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Visa Information What's New Contact Us Lawrence J. Needle Biography Home
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IMMIGRATION ASSISTANCE YOU CAN COUNT ON!
ATTORNEY
AT LAW Visa Information What's New Contact Us Lawrence J. Needle Biography Home |
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What’s New? F-1 OPT
29-Month Rule April 7, 2008 DHS
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F-1 OPT 29-Month Rule April 7, 2008 DHS has released an advance copy of an interim final rule on Optional Practical Training (OPT). The new rule is expected to be published in the Federal Register during the week of April 7, and will become effective immediately on the date of publication. Click here to learn more: OPT29 The DHS is the largest United States government agency since World War II. The DHS has been included within the Department as opposed to its previous location in the Department of Justice. There are now two distinct divisions for enforcement (including border patrol, detention, removal, etc) and immigration benefits and applications within the Bureau of Citizenship and Immigration Services. The State Department will continue to administer the issuance of visas abroad. All non-immigrants should notify any change of address within ten days of the move. The change of address form is filed on AR-11, which may be downloaded from the DHS website. DHS has announced a new mailing address for submission of form AR-11, Alien’s Change of Address card. Forms submitted via the U.S. Postal Service should be sent to DHS, Change of Address, P.O. Box 7134, London, KY, 40742-7134. Originally, the National Security Entry Exit Registration System (NSEERS) became effective as of September 11, 2002. Special Registration is a system registering the arrival and departure of certain non-immigrants, mainly from Middle Eastern countries, and verifies their admission and changes in address and circumstances during their stay. When NSEERS was first adopted, nationals from more than 20 countries had to register at the local immigration office. Now, however, by virtue of a regulation dated December 2, 2003, applicants from these countries are no longer subject to automatic yearly registration at local immigration offices. Similarly, those special registrants who are registered at the port of entry by a border official no longer must appear for a verification at a local immigration office within 30 to 40 days after being registered upon admission to the USA. Currently, all citizens of Iran, Iraq, Libya, Sudan, and Syria are subject to registration at a border post. In addition, a border official may register a non-immigrant if a non-immigrant appears to meet certain pre-existing criteria and considerations. Certain individuals may also be notified to appear on 10 days' notice for verification registration at an immigration office. Special Registrants must also complete a form AR-11SR notifying immigration of any changes of address during the registrant's stay. If a non-immigrant is registered by an official in NSEERS at a port of entry, he is subject to all such obligations of registration until the end of his period of stay. As such, if a border official decides if someone is subject to registration, that individual must depart the United States from certain designated ports so that the immigration service can report that individual's departure. If an individual departs the United States and then returns, the individual is not automatically subjected to the NSEERS requirement unless he is registered upon the next entry. I-140/I-485 CONCURRENT ADJUDICATION Under recently announced
guidelines, an employer’s immigrant petition for an alien worker filed
on an I-140 may be filed at the same time as the beneficiary’s application
for adjustment of status (I-485). The DHS has indicated it will try and
adjudicate the I-140 within a 60-day time frame. The benefit of this rule
is that, at the time of filing, a beneficiary may obtain both work permission
(EAD) and travel permission (advanced parole) at the time of the concurrent
filing. The concurrent I-485 filing is valid only if the I-140 immigrant
petition filed by the employer is ultimately approved. In addition, the DHS has also implemented an I-140 portability rule or 180-day rule, which states that I-140 petitions remain valid for a worker with respect to a new job whose I-485 adjustment application has remained unadjudicated by the DHS for more than 180 days. The rule applies if the worker has moved to a job that is the same or similar in nature to the one described in the I-140. At present, all foreign
visitors entering the United States with visas must enroll in U.S. VISIT
upon their arrival. As of September 30, 2004, all visitors traveling
under the visa waiver program will also be required to enroll in U.S.
VISIT at air and seaports of entry. U.S. VISIT utilizes biometrics
to confirm a foreign visitors' entry and exit from the United States.
The system scans travel documents and captures biometric (finger scans)
on an inkless device. The system matches the visitor's identity,
verifies departure, and confirms compliance with U.S. immigration policy.
