March 2008
Fines, Prosecutions for Hiring Undocumented Workers to Increase
On February 22, 2008 it was announced that fines for hiring undocumented workers will increase. The Department of Homeland and Security and Department of Justice are also working on increasing “criminal prosecutions against the most egregious employer offenders.” The fines will be implemented starting March 27, 2008. The minimum penalty will increase to $375 for knowingly hiring an undocumented worker. For a first-time offender, the maximum fine will increase to $3,200, and repeated violation fines will increase to $16,000. For more information please visit: http://www.dhs.gov/xnews/releases/pr_1203722713615.shtm.
Some Employment Visa Number Cut-Off Dates Will Advance in April
The India employment-based second preference category, which was unavailable in March, will have a December 1, 2003 cut-off date in April. The employment-based third preferences category will move to February 8, 2003 for China; October 1, 2003 for India and Mexico; and July 1, 2005 for the Philippines. Other Worker categories will advance to March 1, 2002.
DHS Signs Visa Waiver Program Agreements with
Slovakia, Hungary, and Lithuania
This Visa Waiver Program currently has 27 members from Asia and Europe. On March 17, 2008, Slovakia, Hungary, and Lithuania have been put on track for visa-free travel to the U.S., and given the potential to become VWP members later this year.
In August of 2007, the Department of Homeland Security (DHS) was authorized by Congress to reform the VWP that strengthens security arrangements of the current VWP members & expands the conditions for future members. In the future, VWP travelers will have to provide information electronically that will then generate a travel authorization number. Complete details of the reform will be announced at a later dat
Update: Biometric changes for Re-entry Permits
and Refugee Travel Documents
USCIS has provided revised instructions effective March 5, 2008 for the Travel Document, Form I-131. The instructions require applicants to provide biometrics for background and security checks at a USCIS Application Support Center (ASC).
Those who are ages 14 through 79 will be required to provide biometrics before leaving the United States. Once the proper form is received, USCIS will mail a receipt and an ASC notice of appointment. Applicants should apply as soon as possible to allow sufficient time to attend the ASC appointment and obtain their travel documents.
The $80 biometrics service fee will be in effect for those applying for re-entry and refugee travel documents. A fee waiver request can be submitted with adequate documents demonstrating their lack of ability to pay. The I-131 fee ($305.00) cannot be waived.
The instructions also supply information on how to expedite the process, should an applicant wish to do so. If this route is taken, the applicant needs to supply reasoning for the advanced document process.
The revised instructions allow USCIS to keep a strong hold on the congressional mandates for secure documents. This new practice will help USCIS to provide a more secure documenting process to fight fraud and abuse.
USCIS Announces 18-month Extension of Temporary Protected
Status for Nationals of Somalia
The extension of TPS for nationals of Somalia or aliens having no nationality who last habitually resided in Somalia) is through to September 17, 2009. This provides those who are already of TPS to maintain their status and live and retain work. The extension will begin March 17, 2008.
There will be a 60 day re-registration period beginning March 12, 2008 during which Nationals of Somalia will have time to re-register. The last day for this registration ends on May 12, 2008. Applicants are advised to apply as soon as possible. Information discussing how one can file has been published in the Federal Register, vol. 73, No. 49, as well as online at: http://www.uscus.gov/.
Submission of Form I-821 and Form I-765 must be submitted by the applicant. Should one only be seeking to re-register, he or she should submit only the I-765 and will not be subject to the I-765 fee. Those who are seeking employment through September 17, 2009 must submit the application fee with their I-765 form. Those re-registrants age 14 and older and re-registrants under 14 requesting EAD will be subject to a biometric fee.
It is possible to request a fee waiver for any of the service fees. Supplemental documentation for the waiver will be required. An applicant will be rejected should he or she not submit required fees or a properly documented fee waiver.
USCIS has a toll-free number: 1-800-375-5283 for further information. TPS forms are available online at http://www.uscis.gov/ or calling the USCIS Forms line, 1-800-870-3676.
February 2008
Naturalization and Adjustment of Status Petitions Processing Times Increase
This past summer, U.S. Citizenship and Immigration Services (USCIS) saw a surge in applications for naturalization and adjustment of status. It is believed this is partly because of applicants trying to get documents turned in before the USCIS fee increased in late July 2007. The surge has resulted in drastic backlogs. The average processing times for naturalization applications increased from seven or less months to approximately 18 months, while the processing times for family-based adjustment of status increased from six or less months to 12 months. In July and August of 2007, USCIS received nearly 2.5 million applications and petitions. This is double the number typically received during any two-month period. The number of applications for employment and family-based adjustment of status increased by 76 percent. USCIS hopes to reduce processing times to six months by the end of the third quarter of the 2010 fiscal year. To do this, USCIS plans to add several thousand new employees and hire back approximately 700 retired federal government employees.
10 Fingerprints at Boston Airport
On January 22, 2008, The Department of Homeland Security (DHS) announced that it has begun collecting 10 fingerprints from international visitors arriving at Boston Logan International Airport (Logan). This is part of the upgrade from two- to 10- fingerprint collection under the US-VISIT program. On average, nearly 2,000 international visitors complete the US-VISIT biometric procedures at Logan Airport. The US-VISIT program includes checks of a visitor’s fingerprints against DHS and FBI records of criminals and known or suspected terrorists. Washington Dulles International Airport and Hartsfield Jackson Atlanta International Airport already implemented the 10-fingerprint collection. Chicago O’Hare International Airport, San Francisco International Airport, George Bush Houston Intercontinental Airport, Miami International Airport, Detroit Metropolitan Wayne County Airport, Orlando International Airport, and John F. Kennedy International Airport in New York will soon be using the 10 fingerprint system. The remaining air, sea, and land ports will transition to collecting 10 fingerprints by the end of 2008.
Travel Documentation Reminder
The Department of State (DOS) issued a reminder that all persons traveling by air between the United States and Canada, Mexico, Bermuda, and the Caribbean region must present a valid passport or travel document to enter/re-enter the U.S. Also, effective January 31, 2008, U.S. and Canadian citizens traveling by land and sea between the U.S. and Canada will need to present a Western Hemisphere Travel Initiative (WHTI)-compliant document or a government-issued photo ID.
