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Headlines: Ø 1. Senate Committee Approves Relief for Green Card and H-1B Backlogs - The Senate Judiciary Committee has approved an increase in the availability of permanent resident and H-1B visa numbers by allowing for the recapture of unused numbers from past years. Ø 2. USCIS Increases Immigration Filing Fees - USCIS increased most filing fees on October 26. Ø 3. State Dept. Provides Guidance on Students and Immigrant Intent - In student visa cases, a new Department of State cable states, consular officers should focus on the applicants' "immediate and near-term intent," not on what might happen in the future. Ø 4. U.S. Embassy in Mexico Sets New Procedures for Nonimmigrant Visa Appointments - As of October 17, 2005, there are new procedures for those wishing to schedule a nonimmigrant visa appointment in Mexico. Ø 5. GAO Finds Insufficient Oversight of J-1 Summer Work Travel, Trainee Programs The GAO has found that the Department of State is insufficiently guarding against abuse of the Summer Work Travel and Trainee programs, and has been slow to address program deficiencies. Ø 6. New Report Recommends Strategies to Close U.S. Competitive Gap - The National Academy of Sciences has released a report providing recommendations to address the growing concern that the U.S. may be losing its competitive advantage. Ø 7. RICO Claim Allowed to Proceed - The Eleventh Circuit is allowing a class of employees to proceed against their employer, Mohawk Industries, for conspiring with recruiting agencies working along the U.S.-Mexico border to hire and harbor undocumented workers and thereby depress labor costs. Ø 8. USCIS Updates Adjudicators' Field Manual - The Adjudicators' Field Manual, updated through September 2005, is now available online. Also in this issue: Be prepared for holiday travel Recent Articles & News from ABIL Members Details... 1. Senate Committee Approves Relief for Green Card and H-1B Backlogs The Senate Judiciary Committee has approved language in a budget bill that would increase the availability of permanent resident and H-1B visa numbers by allowing for the recapture of unused numbers from past years. An additional fee of $500 would be assessed for each employment-based immigrant petition and H-1B petition using the recaptured numbers. The bill also would provide that only employment-based immigrants, not their spouses and children, would count toward the annual limit on employment-based immigration. The provisions would permit the recapture of an extra 30,000 H-1B numbers per year. The Senate Judiciary committee's proposal must now go to the full Senate, and then be reconciled with the House's budget bill. The House bill would impose a new $1,500 fee for each L-1 nonimmigrant intracompany transferee, and would not provide any extra numbers for H-1B visas or employment-based green cards. It was hoped that a final bill could be enacted before Thanksgiving, but there are still some areas of difference between House and Senate versions. The House, on 11/18/05, passed a $49.9 billion budget reconciliation package by a vote of 217-215. The two chambers will now form It is important that members of Congress hear from companies, scientific and research institutions and universities about the adverse impacts of the H-1B visa blackout and the backlogs in the employment-based immigrant visa system. The more they hear from their constituents, the more likely it is for the Senate proposal, rather than the House bill, to be enacted into law. Contact your Flynn & Clark to obtain more information and to learn how you can help. 2. USCIS Increases Immigration Filing Fees Immigration filing fee increases, adding an average of $10 to each application, took effect for applications or petitions filed on or after October 26, 2005. Filing fees for appeals also have increased, going from $110 to $385 for appeals filed with the Administrative Appeals Office. The new fees are incorporated into the USCIS forms page at http://uscis.gov/graphics/formsfee/forms/index.htm. 3. State Dept. Provides Guidance on Students and Immigrant Intent The Department of State issued a cable on September 28, 2005, noting that consular officers adjudicating student visa applications should evaluate the applicant's requirement to maintain a residence abroad in the context of the student's present circumstances. Most visa classifications having a nonimmigrant intent component (e.g., the B, F, J, M, O-2, P, and Q classifications) require the applicant to demonstrate that he or she possesses a residence abroad and has no intention of abandoning it, although each classification differs fundamentally in terms of the activities permitted and the time period to be spent in the U.S. Student visa adjudication is made more complex by the fact that students typically stay in the U.S. longer than many other nonimmigrants. In student visa cases, the cable states, consular officers should focus on the applicants' "immediate and near-term intent," not on what might happen in the future. "That this intention is subject to change or even likely to change is not a sufficient reason to deny a visa," the cable states. The cable notes that the concept of "ties" to the residence abroad is less useful when applied to the present intent of a student. The typical student is "young, without employment, without family dependents, and without substantial personal assets," personal circumstances that