Currently, U.S. VISIT is located at more than 115 airports and 14 seaports.
The program is being extended to cover exit stations at numerous other
locations as well. The visa waiver program
is one which allows nationals of certain eligible countries to visit the
United States for up to 90 days as a visitor without the need to first
obtain visas in their home country. Currently, 27 countries participate,
including virtually all European countries, as well as Japan, New Zealand,
Singapore, and Australia. Nationals entering under the visa waiver
program must depart the United States within the 90 day visitation period
and may not extend their stay. The Department of State
has recently announced that F-1 student visas may be issued no more than
90 days before the program start date. J-1 exchange visitor visas
may be issued at any time. However, neither F nor J visa holders
may enter the United States more than 30 days in advance of the visa commencement
date. The Department of Homeland
Security (DHS) has announced that it will no longer automatically grant
employment EADs for only one-year periods. EADs are typically issued
for those applicants applying for adjustment of status (i.e. green cards)
or for students who, after graduation, have been given permission to work
as part of optional practical training. In a potentially significant
move, the DHS has announced that EADs may now be issued for validity periods
based on the general processing time for the underlying application or
petition. This may offer a subsequent benefit to those who would
otherwise be reapplying for an EAD on a yearly basis. The DHS has recently announced a
new internet-based appointment system which will soon be in place at all
district offices. Under INFOPASS, an individual may schedule a date
and time to meet with an immigration information officer which will theoretically
eliminate the need to wait in line when visiting a district office for
immigration information. Additional features include e-filing for
certain of the more frequently used forms. Note that e-filing, however,
does not alleviate the necessity of sending additional supporting documentation
to the immigration service to support such a filing. DHS has recently announced
that the 65,000 cap of H-1B visa slots has already been reached for fiscal
year 2005 beginning October 1, 2004. Unless Congress acts to increase
the cap, employers will have difficulty hiring new employees in H-1B professional
specialty worker status. NON-CITIZENS IN THE U.S. ARMED FORCES Laws have been enacted
to facilitate citizenship applications for those foreign nationals serving
in the U.S. military. For example, the National Defense Authorization
Act for fiscal year 2004 allows soldiers to take oaths and conduct citizenship
interviews at military installations and at U.S. embassies overseas.
Furthermore, the act allows non-citizen, military personnel and family
members to become eligible for these benefits after only one year of service,
as opposed to three under current law. Soldiers who were previously
ineligible to apply for naturalization because of less than three years
service may apply for the new benefits as of October 1, 2004. Furthermore,
such applicants will not be required to pay the filing fee as well.
Finally, active duty soldiers may also request expedited processing of
naturalization applications. Every year, nationals from certain designated countries are eligible for green cards via the green card lottery. State Department mails 100,000 letters to those "winners of the lottery" each fiscal year. However, only 50,000 persons may actually obtain from the residence each year via the lottery, which requires timely submission of the green card application. This past year, all applicants were required to apply online as opposed to mailing in their applications. Applications for the lottery are typically accepted in November of each year. Health care workers, excluding
physicians, are subject to a "visa screen" requirement prior
to obtaining immigration benefits in the United States. Both temporary,
health care workers (other than physicians) and those applying for immigrant
status must present a certification from the Commission on Graduates of
Foreign Nursing Schools (CGFNS) or an equivalent credentialing organization
approved by the Department of Homeland Security, verifying that the alien's
education, training, license, and experience are equivalent to that of
a U.S. health care worker; that the alien has reached a level of competence
in oral and written English; and that the alien has passed a test for
examination required in the field. The Department of State has announced that it will no longer continue the domestic visa revalidation service for certain non-immigrant visas in the United States. The visa revalidation program has previously benefited employees in the United States in H-1B status or L-1 intra-company status who have been able to apply for renewal visas while in the United States as opposed to abroad at a U.S. Embassy or consulate. DOS has decided to discontinue such service because all U.S. visas issued after October 26, 2004 must include biometric identifiers. The Department of State has been unable to devise a system to allow for collecting such biometric identifiers and processing such visas. Note that employees who extend their status while in the United States, but do not travel outside the Untied States, do not need to have their visas revalidated until such time as they actually leave the country and require a new visa stamp to reenter the United States. In December 2002, the DHS announced a rule implementing the Student and Exchange Visitor Information System (SEVIS). The program requires the electronic reporting by designated school officials of the information that must be reported to DHS. The rules also provide standards relating to the maintenance, extension, and reinstatement of students' status. The SEVIS program is intended to facilitate the record keeping of F and J non-immigrants, including address changes, whether the student is enrolled full-time in school and changes in programs. All SEVIS visitors to the United States must now pay a fee of $100 for issuance of the F-1 or J Visa. The Department of Homeland
