Immigration Alert: December 2007

I. Reminder to International Travelers: New Document Requirements Begin on January 31, 2008

U.S. Customs and Border Protection (CBP) officers currently accept oral affirmations of citizenship from U.S. and Canadian citizens seeking entry into the United States through land or sea ports. Effective January 31, 2008, however, all adult travelers will be required to present proof of citizenship, such as a birth certificate, and proof of identity, such as a driver's license, when entering the United States through land and sea ports of entry. The Department of Homeland Security (DHS) shortly will announce this change formally in the Federal Register.

The DHS already has instituted a similar process for international travelers entering the United States by air. The DHS considers this additional change necessary to comply with changeover requirements in the Western Hemisphere Travel Initiative (WHTI). Congress passed the WHTI in 2004 to force the DHS to develop enhanced security and border crossing procedures. Pursuant to this mandate, the WHTI has instituted documentation requirements for formerly exempt travelers, such as citizens of the U.S., Canada and Bermuda, when entering the United States.

To summarize, as of January 31, 2008:

  • Oral declarations of U.S. citizenship alone no longer will be accepted;
  • U.S. and Canadian citizens aged 19 and older will need to present a government-issued photo ID, such as a driver's license, and proof of citizenship, such as a birth or naturalization certificate;
  • Children aged 18 or younger only will be required to present proof of citizenship, such as a birth certificate; and
  • Passports and trusted traveler program cards, such as NEXUS, SENTRI and FAST, will continue to be accepted for cross-border travel.

This change does not alter existing nonimmigrant visa and passport requirements. All other documentary requirements remain in effect.

Since the current processing time for a U.S. passport is four to six weeks, Americans seeking to travel abroad may wish to apply now. For information on how to obtain a U.S. Passport, please visit www.travel.state.gov or call 1-877-487-2778. For information on documentation requirements for land, sea and air travel, please visit http://www.cbp.gov/xp/cgov/travel/vacation/ready_set_go/. For information on trusted traveler program cards (NEXUS, SENTRI and FAST), please visit www.cbp.gov/xp/cgov/travel/trusted_traveler/.

II. Federal Courts Reject Challenges to Legal Arizona Workers Act

A federal district court in Arizona now has rejected two attempts to enjoin the "Legal Arizona Workers Act" (the "Arizona Act"), which seeks to prevent employers from knowingly hiring illegal immigrants. On December 21, 2007, the United States Court of Appeals for the Ninth Circuit also rejected an emergency stay of the Arizona Act. As a result, this law will take effect on January 1, 2008. It requires all Arizona employers to use E-Verify and imposes sanctions, including suspension of the employer's business license, on employers who knowingly hire or retain an undocumented worker.

Two lawsuits were filed by a consortium of business, labor and immigrant rights groups to challenge the Arizona Act. The first was dismissed on December 14, 2007 by U.S. District Court Judge Neil V. Wake who found:

[t]he suit was premature because the law had not gone into effect and no one had been harmed, and also that the plaintiffs were wrong in suing the governor and the attorney general, because under the law, only county prosecutors, who were not defendants, would have the power to enforce the law.

A second lawsuit was filed shortly after the first one was dismissed, but Judge Wake still refused to issue an order enjoining enforcement of the Arizona Act. In the judge's opinion:

Plaintiffs' injury from complying with the law is far less than the harm that a pre-trial declaratory judgment, styled as a temporary restraining order, would impose on others and on the public interest.

On appeal, the Ninth Circuit Court of Appeals refused to enjoin the effective date of the Arizona Act because the State of Arizona represented that it would not be enforced until February 2008 and thus the appellate court did not have to act immediately. The Ninth Circuit set argument on the appeal for January 16, 2008 and said it would issue its ruling by February 1, 2008.

As we previously reported, Arizona Governor Janet Napolitano signed the Arizona Act into law. It takes effect on January 1, 2008 and, in the words of Governor Napolitano, represents the "most aggressive action in the country against employers who knowingly or intentionally hire undocumented workers." Recently, Arizona started sending warning notices to all registered Arizona businesses advising that the Arizona Act's provisions will take effect on January 1, 2008. Employers in Arizona need to make arrangements to comply with this new law before the end of the year.

