Headlines:
1. USCIS Expands Premium Processing Service, Issues New Form – USCIS has begun accepting premium processing requests for EB-3 professional and EB-3 skilled worker petitions.
2. Labor Dept. Asks BALCA to Return Cases for Processing – BALCA was asked to return numerous cases held pending a decision in In re HealthAmerica, the first appeal of a labor certification denial under the new PERM system, in which the employer prevailed.
3. Activists Challenge Cities’ Crackdown on Undocumented Immigration – Cities around the country have begun passing tough measures to restrict undocumented immigration, but activists are challenging the new requirements.
4. US-VISIT’s Biometric Entry Procedures Deploying to Additional Locations – US-VISIT’s biometric entry procedures are being expanded to additional locations in Fresno, New Orleans, and Halifax.
5. USCIS Releases FAQ on Completing I-9 Verification Form – USCIS has provided answers to employers’ questions about how to complete employment authorization verification using the I-9 form.
6. U.S. Embassy, State Dept. Release Guidance on Visa Processing for Lebanese – Beirut has resumed immigrant visa processing and limited nonimmigrant visa processing; processing for all other visitor visa categories remains suspended until further notice.
7. AAO Says Film and Video Director Qualifies as H-1B Specialty Occupation – In an unpublished decision, USCIS’s Administrative Appeals Office directed that a petition for a film and video director be approved because the petitioner established that the proffered position qualified as a specialty occupation.
8. State Dept. Proposes to Require Passports at Certain POEs Beginning in January – The DOS proposes to require that U.S. citizens and nonimmigrants from Canada, Bermuda, and Mexico entering the U.S. at air and most sea ports of entry present a valid passport beginning in January.
9. USCIS Plans to Digitize Alien Files – Congress has provided funding for the digitization of approximately one million A-files per year.
10. Council of Graduate Schools Notes Rise in Foreign Grad Student Population – After a lull last year, graduate student applications and admissions are on the upswing.
11. Study Finds Immigration Increases Have Not Hurt Employment for U.S. Workers – The Pew Hispanic Center’s new report shows that large increases in immigration have not hurt overall employment prospects for U.S. workers.
12. NAFSA Releases Statement on Comprehensive Immigration Reform – NAFSA says that Senate-passed comprehensive immigration reform legislation contains important provisions that would bolster the U.S. position in the competition for international students and scholars.
13. Employment Third Preference Visa Availability May Retrogress – It cannot be assumed that recent advances in the employment third preference cut-off dates will continue during the coming months and retrogression is possible.
14. Recent News from ABIL Members – Recent News from ABIL Members
Details:
1. USCIS Expands Premium Processing Service, Issues New Form
U.S. Citizenship and Immigration Services (USCIS) announced that as of August 28, 2006, it has begun accepting premium processing requests for EB-3 professional and EB-3 skilled worker petitions. EB-3 professionals include immigrant workers with bachelor’s degrees who are members of the professions; EB-3 skilled workers include immigrant workers capable of performing skilled labor requiring at least two years of education, training, or experience.
Under premium processing, USCIS guarantees a petitioner that it will issue an approval notice, a notice of intent to deny, or a request for evidence, or that it will open an investigation for fraud or misrepresentation, within 15 calendar days of receipt. If the petition is not processed within 15 calendar days, USCIS will refund the fee and continue to process the request on an expedited basis. The fee for premium processing is $1,000. Employers may file for both categories using the Immigrant Petition for Alien Worker (Form I-140). A new Request for Premium Processing Services (Form I-907) has been issued and, as of August 28, 2006, previous versions of the form are no longer being accepted.
In addition to faster processing, participating petitioners may use a dedicated telephone number and e-mail address to check on the status of their petitions or ask questions.
Since 2001, premium processing has been available for several classifications using the Petition for Nonimmigrant Worker (Form I-129), including E treaty traders and investors, H-1B specialty occupation workers, H-2B temporary workers performing agricultural services, H-3 trainees, L intracompany transferees, O aliens of extraordinary ability and those performing essential support services, P performers and athletes and those performing essential services, Q international cultural exchange visitors, R religious workers, and NAFTA professionals from Canada and Mexico. I-129 petitions for these nonimmigrant worker classifications will continue to be eligible for premium processing service unless the filing period has closed (for example, when the annual numerical limit for a specific category has been reached).
USCIS’s announcement is available at http://www.uscis.gov/graphics/publicaffairs/newsrels/PremProc081806NR.pdf.
