April 28, 2008

FACT SHEET ABOUT E-VERIFY (FORMERLY KNOWN AS BASIC PILOT PROGRAM)

Introduction
E-Verify has recently attracted significant attention from foreign students and U.S. employers since the announcement by the Department of Homeland Security (DHS) of new regulations regarding extension of F-1 Optional Practical Training (OPT) status. These new regulations set forth several requirements for a foreign national in F-1 OPT status to qualify for an extension, and the employer's enrollment in E-Verify is one of those requirements.

What is E-Verify?
E-Verify, formerly known as the Basic Pilot Program, is a free and voluntary Internet-based system allowing employers to electronically verify new employees' employment eligibility. The system is administered by the U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA). E-Verify works by comparing the new employee's Form I-9 information to the information in the SSA and the USCIS databases. The verification must take place within three business days of the employee's start date. If the information does not match correctly, the employer will receive a notification from the USCIS, usually within five seconds. The employer should not use E-Verify to check the employment eligibility of an existing employee. If the employer does opt to participate in the program, it must use E-Verify on every new hire regardless of his or her immigration status.

How does it work?

The participating employer enters the new employee's Form I-9 information into the E-Verify web site, receiving one of the three results:

1. "Employment Authorized"
The employee is authorized to work.

2. "SSA Tentative Non-Confirmation"
The SSA database is showing that the employee's name and social security number do not match.

3. "DHS Verification in Progress"
The Department of Homeland Security will respond within 24 hours with either an "Employment Authorized" or "DHS Tentative Non-Confirmation" notice.

If the employee's information results in "Employment Authorized" notice, the employer is required to record the verification number on the Form I-9.

If the employee's information results in "Tentative Non-Confirmation", the employer must immediately provide the employee with information about how to challenge the result. The employee has eight federal government working days to resolve the no-match result with the SSA or the USCIS. The employee may continue to work during that period.

If the employee chooses not to contest the result, the employer may terminate the employee.

What are the responsibilities of the employer?
The employer must enter into a Memorandum of Understanding (MOU) with DHS and SSA that makes explicit the responsibilities of the parties.

E-Verify can only be used to verify new hires' employment eligibility and must be initiated within three business days of the new employee's actual start date.

The E-Verify procedure must be applied to all new hires regardless of their immigration status.

The employer must post a notice at the worksite stating that it is an E-Verify participant and must post other notices supplied by DHS.

If tentative non-confirmation is received, the employer must promptly provide information about how to challenge the result, including a written notice generated by E-Verify.

The employer may not take any action against an employee because he or she contests the information mismatch.

The employer may not terminate an employee until a final non-confirmation is received, unless the employer gains actual knowledge beforehand that the employee does not have employment authorization.

The employer must comply with the anti-discrimination rules under section 274B of the Immigration and Nationality Act.

The employer must safeguard the information provided to and received from E-Verify under subject of criminal penalties.

The employer must allow USCIS and SSA to make periodic visits and allow USCIS and SSA to interview the persons handling the program and employees hired during participation in.

What are the benefits of enrolling in E-Verify?
If the employer receives employment eligibility confirmation from E-Verify, the employer is presumed not to have violated the employer sanctions rules in section 274A of the Immigration and Nationality Act. However, USCIS does not consider participation in E-Verify a "safe harbor" from federal worksite enforcement. Note that some states do consider using E-Verify a safe harbor from the state's worksite enforcement law.

What are the risks associated with participating?
The USCIS and SSA databases E-Verify uses do not meet the standard for accuracy set by Congress.

Foreign-born employees are 30 times more likely to receive a tentative non-confirmation than U.S.-born employees.

Any person posing to be an employer may gain access to E-Verify and information in the USCIS and SSA databases.

Many participating employers have been found to have misused E-Verify.

Although most tentative non-confirmation cases are resolved within the designated time period, there are instances where the resolution takes months and sometimes more than a year. The work-eligible employee whose tentative non-confirmation takes a long time may be out of work after the designated time period even if he or she is making a good faith effort to contest the result.

If the employer chooses to stop using E-Verify, it must continue to participate for 30 days after giving written notice to USCIS that it wishes to discontinue its participation.

The Westat report, which evaluates E-Verify, can be accessed here.

What can employees do if they feel they have been discriminated against?
The Employee may report to the Office of Special Counsel for Immigration Related Unfair Employment Practices at 1-800-237-2515.