Security continues to face serious problems with respect to backlogs on
existing petitions/applications. This has created numerous difficulties
for businesses who seek to bring in overseas personnel, hire foreign talent
to increase their U.S. workforce, and/or extend or change the status of
current foreign workers. The adjudications director recently testified
before Congress that the administration's goal was to eliminate such backlogs
and ensure six months or less of adjudication processing by the end of
2006. However, reducing the backlog presents a very daunting challenge
to the immigration service. The U.S. Government has
issued much stricter visa issuance and admissions policies. These
include granting immigration and consular offices much broader authority
to conduct security and background checks, conduct personal interviews
with visa applicants, deny certain visas for reentry, and also impose
special registration requirements on some foreign nationals entering and
leaving the United States. Travelers are advised that heightened
security checks may be conducted at each stage of travel. The President signed legislation in late 2004 increasing the H-1B allotment for fiscal year 2005 by 20,000 visas per year. However, only individuals with master's degrees or doctorate degrees obtained at a US University would be eligible to qualify. The increase in visas will not take place until March 8, 2005. Unfortunately, the legislation also increases filing fees. For employers with more than 25 employees or more, employers pay a $1500.00 surcharge per petition (e.g., unless qualified for an exemption such as universities, primary or secondary institutions, etc.). Employers with fewer employees will pay a fee of $750.00. There is also a $500.00 anti-fraud fee which will be paid by all employers of H-1B workers beginning March 8, 2005 as well. With regard to L-1 intra-company transferees, the legislation imposes additional restrictions on those employees with specialized knowledge working off-site with third-party employers, requiring those employees to work directly under the supervision and control of the sponsoring employer. Employers of such L-1 employees must also pay a $500.00 anti-fraud fee. CERTAIN EMPLOYMENT-BASED CATEGORIES FOR IMMIGRANT VISAS REGRESS The State Department has announced as of January 2005 a retrogression of the third employment-based category for professionals and specialty workers (those requiring at least a bachelor's degree or two years experience for the position) for nationals from India, China, and the Philippines. In the last several years, all of the employment-based categories were current because the immigration service accumulated backlogs in all categories by failing to adjudicate applications for permanent residence more expeditiously. Now, however, the immigration service has begun to make headway on currently pending adjustment of status applications, thereby triggering cut-dates for nationals from certain countries (i.e. China, India, and the Philippines) in their ability to apply for immigrant visas abroad or permanent residence in the United States. If a national from one of these countries qualifies for a job based on a bachelor's degree or two years experience, therefore, they will face delays in their eligibility to apply for immigrant visas abroad or adjustment of status (permanent residence) in the United States. The diversity visa lottery program began on November 5, 2004 and ended on January 7, 2005. Applications were submitted online. Those applicants who are selected from designated countries will be eligible to become permanent residents during fiscal year 2006 beginning on 10-1-05. LABOR CERTIFICATION AND BACKLOG REDUCTION As of March 31, 2005, the Department of Labor will institute a backlog reduction system in order to assist the local state employment agencies with existing backlogs. The Department of Labor has stated that files will be located at one of the federal offices consisting of either a backlog reduction center or a regional office. In addition, the Department of Labor regional offices may also transfer labor certification cases currently pending to backlog reduction centers as well. These backlog reduction centers will be established in Dallas and Philadelphia. The national processing centers are being established in Atlanta and Chicago. Note that as of January 1, 2005, all labor certification cases filed with the state employment agencies are forwarded to the designated regional office. New cases are being sent to the national processing centers in either Atlanta or Chicago. The President has signed legislation allowing employers to