LitwinLaw Newsletter 2/1/06

Headlines:

1. H-1B Exemption Cap Reached for FY 2006 - H-1B numbers for those with U.S. master's degrees have run out; new H-1B petitions for employment beginning on or after October 1, 2006, will be accepted beginning on April 1, 2006.

2. New Alternate Definition of 'American Firm or Corporation' Adopted – A permanent resident spouse of a United States Citizen stationed abroad by an American firm or corporation may, under certain circumstances, become a United States Citizen under an expedited process. In addition, a permanent resident who is married to a United States Citizen may file an application to preserve residence for naturalization purposes if the U.S. Citizen is stationed abroad by an American firm or corporation. Recently, USCIS issued guidance on the definition of "American firm or corporation."

3. Long-Awaited Guidance Released on Eligibility, Document Requirements for E-3 Changes or Extensions of Status – In a special agreement between the United States and Australia, certain Australian professionals may enter the United States in a new "E-3" status. This is very similar to the H-1 category, however, there is currently no backlog for E-3 numbers as there is for H-1 numbers. USCIS recently issued guidance on the eligibility requirements and documentation that is needed.

4. USCIS Instructs on Requests for Rescheduling Interviews, Failure to Appear Often, persons who have been scheduled for interviews at USCIS do not receive the notices of interview or may be traveling on the day of the interview. This is especially problematic with professionals who travel regularly in the course of their work. USCIS recently released guidance on requests for rescheduling interviews and handling the failure to appear for a scheduled interview.

5. Homeland Security Plans New PASS Card for Border Crossings Certain Canadians and Mexicans will benefit from a program which will ease their entry into the United States.

6. US-VISIT Biometric Capabilities Fully Operational; GAO Issues Report- The US-VISIT biometric security program is now operational in 115 airports, 14 seaports, and 154 land-based ports of entry in the United States, and a pre-screening capability is operational in visa issuance offices.

Also in this issue:

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Details...

1. H-1B Exemption Cap Reached for FY 2006

In a recent email, we noted that H-1B numbers for those with U.S. master's degrees could run out by mid-January. That has now happened. U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough H-1B petitions for fiscal year (FY) 2006 that qualify for the exemption from the H-1B numerical limitation of 20,000 for foreign workers with a U.S.-earned master's or higher degree. Petitions received on January 17, 2006, the "final receipt date," are subject to a random selection process. USCIS will reject petitions received after that date, and will return them along with the filing fees, unless the petitioner or beneficiary is eligible for a separate cap exemption.

Employers may resubmit their petitions when H-1B visa numbers become available for FY 2007 on April 1, 2006, for petitions requesting an employment start date of October 1, 2006, or later.

Petitions to extend status for current H-1B workers do not count toward the cap. Accordingly, USCIS will continue to process petitions filed to allow current H-1B workers to extend the amount of time they may remain in the U.S., change the terms of their employment, change employers, or work concurrently in a second H-1B position. Petitions for new H-1B employment are exempt from the cap if the worker will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit or governmental research organization.

USCIS's announcement is available at

http://uscis.gov/graphics/publicaffairs/
newsrels/H1B_06Cap_011806PR.pdf.

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2. New Alternate Definition of 'American Firm or Corporation' Adopted

U.S. Citizenship and Immigration Services (USCIS) issued guidance on January 11, 2006, regarding the adoption of an alternate definition of "American firm or corporation" under the Immigration and Nationality Act (INA). The definition is used in applications to preserve residence for citizenship purposes and applications for expedited naturalization for spouses of U.S. citizens stationed abroad by an American firm or corporation.

INA section 316(b) defines what constitutes breaking the continuity of residence required to qualify for naturalization, with exceptions including employment by certain American firms or corporations abroad. USCIS's guidance states that a publicly held corporation may be deemed an "American firm or corporation" if the applicant establishes that the corporation is both incorporated in the U.S. and trades its stock exclusively on U.S. stock exchange markets. If the applicant is unable to establish by a preponderance of the evidence that the employer is both incorporated in the U.S. and trades its stock exclusively on U.S. stock markets, the nationality of the firm would be determined instead by the nationality of those who own 51 percent or more of the corporation. USCIS said that this reasoning also may be applied in determining the nationality of a publicly traded foreign corporation.

INA section 319(b) provides that spouses of U.S. citizens stationed abroad for an "American firm or corporation" may be naturalized without having to establish a period of residence or presence in the U.S. The three- or five-year waiting period is waived for these applicants.

While the guidance creates an "alternate" definition of American firm or corporation, it also clarifies that it is not enough to be incorporated in the U.S. if a majority of shareholders are not U.S. citizens.

USCIS's guidance is at http://uscis.gov/graphics/lawsregs/handbook/AdoptedDecAFM011106.pdf.

The guidance also comments on the standard of burden of proof and discusses USCIS General Counsel opinions regarding brief and casual absences for persons applying for naturalization.

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3. Long-Awaited Guidance Released on Eligibility, Document Requirements for E-3 Changes or Extensions of Status

U.S. Citizenship and Immigration Services (USCIS) issued guidance on January 6, 2006, on the eligibility requirements and documentation needed for workers wishing to change status to that of an E-3 worker or to extend their E-3 status. The new E-3 nonimmigrant classification, created by the REAL ID Act of 2005, allows for the admission of an Australian temporary worker to perform services in the U.S. in a specialty occupation. Nonimmigrants who are already in the U.S. may apply to change their status to that of an E-3 specialty worker.