What is the current status of E-Verify?
Although it is a voluntary program by federal law, some federal government employers are required to use E-Verify. Several states have also passed legislation mandating employers' participation in E-Verify, and several states are considering similar legislations.

The state of Illinois enacted legislation prohibiting employers from using E-Verify until the system's accuracy improves substantially. DHS has filed a lawsuit against the state of Illinois in response to this legislation.

Conclusion
E-Verify is a pilot program which has been controversial since its inception. Issues relating to E-Verify are fast evolving. We advise you to consult with experts in immigration law and with experts in the relevant state's labor and employment law when you consider participation in the program.

April 7, 2008

THE DEPARTMENT OF HOMELAND SECURITY ANNOUNCES CHANGES IN REGULATIONS GOVERNING F-1 STUDENT STATUS AND DURATION OF OPTIONAL PRACTICAL TRAINING.

Beneficiaries of H-1B petitions that have been selected for processing in the H-1B lottery will benefit from the automatic extension of their F-1 OPT status and employment authorization until October 1 of the following fiscal year, the first date that an H-1B worker can begin employment.

For the beneficiaries whose H-1B petitions are not selected in the H-1B lottery and for those who have not yet submitted H-1B petitions, they may be able to extend their OPT period for additional 17 months if the following conditions are met:

- The F-1 student holds a baccalaureate degree or higher in one of the approved academic majors in the fields of science, technology, engineering, and mathematics ("STEM");

- The student is currently working in a field related to his/her academic major in F-1 OPT status;

- The student is currently employed by an employer who has enrolled in the E-Verify program, an employment eligibility verification system operated by the USCIS; and

- The extension application is filed at least 90 days before the current OPT expiration date.

Note that students, who timely file their applications for extension of employment authorization document for STEM OPT, may continue to work while their applications are pending.

You can review a USCIS Fact Sheet here.

March 18, 2008

NEW H-1B PETITIONS TO BE SUBMITTED ON MONDAY MARCH 31^st

As of Tuesday April 1, 2008, the USCIS will accept H-1B petitions for new employment to be counted against the FY2009 H-1B Cap. The annual quota for new H-1B petitions is 65,000. It is likely that the quota will be reached on the first day.

Employers are encouraged to review their current and future staffing needs to identify any workers for whom an H-1B petition should be filed. This may include not only new hires, but also persons who are currently working in F-1 status pursuant to Curricular Practical Training (CPT) or Optional Practical Training (OPT), workers currently in TN or J-1 status, or others. To arrive on Tuesday April 1, 2008, new H-1B petitions must be sent to the USCIS by Fed Ex on Monday March 31, 2008.

Petitions may be filed starting April 1, 2008 for start dates of October 1, 2008 (the beginning of FY2009). Once the quota is reached, Cap-subject H-1B cases will not be accepted by the USCIS until April 1, 2009 for start dates of October 1, 2009.

Note that petitions filed on behalf of current H-1B workers do not count towards the H-1B cap because they have already been counted against a previous year's quota. H-1B Extension of Status Petitions, Change of Employer petitions, and Concurrent H-1B filings will therefore continue to be processed without regard to the cap. This may also be true for H-1B petitions filed on behalf of persons who have held H-1B status at some point in the past 6 years.

Petitions for new H-1B employment are exempt from the annual cap if the beneficiary will be employed at an institution of higher education or related or affiliated nonprofit entity, or at a nonprofit research organization or governmental research organization.

In addition, the first 20,000 H-1B petitions filed on behalf of persons who hold a Master's or higher degree from a U.S. college or university will be exempt from the cap. Last year this special 20,000 exemption was met in early May 2007, however this number is expected to be reached must faster this year. There has been speculation the Master's cap will be met on the first day.

Please contact us immediately if you identify a potential candidate for a new H-1B petition, or if you have questions about the H-1B visa category.

Addie Hogan
FMF Global Law Group
ahogan@fmfgloballaw.com

January 10, 2008

Delays in Visa Issuance Resulting from DOS new PIMS

The DOS recently implemented a new procedure called PIMS (Petition Information Management Service) used by U.S. consular posts abroad to verify the approval of H, L, O, P and Q non-immigrant categories before a visa is issued. PIMS verification typically takes 24 hours, and if the petition approval cannot be verified through PIMS and needs to go through CLAIMS (USCIS’s Computer Linked Applications Information Management System) it typically takes 48 hours. However, foreign nationals who will be applying for nonimmigrant visas should expect longer processing times due to the new PIMS and CLAIMS verification requirement. The time frame will vary from case to case, but same-day and next-day visa issuance should not be expected for now.

