Department of State Publishes Proposed Rule to Revise Exchange Visitor Program

The U.S. Department of State (DOS) just released a proposal to revise rules related to the Exchange Visitor Program. The proposed revision would include a ‘paper review,’ instead of a trial-type hearing, managed by three Review Offices. This review process would be streamlined and would, according to DOS, ensure the same level of due process for applicants.

In addition, the proposed regulation would amend current regulations that would call for program termination if there is a failure to file an annual management audit for the Exchange Visitor program. Finally, a change in the rule would provide for the termination or denial of redesignation for one class of programs, if DOS decides that that program is a compromise to the national security of the U.S. or does not further the public diplomacy mission of DOS.

Comments will be accepted by DOS for 60 days (from May 31, 2007). Submit comments by visiting regulations.gov/index.cfm or by emailing jexchanges@state.gov with the RIN #, “1400-AC29” in your subject line.

USCIS Publishes Final Fee Schedule for Immigration Services

After a detailed review of more than 3,900 public comments, USCIS announced this week the final, revised fee schedules for immigration services. The rule, which was published today in the Federal Register, sets all fees for the processing of immigration benefit applications and petitions. Major revisions to the final fee structure include a 25% reduction to the proposed filing fee for Form I-485, the Adjustment of Status to Permanent Resident for children age 14 and younger. In addition, the final rule allows for a one-time, free extension of approved orphan petitions for people interested in adoption. Fee waivers for some adjustment of status cases for asylum and humanitarian candidates and some juvenile immigrants were also increased as part of this final rule. Finally, USCIS, as stated in this final rule, will be able to waive the $80 biometric fee, along with the application/petition fee on an individual basis.

“We proposed our new fee structure with the expectation of ongoing discussions with the public on this important issue,” said Emilio Gonzalez, director, USCIS, in a recent public statement. “The volume and value of the comments we received has provided an opportunity to fine-tune our final fee structure that we believe is both fair to our customers and vital to our Nation as we continue to build a secure and efficient national immigration service.”

For a full list of the new fee structure published in this final rule, please visit the USCIS fact sheet at: http://www.uscis.gov/files/nativedocuments/FinalUSCISFeeSchedule052907.pdf.

Need A Passport? Apply 12 Weeks in Advance

The Department of State (DOS) announced that it set new records in March and April for passport production for Americans planning to travel internationally. Because of this increase in demand, passport production time should now average about 10 to 12 weeks; DOS guides Americans to apply for a passport at least 12 weeks before planning to travel internationally.

DOS also provided a list of important points for travelers to keep in mind when applying for their passports. Applicants are guided to check their applications against the DOS checklist, available online at travel.state.gov/passport.

In addition, applicants can use a secure, online form to request a passport.

First Time applicants: https://pptform2.state.gov/DS11/MainDS11.aspx
Renewal applicants: https://pptform2.state.gov/DS82/Eligibility.aspx

Travelers can also check the status of their passport applications online at http://travel.state.gov/passport/get/status/status_2567.html.

For more information on expedited processing for passports, visit travel.state.gov.

USCIS Will Not Accept Premium Processing for I-140s Requesting Labor Certification Substitution

Last week, USCIS announced that it will terminate Premium Processing Services for all I-140 petitions that request labor certification substitutions, as of May 18, 2007. Because labor certification substitutions will no longer be after mid-July of this year, USCIS expects to receive a large amount of I-140s with premium processing requesting labor certification substitutions. The amount of cases expected to be received will surpass USCIS’s capacity to provide premium processing for those cases.

The Department of Labor, earlier this month, amended its regulations through a final rule that will no longer allow labor certification substitutions. This final rule will take effect July 16, 2007. Premium processing guarantees that cases will be adjudicated within 15 calendar days of receipt of petitions. However, because of the volume of cases USCIS expects to receive, premium processing of these cases will not be possible; USCIS can not guarantee adjudication within 15 calendar days.

DOL Publishes Final Rule on Labor Certification

The U.S. Department of Labor (DOL) yesterday published its final rule regarding labor certification substitutions. In the final rule, DOL discussed a range of issues, including labor substitutions, expirations of labor certifications and payments for labor certifications.

At the core of the regulation is the official prohibition of substituting beneficiaries in labor certification cases. On or after July 16, 2007, these substitutions will no longer be allowed (all submitted substitutions prior to that date will not be affected by this rule).

In addition, the rule sets a 180 day validation period for labor certifications. If no I-140 is submitted within 180 days of a labor certification approval, that certification will expire. Please note that for all labor certifications approved before July 16, 2007, the I-140 petition will need to be filed within 180 days of July 16, 2007.

Finally, the new rule bans the sale, barter or purchasing of labor certifications. Based on DOL information, employers can not ask for or accept payments of any kind for any activity related to labor certification approval. This includes the cost of attorney fees. While individuals may seek their own legal representation, the labor certification is considered the duty of the employer.

Again, please note that these regulations will not become law until July 16, 2007.

Senate, White House Reach Compromise on Immigration Reform, Community Organizations Announce It Falls Short of Ideals

After months of debate, key members of both parties of the Senate and representatives from the White House have come to an agreed-upon immigration overhaul compromise. At the core of the compromise is a shift from employment- and family-based immigration to merit-based immigration, where immigrants’ education and skill levels would play more of a role than family relationships in the awarding of green cards.

