LitwinLaw Newsletter 12/1/05

LitwinLaw Update

Law Offices of Litwin & Smith

News from the Academy of Business Immigration Lawyers
Vol.1, No.5 December 1,2005
Headlines:

• 1. H-1B Numbers for Master’s Degree Holders Could Run Out Shortly; USCIS Releases Statistics on H-2Bs — H-1B numbers for those with U.S. master’s degrees could run out by mid-January or even sooner.
• 2. Computer Staffing Firm Fined $2.65 Million in Back Wages, Penalties — Computech Inc. has agreed to pay $2.65 million in back wages to 232 computer professionals and a $400,000 fine to settle immigration law violations.
• 3. Congressional Activity: Extraordinary Ability, International Students — An amendment would make it easier for persons of extraordinary ability wishing to represent the U.S. in international events to naturalize; another amendment is intended to encourage international students.
• 4. House Holds Hearing on New U.S.-Canada Passport Requirements — The National Association of Manufacturers expressed concerns about a proposed requirement for the use of passports or other types of secure travel documents under the Western Hemisphere Travel Initiative.
• 5. New Wal-Mart Raid Leads to Arrests – — A raid at a Pennsylvania Wal-Mart construction site resulted in about 125 arrests for alleged immigration law violations.
• 6. Some Labor Certification Applications With Earlier Priority Dates May Be Processed Later Than Newer Applications — Several factors account for different processing times.
• 7. Biometrics Update — A new system for biometrics appointment scheduling is launched, the Visa Waiver Program digital photo rule is in effect, 10 fingerprints may be required at entry in the future, electronic U.S. passports are on the horizon, and the International Biometrics Advisory Council is established.
• 8. New Report Examines Role of Immigrants in the U.S. Labor Market — The Congressional Budget Office has released a new report.
• 9. Council of Graduate Schools Reports on Enrollment, Degrees — The Council of Graduate Schools’ new report, “Graduate Enrollment and Degrees: 1986 to 2004,” discusses trends in graduate enrollment and degrees awarded for 627 institutions responding to its survey.
• 10. GAO Says USCIS Needs to Improve Efforts to Reduce Backlogs — Despite progress, USCIS is unlikely to eliminate the backlog by its deadline of September 30, 2006, especially for naturalization and adjustment of status applications.

Details…
1. H-1B Numbers for Master’s Degree Holders Could Run Out Shortly; USCIS Releases Statistics on H-2Bs
H-1B numbers for those with U.S. master’s degrees could run out by mid-January, according to remarks at a recent conference by a representative of U.S. Citizenship and Immigration Services. Some think they could run out even sooner as December graduates rush to file H-1Bs under the master’s degree cap. According to sources, 16,098 cases have been counted against the 20,000 cap so far (12,647 approved and 3,451 pending).
USCIS also released new statistics on H-2Bs. The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence, which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services. On May 25, 2005, USCIS began accepting additional petitions for H-2B workers as required by the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act). According to sources, 35,568 cases have been counted against the half-year cap so far in fiscal year 2006 (27,937 approved and 7,631 pending). The cutoff date for each half of the fiscal year will be whenever sufficient petitions and associated worker applications have been received to satisfy the half-year cap of 33,000 visas minus first-time beneficiaries changing status. USCIS estimated that 62 percent of approved beneficiaries will result in H-2B visas issued by Department of State. Accordingly, USCIS will cut off the first half cap at 52,000.
For more on the H-1B and H-2B caps see http://uscis.gov/graphics/services/tempbenefits/cap.htm.
FLASH: H-2B Cap Reached For First Half Of Fiscal Year 2006
December 15, 2005 is the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to April 1, 2006.

2. Computer Staffing Firm Fined $2.65 Million in Back Wages, Penalties
Computech Inc., a Southfield, Michigan-based company that places computer professionals throughout the U.S., has agreed to pay $2.25 million in back wages to 232 computer professionals and a $400,000 fine to settle immigration law violations, the Department of Labor announced on November 21. The government initially had demanded $5.7 million, including $4.5 million in back wages and $1.2 million in fines, but that amount was reduced. In addition to the fines, the company is barred from participating in the H-1B program for 18 months. An investigation by the DOL’s Wage and Hour Division found that Computech brought nonimmigrant H-1B workers into the U.S. but failed to pay them the required wage rates in the areas where they were employed. Computech also frequently “benched” the workers without compensation, which violated H-1B requirements.
Computech has customers nationwide, with the largest concentration of its workers in Michigan, Illinois, California, New Jersey, New York, Pennsylvania, Texas, and Minnesota

