August 2008 Immigration Update

Headlines:

1. Bill Would Extend E-Verify for 5 Years – With E-Verify set to expire in November, some lawmakers feel there is insufficient time to do anything other than pass a 5-year extension.
2. New Exit Tax Provokes Concerns – The new exit tax may prove to be a major deterrent for wealthy individuals who are considering applying for permanent residence.
3. EB-2 Numbers for India, China to Advance in August; Employment Third Preference Category Will Be Unavailable – The EB-2 visa category for India and China advances in August to June 1, 2006, a jump of more than two years.
4. Labor Dept. Proposes Modifying LCA, Seeks Comment on Labor Certs for Ag Workers – The LCA modifications are primarily due to the conversion to the electronic submission system; the Department also seeks comment on measures to improve the labor certification program for the temporary employment of nonimmigrant agricultural workers.
5. State Dept. Releases Annual Student and Exchange Visitor Update The cable asks posts to have a clear procedure in place for expediting F, M, and J appointments.
6. USCIS Adds Vaccines to Requirements for Permanent Residents – USCIS revised the list of vaccines required for applicants seeking permanent resident status.
7. USCIS Updates Cap Info for H-1B Workers for FY 2009 – USCIS has added 5,800, the projected number of unused H-1B1 Chile/Singapore visas, to the FY 2009 H-1B cap; this does not necessarily mean that more H-1B visa cases can be filed for FY 2009, however.
8. USCIS Extends Validity of EADs for Refugees – USCIS is extending the validity of initial work authorization documents for refugees to two years after arrival in the U.S.
9. TSA Testifies on Watch Lists; ACLU Protests – The TSA is exploring possible enforcement action against air carriers who tell passengers inaccurately that they are watch-listed.
10. USCIS Revises Biometric Instructions for Reentry Permits and Refugee Travel Documents – Applicants for re-entry permits and refugee travel documents must provide biometrics (e.g., fingerprints and photographs) at a USCIS Application Support Center.
11. USCIS Continues Suspension of Premium Processing for Religious Workers – USCIS said it cannot reasonably ensure a level of processing service within 15 calendar days.

Details…
1. Bill Would Extend E-Verify for 5 Years
With E-Verify set to expire in November, some lawmakers feel there is insufficient time to do anything other than pass a 5-year extension. “We’ve got six weeks left in this session, and we’re just not going to get that done,” said Rep. Zoe Lofgren (D-Cal.). She and Rep. John Conyers (D-Mich.) are moving a bill for a 5-year extension through the House of Representatives. It is unclear whether the Senate will agree. Any reform of the verification process will have to wait until the next administration.

2. New Exit Tax Provokes Concerns
The new “exit tax,” under the Heroes Earnings Assistance and Relief Tax Act of 2008, applies only to U.S. citizens who expatriate and long-term (eight years or longer) permanent residents who lose their status (voluntarily or otherwise) on or after the date of enactment, which was June 17, 2008. The prior tax law continues to apply to U.S. citizens who expatriated and long-term residents who lost their permanent resident status before June 17. The new exit tax may prove to be a major deterrent for wealthy individuals who are considering applying for permanent residence.

The Reed Amendment exclusion ground for U.S. citizens who expatriate to avoid U.S. tax was not repealed or modified (as proposed in some earlier versions of the exit tax). There are no regulations to implement it, however.

The full text of the bill is available at http://www.opencongress.org/bill/110-h6081/text.

3. EB-2 Numbers for India, China Advance in August; Employment Third Preference Category Are Unavailable
The Department of State’s Visa Bulletin for August notes that the employment-based second preference (EB-2) visa category for India and China has advanced to June 1, 2006, a jump of more than two years. Meanwhile, demand for visa numbers has resulted in the employment third preference “Other Worker” category reaching the annual fiscal year 2008 numerical limit. As a result, this category has become unavailable beginning in August and will remain so for the remainder of FY 2008. This will be temporary, however, and the employment third preference cut-off date will return in October, the first month of the new fiscal year, to January 1, 2003. Other employment categories are not expected to move in August.

The Visa Bulletin is available at
http://travel.state.gov/visa/frvi/bulletin/bulletin_4310.html.

