USCIS has published a notice, informing applicants that it is expanding its Direct Mail Program. All filings of Form N-565, the Application for Replacement Naturalization/Citizenship Document, should now be filed at a designated Service Center for processing. Applicants, prior to this notice, were required to file this form at the USCIS field office with jurisdiction over the location of current residence. This new Direct Mail Program will, according to USCIS, provide for a more efficient processing of these applications. This new process will be implemented on February 26, 2007 and will affect all N-565 applications.
Asylum applicants, asylees, and lawful permanent residents who obtained such status based on their asylum status are subject to special rules with regard to traveling outside the United States. This U.S. Citizenship and Immigration Services (USCIS) Fact Sheet describes the relevant statutes and regulations regarding traveling outside the United States as well as the consequences that could result if an asylum applicant, an asylee, or a lawful permanent resident who obtained such status based on his or her asylum status returns to his or her country of claimed persecution.
Travel Outside the United States
- Asylum Applicants: An asylum applicant who leaves the United States without first obtaining advance parole shall be presumed to have abandoned his or her asylum application. Advance parole (see: USCIS Form I-131) allows certain aliens to return to the United States without a visa after traveling abroad. Asylum applicants must receive advance parole before leaving the United States. Advance parole does not guarantee that the alien will be paroled into the United States. Rather, the asylum applicant must still undergo inspection by an immigration inspector from United States Customs and Border Protection (CBP).
- Asylees: Asylees (individuals who have been granted asylum) may travel abroad with the prior approval of the Secretary of the Department of Homeland Security (DHS). Such prior approval comes in the form of a refugee travel document. A refugee travel document is valid for one year and is issued to an asylee to allow his or her return to the United States after temporary travel abroad. Generally, the asylee should obtain the refugee travel document prior to departure from the United States, though the applicable regulations also permit the issuance of a refugee travel document abroad under certain circumstances. Like advance parole, a refugee travel document does not guarantee admission into the United States. Rather, the asylee must still undergo inspection by an immigration inspector from CBP.
- Lawful Permanent Residents: Lawful permanent residents who obtained such status based on their asylum status may also travel abroad with refugee travel documents.
Possible Consequences of Returning to the Country of Claimed Persecution
Section 208.8(b) of Title 8 of the Code of Federal Regulations provides that an asylum applicant who leaves the United States pursuant to advance parole and returns to the country of claimed persecution shall be presumed to have abandoned his or her asylum application, unless the applicant is able to establish compelling reasons for the return. Therefore, if an asylum applicant returns to his or her country of claimed persecution pursuant to advance parole, he or she should be prepared to explain the reason for the return.
Asylum status may be terminated for specific reasons as listed in INA § 208(c)(2). An individual’s underlying asylum status may be terminated even if the individual has already become a lawful permanent resident.
Returning to one’s country of claimed persecution may be relevant to a number of termination grounds. For instance, asylum status could be terminated based on a fundamental change in circumstances in the asylee’s country of persecution. Termination could also occur due to fraud in the asylum application such that the asylee was not eligible for asylum. Return to the country of feared persecution can, in some circumstances, be considered evidence that the asylee’s alleged fear of persecution is not genuine. In addition, termination of asylum status could occur if an “alien has voluntarily availed himself or herself of the protection of the alien’s country of nationality . . . by returning to such country with permanent resident status or the reasonable possibility of obtaining such status with the same rights and obligations pertaining to other permanent residents of that country.”
Accordingly, an asylee or a lawful permanent resident who obtained such status based on a grant of asylum status may be questioned about why he or she was able to return to the country of claimed persecution and, in some circumstances, may be subject to proceedings to terminate asylum status.
On March 1, 2003, U.S Citizenship and Immigration Services became one of three legacy INS components to join the U.S. Department of Homeland Security. USCIS is charged with fundamentally transforming and improving the delivery of immigration and citizenship services, while enhancing the integrity of our nation’s security.
H-1B visas, which will be available April 1, are expected to disappear within a very short amount of time. Currently, the demand for H-1B visas far outweigh the supply and it is expected that access to the H-1B visas will be quite limited this year.
It is critical that employers plan and prepare now for the upcoming window of opportunity. Find out which of your workers (current and pending) will be affected by the H-1B visa cap. Consider which potential international workers could come to the U.S. under alternate visa categories (TN, E-3, J-1, L-1, etc). Plan ahead; be prepared.
The Departments of Homeland Security and State (DHS; DOS) published a reminder earlier this week that, as of January 23, 2007, all citizens of the U.S., Canada, Mexico and Bermuda will be required to present a passport when entering the U.S. by air from any location in the Western Hemisphere. This new requirement, the Departments say, will affect roughly 88 percent of all travelers coming to the U.S. with passports.
Since November 2006, 83 percent of U.S. citizens, 94 percent of Canadians, 88 percent of Mexicans, and 99 percent of Bermudans have had passports when arriving at U.S. airports.
