ELAINE KIMBRELL AND STEVE SPRINGER JOIN FIRM AS ASSOCIATE ATTORNEYS

Ms. Kimbrell graduated from George Washington University in 2000 where she earned her BA in International Affairs. She earned her JD from Loyola University New Orleans in 2005. She was a member of the Maritime Law Journal and participated in the Volunteer Income Tax Assistance Program. Ms. Kimbrell previously served as a constituent services representative for U.S. Senator Mary Landrieu. In this capacity, she assisted constituents with their applications for federal benefits and specialized in immigration cases. She continued her federal service as Senator Landrieu’s projects assistant, focusing on federal funding opportunities for state and local communities. Ms. Kimbrell is a member of the American Immigration Lawyers Association and is skilled in all areas of immigration law.

Mr. Springer earned his law degree in 1986 from the University of Alabama. After working for several years as a litigator, he earned a graduate degree in cultural studies, served as a Peace Corps volunteer in Poland, managed immigration services for several major research universities for nearly a decade, and managed his own immigration law practice. He has held a variety of leadership positions in NAFSA: Association of International Educators, including Manager of the International Scholar Advising Network, Chair of the Employment Issues Working Group, Dean of the “J-1 for Beginners” Professional Development Program, USCIS Service Center liaison, Region I Secretary and team member, Region VII team member, and member of several other committees and working groups. Mr. Springer served on the team that developed the J-1 Advanced Professional Development Program, has presented over 40 workshops and sessions at national and regional NAFSA conferences, and was awarded “NAFSAn of the Year” by Region I. He also co-created a video-based intercultural communications training program for university administrators who work with international students. Mr. Springer is a member of the American Immigration Lawyers Association and will present a session at its upcoming national conference in Orlando. He will also be presenting several sessions at the upcoming NAFSA Annual Conference in Minneapolis

POSITIVE MOVEMENT IN EMPLOYMENT-BASED IMMIGRATION BACKLOGS

The Department of State’s (DOS) June Visa Bulletin shows significant improvements in the employment-based “green card” quotas for the retrogressed second-preference and third-preference categories. For example, EB2 China 1/1/06 from 4/22/05; EB2 India 4/1/04 from 1/8/03; EB3 China 6/1/03 from 8/1/02, EB3 India 6/1/03 from 5/1/01; EB3 all others 6/1/05 from 8/1/03. This good news is tempered by the fact that the backlogs remain extreme and negatively impact employers and employees.

See the Visa Bulletin at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

USCIS ANNOUNCES DIRECT FILING INSTRUCTIONS FOR FORMS I-129 & I-539

The U.S. Citizenship and Immigration Service (USCIS) announced that, as of April 2, 2007, forms I-129 and I-539 are filed with an adjudicated by either the California Service Center or the Vermont Service Center. The place of employment determines the appropriate service center for I-129s, and the I-539s associated with a petition should be filed at the service center where the petition is or was filed. The proper service center for I-539s not associated with a petition is determined by the applicant’s place of residence. These latest instructions supersede contradictory instructions on the USCIS website. On April 17, USCIS began rejecting improperly filed forms and returning them with fee and instructions for proper filing.

CHANGE IN PROCEDURE FOR REINSTATEMENT OF STUDENTS

Reinstatement applications for F and M students are still filed at the district USCIS office with jurisdiction over the student, but – effective October 30, 2006, these applications are forwarded to either the Vermont Service Center or the California Service Center for adjudication. This means that, at least for a while, it will be more difficult to ascertain the likelihood of success. We usually knew what to expect from our local Schools Officers, but we’ll have to wait and see what standards the service centers develop for adjudicating these applications. A possible improvement would be increased conformity of decision-making throughout the country. Communication with service centers about these applications will be difficult, if not impossible.

J-1 PROFESSORS AND RESEARCHERS ELIGIBILITY PERIOD INCREASED TO FIVE YEARS

DOS clarified that November 18, 2006 (the day after SEVIS operability) was the effective date for implementation of the five-year eligibility period for the Professor and Research Scholar categories. As of that date, current and future participants in these categories are eligible for a period o f up to five years. They are also subject to a 24-month bar on repeat participation in the Professor or Research Scholar category. The 24-month bar applies after even a brief visit, so in order to host a Professor or Research Scholar numerous times during the five-year eligibility period, the Sponsor must keep the SEVIS record active. For example, a participant in the Professor or Research Scholar category can come to the U.S. one week per year, for five years, if the SEVIS record is kept active, and then be subject to the bar. One strategy for avoiding the bar on repeat participation altogether is to utilize the Short Term Scholar category, which permits program participants up to six months per visit, and remains unaffected by the 24-month bar.

