This update discusses recent developments in immigration law from the U.S. Departments of Homeland Security, Labor, State, and Health and Human Services, as well as new legislative matters.
Department of Homeland Security
Bush Re-nominates Julie Myers for Head of ICE
On January 9, 2007, President Bush announced the nomination of Julie L. Myers for assistant secretary of the Department of Homeland Security (DHS). If confirmed, Myers would be in charge of Immigration and Customs Enforcement (ICE), a position she has held since her recess appointment to the post in January 2006.
Bush originally nominated Myers on June 30, 2005, and Myers was approved by the Senate Homeland Security and Governmental Affairs Committee on a party-line vote. However, Congress did not act on the nomination before recessing.
Her confirmation is uncertain, as Democrats who were initially skeptical of her lack of immigration expertise are now the majority party. Additionally, even some Republicans have questioned her credentials for such an important post.
BIA Addresses Effective Date of Child Status Protection Act
On February 9, 2007, the Board of Immigration Appeals (BIA) issued a decision favorable to “ageout” cases, In re Matter of Rodolfo AVILA-PEREZ, 24 I&N Dec. 78 (BIA 2007). Unmarried sons and daughters of a U.S. citizen who are under the age of 21 are eligible to be petitioned by their parents to receive a green card. However, because of a long delay in processing such petitions (Petition for Alien Relative: I-130 petition) by the USCIS, children of U.S. citizen parents often turned 21 while waiting for the adjudication of petitions filed on their behalf.
On August 6, 2002, the U.S. government amended the underlying law in order to protect such children from losing their eligibility (Child Status Protection Act (CSPA)). CSPA provided that if the I-130 petition was filed with the USCIS before the child turned 21, that child’s status as an unmarried son or daughter is protected until the petition’s adjudication is completed. CSPA also extends that protection to the beneficiaries of the I-130 petitions whose petitions were approved before August 6, 2002, but the final determination has not been made on the beneficiary’s application for an immigrant visa or adjudication of status (I-485 application) to lawful permanent residence pursuant to such approved petition.
In the Matter of Rodolfo AVILA-PEREZ, the BIA concluded that CSPA applies if the I-130 petition was approved before August 6, 2002, even though the I-485 application was filed after that date. This means that so long as the I-130 petition was approved before the August 6, 2002 (the effective date of CSPA), the beneficiary retains his/her status under the unmarried sons and daughters classification even if he/she did not file the I-485 application before that effective date, absent any other conditions that otherwise may cause ineligibility.
Updated Forms Issued
USCIS and the Executive Office for Immigration Review (EOIR) recently issued updated versions of a number of forms. The updated USCIS forms include: Form I-751, Petition to Remove Conditions on Residence; Form I-765, Application for Employment Authorization; Form I-90, Application to Replace Permanent Residence Card; Form I-290B, Notice of Appeal to the Administrative Appeals Office; Form I-130, Petition for Alien Relative; Form I-589, Application for Asylum and Withholding of Removal; Form I-864, Affidavit of Support; Form I- 864A, Contract Between Sponsor and Household Member; and Form I-864W, Intending Immigrant's Affidavit of Support Exemption. EOIR issued a new Form EOIR-29, Notice of Appeal of BIA of Decision of District Director.
USCIS Implements Changes to Adjudications of NIW Petitions for Physicians
On January 23, 2007, the USCIS issued interim guidance for adjudicating I-140 immigrant petitions with national interest waivers (NIW) and related adjustment of status applications for physicians working in medically underserved areas or facilities operated by the Department of Veterans Affairs. The memorandum implements the Ninth Circuit Court of Appeals decision in Schneider v. Chertoff, 450 F.3d 944 (9th Cir. 2006), with amended regulations to follow.
To receive lawful permanent resident status, physicians complete a three- or five-year medical service requirement. The plaintiffs in Schneider challenged provisions in the interim rule that legacy INS issued on September 6, 2000, relating to this medical service requirement. Pursuant to the Ninth Circuit decision issued on June 7, 2006, the USCIS will now: (1) allow medical practice completed before the approval of the I-140 petition (except medical practice as a J-1 nonimmigrant) to be counted toward the service requirement; (2) permit NIW physicians whose I-140 petitions were filed before November 1, 1998, but denied before November 12, 1999, to complete only the 3- year service requirement; and (3) remove the regulatory requirement that NIW physicians must complete the medical service requirement within four to six years after the I-140 petition is approved. The court upheld the requirements that physicians submit reports evidencing that they have either completed or are completing, the medical service requirement 120 days within their second and sixth years of service.
Furthermore, although not required by the Schneider decision, the USCIS now will adjudicate NIW petitions from not only primary care physicians, but also specialty care physicians, who work in geographic areas that are designated as having a shortage of medical specialists for the Physicians Scarcity Area (PSA) program.
