Immigration News Update & Bulletin - August 2004
 
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    • Immigration News Update: USCIS REVISES PHOTO SPECIFICATIONS

    After decades of requiring three-quarter view photos, Immigration will be changing photo specifications to require frontal view passport-style passports and to allow black and white photos. In fact it has adopted the photo guide used by the State Department for passports and visas so there will be one uniform standard. The US Citizenship and Immigration Service (USCIS) will continue to accept the old three-quarter view photos until September 1, but we recommend that our clients begin using the passport-style format immediately. USCIS will review in January whether to require frontal photos for cases where the three-quarter view photos were properly submitted prior to September 1, but the cases have not been processed. Requests for evidence already mandate the new specifications.

    Here is a summary and comparison of the new specifications (the full specifications can be found at travel.state.gov/passport/pptphotos/index.html should you need to refer to them):

    Because the specifications are so detailed (7 pages long) and strictly applied, we strongly discourage use of home made photos - leave it to the professionals and as always, go to those near an immigration or consular office to assure strict adherence to the guidelines. This is an agency not known for consistency - except when it comes to photos! Failure to have a perfect photo can delay a green card case for months and sometimes years.

    INFO PASS COMES TO BOSTON AND OTHER CITIES

    Starting August 16, 2004, you will be able to go online using INFOPASS to schedule an appointment to visit the Boston District Office. INFOPASS is a web-based scheduler that is already in use in Miami, Los Angeles and New York. Instead of waiting in long lines, you may visit the website at WWW.USCIS.GOV and schedule an appointment to make an inquiry. 33 USCIS offices nation-wide will begin using INFOPASS during the next two months. This innovation has been devised to reduce the lines. USCIS will start by scheduling about 50% of its daily appointments in Boston and will eventually go to a 100% daily schedule. This will hopefully eliminate all walk-in traffic and lead to less waiting. USCIS will continue to accept walk-ins for the immediate future but those with an appointment will have priority.

    USCIS MOVES CLOSER TO EMPLOYMENT AUTHORIZATION FOR DURATION OF PROCESSING PERIOD

    We have been advocating for over a decade that Immigration issue Employment Authorization for longer than a one-year period since cases may frequently take well over a year to decide. We are a step closer to that reality. Effective July 30, 2004 an interim rule permits the USCIS to authorize employment authorization for the full period it expects it to take to adjudicate cases up to five years. In a conversation with me earlier, USCIS Associate Director, Operations, William Yates indicated he would be issuing a directive to authorize a period equivalent to current processing projections, plus several months.

    NEW I-9 DOCUMENT FOR PERMANENT RESIDENTS

    Effective June 28, 2004 US Embassies and US Consulates began issuing Machine Readable Immigrant Visas (MRIV) with the following statement, “UPON ENDORSEMENT SERVES AS TEMPORARY I-551 EVIDENCING PERMANENT RESIDENCE FOR 1 YEAR.” As with all immigrant visas, the DHS officer at the port of entry will question the immigrant when she/he first arrives as an immigrant. After determining that the bearer of such visa should be admitted as a lawful permanent resident, the DHS officer places an admission stamp on the visa. With the new machine readable format the DHS officer will place the stamp on the upper part of the visa overlapping the adjoining page. When this happens, the bearer is admitted as a Permanent Resident and the visa qualifies as a Form I-9 List A #4 document that is valid for one year from the date of the endorsement stamp. In summary, the following qualify as List A, Item 4 documents that constitute temporary evidence of permanent resident status and employment authorization:

    • An unexpired foreign passport containing an unexpired temporary I-551 stamp (which states: “PROCESSED FOR I-551. TEMPORARY EVIDENCE OF LAWFUL ADMISSION FOR PERMANENT RESIDENCE. VALID UNTIL ______. EMPLOYMENT AUTHORIZED.”

    • An unexpired foreign passport with a MRIV and unexpired temporary I-551 stamp.

    • An unexpired foreign passport with the new MRIV containing temporary I-551 language and endorsed with an unexpired DHS admission stamp.

