DHS Completes Installation of Biometric Identification Systems at all U.S. Land Borders

The Department of Homeland Security (DHS) has successfully completed the installation of biometric entry capability systems at 104 points of entry by land, as mandated by Congress. Biometric devices are now located at every fixed point of entry open to travelers visiting the U.S. under the US-VISIT program.

“The U.S. Government’s efforts to strengthen our nation’s immigration and border management system have taken a giant leap with the deployment of US-VISIT entry capabilities at all our ports and visa-issuing posts abroad,” said DHS Secretary Michael Chertoff. “US-VISIT is making America safer by enhancing our border management system with next-generation technologies and processes to address the emerging threats, challenges and opportunities of our 21st century world.”

The goal of the US-VISIT program is to enhance security at U.S. borders by verifying the identity of each visitor and by comparing the biometric and biographical information of these visitors against a watch list of terrorists, criminals and individuals that have violated immigration law.

Senate Unanimously Passes the Unaccompanied Alien Child Protection Act

Yesterday, the Senate unanimously amended and passed the Unaccompanied Alien Child Protection Act (UACPA) of 2005. The goal of this act, which was sponsored by Sen. Dianne Feinstein (D-CA), is to address inappropriate treatment of unaccompanied alien children upon arrival in the U.S. The parallel House Bill has not yet been voted upon.

Provisions in the Homeland Security Act of 2002 transferred the care and custody of unaccompanied alien children to the Office of Refugee Resettlement (part of the Department of Health and Human Services). The UACPA elaborates on that act by providing the following: access to guardians ‘ad litem’, alternate options for custody and detention, improved procedures to determine ages of alien children, training for immigration personnel that work with these children, a system for pro bono representation of these children, and codification of Homeland Security’s Children’s Asylum Guidelines.

We expect and hope that the House will act quickly to pass this legislation in order to ensure smooth and safe procedures for refugee children entering the U.S.

USCIS REACHES H-2B CAP FOR FIRST HALF OF FISCAL YEAR 2006

Washington, D.C.- U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the first six months of Fiscal Year 2006 (FY 2006). USCIS is hereby notifying the public that December 15, 2005 is the “final receipt date”for new H-2B worker petitions requesting employment start dates prior to April 1, 2006. 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 first half of FY 2006.

USCIS will apply a computer-generated random selection process to all petitions which are subject to the cap and were received on December 15, 2005. This process will select the number of petitions needed to meet the cap. USCIS will reject all cap-subject petitions not randomly selected. USCIS will also reject petitions for new H-2B workers seeking employment start dates prior to April 1 st that arrive after December 15, 2005. USCIS will continue to accept petitions for new H-2B workers seeking employment start dates on or after April 1, 2006 that arrive after the “final receipt date” only if such petitions are supported by a valid temporary labor certification.

Petitions for both current and returning H-2B workers do not count towards the congressionally mandated biannual H-2B cap. “Returning workers” are exempt from H-2B cap limitations. In order to qualify, the worker must have counted against the H-2B numerical cap between October 1, 2002 and September 30, 2005. Any worker not certified as a “returning worker” is subject to the numerical limitations for the relevant fiscal year. Petitions received after the “final receipt date” which contain a combination of “returning workers” and workers subject to the H-2B cap will not be rejected, and petitioning employers will receive partial approvals for those aliens who qualify as “returning workers” if otherwise approvable.

USCIS will continue to process petitions filed to:

• Extend the stay of a current H-2B worker in the United States;

• Change the terms of employment for current H-2B workers and extend their stay;

• Allow current H-2B workers to change or add employers and extend their stay; or

• Request eligible H-2B “returning workers.”

More information about the H-2B work program is available at www.uscis.gov or by calling the National Customer Service Center at 1-800-375-5283.

Current Cap Count for Non-Immigrant Worker Visas

H-1B (FY 06) H-1B Advance Degree Exemption (FY 06) H-2B 1st Half (FY 06) H-2B 2nd Half (FY 06) Cap 58,200* 20,000 33,000** 33,000 Beneficiaries Approved —— 15,420 36,451 — Beneficiaries Pending —— 2,016 12,946 — Total Cap Reached 17,436 49,397 — Date of Last Count 8/10/2005 12/9/2005 12/14/2005 —

*6,800 are set aside for the H-1B1 program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements and to the extent unused can first be made available for general use on October 1, 2006, the start of FY 2007. **Filings will be rejected the day after the cutoff date for new filings. The cutoff date will be whenever sufficient petitions and associated worker applications have been received to satisfy the cap of 33,000 visas minus first-time beneficiaries changing status. USCIS has estimated that 62% of approved beneficiaries will actually result in H-2B visas issued by Department of State. Accordingly, USCIS will cutoff the first half cap at 52,000.

