Last week, HLG attended the AILA Annual Convention, held in Vancouver, BC, Canada. As is our custom, here is our Recap of the important and interesting information that we learned:
Attorney/Client Relationship during the PERM Process: What’s permissible?
On June 2, 2008, the US Department of Labor shocked the immigration community by announcing that it would audit all of the applications for Permanent Labor Certification filed by one large and well known law firm based on allegations of improper communication between attorneys and their employer clients during recruitment. Since that release, immigration attorneys and employers have questioned what constitutes a permissible relationship between an attorney and an employer client during the PERM process – we all want to know, “what is permissible during PERM?”
Representing thousands of member attorneys, AILA issued a letter to Elaine Chao, Secretary of the Department of Labor, on June 4, 2008 which advocated that all employers have the right to counsel and to receive advice on how to apply the laws regarding “qualified clients” to a specific set of facts. To date, the DOL has not provided concrete guidance on the role of attorneys during the PERM process. Because of the DOL silence, the 2008 AILA Annual Convention provided numerous forums to discuss issues and offer suggestions such as instituting regulations, developing “best practices”, and/or DOL approved templates – all of which have since been forwarded to the DOL. We look forward to bringing you more information on this important topic as soon as is it released by the DOL.
Multi-year EAD – USCIS Clarifies
The AILA 2008 Annual conference focused on a number of “hot topic” issues including the recent release of the multi-year Employment Authorization Document which was first mentioned by Secretary Chertoff in a press conference and later confirmed by USCIS in a press release on June 12, 2008. Effective June 30, 2008, select applicants for EAD cards will receive two years of employment authorization versus the traditional one year of validity.
Speaking on multiple panels and open forums, Acting Deputy Director of USCIS, Michael Aytes, stressed that issuing a two year card versus a one year card is a discretionary decision based largely on the visa bulletin at the time of application for the card and most applicants will continue to receive only one year. During the conference, many attorneys asked Aytes to provide clear guidance on how USCIS would make the discretionary decision so that clients would have a clear understanding of why they received a one year card instead of the two year card which they hoped to receive. In response to these repeated requests from AILA attorneys, Aytes stated that he would issue a memo on the criteria for the two year card to clear any ambiguity in the coming weeks. The Aytes memo on the criteria for multi-year cards will be posted by HLG as soon as it is released.
Premium Processing I-140s – a Progress Report
On June 11, 2008, USCIS announced that it would bring back premium processing for specific cases at risk of “H-ing Out,” effective July 2, 2008. To qualify for premium processing or an upgrade of a pending case, a beneficiary must be in H-1B nonimmigrant status and nearing the end of his/her status within 60 days. If the beneficiary is not eligible for the one year extension of H-1B status under AC21 section 106(a), premium processing can be used so that the person can extend his/her stay by three years under the provisions of AC21 section 104(c).
Commenting on the filings received in anticipation of the effective date at the 2008 AILA Annual Conference, Barbara Velarde, Chief of Service Center Operations, stated that so far, 60% of cases filed were rejected because they did not meet criteria. Most were rejected outright because they were outside of the 60-day window or were requesting premium processing for a category that has never permitted premium processing. She emphasized that case must be within the 60 day window and that this benefit only applies to I-140 cases requesting EB-1, EB-2, or EB-3 classifications that do not involve a National Interest Waiver. Velarde also commented that the numbers of applications filed have been manageable and they are considering expending premium processing to include persons outside of the US who have already run out of H-1B time.
Important Changes to Visa Waiver Program – ESTA
The conference also focused on the new Electronic System for Travel Authorization (“ESTA”) program, a Department of State and Customs and Border Protection initiative that will change the Visa Wavier Pilot Program. ESTA will begin voluntarily on August 1, 2008 and will become mandatory after January 12, 2009. Currently the Visa Waiver Pilot Program allows foreign nationals from specific countries to visit the United States for business or tourism without obtaining a tourist visa. Currently, more than 15 million travelers with machine readable passports arriving by air or sea may travel directly to the US without a B1/B2 visa and will be admitted for up to 90 days under the VWPP program.
