DOL and DHS Propose Changes to H-2B Visa

The Employment and Training Administration (ETA) and the Department of Homeland Security (DHS) are proposing concurrent changes to the procedures for issuances of H2-B visas. H-2B visas are typically issued to nonimmigrants entering the U.S. to perform temporary nonagricultural labor/services. The proposed rules will require H-2B petitions (except for workers in logging, entertainment or professional athletics) to include a section in which employers satisfy “specific attestations concerning labor market issues.” These “attestations”, developed by the Department of Labor (DOL), are included to ensure that there won’t be any adverse effects on the wages and working conditions of U.S. workers in similar employment.

Finally, these new changes will adjust process so that the DOL will receive information on all petitions approved by the DHS. DOL will be responsible for conducting all post-adjudication audits of attestations submitted with petitions received by DHS.

USCIS Extends Policy that Lengthens Validity of Green Card Medical Examination Certificate

The USCIS has extended the policy that lengthened the time of validity for a green card medical examination. The original extension validated the civil surgeon’s certification on the medical examination for the entire time that it takes to adjudicate the applicant’s Form I-485, the Application for Adjustment of Status. This extension was and is only applicable to individuals whose medical examinations do NOT show medical conditions under Class A or B.

The original policy was issued in December, 2004 and was effective through January 1, 2006. The policy has been extended until January 1, 2007. This continuation of the extension is of prime importance to many applicants, especially those in employment-based visa categories. Adjustment of status, in many cases, can remain in adjudication for years and extending the validity of the medical examination eases the process for both the applicant and the government.

Bush Continues to Garner Support for Guest Worker Visa Program

Utah Representative Chris Cannon (R) recently stated that he is determined to assist President Bush in reforming the nation’s immigration laws, even in the face of vocalized resistance from some Republican hardliners. This is good news for Bush, who has been pushing for a guest worker visa program the past few months.

Bush stated in a recent interview that he believes “That if a person, an employer, can’t find somebody willing to do a job in America, they ought to be able to legally hire somebody who is not a citizen of our country, and that that person ought to be treated with respect.”

Cannon is working closely with allies like Sen. John McCain (R-AZ) and Representative Jim Kolbe (R-AZ), who recently introduced a bill to reform current immigration laws.

The bill would let undocumented immigrants in the U.S. apply for a special type of visa that allowed them to stay in the U.S. and work for three years. After that three year period, the “guest workers” could seek permanent residency just like any other foreign worker.

California Service Center Will Soon Only Accept Email Inquiries

In a recent publicized notice, the California Service Center’s Customer Service Division has stated that, as of January 31, 2005, it plans to prioritize inquiries received by email over inquiries received by mail and fax. In addition, the Center requests that mailed and faxed questions are discontinued.

Questions can be emailed to the Center at the following email addresses:

US-VISIT Exit Program Now Active at Newark Airport

The U.S. Department of Homeland Security announced this week that, as off January 19, 2005, foreign visitors at Newark Liberty International Airport will be required to follow certain check out procedures prior to departing from Newark. The US-VISIT pilot exit program will test three exit procedures, including two index fingerscans and digital photographs. US-VISIT is currently operating in five airports in the U.S. and, later this month, will be active in three additional airports.

Foreign visitors departing from Newark are now required to follow one of the following three processes:

Visitors will check out of the U.S. at an exit station, where their travel documents will be read, their two index fingers will be scanned and their digital photo will be taken. Visitors will receive a printed receipt that verifies they have properly checked out.

At a second station, visitors will follow the same procedures as stated above, with the addition of one further step. Visitors will be required to present their receipt at the departure gate. Workstation attendants will then scan both the receipt and the visitor’s index finger to ensure identity.

A third alternative involves a biometric check out process with a handheld device used by a workstation attendant at the departure gate. At the gate, the visitor’s travel documents will be reviewed, they will have both index fingers scanned and their digital photo will be taken. They will receive a printed receipt to verify they have properly checked out.

U.S. to Extend B Visas for Chinese Nationals

As of the 15th of this month, the U.S. will enable eligible Chinese nationals wishing to come to this country temporarily for business or tourism (on the B visa) to receive visas that are valid for 12 months and multiple entries. In reciprocity, the Chinese Ministry of Foreign Affairs has stated that they will allow U.S. visitors to China (business and tourism) visas that are equally valid.

In 2004 the U.S. issued nearly 230,000 nonimmigrants visas to Chinese nationals. Of these, almost 80 percent were B visas.

DHS Amends Rules to Help Those from Regions Affected by the Tsunami

In response to the massive need for relief and support by those victimized by the South and Southeast Asian tsunami of late December, the Department of Homeland Security (DHS) has announced a series of temporary relief measures that will be made for individuals who are unable to return to their home country or are currently traveling in the U.S. because of the destruction caused by the tsunami.

USCIS will expedite the processing of some immigration applications, including applications for advance parole and relative petitions for minors from these affected areas. For those already paroled and in the U.S., this period of parole may be extended. The USCIS will also readily accept applications from nonimmigrants from these regions who are currently traveling in the U.S. and wish to seek a change of status. While security check procedures will remain in place, they will be expedited as much as possible.

As of January 7, individuals from Sri Lanka and the Maldives who are under a final order of removal will be granted a stay of removal for 90 days. This is automatic; no request or petition is needed. Stay of removal requests will also be accepted by ICE from individuals from affected regions who are non-criminals.

When appropriate and authorized by law, individuals who receive a stay of removal may be eligible to apply or receive employment authorization so that they can support themselves and/or help family members back home.

Homeland Security and DOJ Post Rule on Countries to Which Foreign Nationals May Be Removed

The Secretary of Homeland Security and the Attorney General have published a final rule to amend their agencies’ regulations regarding the removal of aliens.

The Homeland Security regulation states that acceptance by a country is not required in order to remove an alien to that country. Further, the “country” to which an alien may be removed is not “premised on the existence or functionality of a government in that country.” In addition, the rule clarifies which countries an alien may be removed to and the situations in which the Secretary of Homeland Security can remove an alien to an alternative or additional country.

The Department of Justice rule clarifies the “procedure for an alien to designate the country to which he or she would prefer to be removed, provides that the immigration judge shall inform any alien making such a designation that he or she may be removed to another country under section 241(b) of the Immigration and Nationality Act in the discretion of the Secretary of Homeland Security in effecting the foreign policy of the United States, and clarifies the effect of an identification of a country for removal in an immigration judge’s order of removal from the United States.”

In addition the rule clarifies that acceptance by a country is not a factor to be considered by the immigration judge when identifying which country the individual should be removed to.

Both of these final rules are effective February 4, 2005.

USCIS Recommends Americans Wait to Adopt Children Orphaned By the Tsunami

The USCIS has issued a notice regarding the adoption of children orphaned due to the tsunami disaster of last month. While many Americans have voiced the desire to try to adopt orphan survivors of the disaster (a very noble intention), the USCIS does not recommend this solution, at least in the short term future.

The traditional solution understood internationally is that children who survive such disasters should be kept as close to extended family and their community as possible. It is unsure whether all supposedly orphaned children are actually orphans; one or both of their parents may just be missing. In addition, relatives may take these children in to their home, a much better solution than uprooting the child completely.

USCIS believes it will take many months before we are sure these children are orphans and that there are no applicable relatives to act as guardians. At that time, it may become more viable to offer the ability for American citizens to begin adoption proceedings for these children.