3. Congressional Activity: Extraordinary Ability, International Students
A congressional conference committee recently accepted an amendment by Sen. Carl Levin (D-Mich.) that will aid those who represent the U.S. at international events, such as ice dancer Tanith Belbin, who wishes to gain U.S. citizenship in time for the 2006 Olympics. The amendment, which would apply only to individuals of “extraordinary ability” who began their naturalization process before July 2002, would shorten the residence requirement from five to three years between receipt of permanent resident status and eligibility for naturalization. The amendment was included in the appropriations bill for the Departments of Labor and Health and Human Services, which was rejected by the House. A revised bill containing the amendment still may be passed according to reports.
On October 27, the Senate passed an amendment to its version of the Labor/HHS appropriations bill that requires the development of a campaign to encourage international students to attend U.S. institutions of higher education, and requires better cooperation among federal agencies in facilitating international student access. On November 10, NAFSA: Association of International Educators reported, Sens. Norm Coleman (R-Minn.) and Mitch McConnell (R-Ky.) agreed to shift jurisdiction over the development of the campaign from the Department of Education to the Department of State. “This amendment is a necessary step in reversing the decline of foreign students in U.S. higher education and puts America back on track in terms of global competitiveness,” said Sen. Coleman. Countries like Canada and Great Britain have already implemented marketing plans aimed at recruiting students throughout the world. Attracting the world’s top scientific scholars helps to keep our economy competitive, and exposing future world leaders to our democratic system adds to our national security.” For more on this topic, see
http://www.nafsa.org/public_policy.sec/international_student_1/
strategy_to_attract_foreign and http://opendoors.iienetwork.org/?p=70834.

4. House Holds Hearing on New U.S.-Canada Passport Requirements
The House of Representatives’ Small Business Committee held a hearing on November 17 on passport requirements between U.S. and Canada. John Engler, President and CEO of the National Association of Manufacturers (NAM), noted that the U.S. government “needs to give careful consideration to how it implements new travel document changes that would make it more difficult and costly for goods and legitimate travelers to cross the northern border with Canada.”. For example, he said, approximately 3,000 Canadian nurses commute every day to staff hospitals in Southeast Michigan, and there is extensive business travel in both directions by sales representatives, technical staff, and business executives. Every day, approximately 200,000vehicles carry manufactured goods, farm products, businesspeople, and tourists between U.S. and Canada, Mr. Engler noted. One bridge alone, the Ambassador Bridge, carries approximately 25 percent of U.S.-Canada trade, which amounted to more than $100 billion in 2004.
The new requirement to present a passport is expected to affect millions of American and Canadian travelers. According to the Detroit Regional Chamber of Commerce, Mr. Engler noted 80 percent of Americans and 60 percent of Canadians do not have passports. When the passport requirement goes into effect, many businesses will have to pay the cost for their staff to acquire passports. For small and large companies, he said, the costs could be significant because they would have to ensure that all employees who might have Western Hemisphere travel assignments have passports so they can provide timely service to customers. Noting that alternative documents will be accepted in some cases, Mr. Engler said that such programs have limitations and processing times can be as lengthy as those for passports. “Limiting the acceptable travel documents to these options is likely to result in a considerable disruption in business and tourist travel and significant additional costs, particularly since there will be a relatively short time to educate the business community and general public of the new requirements,” he said. NAM recommends that the Department of Homeland Security and State consider alternative documents that are more readily available to business travelers and tourists and less costly to obtain, such as identification cards issued under the Real ID Act.
The WHTI will require, by January 1, 2008, citizens of the U.S., Bermuda, Canada, and Mexico to have a passport or other accepted secure document that establishes the bearer’s identity and nationality in order to enter or re-enter the U.S.

5. New Wal-Mart Raid Leads to Arrests
Following raids at 61 Wal-Mart stores several years ago that netted arrests of about 250 undocumented workers on cleaning crews, a new raid at a Pennsylvania Wal-Mart construction site resulted in about 125 arrests for alleged immigration law violations. Wal-Mart said the employees were working for a subcontractor, and denied that it had done anything wrong. A federal agency affidavit unsealed this past November in a civil lawsuit reportedly stated that two Wal-Mart executives knew about the hiring of unauthorized cleaning crew workers.

6. Some Labor Certification Applications With Earlier Priority Dates May Be Processed Later Than Newer Applications
In some cases, labor certification applications with an earlier priority date may be processed or reach disposition later than newer applications, the Department of Labor (DOL) explained to the
American Immigration Lawyers Association on November 3, 2005. Assuming two applications with the same priority date, several factors account for different processing times, including the
Type of application, the stage of processing at which the application was received by the DOL backlog reduction center (for example, applications received from the regions have their recruitments completed and therefore are further along in the process than those from the states), the dates of other applications pending at each of the two centers (which determines each application’s place within the queue), the quality of the application and whether any questions are raised by it, and the response time of the employer to the center’s requests for confirmation, the Department said.