H-1B

Established by the Immigration Act of 1990 (IMMACT), the H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. The H-1B visa program is utilized by some U.S. businesses and other organizations to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. The current annual cap on the H-1B category is 65,000.

H-1B Advance Degree Exemption

The H-1B Visa Reform Act of 2004, which took effect on May 5, 2005, changed the H-1B filing procedures for FY 2005 and for future fiscal years. The Act also makes available 20,000 new H-1B visas for foreign workers with a master’s or higher level degree from a U.S. academic institution.

H-2B

The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.

On May 25, 2005, U.S. Citizenship and Immigration Services (USCIS) began accepting additional petitions for H-2B workers as required by the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act). The SOS Act allowed USCIS to accept filings beginning May 25, 2005 for two types of H-2B workers seeking work start dates as early as immediately:

For FY 2005 and 2006: All “returning workers,” meaning workers who counted against the H-2B annual numerical limit of 66,000 during any one of the three fiscal years preceding the fiscal year of the requested start date. This means:

• In a petition for a work start date before October 1, 2005 (FY 2005), the worker must have been previously approved for an H-2B work start date between October 1, 2001 and September 30, 2004.

• In a petition for a work start date on or after October 1, 2005 (FY 2006), the worker must have been previously approved for an H-2B work start date between October 1, 2002 and September 30, 2005.

If a petition was approved only for “extension of stay” in H-2B status, or only for change or addition of employers or terms of employment, the worker was not counted against the numerical limit at that time and, therefore, that particular approval cannot in itself result in the worker being considered a “returning worker” in a new petition. Any worker not certified as a “returning worker” will be subject to the numerical limitation for the relevant fiscal year.

Provision to recapture unused H-1B and EB visa numbers eliminated from Budget Reconciliation Bill

On December 19, the House of Representatives approved a conference report in relation to Senate Bill 1932 that would get rid of pro-immigration provisions that were part of the original Senate version of the Bill. While the report has not yet been provided to the public, it is understood that key provisions related to immigration were eliminated from the Bill, including an original House proposal to introduce an $1,500 fee increase on L visas. In addition, provisions to recapture 30,000 H-1B visas, along with the recapturing of certain unused Employment-Based immigrant visas, were eliminated from the bill.

This conference report was then approved on December 20 by the Senate by a vote of 51-50, with Vice President Cheney casting the tie-breaking vote. The Bill will now be returned to the House for a final vote; it is expected that the House will approve the Bill with these provisions eliminated.

This is bad news for the many individuals and businesses that were depending on additional H-1B and EB visas in the coming months, and may be quite harmful to various segments of the U.S. business population. However, the fight to recapture these visa numbers is not over, and our firm, along with immigration support groups such as the American Immigration Lawyers Association and numerous businesses, will be working hard to affect legislation in the coming months.

Immigration Reform Legislation Includes No Guest-Worker Provisions

Proposed legislation that would tighten security at the nation’s borders will be put up for vote in the House of Representatives shortly. The bill includes various bundled measures and proposals to toughen penalties for employers that hire illegal and undocumented immigrant workers. In addition the bill would enable the U.S. government the ability to detain for longer periods of time any undocumented immigrant who might pose a threat to the U.S. and its citizens. The bill also includes penalties for being involved in the smuggling of immigrants, provisions for reimbursals for county sheriffs along the U.S. border and would make drunk driving a deportable offence for any undocumented immigrant.

The proposed legislation, however, is surprisingly void of any mention of President Bush’s flagship immigration measure of reform, the Guest Worker Program. This, according to House Judiciary Chairman James Sensenbrenner (R-WI), may be because the Republicans have not been able to come up with a clear consensus of what a guest-worker bill would say. Others, however, point to the need to provide the more conservative portion of the Republican Party with a ‘tough on immigration’ bill that they can brag to their constituents about over the holiday season.

While many members of the House have proposed numerous amendments to the proposed legislation, it appears that the more heated issues of immigration will not be addressed by the House, but will instead have to be addressed by the U.S. Senate early next year in their own immigration reform bill. Senator John McCain (R-AZ) has already co-sponsored a bill with bipartisan support that includes a guest-worker provision and we expect to see this issue addressed in both the public and the legislative arenas in the first quarter of 2006.