At a later date which has not been announced, DOS will employ all requirements of the land and sea phase of WHTI. This will require most U.S. citizens entering the U.S. at sea or land ports-of-entry to have either a U.S. passport, U.S. passport card, a trusted traveler card (ie: NEXUS, FAST, or SENTRI), a valid Merchant Mariner Document (MMD) when traveling with maritime business, or a valid U.S. Military identification card when traveling on official orders. (Active duty members of the U.S. Armed Forces are exempt from the passport requirement.) This requirement does not apply to U.S. citizens traveling directly to or from a U.S. territory. Starting February 1, 2008, U.S. citizens may begin applying for the new, limited-use, wallet-sized passport card. This will only be valid for land and sea travel between the U.S. and Canada, Mexico, the Caribbean region, and Bermuda.
Approval of I-485 (Green Card) Due to FBI Name Check Delay
U.S. Citizenship and Immigration Services (USCIS) performs background checks on all people seeking benefits from U.S. CIS. This is to “enhance national security and to ensure the integrity of the immigration process.” Previously, the FBI name check had to be concluded and resolved before the adjustment of status applications could be approved.
As of February 4, 2008, USCIS can approve adjustment of status applications (Form I-485) and continue with the green card issuance if the FBI name check has been pending for more than 180 days. This is also true for Applications for Waiver of Ground of Inadmissibility (Form I-601), Applications for Status as a Temporary Resident Under Section 245A of the Immigration and Nationality Act (Form I-687), and Applications to Adjust Status from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603) (Form I-698).
However, the new policy mentioned above does not apply to applications for naturalization (Form N-400). For these cases, the FBI results must be received prior to adjudication.
Please note that under this new policy, if any negative or unfavorable information is received with the FBI name check after the application is approved, USCIS may revoke the approval and decide if removal proceeding is necessary.
ICE System to Analyze Suspicious Relationships and Patters
U.S. Immigration and Customs Enforcement (ICE) plans to launch the “ICE Pattern Analysis and Information Collection (ICEPIC)” System soon. This system will assist investigators by recognizing suspect identities and determining possible non-obvious relationships among individuals and organizations. The databases include those that track foreign students and visitors, immigrants, criminals, and suspected terrorists. All ICEPIC activity is connected with ongoing law enforcement investigations. This system is not used to reveal a “predictive pattern,” but instead develop leads and intelligence for active and new investigations.
January 2008
Higher Fees for Immigrant and Nonimmigrant Visas, and Mexican BCCs
As of January 1, 2008, the Department of State published an interim final rule that raised the application fees for non-immigrant machine readable visas (MRV), Border Crossing Cards (BCC), and immigrant visas. The fee for MRVs and BCCs has increased from $100 to $131. For immigrant visas, the fee is now $355. Applicants who have already paid the $100 application fee and who will appear for a visa interview on or before January 31, 2008, will not be obligated to pay the additional $31 fee. However, any applicants who have already paid the $100 application fee, but are not scheduled for an interview on or before January 31, 2008, will be required to pay the additional $31 before they will be interviewed.
The Department of State is increasing the fees due to increased security measures and Federal Bureau of Investigation (FBI) fee collection mandates for the use of their Integrated Automated Fingerprint Identification System (IAFIS) and their Security Advisory Opinion (SAO) process to check visa applicants.
India Second Preference Cut-Off Date Retrogresses
Due to the high applicant demand to change status through the U.S. Citizenship and Immigration Services, the Department of State declared that it has been necessary to retrogress the India employment second preference cut-off date. In the next few months, the DOS believes that this category’s annual limit will be reached, causing it to become “unavailable” for the rest of the 2008 fiscal year. However, employment second preference cut-off dates for those other than India and China may not retrogress until September 2008. The DOS also believes that the Indian and Chinese employment first preference could possibly become unavailable in February 2008.
New I-9 Verification Forms Now Required
As of December 26, 2007, employers who do not use the revised Employment Eligibility Verification Form (I-9) with the revision date of 06/05/07 at the bottom right corner of the form will be subject to penalties.
Department of State’s Final Passport Card Rule
Beginning February 1, 2008, the Secretary of Homeland Security and the Secretary of State are required to develop and execute a plan that will require most travelers entering the U.S. to present documents that are considered to be sufficient evidence of identity and citizenship. The DOS and DHS will also be obligated to make the process better for the people living in border communities who frequently travel.
In a final rule by the DOS, it was explained that passport books need a signature in order to be valid, but that the passport card does not need a signature to be valid. It also states that people who ask and are eligible for a no-fee passport will only receive a passport book.
Land And Sea Ports-of-Entry Are No Longer Accepting Oral Declarations of Citizenship
Beginning January 31, 2008, all travelers entering the U.S. who are citizens of the U.S., Canada, or Bermuda must present documents to the Customs and Border Protection (CBP) officer at any land or sea port-of-entry (POE) to prove their citizenship (i.e. a birth certificate) and their identity (which should be a government issued document such as a driver’s license). Currently, these travelers can be admitted to the U.S. on an oral declaration depending on the circumstances, but after January 31, 2008, oral declarations will no longer be accepted. CBP has the authority to request further documentation and to make suitable individual exceptions.
New Teletech Call Appointment System Adopted By USCIS Field Office In Ciudad Juarez
As of December 17, 2007, U.S. Citizenship and Immigration Services (USCIS) declared that immigrant visa applicants looking to file an application for waiver of inadmissibility (Form I-601) with the USCIS field office in Ciudad Juarez can now use the Teletech Call Center to make an appointment. This change from the previous use of the pilot InfoPass program is a joint effort between the Department of State and USCIS to give better customer service with more efficient appointment scheduling.
The Department of State currently uses the same Teletech Call Center in Mexico for setting up nonimmigrant visa interviews at U.S. Consulates in Mexico. In order to use the Teletech Call Center, a minimal fee must be paid. To schedule an appointment through the call center, applicants must wait at least three business days after their visa interview before calling.
Final Rule on Exchange Visitor Program Sanctions and Terminations
On January 22, 2008, the Department of State (DOS) completed its proposed rule about exchange visitor program sanctions and terminations that was published on May 31, 2007. Some edits to the rule included two new reasons for sanctioning or terminating an exchange visitor program. One includes actions that may hinder national security. The other is damaging U.S. foreign policy objectives. The DOS no longer needs to determine whether or not a violation was willful or negligent prior to enforcing sanctions.