November 10, 2007

NEW FORM I-9 RELEASED

USCIS has released a new Form I-9 for Employment Eligibility – the revised form is posted at http://www.uscis.gov/files/form/I-9.pdf. The new Form I-9 should be used immediately for all new hires and whenever re-verification of an existing employee is required. The new form revises the list of acceptable documents for proving both identity and employment eligibility (List A). It also notes that employees are no longer required to provide Social Security Numbers on the Form I-9 unless the employer participates in the E-Verify program. A USCIS Fact Sheet is posted at http://www.uscis.gov/files/pressrelease/FormI9FS110707.pdf. There is also a new M-274 Handbook for Employers with Instructions for Completing the Form I-9 at http://www.uscis.gov/files/nativedocuments/m-274.pdf.

October 1, 2007

Visa Lottery Application Period is Open

The 2009 Diversity Visa Lottery online entry is now available and will be running through noon EST on December 2, 2007. Instructions and the online entry form can be found on this website.

On an annual basis, a maximum of 55,000 immigrant visas are made available to qualifying persons from countries with low rates of immigration to the United States via the computer-generated random lottery process. Applicants must submit applications online (paper entries will not be accepted), and applicants are strongly encouraged not to wait until the last week of the registration period to entry because heavy demand may result in website delays.

July 17, 2007

USCIS announced today that employment-based adjustment of status applications will be accepted from now until August 17, 2007, despite its previous statement that visa numbers were not available. These applicants will be able to pay the July filing fees during the entire period, although a USCIS filing fee increase will otherwise go into effect on July 30, 2007.

April 13, 2007

May 2007 Visa Bulletin Advances Certain EB-3 Priority Dates

The Visa Bulletin released for May shows movement in the EB-3 immigrant visa category for certain countries. EB-3 has advanced a full year for "All Chargeability Areas Except Those Listed" and for the Philippines – these are now listed as August 1, 2003. EB-3 for China (August 1, 2002), India (May 8, 2001) and Mexico (May 15, 2001) remain the same as last month. For information, the Visa Bulletin can be viewed at this website: http://travel.state.gov/visa/frvi/bulletin/bulletin_3219.html

April 12, 2007

USCIS Update on H-1B Cap Random Selection Process

The USCIS Associate Director for Domestic Operations informed members attending the American Immigration Lawyers Association (AILA) Texas Chapter Conference in Las Vegas that the H-1B random number generator is being run today, April 12, 2007. Adjudication of non-U.S. Master's degree cap subject H-1B petitions will not begin prior to April 13, 2007.

April 10, 2007

USCIS Update - U.S. Master's & Higher Degree Exemption Remains Available

The USCIS announced today that only approximately 12,989 cases requesting the U.S. Master's or Higher Degree exemption were received on April 2 and April 3. USCIS has now announced that the cap of 20,000 on these exempt cases remains open and that USCIS will continue to monitor these filings. This means that new H-1B petitions may continue to be filed at this time for persons who have received a Master's or higher degree from a U.S. institution.

April 9, 2007

USCIS Update on Premium Processing Cap Filings and Counting the U.S. Master's & Higher Degree Cases

USCIS announced today that the 15-day premium processing period for petitions subject to the H-1B cap will begin after the computer-generated random lottery has selected the petitions for processing. Today's USCIS announcement also stated that the USCIS will first conduct a computer-generated random lottery to select the first 20,000 filings with U.S. Master's or Higher degrees. Those filings not selected for processing under this exemption are subject to the H-1B cap and will then be considered in the general random selection process, as well. Thus, the 20,000 cap exemption filings will be selected by lottery first, prior to conducting the general random lottery.

April 5, 2007

USCIS Update on H-1B Cap Filings

Today's USCIS Press Release notes that on April 2 and April 3, USCIS received 133,000 unique pieces of mail containing H-1B petitions (less than the 150,000 estimated earlier), but each package may contain more than one filing. It will take USCIS a substantial amount of time to open and sort through that volume of mail.

