter of AILA, and National Chair of the Young Lawyers Division of AILA. He previously served on various other committees for AILA. Mr. Kuck also is an Adjunct Professor of Law at the University of Georgia School of Law.

Bernard P. Wolfsdorf (bio: http://www.abil.com/lawyers/lawyers-wolfsdorf.cfm) was recently elected President-Elect of the American Immigration Lawyers Association (AILA) for the 2008-2009 term. Previously, he was AILA’s National Second Vice President. He is the founding partner of the Wolfsdorf Immigration Law Group. He has been a State Bar of California Certified Specialist in Immigration and Nationality Law for over 20 years.

Kehrela Hodkinson (bio: http://www.abil.com/lawyers/lawyers-hodkinson.cfm) received a Presidential Award at the American Immigration Lawyers Association’s annual conference in Vancouver, British Columbia, for “Outstanding Efforts in Leading the Development of the Rome District Chapter.”

Sharon Mehlman (bio: http://www.abil.com/lawyers/lawyers-mehlman.cfm) received a Presidential Award at the American Immigration Lawyers Association’s annual conference in Vancouver, British Columbia, for “Outstanding Service as Chair of the USCIS Centers Operations Committee (SCOPS) and Her Tireless Efforts in Resolving Service Center Issues.”

Several members of the Alliance of Business Immigration Lawyers (ABIL) spoke at the AILA conference (http://www.aila.org/content/fileviewer.aspx?docid=24313&linkid=173260):

• Steven Clark, Navigating the New ETA-9089: How Has The Course Changed?
• Steven Garfinkel, Lawyer as Employer (Practice Management Issues)
• H. Ronald Klasko, Dealing With the Eternal Adjustment Applicant
• Charles Kuck, Presidential Installation Speech, discussion leader for Interagency Government Panel, New Attendees Orientation, discussion leader for “Affidavit of Support Game Show.”
• Sharon Mehlman, USCIS Open Forum
• Cyrus Mehta, Preserving Permanent Residence
• Angelo Paparelli, PERM Workshop, Investor Seminar: Best Practices in EB-1 and EB-5 Risk Management, ICE Raid Workshop, Part III: Corporate Compliance Progress
• William Reich, Tricky TNs: Hints and Hazards
• Bernard Wolfsdorf, Update on E Investor Visas; Hot Topics

ABIL member bios are posted at http://www.abil.com/lawyers/lawyers.cfm and http://www.abil.com/lawyers/abil_global.cfm.

Many ABIL members have been listed in the 2008 edition of the International Who’s Who of Corporate Immigration Lawyers, which has just been published. Those listed include Francis Chin, Steven A. Clark, Laura J. Danielson, Bryan Funai, Steven Garfinkel, Kehrela Hodkinson, Mark Ivener, H. Ronald Klasko, Charles Kuck, Edward Litwin, Sharon Mehlman, Cyrus Mehta, Angelo Paparelli, Julie Pearl, William Reich, Steve Trow, Bernard Wolfsdorf, and Stephen Yale-Loehr. ABIL member bios are posted at http://www.abil.com/lawyers/lawyers.cfm and http://www.abil.com/lawyers/abil_global.cfm.

Angelo A. Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm) recently co-wrote an article with Ted Chiappari that appeared in the June 23, 2008, issue of the New York Law Journal. The article examines recent actions by the U.S. Department of Labor, an agency with a key role in administering the immigration laws, restricting the role of lawyers in the employment-based immigration process, including the blanket audit of every labor certification application filed by numerous Fortune 500 companies all represented by the same law firm (Fragomen, Del Rey, Bernsen & Loewy LLP). The article is available by subscription to the New York Law Journal, from http://www.lawcatalog.com/product_detail.cfm?productID=1007&setlist=0&return=listview&.

Mr. Paparelli, who is the Alliance of Business Immigration Lawyers president, was quoted on National Public Radio’s “Morning Edition” as noting that the presidential candidates’ positions on immigration “are as distinct as Tweedledum’s from Tweedledee’s.” He noted, however, that immediate action on immigration issues is unlikely during a first McCain or Obama term: “Immigration has been described as the third rail of American politics, but more vividly by some as a downed power line that anyone who touches it will be electrified.” The full story is available at http://www.npr.org/templates/story/story.php?storyId=91323073. The audio is available at http://www.npr.org/templates/player/mediaPlayer.html?action=1&t=1&islist=false&id=91323073&m=91342907.