USCIS said that, to qualify for E-3 classification, a worker must be an Australian national seeking employment in a specialty occupation requiring possession of a bachelor's degree or higher (or its equivalent), and possess the appropriate degree (or its equivalent) in the field in which the person wishes to work. E-3 nonimmigrant status is granted initially for a period of no more than two years; extensions of stay may be granted indefinitely in increments not to exceed two years.

Congress has established a yearly cap of 10,500 new E-3 workers. For purposes of the cap, "new E-3 workers" are those who, coming from abroad, are admitted initially in E-3 classification or those who change their nonimmigrant status to E-3 classification or change employers while in E-3 status. Unlike the dependent of a worker in the H-1B nonimmigrant classification, a separate and independent category, the dependent spouse of an E-3 temporary worker may apply for and receive work authorization.

Those already in the U.S. who wish to change their status to E-3 or to extend their E-3 status may do so by filing Form I-129, Petition for a Nonimmigrant Worker, with the Vermont Service Center. The fee is $190. In addition to the I-129, applicants must include: (1) proof of Australian nationality; (2) a letter from the prospective U.S. employer describing the worker's occupation, the worker's anticipated length of stay, and salary or remuneration arrangements; (3) evidence that the worker meets the educational requirements for the position to be filled (a bachelor's degree or higher or its equivalent in the specialty occupation); (4) evidence that the worker meets any licensing or other occupational requirements; and (5) evidence that the prospective U.S. employer has filed with the Department of Labor a labor condition application (LCA) specifically designated for E-3 specialty occupations. Employers must apply for LCAs online at http://www.lca.doleta.gov/. If you have a situation where an E-3 may be of benefit, please contact our office to help you navigate these complex evidentiary requirements.

USCIS's announcement appears at http://uscis.gov/graphics/publicaffairs/newsrels/E3_010606PR.pdf.

Processing guidelines for E-3 workers and spouses are available at http://uscis.gov/graphics/lawsregs/handbook/E3PolGdnc_121505.pdf.

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4. USCIS Instructs on Requests for Rescheduling Interviews, Failure to Appear

U.S. Citizenship and Immigration Services (USCIS) recently released field office guidance on evaluating requests for rescheduling interviews and handling the failure of an individual to appear for a scheduled interview. The memorandum notes that failure to appear for a scheduled interview generally results in denial of the application or petition. USCIS said that it recognizes that an individual may fail to appear "reasonably" because the agency received a change-of-address notification after the interview notice has gone out, or because the agency erred in processing the change of address. An applicant or petitioner also may demonstrate good cause for requesting that an interview be rescheduled "because of circumstances beyond the individual's control." The guidance is available at http://uscis.gov/graphics/lawsregs/handbook/NoShowIntrvw112305.pdf.

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5. Homeland Security Plans New PASS Card for Border Crossings

Homeland Security Secretary Michael Chertoff announced on January 17, 2006, the development of "a new, inexpensive secure travel card for land border crossings" that will meet the documentation requirements of the Western Hemisphere Travel Initiative but "not necessarily require people to have passports." "We're talking about essentially like the kind of driver's license or other simple card identification that almost all of us carry in our wallets day in and day out,'' he said.

The People Access Security Service (PASS) system card is expected to be targeted for use by those in border communities who regularly cross northern and southern borders. Secretary Chertoff said the PASS system is "an important first step in implementing a broader shared vision for a unified, user-friendly system for trusted travelers." He and Secretary of State Condoleezza Rice have been working together to establish a "global enrollment network that will unify our various registered traveler programs into a single comprehensive system." The idea is, he said, to get necessary information only one time from an applicant and create a system that allows both Homeland Security and Department of State officers to access the data to confirm a traveler's identity. Secretary Chertoff hopes to begin issuing PASS cards by the end of 2006, although they would not be required for an additional year.

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6. US-VISIT Biometric Capabilities Fully Operational; GAO Issues Report

The US-VISIT biometric security program is now operational in 115 airports, 14 seaports, and 154 land-based ports of entry in the United States, and a pre-screening capability is operational in visa issuance offices. Homeland Security Secretary Michael Chertoff noted that, since 2004, more than 970 individuals with suspected criminal or immigration violations have been intercepted by US-VISIT. Since January 2004, US-VISIT reportedly has processed more than 44 million visitors, which makes the program the largest-scale application of biometrics in the world, according to Government Technology. US-VISIT currently applies to all nonimmigrant visitors (with limited exemptions), regardless of country of origin. Under the program, a border officer takes a digital photograph of the traveler and uses an inkless, digital finger scanner to capture two fingerprints.

The U.S. Government Accountability Office's new report, "Homeland Security: Visitor and Immigration Status Program Operating, But Management Improvements Are Still Needed," acknowledges that US-VISIT has met a number of legislative mandates, but notes that the program's relationship with other closely allied initiatives and programs remains unclear, and its cost-versus-benefit return on investment has yet to be determined. As of October 2005, the GAO notes, approximately $1.4 billion has been appropriated for the program and $962 million has been obligated to acquire, develop, deploy, operate, and maintain US-VISIT entry capabilities and to test and evaluate exit capability options.

The GAO report is available at http://www.gao.gov/new.items/
d06318t.pdf
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Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

Department of Labor processing times and information on backlogs

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Disclaimer/Reminder

This email does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.