Immigration Alert: January 2008

New H-1B Petitions Must be Filed on March 31, 2008

DHS Announces that New Document Requirements for U.S. Citizens Traveling Internationally Begin on January 31, 2008

U.S. Passport Card Applications Accepted Beginning February 1, 2008

State Department Institutes New PIMS Security System at U.S. Embassies and Consulates

DOS Issues February 2008 Visa Bulletin: Indian EB-2 is Unavailable

USCIS Reaches H-2B Cap For Second Half Of Fiscal Year 2008

Arizona Agrees to Delay Enforcement of its New Employer Sanctions Law

ICE Plans to Continue Targeted Enforcement in 2008

Minnesota Governor Issues Order Requiring State Agencies, Contractors to Use E-Verify

I. New H-1B Petitions Must Be Filed on March 31, 2008

During each federal fiscal year, the government is authorized to issue 65,000 new H-1B visas. An additional 20,000 new H-1B visas are available to foreign nationals who have obtained master's degrees or higher from accredited American universities. The government's fiscal year begins on October 1, but employers are permitted to apply up to six months in advance. This means April 1, but the applications must be mailed out on March 31, to reach the government on April 1.

Last year, the entire H-1B quota for regular H-1B petitions was exhausted on the first day! The H-1B quota for those U.S. master's degree holders was exhausted shortly thereafter. This means that all new H-1B petitions this year should be filed on Monday, March 31, 2008, to have a chance for selection in this year's quota. As you may know, it takes time to prepare these H-1B petitions, so we strongly advise that you make the decision to file several weeks in advance of the March 31, 2008, deadline.

II. DHS Announces that New Document Requirements for U.S. Citizens
Travelling Internationally Begin on January 31, 2008

As we previously reported, the Department of Homeland Security ("DHS") has announced that, starting January 31, 2008, all U.S. citizens ages 19 or older will be required to present documentary proof of citizenship, such as a U.S. passport or birth certificate, and proof of identity, such as a driver's license, when seeking to enter the U.S. through land border and sea ports-of-entry. This follows an earlier DHS announcement that required all U.S. citizens to present similar documents as of January 23, 2007, when seeking to return to the U.S. by air.

These new documentary requirements are mandated by 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 at land border and sea ports of entry.

To summarize, as of January 31, 2008, the DHS has announced the following:

  • Oral declarations of U.S. citizenship alone no longer will be accepted;
  • U.S. citizens aged 19 and older will need to present a government-issued passport or a passport card, or a photo ID (e.g., a driver's license) and proof of citizenship (e.g., 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 for foreign nationals. 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

III. U.S. Passport Card Applications Accepted Beginning February 1, 2008

In view of the January 31, 2008 enhanced land border and sea ports of entry travel document requirements, U.S. citizens may begin applying in advance for the new U.S. passport card starting February 1, 2008. The State Department ("DOS") expects that the cards will be available and mailed to applicants sometime in Spring 2008.

The passport card is expected to ease entry and accelerate document processing for American citizens at U.S. land border and sea ports-of-entry when arriving from Canada, the Caribbean, Mexico and Bermuda. The card cannot be used by Americans to return to the United States by air. Moreover, it is not a globally accepted international travel document and thus is not a substitute for a U.S. passport for those traveling to other areas of the world.

The DOS is issuing the passport card because border residents expressed a need for a less costly and more convenient travel document than the conventional passport. The card will have the same validity period as a regular passport, i.e., 10 years for an adult, 5 years for children ages 15 or younger. It also will have a vicinity-read radio frequency identification ("RFID") chip. This chip is intended to connect the card to a stored record in protected government databases. The RFID chip itself will not contain any personal information.

For additional information on the U.S. passport card, please visit www.Travel.State.gov

IV. DOS Institutes New PIMS Security System at U.S. Embassies and Consulates

The DOS has instituted a new security system that requires consular officers to verify the approval of all nonimmigrant visa petitions with U.S. Citizenship and Immigration Services ("USCIS") before issuing a nonimmigrant visa. The DOS estimates that this new procedure, called the Petition Information Management System ("PIMS"), will add at least four (4) business days to the time when the visa is issued and the passport is returned. Foreign nationals must now factor this additional delay into their plans when securing their nonimmigrant visas abroad.

V. DOS Issues February 2008 Visa Bulletin: Indian EB-2 is Unavailable

The DOS recently issued its Visa Bulletin for February 2008. This Bulletin determines who can apply for permanent residence and when. The results were mixed. Employment-Based Third Preference showed slight improvement from November 1, 2002; however, the Employment—Based Second Preference ("EB-2") for Indian nationals now is unavailable. In addition, the DOS indicated that further regression in the EB-2 Preference for Chinese nationals, as well as possible cut-off dates for the Chinese and Indian First Employment-Based Preference, might occur due to heavy demand.