In addition to the AILA Conference, Mr. Paparelli was a speaker or panelist in a variety of presentations in June 2008. He was videotaped in an interview by Mike Bako of Speaking Channel TV, New York; he spoke at the ACIP Annual Symposium in Pentagon City on “New Corporate Organization = New Visa?”; he was a panelist at ABIL’s EB-5 teleconference; he was interviewed by Helen Laube of Financial Times/Germany on “Immigration and the Presidential Campaign”; and he was a speaker at the ACIP teleconference on “Crimes and Misdemeanors – Their Impact on Your Employees’ Immigration Status.”

Back to Top

Headlines:

1. H-1B Roundup: Cap Reached, Random Selection Completed; Some Applications ‘Wait-Listed’ – USCIS announced a preliminary number of nearly 163,000 H-1B petitions received during the filing period ending on April 7, 2008.

2. DHS Issues Interim Rule on Optional Practical Training for F-1 Students – DHS issued an interim final rule extending the maximum period of OPT from 12 to 29 months for F-1 students who have completed a STEM degree and accept employment with employers enrolled in E-Verify.

3. USCIS Revises I-765 To Add F-1 Eligibility Codes – USCIS has revised the Application for Employment Authorization to include additional eligibility codes under the DHS’s interim final rule regarding OPT.

4. DOS Issues Annual Guidance on Students and Exchange Visitors – The Department of State has released a cable regarding student (F and M) and exchange visitor (J) issues.

5. USCIS Releases Processing Times for Naturalization Applications Filed During Summer 2007 – Projected processing times at the end of September 2008 range from a high of 14.7 months for Washington, D.C., to a low of 5 months for Helena, Montana.

6. DHS Proposes Biometric Airport and Seaport Exit Procedures – The US-VISIT exit proposal would require non-U.S. citizens who provide biometric identifiers for admission to provide digital fingerprints when departing the country from any air or sea ports of departure.

7. ICE Arrests Hundreds of Workers – In April, ICE agents arrested hundreds of undocumented workers, including more than 300 workers at Pilgrim’s Pride plants in five states who are suspected of committing identity theft and other criminal violations to obtain their jobs.

8. DHS Signs Visa Waiver Agreement With Korea – The security enhancements outlined in the agreement put Korea on the path toward visa-free travel to the U.S. and potential designation as a VWP member as early as later this year.

9. House Holding Series of Immigration Hearings – An oversight hearing on the H-2B program was the first in a series of immigration hearings to be held by the House immigration subcommittee and the full Judiciary Committee.

10. Expensive Virtual Border Fence To Be Replaced – Customs and Border Protection officials recently acknowledged that the “Project 28” pilot program is not working sufficiently.

11. New Publications and Items of Interest – New Publications and Items of Interest

12. Recent News from ABIL Members – Recent News from ABIL Members

---

Details:

1. H-1B Roundup: Cap Reached, Random Selection Completed; Some Applications ‘Wait-Listed’

U.S. Citizenship and Immigration Services (USCIS) announced on April 8, 2008, that it had received enough H-1B petitions to meet the congressionally mandated cap for fiscal year (FY) 2009. USCIS announced a preliminary number of nearly 163,000 H-1B petitions received during the filing period ending on April 7, 2008. More than 31,200 of those petitions were for the advanced degree exemption. On April 14, USCIS conducted the computer-generated random selection process to select which H-1B petitions for FY 2009 will continue to full adjudication. If approved, those H-1B petitions will be eligible to receive an H-1B visa number.

USCIS conducted two random selections, first on petitions qualifying for the 20,000 “master’s or higher degree” (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap.

The approximately 163,000 petitions received on the first five days of the eligible filing period for FY 2009 (April 1 through April 7, 2008) were labeled with unique numerical identifiers. USCIS has notified the appropriate service centers which numerical identifiers have been randomly selected, so each center may continue processing the petitions associated with those identifiers.

Petitioners whose properly filed petitions have been selected for full adjudication should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives. As previously announced, duplicate filings will be returned without the fee. The total adjudication process is expected to take approximately eight to 10 weeks.