2. Labor Dept. Asks BALCA to Return Cases for Processing
The Department of Labor (DOL) has asked the Board of Alien Labor Certification Appeals (BALCA) to return to the DOL’s certifying officers (COs) for processing numerous cases the BALCA was holding pending a decision in In re HealthAmerica. In that decision, which was the first appeal of a labor certification denial under the new PERM system, the BALCA found that the CO abused his discretion in denying the employer’s labor certification application. Specifically, the application had been denied on the basis of a non-material typographical error; the employer, on a motion to reopen, presented evidence that was in existence at the time the application was filed that demonstrated its compliance with the law.
The letter sent from Gary M. Buff, the DOL’s Associate Solicitor for Employment and Training, to John M. Vittone, Chairman of the BALCA, states that the COs have reviewed HealthAmerica and concluded that no purpose would be served in filing briefs in cases that were held in abeyance pending the decision. There may be potentially significant differences between the facts in at least some of these cases and the facts in HealthAmerica, Mr. Buff acknowledged, but he said that how those distinctions affect the adjudication of a particular case would be dealt with “more appropriately” by the COs in a new determination. The DOL therefore requested that “the relief provided for in HealthAmerica be applied to all of the cases being held in abeyance. Those cases should be returned to the [CO] for review in order to complete processing of these cases in accordance with that decision.”
The HealthAmerica decision is available at http://www.oalj.dol.gov/Decisions/ALJ/PER/2006/In_re_HEALTHAMERICA_2006PER00001_(JUL_18_2006)_072241_CADEC_SD.PDF. Mr. Buff’s August 2 letter is at http://www.bibdaily.com/pdfs/Sheinfeld 8-2-06.pdf.
3. Activists Challenge Cities’ Crackdown on Undocumented Immigration
Cities around the country have begun passing tough measures to restrict undocumented immigration. For example, Hazleton, Pennsylvania voted in July to fine landlords $1,000 if they rent to an undocumented immigrant; deny permits to businesses that hire the undocumented; and make English the city’s official language. The Puerto Rican Legal Defense Fund and the American Civil Liberties Union, along with other groups on behalf of Hazleton residents, business owners, and nonprofits, sued Hazleton on August 15, 2006, arguing that the federal government has exclusive power to regulate immigration under the U.S. Constitution and that the new ordinance is discriminatory and unworkable.
Mayor Lou Barletta said he believes “this will be a landmark case. A line has been drawn here in Hazleton. This will impact cities all across the country.” He said that undocumented immigration is “destroying small towns” and that he has received requests from officials of 30 towns asking for a copy of Hazleton’s new law.
A similar lawsuit was filed against Riverside, New Jersey, for passing such an ordinance. Measures are being voted on — and protested — in other localities around the U.S. as well. Stay tuned.
4. US-VISIT’s Biometric Entry Procedures Deploying to Additional Locations
The Department of Homeland Security announced on August 15, 2006, that the US-VISIT program’s biometric entry procedures are being expanded to additional locations in Fresno, California; New Orleans, Louisiana; and Halifax, Nova Scotia, Canada. The procedures include digital, inkless finger scans and digital photographs.
Specifically, Fresno Yosemite International Airport began biometric screening on August 15, 2006. The Erato Street Cruise Terminal in New Orleans will begin biometric screening on October 15, 2006. The new pre-flight inspection location at Halifax International Airport will become the eighth pre-flight location in Canada to use US-VISIT biometric screening starting on a date to be announced later.
Since US-VISIT launched in 2004, more than 62 million people have been processed at U.S. ports of entry.
The announcement is available at http://www.dhs.gov/dhspublic/display?content=5804. General information about US-VISIT is available at http://www.dhs.gov/us-visit.
5. USCIS Releases FAQ on Completing I-9 Verification Form
U.S. Citizenship and Immigration Services’ USCIS Today publication includes a frequently asked questions (FAQ) section. The August 2006 issue’s FAQ provides answers to employers’ questions about how to complete employment authorization verification using the I-9 form. Among other things, the FAQ notes that an employer “is not required to know with absolute certainty whether a document is genuine or false.” USCIS notes that the law merely requires that an employer examine the original document, not a photocopy, and make a good-faith determination that the document appears to relate to the employee, appears to be genuine, and is listed as an acceptable document on the back of the I-9 form.
The FAQ is available at page 7 of USCIS Today, http://www.uscis.gov/graphics/publicaffairs/USCISToday_August_06.pdf.