BASIC H-1B QUOTA EXHAUSTED FIRST DAY AND MASTERS QUOTA EXHAUSTED APRIL 30

USCIS announced that on the first day that filing was permitted, April 2, 2007, it received enough petitions to exhaust the basic H-1B quota or “cap” of 65,000 for Fiscal Year 2008. USCIS created a lottery system to determine which petitions will be processed and which will be rejected. Then USCIS announced that the 20,000 exemptions from the H-1B cap for persons who obtained a graduate degree in the U.S. had been exhausted, on April 30, 2007. USCIS created a random lottery system to select petitions to be accepted from among those received on the last day, April 30. This means that, unless Congress increases the quota and exemptions, industry will not have access to any new H-1Bs until October 1, 2008.

Cap-exempt employers, including higher education institutions and affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations, may continue obtaining H-1B status for employees. Persons already counted against the H-1B cap are not counted again when their employer seeks an extension of H-1B status for them or when they move to another employer. However, H-1Bs who work for cap-exempt employers (and have not been counted against the cap) face a cap problem if they wish to leave the cap-exempt employer and move to a cap-subject employer.

H-2B CAP REACHED FOR SECOND HALF OF FISCAL YEAR 2007

On March 23, 2007, USCIS announced that the congressionally mandated H-2B cap had been met for the final six months of Fiscal Year 2007 (FY2007) with March 16 as the “final receipt date” for new H-2B worker petitions requesting employment with start dates prior to October 1, 2007. Petitions for workers currently in H-2B status and returning H-2B workers do not count against the bi-annual H-2B cap. The H-2B classification is used by employers who have seasonal, peakload, intermittent, or one-time need for skilled or unskilled laborers, and whose employment opportunities will be less than one year in duration. Many employers were negatively impacted by the extreme DOL processing backlog, and employers in some states – Louisiana and New York, among others – were seriously prejudiced by delays at the State Workforce Agency in processing prevailing wage determinations and job orders. Ms. Gasparian attended the DOL stakeholders meeting held in Atlanta on May 4, 2007. The meeting focused on new DOL guidance to be followed by all states to create uniformity in procedures and processing times. The DOL acknowledged the severe backlog, and indicated that training and other steps had been taken to improve future H-2B processing. Note: The exemption of returning workers from the H-2B cap expires in September 2007.

PASSPORTS REQUIRED FOR AIR TRAVEL INTO UNITED STATES

Effective January 23, 2007, citizens of the U.S., Canada, Mexico and Bermuda are required to present a passport to enter the U.S. when arriving by air from any part of the Western Hemisphere. All others entering the U.S. have always been required to present a passport. The only acceptable alternative documents to a passport for air travel will be the Merchant Mariner Document (MMD) and the NEXUS Air card. The MMD or “Z card” is issued by the U.S. Coast Guard to U.S. merchant mariners, and the NEXUS Air card is issued to citizens of Canada and the U.S., lawful permanent residents of the U.S., and permanent residents of Canada who meet certain eligibility requirements. Members of the U.S. military traveling on official orders may continue to present their military ID and orders for entry.

TEMPORARY PROTECTED STATUS UPDATE

On May 2, 2007, DHS announced that Temporary Protected Status (TPS) designation would be extended 18 months for eligible nationals of Honduras, Nicaragua, and El Salvador. Current TPS designations for Honduras and Nicaragua expire on July 5, 2007. Filing periods have not yet begun. The current TPS designation for Salvadorans expires on September 9, 2007. A forthcoming Federal Register announcement will provide details on the registration process and the time to file. We’ll keep you updated.

The designation of Sudan for TPS has been extended for 18 months to November 2, 2008, from its current expiration date of May 2, 2007. Re-registrants will likely not receive new EADs before current EADs expire on May 2, 2007, so DHS has automatically extended the validity of EADs issued under the TPS designation of Sudan through November 2, 2007.

These extensions are for those who have already been granted TPS, except that persons who have been maintaining valid nonimmigrant status may be eligible for late initial registration. If you are interested in obtaining TPS, please consult a qualified immigration attorney.

USCIS PROPOSES STEEP FEE INCREASES

USCIS published a proposed rule in the Federal Register to dramatically increase fees for immigration and naturalization applications and petitions in order that it might “improve customer service, strengthen the security of our immigration system, and modernize its business infrastructure for the 21st century.” A sampling of proposed fee adjustments for some common applications include: I-129 from $190 to $320; I-140 from $195 to $475; I-485 from $325 to $905; I-131 from $170 to $305; I-765 from $180 to $340. This proposed rule does not change the existing fee structure and the agency must publish a final rule in the Federal Register before any changes may be implemented. “Summer” is the target for the changes. However, Congress may delay or alter proposed changes.

