Rachel Huan Kao's Archived Articles
Immigration
News
July 2004
Pending Legislation
Broad legislation pending that is positive for the immigration community:
1) Safe, Orderly, Legal Visas and Enforcement (SOLVE) Act of 2004; 2)
Civil Liberties Restoration Act of 2004; 3) Immigration Reform Act of
2004; and 4) Agricultural Job Opportunity, Benefits, and Security Act
of 2003. Of the four bills, AgJOBS, the last, is the least helpful to
the immigrant community at large, and the most likely to be enacted. It
is expected to be enacted prior to November, in time for the election.
I will update these bills next month, and provide more information on
the status of any legalization programs expected in the near future.
Registered Traveler
Pilot Program
Transportation Security Administration, in conjunction with leading commercial
airlines and airports, will implement a pilot program for frequent travelers
(those who fly at least once a week) where they will be pre-screened for
security. These Registered Travelers will submit their names, address,
phone numbers, and dates of birth along with biometric imprints (fingerprint
and iris) so that their personal and identifying information can be checked
against law enforcement and intelligence data sources and outstanding
criminal warrants. Registered Travelers in the pilot program will be able
to bypass secondary inspection and proceed to primary inspection once
they have been enrolled in the pilot program. All travelers are eligible
for the pilot program, regardless of immigration status, and there is
no fee during the pilot program. At each inspection, Registered Travelers
will provide their biometric information to confirm identity. This process,
once in place, should expedite security inspections for Registered Travelers.
State Department to
terminate visa revalidations
The State Department will not accept any more applications to revalidate
visas for individuals in C, E, H, I, L, O, and P nonimmigrant status after
July 16, 2004. Cases submitted for visa revalidation must expire within
60 days of application, and applicants must have a current visa in their
passport in the same nonimmigrant category in order to be eligible for
revalidation on or before July 16, 2004. Applications for visa revalidation
must be received by State Department on or before July 16, 2004. Certain
diplomatic visas will continue to be revalidated in the US. This change
is a result of a requirement that all nonimmigrant visas issued after
October 26, 2004 must possess digital biometric information.
H-1B Cap Gap Notice
For those F-1 students with D/S whose F-1 status (including the 60 day
grace period) will terminate prior to October 1, 2004, the date that H-1B
status becomes available to them, the Department of Homeland Security
has recommended that those in F-1 status with D/S who are beneficiaries
of H-1B petitions be permitted to change their status in the US from F-1
to H-1B without leaving the country. This was done when the H-1B visas
ran out in previous years, but has not been formally implemented to date.
H-1B usage towards
FY 2005 cap
As of May 31, 2004, CIS has received 16,100 pending or approved H-1B petitions,
toward the FY2005 cap of 65,000 cases. Petitioners and beneficiaries who
wish to avail themselves of H-1B visa status for the FY2005 before they
run out should submit petitions as soon as possible to secure an opportunity.
Please remember that the Singapore and Chile H-1B’s will also be
carved out of this year’s H-1B cap.
Labor Certification
Applications
I have received many questions in the past few months from individuals
whose employers have pending labor certification applications are experiencing
more scrutiny than ever due to changes in the economy. Some cases may
have additional recruitment requirements depending on when they were filed,
and the initial recruitment results. The Department of Labor has indicated
that as the condition of the economy changes, their requirements will
fluctuate. For instance, if the economy was strong at the time of recruitment
and filing, and the recruitment requirements in existence at that time
were met, but by the time the case gets reviewed, the economy has changed,
new recruitment requirements may have been implemented and applicants
will have to meet these new requirements. Employers and employees with
pending labor certification applications should be prepared to re-advertise
the jobs and interview a new batch of applicants in order to qualify for
labor certification.
USCIS strategy to
eliminate backlogs
The CIS has implemented a 3-objective plan to eliminate the current backlog
of 3.7 million cases. The three objectives are: 1) Establish clear, concrete
milestones, and oversee progress towards these milestones; 2) Use information
technology improvements such as new biometrics data to transform business
practices, and identify means to improve current processes; and 3) Institute
comprehensive quality assurance measures. The goal is to eliminate the
backlog of 3.7 million cases in the next three years.
While many of the
procedures suggested have been long-awaited, one procedure, to “eliminate
the practice of unnecessarily requesting additional evidence from applicants
for immigration services and benefits” is very troubling. As a practitioner,
I often encounter unnecessary RFE’s (requests for additional evidence)
such as a request for a document previously submitted. However, this strategy,
as illustrated by the Service Center’s announcement that they will
not be issuing RFE’s except in cases where a straightforward piece
of evidence is missing, means more cases will be denied upon first review,
without giving the applicant or petitioner an opportunity to submit additional
evidence to support and document the validity of the case. While this
may expedite the backlog situation, this will surely reduce the approval
rate, greatly frustrating applicants and petitioners.