III. Reminder: Labor Certifications approved prior to July 16, 2007 will expire on January 12, 2008, unless I-140 petitions are filed by that date

As we reported, the Department of Labor (DOL) issued a new rule on July 16, 2007 to combat fraud in the labor certification process. One aspect of this rule was designed to prevent what the DOL described as a continuing black market in approved labor certifications. To accomplish this, the DOL announced that any labor certifications approved prior to July 16, 2007, would become null and void unless an I-140 petition was filed on the basis of the approved labor certification by January 12, 2008.

Furthermore, any labor certification approved on or after July 16, 2007, will expire 180 days from the date of approval, unless the sponsoring employer files its I-140 petition based on that approved labor certification within 180 days of approval.

IV. Application Fees for Nonimmigrant Visas to Increase on January 1, 2008

Effective January 1, 2008, U.S. nonimmigrant visa application fees will increase from $100 to $131. This increase will enable the Department of State (DOS) to recover security costs and other enhancements to the nonimmigrant visa application process. Please note that this increase applies to both non-immigrant visas issued on machine-readable foils in passports and border crossing cards issued to certain applicants in Mexico.

Applicants who paid the $100 application fee before the January 1, 2008 increase will be processed only if they appear for visa interviews on or before January 31, 2008. Applicants who paid the $100 application fee and appear for visa interviews after January 31, 2008, will be processed only if they pay the additional $31.

V. Comment Period Closes for Comments on To Eliminate Permanent Resident Cards Without Expiration Dates

On August 22, 2007, USCIS published a proposed regulation in the Federal Register that would require all lawful permanent residents to exchange permanent resident cards (Form I-551) without expiration dates for the new 10-year counterfeit-proof versions. The USCIS received public comments on this proposal until September 21, 2007.

Once this rule becomes effective, it will not impinge on the validity of the cardholder's permanent residence status. However, permanent residents would not be able to use outdated cards as their proof of residence. It is anticipated that the USCIS will establish a process to replace outdated green cards when the final rule is adopted, including the time period(s) during which USCIS will accept applications to replace these cards. Permanent residents who possess permanent resident cards with no expiration date may replace their cards now, but there currently is no requirement to do so.

The USCIS believes that the replacement of these outdated cards is fundamental to the safekeeping of the immigration process. The issuance of new cards will give the USCIS the opportunity to update photographs and biometrics and remove from circulation different varieties of the same card. In addition, permanent residents will receive new cards that contain greater security features.

VI. The DHS announces additional fingerprints requirements for international travelers arriving at Washington Dulles International Airport.

On November 29, 2007, the DHS announced that it had started collecting ten fingerprints from international visitors arriving at Washington Dulles International Airport (Dulles). This modification is a pilot program for DHS eventually plans to improve security at all ports of entry by upgrading to the ten-fingerprint collection process.

It is anticipated that the DHS will implement the ten-fingerprint collection process within the next few months at nine (9) other ports of entry: Hartsfield-Jackson Atlanta; International Airport; Boston Logan International Airport; Chicago O'Hare International Airport; San Francisco International Airport; George Bush Houston Intercontinental Airport; Miami International Airport; Detroit Metropolitan Wayne County Airport; Orlando International Airport; and New York John F. Kennedy International Airport. The 278 remaining ports will begin this process by the end of 2008.

DHS believes that the transition from two-to-ten fingerprint collection will increase its ability to identify and prevent thousands of criminals and immigration violators from entering the United States. It also will inhibit the use of fraudulent documents and help protect foreign visitors from falling victim to identity theft.

VII. January 2008 Visa Bulletin Results Mixed

The DOS has issued its January 2008 Visa Bulletin. This is what determines who can apply for permanent residence and when. The results were mixed. Employment-Based Third Preference showed slight improvement to October 15, 2002. However, the Employment—Based Second Preference for Indian nationals showed major regression to January 1, 2000. In addition, the DOS indicated that further regression in the Second Employment-Based Preferences for Indian and Chinese nationals could not be ruled out due to heavy demand for visas in each category. The DOS also indicated that it might be required to establish cut-off dates for Chinese and Indian nationals seeking First Employment-Based Preference due to heavy demand.

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