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.
GET READY NOW FOR APRIL 1ST H-1B FILINGS
Given the importance of H-1B status to employers and foreign workers alike, it is well worth repeating that in two months employers will be able to file new H-1B petitions for their professional employees who will commence work on October 1, 2008. Employers who have not already done so should immediately identify those employees and new hires who will require a cap-subject H-1B visa so that a petition can be filed on April 1, 2008. Employers who are filing for H-1B visas for those who have earned a Masters degree or higher from a U.S. university also are urged to file on April 1st since it is expected that these visas too will be exhausted on April 1st. (20,000 additional H-1B visas are set aside for these individuals, making the total number of cap-subject H-1B visas 85,000.)
UPDATE ON WORKPLACE ENFORCEMENT-RELATED ISSUES
As reported in last month's Immigration News and Analysis , the Department of Homeland Security (DHS) has been actively pursuing regulatory and other activity to ensure employer and employee compliance with current work authorization laws. As part of this effort, DHS has encouraged states to make greater use of E-Verify, the electronic employment verification system. In Arizona, that state passed legislation that would require all employers to use E-verify for their employees. While the law became effective on January 1, 2008, a lawsuit was filed by the ACLU to stay its implementation. While the court denied the ACLU's request for a temporary restraining order, Arizona enforcement officials agreed not to bring enforcement proceedings before March 1, 2008. A hearing on the case is scheduled for mid February. The law does not appear to apply to out-of-state employees of a company with multiple job sites where one job site is located in Arizona. In other words, only the Arizona employees of such a company would be subject to E-Verify. Meantime, the Illinois legislature passed a law prohibiting employers from enrolling in E-Verify on privacy grounds. DHS sued Illinois and asked the court to declare the new law illegal. That law was to take effect on January 1, 2008 as well but Illinois agreed not to enforce it until the lawsuit is concluded.
SUMMER SURGE IN NATURALIZATION APPLICATIONS WILL CAUSE TWO YEAR PROCESSING DELAYS
U.S. Citizenship and Immigration Services (USCIS) Director Emilio Gonzalez recently told the House Judiciary Committee at its hearing on naturalization delays that the average processing time for naturalization applications has increased to 18 months, from seven months previously. He also testified that family-based adjustment of status applications now take 12 months instead of six, on average, although in many parts of the country delays have been longer for some time. Even before the summer surge in immigration applications - in June, July and August, USCIS received three million immigration benefits applications compared to 530,000 in an average month - approximately 150,000 citizenship applicants had been waiting more than six months to have their names clear the FBI name-check process. While USCIS has plans to automate and increase its staffing, it is hard to imagine how this backlog can be cleared by mid 2010, the date by which USICIS expects to resume its alleged "normal" processing time of six months. These delays effectively bar legal immigrants from voting in the upcoming Presidential elections, obtaining certain jobs, and fully participating in our body politic.
In a related note, USCIS announced a proposed settlement in a national class action law suit for adjustment of status and naturalization applicants who were recipients of Social Security Income (SSI) benefits, and have had, or will potentially have, benefits cut off. The settlement of the case has been provisionally approved by the court and is now being distributed for review by class.
USCIS BEHIND ON ONLINE AR-11 ADDRESS CHANGES; ALTERNATIVES SUGGESTED
Foreign nationals in the United States are obligated to notify the USCIS of a change in address within ten days of that change, and failure to do so can have drastic consequences. We have learned that USCIS is now more than three months behind in updating address changes submitted online. While USCIS had indicated that it preferred address changes submitted online, that was before the summer application surge. For those who need to update their address records with USCIS (on Form AR-11), we recommend that after you submit the address change on online, also call (800) 375-5283 to speak with a representative to update the records for pending applications and petitions. This will ensure that USCIS notices, receipts, and other communication are sent to the proper address. To the extent that you already have a receipt notice, you will need to have that readily accessible when speaking with a USCIS representative.
ICE TO BEGIN REMOVING CERTAIN VIETNAMESE NATIONALS
For many years, Vietnam has refused to accept any deportees from the United States. On January 22, 2008, U.S. Immigration and Customs Enforcement (ICE) announced that it signed a memorandum of agreement with Vietnam regarding the repatriation of Vietnamese nationals who have been ordered deported and removed. Under the agreement, Vietnamese nationals who arrived in the United States on or after July 12, 1995 are subject to return to Vietnam. ICE estimates that approximately 1,500 individuals could be affected. The agreement goes into effect for three years on March 22, 2008.
FEBRUARY IMMIGRANT VISA BULLETIN
The February Immigrant Visa Bulletin confirmed the expected: Indian employment-based second preference (EB-2) (members of the professions with advanced degrees and individuals of exceptional ability) became unavailable. Even with significant retrogression, or roll backs of the priority date for India EB-2 from April 1, 2004 in November 2007 to January 1, 2000 just two months later in January 2008, the rate of demand as compared to annual limits left the Department of State with no choice but to deem the category unavailable, at least for now.
