Immigration


A QUARTERLY UPDATE ON IMMIGRATION
LAW FROM MEYNER AND LANDIS LLP

Archived Updates

Second Quarter 2008

In this Issue:

USCIS RELEASES NUMBER OF FY 2009 H-1B CAP FILINGS

USCIS announced that nearly 163,000 H-1B petitions were received during the filing period ending on April 7, 2008. More than 31,200 of those petitions were for the advanced degree category.

USCIS conducted a computer-generated random selection process, beginning with the selection of the 20,000 petitions under the advanced degree exemption. Those petitions not selected under the advanced degree category joined the random selection process for the cap-subject 65,000 limit.

USCIS will reject, and return filing fees for all cap-subject petitions not randomly selected, unless the petition is placed on a waiting list or found to be a duplicate.

EXTENSION OF OPTIONAL TRAINING PROGRAM FOR QUALIFIED STUDENTS

DHS released an interim final rule on April 4, 2008, extending the period of Optional Practical Training (OPT) from 12 to 29 months for qualified F-1 non-immigrant students. The extension is available to F-1 students with a degree in science, technology, engineering, or mathematics (STEM) who are employed by businesses enrolled in the E-Verify program.

The rule also addresses situations in which an F-1 student's status and work authorization expires before he or she can begin employment under the H-1B visa program. The interim final rule addresses this by automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions. The rule will also implement certain programmatic changes, including allowing students to apply for OPT within 60 days of graduation.

USCIS published an initial set of Questions and Answers related to the rule on April 4th:
Questions and Answers: Extension of Optional Practical Training Program for Qualified Students

and a supplemental set of Questions and Answers on May 27th:
Supplemental Questions & Answers: Extension of Optional Training Program for Qualified Students

Please feel free to contact us if you have any questions relating to specific details on the program.

USCIS AND FBI RELEASE JOINT PLAN TO ELIMINATE BACKLOG OF FBI NAME CHECKS

U.S. Citizenship and Immigration Services (USCIS) and the Federal Bureau of Investigation (FBI) on April 2, 2008 announced a joint plan to eliminate the backlog of name checks pending with the FBI.

USCIS and the FBI established a series of milestones prioritizing work based on the age of the pending name check. The FBI has already eliminated all name check cases pending more than four years.

"This plan of action is the product of a strong partnership between USCIS and the FBI to eliminate the backlogs and to strengthen national security," said USCIS Director Emilio Gonzalez.

By increasing staff, expanding resources, and applying new business processes, the goal is to complete 98 percent of all name checks within 30 days. USCIS and the FBI intend to resolve the remaining two percent, which represent the most difficult name checks and require additional time to complete, within 90 days or less. The goal is to achieve and sustain these processing times by June 2009.

DHS PROPOSES BIOMETRIC AIRPORT AND SEAPORT EXIT PROCEDURES

The U.S. Department of Homeland Security (DHS) announced on April 22, 2008 a notice of proposed rulemaking that will establish biometric exit procedures at all U.S air and sea ports of departure. The majority of non-U.S. citizens are already required to submit digital fingerprints and a digital photograph for admission into the country. The US-VISIT Exit proposal would require non-U.S. citizens who provide biometric identifiers for admission to also provide digital fingerprints when departing the country from any air or sea ports of departure.

The United States Congress, the 9/11 Commission and the department have concluded that biometric records of the entry and exit of international visitors are essential for the integrity of the nation's immigration and border management system. The proposed rule does not change current exit procedures for departing visitors. Visitors departing the U.S. should continue to return their paper Form 1-94 or Form 1-94W to airline or ship representatives.

The proposed rule would require commercial air carriers and cruise line owners and operators collect and transmit international visitors' biometric information to DHS within 24 hours of leaving the United States. Carriers are already required to transmit biographic information to DHS for all passengers prior to their departure from the United States. DHS is committed to protecting the privacy of international visitors and will require that these systems meet the department's transmission capability and data security requirements. The proposed rule does not designate a specific location within the port of departure for biometric collection and does not apply to small carriers or vessel owners and operators, or to general aviation.

DHS intends to implement air and sea biometric exit procedures by January 2009, fulfilling a key provision of the Implementing the Recommendations of the 9/11 Commission Act of 2007. This proposed rule will enable the Secretary of DHS to retain the necessary authority to manage the Visa Waiver Program effectively. If the exit program has not been implemented by June 30, 2009 the department may not be able to extend Visa Waiver Program privileges to new countries. The Secretary's waiver authority is critical for the United States to invite more of its allies to participate in the Visa Waiver Program.

DOS LIAISON UPDATE ON NEW DS-160 ELECTRONIC NONIMMIGRNAT VISA APPLICATION FORM

The DOS liaison committee provides the following information about the new DS-160 nonimmigrant visa form announced by final rule on April 29, 2008. DS-160 is a big step forward for DOS. The current nonimmigrant visa form, DS-156, is filled out on the DOS web site, but the government system only generates a bar code containing certain fields of data when the user prints it, and the government site does not electronically collect or retain the data entered in the form. The applicant presents the printed form at visa interview, and the bar code is scanned, which completes those data fields in the DOS Consular Consolidated Database (CCD), avoiding re-keying by posts and allowing electronic storing and searching by data field.

