Immigration News & Analysis, Maggio & Kattar’s electronic immigration newsletter, offers up-to-date information and insightful commentary on U.S. immigration law and policy. Immigration News & Analysis is published monthly in an electronic format and is available via e-mail. Subscribe to Immigration News & Analysis.
PREMIUM PROCESSING TO BECOME AVAILABLE FOR CERTAIN I-140 PETITIONS ON JUNE 16
Special Alert • June 16, 2008
U.S. Citizenship and Immigration Services (USCIS) will begin accepting Premium Processing requests for employment-based immigrant visa petitions (I-140s) from certain H-1B workers on June 16, 2008. Premium Processing Service guarantees 15 calendar-day processing for certain designated employment-based petitions and applications. According to its recent announcement, USCIS will permit premium processing for I-140 petitions filed on behalf of those foreign nationals who are currently in H-1B status, whose sixth year will end within 60 days, who are eligible for further H-1B extension but only if they are a beneficiary of an approved Form I-140 and an immigration visa is not immediately available, and who are ineligible to extend H-1B status under a provision of law that permits additional extensions on the basis of an I-140 or underlying labor certification that has been pending for 365 days. Under premium processing, USCIS must issue an approval or denial notice, a notice of intent to deny, a request for evidence, or it will open an investigation for fraud or misrepresentation within 15 days.
DHS TO ISSUE TWO-YEAR EADs TO CERTAIN PENDING ADJUSTMENT APPLICANTS
Secretary of Homeland Security Michael Chertoff just announced that DHS will be extending the validity period of employment authorization documents (EADs) issued to certain pending adjustment of status applicants. Currently, adjustment applicants are granted EADs valid for one year. Beginning later this month, DHS will begin issuing EADs with a two-year validity period for those individuals whose application is expected to be pending for more than a year. We will provide further information and analysis as soon as more information becomes available.
ALL GOVERNMENT CONTRACTORS REQUIRED TO USE E-VERIFY
All federal agencies and departments that enter into contracts with contract employers, as a condition of each contract, must, as mandated by an Executive Order dated June 6, 2008, require that the contractor agree to use the Department of Homeland Security's (DHS) electronic employment eligibility verification (E-Verify) system to verify the employment eligibility "of all persons hired during the contract term by the contractor to perform employment duties within the United States" and "all persons assigned by the contractor to perform work within the United States on the Federal contract." The Executive Order permits DHS and Attorney General to consult with appropriate department and agency heads to issue rules and procedures, as appropriate, to implement the order. Thus, in practice, it will be sometime before the order can be implemented and enforced. Nevertheless, the requirement will impact a vast number of businesses. For example, all universities that participate in federal student loan programs are government contractors and thus subject; the huge private defense industry will need to comply as the Department of Defense is not exempt; and health care providers too must comply since they accept Medicare. Stay tuned for more details on the implementation of this new requirement.
MORE ENFORCEMENT ACTIVITY: LOCAL POLICE FERRETING OUT UNDOCUMENTED WORKERS ON IDENTITY THEFT CHARGES; STATES ENACTING IMMIGRATION-RELATED LAWS; OTHER ENFORCEMENT MEASURES
Last month, 300 undocumented workers were arrested and 260 subsequently sentenced to prison for violations of federal identity theft laws in Iowa. In the Florida Panhandle, local police inspected more than a dozen businesses searching for individuals using stolen social security numbers. And, nationally, the U.S. Immigration and Customs Enforcement (ICE) continues its aggressive enforcement activities, arresting those who appear to be undocumented and criminally charging employers who hire undocumented workers. ICE has also undertaken the training of local police so that local governments can investigate and detain people suspected of working and/or residing in the U.S. without proper documentation. Intensified local enforcement of federal immigration laws - coupled with stepped up national enforcement by ICE - has resulted in the round up of hundreds of immigrants including those for nonviolent, minor offenses such as fishing without a license, with severe consequences: deportation. These efforts have also produced new accusations of racial profiling, increased prejudice, and panic within communities.
In a front page article on June 9th, The New York Times reports that 240 immigration bills were enacted in 46 states in 2007, triple the number passed in just a year. A new law in Mississippi makes it a felony for an undocumented worker to hold a job. States and local governments, increasingly frustrated with the absence of a comprehensive immigration policy, are starting to address illegal immigration without calling it such.
For the past two years, increased restrictions and enforcement of the legal immigration process also have been widespread, with the U.S. Department of Labor (DOL) taking the lead. Last summer, DOL promulgated regulations requiring employers to pay all costs associated with preparing, filing, and obtaining labor certification; eliminating the practice of replacing or substituting the beneficiary of a labor certification application with another foreign worker; and requiring that immigrant petitions (I-140s) based on an approved labor certification be filed within 180 days. In another move that will have a significant chilling effect on the filing of future labor certification applications, the Department of Labor announced that is has begun auditing all permanent labor certification applications filed by attorneys at one large immigration law firm. In its press release, the DOL alleges that attorneys at the firm, at least in some cases, may have improperly instructed clients in the consideration of U.S. worker applicants. As employers know, the PERM recruitment process involves employer attestations and extensive record-keeping requirements concerning the employer's labor market test. A post-recruitment report must be prepared and maintained that describes the recruitment steps taken and the results. This report must indicate the number of U.S. workers rejected. This and other required documentation must be carefully prepared and retained by the employer for a period of five years from the date of filing. Attorneys cannot interfere with the recruitment process, but they have a legitimate role in counseling employers during PERM recruitment and are permitted to provide advice on the application of the law to the specific facts of the case.
