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E&M Visa Update for October 6, 2003 Volume
Three, Number Ten sign
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All Service Centers Update Processing Time Reports Visa Spotlight: H-1B Filing Fees Drop to $130 on October 1st;
Premium Processing Still Available for an Additional $1,000; FY04
Cap Drops to 65,000 H-1B petitions filed on or after October 1, 2003, will no longer be
required to submit the additional "training" fee of
$1,000; only the base filing fee of $130 is required. This reduction
is a result of the sunset provision in Immigration and Nationality
Act (INA) section 214(c)(9)(A). Any H-1B petition filed on or
after October 1, 2003 that includes the additional $1,000 "training"
fee together with the base filing fee of $130 in a single remittance
will be rejected by Service Centers as improperly filed. Form I-129W, H-1B Data Collection and Filing Fee Exemption, must still
be filed in conjunction with Form I-129 when petitioning for an
H-1B nonimmigrant worker, but the filing fee information in Part
B can be omitted. Contrary to some rumors, the two-week response Premium Processing
program continues in effect for the additional, optional fee of
$1,000. Also on October 1st, the H-1B cap will drop from 195,000 for FY 2003
to 65,000 for FY 2004 (which begins on October 1). Absent legislation
authorizing additional H-1B visa numbers, they are likely to run
out long before September 30, 2004. Petitioners are advised to
project their new H-1B employee needs and file early. Non-immigrants
already in H-1B status are NOT counted against the cap for renewals.
Department of State
Postpones Oct 1st Machine-Readable Passport Requirement
until October 2004 for All But 5 Visa Waiver Countries Citizens of 27 Visa Waiver Program countries
are permitted to enter the US for general business or tourist
purposes for a maximum of 90 days without a visa. Because only
a passport from a qualifying country need be shown, and no visa
interview is required, US authorities are fearful that terrorists
may use the program to gain entry to the US. On September 25, the Department of State
granted a postponement until October 26, 2004 for Visa Waiver
Program travelers from 21 countries to present a machine-readable
passport at a U.S. port of entry. The requirement was to have
gone into effect on October 1, 2003. The countries for which the postponement
has been granted are: Australia, Austria, Denmark, Finland, France,
Germany, Iceland, Ireland, Italy, Japan, Monaco, Netherlands,
New Zealand, Norway, Portugal, San Marino, Singapore, Spain, Sweden,
Switzerland, and the United Kingdom. Five other eligible countries did not request
a postponement of the effective date, because virtually all of
their citizens already have machine-readable passports. Those
countries are Andorra, Brunei, Liechtenstein, Luxembourg, and
Slovenia. Belgian nationals who wish to travel under the auspices
of the Visa Waiver Program have been required to present a machine-readable
passport since May 15, 2003. Improvements to the Test of Spoken English [TSE]
May Increase Passage Rates for Healthcare Workers Needing a Health
Care Certificate On September 18, the Educational Testing Service [ETS] announced that the Test for Spoken English [TSE] is changing. As a result, the TSE appears to have become easier and more user-friendly. The Test of Spoken English (score of 50 for RNs) is often a barrier to attainment of a Health Care Certificate such as VisaScreen. Six important changes are worth noting: 1) There are now only 9 questions, rather than the 13 questions previously.
2) All responses are now a uniform 60 seconds long. 3) There is an audible beep at the end of the response time alerting
the examinee to prepare to listen to the next question. The lack
of such a beep caused many problems and failures in the past. 4) Explaining a "technical term" in the examinees field
of study or work has been eliminated. That means that the one
question that the examinee was expected to create has disappeared.
5) The four "new" questions have been revised and one of
them has been eliminated. 6) The "graph" questions remain the most difficult, but
some slight changes in the format make it easier to "pass."
BCIS Clarifies Handling of Non-Immigrant Healthcare
Petitions in the Run-Up to Certificate Requirement on July 26,
2004: Status Limited to One Year As we reported in our August 27th edition of the E&M Visa Update,
non-immigrants (temporary workers) coming to the US to perform
labor as health care workers will be required to obtain a Health
Care Certificate by July 26, 2004. In a memo to the Field dated
September 22, 2003, BCIS clarified the procedure for those petitions
filed in the interim. The Memo states that a health care worker's admission to the US, or
petition for extension of stay or a change of status submitted
prior to July 26, 2004 will be granted only for one year. During
that one year, the foreign worker must obtain the requisite health
care certification and submit it to the Immigration Service with
subsequent petitions for extension of stay or change of status. The health care occupations requiring certification are nurses (licensed
practical nurses, licensed vocational nurses, and registered nurses),
physical therapists, occupational therapists, speech-language
pathologists and audiologists, medical technologists (also known
as clinical laboratory scientists), medical technicians (also
known as clinical laboratory technicians) and physician assistants. The new certification requirement applies only to non-immigrants coming
for the primary purpose of performing work as health care workers.
