On December 1, we moved our main office back from exile in Baton Rouge to Metairie. Our building in Metairie suffered some damage but all of our files and other office accoutrements are intact. We had no windows blown out or direct water penetration in our suite, although two offices are still under repair because of moisture in the walls. We have hired additional staff both to replace those who were displaced by hurricane Katrina, and to improve and expand our services to our clients. We are still seeking to add additional paralegals to our staff.
KATRINA: RELATED AGENCY UPDATES & OTHER ISSUES
The various agencies which oversee the immigration laws have issued additional Katrina-related guidance since our last issue.
USCIS REACHES THE H-2B CAP FOR THE FIRST HALF OF FISCAL YEAR 2006
USCIS announced on December 16th that it had received a sufficient number of petitions to reach the Congressionally mandated H-2B cap for the first six months of Fiscal Year 2006 (10/1/05 – 4/1/06). USCIS will continue to accept petitions for new H-2B workers seeking employment for start dates on or after April 1, 2006. Petitions for both current and returning H-2B workers do not count towards the H-2B cap. H-2B’s perform skilled and unskilled work for employers with seasonal, peak load, or one time needs.
APPROVAL OF IMMIGRANT PETITION AND PORTABILITY
In an October 18th memorandum, USCIS clarified that in order to provide immigrant portability from a sponsoring employer to similar employment, once an adjustment of status application has been pending over 180 days, the I-140 of the sponsoring employer must be at least “approvable”. We would strongly recommend that persons seeking to take advantage of immigrant portability wait until the immigrant petition is approved to avoid any possible question of whether or not it was “approvable”.
H-1B & EMPLOYMENT-BASED IMMIGRANT VISA RELIEF STRIPPED FROM BUDGET BILL
On October 20, as part of the budget reconciliation process, the Senate Judiciary Committee included a provision to provide temporary relief from the H-1B visa blackout and the employment-based immigrant visa backlogs. The package would have:
This relief was important for two reasons. First, it would have provided needed H-1B cap relief, as the cap was reached earlier this year than any previous year. It also would have alleviated what has become a lengthy delay in employment-based immigrant visa numbers that has seen retrogression to April 2001 for EB-3 (positions requiring a bachelor’s degree and skilled workers) visa numbers worldwide, up to six years’ wait for a visa number for persons born in India, and up to a .five year delay for persons born in the PRC. Both India and China have retrogressed in all the employment-based categories, except nurses, physical therapists and persons of exceptional ability, religious workers, and investors. These retrogressions deprive employers in the US of badly needed workers, or greatly delay their obtaining permanent residence.
Unfortunately, the needed relief was ultimately stripped from the House’s version of the budget reconciliation bill and was then stripped by the Senate before final passage of the bill, leaving any hope of relief to wait until this year. We expect reintroduction of this relief this spring and will keep you posted as to its progress.
On a brighter note, however, it should be noted that despite Congress’ failure to act, the India second preference has been moving forward very rapidly at about seven months per month. This should bring it current, if it continues to move forward at its present rate, in about one to two years. The preference categories for China have also shown rapid forward progress.
Persons participating in the Visa Waiver Program who enter the United States on or after October 26th must have a passport with a digital photo. A digital photo is actually printed on the page of the passport, not laminated or glued to the page. Persons without a digital photo passport either need to have their passport updated so that it contains a digital photograph or must get a visa to enter the United States. Currently, only France and Italy do not have such passports. Visa waiver countries include all the industrialized nations and a few others such as Brunei.
The US Embassy in Mexico announced that beginning October 17th third country nationals (those who are not Mexican) who wish to apply for a visa at the US consulate in Mexico must make an appointment on a new website. The website address is www.visa-usa.com.mx.
ADDING BACK H-IB TIME OUTSIDE THE US
On October 18th, the USCIS adopted as binding jurisprudence the policy that any time that an H-1B spends outside the United States, for whatever purpose, may be added back to the maximum limit of six years which H-1B’s normally enjoy. Prior USCIS interpretations refused to allow adding back periods outside the US if the departure was brief or for vacation only or if the time spent outside the US was not “meaningfully interruptive” of the person’s employment. The agency reminds employer petitioners that the burden remains on them to prove the periods outside the US if they seek to add back.