Charlie Oppenheim, the DOS's Chief of Immigrant Visa Control and Reporting, made the following observations regarding the Indian EB-2 visa unavailability:

By early November 2007, there were signs that the USCIS's demand for Indian EB-2 visa numbers would place considerable demands on the overall annual limitation, which led to the decision to push back the priority date for the India EB-2 category for December 2007 to January 1, 2002, and for January 2008 to January 1, 2000. Even with those notable retrogressions, the USCIS asked for almost 300 India EB-2 for December. There is a possibility that India EB-2 could become available again if it appears that the request for India EB-1 will not surpass the annual limit, but, that decision cannot be made until the second half of the fiscal year.

As for China-mainland born EB-2, if the demand remains as it has for the last few months, it is expected that the January 01, 2003, cut-off date will hold, and it is likely that all numbers will be used within the current cut-off date.

The monthly Visa Bulletin is available through the DOS web site at:

http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

VI. USCIS Reaches H-2B Cap For Second Half Of Fiscal Year 2008

The H-2B nonimmigrant classification allows skilled or unskilled workers to enter the United States to perform temporary employment if the sponsoring employer can document that there are insufficient American workers available for the jobs. Like the H-1B classification, the H-2B category is subject to an annual quota. To facilitate the application process, Congress divided the H-2B quota into two parts. On January 3, 2008, the USCIS announced that it had received an adequate number of petitions to reach the H-2B cap for the second half of Fiscal Year 2008 ("FY2008"). Accordingly, the USCIS notified the public that January 2, 2008 was the "final receipt date" for new H-2B worker petitions requesting employment start dates prior to October 1, 2008. The "final receipt date" is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the second half of FY2008.

Petitions for workers currently in H-2B status do not count toward the congressionally mandated bi-annual H-2B cap. The USCIS will continue to process: (1) extensions of the stay of a current H-2B worker in the United States; (2) changes to the terms of employment for current H-2B workers and extensions of their stay; or (3) applications by current H-2B workers to extend their status or change or add employers.

For more information on the H-2B work program, please visit www.uscis.gov

VII. Arizona Agrees to Defer Enforcement of its New Employer Sanctions Law

On January 16, 2008, Arizona agreed to postpone enforcement of its new employer sanctions law for hiring undocumented workers until March 2008, when the U. S. Court of Appeals for the Ninth Circuit will hear the appeal from the district court's decision refusing to enjoin the new law. As we reported, the 15 counties charged with enforcing this law previously had agreed to defer enforcement until February 1, 2008. In the meantime, Arizona Governor Janet Napolitano has urged state lawmakers to address what she termed as "flaws" in the law, including the absence of any provision prohibiting discrimination.

VIII. ICE Plans to Continue Targeted Enforcement in 2008

Assistant Secretary of Homeland Security Julie Myers reiterated at an American Bar Association event that the Immigration and Customs Enforcement ("ICE") plans to proceed with targeted enforcement efforts in 2008, while continuing to reach out to employers regarding immigration law compliance. Ms. Myers stated that ICE will continue to engage in a "risk-based approach" to worksite enforcement that targets the worst of the worst employers who hire illegal immigrants as a part of their business model." She also indicated that ICE "won't bring criminal charges against employers who accidentally hire an illegal alien."

In addition, Ms. Myers states that an increase in Form I-9 inspections will be a significant component of ICE's 2008 compliance agenda. Employers found to have violated the immigration laws will be required in settlements with ICE to "invest money to make sure they are in compliance with the law going forward." Finally, Ms. Myers said that she fully expects the proposed DHS "Safe Harbor" rule will become effective in 2008 and thus provide ICE with an additional tool to fight illegal immigration. According to Ms. Myers, "[t]his will give employers the clarity they need." As our readers know, the DHS "Safe Harbor" rule was enjoined in a lawsuit brought by a conglomerate of labor, civil rights and business groups. AFL-CIO v. Chertoff, N.D. Cal., No. 3:07-cv-4472-CRB.

IX. Minnesota Governor Issues Order Requiring State Agencies, Contractors to
Use E-Verify

On January 7, 2008, Minnesota Governor Tim Pawlenty issued Executive Order 08-01 (the "Order"), which directs the Minnesota Department of Employee Relations, Department of Administration, and Department of Employment and Economic Development to use the DHS's E-Verify system to verify the employment eligibility of all new state employees. The Order also requires contractors doing business with the state and recipients of state business incentives to do the same. The Order is due to become effective fifteen (15) days after publication in the state register and filing with the secretary of state.