Charlie Oppenheim, Chief of Immigrant Visa Control and Reporting at the State Department, has advised that there is some possibility that India EB-2 could again become available if it appears that the demand for India EB-1 will not exceed the annual limit, but that determination cannot be made until the second half of the fiscal year.
For China-mainland born EB-2, if demand remains as it has over the last couple of months, it is expected that the January 1, 2003 cut-off date will hold, and it is likely that all numbers will be used within the current cut-off date.
In the family-based immigrant visa categories, there was slight forward movement generally from January to February, but nothing remarkable. Significant waits remain.
While the DOS has expressed its commitment to maximizing number usage so that no visa numbers remain unallocated at the end of the fiscal year, clearly demand is outpacing supply, and there is little the State Department can do. Last June when the Visa Office estimated that not all visa numbers would not allocated by the end of the year, it issued a Visa Bulletin announcing that all but one employment-based green card category would be "current" as of July 2007 as a way to pressure USCIS to adjudicate adjustment applications and thereby use all the remaining available visa numbers. While the same result is unlikely to occur this year because of the resulting inter-agency debacle, it is significant that DOS repeated its commitment. Perhaps this commitment can be parlayed into agency support for a legislative fix
RECORDING DEPARTURE FROM THE UNITED STATES, OR "I DIDN'T TURN IN MY I-94"
Occasionally, a foreign national departs the United States and discovers that her I-94 card (Arrival/Departure record) is still in her passport. This means that the U.S. Customs and Border Protection (CBP) does not have a record of that departure and the record remains open. The practical and very important implication is that in the future, CBP may conclude that the foreign national overstayed her prior period of admission, which could lead to visa cancellation or immediate return to a foreign point of origin. It could also mean that the individual could become subject to the three- or ten-year bars. For Visa Waiver Program visitors, this could mean that a visa will be required for future visits. If a foreign national did not turn in her I-94, CBP advises that it should be sent to ACS - CBP SBU, 1084 South Laurel Road, London, KY 40744, along with any documentation proving the departure from the U.S. Such documentation includes original boarding passes, copies of subsequent entry and departure passport stamps, pay vouchers indicating employment after the departure, school records indicating attendance after the departure, and credit card receipts for purchases in another country after the departure. CBP also advises that an explanation letter in English should accompany this documentation. More information is provided on the Customs and Border Protection (CBP) web site.
INVESTOR IMMIGRANT VISA OPTION THROUGH REGIONAL CENTERS SUNSETS IN SEPTEMBER UNLESS CONGRESS ACTS
Although immigrant investor status generally requires at least a $1 million dollar investment, the USCIS has approved immigrant investment visas through approved Regional Centers. Regional Centers focus on specific geographic areas and the promotion of economic growth, including where a $500,000 investment can be made in a "targeted employment area". ($1 million is still required if not in a "targeted employment area" but the job creation requirement is relaxed.) The Regional Center program was started as a pilot program in 1993, was renewed several times, but is presently set to expire on September 30, 2008, unless Congress acts.
In late December, Rep. Jeff Flake (R-AZ) introduced a bill that would make the Regional Center Program permanent. The bill would also allow for concurrent filing of adjustment of status applications, which currently is not permitted. Given the recent overhaul of the program and USCIS' scrutiny of applications to ensure full compliance, the continued infusion of overseas investment capital in areas designated for development would be a welcome boost for the U.S. economy.
IMMIGRATION AND THE PRIMARIES
IGOP Presidential candidate John McCain, well-known as the Senate's leading advocate for comprehensive immigration reform, received 54% of Republican Hispanic votes in Florida. Some believed that McCain's strong support for immigrants and their employers would doom McCain's candidacy - he was a key author of the comprehensive immigration reform legislation that died last June -instead immigration probably was the deciding issue that cost Mitt Romney a win in Florida and perhaps ultimately his hope of getting his party's nomination. Again, anti-immigrant rhetoric is not working with American voters. Hispanic voters are projected to expand to 14 million in 2008, thereby having more clout than ever, especially in delegate rich states like California, New York, Illinois, Florida, and Texas. It still remains to be seen how the immigration issue will play out between now and Super Tuesday next week, but Florida seems to reflect the mood of this important constituency, and perhaps the country.
MAGGIO & KATTAR IN THE NEWS
On January 4, 2008, Senior Attorney Thomas Ragland participated on a panel entitled, "International Scholars and National Borders" at the American Historical Association's Annual Meeting held in Washington, DC. Thomas was joined by Professor Waskar Ari, of the University of Nebraska at Lincoln whose H-1B visa had been pending "indefinitely" until Maggio & Kattar filed a mandamus suit. Also on the panel were Sally Hillsman, Executive Director of the American Sociological Association, and AHA President Barbara Weinstein. The lively discussion centered on what concrete legal actions can be taken to address visa-issuance and other immigration-related problems encountered by academics and scholars.