Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for April, 2008

Modified Medical Examination Form I-693 Goes Into Effect

The USCIS has announced that it has revised Form I-693, Report of Medical Examination and Vaccination Record, to reflect changes to the Tuberculosis guidance by the Center for Disease and Control to Civil Surgeons.  The new form (edition date 04/02/08) must be used for all medical examinations completed on or after May 1, 2008.

Form I-693 is used by applicants filing for adjustment of status to become permanent residents.  Civil surgeons performing medical examination in connection with adjustment of status must use the new form for all examinations completed in the future.  According to USCIS, not all civil surgeons have provided accurate email or contact information and it is possible that some civil surgeons are not aware of the new form.  Therefore, we recommend that applicants for adjustment of status inform their civil surgeons of the new form and present at least one copy of the new form to them.

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Paper Visa Applications Eliminated

The Department of State has published a final rule which, effectively April 29, 2008, eliminates the paper visa application and requires that all non-immigrant visa applications to be submitted electronically.

Until the new rule went into effect, U.S. consulates required applicants for non-immigrant visas to fill out an electronic application, then print, sign, and bring the paper to the consulate.  The new procedure eliminates the printing and signing.  A non-immigrant visa applicant will have to fill out and submit the application electronically.  The ink signature is replaced by electronic signature where applicants will have to check the box designated as “Sign Application” found within the certification section of the application.

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Foreigners and the U.S. Political Process – Permitted Activities

We are in the peak of the Democratic Party primary season and we are very close to have the general Presidential election campaign under way.  Some of the candidates have expressed opinions on immigration, in connection with the campaign, or previously, and it is natural for some foreign citizens, both living in the U.S. and abroad, to be interested in contributing money and/or services to a candidate’s campaign.  However, there are strict rules that govern what a foreign citizen can do during an election campaign.

The Law
The Foreign Agents Registration Act (FARA) was first enacted in 1966 and aimed to minimize foreign intervention in U.S. elections by establishing a number of limitations on foreign individuals.  In 1974, the prohibitions were incorporated into the Federal Election Campaign Act (FECA).

FECA prohibits any foreign national from contributing, donating or spending funds in connection with any federal, state, or local election in the United States, either directly or indirectly.  It is also unlawful to help foreign nationals violate that ban or to solicit, receive or accept contributions or donations from them.  Persons who knowingly and willfully engage in these activities may be subject to fines and/or imprisonment.

Who Is a Foreign National?
The prohibition is very broad, but there are exceptions.  Although a “foreign national” is defined as broadly as a foreign person or entity, persons with green cards are excluded from the definition of a foreign person and are thus eligible to contribute money and/or services to a political campaign.

Money
Based on the definition of “foreign national” and the exception for green card holders, it follows that only green card holders can contribute financially to the political campaign of a presidential candidate.

It should also be noted that it is unlawful to provide assistance to foreign nationals making contributions to political campaigns in violation of FECA.  It is also illegal to knowingly solicit, accept, or receive contributions or donations from foreign nationals.

Contribution of Services
Some foreign nationals who do not have green cards can nonetheless help a political campaign via voluntary non-monetary contribution of services.  The Act provides that that the “volunteer” exemption applies as long as the foreign national performing the service is not compensated by anyone.

The “non-compensated” rule is very vague, and as a result, the Federal Election Commission has addressed its nuances in a couple of advisory opinions.  In Advisory Opinion 1987-25, the Commission allowed a foreign national student to provide uncompensated volunteer services to a Presidential campaign.  By contrast, the decision in Advisory Opinion 1981-51 prohibited a foreign national artist from donating his services in connection with fundraising for a Senate campaign.

The two advisory opinions may be difficult to reconcile.  The positive news is that the FEC is happily providing advisory opinions on whether a specific activity is permitted or not.

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EAD Form I-765 Updated

The USCIS has released an updated version of Form I-765, Application for Employment Authorization. The form now includes additional eligibility codes in connection with the recent interim rule regarding Optional Practical Training (OPT) extension.

Practice Tip. It is important to note that the current version of the form will be accepted until July 8, 2008. As of July 9, 2008, the USCIS will accept only the revised form which is dated April 8, 2008, and USCIS will reject all other versions of the form.

The new Form I-765 can be downloaded here. The form’s instructions are here.

Update: there are newer versions of the I-765 form, the most recent being dated 5/27/2008.  It is best to use the most recent form I-765 to avoid any risk in having the filing returned by USCIS.

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DHS Releases 2007 Green Card Statistics

The Department of Homeland Security (DHS) has released a report about the green cards obtained by foreign nationals during 2007. The report provides breakdown by preference category and sub-category, by type of petition, by country of origin, and by U.S. state of residence.

In addition, the report provides an interesting historical distribution analysis of the number of green cards given out since 1900.

The report can be found here and the graphs with the data can be found here.

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DHS Proposes Fingerprinting upon Departure from the U.S.

The Department of Homeland Security (DHS) has proposed a new rule which would require airlines and certain ships to collect biometric information from departing non-U.S. citizens. This proposed rule comes to supplement the already established entry biometric procedures. The main difference would be that while the current entry biometrics are taken by the U.S. border agents, the departure biometrics would be taken by the airlines and then transmitted within 24 hours to DHS.

Currently, all airlines are already required to transmit to the DHS biographic information for all passengers prior to their departure from the United States, but just because someone has a ticket does not indicate with a level of certainty that the same person boarded a plane and left the country. Therefore, the new departure biometric system would provide a higher degree of certainty to DHS.

It is DHS’s intention to implement the air and sea biometric exit procedures by January 2009; such timeline would allow the DHS to maintain the Visa Waiver Program and if the new rule is not implemented by June 30, 2009, then DHS may not be able to extend the Visa Waiver Program to new countries.

