Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for December, 2008

Malta to be Designated a Visa Waiver Country

The U.S. Department of Homeland Security (DHS) will designate Malta as a Visa Waiver Program (VWP) country on Dec. 30, 2008*. Maltese nationals will be able to travel visa-free to the United States effective Dec. 30th.

The VWP will enable citizens of Malta to travel to the United States, beginning on Dec. 30, 2009, for 90 days or less for tourism or business purposes without a visa, provided they have an e-passport and an approved authorization via the Electronic System for Travel Authorization (ESTA).

Currently, 34 countries participate in the Visa Waiver Program. The U.S. Congress authorized DHS in August 2007 to reform the VWP and strengthen the security arrangements required of existing participant countries, as well as to expand the opportunity for aspiring countries to join the program. This legislation also mandates certain improvements to the VWP for all participating countries, such as the requirement that travelers first obtain an online authorization to travel under the newly established ESTA, a web-based system that determines the preliminary eligibility of visitors to travel under the VWP prior to boarding a carrier to the United States.

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DHS Releases List of 2008 Accomplishments

If DHS was a Wall Street entity, I would be sure to chalk this press release, dated December 18, 2008, on the holiday bonus performance review.

In any case, DHS has released a report listing its 2008 end-of-year accomplishments.  Although not all of the accomplishments are related to immigration, many are.  This is not the most engaging holiday reading material, but it may be worth skimming for those readers who try to get a sense of what DHS’ priorities have been for the past year and what they may be in 2009.

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A New Source for Naturalization Delays

The Washington Post has a nice expose of a new source of delays for the naturalization proceedings for thousands of legal permanent residents.  The Post article quotes the report by the USCIS Ombudsman, dated December 16, 2008, which finds that while USCIS naturalized more than 1,000,000 new citizens in Fiscal Year 2008 and while there is a significant improvement on eliminating processing bottlenecks such as FBI security checks, there are some new and unexpected sources of delays – the U.S. federal courts.

For example, in one of the nation’s busiest courts (unnamed in the report), a judge’s delay caused nearly 2,000 people to not receive the oath in time to register for November’s general election.  There are four cities in the U.S. where the federal courts retain exclusive jurisdiction over naturalization cases – New York, Los Angeles, Chicago and Detroit.  One of the examples cited in the report refers to an unnamed judge’s refusal to schedule more naturalization appointments or to allow USCIS to administer the oath to new citizens.

It  turns out that federal courts are being paid by USCIS for each naturalization ceremony they perform, and as a result federal judges are reluctant to give up their authority to do so.  The report urges USCIS and federal courts to work together and set rules on how each party handles ceremonies in order to “to ensure a consistent customer service ethic that safeguards the significance of the event for new citizens.”

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US-VISIT Biometric Requirements to Include Legal Permanent Residents

The Department of Homeland Security has released a final rule, with targeted effective date of January 18, 2009, which would dramatically expand the number of aliens who are subject to the US-VISIT program biometric requirements.

About the US-VISIT Program.  The US-VISIT program was established in 2003 to verify the identities and travel documents of visitors. US-VISIT automates this verification by comparing biometric identifiers, and by comparing biometric identifiers with information drawn from intelligence and law enforcement watch lists and databases. Visitors subject to US-VISIT may be required to provide fingerscans, photographs, or other biometric identifiers upon arrival at, or departure from, the United States. Currently, people entering the United States pursuant to a nonimmigrant visa, or those traveling without a visa as part of the Visa Waiver Program, are subject to US-VISIT requirements, with certain limited exceptions.

The New Rule.  The new rule, which goes into effect on January 18, 2009, will subject legal permanent residents (LPRs or green card holders) to the fingerprinting and digital photos procedure which is currently applied to other non-immigrants entering the U.S.  The new rule has some very minor exceptions, so all green card holders between the age of 14 and 79 entering the U.S. after January 18, 2009, should expect to be subject to the US-VISIT biometric processing.   Opponents of the new rule cite privacy and lengthy border processing delays as some of the negative consequences of the new rule.  Although the new processing requirements will certainly slow down LPRs at their border inspection, regardless of whether they travel by land or by air, one piece of good news is that LPRs can still be processed in the faster “Citizens/LPRs” line on most airports and points of entry into the U.S.

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Form I-9, Employment Eligibility Verification Revised

USCIS has announced that is has submitted for publication in the Federal Register an Interim Final Rule which modifies the Employment Eligibility Verification process.

The Interim Final Rule narrows the list of identity documents which are acceptable and specifies that expired documents are not considered acceptable forms of identification.   The changes included in the Interim Final Rule are intended to improve the security and the trustworthiness of the employment eligibility verification process.