USCIS IMPLEMENTS ONLINE CHANGE OF ADDRESS

On January 12, 2007, USCIS implemented an online change of address as an alternative to the Form AR-11. All permanent residents and most nonimmigrants are required to notify USCIS of a change of address within 10 days of such change. The new online system allows this to be done electronically. Like the paper AR-11, the electronic AR-11 does not update the address on pending applications. Remember to retain proof of timely submission of the paper or electronic AR-11.

FINAL DOL RULE ON LABOR CERTIFICATION VALIDITY

DOL has issued a rule at 72 Fed. Reg. 95 (May 17, 2007) that would cause approved labor certification applications to expire if not filed in support of an I-140 within 180 days of approval (those approved before 7/16/07 would expire 180 days from that date), prohibit substitutions and modifications, and set short time limits on requests for reconsideration. The vague and confusing rule also purports to require employers to pay all costs associated with labor certification, including attorneys’ fees, and prohibit employees from paying. We expect to see legal action against DOL over the rule and will keep you apprised about this and as the full import of the rule becomes clear.

EARLIER FILING OF O AND P EXTENSIONS NOW POSSIBLE

Effective May 16, 2007, USCIS will accept petitions for O and P classifications up to one year in advance. Previously employers were allowed to submit petitions up to six months in advance of the activity. (72 Fed. Reg. 18856, 4/16/07).

ICE AND CBP CHANGE NAMES AGAIN

On March 31, 2007, the Bureau of Immigration and Customs Enforcement changed its name to U.S. Immigration and Customs Enforcement. The Bureau of Customs and Border Protection has changed its name to U.S. Customs and Border Protection.

EXPECT LESS TIME TO RESPOND TO RFES AND NOIDS

The final rule amending DHS regulations to allow USCIS flexibility in setting the times for responding to Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) was published in the Federal Register on April 17, 2007 (72 Fed. Reg., 19100, 4/17/07). Effective June 18, 2007, instead of the standard 12-week period to respond, the maximum period will be 12 weeks and the minimum 30 days, with no opportunity for extension. The rule also addresses several other topics, including the process for responding to RFEs and NOIDs, when applicants/petitioners should submit original documents rather than copies, and the consequences of failure to appear for biometrics appointments.

DOS DISCONTINUES USE OF “APPLICATION RECEIVED” STAMP

Referring to it as the “end of an era,” DOS recently instructed consular posts to discontinue use of the “Application Received” nonimmigrant visa refusal stamp. Refusals will apparently be noted only electronically in DOS’ system now. Since notations indicating prior visa applications and refusals will no longer be readily apparent for the rest of us, ascertaining whether someone has applied for or been denied a visa will be more difficult.

A VEHICLE FOR ADDRESSING PROBLEMS FACED AT PORTS OF ENTRY

On February 21, 2007, DHS launched the Traveler Redress Inquiry Program (TRIP). Travelers may submit inquiries to seek resolution of misidentification issues at ports-of-entry or to report that they have been unfairly delayed or denied boarding due to additional screening. Access TRIP at http://www.dhs.gov/trip

UNIVERSITY OF NEBRASKA FORCES USCIS TO ADJUDICATE H-1B PETITION

On March 2, 2007, the University of Nebraska (UNL) filed a lawsuit against DHS seeking to force adjudication of an H-1B petition for a professor pending for 22 months. Security checks were blamed for the delay, a common problem these days. The lawsuit, a complaint requesting a writ of mandamus (which requires a government official to perform his/her duty), was filed by UNL as a last resort. Just before the deadline to respond to the complaint, DHS approved the petition. Perhaps DHS counsel did not want to defend the agency’s actions in court. It is unfortunate that the only remedy available to address security check delays is mandamus. The agency has begun to vigorously fight most of these complaints in court, sometimes winning and sometimes losing.

NO MORE “BIOMETRIC CHECK-OUTS”

Effective May 6, 2007, international visitors will no longer be required to use the US-VISIT exit kiosks when they leave the U.S. They must continue to return the I-94 to the airline representative charged with collecting them. Apparently DHS hopes to implement exit procedures “in the commercial air environment,” requiring airlines to track visitor’s exits. One airline industry leader has called the plan “as ill-conceived as it is surprising” so they seem unwilling to deploy such a system. DHS will eventually publish a notice in the Federal Register if there is a new program.

LEGISLATIVE UPDATE
COMPREHENSIVE IMMIGRATION REFORM BECOMING A REALITY

At mid-May, the Senate seems poised to bring a reform measure to a vote soon. We are hopeful that Congress will pass comprehensive reform this summer, providing a direct path to permanent residence for the undocumented without requiring departure and re-entry to the U.S. and implementing a guest worker plan. In addition to increased border security measures, the legislation will likely contain steep increases in both employment-based immigrant quotas and the H-1B temporary worker quotas. President Bush, who will be instrumental in keeping immigration reform on the agenda, reportedly hopes to sign a bill into law this year. We will keep you posted. Here are brief summaries of recent developments:

Immigrant Accountability Act of 2007: On April 26, 2007, Senator Chuck Hagel (R-Nebraska), introduced the Immigrant Accountability Act of 2007 (S. 1225). It would provide conditional resident “orange cards” to those who met certain conditions, paid a fine, and completed background and security checks.

