E&M Visa Update for October 7, 2004

H-1B Cap Reached for Fiscal Year 2005; TN, J, O, E, H2B and L Alternatives until 1 Oct 05

Visa Waiver Overstayers and Those Without Machine-Readable Passports May be Given One-Time Leniency in Entering the U.S.

House Approves Extension of Expanded Conrad 30/J-1 Waiver Program for Foreign Doctors

InfoPass Appointment System Now Operative At All 33 CIS District Offices; Walk-ins Discouraged; Underlying Problems Still Require Attention

Green Card Lottery Application Period Announced: 5 Nov 04 – 7 Jan 05

DOS Website Adds Inaccurate Feature to Help in Planning for Visa Applications

Biometric Identification Technology Now Operating in Every CBP Border Patrol Station

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H-1B Cap Reached for Fiscal Year 2005; TN, J, O, E, H2B and L Alternatives until 1 Oct 05

The U.S. Citizenship & Immigration Service has announced that on October 1, 2004, the first day of fiscal year 2005, sufficient H-1B visa petitions to meet the congressionally mandated cap of 65,000 for FY05 had been received. All cap-subject cases received after the end of the business day October 1 will be returned.

Petitions for first-time H-1B employment ARE subject to the cap. NOT subject to the annual cap are petitions on behalf of individuals already in H-1B status, who are seeking extensions of stay or a change of employer. Also exempt from the cap are petitions by institutions of higher education, and nonprofit research organizations.

Unless and until Congress acts to increase the H-1B cap, U.S. employers will be unable to hire new H-1B employees for one year. The earliest date that an H-1B petition requesting a start date of October 1, 2005 may be filed is April 1, 2005.

Alternatives to the H-1B visa for new hires during this interim period will include: TN Trade NAFTA professionals (Canadian and Mexican citizens only), J-1 Practical Trainees, O-1 Outstanding Individuals, E-2 Treaty Investor employees (limited list of qualifying countries) and L-1 IntraCompany Transferees (prior employment with related company abroad required). H-2B Temp/Seasonal Workers may be an option for some employers, but be advised that the FY05 quota on this category is likely to run out by perhaps as early as February, 2005.

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Visa Waiver Overstayers and Those Without Machine-Readable Passports May be Given One-Time Leniency in Entering the U.S.

The U.S. Customs & Border Patrol (CBP) recently announced that it will consider granting a one-time “parole” entry into the U.S. to no-risk visitors who overstayed under the Visa Waiver Program on a prior visit.

The Visa Waiver Program allows citizens of certain countries to enter the U.S. without a visa for business or pleasure, and to stay for up to 90 days. Under this program, individuals who stay beyond the authorized 90-day visit must obtain a visa for subsequent visits to the U.S.

An individual who overstayed a previous visit under the Visa Waiver Program and who attempts to enter the U.S. again without a visa has often faced being detained, sometimes overnight, until a flight home is available, and handcuffed while transported to and from a detention facility. This new authorization for the use of parole discretion by CBP officers may avoid the detention of prior violators, which the CBP believes is inappropriate for travelers posing no threat to the U.S.

REMINDER: Effective October 26, 2004, visa waiver travelers from all 27 visa waiver program countries must present either a machine-readable passport or a valid U.S. machine-readable visa in order to visit the U.S. Visa waiver travelers without a machine-readable document MAY be paroled on the first attempted entry under the same discretionary authority mentioned above.

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House Approves Extension of Expanded Conrad 30/J-1 Waiver Program for Foreign Doctors

The House Judiciary Committee recently approved H.R. 4453, which will reauthorize and extend by two years the Conrad State 30/J-1 Visa Waiver program. The Conrad program permits state departments of health to authorize the annual hire of up to 30 foreign physicians to practice in medically underserved rural or inner-city communities.

The physicians, who have completed U.S. medical residency programs under the J-1 visa program, are granted waivers of the requirement that they return to their home countries for two years. This waiver enables them to remain in the United States after completing their residencies, provided they commit to practice medicine for three years in underserved areas. H.R. 4453 reauthorizes the program for two years, exempts these foreign physicians from the annual cap on new H1-B temporary work visa petitions, and extends permissible practice from primary care to specialty medicine. The bill is expected to go to the House floor next week, when the Senate Judiciary Committee is expected to move on companion legislation (S. 2302) as well.

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InfoPass Appointment System Now Operative At All 33 CIS District Offices; Walk-ins Discouraged; Underlying Problems Still Require Attention


InfoPass - the internet-based appointment system that is replacing walk-in public access at CIS offices nationwide - is now operative at all 33 district offices. Walk-ins are discouraged, except for certain emergencies.

InfoPass has eliminated the traditional lines of people outside the district offices, and permits both CIS and its stakeholders to better organize themselves, which is major progress. However the availability of internet access, helpful personnel, walk-in appointments, accompaniment by family members, attorney and cashier access differ from office to office.

