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A QUARTERLY UPDATE ON IMMIGRATION LAW FROM MEYNER AND LANDIS LLP In this Issue:
Machine-Readable Passport Requirements To Take Effect at U.S. Borders on June 26, 2005 The Department of Homeland Security (DHS) has announced that as of June 26, 2005, all persons traveling under the auspices of the Visa Waiver Program (VWP) must present a machine-readable passport (MRP) to travel to the United States without a visa. The Immigration and Nationality Act originally set October 1, 2003 as the date by which Visa Waiver Program travelers were required to present a machine-readable passport for visa-free travel to the United States. Twenty-three of the 27 Visa Waiver Program countries requested and were granted a postponement to October 26, 2004 of this requirement. The countries not requesting this postponement were Andorra, Brunei, Liechtenstein, and Slovenia. Nationals of those four countries have been required to present a machine-readable passport for visa-free travel since October 1, 2003. Belgian nationals traveling under the auspices of the Visa Waiver Program have been required to present a machine-readable passport since May 15, 2003. For a limited period that started on October 26, 2004, the DHS has provided immigration inspectors at U.S. borders and ports of entry the authority to grant a one-time entry at no charge for Visa Waiver travelers arriving without a machine-readable passport. This limited period will end on June 26, 2005. Starting on that date, transportation carriers will be fined $3,300 per violation for transporting any Visa Waiver traveler to the U.S. without a machine-readable passport. The Department of State has been working closely with Visa Waiver Program countries to communicate information about the machine-readable passport requirement to their citizens. Since October 26, 2004, DHS Customs and Border Protection officers have been notifying Visa Waiver travelers entering the United States with a letter explaining the machine-readable passport requirements. Machine-readable passports include two optical-character, typeface lines at the bottom of the biographic page of the passport that, when read, deters fraud and helps confirm the passport holder’s identity quickly. A sample image of a machine-readable passport may be found at http://www.travel.state.gov/visa/temp/without/without_1990.html#4. Visa Waiver travelers who are not in possession of machine-readable passport may also apply for a nonimmigrant visa at a U.S. embassy or consulate abroad if seeking entry for business or tourist visits to the United States. Information on the Visa Waiver Program and how to apply for a U.S. visa is available at www.travel.state.gov and www.unitedstatesvisas.gov. The machine-readable passport requirements do not affect the separate deadline requiring Visa Waiver Program country passports issued on or after October 26, 2005, to contain biometrics in order to be used for visa-free travel to the United States. USCIS Announces Update Regarding New H-1B Exemptions USCIS announced on May 24, 2005 that it has received more than 6,393 H-1B petitions that will count against the Congressionally-mandated exemption cap for fiscal year 2005 (October 1, 2004 through September 30, 2005) established by the H-1B Visa Reform Act of 2004. The new regulations, which took effect on May 25, 2005, changed the H-1B filing procedures for FY 2005 and for future fiscal years. The regulations make available 20,000 new H-1B visas, only for foreign workers with a minimum master’s level degree from a U.S. academic institution, in addition to the Congressionally mandated annual cap of 65,000 H-1B visas. Established by the Immigration and Nationality Act (INA) of 1990, the H-1B visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. Update on Fiscal 2006 H-1B Numbers USCIS advises that, despite rumors to the contrary, it has NOT reached enough fiscal year 2006 cap-subject H-1B petitions to be nearing the cap. In fact, unofficially it has been indicated that petitions are coming in more slowly than had been predicted. However, it is still believed (again, unofficially) that the fiscal 2006 cap likely will be reached before the actual start of fiscal year 2006 on October 1, 2005. USCIS To Accept Additional H-2B Filings for FY 2005 AND 2006 Beginning May 25, 2005, USCIS will begin to accept additional petitions for H-2B workers as required by the Save Our Small and Seasonal Businesses Act of 2005. Workers Who Benefit from the Act The Act allows USCIS to accept filings beginning May 25, 2005 for two types of H-2B workers seeking work start dates as early as immediately:
Immigrant Visa Availability For July and the Remainder of FY-2005 Employment-based: During the past few months there has been a significant increase in the amount of numbers being used by Citizenship and Immigration Service (CIS) offices for adjustment of status applicants. This level of demand has significantly depleted the supply of Employment-based numbers available under the annual limit. In fact, the Employment Third (Skilled Worker) and Third (Other Worker) categories have reached their annual limits and no further FY-2005 allocations are possible for the period July through September. With the start of the new fiscal year in October, numbers will once again become available in these categories. It is not possible to make any estimates regarding potential cut-off dates at this time. New E-3 Visas for Nationals of Australia A new E-3 non-immigrant visa classification has been established for Australian nationals who will perform services in a specialty occupation. The criteria for qualifying under this visa category is similar to that of the H-1B visa classification. The legislation limits the number of E-3 visas to 10,500 for each fiscal year. This numerical limitation only applies to principal aliens and not their spouses or children. Such numbers will supplement the 65,000 regular H-1B allocation (and the additional 20,000 H-1B numbers available for workers who have obtained an advanced degree from a U.S. University or College). Once the Department of State issues administrative regulations implementing this legislation, the consulates in Australia will be able to accept applications from Australians and issue the E-3 visas. Major Immigration Bi-Partisan Bill The recent arrival of a sweeping, bipartisan immigration proposal in Congress brought forth the usual conflict between those who want a solution and those who just want an emotional issue to howl about. But this latest and most comprehensive package has already started earning support from Republicans and Democrats, business groups and unions, and several key Hispanic organizations. President Bush, who has been promising action on immigration for years, should quickly join them. The long-awaited legislation comes from Senators John McCain and Edward Kennedy and Representatives Jeff Flake and Jim Kolbe, both Republicans from Arizona, and Luis Gutierrez, a Democrat from Illinois. Senator McCain said as he introduced the bill that it embraced the goals set down by Mr. Bush: making the borders more secure, filling jobs no American will take and finding a route to legality for workers who are already here illegally. Among other provisions, the bill would: provide a mechanism through which undocumented immigrants present in the U.S. on the date of the bill’s introduction can earn the opportunity to adjust to a permanent status; reduce backlogs in family-based immigration; establish a new essential worker visa program; protect individuals from immigration fraud; promote circular migration; create a national strategy for border security and enhanced border intelligence; and develop enforcement initiatives, including a new Employment Eligibility Confirmation system. Portions of this newsletter have been reprinted with permission from AILA 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. |
The immigration law practice of Meyner and Landis LLP provides a full scope of immigration law services. This includes representation of large and small businesses seeking to recruit and retain foreign nationals to meet staffing goals; foreign nationals seeking work or trader or investor opportunities or wanting to achieve family reunification; and foreign nationals in deportation proceedings, including those who face removal from the U.S. due to criminal convictions.
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