December 2007
Electronic Verification Requirement Causes Visa Delays
The Department of State has announced that consular posts are now able to access the details of approved nonimmigrant visa petitions via a new system called “PIMS” (Petition Information Management Services). Therefore, The Kentucky Consular Center (KCC) has concluded e-mailing scanned copies of approved petitions to posts, instead relying on PIMS. This applies to the H, L, O, P, and Q nonimmigrant petition-based categories. The PIMS Petition Report contains a record of all petitioners recorded by the KCC as having approved petitions since 2004, and in many cases contain information from KCC’s Fraud Prevention Unit. This unanticipated change has resulted in four-day delays at many pasts between the interview date and the actual visa issuance for the categories mentioned above.
10 Fingerprints Requirement at Ports of Entry
The Department of Homeland Security (DHS) is now requiring 10 fingerprints, instead of the two required in the past, from international visitors who fly into Washington Dulles International Airport. Next spring, this will expand to the following nine airports:
- Boston Logan International Airport
- Chicago O’Hara International Airport
- Detroit Metropolitan Wayne County Airport
- Hartsfield-Jackson Atlanta International Airport
- George Bush Houston International Airport
- Miami International Airport
- John F. Kennedy International Airport (NYC)
- Orlando International Airport
- San Francisco International Airport
DHS plans to deploy this fingerprint system to 107 other airports by the end of 2008, and to also begin this system at other ports-of-entry.
I-765 Electronic Check Conversion
The Department of Homeland Security (DHS) is now converting funds from checks into electronic funds for the Application for Employment Authorization (From I-765). DHS instructs that the applicant will not get the original check back. DHS will destroy the check, but will retain a copy. If, for whatever reason, the electronic fund transfer cannot be process for technical reasons, the copy will be processed in place of the original check.
Final Passport Rule Issued
A final rule has been issued by the Department of State (DOS) that reorganizes, restructures, and updates passport regulations. The revisions generally do not depart from the current policy. Instead, DOS intent was to bring greater clearness to the current policy and practice and make the information easier to access.
Retrogression of China and India second Preference Cut-Off
The Department of State’s (DOS) Visa Office announced that the China-mainland born and India employment-based second preference cut-off dates retrogressed in December. This is a direct result of extraordinarily heavy applicant demand for numbers. DOS said not to rule out addition retrogression during the second quarter of the fiscal year (January).
Based on current demand patters, DOS made the following projections:
- Employment Preferences – Worldwide and Philippines:
- First and Second Preferences: Will remain current.
- Third Preference: Slow forward movement.
- Third “Other Workers” Preference: Little if any forward movement is expected. Possible retrogression.
- Employment Preferences – China-mainland Born and India
- First: At some point during the fiscal year, because of the heavy demand, the establishment of a cut-off date may be required.
- Second: Further retrogression cannot be ruled out.
New F-1 and M-1 SSN Applications Employment Start Date Restrictions
Before November 2007, there were no employment start date restrictions on applying for a social security number (SSN). However, the Social Security Administration (SSA) has updated their operations manual system to provide new regulations on verification requirements for F-1 and M-1 students applying for a SSN.
Under these new restrictions, the SSA will not process an application for a SSN for non-EAD based F-1 student employment (CPT and on-campus employment) if it is more than 30 days in advance of the scheduled employment start date. For EAD-based F-1 or M-1 employment, the employment start date on the EAD must have been reached before the SSA will process the SSN application.
November 2007
Crack Down on PERM Fraud/Increase in Audits
Effective July 16, 2007, the Department of Labor (DOL) required employers to pay the costs of applications filed under the Program Electronic Review Management (PERM) program. Many legal experts agree that the risks are very high for both employers and attorneys that do not follow this final rule. According to one Los Angeles-based immigration attorney, the DOL is taking this “very seriously and are willing to consider any attempt to get around the rule as fraud.” There have been suggestions stating that the DOL will increase their audits to show they are serious about stopping this fraud. On the optimistic side, wait times for certification have been drastically reduced. However, if audit frequency continues to climb, processing times will climb once again.
“New” Form I-9
On November 7, 2007, U.S. Citizenship and Immigration Services (USCIS) released a new version of the I-9 Employment Eligibility Verification. The new form will go into effect December 7, 2007. The amended form contains an updated list of acceptable identity and employment authorization documents that reflect current policies. Employers are required, within three days of hiring a new employee, to examine original documents presented by the employee, and then ensure that those documents confirm the employee’s identity and employment authorization.
Processing of Backlogged Immigration Cases by USCIS
U.S. Citizenship and Immigration Services (USCIS) faces a hefty backlog of immigration cases because of the fee changes that led to a rush in applications filed ahead of the fee increase. This, combined with the confusion regarding the availability of employment-based categories for filing adjustment of status applications and fears that employment-based visa numbers would no longer be available for the remainder of the fiscal year led to the backlog. The December 2007 Visa Bulletin shows that there has been no forward movement of the employment-based category cut-off dates, and a retrogression has occurred for Indian and Chinese natives in the second preference category. The Department of State is warning that further retrogression may be possible later in the fiscal year. USCIS’s Associate Director for Domestic Operations was quoated as saying that USCIS received over 2.5 million applications during July and August, including 300,000 employment-based adjustment applications. The Associate Director also noted that USCIS does not want a repeat of last year’s H-1B fiasco where the H-1B numerical limit for the 2008 fiscal year was met the first day applications were received. USCIS is considering implementing a pre-registration option. This would allow applicants to file a more limited application. Once the applicant succeeds, then the remaining portions would need to be completed. USCIS is strongly urging employers to not file multiple petitions for one worker based on different criteria.
Readmission for Certain H and L Adjustment Applications Streamlined by USCIS
On November 1, 2007, U.S. Citizenship and Immigration Services (USCIS) published a final rule to streamline the readmission of certain H and L nonimmigrants who have applied for adjustment of status to become a permanent resident. This rule removes the requirement that they show a receipt notice from their I-797 for their adjustment applications when returning to the U.S. from traveling abroad. This rule affects those under the H-1B classification for specialty occupation workers, the H-1C classification for certain registered nurses, L-1A classification for certain intracompany transferees who are managers of executives, the L-1B classification for specialized knowledge workers, and their dependents. Even though those affected no longer need to provide this, they still must be able to provide evidence to a U.S. Customs and Border Protection Inspector at the port of entry that they are:
- Still qualified for H-1 or L-1 status,
- Coming to continue employment with the same employer, and
- In possession of a valid H-1 or L-1 visa if mandatory.
