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.
USCIS PROPOSES TO INCREASE INITIAL PERIOD OF STAY FOR CANADIAN AND MEXICAN TN PROFESSIONALS TO THREE YEARS
Many Canadian and Mexican citizens seeking temporary employment in the United States may be admitted in TN nonimmigrant status under the North American Free Trade Agreement (NAFTA). Although somewhat similar to H-1B classification, individuals granted TN status can only remain in the United States for one year before seeking readmission or obtaining an extension of stay. In its proposal, USCIS would extend the maximum period of admission to three years, the same term USCIS currently may grant to H-1B professional workers. The rule would also allow TN nonimmigrants to be granted an extension of stay in increments of up to three years. Current rules only permit a maximum of one year. Thus, TNs must currently seek readmission or extensions every year. The proposed rule is a much needed and welcome change, one that will ease administrative and financial burdens on employers and employees, alike.
NEW MEDICAL FORM MUST BE USED AFTER MAY 1, 2008
USCIS announced in mid April that its revised Form I-693, Report of Medical Examination and Vaccination Record (dated 4/02/08), must be used for any medical examinations completed on or after May 1, 2008 because the new form includes changes to the TB component of the medical exam, as required by the Centers for Disease Control. Those individuals that have received an older medical form but have not yet seen a doctor must now obtain a new form.
SLIGHTLY SHORTER NATURALIZATION PROCESSING TIMES
USCIS reported in early April that it projected a 13-15 month window for processing naturalization cases, an improvement over earlier projections of up to 18 months. An expanded workforce is largely responsible for the agency's ability to shave off months from more than a year long wait. Additionally, USCIS and the FBI are placing a priority on the reduction of backlogged naturalization cases - a welcome show of interagency cooperation - which certainly must be attributing to greater efficiency. As previously reported, USCIS saw a surge of 1.4 million additional naturalization applications in 2007 - 3 million naturalization applications were filed during the summer of 2007 compared to 1.8 million during the same period in 2006. Before this surge, the time it normally took to adjudicate naturalization applications was seven months.
ICE PROPOSES TO INCREASE FOREIGN STUDENT AND EXCHANGE VISITOR FEES
Immigration and Customs Enforcement (ICE) issued a proposed rule to increase fees that will affect F-1 foreign students and J-1 exchange visitors. Under the proposal, SEVIS application fees will increase to $200 for F-1 students and $180 for most J-1 exchange visitors. ICE expects to finalize its proposals and make them effective October 1, 2008.
DHS PROPOSAL WOULD REQUIRE AIRLINES AND VESSELS TO COLLECT BIOMETRICS FROM EXITING FOREIGN NATIONALS
The Department of Homeland Security (DHS) has proposed a rule that would require commercial airline and vessel carriers to collect biometrics from foreign nationals subject to US-VISIT requirements upon their exit. Currently, the majority of non citizens are required to submit biometrics upon admission into the country. This new rule would require such individuals also to provide biometrics when departing the country. DHS expects to implement air and sea biometric exit procedures by January 2009.
CONGRESSIONAL HEARINGS, INTRODUCTION OF PIECEMEAL LEGISLATION BUT NO NEW LAWS IN SIGHT
While the House and Senate continue to conduct hearings and introduce immigration legislation, it is still unlikely that immigration legislation will be enacted until sometime after the presidential elections and the new administration takes office. Historically, major immigration legislation has been enacted in the fall, giving legislators sufficient time to introduce, debate, and amend proposals before voting on final bills. Nevertheless, in mid April, the House of Representatives passed an extension of the special immigrant non-minister religious worker visa program, which is slated to expire October 1, 2008. This measure must now proceed to the Senate for further consideration.
In addition, three bills were recently introduced in the House, including (1) a bill that would recapture employment-based immigrant visas gone unused and lost due to government processing delays and that would prevent losses of family- and employment-based immigrant visas in the future (current law does not provide a "carry over" system to preserve unused green card numbers); (2) a bill that would eliminate the per country level for employment-based immigrants and end the spill-over of unused immigrant visa numbers between employment-based and family-sponsored categories; and (3) a bill that that would provide relief for the shortage of nurses in the United States.