For cases selected through the random selection process and initially filed for premium processing, the 15-day premium processing period began on April 14, the day of the random selection process.

USCIS has “wait-listed” some H-1B petitions, meaning they could replace petitions chosen to receive an FY 2009 cap number but that subsequently are denied, withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition. USCIS said it will send a letter to the wait-list petitioners to inform them of their status. USCIS expects that for each of these wait-listed petitions, it will either issue a receipt notice or return the petition with fees by early to mid-June.

USCIS also announced that, with several exceptions, it will not reject an H-1B petition subject to the fiscal year 2009 cap solely on the grounds that it was received at the wrong service center (e.g., the petition may have been inadvertently mailed to the California Service Center instead of the Vermont Service Center or vice versa). This does not apply if the petitions were sent to the Texas or Nebraska Service Centers.

USCIS said it was taking this “limited, short-term measure to alleviate concerns from the public where an H-1B petition has been received by USCIS but at the incorrect Service Center.” This measure applies only to H-1B petitions subject to the FY 2009 cap that were received by USCIS before the close of business on the final receipt date.

The announcement that the H-1B cap has been reached is available at http://www.uscis.gov/files/article/H-1B_8Apr08.pdf. The announcement about the random selection process is at http://www.uscis.gov/files/article/Update_USCIS_Runs_H1-B_Random_Selection%20Process.pdf. The announcement of the preliminary number of H-1B petitions received is at http://www.uscis.gov/files/article/USCIS%20Update_H1B_Preliminary%20Count1_10Apr08.pdf. The announcement about USCIS’s policy regarding receipt at the wrong service center is at http://www.uscis.gov/files/article/H-1B_Filing_4Apr08.pdf.

Back to Top

---

2. DHS Issues Interim Rule on Optional Practical Training for F-1 Students

The Department of Homeland Security (DHS) issued an interim final rule, effective April 8, 2008, that extends the maximum period of optional practical training (OPT) from 12 months to 29 months for F-1 students who have completed a science, technology, engineering, or mathematics (STEM) degree and accept employment with employers enrolled in U.S. Citizenship and Immigration Services’ (USCIS’) E-Verify employment verification program. Currently, F-1 students who have been enrolled on a full-time basis for at least one full academic year in a Student and Exchange Visitor Program (SEVP)-certified college, university, conservatory, or seminary are eligible for 12 months of OPT to work for a U.S. employer in a job directly related to the student’s major area of study.

The interim rule requires F-1 students with an approved OPT extension to report changes in the student’s name or address and in the employer’s name or address, and periodically to verify the accuracy of this information. The rule also requires the employers of F-1 students with an extension of post-completion OPT authorization to report to the student’s designated school official (DSO) within 48 hours after the OPT student has been terminated from, or otherwise leaves, his or her employment with that employer before the end of the authorized period of OPT. The interim final rule also implements a programmatic change to allow students to apply for OPT within 60 days of finishing their studies.

USCIS said the interim rule ameliorates the so-called “cap-gap’ problem by extending the authorized period of stay for all F-1 students who have a properly filed H-1B petition and change of status request (filed under the cap for the next fiscal year) pending with USCIS. If USCIS approves the H-1B petition, the students will have an extension that enables them to remain in the U.S. until the requested start date as indicated in the H-1B petition takes effect.

The interim rule is available at http://edocket.access.gpo.gov/2008/pdf/E8-7427.pdf. A 30-page SEVP policy guidance document on post-completion OPT has been posted at http://www.ice.gov/doclib/sevis/pdf/opt_policy_guidance_pdf.pdf. Information about E-Verify is at http://www.dhs.gov/e-verify.

Back to Top

---

3. USCIS Revises I-765 To Add F-1 Eligibility Codes

U.S. Citizenship and Immigration Services (USCIS) announced on April 24, 2008, that it has revised the Application for Employment Authorization (Form I-765) to include additional eligibility codes under the Department of Homeland Security’s interim final rule regarding Optional Practical Training (OPT), published on April 8, 2008. The rule modifies the conditions and duration of OPT for qualified F-1 nonimmigrant students.

USCIS will accept the July 30, 2007, edition of the form through July 8, 2008. As of July 9, USCIS will only accept the revised Form I-765, dated April 4, 2008, and will reject all requests using previous editions of the form.

