Immigration Lawyers Blog

On January 24, the Department of State's Office of Passport Services implemented a 90-day pilot program allowing for on-line U.S. passport card applications. The U.S. passport card is a wallet-sized passport that serves as a lower cost alternative to a passport book as it is only $30. However, it is not valid for international air travel and is limited to land and sea travel to and from Canada, Mexico, the Caribbean, and Bermuda. The pilot program allowing for on-line passport card applications is available to adult U.S. citizens living in the United States and Canada who currently possess a valid 10 year U.S. passport book. It is intended to save applicants both time and money as applicants can now submit their application on-line by uploading a digital photo and making an on-line payment rather than having to mail in the requisite documents. To apply for the passport card using the online application, visit travel.state.gov.

On January 19, 2012, President Obama issued an executive order establishing visitor visa processing goals and a Task Force on Travel and Competitiveness. The goal is to promote travel and tourism which will, in turn, create jobs and stimulate economic growth in the U.S. The travel and tourism industry ranks as one of our country's leading service sectors and sources of exports, but the U.S. market share in this lucrative industry has dropped from 17 percent to 11 percent over the last 10 years. The decline is a result of a combination of factors, including greater international competition, changes in global development, and stricter security measures folllwing 9/11.

The new executive order seeks to improve current visitor visa processing by implementing the following goals:

(i) increase nonimmigrant visa processing capacity in China and Brazil by 40 percent over the coming year;

(ii) ensure that 80 percent of nonimmigrant visa applicants are interviewed within 3 weeks of receipt of application, recognizing that resource and security considerations and the need to ensure provision of consular services to U.S. citizens may dictate specific exceptions;

(iii) increase efforts to expand the Visa Waiver Program and travel by nationals of Visa Waiver Program participants; and

(iv) expand reciprocal recognition programs for expedited travel, such as the Global Entry program.

To view President Obama's executive order in full, see http://www.whitehouse.gov/the-press-office/2012/01/19/executive-order-establishing-visa-and-foreign-visitor-processing-goals-a

USCIS has issued a new list designating the countries whose nationals are eligible to participate in the H-2A and H-2B programs. The H-2A and H-2B visa categories permit U.S. employers to bring foreign workers to the U.S. to fill temporary and/or seasonal agricultural jobs (H-2A) and nonagricultural jobs (H-2B). Effective January 18, 2012, nationals from the following 58 countries are eligible to participate in the H-2A and H-2B programs: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Haiti, Honduras, Hungary, Iceland, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Montenegro, Nauru, the Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Spain, Switzerland, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay and Vanuatu. Five new countries were added to the list this year, including Haiti, Iceland, Montenegro, Spain and Switzerland. The country designation is valid for one year and nationals from countries not designated on the list may still obtain an H-2A or H-2B approval if USCIS deems it to be in the interest of the U.S.

On January 6, 2012, the Department of Homeland Security (DHS) announced plans to implement changes to the processing of unlawful presence waivers for certain immediate relatives of U.S. citizens. The current procedure requires those who have been unlawfully present in the U.S. to return to their home country to consular process their immigrant visas. Howerver, individuals who have been unlawfully present in the U.S. for more than 180 days will trigger a 3 or 10 year bear to re-entry upon departure. Those subject to the bar can apply for unlawful presence waivers in their home country by showing that the bar would be an extreme hardship to their U.S. citizen spouse or parent, but the adjudication of such waivers can take weeks, months, or years. Under the new proposed regulations, individuals will be able to apply for the waiver of unlawful presence while remaining in the U.S. which will reduce the period of waiting and separation. If found qualified, the individual will be granted a provisional waiver and will still be required to depart the U.S. for consular processing of their immigrant visa. At the time of the consular interview, the provisional waiver will be applied and the immigrant visa will be granted assuming there are no other grounds of inadmissibility. The newly proposed procedure will only apply to immediate relatives of a U.S. citizen spouse or parent and to those who are subject to the 3 or 10 year bar for unlawful presence. Family members of lawful permanent residents or those without a qualifying relationship to a U.S. citizenship spouse or parent will not be able to benefit from the new procedure. Likewise, individuals seeking waivers for other grounds of inadmissibility will still be required to depart the U.S. in order to apply for a waiver. Please note that the new waiver process will not be made effective until DHS publishes the proposed regulations and the final rule is issued.