    As with the traditional temporary I-551 stamp in an unexpired foreign passport, employers must re-verify the work authorization of employees who present properly endorsed MRIVs no later than the expiration date of the temporary I-551.

    EXIT CONTROL PILOT PROGRAM (US-VISTI) EXPANDING

    Effective January 5, 2004 all nonimmigrants are required to provide fingerprints and photographs upon admission as the first phase of a new system requiring an integrated automated system recording entry and exit of almost all aliens. Exempted categories include those in valid diplomatic visa status (A-1, and A-2, but not A-3 attendants, servants or personal employees of accredited officials; governmental or UN visitors on G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 or NATO-6 visas; children under age 14; and persons over age 79). Initially one port was designated and those departing through that port were required to submit fingerprints on departure. Effective August 3, 2004 this was extended to require fingerprints and scanning of passports of non-exempted nonimmigrants upon departure from the following airports: Baltimore/Washington International; Newark International; Atlanta/ Hartsfield; O’Hare International; Philadelphia International; Dallas/Fort Worth International; Detroit Metropolitan Wayne County; Las Vegas/McCarran International; San Juan/Luis Munoz Marin International; Phoenix Sky Harbor; San Francisco International; Agana, Guam International; and Denver International as well as the following seaports: Miami and Los Angeles (including San Pedro and Long Beach).

    What does this mean for our clients? We advise our clients to keep proof of every exit from the US on a timely basis and be prepared to show copies on subsequent admissions. If an error is made there is a new contact for contesting or changing a record: Steve Yonkers, Privacy Officer, US-VISIT, Border and Transportation Security, DHS, Washington DC 20528. We suggest emailing or faxing given that government mail is delayed due to security concerns: email to privacyusvisit@dhs.gov, or fax 202-772-5036

    MORE LEEWAY FOR VISA WAIVER VISITS

    Visitors from one of the countries admitted as visitors for 90 days without a visa upon presentation of a round trip ticket under the Visa Waiver Pilot Program have had difficulty post-9-11 when records show that they have overstayed on a previous visit. In one instance we had a physician coming to take his Specialty Board examinations refused admission because records failed to show that he had gotten an extension on a prior visit and did not overstay two days as the database showed. No apologies from the government for this Service error: instead, he was handcuffed and detained overnight and put on the next flight back home. As a result of protests of mistreatment of its citizens by the British government, this practice has been modified, and rightly so. Now visa waiver applicants with records of a prior overstay will be eligible for admission under “parole” status unless the supervising inspector finds they may pose a threat of terrorism, criminality or likelihood of becoming an economic migrant.

    Citizens of the following may be eligible for admission under the visa waiver program: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. The United Kingdom refers only to British citizens who have the unrestricted right of permanent abode in the United kingdom (England, Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of Man); it does not refer to British overseas citizens, British dependent territories' citizens, or citizens of British Commonwealth countries. We remind our readers that while it is a great convenience to use the visa waiver program, extensions of the 90 day admission are not permitted even if the person travels to Canada or Mexico, changes of status are not permitted, and overstays are subject to immediate removal without a hearing or administrative or court review. However, overstayed visa applicants who marry a US citizen may be eligible to adjust status, provided they can establish a bona fide marital relationship, and did not enter with the intention of marrying and adjusting status to permanent resident.

    BIOMETRIC REQUIREMENTS DEADLINE EXTENDED

    The requirement to have biometrics in passports for Visa Waiver applicants by October 26, 2004 has been extended by one year as a result of an extension passed by Congress and signed by the President on August 9, 2004. However, the requirement that visa waiver applicants have machine-readable passports still goes into effect October 26, 2004. Eighteen of the 22 visa waiver countries have requested a postponement because they cannot convert to machine-readable formats by that deadline. As a result we can anticipate significant delays obtaining visas in those visa waiver countries because consular officials will have perhaps a tenfold increase in applications due to applications by those otherwise eligible for visa waiver admissions. We advise our clients, as always in the post 9-11 environment to allow plenty of time for visa processing should they have to travel.