USCIS’s announcement is available at http://www.uscis.gov/files/article/I-765_24Apr08.pdf. The OPT interim rule is available at http://edocket.access.gpo.gov/2008/pdf/E8-7427.pdf. The revised I-765 is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=73ddd59cb7a5d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD.

Back to Top

---

4. DOS Issues Annual Guidance on Students and Exchange Visitors

The Department of State has released a cable sent to the field on March 11, 2008, regarding student (F and M) and exchange visitor (J) nonimmigrant visa issues. Among other things, the cable notes that first-time visa applicants may be the highest priority when scheduling appointments, and repeat applicants may be scheduled on a lower-priority tier. The cable also clarifies some information on the DS-2019 form, and discusses new Exchange Visitor Program (EVP) sanctions regulations and new Termination of Designation and Revocation of Program regulations, which took effect January 22, 2008. Specifically, some of the major changes in the sanction and termination process include:

• Sponsors who were at risk of losing their program designations will have their cases heard through a paper review instead of an in-person review.
• A revised suspension process will freeze sponsors’ operations for 120 days while their qualifications are under review.
• A new provision allows the Department to terminate an entire class of designated exchange visitor program sponsors if it believes specific programs, sponsors, exchange visitor category(ies), and/or activities compromise the national security of the U.S. or no longer further the Department’s public diplomacy mission.
• Sponsors on whom the Bureau of Educational and Cultural Affairs imposes lesser sanctions are no longer allowed to appeal.

The cable is available at http://travel.state.gov/visa/laws/telegrams/telegrams_4202.html. Additional information about the J exchange visitor program is available at http://exchanges.state.gov/education/jexchanges/. Statistics and data tables about foreign students and exchange visitors are available at http://opendoors.iienetwork.org/.

Back to Top

---

5. USCIS Releases Processing Times for Naturalization Applications Filed During Summer 2007

U.S. Citizenship and Immigration Services (USCIS) has released the projected times for local offices to complete processing of citizenship applications filed during the summer of 2007. Projected processing times at the end of September 2008 range from a high of 14.7 months for Washington, D.C., to a low of 5 months for Helena, Montana.

Last July, USCIS received 460,000 applications for naturalization, which was three times the record for any previous month. For the year, USCIS received 1.4 million naturalization applications, almost double the normal annual volume.

USCIS said it is hiring and training hundreds of additional immigration officers to adjudicate these cases. The agency is also conducting naturalization interviews on weekends, after normal business hours, and in additional locations.

The processing times, USCIS said, “provide a sense of how quickly a case may be processed if there are no complicating factors,” noting that some cases will take longer to complete; for example, if an applicant has been asked to submit additional information or fails the naturalization test, or if the FBI namecheck is in progress.

The projected processing times are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=2de02ad51e679110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

Back to Top

---

6. DHS Proposes Biometric Airport and Seaport Exit Procedures

The U.S. Department of Homeland Security (DHS) proposed a rule on April 22, 2008, that would establish biometric exit procedures at all U.S air and sea ports of departure. The majority of non-U.S. citizens and non-permanent residents, except for Canadians, are already required to submit digital fingerprints and a digital photograph for admission into the country. The US-VISIT exit proposal would require non-U.S. citizens who provide biometric identifiers for admission to provide digital fingerprints when departing the U.S. from any air or sea ports of departure.

The DHS said that visitors departing the U.S. should continue to return their paper Form I-94 or Form I-94W to airline or ship representatives. The DHS completed a test of biometric exit procedures at several U.S. airports and seaports last year. Based on the results, the DHS determined that biometric exit procedures must be integrated into the existing traveler process to ensure compliance and provide visitors with a consistent experience from port to port.

The proposed rule would require commercial air carriers and cruise line owners and operators to collect and transmit international visitors’ biometric information to DHS within 24 hours of leaving the U.S. Carriers are already required to transmit biographic information to DHS for all passengers before their departure from the U.S. The proposed rule does not designate a specific location within the port of departure for biometric collection and does not apply to small carriers or vessel owners and operators, or to general aviation.

The rule proposes a performance standard that requires the carriers to collect biometric information on the premises of the facility from which the passenger departs the U.S., but provides the carriers with some discretion in the manner of collection and submission to allow the carriers to meet the requirements in the most efficient and cost-effective manner.