store I-9 employment verification documents electronically. The I-9 form requires employers to document that they are continuing to hire foreign nationals who are authorized to work in the United States. The legislation allows employers to reduce the paperwork required in storing I-9 documents in large quantities. Note that the issue of the signature of the I-9 forms has not been resolved. In other words, it is not clear whether the I-9 form can be "e-signed" or whether an additional, written signature will be required later. "TN" CHANGES FOR CANADIAN NATIONALS The Department of Homeland Security has recently announced that a Canadian TN need not present a license at the time of application for admission to the United States. The DHS noted that licenses may be used as an alternative document for admission, but they are not the documents that are primarily required for admission. However, note that states continue to impose license requirements, such as for nurses, before such an individual may work in the United States. Therefore, both Canadian and Mexican TNs (e.g. nurses) may obtain admission in TN status without having the respective state license at the time of admission at the border. As a result of new procedures with regard to requirements for biometric visas, all applicants for visas should contact the appropriate consular post to obtain latest information regarding the interview procedure and biometric collection. The website from which an individual may obtain information is www.travel.state.gov/visa/questions embassy.html With regard to information on visa appointments and processing times at particular embassy/consulates, applicants may visit www.travel.state.gov/visa/tempvisitorswait.php. As a result of President Bush's signing the Omnibus Appropriations Act for fiscal year 2005, including the L-1 Visa Reform Act of 2004, L-1 hire intra-company transferees who are working in the United States based on their specialized knowledge with the international entity can no longer work primarily at a worksite other than their petitioning employer if the work will be controlled and supervised by a different employer. There are similar prohibitions if the offsite arrangement is essentially to provide labor for hire, rather than service related to the beneficiary's specialized knowledge with the petitioning employer. This limitation applies to all L-1 petitions filed with DHS after June 6, 2005, and includes extensions and amendments for those individuals currently in L-1 status. In addition, all L-1 temporary workers, including those participating in the "blanket L-1" program, must have worked for a period of no less than one year outside of the United States for an employer with a qualifying relationship for a petitioning employer. Previously, such a blanket employee could receive an L-1 visa with as little as six months of qualifying employment. Finally, the act creates a fraud prevention and detection fee of $500.00 which must be paid by all petitioners seeking a beneficiary's initial grant of L non-immigrant status or those petitioners seeking to change a beneficiary's employer within that classification. The $500.00 fee does not apply to those petitions to amend or extend stay file by an existing L employer. The new $500.00 fee applies to petitions filed on or after March 8, 2005. Note that Canadians in L, H, TN, and other non-immigrant visa categories are exempt from US VISIT. As such, they will not be fingerprinted and photographed. However, their I-94s are printed through US Arrival. It is important that each Canadian national occupation listed is correct, so that the I-94 is printed correctly with the appropriate occupation. Note that Canadians in E and K status need visas, so they are subject to US VISIT. As a result of the H-1B Visa Reform Act of 2004, there is now a permanent, $1500.00 training fee applicable to all H-1B petitions for employers with more than 25 full-time employees. If an employer has less than 25 full-time employees, the fee if $750.00. In addition, there is also a $500.00 anti-fraud fee applicable to all employers filing either an initial petition for an H-1B or for a change of status. The anti-fraud fee, however, will take effect only after 90 days after enactment of the legislation (i.e. March 8, 2005). On the positive side, legislation does create up to 20,000 additional H-1B visas per year for those individuals earning a master's degree or higher from a U.S. institution of higher education. That provision will also not take effect until March 8, 2005. In addition, the legislation also requires employers to pay 100% of the prevailing wage. In the past, the Department of Labor has allowed employers to pay up to 95% of the prevailing wage. Now, however, the Department of Labor will provide up to four levels of wages commensurate with experience, education, and level of supervision. With the addition of these two extra levels of wages, the Department of Labor has announced that an employer may no longer utilize the "95%" rule. The Department recently announced a new labor certification procedure known as "PERM" which will be in effect on March 28, 2005. The PERM certification procedure is expected to be much shorter than the standard labor certification currently utilized. In addition, the Department of Labor has announced a procedure whereby cases which are currently pending may be converted to PERM without losing their priority dates. The advantage