Termination of TPS for Burundi Beneficiaries
The temporary protected status (TPS) has been terminated for Burundi beneficiaries by Homeland Security effective May 2, 2009. The nationals of Burundi (or aliens having no nationality who last habitually resided in Burundi) with TPS need to re-register. However, registration is limited to persons who have previously registered for TPS and those whose application have been granted or remains pending. Burundians who have not established TPS previously or have no application pending may not file under Late Initial Filing (LIFs) provisions. The 60-day re-registration period begins October 29, 2007 and will remain in effect until December 28, 2007. Given the timeframes, Homeland Security recognizes that there is a possibility that re-registrants may not receive their new Employment Authorization Document (EAD) until after their current EAD expires on November 2, 2007. Therefore, the validity of current EADs issued under the TPS designation of Burundi has been automatically extended for six months, through May 2, 2008. New EADs with the May 1, 2009 expiration date will be issued to eligible TPS beneficiaries who timely re-register and apply for an EAD.
October 2007
Diversity Lottery Application
The DV-2009 green card lottery registration period began on Wednesday, October 3. This registration period is open for two months until noon (Eastern Standard Time), Sunday, December 2, 2007. The Congressionally mandated Diversity Immigrant Visa Program (a.k.a. “the Green Card Lottery”) makes up to 55,000 permanent resident visas available annually.
Applicants do not need OIS or an attorney to apply. However, if you choose to file without professional help, read the instructions very carefully as you will be disqualified if there are any technical errors. The Department of State will notify successful Diversity Visa applicants by letter, not e-mail.
Please note the following countries are NOT eligible to apply for the program: Brazil, Canada, China (mainland born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, Russia, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
If you are interested, please visit the State Department Web site at http://www.dvlottery.state.gov.
Internet Searches Being Performed on Applicants by Border Agents
It has been reported that immigration judges, adjudicators, and border agents perform internet searches for an applicant’s name on sites such as Google and MySpace and look for such things as articles and letters to the editor in order to question the applicant about them. Some people have even been detained or denied entry because of the information that was found out about them, such as use of a controlled substance.
TPS Reminder for El Salvadoran Nationals
U.S. Citizenship and Immigration Services (USCIS) sent a reminder on October 12 that nationals of El Salvador eligible for Temporary Protected Status (TPS) must file a re-registration application by October 22, 2007 in order to maintain TPS benefits such as employment authorization and protection from being removed from the United States. So far, about 126,000 Salvadorians out of the approximate 230,000 who may be qualified for TPS re-registration have filed applications.
On September 9, 2007, an 18 month TPS extension for nationals of El Salvador went into effect and will continue through to March 9, 2009. There is a 60 day re-registration period which began on August 21, 2007 and will end on October 22, 2007.
In order to re-register for the TPS extension, the following must be submitted:
- Form I-821 without the filing fee,
- Form I-765 with fee if requesting a TPS related EAD or an extension of a TPS related EAD, and
- A biometric fee if the beneficiary is 14 years of age or older or is under 14 and requesting an EAD.
Applicants who are requesting an EAD may request that the fee for the I-765 and biometric fee be waived in accordance with 8 CFR 103.7.
USCIS Implements a Photo Screening Tool to Help Employers
Spot Identity Fraud
On September 25, The United States Citizenship and Immigration Services (USCIS), enabled employers who use the agency’s E-Verify Program (previously known as the Basic Pilot /Employment Eligibility Verification Program) to use an innovative photo screening tool in order to help them detect certain types of identity fraud in the employment eligibility procedure.
E-Verify is a free Web-based system run by USCIS, the Department of Homeland Security (DHS), and the Social Security Administration (SSA) that allows participating employers to electronically confirm that a newly hired employee is eligible for employment. This new photo screening tool will now allow employers to compare photos from an EAD or Permanent Resident Card being used to complete the Employment Eligibility Verification Form (I-9), to a photo on the E-Verify system. This tool will help employers verify whether or not the presented documents are legitimate.
Effective September 17, all employers who are currently using the E-Verify system are required to take a refresher tutorial that will teach them how to use this new tool. Employers who register for E-Verify after this date will utilize an updated manual, tutorial, and memorandum of understanding to study how to use the photo tool.
Reporting Time for U.S. Passport Services have been Restored
The processing time for passport applications have been restored according to the Department of State. For standard applications it will take the normal six to eight weeks, and for expedited requests it will take no more than three weeks.
Over 16 million passports were issued during the 2007 fiscal year as opposed to the 12.1 million that were issued during the 2006 fiscal year. Many Department staff members at all the passport agencies have worked very hard to reduce the setback in the processing time which arose earlier during the year.
In order to prevent these types of delays from happening again, and to meet the growing demand for passports, the Department of State plans to expand passport agencies and hire more staff as passport specialists in the near future. Eventually, they will build more passport facilities in new, strategic locations.
New Naturalization Test Announced by USCIS
On September 27, U.S. Citizenship and Immigration Services (USCIS) announced the 100 questions and answers that will comprise the civics component of the new naturalization test that will be administered to citizenship applicants starting in October 2008. The civics items on the new naturalization test were selected after USCIS, a panel of history and government scholars, and English as a Second Language teachers conducted a thorough review of the responses to the 142 items on the pilot test taken by more than 6,000 citizenship applicant volunteers. The revised test will help reinforce assimilation efforts by stressing fundamental concepts of American democracy, basic U.S. history, and the rights and responsibilities of citizenship. USCIS has posted the 100 new questions and answers, the reading and writing vocabulary lists, a side-by-side comparison of the current and new test, answers to frequently asked questions and other information about the new test on the USCIS Web site.