The DHS requests public comments on all of the alternatives discussed in the proposed rule and the underlying assumptions and analyses. Although the proposed rule identifies means for collection of biometrics, personnel, and methods of transmission, the agency said it also welcomes proposals on alternatives that have not been proposed in the rule. The most useful proposals or alternatives, the DHS said, would include information on how the proposed alternative would reduce the burden on travelers and the travel industry without sacrificing accuracy in the collection of biometric information.

The DHS intends to implement air and sea biometric exit procedures by January 2009, fulfilling a key provision of the Implementing the Recommendations of the 9/11 Commission Act of 2007. The DHS said the proposed rule will enable the DHS to retain the necessary authority to manage the Visa Waiver Program effectively. If the exit program has not been implemented by June 30, 2009, the department may not be able to extend Visa Waiver Program privileges to new countries. The agency said the waiver authority is critical for the U.S. to invite more of its allies to participate in the Visa Waiver Program.

Comments may be submitted via:

• Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. All submissions received must include the agency name and docket number (DHS-2008-0039) for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.
• Mail: Written comments may be submitted to: Michael Hardin, Senior Policy Advisor, US–VISIT, Department of Homeland Security; 1616 North Fort Myer Drive, 18th Floor, Arlington, Virginia  22209. Submissions must include the agency name and docket number (DHS-2008-0039).

The proposed rule was published in the Federal Register at http://edocket.access.gpo.gov/2008/pdf/E8-8956.pdf. Following the 60?day public comment period and review, a final rule will be published outlining the new requirements and their effective date.

Meanwhile, Sen. Patrick Leahy (D-Vt.) held an oversight hearing on the Department of Homeland Security. The sole witness was Secretary Michael Chertoff. Among other things, Sen. Leahy discussed his concerns about the Department’s implementation of the Western Hemisphere Travel Initiative. “The Department must now make good use of the time Congress has given to make sure that implementation goes smoothly, and to minimize disruption in Americans’ lives and in our relationships with our good neighbors to the north and south,” he said. Sen. Leahy added that “I also share the view of many on both sides of the aisle and across the country about the so-called REAL ID Act and its unfunded mandates for States.” In advance of the hearing, Sen. Leahy said, “The good news is that the Bush administration will not fight the new law that moves the passport requirement to next year. The bad news is that there is little reason to believe DHS will be ready even then.” Statements from Sen. Leahy and Secretary Chertoff are available at http://judiciary.senate.gov/hearing.cfm?id=3226.

Back to Top

---

7. ICE Arrests Hundreds of Workers

In April, U.S. Immigration and Customs Enforcement (ICE) agents arrested hundreds of undocumented workers, including more than 300 workers at Pilgrim’s Pride poultry plants in five states who are suspected of committing identity theft and other criminal violations to obtain their jobs.

ICE special agents also detained 45 undocumented workers at 10 sites and arrested 11 individuals for conspiring to harbor undocumented workers who were smuggled into the U.S. to work in Mexican restaurants in four states. This operation involved approximately 130 ICE agents and 30 state and local law enforcement officers and began in May 2006.

ICE agents interviewed roughly 100 employees at a resort in Leesburg, Virginia. Agents arrested 53 immigration status violators and another six were apprehended outside the facility. The 59 workers are nationals of El Salvador, Guatemala, Mexico, Honduras, Bolivia, Peru, and Argentina. All face removal proceedings.

Details on the arrests are available at http://www.dhs.gov/ximgtn/enforcement/.

Back to Top

---

8. DHS Signs Visa Waiver Agreement With Korea

On April 18, 2008, Department of Homeland Security (DHS) Secretary Michael Chertoff signed a Visa Waiver Program (VWP) Memorandum of Understanding (MOU) with Korean Minister of Foreign Affairs and Trade Yu Myung-hwan. The security enhancements outlined in the agreement “put[ ] Korea on the path toward visa-free travel to the U.S., and potential designation as a VWP member as early as later this year,” the DHS announcement states.

The DHS said it plans to establish an electronic system of travel authorization for air passengers. VWP travelers will be asked to provide some basic information online, which will generate an authorization number for travel. The agency said it will announce details on how the authorization systems will work, and when they will begin, later this year.