On October 21, USCIS issued a follow-up memorandum restating these points, as well as including L (intra-company transferee) nonimmigrants in this policy. The memo also reminded adjudicators that L-2 and H-4 dependents are entitled to accompany the principal nonimmigrant during his or her entire stay in the U.S.
In January, the Department of Labor published new academic wage data, clarifying wages for certain types of academic positions that had long been ill defined, particularly in the area of research. However, the problem is not solved entirely, as the new wages still appear to be inaccurately high.
In October, we attended a meeting where the FBI explained a new system to permit individuals to check on overdue security checks. Affected persons may call the National Name Check Office at 202-324-2399, or email the FBI at fbinncp@ic.fbi.gov. The FBI also informed us that USCIS may request that they expedite the name check, contrary to information we had previously received from USCIS.
Coincidentally, USCIS recently released a January 2005 notice setting out the criteria they utilize in order to request that a name check be expedited. According to the notice, one of the following must apply:
This notice makes clear, however, that attorneys or individuals may not request expedites directly to the FBI but only via USCIS offices.
DOS OFFERS STRANGE ADVICE ON INTERRUPTION OF STUDIES
In a cable dated December 28th, the Department of State has opined that if a student is absent from the United States for more than five months, he or she should no longer utilize a still valid F or M visa for reentry to the US, on the theory that the student is no longer “admissible as a continuing student”. It goes on to recite the DHS regulation authorizing inspectors to cancel the visas of nonimmigrants that they deem to be inadmissible to the United States.
However, in our opinion, the Department of State advice ignores the fact that all students returning after more than a five month absence would need a new I-20 for initial attendance at a school, even if returning to the same school they previously attended. Moreover, State Department regulations do not provide for automatic cancellation of the visa in this situation. Thus a student entering with an old student visa for initial attendance would in no way be inadmissible. This would seem to be yet another example of government agencies not intimately familiar with student regulations making broad pronouncements which appear to be incorrect. This memo could throw fuel on the fire of already trigger-happy inspectors, encouraging them to cancel visas inappropriately.
WAIVER OF VISA FINGERPRINT REQUIREMENT
In a cable dated October 17th, the Department of State has clarified that there is only one instance in which the taking of fingerprints prior to granting a nonimmigrant visa may be waived, and that is, in a “medevac” situation, where it is physically impossible to take the fingerprints. All other nonimmigrant visa applicants must have their fingerprints taken prior to issuance.
In a cable dated September 28th, the Department of State clarified many points regarding student visa issuance, hopefully encouraging consulates to be less harsh in denials based on presumed immigrant intent. The most important points of the cable are:
The cable’s guidance has been incorporated into the Foreign Affairs Manual Notes, 9 FAM 41.61 N.5. This indicates its high importance to DOS. Nevertheless, this does not make its guidance binding on consuls.
In related news, a recently released Department of State cable dated December 28, 2004 clarifies that visa denials based on Section 214(b) of the INA do not necessarily or always mean that the applicant has failed to establish general nonimmigrant intent or that he/she has no residence abroad that he/she has no intention of abandoning.
Rather, it simply means that the applicant has failed to establish eligibility for the nonimmigrant visa sought, and thus is presumed to be an immigrant by law. For example, a student who cannot demonstrate sufficient funds to study in the US may be denied under 214(b).
The cable distinguished 214(b) denials from those under 221(g), which usually means simply that the applicant is lacking a needed document.
In a November 23rd memo, USCIS clarified under what circumstances it would reschedule interviews. The memo instructs that if an individual desires that an interview be rescheduled, he or she must make a request prior to the date of the interview and must show good cause for rescheduling. Thus the old process of simply rescheduling the interview automatically when an individual did not show up will no longer be followed, and such cases will be denied for failure to pursue them.
DELTA REGIONAL AUTHORITY INCREASES FEE FOR WAIVERS
As of December 1, the Delta Regional Authority has increased its fee for processing a J-1 waiver for a physician working in an underserved area from $2000 to $3000 per application.
Many people will soon need to renew their ten year permanent residence cards. This is done on Form I-90, which may be obtained at www.uscis.gov or at local USCIS offices. Usually the assistance of an attorney is not required to renew a ten year green card. However, if the individual has an arrest or conviction of any kind he or she should seek the advice of an experienced immigration lawyer prior to submitting the I-90. Submission of an I-90 after conviction for a criminal offense can result in arrest and/or the institution of removal proceedings against the person.
