First Quarter 2008 - A Quarterly Update on Immigration Law

A QUARTERLY UPDATE ON IMMIGRATION                                                          

LAW FROM MEYNER AND LANDIS LLP

First Quarter 2008

In this Issue:

REVISED FBI NAME CHECK GUIDELINES

 U.S. Citizenship and Immigration Services (USCIS) conducts background checks on all applicants, petitioners, and beneficiaries seeking immigration benefits. This is done both to enhance national security and to ensure the integrity of the immigration process. USCIS has previously mandated that FBI name checks be completed and resolved before any positive adjudication can proceed on certain form types. Through its February 4, 2008 memorandum, USCIS has modified existing guidance for applications where statutory immigration provisions allow for the detention and removal of an alien who is the subject of actionable information that is received from the FBI or other law enforcement agencies after approval of the application.

A definitive FBI fingerprint check is the IBIS check must be obtained and resolved before an Application for Adjustment of Status (I-485). USCIS will continue to initiate FBI name checks when those applications are received. Where the application is otherwise approvable and the FBI name is request has been pending for more and 180 days, the adjudicator shall approve the green card application and proceed with the car issuance. The FBI has committed to providing FBI name check results within this timeframe. In the unlikely event that FBI name checks reveal actionable information after the alien receives permanent resident status, DHS may detain an initiate removal proceedings against the permanent resident.

IMPORTANT CHANGE IN INTERNATIONAL LAND AND SEA TRAVEL DOCUMENT PROCEDURES

The U.S. Department of Homeland Security (DHS) reminds the traveling public that U.S. and Canadian citizens ages 19 and older should no longer expect that they will be able to prove identity and citizenship by relying on an oral declaration alone. Instead, travelers will be asked to present documents from one of the options below when entering the United States at land or sea ports of entry. Travelers who do not present one of the documents listed below may be delayed as U.S. Customs and Border Protection officers attempt to verify their identify and citizenship.

U.S. and Canadian Citizens - Single Document Option:
One of the following documents should be presented to prove both identity and citizenship, as of Jan. 31, 2008:

•U.S., or Canadian birth certificate issued by a federal, state, provincial, county, territory, or municipal authority
•U.S. Consular report of birth abroad
•U.S. Certificate of Naturalization
•U.S. Certificate of Citizenship
•U.S. Citizen Identification Card
•Canadian Citizenship Card
•Canadian certificate of citizenship without photo

For Travelers other than U.S. and Canadian Citizens
All existing nonimmigrant visa and passport requirements will remain in effect and will not be altered by the changes that are implemented on Jan. 31, 2008. U.S. lawful permanent residents will be required to present a Permanent Resident Card (1-551) or other valid evidence of lawful permanent residence. Mexican citizens, including children, must present a valid passport and a B-1/B-2 nonimmigrant visa or a Border Crossing Card.

Know Your Destination - Country Document Requirements

It is strongly recommended that all travelers leaving the U.S. verify the specific documentary requirements for their destination country. This information is available through www.travel.state.gov or by consulting with the Embassy of the country you are visiting.
U.S. Customs and Border Protection will begin the transition to the Western Hemisphere Travel Initiative secure document requirement over the next 18 months, with implementation as early as June 1, 2009.

Travelers are encouraged to visit www.cbp.gov for updates on travel information.

INDIA EMPLOYMENT SECOND PREFERENCE VISA AVAILABILITY

Section 202(a)(5) of the Immigration and Nationality Act provides that if total demand will be insufficient to use all available numbers in a particular Employment preference category in a calendar quarter, then the unused numbers may be made available without regard to the annual "per-country" limit. It has been determined that based on the current level of demand being received, primarily by Citizenship and Immigration Services Offices, there would be otherwise unused numbers in the Employment Second preference category. As a result, numbers have once again become available to the India Employment Second preference category. The rate of number use in the Employment Second preference category will continue to be monitored, and it may be necessary to make adjustments should the level of demand increase substantially.

H-1B INTERIM FINAL RULE

DHS/USCIS announced on a conference call on 3/19/08 that it has transmitted to the Federal Register an interim final rule regarding H-1B filing that would:

• Change from 2 days to 5 days the period of time during which cap-subject H-1Bs can be received to be included in any "lottery" that would occur if, as expected, the number of petitions exceeds the quota.
• Prohibit multiple filings from the same employer for the same employee, even if the filings are for different jobs. The one exception would be that related employers could file separate petitions for the same employee for different positions.
• Result in the denial or revocation (without refund of fees) of any petition found to have been a multiple filing.
• Change the lottery system so that the 20,000 U.S. advanced degree cap cases are selected first. If any advanced degree cases are left after that process, they would go into the overall 65,000 pool.
• State that no refunds will be made on cases where someone incorrectly claims a cap exemption.

USCIS also indicated that it will continue to accept letters from authorized officials of schools indicating that a student has completed the requirements for a degree (i.e., all papers, exams, etc.) and is merely awaiting official conferral of the degree.

DHS ISSUES SUPPLEMENTAL PROPOSED RULE WITH EMPLOYER GUIDANCE REGARDING NO-MATCH LETTERS

DHS announced on March 21, 2008 a "supplemental proposed rule" concerning the actions required of employers who receive "no-match" letters from the Social Security Administration. Rather than making changes in the substance of the previous rule, which was enjoined by a Federal District Court, DHS reiterates its same old arguments. The rule's bottom line remains unchanged: employers may believe they have no choice but to fire any employee who cannot resolve within 90 days a social security records discrepancy.

"The Social Security Administration is charged with administering social security benefits, and is not structured or oriented to be an immigration enforcement tool. This misguided attempt to fit the square peg of immigration enforcement into the round hole of social security benefits is a guarantee of increased discrimination and erroneous terminations," stated Kathleen Campbell Walker, President of the American Immigration Lawyers Association.

One predictable result of implementation of this rule will be unwarranted firings due to database errors and predictable delays in obtaining documentation of status or database corrections. The SSA has emphatically and consistently stated that there are many reasons for a no-match record to be generated other than a lack of work authorization. Some of these reasons include: spelling errors, incomplete names, inversion of date order, valid name changes pursuant to divorce or marriage, as well as cultural differences in name order. The Administration should suspend the "no-match" effort until the database achieves acceptable levels of accuracy and until employers and employees have efficient mechanisms to correct data errors and to obtain status confirmation.

"This unchanged regulation clearly leaves employers holding the bag as to Congress' failures to create legal avenues to fill legitimate labor needs," said Campbell Walker. "Employers will be left with a Hobson's choice - keep the employee while potentially being exposed to employment verification penalties or terminate the employee and face possible wrongful termination or discrimination charges. Where are the rational and predictable legal protections for employers trying to do the right thing?"

THREE HIGH-SKILLED VISA BILLS INTRODUCED INTO THE HOUSE

 On March 14, three bills were introduced into the House of Representatives relating to high-skilled visas.

Rep. Smith (R-TX) introduced H.R. 5642 which would increase the numerical limitation with respect to H-1B non-immigrants for fiscal years 2008 and 2009.

Rep. Kennedy (D-RI) introduced H.R. 5634 which would exempt from numerical limitations any alien who has received a Ph.D. from an institution of higher education within the 3-year period preceding such alien's petition for special immigrant status.

Rep. Giffords (D-AZ) introduced H.R. 5630 which would modify certain requirements with respect to H-1B non-immigrants.

Portions of this Newsletter have been

Reprinted with permission from AILA

Copyright © 2008, 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 ext. 440 @ asiliato@meyner.com Website: www.meyner.com