4. Labor Dept. Proposes Modifying LCA, Seeks Comment on Labor Certs for Ag Workers
The Department of Labor seeks comment on the labor condition application (LCA) for H-1B, H-1B1, and E-3 nonimmigrants. The modifications being proposed to ETA Forms 9035, 9035CP, and 9035E are primarily due to the elimination of the “Fax Back” system and converting exclusively to the electronic submission system, except in rare cases of physical disability that prevents use of a computer. The Department noted that all three forms need to be updated to eliminate all reference to the “Fax Back” system and “provide more clarity to the user of the form, thereby obtaining more accurate information for the Department to assist in more efficient and effective adjudication of the requested benefit.” The Department said the information collected remains the same. The Federal Register notice related to the LCA is available at http://edocket.access.gpo.gov/2008/pdf/E8-14464.pdf.

The Department also seeks comment on measures to improve the labor certification program for the temporary employment of H-2A nonimmigrant agricultural workers. The Department noted that employers who have received certification for temporary foreign agricultural labor must inform their local State Workforce Agency (SWA) in writing if the H-2A workers do not depart for the place of employment three days before the date of need as specified in their labor certification applications. The departure date is used to start the running of the contract period for administration of the “Fifty Percent Rule.” The employer must continue to provide employment to any qualified and eligible U.S. worker who applies to the employer until 50 percent of the work contract period, under which the foreign worker is in the job, has elapsed. The employer’s obligation to engage in positive recruitment ends on the date the foreign workers depart for the employer’s place of business. The notification required under the regulations is written by the employer and sent to the SWA. The SWA uses the information to calculate the end of active recruitment requirements and Fifty Percent Rule referral requirements.

The Department is particularly interested in comments that: (1) evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submissions of responses.

That notice is available at http://edocket.access.gpo.gov/2008/pdf/E8-14465.pdf.

5. State Dept. Releases Annual Student and Exchange Visitor Update
The Department of State’s Bureau of Consular Affairs has released the annual update of its student and exchange visitor (F, J, and J visas) issues. The cable asks posts to have a clear procedure in place for expediting F, M, and J appointments, with first-time applicants being given the highest priority. The cable also discusses summer work and travel issues, clarifies some information on Form DS-2019, and reminds posts about required annotations and the end of requirements to put DS-2019 forms in sealed envelopes. The cable also notes the changes in J-1 sponsor sanctions procedures.

The cable is available at
http://travel.state.gov/visa/laws/telegrams/telegrams_4202.html.

6. USCIS Adds Vaccines to Requirements for Permanent Residents
U.S. Citizenship and Immigration Services (USCIS) announced on July 24, 2008, a revised list of vaccines required for applicants seeking permanent resident status. This revision follows guidance from the Centers for Disease Control and Prevention (CDC).

CDC’s revised Technical Instructions to Civil Surgeons for Vaccination Requirements require the following age-appropriate additional vaccinations to adjust status to legal permanent resident:

Rotavirus
Hepatitis A
Meningococcal
Human papillomavirus
Zoster

The requirements for these new vaccines went into effect on July 1, 2008; however, CDC approved a 30-day grace period for any medical exam conducted before August 1, 2008. Starting on that date, the new vaccinations, if appropriate, must be administered for USCIS to approve the applicant for adjustment of status.

USCIS has revised the Report of Medical Examination and Vaccination Record (Form I-693) to include these new vaccination requirements. The June 5, 2008, edition of the I-693 must be used for any medical examination completed on or after August 1, 2008.

USCIS’s notice is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35 e66f614176543
f6d1a/?vgnextoid=902252b10f45b110VgnVC M1000004718190aRCRD&vgn
extchannel=68439c7755cb90 10VgnVCM10000045f3d6a1RCRD. The CDC’s revised Technical Instructions to Civil Surgeons for Vaccination Requirements are available at http://www.cdc.gov/ncidod/dq/civil.htm. USCIS has posted a list of frequently asked questions about the revised vaccination requirements at http://www.uscis.gov.

