U.S. Citizenship and Immigration Services (USCIS) issued a reminder that e-filing remains an option for filing a Form I-90 (Application to Replace a Permanent Resident Card). E-filing is a free service; no additional processing fees are charged. Step-by-step instructions and reminders are intended to help reduce errors and time spent filling out applications. Users may save partially completed applications for completion at a more convenient time. The system provides an immediate confirmation receipt notice upon successful submission of the application. The receipt provides a receipt number, a receipt of payment notice, and next step instructions. Users may pay application fees electronically at no extra charge by using either their personal checking or savings account or credit/debit card (Visa, MasterCard, American Express, and Discover are accepted).

Those e-filing an I-90 do not need to submit paper photographs or self-schedule an appointment at an Application Support Center to capture biometrics. The applicant will receive a notice in the U.S. mail of a USCIS-scheduled appointment for capturing biometrics and photographs. All required initial evidence and supporting documentation should be brought to the appointment.

The application and instructions are available at

http://uscis.gov/graphics/formsfee/forms/e-i-90.htm.

5. Department of Labor Rescinds Controversial Portions of August PERM FAQ, Makes Progress on Labor Cert Backlogs 

The Department of Labor has rescinded portions of a FAQ on the new PERM regulations(http://ows.doleta.gov/foreign/faqsanswers.asp#filing12). The rescinded portions dealt with multiple labor certification filings; in essence, in contrast to past practice, it appeared that employers under PERM would be precluded from having more than one application for the same alien actively in process at any given time, and would be unable to have one application processed under both the old and new systems. The Department said that it has "removed [these portions of the FAQ] posted on August 8, 2005. The Department is considering questions and information stakeholders have submitted in response to this FAQ posting, and will be developing and posting a clarified response in the near future."

ABIL member Teresa Mesi reports that the total number of labor certification cases forwarded to the Department of Labor's backlog reduction centers is roughly 345,000.  In addition, there are still cases waiting in the San Francisco and New York regional offices, which will be closed in early January 2006.  Of the 345,000 received, there are at least 100,000 pending cases where only partial data entry has been completed; only full data entry triggers mailing of the 45-day letter.  During the next two to three months, the backlog reduction centers plan to work to complete full data entry on these backlogged cases and issue 45 day letters. The backlog reduction centers have been working on reduction in recruitment and those traditional cases where recruitment had been completed previously and no further recruitment was required, Teresa notes. 

Also, the Department has released an extensive labor certification contacts list, available at http://www.ows.doleta.gov/foreign/contacts.asp (scroll down for the state-by-state details).

6. DHS, DOS Request Comments on Western Hemisphere Initiative Rule

On September 1, 2005, the Departments of Homeland Security (DHS) and State (DOS) issued an advance notice of proposed rulemaking (APRM) on the Western Hemisphere Travel Initiative (WHTI). The WHTI will require, by January 1, 2008, citizens of the U.S., Bermuda, Canada, and Mexico to have a passport or other accepted secure document that establishes the bearer's identity and nationality in order to enter or re-enter the United States. The DHS anticipates that Border Crossing Cards (laser visas) will be acceptable under the WHTI. Other documents being considered are the SENTRI, NEXUS, and FAST program cards. The DHS and DOS are reviewing new technology for secure travel documents, and this list could be revised in the future as a result.

In the proposed implementation plan, the WHTI will be rolled out on phases: (1) by December 31, 2006, the requirement will be applied to all air and sea travel to or from Canada, Mexico, Central and South America, the Caribbean, and Bermuda; (2) by December 31, 2007, the requirement will be extended to all land border crossings as well as air and sea travel.

Those wishing to comment on the proposal may access the Federal e-Rulemaking Portal, http://www.regulations.gov/TOPIC_8.cfm, and follow the instructions for submitting comments on this APRM. Additional information on the WHTI is available at http://travel.state.gov/travel/cbpmc/cbpmc_2223.html.

The APRM was published in the Federal Register at

 http://www.regulations.gov/fredpdfs/05-17533.pdf.

Recent Articles & News from fellow ABIL Members 

 

·        ABIL experts have written the PERM Guidebook for Foreign Labor Certification, which analyzes the new PERM final rule and its many implications for the permanent foreign labor certification process. The new rule makes major changes in the process for attestations, retention of documents, notice and filing requirements, refiling of pending applications, recruitment procedures, job requirements and duties, audit procedures, supervised recruitment, Board of Alien Labor Certification Appeals review, and prevailing wage considerations. Edited by Stephen Yale-Loehr, the Guidebook begins with a detailed summary and analysis of the final rule, including over 400 footnotes, and contains nine chapters: (1) New Permanent Foreign Labor Certification (PERM) System: A Summary and Analysis, by Steven A. Clark and Jane P. Devlin; (2) Policy Choices Driving the Labor Department's New PERM Rule, by Angelo A. Paparelli; (3) Permanent Residence Strategies for the Best and Brightest After PERM, by H. Ronald Klasko; (4) Justifying "On-the-Job" Experience and Foreign Language Requirements, by Cyrus Mehta and Elizabeth Reichard; (5) Special Considerations for Small Business Employers, by William Z. Reich and Jill A. Apa; (6) To Re-File or Not to Re-File Under PERM: That Is the Question, by Laura Danielson; (7) Labor Certification Audits Under PERM, by Stephen C. Trow and Norma B. Hoffpauir; (8) Documentation Requirements Under PERM, by Edward R. Litwin; and (9) Tools for PERM Case Management, by Julie Pearl. Appendices include the complete PERM final rule, including supplementary information and the full regulatory text; a chart comparing aspects of PERM versus earlier regulations; a Department of Labor contact list; FAQs; and the Standard Occupational Classifications. To order, call 1-800-533-1637 or purchase online at http://www.lexisnexis.com/shop.