6. U.S. Embassy, State Dept. Release Guidance on Visa Processing for Lebanese
The Consular Section in Beirut, Lebanon reportedly has resumed immigrant visa processing as of August 24, 2006, and has resumed limited nonimmigrant visa processing as of August 28 for F, H, J, L, M, O, and P applicants. Processing for all other visitor visa categories remains suspended until further notice. Embassy Athens was designated as the immigrant visa processing post for Lebanese nationals until Embassy Beirut could resume normal visa operations. Embassy Athens may be contacted at http://www.usembassy.gr. Lebanese immigrant visa applicants may address related inquiries to Athens-IV-Lebanon@state.gov.
The Department of State has issued guidance at http://travel.state.gov/visa/laws/telegrams/telegrams_2998.html.
7. AAO Says Film and Video Director Qualifies as H-1B Specialty Occupation
In an unpublished decision issued August 15, 2006, U.S. Citizenship and Immigration Services’ Administrative Appeals Office (AAO) approved an H-1B nonimmigrant visa petition for a film and video director to work in entertainment. The AAO found that the petitioner established that the proffered position qualified as a specialty occupation.
The AAO noted that the Department of Labor’s Occupational Outlook Handbook does not state that a baccalaureate-level education is normally the minimum requirement for entry into such a position. In this particular case, however, the AAO said that the duties of the position are so specialized and complex that the knowledge required to perform them is usually associated with the attainment of a bachelor’s or higher degree. Much of the work to be performed involves the transformation of images into special-effect animated digital media. “Motion-capture is an area of expertise that requires the use of specialized equipment and personnel,” the AAO noted, adding that the beneficiary “is involved in virtually all areas of project production and development, including the editing of the final product.” The AAO further pointed out that the petitioner has a master of fine arts degree in motion picture, television and recording arts, which is closely related to the duties of the proffered position and qualifies the beneficiary to perform the duties of the position.
8. State Dept. Proposes to Require Passports at Certain POEs Beginning in January
The Department of State (DOS) issued a notice of proposed rulemaking on August 11, 2006, that would require as of January 8, 2007, that U.S. citizens and nonimmigrants from Canada, Bermuda, and Mexico entering the U.S. at air ports of entry (POEs) and most sea POEs, with certain limited exceptions, present a valid passport. The proposed rule would not change the requirements for U.S. citizens and nonimmigrant aliens entering from Canada, Bermuda, and Mexico and certain types of arrivals by sea (e.g., ferries and pleasure vessels), which will be addressed in a separate, future rulemaking. The DOS said this proposed rule is the first phase of a joint plan by the Departments of Homeland Security (DHS) and State to implement new requirements under the Intelligence Reform and Terrorism Prevention Act of 2004, which provides that U.S. citizens and nonimmigrant aliens may enter the U.S. as of January 1, 2008, only with passports or alternative documents designated by the DHS.
General information about the Western Hemisphere Travel Initiative, as it is called, is available at http://travel.state.gov/travel/cbpmc/cbpmc_2223.html. The proposed rule is available at http://frwebgate2.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=990935416742+0+0+0&WAISaction=retrieve. Comments on the proposed rule are due September 25.
9. USCIS Plans to Digitize Alien Files
U.S. Citizenship and Immigration Services (USCIS) announced on August 17, 2006, that it has established a new Records Digitization Facility (RDF) in Williamsburg, Kentucky, to digitize more than one million USCIS alien files (A-files). USCIS said it plans to use the digitized files “to begin the transformation of its business processes.” Congress has provided funding for the digitization of approximately one million files per year. There are approximately 70 million immigration records, which means it would take USCIS 70 years to digitize all its records.
USCIS said the digitized A-files can be made available to multiple users at the same time, and can be made available immediately without shipping or handling. The agency noted that the ability to make the files available to multiple users simultaneously is valuable especially when files are needed “for law enforcement or national security reasons.”
USCIS said the digitized A-files can be made available to multiple users at the same time, and can be made available immediately without shipping or handling. The agency noted that the ability to make the files available to multiple users simultaneously is valuable especially when files are needed “for law enforcement or national security reasons.”
The announcement is available at http://www.uscis.gov/graphics/publicaffairs/newsrels/Digitizn081706PR.pdf.
10. Council of Graduate Schools Notes Rise in Foreign Grad Student Population
The Council of Graduate Schools released data on August 9, 2006, that show a continued increase in foreign enrollments in U.S. graduate educational programs. The total number of foreign applications for graduate school in the U.S. is up 12 percent for fall 2006. The numbers vary considerably from country to country, however. For example, although notable increases are coming from China and India, admissions offers fell for applicants from the Middle East. The highest increase was in offers of admission to engineering students; offers in the arts and humanities were slightly down even though more applications in those fields were submitted. The Council of Graduate Schools said the overall increase is a “hopeful sign of a recovery in international admissions” after last year’s disappointing results.
