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1. H-1B Numbers for Master's Degree Holders Running Out Shortly; USCIS Released Statistics on H-2Bs

H-1B numbers for those with U.S. master's degrees could run out by mid-January, according to remarks at a recent conference by a representative of U.S. Citizenship and Immigration Services.  Some think they could run out even sooner as December graduates rush to file their visa applications.  Flynn & Clark advises individuals and employers who wish to file H-1Bs under the master's degree cap to do so quickly.  Meanwhile, USCIS released new statistics on H-1Bs under the master's degree cap.  According to USCIS, as of 12/9/05, 17,436 cases had been counted against the 20,000 cap so far, with (15,420 approved and 2,016 pending).  That leaves 2,564 and they won’t last long.

USCIS also released new statistics on H-2Bs.  The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.  On May 25, 2005, USCIS began accepting additional petitions for H-2B workers as required by the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act).  According to USCIS as of 12/14/05, 49,397 cases had been counted against the cap so far in fiscal year 2006 (36,451 approved and 12,946 pending).  The cutoff date for each half of the fiscal year happens whenever sufficient petitions and associated worker applications have been received to satisfy the half-year cap of 33,000 visas minus first-time beneficiaries changing status.  USCIS estimated that 62 percent of approved beneficiaries will result in H-2B visas issued by Department of State.  Accordingly, USCIS cut off the first half cap at 52,000.  On 12/16/05 USCIS announced that the cap had been reached.

For more on the H-1B and H-2B caps, see http://uscis.gov/graphics/services/tempbenefits/cap.htm.

2. New Wal-Mart Raid Leads to Arrests

Following raids at 61 Wal-Mart stores several years ago that netted arrests of about 250 undocumented workers on cleaning crews, a new raid at a Pennsylvania Wal-Mart construction site resulted in about 125 arrests for alleged immigration law violations.  Wal-Mart said the employees were working for a subcontractor, and denied that it had done anything wrong.  A federal agency affidavit unsealed this past November in a civil lawsuit reportedly stated that two Wal-Mart executives knew about the hiring of unauthorized cleaning crew workers.

3. U.S. Citizens May File for Spouses, Children, Parents While in Canada

U.S. citizens resident in Canada who wish to file I-130 petitions on behalf of their spouses, minor children, or parents may now do so in person at the U.S. Embassy or U.S. Consulate in whose district they reside.  U.S. citizens resident in Canada who wish to file I-130 petitions on behalf of brothers, sisters, or adult sons and daughters, or U.S. legal permanent residents who reside in Canada and wish to file I-130s on behalf of their relatives, should mail the petition and supporting documents to the Vermont Service Center.  Additional details are available at http://www.amcits.com/immigration.asp.

4. Some Labor Certification Applications With Earlier Priority Dates May Be Processed Later Than Newer Applications

In some cases, pending  labor certification applications with an earlier priority date may be processed or reach disposition later than newer applications, the Department of Labor (DOL) explained to the American Immigration Lawyers Association on November 3, 2005.  Assuming two applications with the same priority date, several factors account for different processing times, including the type of application, the stage of processing at which the application was received by the DOL backlog reduction center (for example, applications received from the regions have their recruitments completed and therefore are further along in the process than those received from the states), the dates of other applications pending at each of the two centers (which determines each application's place within the queue), the quality of the application and whether any questions are raised by it, and the response time of the employer to the center's requests for confirmation, the Department said.

5. Biometrics Update

U.S. Citizenship and Immigration Services (USCIS) recently informed the American Immigration Lawyers Association (AILA) that a new system for scheduling biometrics appointments has been launched under which such appointments will be scheduled by USCIS.  Separate appointments are being scheduled for each application for which biometric data must be gathered because the data cannot migrate between the databases and records are kept by receipt number.  AILA has asked USCIS to devise a system to allow the capture of biometrics for all related applications in a single visit.

Meanwhile, a new Department of Homeland Security (DHS) rule that went into effect in late October requires visitors from Visa Waiver Program countries to carry passports with digital photos, and fines carriers that transport people to the U.S. without the new passports up to $3,300 per violation.  For more on the new requirement, see http://www.govexec.com/dailyfed/1005/102605c1.htm.

Also, DHS expects to unveil its plan early next year for upgrading the nation's biometric visitor tracking.  DHS wants to move toward collection of 10 fingerprints instead of two in the US-VISIT system, depending on available resources, according to sources.