USCIS Issues Memo on Reauthorization of H-1C Visa Program
USCIS has made public a memorandum, dated December 26, 2006, regarding the reauthorization of the H-1C visa program. The H-1C program was established in 1999 by the Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA) to address the shortage of qualified nurses in health professional shortage areas. The program allowed qualified hospitals to temporarily employ foreign workers as registered nurses for a up to three years. The NRDAA program expired on June 13, 2005.
On December 20, 2006, Congress reauthorized the H-1C program, effective immediately, for an additional three years, i.e., until December 20, 2009. In accordance with previous practice, all I-129 petitions for the H-1C classification will be adjudicated exclusively by the Vermont Service Center.
USCIS Revises Guide to Naturalization
USCIS has released a revised Guide to Naturalization, a comprehensive resource for individuals who want to become U.S. citizens. The revised guide is available on the USCIS website at http://www.uscis.gov/files/article/M-476.pdf. A Guide to Naturalization (M-476) provides information on the benefits and responsibilities of citizenship, an overview of the naturalization process, and eligibility requirements.
USCIS Revises Form I-129F
USCIS has revised Form I-129F, Petition for Alien Fiance(e), and the new version will be mandatory for use starting on February 19, 2007. Changes to the form include an updated expiration date of January 31, 2010, as well as a clarification of the term “international marriage broker” on the form instructions page and guidance on the marriage broker certification. The form instructions also include a clarification regarding what constitutes “domestic violence.”
Department of State
DOS Eliminates Schedule A Category from Visa Bulletin
As of February 2007, the Visa Bulletin no longer lists the Schedule A category as a separate category, as the one-time allocation of 50,000 visa numbers for that category has been exhausted. Schedule A is a list of occupations, including nurses, physical therapists, and certain persons of exceptional ability in their fields, that the DOL has “pre-certified.” This pre-certification allows employers to file an I-140 immigrant petition without obtaining labor certification from the DOL. Remaining I-140 petitions filed under the Schedule A category now will be processed under the EB- 2 or EB-3 categories, depending on the nature of the job. Only applicants whose priority dates are within the cut-off date of June 15, 2005, are eligible for one of the 50,000 Schedule A numbers. Beneficiaries of approved Schedule A I-140 petitions whose priority dates are June 15, 2005, or later are still eligible to apply for permanent residence, but they are now subject to the cut-off date for their country of birth in the first, second, or third employment-based immigrant visa categories, as applicable.
Consular Offices Abroad Resume Accepting I-130 Immigrant Visa Petitions
Effective March 21, 2007, consular posts abroad will accept petitions for immediate relative immigrant classification from American citizens who are resident in their consular districts. Consular offices abroad previously had been instructed to cease accepting certain immigrant visa petitions because consular officers lacked the means to perform the required criminal background checks on American citizen petitioners.
Subsequently, the Department of State and the USCIS worked to develop a mechanism whereby USCIS will perform these required checks for any petitions accepted abroad by consular officers. In order to meet the residency requirement, petitioners must be able to show that they have permission to reside in the consular district and that they have been doing so continuously for at least six months before filing the petition. Individuals who are in the country on a temporary status, such as student or tourist, would not be considered to meet the residency standard. All lawful permanent residents, and American citizens resident in the United States or with a permanent address in the United States, must file I-130 petitions at the USCIS Service Center having jurisdiction over their place of residence (as indicated on the USCIS website: http://www.uscis.gov/files/form/i-130.pdf).
State Department Releases Visa Numbers for April 2007
The DOS published its Visa Bulletin summarizing the availability of immigrant numbers during the month of April 2007. For employment-based immigrant visa petitions, visa numbers are current for nationals of all countries in the first preference category. In the second preference category, visas are currently available for nationals of China with a priority date of April 22, 2005, and for nationals of India with a priority date of January 8, 2003. Visas are currently available for nationals of all other countries in the second preference category. Cut-off dates for the third preference category are as follows: India - May 8, 2001; Mexico - May 15, 2001; all other countries - August 1, 2002. In addition, the State Department has indicated that, due to heavy demand in the family-based third preference category, it will be necessary to retrogress cut-off dates in these categories.
State Department Issues Visa Reciprocity Changes for Iraq
As of January 16, 2007, the DOS has updated the visa reciprocity schedule for Iraq. Per the “Documents” section of Iraq’s Reciprocity Schedule, DOS now classifies only G and H passports as valid for U.S. visas and admission to the United States. G passports pertain to foreign government officials to International Organizations. H passports pertain to temporary workers. H passports are only valid for travel into the United States. if they have been validated in accord with the instructions in Paragraph 5 of State 210749. M, N, and S series passports are not valid for U.S. travel.
This rule continues the DOS trend of tightening visa requirements from Iraq. These requirements will affect all individuals traveling from Iraq and seeking entry into the United States, with the exception of those seeking to enter as refugees.