Fighting to Keep Returning H-2B Workers Exempt
from the National Cap
Senators Barbara Mikulski (D-Md.) and John Warner (R-Va.) introduced the “Save our Small and Seasonal Business Act of 2007” which helps keep these types of businesses from taking a major cut to their labor force. The “Save our Small and Seasonal Businesses Act” does this by exempting returning H-2B seasonal workers from counting towards the national annual cap of 66,000 people. Even though this exemption expired on September 30, Senator Mikulski has been fighting to make it permanent.
September 2007
Temporary WHTI Travel Ends September 30, 2007
On September 30, 2007 at midnight the temporary Western Hemisphere Travel Initiative (WHTI) accommodation will end. This accommodation allowed U.S citizens to travel by air within the Western Hemisphere using official proof of passport application receipt issued by the Department of State. Beginning October 1, 2007, U.S. citizens traveling by air to Canada, Mexico, the Caribbean, and Bermuda must present a passport or other WHTI-compliant documents to enter or leave the U.S. It is recommended that U.S. citizens check the specific documentations required for their destination country. In the case of U.S. citizens who left the country under this WHTI travel accommodations prior to October 1, they will be readmitted with the same documents if returning to the U.S. after September 20.
EAD Extension for Liberians
An 18 month automatic extension of Employment Authorization Documents (EAD) has been granted to Liberians and persons without nationality who habitually resided in Liberia who have been provided Deferred Enforced Departure (DED) as beneficiaries of Temporary Protected Status (TPS). This becomes effective as of 12:01 a.m. on October 1, 2007 and will expire on March 31, 2009. A copy of this notice from the Federal Register presented in concurrence with an EAD expiring on September 30, 2007 with “A-12” or “C-19” listed under “Category” on the face of the card serves as evidence of a covered individual’s continued employment authorization through March 31, 2009. USICS will not issue interim EADs at local district offices.
Tips for Mexican Students Entering the U.S.
U.S. Customs and Border Protection Port Director of the Calexico, California ports of entry released the following tips for F-1 students attending grade school, high school, or college to follow in advance of entry into the U.S.:
- Verify that your passport (with an F-1 student visa) is valid.
- Verify that your I-20 form is properly endorsed by the designated school official.
- Verify you have an I-94 document with your passport.
- Be prepared to present yourself at the pedestrian permit office to process your recently obtained F-1 student visa, if applicable.
- Upon “application for entry,” have your entry documents and school identification ready to present to the office.
Extension of El Salvador TPS
The designation of El Salvador for temporary protected status (TPS) has been extended for 18 months to March 9, 2009 from its current expiration date of September 9, 2007. Thus, the validity of employment authorization documents (EADs) issued under the TPS designation for six moths, through March 9, 2008, is automatically extended. New EADs with the March 9, 2009, expiration date will be issued to eligible TPS beneficiaries who timely re-register and apply for an EAD. The 60-day re-registration period began August 21, 2007, and will remain in effect until October 22, 2007.
Final Rule on “No Match” Obligations
Effective September 14, 2007, U.S. Immigration and Customs Enforcement is amending regulations regarding the unlawful employment of unauthorized aliens. The amended regulation discusses the legal obligations an employer has when the employer receives a no-match letter from the Social Security Administration (SSA) or a letter regarding employment verification forms from the U.S. Department of Homeland Security (DHS). This amendment also illustrates “safe harbor” procedures that can be followed to be certain that Homeland Security will not use the letter as part of an allegation that the employer had knowledge the employee in question was an alien not authorized to work in the U.S. The “safe harbor” procedures include trying to resolve the no-match and verifying again the employee’s identity and employment authorization through a specified process. Two examples were added to the rule regarding the current regulation’s definition of “knowing” to illustrate situations that may lead to a finding that an employer had such constructive knowledge. One such example includes an employer’s failure to take reasonable steps in response to receiving written notice from the Social Security Administration that the combination of name and social security number do not match agency records. The other example includes that the employer received written notice from Homeland Security that the status or employment-authorization documentation presented or referenced by the employee in the I-9 was not assigned to the employee.
Under the existing law, the IRS can fine employers $50 for each failure to file and complete an accurate wage reporting form (W-2), up to a maximum of $100,000 or $250,000. Additionally, ICE has indicated that it has been pursing criminal prosecutions of employers who fail to comply with this law.
Tips on Verification and Current I-9s
Whether a U.S. citizen or a foreign national, all new hires much complete section 1 of the Form I-9 on the first day of employment. Section 2 of the I-9 must be completed within the first three days of hire. All original documents of identity and employment authorization need to be examined carefully, noting the document numbers and certifying under the penalty of perjury that all documents appear to be genuine and relate to the new hire. However, employers must refrain from engaging in prohibited acts of discrimination. Cautious employers should create and follow steps to confirm that all compliance obligations under immigration laws are fulfilled. For example, employers should perform voluntary audits of all or a sample of I-9s to measure compliance practices. A reminder system should be established for re-verification of employment eligibility for foreign employees who have time-limited work authorization. Prompt action should be taken by the employer if notified by the Social Security Administration. Finally, if numerous no-match letters are received, employers should re-verify the entire workforce, but take precautions in avoiding unlawful immigration-related discrimination.
Future Hires
- Set up a system for future Form I-9s.
- All new hires need to complete Section 1 of the I-9 on the first day of employment.
- The rest of the I-9 should be completed with in three days of the first day of work.
- Consider pre-filling all employers’ information on the I-9.
- Do not accept copies of work or identity documents.
- All new hires should complete the I-9s in person before a company official or authorized agent.
Proposal of Replacement Green Cards Without Expiration Date
A new rule has been proposed by the U.S. Citizenship and Immigration Services (USCIS) that would require nearly 750,000 lawful permanent residents carrying green cards without an expiration date to replace their existing cards. This change would allow USCIS to issue more secure permanent resident cards, update cardholder information, conduct background checks, and electronically store permanent residents’ fingerprint and photographic information. Under this proposed rule, those permanent residents affected would need to file and Application to Replace Lawful Permanent Residence Card (Form I-90). The I-90 requires applicants to provide current biographic and biometric information.
Service Center and Lockbox Receipting Update
The U.S. Citizenship and Immigration Services (USCIS) announced an increase in the number of applications filed. This has resulted in a “front log” of cases awaiting data entry. Because of this, data entry for specific form types will be prioritized. Any delays experienced in data entry and fee receipting will not affect change or status or extension of stay eligibility, assuming all other eligibility requirements are satisfied. The actual received date will be honored and recorded on the receipt notice. All Premium Processing Services will continue to be processed within 15 days.