As of Wednesday, 28,052 of the H-1B cases sorted are subject to FY2008 Cap, and 4,703 cases are exempt as employers filed those petitions for beneficiary's holding a master's degree or higher from a U.S. institution. The U.S. Masters or Higher exemption applies to the first 20,000 H-1B petitions received for individuals holding a master’s degree or higher from a U.S. institution.

April 3, 2007

USCIS Announces H-1B Cap Reached

USCIS announced this afternoon that it has received enough H-1B petitions to meet the cap for fiscal year 2008. USCIS will use a lottery process for all cap-subject petitions received on April 2 and 3. Also note that USCIS does not yet know how many of the petitions received qualify for the 20,000 cap exemption for persons holding a Masters or higher degree from a U.S. college or university. USCIS will make a future announcement regarding the final receipt date for those petitions.

March 28, 2007

U.S. Consulate in Sydney, Australia to curtail operations from July to September 2007

Due to the Asia-Pacific Economic Cooperation (APEC) forum, the consular section at the U.S. Consulate General in Sydney will need to substantially reduce routine visa, immigration, passport, and notarial services from mid-July to mid-September 2007, with closure for all routine services anticipated during the end of August and first week of September. We strongly encourage those requiring a visa from the Consulate in Sydney, Australia for travel to the United States this year to apply as early as possible. The Consulate’s announcement can be found on their website at: http://sydney.usconsulate.gov/consular/apec.html

January 2, 2007

PASSPORTS REQUIRED FOR ALL AIR TRAVEL TO UNITED STATES AS OF JAN. 23, 2007

Beginning January 23, 2007, ALL persons, including U.S. citizens, traveling by AIR between the U.S. and Canada, Mexico, Central and South America, the Caribbean, and Bermuda will be required to present a valid passport, Air NEXUS card, or U.S. Coast Guard Merchant Mariner Document, or an Alien Registration Card, Form I-551, if applicable.

As early as January 1, 2008, ALL persons, including U.S. citizens, traveling between the U.S. and Canada, Mexico, Central and South America, the Caribbean, and Bermuda by LAND or SEA (including ferries), may be required to present a valid passport or other documents as determined by the DHS. The deadline for the Land and Sea requirement may change. Advance notice will be given.

November 8, 2006

PREMIUM PROCESSING WILL BE AVAILABLE FOR EB-1 EXTRAORDINARY ABILITY PETITIONS ON NOV. 13

USCIS announced today that they will begin accepting Premium Processing requests for I-140 petitions in the EB-1 Extraordinary Ability category as of November 13, 2006.

September 25, 2006

PREMIUM PROCESSING NOW AVAILABLE FOR MORE I-140 PETITIONS

Premium Processing is now available for three additional I-140 petition immigrant categories including EB-1 Outstanding Professors and Researchers, EB-2 Advanced Degrees or exceptional ability not seeking a National Interest Waiver, and EB-3 workers other than skilled workers and professionals (i.e., unskilled labor requiring less than two years of training or experience). USCIS continues to charge an additional $1,000 fee for the Premium Processing service, which guarantees a response from USCIS within 15 days of receipt. Premium Processing is still not available for EB-1 Extraordinary Ability and EB-1 Multinational Executives & Managers.

September 25, 2006

DOS ANNOUNCES 2008 DIVERSITY VISA LOTTERY PROGRAM REGISTRATION

The DOS recently announced that applications for the 2008 Diversity Visa (DV) Lottery (green card lottery) will be accepted between Wednesday, October 4, 2006, 12:00pm EST and Sunday, December 3, 2006, 12:00pm EST. Applicants may access the electronic Diversity Visa entry form online. Paper entries will not be accepted. Applicants are encouraged not to wait until the last week of the registration period to enter since heavy demand may result in website delays. For additional information, including a list of countries whose natives are and are not eligible for this year's diversity program, see the DOS press release, available at http://www.state.gov/r/pa/prs/ps/2006/72835.htm

September 7, 2006

USCIS PLANS TO STOP EAD ISSUANCE AT LOCAL OFFICES BY OCTOBER 1, 2006

To streamline processing, all I-765 applications for EADs will be filed with the appropriate Service Center or the Chicago Lockbox address. USCIS expects this will enhance its ability to process EAD applications within the required 90-day timeframe and eliminate the need for an interim EAD. Local field offices will no longer issue interim EADs. This means applicants will no longer be able to walk in after 90 days to obtain an interim EAD that same day. Instead, new procedures will be put in place to allow Service Centers or the NBC to adjudicate the I-765 or issue interim EADs after 90 days from filing I-765 applications. These EADs will be sent by mail.