They will most likely be
in the H-1B, H-1C, J, O, and TN visa classifications. Trainees
[most likely in F-1, J-1 or H-3 categories] and non-clinical health
care workers [teachers, researchers and managers] will not be
required to present a Health Care Certificate.
Service Centers Will Begin to Issue Notices
to Appear (NTAs), Starting the Removal Process for Aliens Denied
Non-Immigrant Status On October 1, BCIS plans to have adjudicators at the Service Centers
start issuing Notices to Appear (NTAs), the first step in the
deportation process. It is believed that the program will start
with Temporary Protected Status (TPS) applications, be expanded to all cases involving aggravated felons, and then possibly
expanded further to any alien denied an extension of non-immigrant
status. This latest move by the BCIS takes the agency beyond its
mandate to provide immigration benefits. Worst of all, this new
role for BCIS will further set back already delayed adjudication
timelines.
I-9 Investigations of Employees in Sensitive Positions
Ongoing, As Workers for A Navy Contractor In San Diego Are Charged
with Immigration Violations A dozen employees of a Navy contractor who have access to military
installations and vessels were arrested September 23rd on immigration
charges, according to the Bureau of Immigration and Customs Enforcement. The suspects worked in San Diego for Southwest Marine Inc., which
maintains and repairs Navy ships at six sites nationwide. Their
jobs included welding, mechanics and painting. The workers either
lacked proper immigration records or were legal residents with
prior criminal convictions. Most presented false documents as
proof of eligibility to work or used someone else's valid immigration
documents. While I-9 investigations around the country have generally slowed
to a crawl, employers at military sites and potential terrorist
targets [airports; landmarks] continue to be the focus of intense
BICE interest.
Department Of State's Dwindling Authority
over Visa Issuance Marked by Deployment of DHS Staff to US Consulates
and Loss of TIPOFFF Database Two recent events underline the continuing reduction of the Department
of State's (DOS) influence over visa and immigration procedures.
The CIA and FBI will soon take control of a database of suspected
terrorists used to screen people seeking visas to enter the US.
The TIPOFF database, which holds the names of more than 110,000
known or suspected terrorist associates, will be transferred from
DOS to the Terrorist Threat Integration Center, which the CIA
runs with assistance from the FBI. In another blow to DOS authority, Department
of Homeland Security (DHS) officials have reported for duty at
US consulates in Saudi Arabia. Within the coming months, most
consular posts will be staffed by DHS officials who will have
the authority to direct a DOS consular officer to refuse a visa
if it is deemed necessary or advisable in the foreign policy or
security interests of the US. In May, DOS lost a battle with DHS over how much scrutiny to give
visa applicants outside Europe. As a result, about 90 percent
of visa applicants from countries in the Middle East, Asia and
Latin America now must undergo face-to-face interviews before
they are granted entry into the US. These actions represent continuing fallout for DOS from the events
surrounding September 11 and its aftermath. A General Accounting Office (GAO) study found that at least 13 of
the 15 hijackers from Saudi Arabia were never interviewed by US
consular officers before they were granted visas, and none had
filled out his application properly. Another GAO study in November
2002 found that consular officials had mistakenly issued visas
to 105 men who should have been prevented from entering the US
because their names were on FBI and CIA terrorist lists. All the
visas were revoked, although three of the applicants made it to
the US border and two others entered and left without incident.
All Service Centers Update Processing Time Reports The
Texas Service Center Processing Time Report was
updated on September 30 for the period ending September 30. The
Vermont Service Center Processing Time Report was
updated on September 23 for the period ending September 15. The
California Service Center Processing Time Report
was updated on September 19 for the period ending September 19. The
Nebraska Service Center Processing Time Report was
updated on September 4 for the period ending September 1. To
view and print out the most recent INS service center processing
time reports, please visit http://www.emvisa.com/bcisreports.htm
Elliot
& Mayock LLP
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© 2003 Elliot & Mayock LLP