often differ greatly from those of persons qualifying for business visas, for example. Students may not be able to demonstrate strong ties to their home countries. Because their long-range plans may be less focused, however, they are relatively less likely to have formed an intent to abandon their homes, the cable notes. In addition, the cable states, a visa should not be denied because the student plans on studying a subject that is impractical, or for which there is little or no employment opportunity in the home country, or because he or she could obtain equivalent courses in his or her country. "The student has the right to choose where s/he will obtain an education if accepted by the school," the cable states, adding that posts should facilitate the reissuance of student visas so that students can travel freely back and forth between the homeland and the U.S. and thus maintain crucial cultural ties. The cable notes that the State Department's Foreign Affairs Manual is being revised to reflect this policy. 4. U.S. Embassy in Mexico Sets New Procedures for Nonimmigrant Visa Appointments The U.S. Embassy in Mexico reports that all third country nationals currently in the U.S., including children, who are interested in applying for a nonimmigrant visa in Mexico must make an appointment first. Information and appointments via the U.S. Embassy's Visa Information Center are available through a self-service Web site, http://www.visa-usa.com.mx/, or by phone. Those residing in Mexico must use the telephone service option; the Web service is unavailable to such applicants at this time. For more information on the telephone service option, see http://www.visa-usa.com.mx/SelfServicePaymentOptns.aspx. Before October 17, 2005, all third country nationals in the U.S. applying for a visa at a border consulate in Mexico or Canada obtained information and appointments through the visa information service of the Embassy in Canada. To standardize procedures for the consulates in Mexico, applicants interested in applying in Mexico began to use the Visa Information Center. Consulates in Mexico will no longer be scheduling through the Canadian service. Appointments scheduled before October 17 through the Canadian service will be honored. Applicants wishing to confirm, cancel or reschedule an appointment made through the former service should use the telephone service option. Applicants interested in applying in Canada will not be affected by this change and may continue using the current service options. More information is available at http://www.amcits.com/phone.asp. 5. GAO Finds Insufficient Oversight of Summer Work Travel, Trainee Programs The U.S. Government Accountability Office (GAO) has found that the Department of State is insufficiently guarding against abuse of the J-1 summer work travel and trainee programs, and has been slow to address program deficiencies. The GAO said that the Department's processes insufficiently ensure that visitors participate only in authorized activities because the procedures consist primarily of document reviews. The Department rarely visits the sponsors or host employers of exchange visitors to make sure they are following the rules on investigating complaints. Some sponsors have asserted that the program regulations need updating. Further, Department officials believe that the sanctions provided for in the regulations are difficult to enforce, the GAO noted. The Department responded that it is revising the regulations and is establishing a unit to monitor exchange activities, although funding for the unit has not yet been secured. In 2004, the GAO noted, there were approximately 89,453 participants in the J-1 summer work travel program and 27,475 in the trainee program. The GAO recommended that the Department enhance the overall management and monitoring of the programs, including fully implementing the compliance unit; updating and amending the regulations governing the programs; and developing strategies to obtain data on overstays, program abuses, and other program-associated risks. The full text of the GAO's report is available at http://www.gao.gov/cgi-bin/getrpt?GAO-06-106. 6. New Report Recommends Strategies to Close U.S. Competitive Gap The National Academy of Sciences has released a 504-page report discussing the growing concern that the U.S. may be losing its competitive advantage as other countries, such as India and China, continue to invest heavily in higher education and training for scientists and engineers. The report offers recommendations and ideas for implementation, including creating merit-based scholarships for those who wish to become K-12 science educators, and lobbying policymakers to fight for tax incentives to support innovation in the U.S. Ordering information on Rising Above the Gathering Storm: Energizing and Employing America for a Brighter Economic Future is available from http://books.nap.edu/catalog/11463.html. 7. RICO Claim Allowed to Proceed The U.S. Court of Appeals for the Eleventh Circuit is allowing a class of employees to proceed against their employer, Mohawk Industries, the second largest carpet and rug manufacturer in the United States with over 30,000 employees. According to the plaintiffs in Williams v. Mohawk Industries, the company violated the Racketeer Influenced and Corrupt Organizations Act (RICO) by conspiring with recruiting agencies working along the U.S.