September 7, 2006

USCIS LIMITATIONS ON I-140 PREMIUM PROCESSING

USCIS has posted new, previously unannounced, limitations on the circumstances under which premium processing can be used for I-140 immigrant petitions. Premium Processing Service is currently available for I-140 EB-3 Professionals and EB-3 Skilled Worker classifications provided that the case does not involve: (1) a second filing of a Form I-140 petition while an initial Form I-140 remains pending; (2) Labor Certification substitution requests; and (3) duplicate Labor Certification requests (i.e., cases filed without an original labor certification from the DOL). USCIS explained that it is prescribing these additional conditions of availability because of their special processing requirements, including locating and transferring other files or documents internally and requesting initial evidence from an outside agency, that make it difficult for USCIS to guarantee that it will process the case within a 15 calendar day period.

September 7, 2006

DHS UPDATES VISA WAIVER PROGRAM PASSPORT REQUIREMENT TRAVELER GUIDE

DHS updated the Visa Waiver Program (VWP) Passport Requirement Traveler Guide, which clarifies changes in passport and e-Passport requirements for visitors traveling to the U.S. as part of the VWP. Any passport issued on or after October 26, 2006, by a VWP country must be an e-Passport for travelers to be eligible to enter the U.S. without a visa. E-Passports are not required until the traveler's existing passport expires in the following cases: a VWP traveler with a valid, machine-readable passport with a digital photograph where the photograph was issued prior to October 26 and a VWP traveler with a valid, machine-readable passport without a digital photograph where the passport was issued prior to October 26.

May 5, 2006

USCIS Posts Updated Fiscal Year 07 H1-B Cap Usage Figures

The USCIS began accepting H-1B applications on April, 2006. The USCIS has updated its website with the figures for H-1B usage for fiscal year 2007 as of April 28, 2006. As of this date 16, 737 H-1B Petitions have been approved or are currently being adjudicated. This figure, 16,737 counts against the standard H-1B cap. As for the H-1B Petitions that qualify for the exemption from the H-1B numerical limitations, 20,000 for foreign workers with a U.S. earned master's or higher degree; 2,884 cases have been approved or are in the process of adjudication.

Note: Petitions for H-1B workers who have been granted an H-1B visa in the last 6 years, as well as, petitions for current H-1B workers, do not count towards the congressionally mandated H-1B cap. Nor will petitions for J-1 nonimmigrants who are changing status to H-1B and who have obtained waivers of the home country residency requirement through the Conrad program or similar programs. The USCIS will continue to process petitions filed with request to:

• Extend status;
• Change terms of employment;
• Change employer; and
• Work concurrently in a second H-1B position

Periodic updates on new usage counts are available on AILA InfoNet at document #06050260: http://www.uscis.gov/graphics/services/tempbenefits/cap.htm.

January 18, 2006

USCIS REACHES H-1B EXEMPTION CAP FOR FISCAL YEAR 2006

Washington, D.C. - U.S. Citizenship and Immigration Services (USCIS) announced today, January 18, 2006, that it has received enough H-1B petitions that qualify for the exemption from the H-1B numerical limitations, 20,000, for foreign workers with a U.S. earned master's or higher degree.

The "final receipt date", determined by the USCIS, for the 20,000 cap exempt H-1B petitions is January 17, 2006. These "final receipt date" petitions, received on January 17, 2006, are subject to a random computer-generated selection process, randomly selecting the exact number of petitions from the days receipts needed to meet the congressionally mandated cap exemption of 20,000.

The earliest date that petitioners may re-submit their H-1B petitions for the 2007 Fiscal Year, for a start date of October 1, 2006, is April 1, 2006.

Note: Petitions for H-1B workers who have been granted an H-1B visa in the last 6 years, as well as, petitions for current H-1B workers, do not count towards the congressionally mandated H-1B cap. USCIS will continue to process petitions filed with request to:

• Extend status;
• Change terms of employment;
• Change employer; and
• Work concurrently in a second H-1B position

October 4, 2005

2007 Diversity Lottery Opening

The registration for the 2007 Diversity Visa (DV) Lottery will be opened from Oct. 5, 2005 until Dec. 4, 2005. All applicants must register online through the web site www.dvlottery.state.gov. The DV program makes 50,000 permanent resident visas available annually to persons from countries with low rates of immigration to the U.S. For 2007 DV, natives of 16 countries are NOT eligible including Canada, China, India, Mexico, Philippines and the UK (except Northern Ireland). No fee is charged to enter the annual DV program. For more information please visit here.