The VWP has 27 current members from Asia and Europe. The U.S. has signed enhanced VWP agreements with the Czech Republic, Estonia, Latvia, Slovakia, Hungary, Lithuania and Malta in recent weeks. Each country has committed to meeting the new security requirements of the program.

The announcement is at http://www.dhs.gov/xnews/releases/pr_1208545066700.shtm.

Back to Top

---

9. House Holding Series of Immigration Hearings

House Judiciary Committee Chairman John Conyers, Jr. (D-Mich.), and chairwoman of the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law, Rep. Zoe Lofgren (D-Cal.), announced that an oversight hearing held April 16, 2008, on the H-2B program was the first in a series of immigration hearings to be held by the subcommittee and the full Judiciary Committee.

“Over the past year, it has become clear that we need an immigration system that is fair, legal, and tough,” said Rep. Conyers. The series will be conducted in coordination with several other House committees.

The Judiciary Committee’s announcement is available at http://judiciary.house.gov/newscenter.aspx?A=954. Testimony from the H-2B hearing has been posted to the House Web site (http://judiciary.house.gov/oversight.aspx?ID=432). Testimony has been posted (http://judiciary.house.gov/oversight.aspx?ID=435) for a hearing on wasted visas and growing backlogs held on April 30, 2008.

Back to Top

---

10. Expensive Virtual Border Fence To Be Replaced

Just two months after Secretary of Homeland Security Michael Chertoff accepted the Boeing Co.’s completed $20 million virtual fence along portions of the border with Mexico, the agency announced it will replace the Arizona-Mexico virtual fence with new radios, cameras, towers, and computer software. Customs and Border Protection officials recently acknowledged that the “Project 28” pilot program is not working sufficiently. Border Patrol agents in the Tucson sector agreed with Boeing’s conceptual design of Project 28 but said the final system might have been more useful if they and others had been given an opportunity to provide feedback throughout the process, according to a Government Accountability Office (GAO) report issued in February 2008.

An article about plans to replace the virtual fence is available at http://www.govexec.com/story_page.cfm?articleid=39838&dcn=e_gvet. A GAO report on border security, issued in March 2008, is available at http://www.gao.gov/new.items/d08542t.pdf. The GAO report issued in February 2008, detailing some of the problems with the virtual fence program, is available at http://www.gao.gov/new.items/d08508t.pdf.

Back to Top

---

11. New Publications and Items of Interest

How immigration is saving Social Security. The New York Times published an editorial on April 2, 2008, “How Immigrants Saved Social Security.” The editorial argues that undocumented immigration has had an even better effect on Social Security than legal immigration. The editorial is available at http://www.nytimes.com/2008/04/02/opinion/02wed3.html?_r=2&ref=opinion&oref=slogin&oref=slogin.

2007 LPR statistics. The Department of Homeland Security has posted online the Annual Flow Report: U.S. Legal Permanent Residents: 2007, published March 2008. The Office of Immigration Statistics report presents information, obtained from applications for lawful permanent resident (LPR) status, on the number and characteristics of persons who became LPRs in the U.S. during 2007.

The report notes that employment-based immigrant preference categories, including principals and their dependents, represented 15 percent of the total LPR flow in 2007, up from 13 percent in 2006. The LPR flow for employment preferences increased 2 percent from 159,081 in 2006 to 162,176 in 2007, but was below the record of 246,877 set in 2005. The large number of LPRs in the employment preferences in 2005 was primarily due to the American Competitiveness in the 21st Century Act of 2000 (AC21). This Act resulted in the recapture of 130,107 unused employment-based visa numbers from 1999 and 2000 to be made available to first, second, and third preference employment-based immigrants once the annual limit had been reached. Approximately 94,000 of those recaptured visa numbers were used in 2005, none were used in 2006, and 7,312 were used in 2007.

In addition, provisions of the REAL ID Act of 2005 resulted in the recapture of 50,000 unused employment-based visas from 2001 to 2004, of which 11,950 were used in 2005, 33,335 were used in 2006, and 4,743 were used in 2007. The number of employment-based LPRs for 2007 includes 10,849 recaptured REAL ID visas. The majority of these visas were issued to individuals whose country of origin was the Philippines (64 percent) or India (21 percent). As a result of the use of additional visas recaptured by provisions of the AC21 and the REAL ID Act, the number of employment-based preferences in 2007 was greater than the annual limit of 147,148.