·        Readers may not be aware of the challenges the key players involved in a merger, acquisition or other corporate restructuring encounter when they try to understand the "secret" immigration law affecting M & A deals. The law is secret because it exists primarily in old memoranda issued by the former Immigration and Naturalization Service - an agency abolished in March 2003. The key foreign workers (whether they are executives, managers, or critically important technical staff) must file individually and in advance to transfer to the payroll of the successor company and continue to be lawfully employed. Often, the immigration requirements are an afterthought. If the deal closes and the immigration niceties have not been followed, the transferring employees must rely on the kindness of strangers - the folks at the INS's successor agency, the unit within the Department of Homeland Security known as U.S. Citizenship and Immigration Services.  To learn how to avoid the potential risks and miseries of relying on people whose primary mission is homeland protection, see: No Broom and Shovel Brigade: Cleaning Up Immigration Messes in M & A Transactions Before They Occur, by Teri A. Simmons, David Grunblatt, and Angelo A. Paparelli,

·        Secure Borders, Open Doors, by Stephen Yale-Loehr, Demetrios Papademetriou, and Betsy Cooper, is the most comprehensive nongovernmental analysis of post-September 11 visa changes to date. In addition to outlining the current status of visa policy and discussing needed reforms, the report includes a chronology of major actions related to visas, terrorism, and travel from 1980 to the present, as well as a spotlight on student visa policy. The authors find that a comprehensive vision for the U.S. visa program and a strategic plan for implementation are critical. The authors find that one of the most improved elements of the visa system has been the security check process of visa applicants' names, which is now far more thorough. While the State Department is working to address delays caused by additional checks and mandatory interviews, the authors recommend changes to clarify the application process and make it more transparent; facilitate visa re-issuance from the United States; and waive interviews for travelers who have been issued visas recently. The authors also recommend improving the quality of interviews through the use of a secondary-like inspection at consular posts to target possible security risks.

A major weakness continues to be variable access to information through different agencies' databases. One of the visa program's greatest challenges, the authors believe, is countering international perceptions that the U.S. has become more hostile to visitors. Losses to tourism and industry have been significant in recent years, with nonimmigrant visa applications dropping by 35 percent between 2001 and 2003, international enrollment in U.S. schools for 2003-2004 down for the first time in three decades, and the number of tourists visiting the U.S. plummeting by over 10 million between 2000 and 2003. There are also reports of billions of dollars lost in foreign direct investment in the U.S. and contracts for U.S. In recent months, a sense of balance, proportion and flexibility has been gradually reintroduced into the visa program. Improved interagency planning, coordination and evaluation and more robust investments in intelligence, among other things, may help to deliver a visa program that successfully achieves both secure borders and open doors, the authors note.

·        Bernard P. Wolfsdorf recently co-wrote an article with Tien-Li Loke Walsh, “Secure Borders, Open Doors: Consular Processing Issues in 2005.”  The article discusses post-9/11 measures affecting the visa application process, including the security check process, documents applicants should bring to their interviews, the use of biometric technologies, the US-VISIT program, requirements for Visa Waiver Program applicants, students and scholars, and where to apply. The article also outlines what lies ahead in consular practice, including the "hot" new issue of the enforcement of export control regulations. Complete familiarity with nonimmigrant consular processing procedures and an in-depth understanding of the maze of security measures and related issues are vital to assisting clients in navigating the complex consular process, the article notes.

Links 

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Centers: https://egov.immigration.gov/cris/jsps/index.jsp

Department of Labor: http://www.ows.doleta.gov/foreign/times.asp

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

 

Who else should subscribe?

Are there other persons in your organization who should receive free copies of the Flynn & Clark Immigration Update Newsletter? Just let us know at ddinardo@flynnclark.com and we will send the person(s) an invitation. In order to be sure that only people who want to be subscribers are receiving the newsletter, we distribute it via Topica, using an invitation and confirmation approach.

How can I get more information on the topics in the newsletter?

Contact your Flynn & Clark attorney. We are staying on top of developments in these areas.

Steven A. Clark
Jane P. Devlin
Vincent W. Lau
Lynda J. Hagerty

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 (AILA) which has over 9000 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 visit our website, www.flynnclark.com or contact Darlene Dinardo.