The new visa bulletin is out at this link: http://travel.state.gov/visa/bulletin/bulletin_5640.html. The most significant movement can be seen in the employment-based 2nd preference category (EB-2), i.e. members of professions holding advanced degrees or persons of exceptional ability, for India and China. The EB-2 category for India and China has jumped from January 1, 2009 to January 1, 2010.

The employment-based categories are as follows: EB-1 remains current for all countries; EB-2 remains current, except for India and China (Jan. 1, 2010); EB-3 is at February 22, 2006 for all countries, except for India (Aug. 15, 2002) and China (Dec. 1, 2004); EB-3 other workers is at February 22, 2006 for all countries, except India (Aug. 15, 2002), China (April 22, 2003); EB-4, religious workers, EB-5, and targeted employment areas and regional centers are all current. Family based petitions are backlogged, with the most recent date at June 8, 2009 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) of Nov. 1, 1988.

As of January 1, 2012, the U.S. Consulate General in Chennai is no longer processing Immigrant Visa petitions. The U.S. Embassy in New Delhi and U.S. Consulate in Mumbai will be the only consular posts in India accepting Immigrant Visa applications. Individuals who are currently in the process of applying for an Immigrant Visa at the U.S. Consulate in Chennai are advised to contact ChennaiIVU@state.gov for further details and instructions.

Please also note that visa processing in India has becoming increasingly subject to administrative delays. When applying for a visa, an applicant may encounter unforeseen and undetermined delays due to additional administrative processing. The admininstrative delays may be on account of name checks, security clearances, or review of petition information. Applicants are therefore advised to be prepared and plan accordingly for these possible adminstrative delays.

Many make the argument that illegal immigrants are a burden to the system because they don't pay taxes. However, illegal immigrants actually contribute billions of dollars annually to the Social Security Administration from the deductions taken on their paychecks. The most recent figures from Social Security show that employers in 2009 reported wages of $72.8 billion from workers who could not be matched to legal social security numbers in their system. The majority of these unmatched numbers are believed to belong to illegal immigrants. Jeannie Economos of the Farmworker Association Florida, states the following:

"When you hear people voicing anti-immigrant sentiments, one of the first things they say is, 'They don't pay any taxes, and they just take money out of the system . . . But that just isn't true. Yes, some are paid under the table, but the majority are paid by check, and they pay taxes out of those checks."

But unlike other workers who contribute to Social Security with the hopes of benefiting from it in the future, these illegal immigrants will not likely be in a position to make a claim or derive any benefit from their contributions. To see the article on this matter in full, please see http://seattletimes.nwsource.com/html/nationworld/2017113852_immigtaxes29.html.

USCIS offers free live webinars on topics relating to the E-Verify program, including information on how to maintain a legal workforce, Form I-9, and employment eligibility. E-Verify allows participating employers to verify employment eligibility of workers by comparing the data provided on the Form I-9 against the Department of Homeland Security (DHS) and Social Security Administration (SSA) databases. The webinars are live interactive seminars presented over the internet where participants can attend from any locale and ask questions. The topics on the January 2012 Webinar schedule are as follows:

Form I-9 Webinars: Get an overview of the Form I-9 process, including step by step instructions on how to complete each section, retention and storage.

E-Verify for Existing Users:A detailed review of E-Verify specifically for existing users. Topics include Form I-9, user roles, case alerts, how to handle a Tentative Nonconfirmation,
and common user mistakes.

E-Verify Overview: Learn how this free service works, how to enroll, employer responsibilities, program highlights, and see a demonstration.

E-Verify for Federal Contractors: Information for Federal contractors that have been or will be awarded a Federal contract with the FAR E-Verify Clause.

Self Check: An overview of the new “Self Check” program - a voluntary, fast, free and simple service that allows individuals to check their own employment eligibility.

For the specific times and dates, as well as information on how to participate, see www.dhs.gov/E-Verify and click on "Take a Free Webinar."