As a result of these audits, significant delays may occur in labor certification processing since DOL resources will be used for this wide scale audit. Query whether DOL will undertake greater scrutiny of all aspects of the labor certification process.
Maggio & Kattar regularly conducts seminars on the PERM process, including recruitment and other thorny issues. A summer program is in the works.
CAPITOL HILL RESPONDS TO RAIDS AND DETENTION HORRORS
In the aftermath of what DHS touted as the single biggest worksite raid in U.S. history - its May 12th raid of the Agriprocessors meatpacking plant in Postville, Iowa and arrest of more than 300 foreign nationals - the U.S. House of Representatives Workforce Protections Subcommittee conducted a hearing on the harsh consequences of proliferating immigration raids on American children, families, and communities. The House Immigration Subcommittee also held a hearing on the problems with immigration detainee medical care.
The hearings follow recent media reports about appalling detention conditions and basic violations of due process, and focus attention on the devastation such enforcement activities have on children, families, and communities across the country. Despite bona fide efforts by the government to account for humanitarian concerns, these initiatives have led to widespread violations of basic rights. The raids also represent a disturbing trend of intolerance and abuse that undermines the constitutional commitment to due process and shows little application of valid prosecutorial discretion. Not even the Secretary of Homeland Security believes these efforts represent a solution to our immigration crisis.
In May, Representative Zoe Lofgren (D-CA) introduced H.R.5950, the Detainee Basic Medical Care Act of 2008. The bill would require the Secretary of Homeland Security to establish procedures for the timely and effective delivery of medical and mental health care to all immigration detainees in the custody of the Department of Homeland Security. Senator Robert Menendez (D-NJ) and others introduced a companion bill (S.3005) in the Senate. Recent articles in The New York Times and the Washington Post detailed reprehensible conditions at detention facilities, including the withholding of needed medical attention for seriously ill patients and the drugging of other foreign nationals. In response, the ACLU and others filed a lawsuit to end overcrowding at a San Diego correctional facility that resulted in delays in medical and mental health treatment, physical and psychological suffering, the spread of infectious diseases, lack of adequate exercise, and poor sanitation. A settlement agreement was just reached with DHS and the Corrections Corporation of America (CCA).
EMPLOYMENT-BASED THIRD PREFERENCE (PROFESSIONALS, SKILLED WORKERS, AND OTHER WORKERS (EB-3)) UNAVAILABLE UNTIL OCTOBER; IMMIGRANT VISAS FOR MEXICAN UNMARRIED SONS AND DAUGHTERS (F2A) ALSO UNAVAILABLE
The July Visa Bulletin reports that the employment-based third preference category will become "unavailable" beginning in July and will remain so for the remainder of fiscal year, or until October 1, 2008, the first month of the new fiscal year. The category will return to the June 2008 cut-off date of January 1, 2003 in October. In addition, family-based immigrant visas for unmarried sons and daughters (21 years of age or older) of Mexican lawful permanent residents (F2A) also will become unavailable. DOS states that the Mexico F2A cut-off date will return to May 1, 2002 in October.
ELECTRONIC SYSTEM FOR TRAVEL AUTHORIZATION (ESTA) FOR VISA WAIVER TRAVELERS TO BEGIN IN EARLY 2009
The Department of Homeland Security published an interim rule that establishes a new online system requiring pre-authorization for all nationals or citizens of Visa Waiver Program (VWP) countries who plan to travel to the United States for temporary business or pleasure on the VWP. Pre-travel authorization is expected to become mandatory on or before January 12, 2009. Once in effect, VWP travelers will be required to obtain an approved "ESTA" prior to boarding a carrier to travel by air or sea to the United States. The ESTA web-based system will be available for voluntary applications on August 1, 2008 at http://www.cbp.gov/xp/cgov/travel/id_visa/esta/.
How will the new system work? VWP travelers will complete and submit an online application, providing the biographical and eligibility information currently required on the paper I-94W form. Once successfully completed and submitted online, the application will be queried against appropriate law enforcement databases. In most cases, ESTA will provide an almost immediate determination of eligibility for travel under the VWP. Possible responses include: Authorization Approved, Travel Not Authorized, or Authorization Pending. Accompanied and unaccompanied children, regardless of age, will be required to obtain an independent ESTA authorization and determination of eligibility. An approved ESTA travel authorization will be valid for up to two years or until the traveler's passport expires, whichever comes first, and for multiple entries into the U.S.