7. Biometrics Update
U.S. Citizenship and Immigration Services (USCIS) recently informed the American Immigration Lawyers Association (AILA) that a new system for scheduling biometrics appointments has been launched under which such appointments will be scheduled by USCIS. Separate appointments are being scheduled for each application for which biometric data must be gathered because the data cannot migrate between the databases and records are kept by receipt number. AILA has asked USCIS to devise a system to allow the capture of biometrics for all related applications in a single visit.
Meanwhile, a new Department of Homeland Security (DHS) rule that went into effect in late October requires visitors from Visa Waiver Program countries to carry passports with digital photos, and fines carriers that transport people to the U.S. without the new passports up to $3,300 per violation.
Also, DHS expects to unveil its plan early next year for upgrading the nation’s biometric visitor tracking. DHS wants to move toward collection of 10 fingerprints instead of two in the US-VISIT system, depending on available resources, according to sources.
The Department of State finalized a rule, effective October 25, 2005, which amends passport regulations to incorporate changes related to the introduction of the electronic passport. The rule defines “electronic passport” as “a passport containing an electronically readable device, an electronic chip, encoded with the information printed on the data page, a biometric version of the bearer’s photograph, a unique chip number, and a digital signature to protect the integrity of the stored information.” The rule includes a damaged electronic chip as an additional basis for possible invalidation and provides for no-fee issuance of a replacement passport if an electronic chip fails. A pilot program will permit a limited number of passports to be issued and field-tested before the first issuance to the U.S. traveling public, slated for early 2006. By October 2006, all U.S. passports, with the exception of a small number of emergency passports issued by U.S. embassies or consulates, are expected to be electronic.
The European Biometrics Forum (EBF) announced the establishment of the International Biometric Advisory Council (IBAC), which will provide advice and expert opinion to the EBF and its members and partners on the most pertinent issues facing biometrics globally. The IBAC intends to clarify issues surrounding the deployment and use of biometrics; develop a cohesive approach; enhance cooperation in Europe and globally; and advise EBF and its partners on standards, interoperability, and privacy areas of interest. Among expert appointees to the new IBAC is Robert Mocny, Deputy Director for the US-VISIT program. For more information, see http://eubiometricsforum.com/index.php?option=content&tassk=view&id=457&Itemid=1.

8. New Report Examines Role of Immigrants in the U.S. Labor Market
The Congressional Budget Office’s new report, “The role of Immigrants in the U.S. Labor Market,” notes that 21 million workers, or one of every seven workers in the U.S., was foreign-born in 2004. With the upcoming retirement of baby-boomers, that percentage is expected to increase. Immigrants and their descendants are expected to provide the majority of the nation’s population growth during the next half-century. The report states that immigrant workers, particularly those from Mexico and Central America, are concentrated in certain low-skill sectors. About 40 percent of foreign-born workers are U.S. citizens; the report estimates that about half of the remaining foreign-born workers in the U.S. (six to seven million) are unauthorized to work in the U.S., and includes a discussion of how such estimates are made. The report examines the wages, growth, differences in education, and characteristics of the foreign-born workforce, including naturalized U.S. citizens, authorized workers, and the undocumented from various regions of the world. The report is available at http://www.cbo.gov/ftpdocs/68xx/doc6853/11-10-Immigration.pdf.

9. Council of Graduate Schools Reports on Enrollment, Degrees
The Council of Graduate Schools’ new report, “Graduate Enrollment and Degrees: 1986 to 2004,” discusses trends in graduate enrollment and degrees awarded for 627 institutions responding to its survey. Tables include statistics on the numbers of U.S. citizen, permanent resident, and temporary resident graduate students. The report notes that non-U.S. citizens accounted for 17 percent of total graduate enrollment in the responding institutions, concentrated in doctoral programs in science and engineering, although overall international student enrollment in U.S. institutions declined by three percent last year.
10. GAO Says USCIS Needs to Improve Efforts to Reduce Backlogs
The U. S. Government Accountability Office has issued a new report, “Immigration Benefits: Improvements Needed to Address Backlogs and Ensure Quality of Applications.” The report notes that U.S. Citizenship and Immigration Services (USCIS) reports a reduction in backlogged immigration benefit applications from a peak of 3.8 million in early 2004 to about 1.2 million by June 2005. USCIS’s estimate, however, is not a measure of the number of pending cases older than six months, which is the statutory definition. USCIS cannot provide precise data on the age of all application types, although a proposed technology transformation offers an opportunity to develop a case management system with this capability, the GAO said.
Despite progress, USCIS is unlikely to eliminate the backlog by its deadline of September 30, 2006. The GAO said the agency may have difficulty eliminating its backlog for two complex application types that constitute nearly three-quarters of the backlog: naturalization and adjustment of status. The GAO’s analysis showed that USCIS would have to nearly double its productivity to eliminate the backlog for these two application types. Other factors beyond the agency’s control could also affect backlog reduction efforts, such as lengthy background checks or legislative changes. The GAO also noted that USCIS’s efforts ensure the quality of its post-adjudication decisions do not include a systematic and inclusive review of all application types.
The GAO recommended that USCIS (1) ensure that its technology improvements support the ability to generate data on the age of applications, (2) identify and specify in its plans the benefits it expects to realize from its investment in technology transformation, and (3) develop a comprehensive quality assurance program that applies to all types of benefit applications and addresses adjudication processes and reasonableness of decisions.
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 your visa numbers: