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E&M
Visa Update for April 8, 2004
Fingerprints
& Photographs of Aliens Arriving by Air Extended to All Visitors
Hospitals
Mobilize to Delay July 26, 2004 Non-Immigrant VisaScreen Deadline
H1-B
& H-2B Employment Visas have run out for Fiscal Year 2004; File
Now for 1 Oct 04 Start
Out
in the Cold Without an H-1B Visa? Try These Alternatives
Guest
Worker/Amnesty Stalled; 1986 Amnesty Applicants get Second Chance
90-Day
Adjustment of Status Pilot Program to begin at Dallas CIS office
on May 3rd
Elliot
& Mayock LLP welcomes Ms. MJ Hannett and Jennifer Brill
Just
Released: CIS Reports with Processing Times, Posted on April 7,
2004
To subscribe or unsubscribe
Fingerprints
& Photographs of Aliens Arriving by Air Extended to All Visitors
In a continuing effort to track all foreigners who come to America,
the Department of Homeland Security (DHS) has extended the US-VISIT
biometric documentation program to citizens of the 27 countries
who enjoy the benefits of the Visa Waiver Program (VWP) and arrive
by air. These citizens will be fingerprinted and photographed at
U.S. airports and seaports of entry beginning by September 30, 2004.
All Ports of Entry, including the land borders, are to be incorporated
into the US-VISIT system by December 31, 2005.
The Visa Waiver Program offers the privilege of visiting the United
States for up to 90 days by simply presenting a qualifying passport,
without first undergoing the screening process of obtaining a visa
from one of the Department of State's consular offices abroad. DHS
has requested that the deadline for these 27 countries to issue
passports with biometric identifiers be delayed by Congress until
October of 2006.
Airport inspectors of Customs and Border Protection (CBP) began
fingerprinting and photographing arriving passengers from non-VWP
countries on January 5, 2004. The system is still porous because
of the approximately 350 million entrees at land borders by aliens
who are not yet documented in this fashion.
The thorny issue of departure documentation is another key element
awaiting full implementation in order to accomplish total border
control. While the United States has inspected all arriving aliens
and collected information about such arrivals for decades, there
is no secure system to document whether and when such foreigners
have ever left America. Better exit tracking will be introduced
on September 30, 2004, involving kiosks at airports for the swiping
of form I-94, the arrival/departure card.
Rapid roll-out of the fingerprinting and photographing of visa applicants
at U.S. consular posts abroad continues unabated, with Australia
and China recently added to the more than 77 posts abroad now using
the Automated Biometric Identification System database known as
IDENT.
These security measures have created significant delays for U.S.
citizens arriving at American airports and land border crossings.
Moreover, certain countries have invoked the diplomatic concept
of "reciprocity" to raise their own non-immigrant visa fees for
American visitors to match the U.S. rate of $100 (Brazil, Russia,
Turkey, Chile); other countries have imposed lesser increases (Liberia,
Pakistan, China, India). Brazil has gone so far as to fingerprint
arriving U.S. citizens. China is retaliating by eliminating the
availability of visas upon arrival in China, and requiring some
U.S applicants to undergo personal interviews.
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Hospitals
Mobilize to Delay July 26, 2004 Non-Immigrant VisaScreen Deadline
Last July, DHS issued a final rule implementing section 343 of the
1996 Illegal Immigration Reform and Immigrant Responsibility Act.
Under section 343, any foreign worker coming the U.S. to work as
a health care professional (physicians excepted) in a nonimmigrant
(temporary) capacity must present a healthcare certificate (also
known as a VisaScreen Certificate), demonstrating both health care
and English language competency.
Unless there is action, Section 343 will take effect on July 26,
2004. This will have a major impact on hospitals that employ Canadian
nurses with TN-1 status. Most advocates have specifically urged
a delay in the implementation of the rule for an additional one
year. The AHA has requested that exemptions be made for foreign
health care professionals who already hold a valid U.S. license
and for those who received their training in the U.S. With the deadline
rapidly approaching, the Commission on Graduates of Foreign Nursing
Schools (CGFNS) has prepared for a deluge of VisaScreen applications,
but to date demand has been relatively flat. Currently it is taking
about three months to complete the VisaScreen process.
The American Hospital Association (AHA), the American Organization
of Nurse Executives (AONE), CGFNS, and a bipartisan group of 14
senators, including 6 members of the Senate Immigration Subcommittee,
have petitioned the Department of Homeland Security (DHS), urging
a delay in the deadline for implementation of the non-immigrant
VisaScreen rule.
Beginning in 1996, the Health Care Certificate has been required
of applicants for permanent residence ["green card"]. For more information
about the new Section 343 rule, see our August 12, 2003 edition
of the E&M Visa Update at http://www.emvisa.com/emvu030812.htm.
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H1-B
& H-2B Employment Visas have run out for Fiscal Year 2004; File
Now for 1 Oct 04 Start
After announcing on February 17, 2004 that the cap on H-1B temporary
professional visas had run out for Fiscal Year 2004 (1 Oct 03 -
31 Sep 04) U.S. Citizenship and Immigration Services (CIS) announced
on March 10, 2004 that it had received enough H-2B petitions to
meet the congressionally mandated cap of 66,000 for new temporary/seasonal
workers. H2B workers are often used to fill positions in fisheries,
hotels and summer camps. This is the first time that the H-2B cap
has ever been reached, and the recently formed H-2B Employers Council
has challenged CIS counting methodology. CIS will no longer accept
any new H-2B petitions subject to the FY 2004 annual cap, but it
will continue to process all petitions received by the end of business
on March 9, 2004.
Petitions for current H-2B workers do not count towards the congressionally
mandated H-2B cap. Accordingly, CIS will accept and process petitions
filed to extend the stay of a current H-2B worker in the United
States, to change terms of employment for current H-2B workers,
as well as those filed to allow current H-2B workers to change or
add employers.
Similarly, the H-1B temporary professional cap does NOT affect extensions
of stay, change of employers or addition of concurrent employers.
Institutions of higher education and their affiliated non-profits,
plus non-profit and government research institutions are NOT affected
by the cap. H-1B employees from Singapore and Chile still have visas
available, and can apply directly at a consulate without obtaining
a petition approval from CIS.
Petitions for new workers in both the H-1B and H-2B categories are
now being accepted for employment starting on October 1, 2004, the
start of the new Fiscal Year 2005.
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Out
in the Cold Without an H-1B Visa? Try These Alternatives
For those who have missed the cut-off for H-1B visas, there may
be other appropriate alternatives. The following are some temporary
visas to consider:
Treaty (E) visa: This visa type is for foreign workers coming
to the U.S. to carry on trade or to invest a substantial amount
of capital. A treaty must exist between the U.S. and the foreign
worker's country in order for the worker to be eligible for the
E visa.
Intracompany Transfer (L-1) visa: This visa is for employees
of oversees companies being transferred to a related office in the
U.S. following at least a year of prior employment with the related
foreign company. U.S. consular posts abroad have been warned by
the Department of State to be on the lookout for increased L visa
fraud due to the H-1B cap.
The Trainee (J-1) visa: The J-1 is available to individuals
who are in the U.S. to receive training in a particular field. The
trainee may receive a salary for the training. Some trainees may
be subject to a rule requiring them to return to their home country
for two years before obtaining an H visa or permanent residence.
Trade NAFTA (TN) status: TN status is for Canadian and Mexican
workers whose positions appear on the Schedule negotiated between
the three countries. Mexican TNs no longer need to follow the onerous
CIS petition process, but may now apply directly for a TN-2 visa
at a Department of State consular office in Mexico.
O-1 visa: This visa is for individuals with extraordinary
ability in the sciences, arts, education, business, or athletics.
Documentation of significant awards and mention in the press are
usually required.
Student (F-1) visa: Employment may be available to foreign
students in limited circumstances.
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Guest
Worker/Amnesty Stalled; 1986 Amnesty Applicants get Second Chance
Despite significant "lip service" given by CIS Director Eduardo
Aguirre and others to the Bush Administration's proposal to legalize
the status of certain "guest workers," there appears to be no real
progress with any "amnesty" proposal during this election year.
Although Bush announced an immigration initiative in January, just
before a meeting with Mexican President Vicente Fox, there has been
no implementing legislation introduced in Congress. Following a
firestorm of criticism from restrictionists who are opposed to any
new program that smacks of "amnesty," prospects for any such legislation
have dimmed.
Meanwhile, hangovers from the Immigration Service's botched implementation
of the 1986 Legalization program continue. In March, CIS settled
17 years of litigation costing upwards of $50 million dollars that
will open the door in May of 2004 to amnesty for perhaps 250,000
undocumented aliens who were unfairly excluded from that program.
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90-Day
Adjustment of Status Pilot Program to begin at Dallas CIS office
on May 3rd
Employment-based applicants for adjustment of status to permanent
residence ["green cards"] are currently experiencing delays of two
years or more at all four of the regional service centers of the
CIS. All other types of adjustment of status applications - in particular
family-based, such as by marriage to a U.S. citizen - are being
handled at the many local CIS district offices around the country.
Processing times vary widely, with most district offices taking
about a year or more to make a decision.
Due to these delays, beginning May 3, 2004, the Dallas District
Office of CIS will begin a pilot program designed to streamline
the adjustment of status process in such a way that it can be completed
in 90 days. Appointments will be scheduled using the INFOPASS online
appointment system, which was pioneered in the Miami District Office
and has been further propagated to the Los Angeles, Santa Ana and
San Bernardino offices.
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Elliot
& Mayock LLP welcomes Ms. MJ Hannett and Jennifer Brill
MJ (Mary Josephine) Hannett has joined the firm as Jim Mayock's
Executive Assistant. MJ's background includes research on international
issues with experience working for an NGO on a campaign to ban landmines,
and significant exposure to healthcare administration.
Attorney Jennifer Brill has come on board to manage the team formerly
led by Susan Zivic Breece, who has left the firm to study for the
California Bar exam in July. She will be missed by her clients and
co-workers. Although we are sad to see Susan go, we encourage her
professional development and wish her the best of luck on her exam!
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Just
Released: CIS Reports with Processing Times, Posted on April 7,
2004
To view and print out the most recent CIS service center processing
time reports by District Office, Service Center, or National Benefits
Center, please visit:
https://egov.immigration.gov/graphics/cris/jsps/index.jsp?textFlag=N#
Thank
you for taking the time to read this E&M Visa Update.
top
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