    EXPEDITED REMOVAL EXTENDED BEYOND PORTS OF ENTRY

    The Department of Homeland Security (DHS) announced on August 11, 2004 that it will soon begin to use expedited removal not only at ports of entry, as is currently the case, but along the US border between entry ports. Expedited removal allows an immigration officer to remove a person from the US with an order barring readmission, sometimes for a 5-year period, without having to go before an Immigration Judge and with no administrative or court appeal process. This measure can now apply to those caught within 100 air miles of the northern or southern border, who have been in the US 14 days or less.

    DHS indicated that this policy is “not intended for Mexicans and Canadians,” but instead for third country nationals. However, the DHS spokesman conceded when pressed, that the policy could be used against such nationals, but would be “limited” to smugglers and “repeat offenders.”

    Initially, the program will be rolled out in the Laredo and Tucson sectors. Third country nationals will be detained or “removed as soon as circumstances allow.” DHS indicated that, in the past 16 months, some 42,000 third country nationals have been caught along the southern border. Of those, 26,000 were issued Notices to Appear (NTAs) instituting removal proceedings and 90% of those did not appear for their hearings.

    H NUMBERS

    Early reports indicate that H-2b numbers may cap out by December or January. We are awaiting an update from USCIS on H-1b numbers. If you wish to have an immediate report when we get this information, contact sclark@flynnclark.com.

    Immigration News Bulletin: URGENT H1B ANNOUNCEMENT

    Applies to Petitions By Nonexempt Employers or For Beneficiaries NOT Already in H1B Status

    This is to let you know that we received news late Friday afternoon regarding the U.S. Citizenship and Immigration Services (“USCIS”) allocation of new H1B numbers for FY2005, which begins October 1, 2004. Of the total 65,000 numbers allotted for the upcoming fiscal year (effectively only 58,200 because of set-asides for Singapore and Chile), 40,000 have already been applied for, of which over half are already approved.

    In our June update we projected that the numbers could be used up before the Fiscal Year even begins. This latest information suggests that available H-1B numbers for FY2004 may be exhausted before the fiscal year even begins, perhaps as soon as this week.

    Until we receive official word that the USCIS is no longer receiving H-1B petitions for FY2004, we will continue to file petitions. There will be room for some late filers as a result of the fact that very few of the visas set aside for Singapore and Chile will be used. If you have any new employees who will need H-1B visas at this point, we believe that it is not too late to file a petition on their behalf. Please contact us as soon as possible. (Please note that the 65,000 limitation only prohibits individuals from obtaining new H-1B visas. It does not apply to the following groups: Individuals who will be employed by an exempt employer, including institutions of higher education, non-profit organizations related to institutions of higher education, non-profit or government research organization; individuals who are currently in H-1B status even if not employed by an exempt employer.) Note also that it is unlikely to affect beneficiaries who are citizens of Singapore or Chile for whom a more than ample block of visa numbers has been allocated.

    We will continue to aggressively find other visa options for our client and to lead the effort to enact new legislation and elect new leaders who will sympathize with the dilemma caused by the H-1B shortfall. In the meantime, we will analyze the impact on recruitment of foreign nationals. Recruitment of foreign nationals will remain a viable option. However, it will require further coordination between the legal team and the recruitment team as we will now have to determine whether a given candidate is exempt from the cap, or eligible for another visa category such as J-1 or O-1. Many employers and immigration attorneys as well overlook some of these possibilities. We will work with you to make your recruitment strategy work.

    STEVEN A. CLARK

    FLYNN & CLARK, P.C. provides a full range of inbound as well as outbound immigration legal services for United States and foreign companies under the leadership of Steven Clark, Past President of the American Immigration Lawyers’ Association which has 8000 members worldwide. The Immigration Update provides periodic alerts about noteworthy developments in immigration affecting the business community. It is provided as a service of the Firm regarding legal developments; it is not a substitute for legal counseling and may constitute advertising material in some jurisdictions. If you have questions about the information contained in the Immigration Update or would like to know more about our Immigration services and nationwide visa processing capabilities, please contact Darlene Dinardo in Cambridge.

     
     
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