With the DS-160, a user fills out DS-160 and actually submits the data online. The data will go into a government database, ostensibly CCD, as a nonimmigrant visa application. The DS-160 is a "smart" form, in that the data the user provides in particular fields affects what further sets of data fields are presented to the applicant for completion. Where the form is implemented (Nuevo Laredo and Monterrey so far), it must be presented and completed electronically. This represents a commitment by DOS to requiring electronic customer interface in nonimmigrant visa applications. Happily, an applicant or attorney can complete the form in draft and save it to an electronic file on his or her own computer, forward it to the other person to review (by uploading it to view with DOS' system), and then submit it. The rule states that the applicant himself or herself must actually click the "submit" button, which is an electronic signature. The DOS system does not collect or retain draft data.

The data from DS-160 will be perfected by the collection of biometrics and, if necessary (and it is usually necessary), personal interview.

The DS-156 will still be acceptable while the DOS rolls out the DS-160 over time. To date DOS has been testing the DS-160 as a pilot in two posts in Mexico (Nuevo Laredo and Monterrey) and nowhere else.

The form can be completed in practice by anyone by accessing it at https://ceac.state.gov/genniv/ -- just don't click "submit!"

USCIS ANNOUNCES ENHANCEMENTS TO E-VERIFY PROGRAM
Improvements Will Focus on Decreasing Mismatch Rates for Naturalized Citizens

USCIS announced on May 5, 2008 improvements to the E-Verify employment authorization program that will reduce an already low mismatch rate, while also streamlining and increasing the effectiveness of the overall program.

The announcement comprises the first two phases of an overall three-part enhancement for E-Verify aimed at decreasing the mismatch rate for naturalized citizens.

Starting May 5, 2008, the E-Verify system will include naturalization data, which will help instantly confirm the citizenship status of naturalized U.S. citizens hired by E-Verify employers. Naturalized citizens who have not yet updated their records with the Social Security Administration (SSA) are the largest category of work-authorized persons who initially face an SSA mismatch in E-Verify. Additionally, a naturalized citizen who receives a citizenship mismatch with SSA can call USCIS directly to resolve the issue (in addition to the option of resolving the mismatch in person at any SSA field office.)

E-Verify also will now include real time arrival data from the Integrated Border Inspection System. This additional data source will reduce the number of immigration status related mismatches for newly arriving workers who have entered the country legally.

USCIS also plans to initiate citizenship status records information sharing with SSA to further help prevent tentative non-confirmations from occurring. This effort will improve the efficiency of E-Verify by providing to SSA with the most accurate and timely citizenship status information. E-Verify also plans to check against Department of State passport records in the near future to even further reduce mismatches.

More than 64,000 employers participate in E-Verify with approximately 1,000 new enrollments weekly.

The Web-based system allows participating employers to electronically verify the employment eligibility of newly-hired employees. E-Verify evolved from the Basic Pilot/Employment Eligibility Verification Program originally developed in 1997 and made available to employers as a Web-based system in 2004. USCIS operates the program in partnership with SSA.

Additional details on the program are available on the E-Verify Web site at www.uscis.gov/e-verify

USCIS ANNOUNCES A PROPOSAL TO INCREASE PERIODS OF STAY FOR TN PROFESSIONAL WORKERS FROM CANADA OR MEXICO

USCIS announced May 5, 2008 that it is publishing a Notice of Proposed Rulemaking (NPRM) to increase the maximum amount of time a Trade-NAFTA (TN) professional worker from Canada or Mexico can remain in the United States before seeking readmission or obtaining an extension of stay. The proposal will extend the maximum period of admission for TN workers from one (1) year to three (3) years, the same term that USCIS currently may grant to H-1B specialty occupation workers.

TN nonimmigrants are not subject to a maximum period of stay and thus may seek multiple readmissions or extensions, provided their intended professional activity continues and they remain otherwise eligible. Current regulations require that TN workers seek readmission or apply for an extension of stay each year.

Canadian and Mexican citizens seeking temporary entry to the United States as professionals may come into the country as TN nonimmigrants under the North American Free Trade Agreement (NAFTA). TN status is available to Canadian and Mexican citizens with a minimum of a bachelor's degree, or appropriate professional credentials, who work in professions listed in Appendix 1603.D.1 to Annex 1603 of the NAFTA and under DHS regulations at 8 CFR 214.6(c). Eligible TN professions include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers.

The NPRM, once implemented as a final rule, will ease administrative burdens and costs on TN nonimmigrants and will benefit U.S. employers by increasing the period of time beneficiaries are allowed to remain in the United States under a TN visa. The proposed changes would also apply to spouses and unmarried, minor children of TN nonimmigrants in their corresponding nonimmigrant classifications as NAFTA dependents.