of PERM is that it essentially operates on an audit system as opposed to individual case review. Audits will be conducted randomly or for certain applications with problematic, excessive requirements. In the future, employers will submit the labor certification applications online and may receive an approval within 45-60 days. Prior to submission, the employer must place a 30 day job order with the local Department of Labor office and advertise as directed in the regulations. For example, employers must run at least two Sunday newspaper advertisement for the particular job order placed with the local Department of Labor office. Furthermore, if the job is for a professional application, the employer must utilize three additional steps prior to submission of the application, including website posting, the employer's own website, job fairs, on-campus recruitment, local and ethnic newspapers, and trade and professional organizations. As in the prior system, there is no application fee. Furthermore, the local state work force agency will still make determinations on the prevailing wage. In the future, however, the government will offer a four-tier wage system in place of the current two-tier system which has often generated inconsistent results relating to the experience required for the position. Unlike current applications, an employer will retain all supporting documentation regarding prior recruitment. No supporting documentation is submitted with the on-line application, although such documentation must be available in the event of an audit by the Department of Labor. The employer must demonstrate that it has met the procedural requirements of the regulations, i.e., that there are no qualified or there are an insufficient number of U.S. workers willing and able to undertake the position, and that the employment of the foreign national will not have an adverse effect of the working conditions and wages of U.S. workers similarly employed in the same type of position. RECENT DEVELOPMENTS IN IMMIGRATION LAW The President signed into law on May 11, 2005 a Supplemental Appropriations Act for Defense, The Global War on Terror, and Tsunami Relief which contained important immigration-related provisions as well. Pursuant to the “REAL ID Act”, every U.S. state is now required to determine the immigration status of any applicant for a driver’s license and issue a driver’s license based on the foreign national’s immigration status in the United States. As such, a foreign national must produce certain official documents from the immigration service or Department of State in order to receive a temporary driver’s license valid for the duration of his authorized stay in the United States. The license must clearly state the date of expiration. A previous article in the employment newsletter discussed the immigration requirements in South Carolina in order to obtain a driver’s license. As such, South Carolina has already implemented legislation by which the issuance of driver’s licenses is tied to a foreign national’s immigration status. As of May 11, 2008, federal agencies are prohibited from accepting state-issued identification or driver’s licenses that do not meet minimum standards outlined in the law. Significantly, all states will now be required to capture a digital, facial image of each person applying for a driver’s license, as well as to electronically capture and store all identity source documents, such as a passport presented by the applicant. Other provisions of the law assist those employers of temporary, non-agricultural workers for which an employer has a temporary or seasonal need and for which there are no qualified U.S. citizens available. Currently, there is a cap of 66,000 H-2B visas available in this immigration category. However, the cap was reached in January 2005. As a result of this legislation, certain foreign nationals are now considered exempt from the cap if they have worked in the United States in one of the past three fiscal years in the temporary “H-2B” category. Furthermore, half of the annual allotment of these visas will be issued each fiscal year, so that employers with seasonal needs occurring only later in the fiscal year, such as this summer, are not foreclosed by exhaustion of visas earlier in the year. The legislation also creates additional visa slots for nurses and physical therapists seeking permanent residence in the United States. The Act “recaptures” up to 50,000 immigrant visa numbers which were not previously allocated in the last four fiscal years. Currently, there is a “visa retrogression” for applicants in the third-employment based immigrant category for professional or specialty skilled workers (i.e. those with degrees or jobs requiring at least 2 years experience). Those professional and skilled workers falling within this category are not eligible to file for permanent residence at this time. However, the legislation creates additional visa numbers for physical therapists and nurses, thereby allowing them to apply for green cards without delay. Congress acted in this instance as a result of the shortage of nurses in the healthcare industry. As such, these workers will continue to be able to apply for immigrant visas disregarding any cut-offs in this visa category for other applicants for permanent residence. The Act also creates a new visa category for Australian professionals and facilitates the application process for these individuals. The