Maiona & Maiona, P.C. - Immigration Update

May 26, 2004 – A visa interview is required for most nonimmigrant visa applicants. This has already led to serious backlogs at many consular posts around the world. This backlog only gets worse during the summer months. You should anticipate a delay in the issuance of your visa at most posts due to the post-9/11 security implementations and visa interview requirement. Background checks of visa applicants can take weeks, if not months, depending on the country of nationality, employment history, educational history and travel history. Please note however, that visa waiver nationals may still enter the United States without a visa and interview.

Foreign nationals, who are nonimmigrant visa holders or advance parole holders, must also be certain to document their status and be certain they have the appropriate immigration documents to return to the United States. Current and valid visas, passports and advance paroles are a must for entry to the United States.

Note – Advanced Paroles and Employment Authorization Documents are taking much longer than usual. Advance Paroles should be filed six months in advance with the USCIS service center and Employment Authorization Documents should be filed 120 days in advance of the expiration date.

May 20, 2004 – USCIS announced that it will soon begin issuing a new version of the Employment Authorization Document (“EAD”). The new EAD’s will contain certain design changes and new security features to eliminate fraud. USCIS will start issuing the new EAD cards in June of 2004.

May 4, 2004 – USCIS Associate Commissioner William Yates issued a memo on May 4, 2004 that USCIS officers may in some circumstances deny applications without first issuing a request for evidence (“RFE”). The associate commissioner noted two circumstances where this type of denial without RFE would likely happen: (1) where the applicant is clearly ineligible for the benefit requested; and (2) where the applicant has submitted a complete copy of necessary information but has not met the burden to establish eligibility for the benefit.

May 4, 2004 – USCIS Associate Commissioner William Yates issued a memo regarding an employer’s ability to pay determinations in employment-based immigrant cases (I-140) and the issuance of requests for evidence (“RFE”). This memo was issued to augment the above memo and discusses when an adjudicator should issue an RFE based upon the employer’s ability to pay the wage on the I-140. An RFE should be issued: (1) when the date the employer was established is not listed on the I-140; or (2) when the I-140 package does not contain the employer’s annual report, tax return or audited financial statement.

The associate commissioner also addressed decisions made by the adjudicator on the record. If the record is complete and one of the financial items above has been submitted, then the adjudicator may deny the I-140 without issuing an RFE requesting additional evidence for ability to pay the wage. The decision is under the discretion of the adjudicator.

April 30, 2004 – USCIS announced that filing fees for most immigration-related petitions will increase starting on April 20, 2004. A complete list of the new filing fees can be found at the USCIS website - http://uscis.gov/graphics/formsfee/forms/index.htm .

April 23, 2004 – USCIS Associate Commissioner William Yates issued a memo on April 23, 2004 where an applicant files for a petition extension, previous eligibility determinations (I.E. approvals) should be given deference and not revisited. The associate commissioner gave three circumstances when previous approvals should not be given deference and can be revisited: (1) material error in previous approval; (2) substantial change in circumstances; and (3) new material information that adversely affects eligibility.

March 31, 2004 – USCIS Director of Service Center Operations Fujie Ohata issued a memo dated March 31, 2004 stating that in cases where I-140 Immigrant Visa Petitions and I-485 Applications to Adjust Status are filed concurrently, the two forms will be adjudicated concurrently based upon the local I-140 processing time and not the local I-485 processing time. Therefore, the receipt date on the I-140 is controlling for processing time in concurrently filed cases. This directive is to take effect as of April 30, 2004.

March 1, 2004 - USCIS has announced a time table for the processing of adjustment of status applications for asylees. Since only 10,000 asylees may adjust their status to Lawful Permanent Resident each year, and the USCIS receives 15,700 – 28,200 applications each year, as of March 1, 2004 approximately 160,000 asylee adjustment applications were pending. USCIS released a time table covering the next 11 years on when asylees may expect to receive their residency. This table may be found at http://uscis.gov/graphics/fieldoffices/nebraska/asyleeadj.htm .

February 18, 2004 – USCIS announced that they have reached the H-1B cap for Fiscal Year 2004 as of February 18, 2004. On April 1 2004, USCIS will accept new H-1B applications for Fiscal Year 2005. The start date for these new FY 2005 H-1B visas cannot be any earlier than October 1, 2004. USCIS will continue to accept H-1B cases that are not subject to the numerical cap; for example, changes in employment, extensions and the like.

April 2, 2004 – The Department of Homeland Security and the Department of State announced that all Visa Waiver Program (“VWP”) participants will be subject to the US-VISIT entry-exit system by September 30, 2004. Currently, the US-VISIT program which was initiated on January 5, 2004, takes biometric information from visitors who enter the US for business or pleasure. The information includes a digital photo, digital fingerprinting and the scanning of travel documents by a Customs and Border Protection Inspector at the port of entry. The information is used to check the visitor’s identity and scanned against law enforcement and security lookout lists. While US-VISIT is being employed upon entry at most ports, there are only two pilot programs requiring exit registration currently: the Baltimore-Washington International Airport and the Miami, FL seaport. Visitors must register their exit if exiting the US through these two ports.

May 14, 2004 – The Department of State Visa Office states that due to Chinese government action which resulted in the closure of the visa information and appointment call center, consular posts in China are unable to schedule appointments for visa interviews. After April 23, 2004, applicants will likely no longer be able to make visa appointments and will be seen on a first come first serve basis. The dates for this process going into affect will vary. Please check with the individual consulates at http://usembassy.state.gov/ . Negotiations are ongoing with the Chinese government for the reopening of the call center.

January 1, 2004 - The United States entered into free trade agreements (“FTA”) with Singapore and Chile which tool effect on January 1, 2004. Both FTA’s contain provisions that will allow the temporary entry of businesspersons into the territory of the trading partners. One of the new categories created by the FTAs is the H-1b1 for nonimmigrant professionals from Chile and Singapore. Chilean and Singaporean nationals will now be able to apply at US consulates around the world directly for an H-1b1 visa. They would have to meet the “specialty occupation” definition and certain other requirements. The H-1B1 under the FTAs is limited to 1,400 professionals from Chile and 5,400 professionals from Singapore.

From the Department of State – Bureau of Consular Affairs – Visa Services:

May 26, 2004 – The June 2004 visa bulletin has been published by DOS. There are no significant changes in the visa numbers from last month. See below and also http://www.travel.state.gov/visa_bulletin.html :

Priority Dates for Family Based Immigrant Visas – June 2004
	All Chargeability Areas Except Those Listed	INDIA	MEXICO	PHILIPPINES
Family
1^st	22OCT00	22OCT00	15OCT94	15JUL90
2A*	08DEC99	08DEC99	01JUN97	08DEC99
2B	15JUN95	15JUN95	15JAN92	15JUN95
3^rd	15OCT97	15OCT97	08MAR95	01MAR90
4^th	08JUL92	15MAY91	08JUL92	22MAR82

*NOTE: For June, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01JUN97. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01JUN97 and earlier than 08DEC99. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers".

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

May 13, 2004 – The H-2B labor certification cap of 66,000 visas for FY 2004 has been met. Any employer, who desires to employ an H-2B worker with a start date of October 1, 2004 or after, must file a new ETA 750, Part A with a new labor market test with the Department of Labor on or after June 1, 2004.