E&M Visa Update for August 12, 2004

Volume Four, Number Four, published by Elliot & Mayock LLP

Hospitals Must Report Patients’ Immigration Status to Receive Federal Aid

CIS Changes Photo Requirements – Frontal rather than ^3/4 Profile

CIS to Have Greater Flexibility in Work Authorization Card Duration

End in Sight to Long Lines at CIS at District Offices with InfoPass

Visa Waiver Entrants to be Fingerprinted & Photographed Starting September 30th; Biometric Passport Deadline Extended

DV 2005 "Green Card" Lottery Results Announced; DV 2006 application fee increased from $100 to $375

Homeland Security Expands U.S. Exit Control to 14 Ports

Health Care Worker Certificate Extended; Implementation

Immigration Processing Time Reports

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Hospitals Must Report Patients’ Immigration Status to Receive Federal Aid

The federal government is offering $1 billion to hospitals that provide emergency care to undocumented immigrants. But the offer comes with a catch: to receive the aid, hospitals must ask patients about their immigration status.

The new program, created under the 2003 Medicare law, was initially welcomed by state officials and hospital executives, who had argued for years that the federal government should cover the costs of medical care for undocumented immigrants. However, the idea of documenting patients’ immigration status is alarming to most hospital workers, as well as immigrant rights groups, who worry that such questioning may deter undocumented immigrants from seeking medical care.

Under a 1986 federal law, hospitals are required to provide medical treatment to stabilize the condition of any patient coming into an emergency room, regardless of the patient’s immigration status or ability to pay. Hospitals often absorb the costs when patients are uninsured.

Federal health officials have said that documenting the immigration status of patients is necessary to ensure that the money would be used as Congress intended, for “emergency health services furnished to undocumented aliens.” The largest allocations will go to California, Texas, Arizona, New York, Illinois, and Florida

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CIS Changes Photo Requirements – Frontal rather than ^3/4 Profile

Facial recognition software requirements have caused the Citizenship & Immigration Service ("CIS") to announce that, starting September 1, 2004, photographs will now be required in the Department of State (DOS) standard style “frontal view” for all benefits applications. CIS has stated that it will continue to accept the 3/4 profile style photos (also known as “ADIT style” or “green card style”) during August, 2004. However, the California Service Center has already begun to reject the “old style” photos. For more info on photo standards, visit the DOS website at http://travel.state.gov/passport/pptphotos/index.html.

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CIS to Have Greater Flexibility in Work Authorization Card Duration

With limited exception, the validity period of the photo-ID Employment Authorization Document (EAD) is one year, requiring workers to repeatedly renew it. However, an interim rule published on July 30th will give CIS the discretion to modify EAD validity periods to more or less than one year for initial, renewal, and replacement cards. CIS will establish EAD validity periods based on: The applicant's immigration status; general processing time for the underlying application or petition; required background checks and response times for background checks by other agencies; and other security considerations and factors.

Classes of foreign workers requiring an EAD include: Applicants for Adjustment of Status; students eligible for Optional Practical Training; and spouses of foreign workers in temporary L, J, and E nonimmigrant status .

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End in Sight to Long Lines at CIS at District Offices with InfoPass

Hailed as a Customer Service milestone, the CIS recently opened its new “InfoPass” internet-based appointment system to residents of the New York City area. To avoid the need to wait in line, InfoPass allows the public to go online to schedule a date and time to meet with immigration officers. InfoPass also offers “e-filing” of eight of the most frequently used forms. By the end of 2006, e-filing is expected to support 12 forms that account for over 90% of filings every year.

First developed in Miami, the New York District Office is now one of the four sites including Dallas and Los Angeles that currently offer this service. To see if your local office is online, visit: http://infopass.uscis.gov/info_en.php. CIS has announced its plans to implement InfoPass nationwide, totaling 33 CIS offices by September 2004:

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Visa Waiver Entrants to be Fingerprinted & Photographed Starting September 30th; Biometric Passport Deadline Extended

On August 9, 2004, President Bush signed a law extending the deadline for the passports of the 22 Visa Waiver Program (VWP) countries to include biometrics [fingerprint and photograph]. To counter the risks involved in permitting foreigners to enter the U.S. without prior U.S. government screening, all Visa Waiver entrants will be fingerprinted and photographed at ports of entry starting September 30, 2004.

The requirement for Visa Waiver travelers to have biometrics included in passports was mandated in the Enhanced Border Security and Visa Entry Reform Act of 2002. The original legislation required that Visa Waiver Program country passports issued on or after October 26, 2004 be biometrically enabled for use in Visa Waiver travel. The new law extends that deadline for one year, until October 26, 2005. Moreover, by the end of 2005, all domestically produced U.S. passports will be biometric passports.

This extension was necessary to avoid disruption of international travel and to permit the 22 affected countries more time to develop viable programs for producing more secure, biometrically enabled passports.

Another requirement for Visa Waiver Program travel will still come into effect on October 26, 2004. On and after that date, all passports used for travel in the Visa Waiver Program must be machine-readable.

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DV 2005 "Green Card" Lottery Results Announced; DV 2006 application fee increased from $100 to $375

The Department of State has notified the winners of the 2005 Diversity Visa lottery (also known as the “green card lottery”). Those who have not received notification were not selected. The diversity lottery makes available 50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States. Like the airlines, the Department of State “overbooks” due to an approximately 50% “no-show” rate. Consequently, some 100,000 applicants have been selected and notified, and may soon submit an application for an immigrant visa abroad or for adjustment to permanent residence in the U.S. Spouses and minor children of lottery winners are also entitled to derivative diversity visa status. Once the total 50,000 visa numbers have been used, the program for fiscal year 2005 will end. All qualifying applicants must receive their visas by September 30, 2005. Submit your application for permanent residence at the earliest possible opportunity.

During the immigrant visa interview, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years.

Applicants registered for the DV-2005 program were selected at random from more than 9.5 million qualified entries received during the 60-day application period that ran from November 1, 2003 until December 30, 2003. The dates for the registration period for the DV-2006 lottery program are likely to be in November and December of 2004, and will be widely publicized in August 2004. The Diversity Visa Lottery surcharge for immigrant visa registration has been increased from $100 to $375.

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Homeland Security Expands U.S. Exit Control to 14 Ports

The Department of Homeland Security (DHS) recently announced that it is expanding its US-VISIT exit pilot programs to 13 additional airports and seaports. Currently, the documentation of departure has only been implemented at one airport and one seaport. US-VISIT has already been implemented at 115 airports and 14 seaports to check the entry of foreign visitors.

US-VISIT (United States Visitor and Immigrant Status Indicator Technology Program) was launched by DHS in January 2004. It is a process of using two fingerprints and a photograph to confirm a foreign visitor’s entry into and exit from the U.S. With few exceptions, all foreign visitors entering the U.S. with visas are required to enroll in US-VISIT upon arrival. Starting September 30, 2004, visitors traveling under the Visa Waiver Program will also be required to enroll in US-VISIT.

Beginning August 3, 2004, DHS will implement the US-VISIT exit pilot program at the following 13 international airports: Baltimore; Newark; Atlanta; Chicago O’Hare; Philadelphia; Dallas/Fort Worth; Detroit; Las Vegas McCarran; San Juan Puerto Rico; Phoenix; San Francisco; Agana, Guam; and Denver. The pilot program will also be implemented at seaports in Miami and Los Angeles. At these ports, foreign visitors will submit electronic fingerprints and electronically scan their travel document at the time of departure.

DHS will complete the evaluation of the exit pilot programs by November 30, 2004, then publish a subsequent notice announcing its findings and the implementation of further plans.

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Health Care Worker Certificate Extended; Implementation

On July 22nd, CIS announced a one-year extension of the deadline for the Health Care Certificate requirement for temporary workers, but only for the biggest procrastinators: those Canadians and Mexicans with a State license and TN status before September 23, 2003. All others - those present in the U.S. now and those who seek to come - must have a Health Care Certificate to enter, extend, or change status.

Congress imposed the Health Care Certificate requirement in 1996. The purpose is to ensure that foreign-born Health Care workers have education, training and English language skills equivalent to U.S. workers. In 1996, all nonimmigrant (temporary) health care workers were immediately given a waiver, which has been extended repeatedly. Immigrants, on the other hand, have been subject to the Certificate requirement since 1996. Because the Immigration Service failed to write implementing regulations for immigrants until forced to do so by a lawsuit, the flow of all but Canadian TN nurses came to a complete halt for over three years.

After 7 years of temporary waivers for nonimmigrants, the government agencies could no longer justify thwarting the Congressional mandate. CIS published a rule last year requiring that temporary workers obtain a Health Care Certificate (also known as “VisaScreen™” for RNs) by July 26, 2004. Without such a Health Care Certificate, temporary health care workers would lose authorization to work in the U.S.

However, on July 22nd – after enormous political pressure from border hospitals that rely heavily upon Canadian TN nurses - the deadline has been extended for yet another year for key workers. The extension is only for Canadians or Mexicans who were employed as TN health care workers (in one of the seven professions listed below) before September 23, 2003 and who held a valid license from a U.S. jurisdiction before that date. For these individuals, the Health Care Certification requirement will be postponed until July 26, 2005.

There are now three categories of temporary healthcare workers, each with different documentation requirements:

	1)	Newbies – those healthcare workers coming to the U.S. for the first time will all require a Health Care Certificate in order to be admitted
	2)	Post-September 23, 2003 Workers – those who managed to enter the US in temporary status before July 26, 2004 may continue in valid work-authorized status through the expiration of their current stay – or until July 26, 2005 [whichever comes first]. However, they may not re-enter after a departure, or extend their current status without the appropriate Health Care Certificate.
	3)	Pre-September 23, 2003 Workers – the beneficiaries of this most recent waiver extension may continue to flow back and forth across the U.S. border and extend their status WITHOUT a Health Care Certificate until July 26, 2005. In order to be re-admitted or extend their status during this transitional year, such workers must prove the three key eligibility elements:   a) Canadian or Mexican Citizenship   b) Present in the US in nonimmigrant healthcare worker status before 23 Sept 03   c) Licensed in a State before 23 Sept 03

The regulations state that “Evidence may include, but is not limited to, copies of TN or TC approval notices, copies of Form I-94 Arrival/Departure Records, employment verification letters and/or pay-stubs or other employment records, and state health care worker licenses.” Other alternatives may include: Entry stamp in passport with “TN” or “TC” notation; I-9 employment authorization verification form; printout from the NIIS [Non Immigration Information System] database.

Health care workers affected by this certification requirement include nurses (licensed practical nurses, licensed vocational nurses, and registered nurses), physical therapists, occupational therapists, speech-language pathologists and audiologists, medical technologists (clinical laboratory scientists), medical technicians (clinical laboratory technicians), and physician assistants

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Immigration Processing Time Reports

California Service Center (last updated 8/10/2004)
Nebraska Service Center (last updated 8/10/2004)
Texas Service Center (last updated 8/10/2004)
Vermont Service Center (last updated 8/10/2004)


The Visa Bulletin was updated on July 13, 2004 for August 2004

Thank you for taking the time to read this E&M Visa Update.

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