E-3 category for Australian professionals covers those with a Bachelor’s degree or higher in the field for which employment is sought. Examples may include accounting, engineering, teaching, computer sciences, etc. Under the legislation, up to 10,500 of these E-3 visas will be available to Australian professional workers each fiscal year. The benefit to Australians is significant because other professionals seeking equivalent, H-1B temporary, immigration status are subject to a cap of 65,000 visas annually. The only exception to this cap is for those who have obtained a master’s degree or higher in the United States, for which an additional 20,000 H-1B visas are available this fiscal year. With the passage of this legislation, Australians will now have a separate category for which they can qualify for non-immigrant , working visas despite the cap on other H-1B professional workers. Australians may apply for these E-3 visas directly at the consulate abroad without prior approval of the immigration service of a petition filed on their behalf by their respective employers. The REAL ID Act also made significant changes to procedural guidelines for asylum previously in place for those refugees fleeing persecution abroad. Moreover, the ACT also limits judicial review for certain discretionary decisions made by immigration judges in immigration removal proceedings. At this time, it is impossible to predict exactly how much federal court review will be impacted following removal decisions by immigration judges. Apart from the REAL ID ACT, there are other new developments with respect to immigration. For example, there are new guidelines issued by the Immigration and Customs Enforcements agency “ICE” which now permits employers to electronically complete, sign, and store I-9 employment eligibility forms required by the Immigration Reform and Control Act (RICA). Under prior law, employers were required to retain the paper forms and original documentation. Now employers will be able to choose to file electronically and scan forms to create electronic copies. Furthermore, the Department of Homeland Security has recently announced that all persons from countries in the “visa waiver program” (e.g. European countries, Japan, etc.) who enter the United States without a visa must now possess a machine-readable passport in order to gain entry. The visa waiver program is used by millions of individuals traveling to the United States for periods of 90 days or less as a temporary visitor without the requirement of a visa. Visa waivers are not utilized by those foreign nationals seeking gainful employment in the USA, but only for temporary visits for travel or business on behalf of a foreign entity. Now, if such a visa waiver passenger does not possess a machine readable passport, he must have a tourist visa issued by the respective consulate/embassy before entering the United States. One potentially significant bill was introduced in May 2005 by Senators McCain and Kennedy. The legislation, entitled “The Secure American Orderly Immigration Act of 2005” would make far-reaching changes to immigration laws by , for example, creating two new visa categories for temporary workers wishing to perform jobs for which American workers are unavailable and unwilling to take. The provisions apply both to those foreign workers seeking to enter the United States for the first time and for those present in the United States since the date the Act was introduced and who have been employed, even illegally, prior to that time. Applicants would also have to pay a $1000.00 fee. The bill’s temporary worker positions are similar to those which President Bush suggested more than one year ago. However, the legislation also goes further than that proposed by President Bush as it would also create a pathway to permanent residence for those foreign workers filling jobs that U.S. workers were unwilling or unable to fill. In addition, the bill would help enormously with respect to backlogs for those petitions filed by U.S. citizens on behalf of immediate relatives. In essence, the bill would provide additional immigrant visas for all family-immigrant categories as a result of current delays in U.S. immigration law by which family members are separated for years as a result of caps on family-based immigration. In addition, the legislation would also increase the annual cap in employment-based immigrant visas (i.e. permanent residents) from the current 140,000 to 290,000 for certain priority workers, including those with advanced degrees who are skilled and professional workers. The bill would also allow the recapture of any unused employment-based visas from previous fiscal years going back to 2001. Finally, the legislation would also gradually phase in a new electronic work authorization verification program to replace the current I-9 system. The system would be based on machine-readable technology and would check social security records. Immigration topics continue to be a hot-button issue for Congress this fiscal year. We can expect legislative hearings on new immigration legislation, including the McCain-Kennedy bill. For those employers impacted by immigration law and applicable regulations, it is important to contact one’s Senators and legislative representatives with your concerns and input.
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Contact Lawrence J. Needle, PA
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