The immigration legislation, bill H.R. 3012, the Fairness for High Skilled Immigrants Act, which would place an end to per-country caps on worker-based immigration visas has reached a road block. The bill passed with overwhelming support in the House in November, but has been put on hold by Senator Charles Grassley (R-IA) who has blocked the bill from coming to a vote in the Senate. Under the proposed legislation, the number of allotted immigrant visas would remain the same, but the elimination of the per-country cap (9,800 per country) would mean that permanent residence visas would be awarded on a first-come, first served basis. Skilled workers from countries such as India and China would benefit as they are currently subject to the longest waits.

Senator Grassley stated that he has placed the bill on hold due to his concerns about “future immigration flows” and the impact it may have on Americans seeking high-skilled jobs in the U.S. Unless substantial changes are made to the bill, he does not plan on removing his hold. Since the legislation needs to be approved by the Senate and then signed into law by the President, we will have to continue to wait and see as the fate of the bill appears to currently lie in the hands of this one Senator.

The new visa bulletin is out at this link: http://www.travel.state.gov/visa/bulletin/bulletin_5630.html. Employment-based categories are as follows: EB-1 remains current for all countries; EB-2 remains current, except for India and China (Jan. 1, 2009); EB-3 is at February 1, 2006 for all countries, except for India (Aug. 8, 2002) and China (Oct. 15, 2004); EB-3 other workers is at February 1, 2006 for all countries, except India (Aug. 1, 2002), China (April 22, 2003); EB-4, religious workers, EB-5, and targeted employment areas and regional centers are all current. Family based petitions are backlogged, with the most recent date at April 22, 2009 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) of Oct. 8, 1988.

Effective December 6, 2011, the Department of State has implemented changes to the Schedule of Fees for Consular Services for nonimmigrant visa and border crossing card application processing fees. These changes include the following:

• Increase of $131 to $140 for the fee charged for the processing of an application for most non-petition-based nonimmigrant visas (Machine-Readable Visas or MRVs) and adult Border Crossing Cards (BCCs)

• New tiers of the application fee for certain categories of petition-based nonimmigrant visas, including treaty trader and investor visas

• Increase from $13 to $14 for the BCC fee charged to Mexican citizens under age 15 who apply in Mexico, and whose parent or guardian already has a BCC or is applying for one

The Schedule of Fee for Consular Services is as follows for Nonimmigrant Visa Services:

Nonimmigrant visa and border crossing card application processing fees (per person):

(a) Non-petition-based nonimmigrant visa (except E category): $140
(b) H, L, O, P, Q and R category nonimmigrant visa: $150
(c) E category nonimmigrant visa: $390
(d) K category nonimmigrant visa: $350
(e) Border crossing card--age 15 and over (valid 10
years): $140
(f) Border crossing card--under age 15; for Mexican
citizens if parent or guardian has or is applying for a
border crossing card (valid 10 years or until the
applicant reaches age 15, whichever is sooner): $14

On November 30, 2011, the House passed immigration legislation that would end per-country caps on worker-based immigration visas. The vote, 389-15, was in favor of a measure that would change the law governing employment-based visas which currently states that any one country cannot exceed 7 percent of the total number of allotted immigrant visas. Currently, the law provides 140,000 green cards annually to employment-based immigrants, but the per country cap of 7% (i.e. 9,800 per country) means that countries like India and China with over a billion population are limited to the same number of visas as much less populated countries around the world. Instead, the new measure would award permanent residence visas or green cards on a first-come, first served basis. The elimination of the per-country cap would therefore particularly benefit skilled workers from India and China who currently face the longest backlogs in obtaining permanent residence visas. Sponsors of the bill, including many high-tech companies, believe that the new legislation will benefit the U.S. by encouraging highly skilled foreign workers to stay in the U.S. and use their skills towards strengthening the U.S. economy. Others, however, fear that it will result in overall backlogs in the employment-based categories as the number of allotted immigrant visas will remain the same. For now, it remains to be seen if this legislation will become law. Although the bill has passed the House, it still needs to be approved by the Senate and signed into law by the President.