Immigration Alert: May 2008May 30, 2008
More on DHS's New F-1 OPT Regulations
CBP Now Accepting Applications for Global Entry Pilot Program
DOS Issues June 2008 Visa Bulletin: Indian and Chinese EB-2 Available
China Adopts More Stringent Business Visa Requirements
DOL Proposes New H-2B Rule
USCIS Proposes To Increase Period Of Stay For TN Professional Workers
Consulting Firm Settles H-1B Discrimination Case
I. More on DHS's New F-1 OPT Regulations
Last month we reported on the new regulation issued by the Department of Homeland Security (DHS) which eliminated some of the uncertainty that F-1 students and their employers faced as a result of the H-1B cap. Among other things, this new regulation extended the Optional Practical Training (OPT) period for 17 months for F-1 students who had earned STEM degrees and work for employers registered and using the E-Verify program. This allowed eligible employers to retain these F-1 students even if they were not selected in the H-1B cap.
In reviewing the new regulation it was not clear whether the employer of the F-1 student had to be enrolled in E-Verify at the site of employment. On May 21, 2008, Katherine Lotspeich, the Acting Chief, U.S. Citizenship and Immigration Service (USCIS) Verification Division, advised that the DHS soon would publish guidance that will make clear that an employer seeking to employ an F-1 student in extended OPT under the new regulation must register for and use E-Verify at the workplace where the F-1 student will be employed.
II. CBP Now Accepting Applications for Global Entry Pilot Program
On May 12, 2008, the U.S. Customs and Border Protection ("CBP") began processing applications for the new Global Entry pilot program (the "Program"). The Program is designed to expedite the screening and processing of low-risk, frequent international travelers entering the United States. The Program is scheduled to launch on June 10, 2008, at three airports: John F. Kennedy International Airport, New York; George Bush Intercontinental Airport, Houston; and Washington Dulles International Airport, Washington, D.C.
The Program will be available to U.S. citizens or lawful permanent residents who are frequent international travelers, provided they have not been found guilty of a criminal offense, charged with a customs or immigration offense, or declared inadmissible to the U.S. under immigration regulations. Biometric fingerprint technology will be utilized to verify the passenger's identity and confirm his/her status as a Program participant.
The Program application process consists of the following three steps:
(1) An applicant must complete and submit an on-line application and pay a $100 fee;
(2) The CBP will review the application and conduct a background investigation; and
(3) The CBP will interview the applicant at an Enrollment Center at JFK, Houston or Dulles airports.
Successful enrollment in the Program enables applicants to avoid the regular passport control line and go directly to the Global Entry kiosk upon return from international travel. At the kiosk, Program participants will activate the system by inserting their passport or U.S. permanent resident card into the document reader. The kiosk then will instruct participants to provide fingerprints, which will be compared with the fingerprint biometrics on file. A digital photograph of the traveler also will be taken as part of the transaction record. Lastly, participants will be asked to answer a number of questions posted on the kiosk's touch-screen. Once the process is completed successfully, participants will be issued a transaction receipt which they will be required to present to the CBP officer for inspection.
For more information, please visit the Global Entry Program website at www.cbp.gov
III. DOS Issues June 2008 Visa Bulletin: Indian and Chinese EB-2 Available
The Department of State (DOS) recently issued its Visa Bulletin for June 2008. This Bulletin determines who can apply for permanent residence and when. The Employment-Based Third Preference showed improvement, with a cut-off date of March 1, 2006. The Employment—Based Second Preference ("EB-2") for Indian and Chinese nationals became available with a cut-off date of April 1, 2004.
The monthly Visa Bulletin is available through the DOS website at:
IV. China Adopts More Stringent Business Visa Requirements
On April 15, 2008, China adopted more stringent requirements for non-Chinese citizens seeking to obtain business visas. A business visa generally is issued to an applicant who intends to visit China for up to six months based on an invitation from a Chinese partner. The Chinese government indicates that these additional requirements are necessary to ensure a safe environment before the 2008 Olympic Games. Most prominent among these new requirements is that travelers need to obtain a "Visa Notice" from the economic and trade bureau or foreign affairs office of the provincial or municipal government where they plan to visit. As it may take 4 to 6 weeks to obtain this Visa Notice, applicants are advised to begin this process at least six weeks in advance of their trip.
V. DOL Proposes New H-2B Rule
The Department of Labor (DOL) proposes to modernize the labor certification process required to secure H-2B nonimmigrant status, and the procedures for enforcing the attestations made by the sponsoring employers. More specifically, the proposed rule will centralize the application filing and review process and allow employers to conduct pre-filing recruitment activities.
In an effort to enhance the integrity of the H-2B Program, the proposed rule will introduce post-adjudication audits and procedures to penalize employers who fail to meet H-2B requirements. The proposed rule also describes potential H-2B enforcement procedures the DOL could institute in the event that DHS and DOL develop a mutually agreeable delegation of enforcement authority.
VI. USCIS Proposes To Increase Period Of Stay For TN Professional Workers
The USCIS recently announced its intention to publish a Notice of Proposed Rulemaking ("NPRM") which, if successful, would increase the maximum period a Trade-NAFTA ("TN") professional worker could remain and work in the United States before seeking readmission or obtaining an extension of stay. TN workers now can remain only up to one year. This proposal would extend the maximum period for TN workers up to three years.
In addition, the proposed rule would permit eligible TN nonimmigrants also to extend their stay for up to three years, as opposed to the current maximum of one year. Since TN non-immigrants are not subject to a maximum period of stay, they may request multiple readmissions or extensions if their intended professional activity continues and they remain otherwise eligible. The proposed changes also would allow the spouses and unmarried minor children of TN nonimmigrants to remain in their corresponding nonimmigrant classifications as NAFTA dependents.
VII. Consulting Firm Settles H-1B Discrimination Case
The U.S. Department of Justice (DOJ) recently fined iGate Mastech, Inc. (iGate), a Pittsburgh, PA, consulting firm, $45,000 for placing online job ads for computer programmers that limited eligible applicant to only H-1B visa holders. The DOJ alleged that iGate http://www.igatemastech.com/index.php placed 30 online job ads in May and June 2006 asking for only H-1B visa holders. For example one of the iGate ads was for a Java Programmer in the Midwest. The ad stated that "Only H-1s Apply, and should be willing to transfer H-1B." In addition to the fine, the DOJ has required iGate to train its recruitment personnel and post a non-discrimination statement on its website.