High-Tech Worker Relief Act: On April 11, 2007, Senator Chuck Hagel (R-Nebraska) introduced the High-Tech Worker Relief Act (S. 1092). It would immediately but temporarily increase the H-1B quota, make petitions for anyone who earned a graduate degree in the U.S. exempt from the quota (eliminate the current 20,000 limit), and exempt from the quota those with advanced degrees in certain technical fields who have been working in the U.S.

SKIL Act: On April 10, 2007, Senator John Cornyn (R-Texas) introduced the Securing Knowledge, Innovation and Leadership (SKIL) Act of 2007 (S. 1083). Representative John Shadegg (R-Arizona) introduced an identical bill (H.R. 1930) in the House on April 18, 2007. It would provide immediate relief from the restrictive H-1B cap, implement a market-related basis for setting the quota, and provide relief from the current extreme “green card” backlogs. The annual H-1B quota would be increased from 65,000 to 115,000, and would automatically increase the quota by 20 percent each year the quota is reached. Anyone with an “advanced degree in science, technology, engineering. or math” from a foreign university would be exempt from the cap. Persons with advanced degrees from accredited U.S. universities would avoid the employed-based “green card” quotas. A pre-certification procedure designed to eliminate duplicate documentation and offering an option to expedited processing would streamline the “green card” process.

H-1B and L-1 Visa Fraud and Abuse Prevention Act: On March 29, 2007, Senator Richard Durbin (D-Illinois), introduced the H-1B and L-1 Visa Fraud and Abuse Prevention Act (S.1035). In contrast to other recently-introduced bills, it would create new restrictions and requirements, making it much more difficult for employers to employ H-1Bs and L-1s.

Development, Relief, and Education for Alien Minors (DREAM) Act of 2007: On March 6, 2007, Senator Durbin (D-Illinois), introduced the Development, Relief and Education for Alien Minors (DREAM) Act of 2007 (S. 774) in the Senate. On March 1, 2007, Representative Berman introduced similar legislation, the American Dream Act (H.R. 1275), in the House. The bills would provide a path to legalization for certain undocumented students.

THE FIRM SPEAKS!

Mr. Ware’s recent and future speaking engagements include: February 2, Vanderbilt Owen Graduate School of Management, Nashville, TN; February 5, SACRAO, Southern Association of Collegiate Registrars and Admissions Officers, Little Rock, AR; February 12, Hult International Business School, Cambridge, MA; February 22-23, Mississippi Association of International Educators, Jackson, MS; February 28-March 2, Georgia/Tennessee International Educators Bi-State Conference, Chattanooga, TN; March 5, Texas State International Educators Meeting, Dallas, TX; March 9, Louisiana State Bar Seminar, Baton Rouge, LA; March 14, CUPA, Southern Region of the College and University Professional Association for Human Resources, New Orleans, LA; March 16, NAFSA Region XII, Berkeley, CA; March 17, Florida State University, Tallahassee, FL; March 23, Michigan State University, East Lansing, MI; April 5, NAFSA Hawaii Pacific Spring Conference, Honolulu, HI; April 12, Alabama International Educators Conference, Mobile, AL; April 13, University of Southern Mississippi, Hattiesburg, MS; April 20, University of New Orleans, New Orleans, LA; April 27, Lynn University, Boca Raton, FL; April 27, Florida Atlantic University, Boca Raton, FL; May 14, Louisiana International Educators State Meeting, New Orleans, LA; May 17, Federal Bar Association Memphis/Mid-South Chapter, Memphis, TN; May 27-June 1, NAFSA Annual Conference, Minneapolis, MN; June 13-16, American Immigration Lawyers Association annual meeting, Orlando, FL; June 28, St. Louis 2007 MBA CSC Conference, St. Louis, MO; July 24, University of North Carolina, Wilmington, NC.

Ms. Gasparian spoke at the March 9 Florida Association of International Educators Meeting, Orlando, FL.

Mr. Springer will speak on May 29 and 30 at the NAFSA annual meeting, Minneapolis, MN; and on June 14 at the American Immigration Lawyers Association annual meeting, Orlando, FL.

For information about any of these engagements, please contact Yolanda Mata at 1-800-537-0179 (or locally at 504-830-5900).

Also, see our Events Calendar for an up-to-date listing of upcoming engagements.