October 2005 Visa Bulletin

The most recent Visa Bulletin, October 2005, shows the predicted, and some unpredicted, retrogressions in both India and China for employment-based first and second preferences. The retrogression remains for the third preference worldwide. Please see the Department of State website for exact cut-off dates, visa bulletin.

September 7, 2005

The State Department promulgated on September 2, 2005 a new rule to include the E-3 nonimmigrant visa category. The E-3 visa classification currently applies only to Australian professionals who will perform services in a "specialty occupation" in the U.S. To obtain the E-3 visa, the employee must apply directly at a US consulate abroad after his/her employer has obtained an approved Labor Condition Application (LCA) from the DOL. No petition needs to be filed with the USCIS for E-3. A maximum of 10,500 visas are available annually.

August 12, 2005

USCIS announced today that it has received the maximum number of H-1B petitions to meet the numerical cap for fiscal year 2006. The 2006 fiscal year does not begin until October 1, 2005. USCIS has determined that the last receipt date is August 10, 2005. Any application received after that date will be returned. Those petitions that were received on August 10, 2005 will be subject to a “random selection process,” if need be.

June 16th, 2005

Fiscal 2006 H-1B Numbers Update

USCIS advises that it has not reached enough fiscal year 2006 cap-subject H-1B petitions to be nearing the cap. USCIS has unofficially stated that petitions are coming in more slowly than it predicted. However, it still believes that the fiscal 2006 cap likely will be reached before the actual start of fiscal year 2006 on October 1, 2005.

May 4th, 2005

The USCIS has announced for the filing period of Fiscal Years 2005 and 2006, candidates with a master’s or higher degree, maybe eligible for 20,000 new H-1Bs. New cases can begin filing on May 12, 2005 for Fiscal Year 2005. The current form I-129 will be accepted with proper annotations, until May 30, 2005. If filing for Fiscal Year 2006, as of April 1st, the first 20,000 petitions for H-1B workers who have a master’s degree or higher from a U.S. institution of higher learning, will be exempt from the congress mandated 65,000.

March 3rd, 2005

New Government Filing Fee

On December 8th, 2004, President Bush signed into law the Omnibus Appropriation bill (H.R. 4818) which affects both the H-1B and the L-1 visa programs. The new law created the Fraud Prevention and Detection Fee. The fee of $500 will apply to petitioners seeking either new H-1B, change of employer H-1B, or L nonimmigrant petitions, filed with USCIS on or after March 8, 2005. The fee does not apply to petitions to amend or to extend a stay by an existing H-1B or L petitioners.

January 3rd, 2005

PERM Regulations Have Been Published

On December 27, 2004 the DOL published the much anticipated PERM regulations. PERM amends the regulations governing the filing and processing of labor certification applications for the permanent employment of foreign workers in the United States. A new system has been implemented for filing and processing such applications. This system is based on an electronic audit based system which will dramatically decrease the current processing times of the Labor Certification application.

October 25, 2004

Effective 10/26/04, the Bureau of Customs and Border Protection will begin enforcing the requirement that travelers (including children) applying for admission under the Visa Waiver Program "VWP" must possess a machine readable passport. One-time exemptions may be granted.

October 4, 2004

The H-1B Cap for Fiscal Year 2005 Has Been Reached

On Friday evening, October 1, 2004, the USCIS formerly INS) announced that the H-1B cap has been reached for fiscal year 2005 which began on the same day. This means that "New" H-1B petitions received after that date will be returned. The USCIS will not begin accepting new petitions until April 1, 2005, six months in advance of the earliest possible start date which is October 1, 2005. In most cases, this does not affect those persons who currently hold valid H-1B status and are seeking a change of employer, extension of stay, amendments, or concurrent H-1B employment.

September 30, 2004

The USCIS has recently created a new publication, "Welcome to the United States: A guide for New Immigrants." This 102 page guide provides practical information on daily life as well as basic civic information. It has six sections:

• Your rights and responsibilities as a lawful permanent resident;
• Getting settled in the United States;
• Education and Childcare;
• Emergencies and Safety;
• Learning about the United States;
• Becoming a US citizen.