InfoPass can be found by visiting www.uscis.gov, followed by clicking on InfoPass at the home page. Although CIS has installed computer kiosks in the lobby in a few districts, most people are directed elsewhere to find the internet access necessary for scheduling.

The system encourages use of the CIS website to check case status online without an appointment, advertises website availability of immigration forms and e-filing (I-90 and I-765), and directs users to the customer service number (800-375-5283), at which inexperienced personnel read from scripts. However, address changes for CIS Service Centers are efficiently reported through the customer service line.

The InfoPass appointment seeker chooses a type of appointment, then inputs name data, date of birth, zip code and a phone number in order to obtain a choice of appointment slots. Applicants are directed to appear at the district office with identification and a copy of the InfoPass appointment notice.

The zip code-based system insists on scheduling a person at the CIS office closest to the residence address provided, even when the individual’s file might reside in another district or the scheduled office may lack authority to perform the function sought.

Confusion within CIS that existed before InfoPass installation continues to infect the process. Districts now lack the authority to perform many of the functions that were offered in the past, while issues over what can / must be filed in-person or by mail, and at what office [district vs regional; which regional] remain confusing.

Other district office issues that pre-existed InfoPass still require attention, such as failure to retrieve files, recent hires with limited knowledge, and provision of misinformation.

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Green Card Lottery Application Period Announced: 5 Nov 04 – 7 Jan 05

Applications for the 2006 Diversity Visa (DV) Lottery will be accepted between November 5, 2004 and January 7, 2005 online at www.dvlottery.state.gov.

The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State, and makes available 50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States. Diversity Visa entries are chosen by a computer-generated random lottery drawing. The visas, however, are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to persons born in countries sending more than 50,000 immigrants to the U.S. in the past five years.

For DV-2006, natives of the following countries are NOT eligible to apply because they sent a total of more than 50,000 immigrants to the U.S. in the previous five years: CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, EL SALVADOR, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PHILIPPINES, RUSSIA, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.

Persons seeking to apply must register electronically online through the designated Internet website, www.dvlottery.state.gov. during the registration period. The 2006 Diversity Visa Lottery marks the second year that electronic registration is required. Paper entries and mail-in requests for Diversity Visa Lottery registration are not accepted.

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DOS Website Adds Inaccurate Feature to Help in Planning for Visa Applications

The Department of State has recently added a feature to its website which provides information on interview appointment availability and waiting times for visa processing at each individual post: http://travel.state.gov/visa/tempvisitors_wait.php.

With the unfortunate demise of the Visa Revalidation Program (allowing for visa applicants to renew a visa in the U.S. by mail), most visa applicants now must apply in person at a U.S. Consulate in their home country. Significant delays have arisen at most posts around the world for a visa interview, which now includes fingerprinting and a photograph.

Please note that the waiting times listed by DOS are average times, and in some cases, they have been found to be very inaccurate. Please see the DOS website on instructions for scheduling an interview at a particular post, and be sure and visit that post’s site for more up to date information.

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Biometric Identification Technology Now Operating in Every CBP Border Patrol Station

The U.S. Department of Homeland Security (DHS) announced last week that integrated ten-print biometric identification technology is operating in every U.S. Customs and Border Protection Border Patrol station throughout the country. Previously, the Border Patrol only had access to its own two-print IDENT system, which provided faster printing and recall than the FBI’s ten-print system, but which was not integrated with the FBI. Many criminals slipped through the hands of the Border Patrol, most notoriously Angel Resendez, the serial “Railroad Killer” (9 alleged murders) and Victor Batres (raped two nuns in Oregon and killed one of them). For details of this inexcusable incompatibility, see: www.washingtonpost.com/wp-dyn/articles/A39114-2004Mar7.html

This new capability allows Customs and Border Protection Border Patrol agents to simultaneously search the FBI’s fingerprint database. The Integrated Automated Fingerprint Identification System (IAFIS) and DHS’s Automated Biometric Identification System (IDENT) can now identify individuals’ outstanding criminal warrants through electronic comparison of ten-print digital fingerscans against a nationwide database of previously obtained fingerprints.

The IDENT/IAFIS program began as a pilot in August 2001, but only last week became fully operational within all 148 Border Patrol stations. DHS is still in the process of deploying the system to all 115 air and sea ports of entry, and the busiest 50 land border ports of entry by November 15, 2004.

Finally, driven by anti-terrorism concerns, previously invisible criminal aliens are coming to the attention of the government. According to a recent CBP press release, as a result of IAFIS technology, Border Patrol agents have arrested 138 homicide suspects; 67 kidnapping suspects; 226 sexual assault suspects; 431 robbery suspects; 2,342 suspects for assaults of other types; and 4,801 suspected traffickers of narcotics.

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The Visa Bulletin was updated on October 7, 2004 for October 2004

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

Elliot & Mayock LLP
Immigration Attorneys
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Washington, DC 20006-1643
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