The compromise is not an ideal solution, however, to overall immigration needs and organizations such as the American Immigration Lawyers Association (AILA) have raised a range of concerns. The compromise calls for sweeping changes that include the following:

(1) Eliminating four out of five family-based green card categories;

(2) Replacing the current employment-based system of immigration with a new, merit-based, point system that does not take into consideration the needs of U.S. employers.

(3) Not including any measure to change green card levels to meet the needs of the US economy;

(4) Not including a path to permanent residency for a majority of nonimmigrant workers.

Yesterday, AILA published a public response to the proposed compromise. In it, the trade organization laid out the varied reasons why it does not support the measures. “This [compromise] is nothing short of high-risk, large-scale social experimentation,” said Carlina Tapia-Ruano, President of AILA. “By untethering the system from its moorings to employer and family relationships, we threaten to dissolve the social fabric that binds immigrant communities …. Moreover, by restricting the ability of new ‘guest workers’ to bring their families with them or transition to permanent status, we are creating a dynamic that will generate the next group of illegal residents.”

USCIS, Backlogged with Data Entry for Standard H-1B Cases, Projects Timeframes for Completion

Because of the exorbitantly high amount of H-1B filings for Fiscal Year 2008, USCIS is currently being slowed down in the receipting/data entry step of processing FY 2008 cases at each of its service centers. USCIS has, though, published projected timeframes for fee receipting and data entry processing for those H-1B submissions chosen for the FY 2008 visa cap. Please note that these projected dates do not apply to H-1B cases submitted with requests for premium processing or for I-129 H-1B cases.

California Service Center: USCIS aims to be able to provide in time-compliance at this Service Center by June 15, 2007.

Nebraska Service Center: USCIS is currently in time-compliance at this Service Center.

Texas Service Center: USCIS is currently in time-compliance at this Service Center.

Vermont Service Center: USCIS aims to be able to provide in time-compliance at this Service Center by June 2, 2007.

USCIS also noted that it may take more time to complete the receipting and data entry portions of some cases. USCIS requests that applicants wait at least 30 days from the applicable receipt processing timeframe stated above before contacting the organization for more information. If you do not receive a response from USCIS within 30 days of that timeframe, it is suggested that you check the USCIS website at uscis.gov, call their customer service line at 1-800-375-5283 or contact our firm for assistance in receiving updated processing information.

REAL ID Act Receives Criticized from State DMVs

State officials throughout the U.S. are speaking out against the standards set by the Department of Homeland Security (DHS) for secure drivers licenses and identification cards. In comments to DHS’s proposed rule the American Association of Motor Vehicle Administrators and the California Department of Motor Vehicles both commented, that, under guidelines set in the 2005 Real ID Act, the process for counterfeiting licenses would be easier, as counterfeiters would only have to focus on mimicking one standard license, as opposed to 50.

In addition, California’s DMV voiced concern about the fact that the Real ID would require states to provide other states with access to their databases. This shared database of more than 240 million licenses would, in effect, create an enticing target for hackers and other criminals.

The Real ID Act was approved by Congress two years ago, as part of President Bush’s war supplemental and tsunami relief bill. The goal of the act is to improve security by requiring use of an approved identification to fly on commercial airlines and to enter federal facilities and nuclear power plants.

Since it was first passed, the act has received criticism from multiple sources. Over 3,000 comments have been received about the Real ID proposed rules, and many states, including Maine, Idaho and Montana, have rejected provisions of the act.

Ninth Circuit Decides Lolong Case; Other Indonesian Asylum Cases Still Have Chance of Winning

Earlier this week, the Ninth Circuit Court of Appeals in San Francisco denied the petition for review in Lolong v. Gonzales. The petitioner, Majorie Konda Lolong, is an ethnic Chinese Christian citizen of Indonesia. The Ninth Circuit stated that it denied Lolong’s asylum application because she did not show any personal discrimination, harassment or violence in Indonesia based on her Chinese ethnicity or her Christian faith. Because of this ruling, the court’s decision in Sael v. Ashcroft remains the law. In that case, Ms. Sael was able to show that she suffered discrimination, harassment and threats of violence in Indonesia because of her Chinese ethnicity, which is a quite common situation in that country.

US-VISIT Three-Year Pilot Program Completed

Late last week, the Department of Homeland Security (DHS) announced that it will incorporate biometric exit procedures into the current international visitor departure process. According to DHS, this change will make leaving the U.S. “more convenient and accessible for international visitors.”

Step one in this integration process was the testing of a three-year year pilot program that required international visitors to check out via biometric processes at certain specified airports and seaports. According to DHS, as of May 6, 2007, international visitors will not be required to check out at a US-VISIT kiosk when exiting the U.S. However, international visitors who received a Form I-94 (the Arrival-Departure Record) when entering the U.S. will still need to return that form to an airline or ship representative when leaving the U.S.

As part of the US-VISIT 2007 Expenditure Plan, DHS submitted to Congress an exit plan that incorporates lessons learned during the three-year pilot program. According to that publication, the technology worked effectively; however, there was low traveler compliance to regulations. DHS, based on findings from the pilot program, aims to incorporate the US-VISIT air exit procedures into existing international departure processes for visitors.

DHS plans to start implementing these exit procedures at all commercial airports in the near future. The Department is currently coming up with their ideal strategy; they will publish a regulation on this topic in the near future.