Click on the following link: Immigration Guide

Important Notice: On August 18, 2004, the U.S. CIS Announced that the Fiscal Year 2005 H-1B Cap-Subject Filings Have Reached 45,900

August 30, 2004

The Department of State is making available to the public information on waiting times for interview appointments and visa processing for nonimmigrant visas at individual posts. To view estimated waiting times for each post, please follow the link to the State Departments Visa Waiting Time website.

USCIS has announced that, as of August 4, 2004, it had received 40,000 cap-subject H-1B filings subject to the fiscal 2005 cap. Of those, 21,000 have been approved with the remainder in the process.

July 30, 2004

EADs May Now Be Issued for More Than One Year at a Time

Effective July, 30, 2004, the USCIS will no longer limit EAD validity periods to one year. The interim rule gives the USCIS discretion to modify EAD validity periods both for initial, renewal, and replacement cards. In determining appropriate EAD validity periods, the USCIS will consider criteria including the applicant's immigration status, general processing time for the underlying application or petition (such as an I-485 application to adjust status), response times for required background, other security considerations and other factors as deemed appropriate by USCIS. The USCIS will also be able to establish EAD validity periods for less than one year if the particular situation warrants it. In addition, for individuals granted asylum by the EOIR, the USCIS will issue initial EADs with validity periods of up to five years. Please note the new rule granting discretion to USCIS regarding EAD validity periods does not change the validity period of any EADs that have already been issued.

On July 23, 2004, The DHS Published its Notice in the Federal Register regarding Status for F/J Students Affected by the H-1B Cap – The Deadline for Filing a Change of Status is July 30, 2004. Contact our office for a copy of this notice.

July 28, 2004

USCIS TO CHANGE PHOTO REQUIREMENTS

On July 28, 2004, the USCIS advised that, starting Monday, August 1, 2004, USCIS it will begin accepting photographs in the Department of State (DOS) standard style (frontal view) for all benefits applications. It is expected to announce a cut-off date of September 1, 2004 after which it will not accept the frontal view currently required in some cases. According to American Immigration Lawyer's Association, the USCIS will not require DOS-style photographs on pending cases.

The USCIS will issue a public notice regarding the new photos and applicable deadlines. Please note that the DHS will likely generate new photo requirements at a later date as new facial recognition software is developed.

THE DEPARTMENT OF STATE HAS DISCONTINUED REISSUANCE OF CERTAIN NONIMMIGRANT VISAS IN THE UNITED STATES

On July 16, 2004, The Department of State (DOS) ended its domestic visa reissuance service for certain nonimmigrant visas in the United States. The following nonimmigrant visas can no longer be issued in the United States if received by the DOS St. Louis facility after July 16, 2004: C, E, H, I, L, O and P. Any application received after this date will be returned to the sender. Please note that in September of 2002, the DOS ceased processing applications for reissuance of A-3, G-5 and NATO-7 visas in the United States. The DOS will continue to receive applications for reissuance of qualifying diplomatic and official visas in Washington, DC in the following classifications: A-1, A-2, G-1, G- 2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 and NATO-6.

April 6, 2004

Bar-Coded DS-156 Application Forms No Longer Required

The Department of State (DOS) Visa Office is no longer requiring bar-coded versions of the DS-156 Nonimmigrant Visa Application form, due to technical difficulties. While DOS states it would prefer applicants to submit the bar-coded version, the DOS Visa Office and Consulates will accept the most recent non bar-coded February 2003 version of the DS-156.

Upon departure from the U.S., an individual will check out at designated kiosks by scanning their visa or passport and submitting fingerprints for a second time. The exit confirmation will be added to the individual's travel record to demonstrate compliance.

Twenty-seven countries currently participate in the VWP. These include: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. The VWP allows travelers from these countries to enter the U.S. for business (B1) or tourism (B-2) visits for up to 90 days without obtaining a visa.

April 5, 2004

DHS to Extend US-VISIT to Visa Waiver Travelers

On April 2, 2004, the Department of Homeland Security (DHS) announced its intention to extend the requirements of its controversial US-VISIT program to travelers from the 27 countries currently participating in the Visa Waiver Program (VWP), beginning September 30, 2004. The US-VISIT program currently collects biometric identifiers, such as fingerprints and digital photographs of individuals upon entry into the U.S. US-VISIT stores this biometric data as part of the individual's travel record, which will also be available to law enforcement agencies.