Backlogs in our current immigration system are well-documented. Some foreign-born professionals now face a wait of five to ten years to receive a permanent resident visa, and some family members wait decades to reunite with their relatives. These unreasonable delays should come as no surprise since current immigrant visa levels were set in 1990, almost twenty years ago. These legislative proposals, introduced as stop-gap measures that would provide limited relief to a system that is overtaxed and non responsive to the demands of the U.S. economy and our national interest in promoting families unity, do not, however, fix a system that is in desperate need of an overhaul.
Meanwhile, another immigration-related controversy is brewing. The border fence that the U.S. is building along its southern border - has now caught the ire of scientists and naturalists. While previously the fence debate focused largely on the project's costs, feasibility, and how well it will curb illegal immigration, now it also focuses on the long term peril it may cause to animals and vegetation that make the Southern border home. As reported recently in the Washington Post, a U.S. Fish and Wildlife Service regional director recently told Customs and Border Protection (CBP) officials that an interagency team of scientists concluded that the construction would inhibit breeding and, "over time, may ultimately lead to the eventual extinction of the species." The Sierra Club and Defenders of Wildlife have already gone to court to challenge the constitutionality of the authority that Congress gave DHS to set aside federally required environmental reviews as required by some 25 federal statutes, including the National Environmental Policy Act, the Endangered Species Act, the Clean Water and Air Acts, the National Historic Preservation Act, the Archaeological and Historic Preservation Act, the Wilderness Act, the Fish and Wildlife Act, the Rivers and Harbors Act, and the Eagle Protection Act.
DOS TO ROLL OUT NEW ELECTRONIC NONIMMIGRANT VISA APPLICATION, FORM DS-160
The Department of State (DOS) recently announced, by final rule, its plan to begin using a new fully electronic nonimmigrant visa application, Form DS-160. The new form will be rolled out over time and is being tested as a pilot in Monterrey and Nuevo Laredo, Mexico. The new form is designed to remedy flaws with the current nonimmigrant visa application form, DS-156, which applicants fill out on the DOS web site.
The current electronic system generates a bar code containing only certain fields of data, and the government site does not electronically collect or retain the data entered on the form. The applicant must print out a hard copy of the form for his or her interview. When the applicant presents the printed form at visa interview, she or he also presents the bar code page, which is then scanned in the system, the DOS Consular Consolidated Database (CCD).
With the DS-160, an applicant will fill out the DS-160 and actually submit the data online. Moreover, the data will be stored into a government database, presumably the CCD, as a nonimmigrant visa application. In addition, the DS-160 has been designed as a "smart" form; in other words, the data the user provides in particular fields can populate other sets of data fields that may also be required on other applications. Unlike the current DS-156, draft forms can be saved and forwarded back and forth between applicant and attorney. However, the rule requires that the applicant - not the attorney - actually submit the form (click the "submit" button), which also serves as an electronic signature. The new form also consolidates information contained in other DS forms, including DS-157 and DS-156E forms.
For the current time, Form DS-156 will continue to be accepted as DOS tests and rolls out its new fully electronic form at other consular posts.
MAGGIO & KATTAR SERVE AS FACULTY AT ANNUAL IMMIGRATION PROGRAMS
During the month of May, many of Maggio & Kattar's twelve attorneys are participating as faculty members in a number of continuing legal education programs. Andres Benach joins the faculty of the AIL-ABA/AILA Immigration Law Basics course held in Washington, DC on May 8th and 9th. Jim Alexander, Andres Benach, Melissa Frisk, John Nahajzer, Amy Novick, Elizabeth Quinn, Thomas Ragland and Cora Tekach are teaching the District of Columbia Bar's four-part series, entitled "What Every Lawyer Should Know About Immigration Law." And, finally, Associate Attorney Dree Collopy recently participated in a workshop at the University of Baltimore's Immigrant Rights Clinic on how to pursue a career in immigration law.