After January 12, 2009, the program will require VWPP travelers to obtain pre-travel authorization by making an online application at https://esta.cbp.dhs.gov. Travelers will be required to input their passport information and basic questions about proposed travel (information which is typically requested on the I-94W form at the airport) into the online system for pre-travel approval. Travelers will receive a decision of “Authorization Approved” or “Travel Not Authorized” within 72 hours via email. Approved travelers can proceed to the airport with their decision and use the VWPP. However travelers that are not authorized (approximately 1-3% of applicants) must go to the local US Consulate and apply for a B1/B2 visa. If an unauthorized traveler continues to the airport without first obtaining a visa, he/she will receive a “NO BOARD” notice preventing travel.
Commenting on the program, Vincent Beirne, Deputy Director of the DOS’s Office of Legislation, Regulations and Advisory Assistance stated that while this program may seem inconvenient to travelers, it will help to capture more data electronically to facilitate data sharing between all US Government agencies. He stated ESTA verification will be valid for a period of two years during which time travelers will be able to make multiple trips to the US. Deputy Director Beirne was unable to comment on whether reciprocating countries that offer visa waivers to Americans traveling abroad would also institute a similar program.
On the Horizon – Noteworthy Interagency Updates from the 2008 Conference
• Will E-Verify survive? On June 24, 2008, Republican Congressman Ken Calvert from California, the original author of the E-Verify legislation, a introduced an amendment to the Homeland Security Appropriations Bill during full committee mark up that proposed to extend E-Verify for 10 years past its current expiration date of November 30, 2008. Democratic members of the House Appropriations committee, Subcommittee Chairman Price (D-NC) and Chairman Obey (D-WI) happen to disagree and voiced their opposition to the extension by leading a “no” vote against the proposal. Calvert states, “I’ve testified before the Subcommittee on Immigration twice since 2007 on the need to make E-Verify mandatory and to extend the voluntary program … we now have less than 6 months before the program expires and I strongly urge the Judiciary Committee to move quickly on my reauthorization bill so that the Senate has time to act as well.” Price and Obey are rumored to be open to the possibility of extending the program in the future, if the Judiciary Committee is not able to pass reauthorization. (http://calvert.house.gov/pressreleases.asp?ARTICLE4024=15908)
• More Consulates will begin using the DS-160 “smart form” which is a hybrid of forms DS-156, DS-157, and DS-158. The benefit of the DS-160 is that it permits electronic signature and will help the government achieve its goals of “paperless” filings and data sharing between government agencies.
• DOS may establish off-site biometrics capturing facilities for select consulates and may begin using facial recognition software which is anticipated to reduce “false hits” produced by name and fingerprint checks alone.
• PIMS seems to be a success in most cases and now allows USCIS and DOS to better share data on visa issuance. Volume is increasing and currently 80-85% of cases are in the system.
• Students who received the automatic “cap gap” extension of OPT and need to travel on an emergency basis before October 1, 2008 may be eligible for an emergency EAD card that would reflect the additional grant of OPT time. USCIS is considering this “emergency benefit” and will publish procedures for obtaining additional time, if the benefit is approved.
• In an effort to go “paperless” USCIS may begin requiring fewer supporting documents with I-130 and I-140 petitions. For I-140 cases, USCIS would like to obtain information on a company’s financial status from public sources, similar to a credit check in commercial settings and keep this information in the USCIS system as a “company file.” This will greatly affect large employers with multiple filings in that they will not longer have to provide large volumes of company and financial information for each and every case filed with the Service. For I-130 cases, USCIS may authorize adjudicators to access personal postings on the Internet to determine if fraud exists in marriage or other family cases. A word to the wise – be careful what you about yourself on the internet … the government may also visit your Facebook page!
• USCIS may reduce the number of forms that can be concurrently filed due to increasing numbers of I-485 applications filed for the sole purpose of obtaining employment authorization during adjudication. USCIS will attempt to eliminate fraud by requiring the underlying petition to be approved prior to filing the I-485 in some cases.
• USCIS is still considering increasing the validity of TN visas from one year to three years.
• USCIS in conjunction with the CDC is reconsidering their requirement of the controversial HPV vaccine which is now listed as an “age appropriate” vaccine for females between the ages of 11-26. A waiver procedure for this vaccine may be released in the near future to accommodate religious or conscientious objections.
(Special thanks to Katie Orton-Jacob for this Recap).