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USCIS Provides F-1 OPT Cap-Gap Fix

The USCIS announced late last week that it would permit F-1 students who have properly filed H-1B petitions in April and have their petition selected during the random lottery to request a change of status processing in lieu of consular notification.

The Problem
On April 8, 2008, USCIS announced a rule which would automatically extend the F-1 status of students who are beneficiaries of approved H-1B petitions so that the cap between the F-1 status expiration and the employment start date of October 1 would be automatically covered under F-1. However, the rule was published after the filing period for FY 2009 H-1B had closed and as a result, many F-1 holders who applied for H-1B visas calculated that their F-1 status would expire before October 1 and therefore they would have to leave the U.S. and requested consular notification on their H-1B application.

The Fix
As a result of the timing of the new rule, USCIS exacerbated a problem which the new rule aimed to solve. To its credit, USCIS released guidance that it would allow F-1 holders whose H-1B petitions were randomly selected to receive H-1B visa number for FY 2009, to now request a change of status processing, if such requests are received within 30 days of the issuance of the H-1B receipt notice.

Procedure To Request Change of Status
The procedure to request a change of status in lieu of consular notification, petitioners (or authorized representative) should send an email with the request to the USCIS service center where the H-1B petition is pending within 30 days of the issuance of the receipt notice. The requests should include the receipt number and both the petitioner’s and beneficiary’s name, date of birth, I-94 number, and SEVIS number.

The e-mail addresses for requestig change of status are:

  • Vermont Service Center
    • Premium Processing cases: VSCPPCAPGAP.Vscppcapgap@dhs.gov
    • Non-Premium cases: VSCNONPPCAPGAP.Vscnonppcapgap@dhs.gov
  • California Service Center
    • Premium Processing cases: CSC.ppcapgap@dhs.gov
    • Non-Premium cases: CSC.nonppcapgap@dhs.gov
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H-1B Visa Policy

The Washington Post published today an article about the H-1B visa program and how its benefits and problems affect immigrants, employers and American workers.  The article is fairly short but it compresses the feelings of the three major stakeholders in the H-1B visa program debate.

The U.S. Employers
The H-1B program was designed to help U.S. companies obtain temporary skilled foreign workers to assist in projects for which there is a shortage of U.S. workers.  During the dot-com boom, most of these H-1B visas were used by software companies attracting talented software engineers from India, China, or eastern Europe.  Today, many of these H-1B visas are used by a more diverse group of U.S. employers, but software engineers are still among the highest in demand.

Based on the number of applications for this year’s H-1B season, 163,000, compared to last year’s number of 140,000, the demand for skilled foreign labor is strong and getting stronger. According to the Post article, companies, “offer the same salaries and perks whether you’re from Baltimore or Bangladesh . . . but [they] simply cannot find enough qualified U.S.-born staff to fuel [their] growth.”

The Foreign Talent
Foreign skilled workers’ stake in the H-1B visa program is often distorted.  The Post article highlights how many of these skilled workers come to the U.S. on H-1B visa and use the H-1B visa’s “dual intent” status to start a procedure of obtaining a permanent residency.  This, after all, is how this great country was built, and such influx of talent should not only be temporary, for the duration of the H-1B visa of six years, but should be made permanent to that the U.S. economy, as a whole, benefits.

The Critics
There are critics of the H-1B program, of course, and the Post article outlines their position.  Some critics consider the H-1B program a “cheap labor” allowing U.S. businesses to hire and sometimes exploit foreign workers who come to the U.S. and often have little or no bargaining power.  While such comments are justified in certain occasions and based on past cases by some employers, such cases seem to be limited to few individual employers and the Department of Labor is tasked with ensuring that no wage discrimination and workplace abuse takes place.

Conclusion
The debate about the benefits and disadvantages of the H-1B program will continue for as long as the program exists.  In economic slowdown, it is easy to point the finger to foreign workers as taking away jobs from qualified American workers.  But we should not lose sight of the greater benefit to the economy caused by the constant influx of educated foreigners who allow U.S. companies to stay competitive in a global economy.

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Withdrawal of Pending H-1B Application

Over the past few days we have been asked on numerous occasions – what happens to my OPT when my H-1B is approved? Can I withdraw my H-1B?
Background.  This question is prompted mainly by the new OPT extension rule which went into effect recently.  (See our previous posts for more details as we wrote extensively on this topic.)  Many OPT holders applied for their H-1B visas this April and are eagerly awaiting the outcome.  However, for many OPT holders, the April 2008 OPT rule extends their OPT duration by as much as 17  months.  Thus, some have asked us what are their options.

Answer.  The answer is, if you would like to stay on OPT longer you must withdraw your H-1B application.  It is important to note that once the H-1B application is approved and if it was filed as a “change of status,” then your OPT is cancelled automatically.  Therefore, prompt action may be necessary.  Another important note is that only the employer may submit withdrawal of the H-1B application since the application is technically filed by the employer.

If you need professional assistance with your OPT/H-1B visa applications please contact us.

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May 2008 Visa Bulletin

The May 2008 Visa Bulletin is out.  Among the employment-based visa numbers, unfortunately, there was only a slight forward movement for most categories.  The most notable movement was for employment-based third preference category (EB-3) for all countries except China, India, Mexico.  The priority date for such EB-3 workers moved from July 2005 to March 2006.  EB-3 Mexico and EB-3 Philippines moved to July 2002 and March 2006, respectively.

EB-2 China and EB-2 India moved slightly forward; unfortunately this movement was very minor, only by a month, to January 2004 for both.

See the full May 2008 Visa Bulletin.

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