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.

USCIS Reaches Limit for Cap-Exempt H-1B Petitions

USCIS has announced that it has received enough H-1B petitions from foreign nationals that received graduate education in the U.S. to meet the Fiscal Year 2008 exemption limit of 20,000. According to USCIS, the final receipt date for these exempt H-1B petitions is April 30, 2007. Any petitions requesting a FY 2008 cap exemption for a worker with a master’s or higher degree from a U.S. institution of higher education received by USCIS on or after May 1, 2007 will be rejected, unless that petition is eligible for another cap exemption category.

According to USCIS procedures, all H-1B petitions that requested the exemption and were received on April 30 will be subjected to a computer generated random selection process. All filings not selected in this process will be rejected and returned to the petitioner, along with the filing fee(s), as long as that petition is not eligible for another H-1B cap exemption. All H-1B petitions requesting this exemption for FY 2008 that were or will be received on or after May 1, 2007 will be rejected by USCIS and returned to the petitioner, along with the filing fee(s), as long as that petition is not eligible for another H-1B cap exemption.

Please note that the earliest you may file a petition for either a cap-subject FY 2009 H-1B employee or a cap-exempt petitioner, for a start date of October 1, 2008, will be April 1, 2008. Until then, you will not be able to submit any H-1B petitions for cap-subject petitioners or this particular cap-exempt category of petitioner.

USCIS will, however, continue to accept and adjudicate petitions for current H-1B workers (who, generally speaking, do not count toward the congressionally-mandated H-1B cap) in the following cases:

~ To extend the amount of time a current H-1B worker can remain in the United States.
~ To change the terms of employment for a current H-1B worker.
~ To allow a current H-1B worker to change employers.
~ To allow a current H-1B worker to work, at the same time, in a second H-1B position.

Updated Numbers for the H-1B Master’s Cap

On April 30, 2007, USCIS gave updated numbers of petitions received for the H-1B visa master’s cap. As of Friday, USCIS has received 19,887 petitions for this visa program for foreign nationals with advanced degrees from U.S. institutions. 20,000 petitions total will be allowed, which means that there are less than 200 petitions left.

The H-1B Visa Reform Act of 2004 changed filing procedures for the H-1B visa, making available 20,000 new H-1B visas for foreign workers who received a Master’s or higher degree from a U.S. academic institution.

Department of Labor May Soon Prohibit Substitutions on Labor Certifications

All signs currently imply that the Department of Labor (DOL) may soon implement a rule that would no longer allow employers to use a previously approved permanent labor certification for a different employee as a ‘substitution of alien beneficiary’.

DOL’s proposed rule on this issue has been under review since it was introduced in February 2006. The Office of Management and Budget recently finished its review of that proposed rule and has cleared the rule for final implementation.

Major aspects of the rule include the following:

1) Prohibition of any changes to any pending or approved labor certification;
2) The barring of any foreign national payments of Employer legal fees; and
3) Limitation of validity periods for approved labor certifications.

DOL’s final rule will most likely look quite similar to the proposed rule. While there may be some changes to the rule due to input from the Office of Management and Budget and other reviewers, it is estimated that, at the very least, the prohibition of substitutions will be included in the final rule.

Temporary Protected Status Extended for Hondurans, Nicaraguans and Salvadorans

The Department of Homeland Security today extended by 18 months Temporary Protected Status (TPS) for eligible citizens of Honduras, Nicaragua and El Salvador. This extension will allow individuals from these countries in the U.S. under TPS status to continue living and working in the U.S.; more than 300,000 TPS beneficiaries from Honduras, Nicaragua and El Salvador will be affected by this change.

Current designations for TPS individuals form Honduras and Nicaragua were slated to expire on July 5, 2007; designations for Salvadorans were to expire on September 9, 2007. While official re-registering periods have not yet begun, USCIS has announced they will start processing re-registration for Honduran and Nicaraguan TPS beneficiaries first; the process will begin later this summer for Salvadoran TPS beneficiaries. Details on where and when to re-register should be published shortly by USCIS.