7. USCIS Updates Cap Info for H-1B Workers for FY 2009
U.S. Citizenship and Immigration Services (USCIS) recently noted that 6,800 visas are set aside during the fiscal year for the H-1B1 program under legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool can be made available for H-1B use with start dates beginning on October 1, 2008, the start of FY 2009. USCIS has added 5,800, the projected number of unused H-1B1 Chile/Singapore visas, to the FY 2009 H-1B cap. As of the update, the cap for H-1B1s for FY2009 had not been reached.

This does not necessarily mean that more H-1B visa cases can be filed for FY 2009, however. In the past, USCIS has taken unused Chile/Singapore H-1B numbers into account in their estimates based on prior usage and not adjusted the allocation once the final count became available.

8. USCIS Extends Validity of EADs for Refugees
U.S. Citizenship and Immigration Services (USCIS) recently announced that it is extending the validity of initial Employment Authorization Documents (EADs) for refugees to two years after arrival in the United States. Previous policy required renewal of the EAD after one year, except in certain adjustment cases that were expected to remain pending for more than one year.

USCIS said the new policy will reduce the financial burden on refugees by eliminating the need for many refugees to apply for renewal of work authorization documents before they are able to adjust status to permanent residence. There is no fee for the initial application for a refugee EAD, but applicants incur a $340 fee for renewals.

USCIS estimated that a refugee would request, at minimum, one EAD renewal before adjustment of status if the EAD validity period were not extended to two years.

The notice is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35 e66f614176543f
6d1a/?vgnextoid=f8ef93de9b21b110VgnVCM 1000004718190aRCRD&vgnext
channel=68439c7755cb9010V gnVCM10000045f3d6a1RCRD.

9. TSA Testifies on Watch Lists; ACLU Protests
Transportation Security Administration (TSA) administrator Kip Hawley recently testified before the House Transportation and Infrastructure Subcommittee on Aviation on TSA’s use of subsets of the terror watch list and airlines’ misidentifying passengers on these watch lists, a topic that has been in the news recently as a CNN reporter and others have been sent repeatedly to secondary inspections following their alleged erroneous inclusion in the watch lists and inability to have their names removed.

The TSA noted that “misidentification hassles at the airline ticket counter is consistently among the most frustrating complaints of the traveling public.” The TSA announced a solution that requires action by the airlines. The TSA said that each airline now has the flexibility to create a system to verify and store securely a passenger’s date of birth, to clear up watch list misidentifications. By voluntarily providing this data to an airline and verifying that information at the ticket counter, the TSA said, travelers who were previously inconvenienced on every trip will now be able to check in online or at remote kiosks.

As an incentive for the airlines to take action, the TSA announced plans to collect data from air carriers to determine how many cleared passengers are being forced to the ticket counters to verify their identification before being issued a boarding pass. The TSA said it is also actively exploring enforcement action against air carriers who tell passengers inaccurately that they are watch-listed. The TSA reportedly is also threatening to fine airlines up to $25,000 when they erroneously tell passengers they are on a terrorist watch list.

The TSA stated that fewer than 50,000 individuals are on the no-fly and selectee lists. Individuals on the no-fly and selectee lists are identified by law enforcement and intelligence entities as legitimate threats to transportation who require either additional screening or are prohibited from boarding an aircraft. The watch lists also include any aliases or variations an individual may use, which drives up the overall number of names on a list.

David Stempler of the Air Travelers Association was not impressed by the TSA’s blaming airlines for the problems: “Airline security should always have been a government responsibility, and deflecting criticism to the airlines is inappropriate.” The TSA is expected to assume responsibility for checking names against the lists early next year.

Meanwhile, the American Civil Liberties Union, which calculates that there are over one million names on the list, called on the House Homeland Security Committee to exercise vigorous oversight of the Department of Homeland Security programs that “endanger U.S. citizens’ privacy and civil liberties without increasing security.” Caroline Fredrickson, director of the ACLU’s Washington Legislative Office, said, “Members of Congress, nuns, war heroes and other ‘suspicious characters,’ with names like Robert Johnson and Gary Smith, have become trapped in the Kafkaesque clutches of this list, with little hope of escape.”