April 2, 2004

USCIS to Initiate Two Pilot Programs for Permanent Residency Processing

On March 31, 2004, the Director of the California Service Center (CSC) announced two pilot programs designed to tackle the backlog of permanent residency-related applications currently plaguing the CSC. The first pilot program is designed to expedite the approval of concurrently filed EB-2 I-140 petitions and I-485 applications (excluding National Interest Waivers) submitted to the CSC after April 5, 2004. The CSC promises to adjudicate both filings simultaneously within 90 days, provided that fingerprint and name clearances are obtained in a timely manner. Additionally, the CSC is promising to identify concurrently filed EB-2 I-140 petitions and I-485 applications currently pending in a concerted effort to reduce their backlog in this area.

The CSC is also promising to reduce I-485 processing times to one year by September 30, 2004, but warned that processing times for pending I-140s without a concurrently filed I-485 were likely to suffer. This pilot program applies only to EB-2 I-140s and I-485s filed with the CSC. This pilot program is being conducted at the CSC only.

The second pilot program involves I-90 applications (requesting a new or renewed green card) filed electronically at the Los Angeles District Office only. When an applicant goes to the Los Angeles District Office for biometric collection, the green card will be manufactured and mailed to the applicant immediately. The Los Angeles District Offices computers will be linked to the card manufacturing facility in order to implement this pilot program. Please note I-90 applications cannot be filed electronically for applicants 14 and younger.

April 1, 2004

New H-1B Petitions for Employment to Begin On or After October 1, 2004 Are Being Accepted for Adjudication

On April 1, 2004, the USCIS began accepting H-1B petitions for new employment that will commence on or after October 1, 2004. The approved petitions will count against the fiscal year 2005 (FY2005) H-1B cap. We advise employers to plan ahead and apply as early as possible for H-1Bs for employees to start employment on or after October 1, 2004. This is particularly true for foreign nationals currently employed pursuant to F-1 Occupational Practical Training Programs (OPT). We advise employers who anticipate offering an individual on OPT an H-1B position to file their H-1B change-of-status petition in the very near future while cap numbers are still available for FY2005. We expect that the FY2005 H-1B cap will be reached even sooner than it was in FY2004. Currently there is no congressional action taking place to increase the cap either for FY2004 or FY2005.

For those of you who may not have seen our February 18th Immigration Update, on February 17, 2004, the USCIS announced that the H-1B cap for FY2004 has been reached and that it would no longer accept petitions for new H-1B employment subject to the H-1B cap. Please note that the H-1B cap will not prevent a person who currently possesses H-1B/H-4 status from extending or amending his/her H status or from changing or adding an H employer. In addition, a person who has possessed H status and been counted against the cap during the prior six years also will not be prevented from reacquiring H status in most cases unless he/she has left the United States for more than one year since holding H-1B status. USCIS has implemented the following procedure for the remainder of FY2004:

• USCIS will process all petitions filed for first-time employment received by February 17, 2004.
• USCIS will return all petitions for first-time employment subject to the annual cap received after February 17, 2004.
• Returned petitions will be accompanied by the filing fee.

Petitioners may re-submit their petitions when H-1B visas become available for FY2005. The earliest date a petitioner may file a petition requesting FY2005 H-1B employment with an employment start date of October 1, 2004, is April 1, 2004. Petitions for current H-1B workers do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States.
• Change the terms of employment for current H-1B workers.
• Allow current H-1B workers to change employers.
• Allow current H-1B workers to work concurrently in a second H-1B position.

USCIS also notes that petitions for new H-1B employment are not subject to the annual cap if the alien will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization. USCIS will also continue to process H-1B petitions for workers from Singapore and Chile consistent with Public Laws 108-77 and 108-78.

January 5, 2004

- The United States Department of Homeland Security (DHS) launched its new program to further protect U.S. borders. Most foreign visitors and temporary workers with nonimmigrant visas at 115 airports and at 14 seaports are now subject to new security procedures.

The system uses biometrics, which are physical characteristics unique to each individual. This involves scanning two index fingers and having a digital photograph taken upon entry to the U.S. The purpose is to enhance the security of the the United States by identifying the visitors with visas. Please note, this extra scrutiny does not include those persons who are requesting admission under the visa waiver program.

You can find more information on this program at: www.dhs.gov/us-visit.