The Departments note that two alternative documents will be accepted at these air ports of entry: the Merchant Mariner Document (MMD) and the NEXUS Air card. The MMD, also known as the zcard, is issued to U.S. Merchant Mariners from the U.S. Coast Guard. The NEXUS Air card is issued to Canadian and U.S. citizens, and permanent residents of those two countries, who meet particular eligibility requirements. Please note that this card will only be accepted at airports participating in the NEXUS Air program. In addition, the MMD will only be accepted when the traveler is on official business with the Merchant Mariners.
Finally, all active members of the U.S. Armed Forces are exempted from this passport requirement. Legal permanent residents of the U.S. will be allowed to re-enter the U.S. by using their I-551 Permanent Resident Card.
The Department of Labor (DOL) has submitted a proposed amendment to regulations for nonimmigrant foreign professionals in the U.S. under the new E-3 temporary employment visa category. This new category was established in the REAL ID Act of 2005, a part of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief. The act applies to certain Australian nationals coming to the U.S. to perform services in certain specialty occupations.
This proposed amendment would clarify the procedures employers should follow to obtain a DOL-certified Labor Condition Application (LCA) prior to seeking to employ a foreign worker under the E-3 visa category.
According to DOL, employers who wish to employ Australian professionals under this visa category should submit an LCA that includes information required under current H-1B and H-1B1 visa programs. The employer should attest to the following:
It will provide the nonimmigrant wages equal or more than either the actual wage level paid to other employees with similar experience and qualifications for the specific position, or the prevailing wage level for that occupation classification, whichever is greater;
The working conditions for the nonimmigrant will not adversely affect working conditions for other similarly employed individuals;
There is currently no strike or lockout due to a labor dispute in that occupational classification at the proposed worksite;
The employer has provided notice of this LCA to its employees’ bargaining representative for the particular occupational classification. If there is no bargaining representative, the employer must have provided notice via a physical posting (or other means) to its employees in that occupational classification;
As is the case for H-1B and H-1B1 visas, the DOL may choose to review the E-3 LCAs solely for completeness and inaccuracies. After this review is completed, USCIS and the Department of State will process the individual E-3 visa requests. Under this new process, E-3 visa applicants who are not currently in the U.S. should provide the necessary evidence for this classification directly to a Consular Officer when the visa application is submitted.
Today, the U.S. Citizenship and Immigration Services (USCIS) launched a new web-based service that will allow applicants to submit their change of address information via the USCIS website. This new online service will streamline the process of providing updated contact information, which is legally required of all non-citizens in the U.S. Non-citizens must update USCIS of any change of address within ten days of their move by filling out Form AR-11, the Alien Change of Address Card. In addition, all immigrants with pending immigration cases must notify USCIS of any change in their address.
“Not only is this a terrific service for our customers, in the long run it is a great cost and time saver,” said Emilio Gonzalez, director, USCIS. “USCIS is continuing to retool the agency to get as much efficiency from automation as possible.”
Currently, USCIS processes over one million change of address requests each year. This new online service will reduce processing times and improve the service provided to applicants by USCIS. Applicants will receive immediate confirmation that they have successfully updated their address information.
Early testing of the new online change of address service was lauded by test users, who found the new form both convenient and simple to use. USCIS intends to broaden this service in May 2007 by also allowing applicants with pending naturalization applications to report changes of address online. Currently, however, those individuals should continue to contact USCIS by telephone to report any change of address (1-800-375-5283).
In order to use the new online change of address service, applicants should have the following information readily available:
- USCIS receipt number, if you have a pending case;
- New and old addresses;
- Names and biographical information for family members for whom you have filed a petition; and
- The date and location of your last entry into the U.S.
The change of address online service is available online at:
Immigration officials recently reasserted that they do not have the technology and resources to handle the millions of yearly applications for legal residency in the U.S. According to officials, the U.S. must update its paper-based application process prior to any major immigration legislation overhaul, such as the proposed Guest Worker program.
According to a December 20 report, Richard L. Skinner, Inspector General, Department of Homeland Security, cited an extensive list of setbacks in the department’s attempts to modernize their system. “[The Bureau] lacks the processing capacity, systems integration and project management resources needed to manage a potential increase in workloads,” said Skinner.
Legal immigrants currently in the system already face long waits for green cards. A hundred thousand names submitted to the FBI for required background checks, for example, have been on hold for more than a year. In addition, auditors report that, as of July 2006, immigration officials have misplaced 110,000 application files.
Jonathan Scharfen, Deputy Director for the USCIS, admits that there is much work that needs to be done. “We acknowledge that we still have a great deal to do,” said Scharfen. He went on to note that this re-engineering process is a high priority for the USCIS.
But the solution, according to immigration advocates, involves more than just placing a high priority on the issue. “Congress needs to step up and provide the funding to ensure that USCIS is able to build a functioning infrastructure, regardless of the fate of immigration reform,” said Crystal Williams, Deputy Director of Programs for the American Immigration Lawyers Association.
There is currently $47 million earmarked for this technology overhaul; however, the funds were withheld by Congress until they receive a final plan from Michael Chertoff, Secretary of the Department of Homeland Security.