-Mexico border to hire and harbor undocumented workers in an effort to keep labor costs as low as possible, including knowing efforts to accept fraudulent documentation and evade the law. The plaintiffs allege that Mohawk has committed hundreds, or even thousands, of immigration law violations. Among other things, the decision includes an interpretation of the meaning of "common purpose" under RICO that conflicts with the Seventh Circuit's decision in Baker v IBP, Inc. That decision determined that there was not a "common purpose" among the entities in the enterprise because they did not share the same goals. In the Eleventh Circuit, by contrast, there has never been a requirement that the "common purpose" of an enterprise be the sole purpose of each member of the enterprise, the decision states. Different members of a RICO enterprise may enjoy different benefits; all that is required is that the members have a common purpose, the Eleventh Circuit explained. The complaint in Mohawk alleges that Mohawk Industries and the recruiters shared the common purpose of providing illegal workers to Mohawk so the company could save on labor costs and the recruiters could receive payment. "This commonality is all that this circuit's case law requires," the court held. The full text of the decision, which discusses similar cases in other circuits, is available at http://caselaw.lp.findlaw.com/data2/circs/11th/0413740p.pdf. 8. USCIS Updates Adjudicators' Field Manual U.S. Citizenship and Immigration Services' Adjudicators' Field Manual is now available to the public for the first time. The manual is available at http://uscis.gov/graphics/lawsregs/handbook/hnmanual.htm. Parts of the manual have been redacted for security or law enforcement reasons. The Adjudicators' Field Manual advises USCIS adjudicators on how to process various petitions. The manual is useful to employers and immigrants wanting to know current USCIS policies and procedures. USCIS welcomes suggestions for improvement to the Adjudicators' Field Manual. E-mail manual1@dhs.gov. Be prepared for Holiday Travel Any foreign nationals who contemplate travel outside the United States over the holidays should be certain they have the necessary documents to re-enter the United States in the appropriate status. Persons who have changed or extended status since their last entry need to be particularly vigilant. Check the Flynn & Clark Travel Memo for further details or speak with your Flynn & Clark attorney. http://www.flynnclark.com/nov-2004-travel-memo.htm Recent Articles & News from fellow-ABIL Members · See ABIL member Angelo Paparelli’s blog where he discusses why the Department of Homeland Security has delegated humanitarian parole decisions to its enforcement rather than its benefits agency, as intended by Congress. See http://www.nationofimmigrators.com/?p=37. · Steve Clark has been active on the lecture circuit recently. On October 13, Steve gave a talk on PERM at the Boston Bar Association. On October 28, Steve chaired a full-day conference on PERM and spoke at two sessions at the same conference, "A PERM Odyssey: Obtaining Labor Certifications," which was held at the Center for Advanced Legal Studies at Suffolk University Law School. The Center co-sponsored the conference with the New England Chapter of the American Immigration Lawyers Association. Additional information on Steve and his firm, Flynn & Clark, P.C., is available at http://www.flynnclark.com/. · ABIL member Stephen Yale-Loehr, along with two Second Circuit practitioners, John Palmer and Elizabeth Cronin, recently conducted an exhaustive study on the causes of the buildup of immigration appeals cases. The authors analyzed data from the federal courts, the Department of Justice's Executive Office for Immigration Review, and the Department of Homeland Security to explore a number of variables that might be responsible for the surge. An article on the study will be published shortly in the Georgetown Immigration Law Journal; an abstract is available at http://ssrn.com/abstract=818964. Steve was quoted in the National Law Journal on October 24, 2005, noting that "[n]o other category of cases is presumptively excluded from oral argument. I don't see why asylum should get short shrift." Judges in the Second Circuit agreed in September to eliminate all oral arguments on asylum appeals and severely restrict the time to file briefs, the Journal reported. · In a recent article, ABIL member Mark Ivener notes that "[d]evelopers, construction companies, property-management firms and other companies that regularly farm out work to immigrant-dependent businesses may think that the challenge of determining the lawful immigration status of the workers is solely the subcontractors' responsibility." The article discusses a recent landmark settlement involving Wal-Mart Stores Inc. that has put that "comforting but mistaken assumption" to rest. Mark's article, "Scrutinize Contractor Hires to Avoid Wal-Mart Problem," which was published in the October 17, 2005, issue of the California Real Estate Journal, is available at http://www.carealestatejournal.com/ (click on Recent Issues - Oct. 17). 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 Center processing times and case status online: https://egov.immigration.gov/cris/jsps/index.jsp Department of Labor processing times and information on backlogs: 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. ClarkJane P. Devlin Vincent W. Lau Lynda J. Hagerty
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