The report notes that a variety of new practices were undertaken that might be resulting in the improvement in numbers, such as new international programs or collaborations; new or additional staff time devoted to international students; new funding for international recruitment trips; and new funding for marketing and promotion of graduate programs.
An article on the report by Inside Higher Ed is available at http://www.insidehighered.com/news/2006/08/09/intl. The Council of Graduate Schools’ full report, which includes a table in the appendix showing the percent change in applications and offers of admission from 2005 to 2006, is available at http://www.cgsnet.org/portals/0/pdf/R_intladm06_II.pdf.
11. Study Finds Immigration Increases Have Not Hurt Employment for U.S. Workers
The Pew Hispanic Center released a study on August 10, 2006, showing that large increases in immigration since 1990 have not hurt overall employment prospects for U.S. workers. Other factors, such as economic growth, played a larger role than immigration, said Rakesh Kochhar, the author of the study. He noted that immigration may affect job markets in local areas but that there were no national trends supporting such a link. The study did not examine the effects of immigration on wages. The report is available at http://pewhispanic.org/reports/report.php?ReportID69. An article summarizing the report’s findings is available at http://www.federalnewsradio.com/index.php?sid=876849&nid=78.
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12. NAFSA Releases Statement on Comprehensive Immigration Reform
NAFSA: Association of International Educators released a statement on August 3, 2006, estimating that international students and their dependents spend more than $13 billion on the U.S. economy each year. NAFSA said that attracting international students and scholars promotes U.S. foreign policy and international leadership and supports the U.S. position in cutting-edge innovation. The statement notes that Senate-passed comprehensive immigration reform legislation “contains important provisions that would bolster the U.S. position in the competition for international students and scholars,” and that NAFSA is “alarmed by the attempts of the House leadership to promote the idea that nothing else should be done until the border is secure.” NAFSA quoted New York City Mayor Michael Bloomberg: “It is as if we expect border control agents to do what a century of Communism could not — defeat the natural forces of supply and demand and defeat the natural human instinct for freedom and opportunity. You might as well sit on the beach and tell the tide not to come in.”
NAFSA’s statement is available at http://www.nafsa.org/press_releases.sec/press_releases.pg/comprehensive_immigration. NAFSA has summarized its position in a June 2006 report, Restoring U.S. Competitiveness for International Students and Scholars, available at http://www.nafsa.org/_/Document/_/restoring_u.s.pdf.
13. Employment Third Preference Visa Availability May Retrogress
The Department of State noted in its Visa Bulletin for September 2006 that the employment third preference cut-off date for most countries has advanced rapidly in recent months in an effort to maximize number use under the annual numerical limit. As a result, applicant demand for numbers, particularly for adjustment of status cases at U.S. Citizenship and Immigration Services (USCIS) offices, is expected to increase significantly. Therefore, it cannot be assumed that such advances will continue during the coming months. The Visa Bulletin noted that the Department of Labor expects to complete its backlog reduction effort during fiscal year (FY) 2007. This effort “will result in tens of thousands of cases, including many with very early priority dates, becoming eligible for processing” at USCIS offices, which could require the retrogression of the employment third preference cut-off dates at any time during FY 2007, the Department said.
The Visa Bulletin for September 2006 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3009.html.
14. Recent News from ABIL Members
Charles H. Kuck, ABIL member and Vice President of the American Immigration Lawyers Association (AILA), read a statement at a press conference on August 14, 2006, that subsequently was entered into the Congressional Record as testimony before the House of Representatives’ Workforce Protections Subcommittee. Mr. Kuck expressed his support of the wage provisions in the Senate’s version of comprehensive immigration reform legislation. Among other things, Mr. Kuck noted that the prevailing wage provision in the Senate legislation “is designed to prevent employers from recruiting guest workers willing to work for a wage that will adversely affect the living standards and wages of American workers,” and helps to ensure “that guest workers are hired only when labor markets are tight.” He said the prevailing wage provision of S. 2611 is a “minimum, but necessary, standard.” Mr. Kuck’s statement is available at http://www.aila.org/content/default.aspx?docid=20290#search=%22%22statement%20in%20support%20of%20comprehensive%20immigration%20reform%22%20kuck%22.
Stephen Yale-Loehr, ABIL member and chairman of AILA’s Business Visa Committee, has co-authored an article summarizing recent developments in employer sanctions enforcement. The article includes a list of tips to help employers comply with employer sanctions requirements without violating antidiscrimination laws. The article, “Criminalizing Employer Sanctions: Employers Walk a Tightrope,” is available at http://www.law.com/jsp/nylj/PubArticleNY.jsp?hubtype=FeaturedContent&id=1156425446156.