Online Application Launched for Cross-Border Travel Program
Travelers wishing to apply for Nexus are now able to do so through an online application system. Nexus is a program between the U.S. and Canada. All applicants voluntarily undergo a background check, in-person interview, fingerprinting, and pay a $50 five-year membership fee. Under this new system, the application and membership fee can be completed online. Approved members have access to specific commuter lanes, airport kiosks, and telephonic marine reporting that allows expedited processing. Benefits of the new system include expediting the entire application process and streamlining processing times. However, it should be noted that individuals who have already mailed their application to the Canada Border Services Agency should continue with this processes.
The Nexus card has been proposed as an accepted alternative to a passport under new travel document requirements, expecting to go into effect for land and sea crossings as early as summer 2008. As off January 23, 2007, the Nexus card became an acceptable alternative to a passport for air travel.
August 2007
Procedures for Employers Who Receive a No-Match Letter
Effective September 14, 2007, U.S. Immigration and Customs Enforcement is amending regulations regarding to the unlawful employment of unauthorized aliens. The amended regulation discusses the legal obligations an employer has when the employer receives a no-match letter from the Social Security Administration (SSA) or a letter regarding employment verification forms from the U.S. Department of Homeland Security (DHS). This amendment also illustrates “safe harbor” procedures that can be followed to be certain that Homeland Security will not use the letter as part of an allegation that the employer had knowledge the employee in question was an alien not authorized to work in the U.S. The “safe harbor” procedures include trying to resolve the no-match and verifying again the employee’s identity and employment authorization through a specified process. Two examples were added to the rule regarding the current regulation’s definition of “knowing” to illustrate situations that may lead to a finding that an employer had such constructive knowledge. One such example includes an employer’s failure to take reasonable steps in response to receiving written notice from the Social Security Administration that the combination of name and social security number do not match agency records. The other example includes that the employer received written notice from Homeland Security that the status or employment-authorization documentation presented or referenced by the employee in the I-9 was not assigned to the employee.
The timing of actions under final rules is as follows:
Employer received letter from SSA or DHS indicating mismatch of employee, name and Social Security number - Final Rule: Day 0
Employer checks own records, makes any necessary corrections of errors, and verifies corrections with SSA or DHS - Final Rule: 0-30 Days
If necessary, employer notifies employee and asks employee to assist in correction - Final Rule: 0-90 Days
If necessary, employer corrects own records and verifies correction with SSA or DHL - Final Rule: 0-90 Days
If necessary, employer performs special I-9 procedure - Final Rule: 90-93 Days
Under the existing law, the IRS can fine employers $50 for each failure to file and complete and accurate wage reporting form (W-2), up to a maximum of $100,000 or $250,000. Additionally, ICE has indicated that it has been pursing criminal prosecutions of employers who fail to comply with this law.
Direct Filing for More USCIS Forms Announced
The United States Citizenship and Immigration Services (USCIS) announced new instructions for “Direct Filing” of further immigration forms that were switched into the “Bi-Specialization” initiative last year. Direct filing is defined as the process in which USCIS requires all applicants to file petitions and applications with the service center that will process the case. This is based on the place of temporary employment and/or place of residence. This goes into effect on July 30, 2007 to coincide with the date of the increase of USCIS fees. During the first 30 days of direct filing (from July 30 – August 28), no forms will be rejected that is incorrectly filed as long as the correct fees and all other requirements are met. Beginning on August 29th, forms that are filed with the incorrect filing location will be denied. The following forms are now included in the direct filing process:
Form I-129F … Petition for Alien Fiance(e)
Form I-131 … Application for Travel Document
Form I-140 … Immigrant Petition for Alien Worker
Form I-360 ... Petition for Amerasian, Widow(er), or Special Immigrant
Form I-485 … Application to Register Permanent Residence of Adjust Status
Form I-765 … Application for Employment Authorization
Form I-907 … Request for Premium Processing Services
Guidance on Social Security Number Mismatches
The Social Security Administration (SSA) has released new guidance on the return format for online social security number verification that will go into effect August 25. There are two internet verification options employers may use to verify that employee names and social security numbers match the SSA records. To verify new hires, an employer can verify up to 10 names and social security numbers per screen online and obtain instant results. Employers who need to verify entire payroll databases or are hiring a large number of works can upload up to 250,000 names and social security numbers overnight and receive the results on the next government business day. These options can only be used to verify current of former employees and for wage reporting, ie: Form W-2.
July 2007
Immigration Reform Bill Dies in the Senate
On June 28, in a procedural 46–53 vote, the Senate killed the bipartisan bill on comprehensive immigration reform. The bill would have established a provisional guest worker program and instituted a “points system” in place of many of the current employment-based visa categories. Those with education and experience, particularly in science, technology, engineering, and math fields, and those with English skills would have been favored under the bill. Also, this bill would have allowed many of the estimated 12 million undocumented immigrants currently residing in the United States the ability to eventually legalize their status. The H-1B cap on temporary professional worker would have increased from 65,000 to 115,000 for the 2008 fiscal year with a possible increase to 180,000 within the following years.
EB Numbers Open, Then Immediately Close
In mid-June, the Department of State published that all employment-based immigrant visa categories, except unskilled workers, were “current.” This included categories that had long-standing cut-off dates. However, on July 2, DOS announced that the sudden backlog reduction had resulted in the use of almost 60,000 Employment numbers. Because of this, immediate adjustments to sever previously announced cut-off dates had to be made. All CIS offices were notified that there would be no further authorizations in response to requests for Employment-based cases. All numbers available for the fiscal year 2007 annual numerical limitation have been made available. On the same day, CIS released that beginning July 2, all applications to adjust status (I-485) filed by aliens whose priority dates are not current would be rejected.