The Order indicates that the appropriate state executive branch employees will receive training on the E-Verify system, and that there will be annual random audits of state hiring authorities to ensure compliance. Although Governor Pawlenty does not consider E-Verify to be a "perfect" system, he indicated that it represents the best technology currently available to employers for verifying legal work eligibility.

In addition, the Order mandates that state contractors with contracts of at least $50,000 also will be required to use E-Verify, and certify that "as of the date of services on behalf of the State of Minnesota will be performed, the vendor and all subcontractors have implemented or are in the process of implementing the E-Verify program." Any contractors that knowingly employ illegal immigrants can have their contract with the state terminated, or be debarred as a vendor to the state of Minnesota.

In addition, Governor Pawlenty announced three (3) additional immigration measures to be implemented through executive action:

  • Cooperative efforts between Minnesota law enforcement and Immigration and ICE agents;
  • Review of Minnesota's drivers license database to catch duplicate photos and examine them for possible fraud; and
  • Coordinated law enforcement summits to train local law enforcement officers on criminal activity related to immigration.

X. REAL ID Final Rule

The REAL ID Act is a nationwide effort to improve the integrity and security of state-issued driver licenses and identification cards, which, in turn, will help fight terrorism and reduce fraud. The 9/11 Commission recommended that the U.S. improve its system for issuing identification documents. In the Commission's words:

At many entry points to vulnerable facilities, including gates for boarding aircraft, sources of identification are the last opportunity to ensure that people are who they say they are and to check whether they are terrorists.

The 9/11 Commission specifically urged the Federal government to set standards for the issuance of identification, such as driver licenses. Accordingly, Congress responded to this key recommendation by passing the REAL ID Act of 2005.

As of May 11, 2008, citizens of states that do not participate in the REAL ID program cannot use their driver's licenses or identification cards for official federal purposes. If these citizens do not have other acceptable forms of identification (e.g., a U.S. passport), they may suffer delays due to the requirement for enhanced security screening. REAL ID-compliant states are those that have both requested and obtained an extension from the DHS of the compliance date, or have been determined by DHS to be in compliance with the REAL ID Act and the final rule.

State-issued driver licenses serve many purposes, including being the primary form of identification for individuals accessing a federal facility, boarding federally regulated commercial aircraft, or entering nuclear power plants. Having secure identification is an important step toward enhancing national security. The REAL ID Act will make it more difficult to obtain identity documents through fraudulent means, and also will make it easier for law enforcement to detect falsified documents.

The DHS believes that the REAL ID Act establishes layers of security to help ensure that identity documents only go to those to whom they actually belong. This is achieved through increased security measures, including: physical security features on the credential itself; tightening DMV practices and procedures for document production; security plans and employee background checks; and verifying the information on source documents presented at the time of application. REAL ID also prohibits a state from issuing a REAL ID license to a person who holds a license issued by another state or to an individual who already holds a REAL ID card. REAL ID thus makes it more difficult to steal another's identity and use it to obtain a driver license.

The REAL ID Act also specifies that states must verify an applicant's lawful status in the United States before issuing a driver license or card. The Act does not stop states from issuing other, non-compliant, forms of driver licenses or state identification. However, non-compliant REAL IDs will not be accepted by federal agencies for official purposes and must be marked clearly as not acceptable for official federal purposes.

Please note that REAL ID is not a Federal Mandate, and that states are not required to participate. The REAL ID Act sets forth minimum standards that states are required to meet for their driver licenses and identification cards to be accepted for official federal purposes. In addition, REAL ID is not a national identification card. The states retain the authority to issue their own unique driver licenses and identification cards. REAL ID merely sets a minimum standard so that states, federal agencies, and other public organizations will have confidence in the security and integrity of credentials issued by participating states. If a state decides not to comply with REAL ID, its driver licenses and identification cards will no longer be acceptable for official federal purposes. Individuals from non-participating states still may present U.S. passport and other forms of acceptable identification to board federally regulated commercial aircraft and access federal facilities.

All states that intend to comply with the REAL ID Act can apply for extensions until December 31, 2009. In addition, states that meet certain benchmarks for the security of their credential, licensing and identification processes will be able to obtain a second extension until May 10, 2011. Federal agencies will continue to accept licenses from states granted extensions. The states that meet the interim benchmarks for material compliance will have until May 10, 2011, to comply with the provisions of the REAL ID Act. Federal agencies will continue to accept licenses for official purposes from those states which have been granted extensions.

For additional information on the REAL ID Final Rule, please visit:

http://www.dhs.gov/xprevprot/programs/gc

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