The Interim Rule eliminates Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) from List A on Form I-9.  These documents are no longer issued and those that were in circulation have expired. The Rule also adds to List A of the Form I-9 foreign passports containing specially-marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia and the Republic of the Marshall Islands.  The Rule makes other, technical changes to update the list of acceptable documents. The revised Form I-9 includes additional changes, such as revisions to the employee attestation section, and the addition of the new U.S. Passport Card to List A.

Form I-9.

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H-2B Cap Update

USCIS released an update, dated December 15, 2008, of the number of H-2B petitions received and counted towards the H-2B cap for the second half of FY 2009.  As of November 12, 2008, 18,367 petitions have been counted towards the 33,000 cap for the second half of Fiscal Year 2009.

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Changes to the H-2A Program

USCIS announced last week changes to the H-2A program which changes would streamline the hiring process for temporary and seasonal agricultural workers.  The final rule is intended to facilitate the H-2A process for employers by removing certain limitations and to encourage lawful employment.

About the H-2A Program

The H-2A visa allows a foreign national entry into the U.S. for temporary or seasonal agricultural work. There are several requirements of the employer in regards to this visa. The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Currently in the United States there are about 30,000 temporary agricultural workers.

Major Changes to the H-2A Program

Among the major changes to the H-2A program are:

  • Relaxing the current limitations on H-2A employers to petition for multiple, unnamed agricultural workers;
  • Extending from 10 days to 30 days the time a temporary or seasonal agricultural worker may remain in the country following the expiration of his or her temporary H-2A stay;
  • Reducing from six months to three months the time an H-2A worker who has spent three years in the United States must reside and be physically present outside the United States before he or she
    is eligible to re-obtain H-2A status;
  • Allowing H-2A workers, who are changing from one H-2A employer to another H-2A employer, to begin work with the new petitioning employer upon the filing of a new H-2A petition, provided the new employer is participating in USCIS’ E-Verify program;
  • Prohibiting H-2A employers and recruiters from imposing certain fees on prospective H-2A workers as a condition of employment;
  • Requiring an approved temporary labor certification in connection with all H-2A petitions;
  • Requiring employers to notify USCIS when H-2A workers fail to show up for work, complete the work more than 30 days early, are terminated, or abscond from the worksite; and
  • Permitting the approval of H-2A petitions only for nationals of certain countries designated as
    important to the operation of the program and appearing on a list to be published annually in the Federal Register. The initial list of participating countries to be published simultaneously with
    this Final Rule includes Mexico, Jamaica, and 26 others. DHS may allow on a case-by-case basis worker from a country not on the list to be eligible for the H-2A program if such participation is in the U.S. interest.

The new rules have been transmitted to the Federal Register and will become effective 30 days after they have been posted.

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January 2009 Visa Bulletin – Slow Forward Movement

The January 2009 Visa Bulletin is out.  As expected and unfortunately, the forward movement in the employment-based category is very small.

EB-2 India has moved a month forward from June 2001 to July 2001.  EB-2 China has moved from June 2004 to July 2004.

EB-3 India has moved by only 15 days – from October 1, 2001 to October 15, 2001.  EB-3 ROW (Rest of the World) remains unchanged at May 1, 2005.

We have discussed previously that according to the State Department (which is responsible for issuing the Visa Bulletin),  the high demand being received from USCIS for employment-based immigrant visas indicates that they have a significant amount of cases with priority dates that are earlier than the established cut-offs.   This is likely to result in slow forward movement of the cut-off dates for most employment-based categories during the next few months.

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Immigration Benefits via U.S. Military Service

A new Department of Defense pilot program will allow non-U.S. citizens to enlist in the U.S. army and be able to obtain expedited U.S. citizenship.  The program
will temporarily permit enlistment into military service of certain legal aliens (who have lived in the United States for at least two years) and who hold skills that are critically needed in the military – medical specialties (such as physicians and nurses) and certain strategic foreign languages and cultures, qualifications important to present and future military operations.

The eligibility requirements are:

1) The applicant must be one of the following categories at time of enlistment:  (a) asylee, refugee, Temporary Protected Status (TPS), or (b) nonimmigrant categories E, F, H, I, J, K, L, M, O, P, Q, R, S, T, TC, TD, TN, U, or V.

2) The applicant must have been in valid status in one of those categories for at least two years immediately prior to the enlistment date, but it does not have to be the same category as the one held on the date of enlistment; and

3)  An applicant who may be eligible on the basis of a nonimmigrant category at time of enlistment (see 1b above) must not have had any single absence from the United States of more than 90 days during the two year period immediately preceding the date of enlistment.

The pilot program is open to 1,000 people and will be reevaluated after 12 months.

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