June 2007
USCIS New Fee Schedule
Form No. Description New Fees
I–90 ....... Application to Replace Permanent Resident Card ......... $290
I–102 ..... Application for Replacement/Initial Non-immigrant
.............. Arrival-Departure Record (I–94) …................................. $320
I–129 ...... Petitions for a Nonimmigrant Worker (H-1B).................. $320
I–129F .... Petition for Alien Fiance´ (e) ....................................... $455
I–130 ...... Petition for Alien Relative ........................................... $355
I–131 ...... Application for Travel Document .................................. $305
I–140 ...... Immigrant Petition for Alien Worker ............................. $475
I–191 ...... Application for Advance Permission to Return to
.............. Unrelinquished Domicile ............................................. $545
I–192 ...... Application for Advance Permission to Enter
................As a Nonimmigrant.................................................... $545
I–193 ...... Application for Waiver of Passport and/or Visa ............. $545
I–212 ...... Application for Permission to Reapply for
Admission
............... Into the United States After Deportation or Removal...... $545
I–360 ...... Petition for Amerasian, Widow(er), Special Immigrant ... $375
I–485 ...... Application to Register Permanent Residence
............... or Adjust Status ........................................................ $930
I–526 ...... Immigrant Petition by Alien Entrepreneur ..................... $1,435
I–539 ...... Application to Extend/Change Nonimmigrant Status ..... $300
I–600/I–600A ... Petition to Classify Orphan as an Immediate
..................... Relative/Application for Advance Processing or
.....................
Orphan Petition ................................................... $670
I–601 ...... Application for Waiver of Grounds of Inadmissibility ....... $ 545
I–612 ...... Application for Waiver of the Foreign Residence
.............. Requirement .............................................................. $545
I–687 ...... For Filing Application for Status as a Temporary
............... Resident ................................................................... $710
I–690 ..... Application for Waiver of Excludability ........................... $185
I–694 ..... Notice of Appeal of Decision ......................................... $545
I–695 .... Application for Replacement Employment
............. Authorization or Temporary Residence Card ................... $130
I–698 ..... Application to Adjust Status from Temporary to
.............. Permanent Resident ................................................... $1,370
I–751 ..... Petition to Remove Conditions on Residence ................ $465
I–765 ..... Application for Employment Authorization ..................... $340
I–817 ..... Application for Family Unity Benefits ............................ $440
I–824 ..... Application for Action on an Approved
.............. Application or Petition ................................................. $340
I–829 ..... Petition by Entrepreneur to Remove Conditions
.............. on Residence ............................................................ $2,850
I–881 ..... NACARA—Suspension of Deportation or Application
.............. for Special Rule Cancellation of Removal ...................... $285
I–914 ..... Application for T Nonimmigrant Status .......................... $0
N–300 ... Application to File Declaration of IntentioN ..................... $235
N–336 ... Request for Hearing on a Decision in
............. Naturalization Procedures ............................................ $605
N–400 ... Application for Naturalization ........................................ $595
N–470 ... Application to Preserve Residence for
............. Naturalization Purposes ............................................... $305
N–565 .... Application for Replacement of Naturalization
............... Citizenship Document ................................................ $380
N–600 .... Application for Certification of Citizenship ...................... $460
N–600K .. Application for Citizenship and Issuance of
............... Certificate under Section 322 ...................................... $460
.............. Biometric Services....................................................... $80
May 2007
Biometric Visa Program Transition
Beginning in April 2007, the State Department began deploying a ten fingerscan system to all visa issuing consular posts abroad. The ten fingerscan system is a change in the current standard of fingerscans of the Biometric Visa Program. Before this change, the standard was a two fingerscan. The Biometric Visa Program works directly with the US-VISIT Program of the Department of Homeland Security. The ten fingerscan standard will improve the State Department’s ability to detect and put a stop to those persons who are ineligible for visas since the accuracy rate in matching fingerscans will rise because of the conversion.
April 2007
J Visa Exchange Visitor Update
On March 13, 2007, consular posts received a cable from the Department of State’s Bureau of Consular Affairs reviewing specific aspects pertaining to J visa visitors. The cable is summarized as follows. J visa applicants should not be refused under 214 (b), immigration intent, merely because of the nature of the program. However, the consular officer must be content at the time of the visa application that the applicant intends to depart the U.S. when his/her program ends. Officers are required to make sure applicants possess satisfactory proficiency in the English language to be able to successfully participate in and fulfill the program. Visa interviews are conducted in English, but the applicant does not need to be fluent in English. Participants in graduate medical training programs must show proof of English competency. In addition, posts were reminded of the twelve-month and two-year bars on repeat involvement for professors and research scholars. An applicant under consideration for a research scholar or professor J visa will not be granted the visa if he/she has been in the U.S. on a J visa for more than six of the twelve months before the new program’s start date. Those in the short-term scholar category should be exempt from the twelve-month bar. J visa holders are not eligible to return to the U.S. under the professor or research scholar category for two years directly following the completion of the given-year J visa period.
Proposed Reform Bills
Legislation was proposed in the House of Representatives that would change the current H-1B cap from 65,000 to 115,000. The legislation would allow for market-based increases up to 180,000. Abolishing visa limits on certain foreign workers, The “Security Through Regularized Immigration and a Vibrant Economy (STRIVE) Act of 2007” (H.R. 1645) would benefit foreign workers with advanced U.S. degrees in science, technology, engineering, and math (STEM). Under the legislation, certain “extraordinary ability” workers in science and business would find it easier to acquire permanent residence status.
The new bill would also establish an H-2C temporary visa. This visa would be valid for three years and could be renewed for another three years. Under the H-2C visa, employers would have to try to employ U.S. workers first. Employers also would be banned from hiring new immigrant workers in areas with high unemployment rates for workers with no education past high school. The initial cap for the H-2C visa program would be 400,000, adjusted yearly.
In addition, a new guest worker program would be created under H.R. 1645. This program would be for eligible undocumented workers and their spouses and children in the U.S. The program would be under a conditional nonimmigrant visa and valid for six years. If the worker qualifies, he/she would have the opportunity to apply for permanent residence and eventual “earned citizenship.” However, the applicant would be at the end of the green card line and pay a large fine.
The Senate has also proposed legislation. The Securing Knowledge Innovation and Leadership (SKIL) Act of 2007 (S. 1083) was introduced. This bill addresses the restraining H-2B visa cap and would lessen the employment-based green card backlog. In addition to the SKIL Act, legislation was introduced to temporarily increase the number of visas granted to highly skilled workers (S. 1092).
A Senate vote on immigration reform may take place in June. Hearings in the House of Representatives are expected shortly.