Department of Labor
DOL Issues Proposed Rule on E-3 Visas
On January 12, 2007, the U.S. Department of Labor (DOL) issued a proposed rule to amend their H-1B and H-1B1 regulations to include provisions related to the required Labor Condition Application (LCA) for the E-3 visa classification. The E-3 visa classification applies to Australian nationals coming to the United States to perform services in specialty occupations. The E-3 visa applicant must present a certified LCA to the Department of State Consular Officer at the time of visa application. Although an E-3 LCA is similar to that of an LCA for an H-1B or H-1B1, the maximum period for which an E-3 LCA can be certified is two years from the employment start date (instead of three years), and a petition to the Department of Homeland Security is not necessary for initial E-3 requests. The E-3 visa classification was established in 2005 and the DOL has been processing E-3 LCAs under guidance issued on July 19, 2005 (see 72 Fed. Reg. 1649).
DOL on Reconsideration of a Denial of RIR Conversion Request
DOL provided a statement regarding reconsideration of a denial of Reduction-in-recruitment (RIR) conversion request as a result of several inquires from AILA liaison and other interested parties. DOL stated that there is “no rebuttal process for the RIR conversion opportunity” and that “denials of eligibility were well considered and made after taking all factors into account, and any case that could have been reasonably approved for this conversion opportunity was approved.” DOL also said that adjudicators made decisions based on all available information to them and that cases that appeared to have been “virtually identical may in fact have had inconsistencies which were not apparent to an employer but were to an adjudicator.”
Colorado State Law Imposes Additional Requirements on Employers Beyond I-9 Verification Under Federal Law
Effective January 1, 2007, a new state law (Colorado House Bill 06S-1017) requires employers in Colorado to meet additional requirements with respect to employees hired after January 1, 2007, beyond the I-9 employment eligibility verification requirements under federal law. Unlike the state law that became effective on August 7, 2006, imposing additional requirements on public contractors in Colorado (House Bill 06-1343), this new law affects all employers doing business in the state. Specifically, the State of Colorado now requires all employers, within 20 days after hiring a new employee, to:
1. retain a copy of the document(s) presented by a new hire during the I-9 verification process (federal law does not mandate retention of copies, just the eligibility verification);
2. execute and retain an Affirmation of Legal Work Status, confirming that the employer has examined the new employee’s employment eligibility, has retained copies of I-9 documents presented by the employee to verify identity and employment eligibility, has not altered or falsified the employee’s identification documents, and has not knowingly hired an unauthorized alien (there is no specific format for this affirmation but a sample form is made available at: http://www.coworkforce.com/LAB/AffirmationForm.pdf);
3. maintain the I-9 forms and copies of the corresponding documents, including the Affirmation of Legal Work Status, separately from the employees’ personnel files.
This new law also proscribes higher penalties for non-compliance: $5,000 for a first violation and up to $25,000 for second or subsequent violation. The State of Colorado has yet to issue regulations implementing this new law (at present, only the FAQs are available at:
(http://www.coworkforce.com/LAB/GeneralInformation1017.pdf ). Because the constitutionality of this state law has not yet been challenged (considering that it seeks to preempt federal immigration law), the employers operating in Colorado are required to comply with the new state law.
President Signs Physicians Act
On January 12, 2007, President Bush signed into law the Physicians for Underserved Areas Act (Pub. L. No. 109-477, 120 Stat. 3572 (H.R. 2997). This act reauthorizes for two years a program that waives the two-year foreign residence requirement for individuals who entered the United States in J-1 visa status for medical training. The waiver requires that, following training, the individuals work with a qualified employer in medically underserved areas of the United States— that is, areas designated as having a shortage of personal health services. Notably, doctors on such visas must meet certain requirements, such as passage of the Foreign Medical Graduate Examination in Medical Sciences and competence in English.
Previously, J-1 visa holders who studied medicine in the United States had to leave the country for two years before applying to return and practice. Starting in 1994, the U.S. government waived this requirement for foreign physicians who agreed to spend three years working with patients in medically underserved areas. This program expired June 1, 2006. The Physicians for Underserved Areas Act therefore reinstates the program for an additional two years.
Department of Health and Human Services
HHS Updates Poverty Income Guidelines
The Department of Health and Human Services (HHS) has issued its annual update of the federal poverty guidelines, which are relevant in the immigration context for “public charge” issues, among others. They may also be relevant in obtaining waivers of application fees for certain indigent aliens. Most importantly, the poverty guidelines are crucial in complying with the affidavit of support requirements imposed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Specifically, the IIRIRA states that sponsors of all family-based and some employmentbased immigrants must submit an affidavit (Form I-864), demonstrating that they are able to maintain an annual income of at least 125 percent of the HHS poverty guidelines. The calculation also takes into account the number of dependants for whom the sponsor will be responsible. For 2007, the guidelines set the poverty level at $10,210 for one person in the 48 contiguous states and District of Columbia, with $3,480 for each additional person in the household. The guidelines set different levels for Alaska and Hawaii. The 2007 guidelines became effective as to affidavits of support on March 1, 2007.