The Department of State finalized a rule, effective October 25, 2005, that amends the passport regulations to incorporate changes related to the introduction of the electronic passport.  The rule defines "electronic passport" as "a passport containing an electronically readable device, an electronic chip, encoded with the information printed on the data page, a biometric version of the bearer's photograph, a unique chip number, and a digital signature to protect the integrity of the stored information."  The rule includes a damaged electronic chip as an additional basis for possible invalidation and provides for no-fee issuance of a replacement passport if an electronic chip fails.  A pilot program will permit a limited number of passports to be issued and field-tested before the first issuance to the U.S. traveling public, slated for early 2006.  By October 2006, all U.S. passports, with the exception of a small number of emergency passports issued by U.S. embassies or consulates, are expected to be electronic.  The Department received many comments to the final rule, which is available at http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/pdf/05-21284.pdf.

The European Biometrics Forum (EBF) announced the establishment of the International Biometric Advisory Council (IBAC), which will provide advice and expert opinion to the EBF and its members and partners on the most pertinent issues facing biometrics globally.  The IBAC intends to clarify issues surrounding the deployment and use of biometrics; develop a cohesive approach; enhance cooperation in Europe and globally; and advise the EBF and its partners on standards, interoperability, and privacy areas of interest.  Among expert appointees to the new IBAC is Robert Mocny, Deputy Director for the US-VISIT program.  For more information, see http://eubiometricsforum.com/index.php?option=content&task=view&id=457&Itemid=1.

A discussion of biometrics and their effect on international migration and the rights of individuals can be found at http://www.iom.int//DOCUMENTS/PUBLICATION/IML_4_Biometrics_ebook.pdf.

6. New Report Examines Role of Immigrants in the U.S. Labor Market

The Congressional Budget Office's new report, "The Role of Immigrants in the U.S. Labor Market," notes that 21 million workers, or one of every seven workers in the U.S., was foreign-born in 2004.  With the upcoming retirement of baby-boomers, that percentage is expected to increase.  Immigrants and their descendants are expected to provide the majority of the nation's population growth during the next half-century.  The report states that immigrant workers, particularly those from Mexico and Central America, are concentrated in certain low-skill sectors.  About 40 percent of foreign-born workers are U.S. citizens; the report estimates that about half of the remaining foreign-born workers in the U.S. (six to seven million) are unauthorized to work in the U.S., and includes a discussion of how such estimates are made.  The report examines the wages, growth, differences in education, and characteristics of the foreign-born workforce, including naturalized U.S. citizens, authorized workers, and the undocumented from various regions of the world.  The report is available at http://www.cbo.gov/ftpdocs/68xx/doc6853/11-10-Immigration.pdf.

7. Council of Graduate Schools Reports Non-U.S. Citizens are 17% of Enrollment

The Council of Graduate Schools' new report, "Graduate Enrollment and Degrees: 1986 to 2004," discusses trends in graduate enrollment and degrees awarded for 627 institutions responding to its survey.  Tables include statistics on the numbers of U.S. citizen, permanent resident, and temporary resident graduate students.  The report notes that non-U.S. citizens accounted for 17 percent of total graduate enrollment in the responding institutions, concentrated in doctoral programs in science and engineering, although overall international student enrollment in U.S. institutions declined by three percent last year.  The full text of the report is available at http://www.cgsnet.org/pdf/GED2004Rep.pdf.

8. GAO Says USCIS Needs to Improve Efforts to Reduce Backlogs

The U.S. Government Accountability Office has issued a new report, "Immigration Benefits: Improvements Needed to Address Backlogs and Ensure Quality of Applications."  The report notes that U.S. Citizenship and Immigration Services (USCIS) reports a reduction in backlogged immigration benefit applications from a peak of 3.8 million in early 2004 to about 1.2 million by June 2005.  USCIS's estimate, however, is not a measure of the number of pending cases older than six months, which is the statutory definition.  USCIS cannot provide precise data on the age of all application types, although a proposed technology transformation offers an opportunity to develop a case management system with this capability, the GAO said.

Despite progress, USCIS is unlikely to eliminate the backlog by its deadline of September 30, 2006.  The GAO said the agency may have difficulty eliminating its backlog for two complex application types that constitute nearly three-quarters of the backlog: naturalization and adjustment of status.  The GAO's analysis showed that USCIS would have to nearly double its productivity to eliminate the backlog for these two application types.  Other factors beyond the agency's control could also affect backlog reduction efforts, such as lengthy background checks or legislative changes.  The GAO also noted that USCIS's efforts to ensure the quality of its post-adjudication decisions do not include a systematic and inclusive review of all application types. 

The GAO recommended that USCIS (1) ensure that its technology improvements support the ability to generate data on the age of applications, (2) identify and specify in its plans the benefits it expects to realize from its investment in technology transformation, and (3) develop a comprehensive quality assurance program that applies to all types of benefit applications and addresses adjudication processes and reasonableness of decisions.

The GAO's report (GAO-06-20) was not immediately made available online.  See http://www.gao.gov/ for information on how to order.