The TSA’s notice is available at http://www.tsa.gov/press/happenings/reporter_watch_list.shtm. Mr. Hawley’s testimony is available at http://www.tsa.gov/press/speeches/072408_hawley_aviation_security.shtm. Complaints may be filed online at http://www.dhs.gov/xtrvlsec/programs/gc_1169676919316.shtm. The ACLU’s statements are at http://www.aclu.org/privacy/35968prs20080714.html and http://www.aclu.org/privacy/36026prs20080717.html. The ACLU’s watch list counter is at http://www.aclu.org/privacy/spying/watchlistcounter.html.

10. USCIS Revises Biometric Instructions for Reentry Permits and Refugee Travel Documents
U.S. Citizenship and Immigration Services (USCIS) has issued revised instructions for Form I-131, Application for Travel Document. The instructions include changes that require applicants for re-entry permits and refugee travel documents to provide biometrics (e.g., fingerprints and photographs) at a USCIS Application Support Center (ASC) for background and security checks and to meet requirements for secure travel and entry documents containing biometric identifiers.

The new instructions for the I-131 require that applicants for re-entry permits and refugee travel documents who are ages 14 through 79 provide biometrics before departing from the U.S. Applicants are strongly encouraged to apply, whenever possible, well in advance of their anticipated travel dates to allow time to attend their ASC appointments and to receive their travel documents. Shortly after filing an I-131 for a refugee travel document or a re-entry permit, USCIS will mail the applicant his or her receipt and an ASC scheduling notice. Certain overseas USICS offices may, in their discretion, accept and adjudicate an I-131 filed for a refugee travel document (but not a re-entry permit), where the applicant has failed to apply while in the U.S. Applicants for refugee travel documents should not count on the overseas offices necessarily agreeing to accept and adjudicate an I-131 in all cases, however, particularly where it is evident to the agency that the individual could have applied while in the U.S. and attended his or her biometrics appointment.

If applicants require expedited processing, the instructions provide specific information for submitting pre-paid express mailers with the I-131 for USCIS to send the applicant his or her receipt and ASC appointment notice, as well as the completed re-entry permit or refugee travel document, if approved. A request for expedited processing should contain the applicant’s reasons for such processing so that USCIS may determine whether the applicant qualifies for expedited processing.

The notice is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35 e66f614176543f
6d1a/?vgnextoid=9c1161ccdc20b110VgnVCM 1000004718190aRCRD&vgnex
tchannel=68439c7755cb9010Vg nVCM10000045f3d6a1RCRD.

11. USCIS Continues Suspension of Premium Processing for Religious Workers
U.S. Citizenship and Immigration Services (USCIS) announced that the suspension of premium processing service for religious worker (R-1) nonimmigrant visa petitions will continue at least until January 7, 2009. A previous six-month suspension was announced on January 4, 2008.

The Premium Processing Service provides faster processing of certain employment-based petitions and guarantees a 15-calendar day processing time. Because of the complexities of adjudicating R-1 nonimmigrant visa petitions, USCIS said it cannot reasonably ensure a level of processing service within 15 calendar days.

On April 25, 2007, USCIS proposed significant revisions to its regulations related to the special immigrant and nonimmigrant (R-1) religious worker visa classifications. The proposed rule suggested steps to eliminate fraud in the religious worker program and discussed potential vulnerabilities addressed in an August 2005 Benefit Fraud Assessment conducted by USCIS’s Office of Fraud Detection and National Security. USCIS said it is considering comments on the proposed rule.

USCIS will continue processing R-1 nonimmigrant visa petitions, including procedures that may include inspections, evaluations, verifications, and compliance reviews for religious organizations. These procedures necessitate exceeding the 15-day guarantee for premium processing.

In the future, the agency said it may reconsider this decision if it is able to properly process these cases within 15 calendar days of receipt. USCIS may prescribe additional conditions of availability on the Premium Processing Service for religious worker petitions.

The USCIS notice is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35 e66f614176543f6
d1a/?vgnextoid=788bc1cacd70b110VgnVCM 1000004718190aRCRD&vgnextc
hannel=68439c7755cb9010V gnVCM10000045f3d6a1RCRD.

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