Extension of Filing Time for “O” and “P” Workers
Currently, petitioners can file “O” and “P” nonimmigrant petitions under normal processing procedures up to one year before a scheduled event. Before this change, employers and agents were only allowed to file petitions up to six months in advance of events. “O” nonimmigrant visas pertain to persons with extraordinary abilities in the arts, science, education, business, or athletics or those with extraordinary achievement in motion picture or television production. “P” nonimmigrant visas concern persons who are internationally recognized as athletes or entertainers, and those who perform as artists or entertainers in culturally unique programs.
Extension Stickers: Honduras, Nicaragua, and San Salvador TPS
On March 9, 2007, USCIS announced that certain Hondurans, Nicaraguans, and Salvadorans eligible for temporary protected status (TPS), who are awaiting an employment authorization document (EAD) and have an application pending with USCIS, will receive a letter giving them the chance to have an extension sticker affixed to their EAD while their TPS application is being finalized. TPS re-registrants who are eligible will be mailed a letter telling them to proceed to a USCIS Application Support Center (ASC) to receive the duration extension sticker. The short-extension sticker would be valid through June 2007 for I-9 employment authorization verification purposes. USCIS began mailing letters on March 5, 2007. An applicant can check his/her application status and employment authorization online at https://egov.immigration.gov/cris/jsps/index.jsp with his/her receipt number, or the applicant can call the USCIS National Customer Service Center at 1-800-375-5283.
March 2007
Alien Physicians and the National Interest Waiver
A recent court decision on Schneider v Chertoff case affects all alien physicians whom apply for a National Interest Waiver (N.I.W.). This case helped to resolve and/or clarify some issues on eligibility of National Interest Waiver. US Citizenship and Immigration Services released temporary guidelines for these changes. OIS has summarized the most pertinent of these changes below.
- National Interest Waiver eligibility will now be extended to specialty care physicians practicing in designated medically underserved areas and no longer exclusively to primary care physicians.
- The five-year service obligation in a medically underserved area or VA facility is no longer constrained by the six-year limit and CIS is now given the authority to determine whether a physician is making “meaningful progress toward completing the N.I.W. employment obligation.”
- ALL periods of lawful employment in a medically underserved area or VA facility should be applied toward the five-year employment obligation.
- A physician will maintain his/her petition for Permanent Residence even if the geographic area later loses its designation as a medically underserved area.
- New guidelines specifically state that it is possible to file a concurrent N.I.W. waiver and Adjustment of Status Application even while on J-1 status.
The information provided above is not intended as legal advice and proper council should be sought for all individual cases. These new guidelines may be subject to modification and/or reversal. If you would like more information about these recent changes please call OIS at 210-567-6241.
TPS Details
Honduras, Nicaragua, El Salvador
USCIS has received roughly 80,000 temporary protected status (TPS) applications from Honduras and Nicaragua nationals, and approximately 70,000 of those cases have been approved. Nearly 236,000 TPS applications have been received from nationals of El Salvador, and USCIS has approved approximately 196,000 of these. The approved nationals should have received, or will be receiving, an approval notice. Also, those approved will be given either a notice to report to an Application Support Center for issuance of an extension sticker to extend Employment Authorization Documents (EADs) through July 2007 or a new EAD. Those nationals who have been denied should have already received or will be receiving denial notices. Notices are posted at http://www.uscis.gov/files/pressrelease/TPSMitch012607FS.pdf (Honduras and Nicaragua) and http://www.uscis.gov/files/pressrelease/RPSElSal_012607FS.pdf (El Salvador).
Options for Alien Physicians and the Waiver of the
Two-Year Home Residency Requirement
The Health Science Center and The Office of International Services would like to invite you to attend a special presentation by distinguished guest speaker Mr. H. Ronald Klasko of Klasko, Rulon, Stock &Seltzer, LLP.
Attorney H. Ronald Klasko specializes in Immigration and Nationality Law and is a former national President of the American Immigration Lawyers Association (AILA), is the author of a two-volume text on employer compliance and immigration laws, is one of the most frequently requested speakers on immigration law issues, and is one of only two immigration attorneys ever selected to receive the bar association's prestigious Founders Award. His lecture will focus on foreign physicians applying for Permanent Residency and the options available when applying for a waiver of the Two-Year Home Residency Requirement (PL 94-484 as amended).
The lecture will be held on Friday March 9, 2007
Academic Administration Building Rm. 110/112.
9:15 am - 11:30 am
Doors will open at 9:00 am.
If you would like to attend please respond to this email at blundo@uthscsa.edu to RSVP. Be sure to include your department and number of guests that will attend. Space is limited and will be filled on a first come first serve basis. If there is anyone who did not receive this email but would be interested in this event please have them call 567-6241 or email at blundo@uthscsa.edu .
We look forward to having you join us!
February 2007
Application Fee Increase
USCIS has proposed a large filing fee increase for many immigration-related applications. In addition, certain applications’ fees will be merged so applicants will pay a single fee instead of multiple fees. Some forms that will be affected by the proposed fee increase include:
I-129, petition for a Nonimmigrant Worker: currently, $190/proposed, $320;
I-140, Immigrant Petition for Alien Worker: currently, $195/proposed, $475;
I-485, Application to Register Permanent Residence or Adjust Status: currently, $325/proposed, $905 (for applicants 14 years of age or older – excluding certain refugees);
I-765, Application for Employment Authorization: currently, $180/proposed, $340;
N-400, Application for Naturalization: currently, $330/proposed, $595
Change of Address Online
USCIS has launched a new Web-based service that will allow most non-citizens to submit change-of-address information online. The new change-of-address Web site is http://www.uscis.gov/AR-11. All non-citizens must inform USCIS of any change in address within 10 days of a move. Before using the online system, you should have your USCIS receipt number, old and new address, names and biographical information of all family members for whom the applicant has filed a petition, and the date and location of the port of entry in which you last entered the U.S.
January 2007
Texas Department of Public Safety
Texas Department of Public Safety is now accepting a valid visa and I-94 as acceptable forms of identification for applying for a Texas ID. For additional information contact:
Department of Public Safety
1258 Babcock Rd, San Antonio, Texas 78201
Phone: (210) 737-1911, (210) 737-2272