House Judiciary Committee Approves Anti-Immigration Legislature

Yesterday, the House Judiciary Committee approved (23-15) the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005. This enforcement-only legislation will now be voted on by the entire House of Representatives next week. The bill contains numerous anti-immigration legislations and is of great concern to us. Included in the bill are provisions that would criminalize unlawful presence, take away much of the jurisdiction power of the courts, drastically reduce the due process rights of U.S. citizens, permanent residents and aliens, expand the ability of the government to conduct expedited removals, stretch the definition of alien smuggling to include family member, employers and immigration advocates, militarize the border and increase mandatory detentions.

It is essential that the House does not approve this bill. Our firm asks that all of you contact your representative and strongly suggest that they do not support this disastrous proposal.

USCIS to Replace 60,000 Green Cards Due to Computer Error

The U.S. government has recalled over 60,000 green cards due to a computer mistake that miscalculated the residency start dates of the card recipients. Last month, USCIS contacted these recipients of asylum to inform them of the problem with the cards and to guide them to mail the cards back to USCIS.

According to USCIS officials, a replacement card will arrive roughly three weeks after USCIS receives the original green card. This situation, however, will not affect any individual’s change of status in any way.

According to a USCIS official, a software change caused the problem. Individuals who try to use these original cards may run into problems when they attempt to reenter the residency dates on the card will not match those in the government’s electronic system. In addition, refugees may get confused about how long to wait to apply for citizenship, due to the incorrect dates on these green cards.

USCIS Releases Total H-1B Exemption and H-2B Visas Issued So Far for FY 2006

The U.S. Citizenship and Immigration Services (USCIS) recently updated the latest count for the H-1B Advanced Degree Exemption Category and for the H-2B visa for the first half of Fiscal Year 2006.

According to the USCIS, roughly 12,650 petitions have been approved under the H-1B Advanced Degree Cap Exemption for FY 2006 and nearly 3,500 petitions are currently pending final review (see table below for exact numbers). There are now less than 4,000 visas left under this exemption category for international workers with U.S. masters degrees or higher.

Almost 28,000 petitions have been approved to H-2B workers so far for the first half of FY 2006; a little more than 7,500 are still pending. A total of 33,000 H-2B visas are available for this period of 2006. Filed petitions for this period, according to USCIS, will be rejected the day after the cutoff date for new H-2B petition filings. This cutoff date will be set at the point that enough petitions and related worker applications have been received to reach the cap of 33,000 (after subtracting those first-time beneficiaries seeking a change of status). According to USCIS, roughly 60% of approved H-2B petitions will result in an actual H-2B visa issued from the Department of State. Based on this historical percentage, USCIS intends to set the cutoff point for the first half of FY 2006 at 52,000.

Current Cap Count for Non-Immigrant Worker Visas

H-1B (FY 06) H-1B Advance Degree Exemption (FY 06) H-2B 1st Half (FY 06) H-2B 2nd Half (FY 06) Cap 58,200* 20,000 33,000 33,000 Beneficiaries Approved ——- 12,647 27,937 — Beneficiaries Pending ——- 3,451 7,631 — Total Cap Reached 16,098 35,568 — Date of Last Count 08 October 2005 14 November 2005 21 November 2005

*6,800 are set aside for the H-1B1 program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements and to the extent unused can first be made available for general use on October 1, 2006, the start of FY 2007.

Policies Regarding the H-2B Returning Worker Classification

In May of this year, President Bush signed into law the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005. Part of this Act provided that if an applicant has been issued an H2B visa from an approved petition in any of the last three fiscal years, that applicant is not counted against this fiscal year’s annual limit. This new category is specifically called the H2R category.

Applicants (or their employers) wishing to be considered for this category must have an approved I-129 petition received from the Department of Homeland Security. This petition must contain a certification from the petitioning employer that states that the applicant is a returning worker. In addition, an official from DHS must also verify that this applicant received a visa in at least one of the last three fiscal years prior to the fiscal year of the current approved start date.

A representative from DHS will check every H2B petition in which the beneficiary has been stamped a returning worker. If there is only one worker listed on the petition, the petition will receive one of the following three stamps:

• Returning Worker Verified by KCC
• Possible Returning Worker Determined by KCC
• No Evidence of Returning Worker Determined by KCC

If there are multiple names on the petition, the petition will be stamped with the following text: Includes Returning Workers, See Attached. The attached document will be a spreadsheet with the KCC’s receipt of petition date, the petitioner and receipt number, the employees name and date and place of birth.

The creation of this additional category will enable more H-2B workers to enter and be gainfully employed in the U.S. and will ensure that U.S. companies that depend on these workers will have access to their labor.