REQUIREMENTS FOR I-864 REDUCED
In a November 23rd memo, USCIS has modified the requirements for filing Form I-864, the affidavit of support used in family and a few employment-based cases. According to the memo, only one US tax return for the latest tax year need be filed with the I-864, rather than three tax returns for the prior three years as previously required.
CURRENT STATUS OF NEW ORLEANS CIS OFFICE
Currently there is no permanent USCIS office in New Orleans following hurricane Katrina. Interviews are being carried out, in limited fashion, from an office in Kenner. That office, however, has no computer hookups and has no ability to do anything other than interviews. Persons should not go to that office to attempt to seek information on their cases or for any other purpose, unless they have an interview notice. Persons with inquiries regarding cases previously controlled by the New Orleans office should make an Infopass appointment with the USCIS office in Memphis, TN.
The permanent office will be re-established in the New Orleans area, some time in April or May, at the Metairie Centre building on South I-10 Service Road in Metairie, between Causeway and Clearview Boulevards.
The Immigration Court in New Orleans reopened on December 19th. The Executive Office for Immigration Review met with immigration attorneys in January and declared its commitment to keeping an immigration judge in New Orleans. Cases that were sent to other courts while the court was closed, such as Oakdale and Memphis, may be transferred to New Orleans upon request of the person in removal proceedings, or his/her attorney.
EU J’s MUST SPEND TWO YEARS IN HOME COUNTRY
The Department of State has recently clarified that contrary to rumor, J exchange visitors from the European Union who are subject to the two year home residence requirement must return to their country of citizenship or last permanent residence prior to entering as a J in order to satisfy the requirement. They may not satisfy the requirement in other EU countries.
USCIS REACHES 2006 CAP FOR H-1B ADVANCED DEGREE HOLDERS
According to USCIS, as of January 17, 2006, they had received enough H-1B petitions that qualify for the exemption from the H-1B numerical limitations for foreign workers with a U.S.-earned master’s or higher degree. Therefore, any petition received on January 17th will be subject to a computer-generated random selection process, and any petitions received after January 17th will be rejected. The earliest date for which a petitioner may file a petitioner may file a petition requesting FY 2007 (October 1, 2006 to September 30, 2007) H-1B employment with a start date of October 1, 2006, is April 1, 2006.
Recall that persons already counted against the quota, as well as employees of institutions of higher education and affiliated entities, nonprofit research organizations, governmental research organizations, and certain former J-1 physicians need not worry about H-1B visa numbers as they are not subject to the quota.
On January 11th, USCIS reiterated its prior position that the medical exam for immigrants, Form I-693, remains valid during the entire time an adjustment of status application is pending. Normally the period of validity of a medical exam is one year, but USCIS has again waived this restriction because many adjustment applications remain pending more than one year.
On January 26, the Department of State announced that it would authorize no new J programs for flight schools, nor would it permit expansion of existing programs at flight schools, until a federal agency was named to oversee security aspects of such schools.
THE FIRM SPEAKS AND IS PUBLISHED
Mr. Ware’s speaking dates include: January 27th, McNeese State University, Lake Charles, LA; February 6th, Southern Association of Collegiate Registrars and Admissions Officers, Lexington, KY; February 10th, Owen Graduate School of Management, Vanderbilt University, Nashville, TN; February 13th, Community Colleges for International Development, Jacksonville, FL; February 15-16, Brandeis University, Waltham, MA; February 17th, Mississippi Association of International Educators, Jackson, MS: February 22nd, Florida International University, Miami, FL and Florida Atlantic University, Boca Raton, FL; February 23rd, FAIE Conference, Boca Raton, FL; March 17th, Michigan State University, East Lansing, MI; March 22nd, West Virginia University, Morgantown, West Virginia.
Associate attorney Kathleen Gasparian will be speaking on February 15th at Palm Beach Community College, Lake Worth, FL.
In its Fall 2005 issue, The Admission Review published an article by associate attorney Kathleen Gasparian and Mr. Ware, entitled “An Immigration Primer for Primary and Secondary Schools.”
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.