A QUARTERLY UPDATE ON IMMIGRATION LAW FROM MEYNER AND LANDIS LLP
Third Quarter 2004
In this Issue:
Fiscal 2005 H-1B Cap Reached
USCIS has advised that H-1B petitions have been cut off as of October 1, 2004 for the fiscal year ending 2005.
With the new fiscal year beginning October 1, unless Congress acts, time has run out (until October 1, 2005) for employers who seek to hire H-1B professionals and H-2B non-agricultural seasonal workers. “Congress needs to act”, said Paul Zulkie, President of the American Immigration Lawyers Association (“AILA”).
If left unremedied, U.S. employers’ inability to hire needed professional and seasonal workers will put this nation at a global and economic disadvantage. Without access to H-1B visas, U.S. employers will be unable to hire professionals with cutting-edge knowledge and skills—including recent graduates from top U.S. universities with advanced degrees in math and science—to develop new products, engage in groundbreaking research, create new jobs, and compete in the global marketplace. This problem is exacerbated by the insufficient number of U.S. students graduating with advanced degrees to fill highly specialized positions in math and science. According to the Bureau of Labor Statistics, the demand for these graduates will only increase over time. In fact, European countries are updating their immigration laws to attract this highly educated talent, making the competition to retain the best and the brightest that much more difficult to win.
Cutting edge professionals are not the only workers needed in our labor market. H-2B visa holders also are essential to the American economy. These seasonal non-agricultural workers help keep the doors of American business open. H-2B workers include restaurant, landscape, food production, and hotel service workers. They fill the rosters of our minor league hockey and baseball teams, teach our kids to ski, and repair helicopters that fight summer forest fires.
“Never before have so many employers, both small and large, faced this dilemma,” said Paul Zulkie. “Without access to H-1B professions and H-2 B workers, our nation’s economic well-being will be threatened, with jobs lost and our nation put at a competitive disadvantage.”
AILA urges Congress and the Administration to resolve this crisis by increasing access to H-1B and H-2B visas. Unless action is taken before the end of the 108th Congress, American companies and the economies of local communities nationwide that depend on these workers will suffer dramatically.
Machine-Readable Passport Requirements
Effective October 26, 2004, visa waiver travelers from all 27 Visa Waiver Program countries must present either a machine-readable passport or a valid U.S. visa. Travelers with a valid U.S. visa will not be required to have machine-readable passports.
In addition, as of September 30, 2004, all VWP travelers arriving at a U.S. port of entry will be required to enroll in US-VISIT, a program involving a digital photograph and fingerscans. In a related item, President Bush signed into a law a 1-year extension for the date countries are required to produce biometric passports in order to remain eligible for the Visa Waiver Program, delaying the requirement until October 2005.
US-VISIT
US VISIT is a continuum of measures that collect biometric and biographic information from foreign visitors at U.S. visa-issuing posts around the world and upon their arrival in and departure from U.S. air, sea and land border ports. It draws on eligibility determinations made by both the Departments of Homeland Security and State.
The goals of US-VISIT are to: enhance the security of our citizens and visitors; facilitate legitimate travel and trade; ensure the integrity of our immigration system; protect the privacy of our visitors.
Currently, US-VISIT requires that most foreign visitors traveling to the U.S. on a visa and arriving at an air or seaport have their two index fingers scanned and a digital photograph taken to verify their identity at the port of entry. By September 30, 2004, this process will also apply to visitors traveling under the VWP at all air and sea ports of entry.
An estimated 13 million visitors traveling under the Visa Waiver Program enter the U.S. each year. Travelers from Visa Waiver Program countries are allowed to enter the U.S. for up to 90 days for business or pleasure using only a passport. The following 27 countries are currently in the VWP: Andorra, Austria, Australia, 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 (for citizens with the unrestricted right of permanent abode in England, Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of Man).
Since its launch in January, the US-VISIT program has helped intercept more than 280 persons with prior or suspected criminal or immigration violations. These included convicted rapists, drug traffickers, individuals convicted of credit card fraud, a convicted armed robber and numerous immigration violators and individuals attempting visa fraud.
The U.S. is not alone is using biometrics to enhance identity verification and security. The worldwide use of biometric technologies is the basis of an extensive array of highly secure identification and personal verification solutions.
Expanding enrollment of foreign nationals traveling under the VWP builds on the Department’s progress to secure our ports of entry without harming our economic security.
For more information, visit US-VISIT on the Web.
2006 Diversity Visa Lottery Program Registration
Applications for the 2006 Diversity Visa (DV) Lottery will be accepted between November 5, 2004 and January 7, 2005. Persons seeking to apply must register electronically, online through the designated Internet website, www.dvlottery.state.gov during the registration period. The 2006 Diversity Visa Lottery marks the second year that electronic registration is required. Paper entries and mail-in requests for Diversity Visa Lottery registration are not accepted.
The Department of State implemented the electronic registration system last year for the 2005 Diversity Visa Lottery to improve efficiency and make the process less prone to fraud, thus making it less vulnerable to use by persons who may pose a threat to the security interests of the United States.
The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). The Act makes available 50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States.
The annual DV program makes permanent residence visas available to persons meeting the simple, but strict, eligibility requirements. Diversity Visa entries are chosen by a computer-generated random lottery drawing. The visas, however, are distributed among six geographic regions with a greater number of visas going to regions with lower rates of immigration, and with no visas going to citizens of countries sending more than 50,000 immigrants to the U.S. in the past five years. Within each region, no one country may receive more than seven percent of the available Diversity Visas in any one year.
For DV-2006, natives of the following countries are not eligible to apply because they sent a total of more than 50,000 immigrants to the U.S. in the previous five years:
CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, EL SALVADOR, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PHILIPPINES, RUSSIA, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.
Warning Re: DV Lottery Scam
AILA members report that an email is being sent to some people purporting to be from “dvlottery.state.gov”, telling people that are “one of the lucky winners” of the DV2004 visa lottery, and requesting that they send $349.67 in “clearance/acceptance fees”. These emails are fakes, and should be ignored.
Update on PERM
The PERM regulation remains pending at OMB, and it is widely believed that, if it moves at all, it will not be published until after the election. We will provide a practice advisory on this subject once the rule is published. It is believed that some key changes have been made from the proposed rule.
Portions of this newsletter have been reprinted with permission from AILA
Copyright © 2004, American Immigration Lawyers Association
The material contained in this newsletter is for informational purposes and should not be considered legal advice.
For further information, please contact Anthony F. Siliato, Esq.
Meyner and Landis LLP, One Gateway Center, Suite 2500, Newark, NJ 07102
(973) 624-2800 @ asiliato@meyner.com
Website: www.meyner.com