The report is available at http://www.dhs.gov/xlibrary/assets/statistics/publications/LPR_FR_2007.pdf.

Drew Carey video. “The Beckham Factor,” a video clip from Drew Carey about U.S. attitudes toward immigration, is available at http://www.truthinimmigration.org/CompleteStory.aspx?sid=25.

Immigration dashboard for human resource professionals. Angelo Paparelli, President of the Alliance of Business Immigration Lawyers, has written an article with Lily S. Hensel, “An Immigration Dashboard for Human Resource Professionals.” The article provides employers with key “dashboard” elements:

• Practical information concerning basic principles of work-related immigration law
• Eligibility criteria for the most popular work-visa categories
• Best practices when hiring or continuing to employ foreign and domestic workers
• Recommended procedures to follow after receipt of a “no-match” letter
• Useful tips to make sure that foreign workers maintain lawful immigration status throughout the employment relationship and are not prevented from working by delayed security clearances or restrictions on travel abroad and reentry to the United States
• Guidance on ways to limit or minimize liability, or negative, unintended immigration-related outcomes affecting the workforce and the employment relationship

The article is available at http://www.abil.com/articles/Immigration%20Dashboard%20for%20HR%20Professionals.pdf.

Back to Top

---

12. Recent News from ABIL Members

Angelo Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm), President of the Alliance of Business Immigration Lawyers, has spoken recently about employment verification, the I-9 process, and “getting your house in order” in light of the recent ICE raids on companies hiring undocumented workers. An MP3 recording of Mr. Paparelli speaking on this issue is available at the following link: Angelo Paparelli talks about immigration labor laws 5:40 MP3. Mr. Paparelli will be speaking on June 12, 2008, in Pentagon City on the topic, “New Corporation = New Visa?” (http://www.entertheusa.com/events/0803_pentagon.pdf) and will speak on a panel on corporate compliance at the annual American Immigration Lawyers Association’s conference to be held June 25-28, 2008, in Vancouver, British Columbia, Canada.

H. Ronald Klasko (bio: http://www.abil.com/lawyers/lawyers-klasko.cfm), the founding partner of the immigration law firm Klasko, Rulon, Stock & Seltzer LLP, recently spoke on “Trends in Immigration: Impact on Higher Education” at the College and University Professional Association for Human Resources’ Public Policy Forum in Washington, D.C. Mr. Klasko discussed immigration legislative prospects, employer compliance and best practices involving verifying the status of a university’s workforce, dealing with PERM labor certification matters, and the impact of the immigration application backlog. University human resources directors from around the U.S. attended the forum.

Webinar on EB-5 visa. Panelists Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) and Carolyn S. Lee will discuss the terrain and the pitfalls of the EB-5 visa, with a “how to” focus. This webinar is intended to impart an understanding of the EB-5 visa from both legal and practical perspectives. More information on the webinar and registration is available at https://millermayerevents.webex.com/mw0305l/mywebex/default.do?nomenu=true&siteurl=millermayerevents&service=6&main_url=https%3A%2F%2Fmillermayerevents.webex.com%2Fec0600l%2Feventcenter%2Fevent%2FeventAction.do%3FtheAction%3Ddetail%26confViewID%3D277932350%26siteurl%3Dmillermayerevents%26%26%26. If you have any questions, e-mail immig@millermayer.com.

Poorvi Chothani (bio: http://www.abil.com/lawyers/lawyers-chothani.cfm) was quoted recently in the Economic Times/India Times on visa hurdles in India. She noted that nationals from sensitive countries like Pakistan, Bangladesh, and China have more difficulty getting work visas. “Last year, in a span of two months, we helped a U.S. bank with back-office operations in India with about 18 business visas for their personnel from at least four jurisdictions. In our experience, the maximum applicants have been from the banking, investment and private equity sectors. Some have been from the technology and ITeS sectors,” Ms. Chothani said. The full text of the article is available at http://economictimes.indiatimes.com/News/News_By_Industry/Indl_Goods__Svs/articlelist/13357688.cms.

http://economictimes.indiatimes.com/articleshow/2976676.cms

Back to Top