In the event that an ESTA applicant is denied pre-authorization to travel under the VWP, the applicant may apply for a visa. ESTA is not a guarantee of admissibility to the U.S., and U.S. Customs and Border Protection (CBP) officers will continue to make admissibility determination at ports of entry. VWP travelers currently and under the ESTA program who arrive at a U.S. port of entry and who are determined by CBP to be ineligible for admission under the VWP may be returned to the country of origin to apply for a visa to enter the United States.
The rule advises that ESTA applications be submitted at any time prior to travel to the U.S., and no later than 72 hours before departure, although the system can accommodate last minute and emergency travelers.
Once mandatory, VWP travelers who fail to obtain an ESTA travel authorization may be denied boarding, experience delayed processing, or be denied admission at a U.S. port of entry. Also, all VWP travelers will be required to obtain such authorization, regardless of their point of embarkation.
NEW CBP GLOBAL ENTRY PROGRAM FOR "LOW RISK TRAVELERS"
CBP recently announced its new pilot international registered traveler program, "Global Entry," which allows for the expedited clearance of pre-approved low-risk air travelers into the United States. Under the program, pre-screened participants will be able to enter the United States by using automated kiosks located initially at JFK International Airport, George Bush Intercontinental Airport, and at Washington Dulles International Airport. Applicants will need to pay a processing fee to apply to participate in the program. Enrollment will take place only after a rigorous background check that includes an interview by a CBP officer. Once enrolled, the applicant will be able to present his or her machine-readable U.S. passport or permanent resident card, submit his or her fingerprints for biometric verification, and make a customs declaration at a kiosk's touch-screen. Upon successful completion of the Global Entry process at the kiosk, the traveler will be issued a transaction receipt and directed to baggage claim and the exit, unless chosen for a selective or random secondary referral. The program is currently available to individuals who are 14 years of age and older and are U.S. citizens, U.S. nationals or lawful permanent residents. For more information, see the CBP's new web site at http://www.cbp.gov/.
USCIS SEEKS TO FURTHER EXPEDITE PROCESSING OF NATURALIZATION APPLICATIONS
As part of its effort to improve the processing of naturalization applications, U.S. Citizenship and Immigration Services (USCIS) announced the centralization of the initial processing of all applications for naturalization (Form N-400) at its National Benefits Center in Missouri. This internal administrative change will not change where applicants file their naturalization applications. Applicants will continue to file their N-400 including all supporting documents and fees with the USCIS Service Center having jurisdiction over their place of residence and to report to their local field office for the interview and naturalization test.
USCIS reported a tremendous surge in naturalization applications last summer as eligible applicants sought to beat a July 30, 2007 fee increase deadline. This year's presidential election no doubt also played a role in motivating eligible lawful permanent residents to become U.S. citizens so that they could vote in the November 2008 elections.
CONRAD STATE 30 PROGRAM WAIVERS FOR J-1 INTERNATIONAL MEDICAL GRADUATES SUNSETS BUT EFFORTS UNDERWAY TO EXTEND PROGRAM
The U.S. House of Representatives passed a five year extension of the Conrad State 30 Program, and a companion bill is pending in the Senate. The program had sunset on June 1, 2008.
Under the Conrad program, a waiver of the two-year home residency requirement is available to J-1 doctors who work in a geographic area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals. Such international medical graduates must agree to work for three years as a nonimmigrant in H-1B specialty worker status in such shortage areas. In fiscal year 2007, 768 foreign doctors received waivers on this basis.
MAGGIO & KATTAR ATTORNEYS JOIN WHO'S WHO LEGAL AND SERVE AS EDUCATORS
Maggio & Kattar Attorneys John Nahajzer, Jim Alexander, and Elizabeth Quinn have been included in the International Who's Who of Corporate Immigration Lawyers, 2008, and the International Who's Who of Business Lawyers, 2009, and on www.WhosWhoLegal.com. This honor places Maggio & Kattar attorneys among the world's elite corporate immigration attorneys.
Maggio & Kattar attorneys continue to serve as educators. Shareholder Andres Benach will be presenting again this year at the Annual Conference on Immigration Law conducted by the American Immigration Lawyers Association, the national bar for immigration attorneys. The AILA Annual Conference is the largest continuing legal education seminar in the country attended by some 3,000 immigration lawyers, paraprofessionals, government officials, and others involved in the field of immigration law and policy. Andres will be addressing issues relating to admission and entry issues.
Dree Collopy's article, "Lost in Translation:Why Professional Interpreters are Critical in Asylum Interviews," was published in most recent edition of Immigration Law Today, the magazine of the American Immigration Lawyers Association (May/June 2008). Dree has also been appointed to serve on the serving on the Public Interest Advisory Board of The Catholic University Columbus School of Law. The board works to provide increased support for law students who wish to pursue careers in public interest and public service.
And, just recently, Maggio & Kattar attorneys served as faculty members for the DC Bar's annual course on immigration, covering such topics as ethics, family-based immigration, employment-based immigration, and immigration consequences of criminal convictions.