City Of Brotherly Love Hosts The 2004 National AILA Conference: A Recap
From June 9th to June 13th, over 2500 immigration lawyers from across the country and around the world met in
Philadelphia to receive a state of the agency address from representatives
of the DHS, DOL, and DOS. David Nachman, Esq., the Managing Attorney at
Nachman & Associates, P.C. attended the Annual 2004 National American
Immigration Lawyer's Association Meeting in Philadelphia, Pennsylvania.
Mr. Nachman has been attending Annual AILA National Conferences for over a
decade.
The Conference provides immigration law practitioners from all over the
country (and the world) with an opportunity to meet with representatives
of the U.S. Department of Homeland Security ("DHS"), the U.S. Department
of State ("DOS"), and the U.S. Department of Labor ("DOL"). This year
numerous Conference programs focused on the lack of statutory and
regulatory guidance in the immigration arena. Furthermore, agency
representatives were "vague" concerning such issues as the implementation
of the long-awaited PERM Program.
The following is a non-exhaustive list of many of the items that were
discussed at the Conference:
Employment Authorization Documents ("EADs") - On June 3, 2004 the
Office of Management and Budget approved an Interim/Final rule which
allows the CIS to grant EADs in Adjustment of Status cases for more than a
one year period. During the DHS Open Forum, William Yates stated that EADs
should be issued to coincide with processing backlogs (between one to
three years). We are given to understand that a rule should be published
within the next several weeks. Please note that this does not mean that
everyone's card will be good for five years, but that CIS will, depending
on the processing times, be able to issue the EAD for a period of time
between one to five years.
Advance Parole Travel Documents - During the DHS Open Forum,
William Yates stated that the CIS is in the process of assessing the need
for Advance Parole Travel Documents. Also, during the Ombudsman Open
Forum, the CIS Ombudsman, Prakash I. Khatri, stated that the CIS was in
the process of considering the implementation of certain policies so as to
avoid the need for Advance Parole Travel Documents. One such option was
the possibility of using the I-485 receipt notice as a travel document.
The H-1B Cap - As we are all aware, the H-1B Cap for this Fiscal
Year was reached in February 2004 which was less than half-way through the
year. On April 1, 2004, CIS began to accept H-1B petitions for the 2005
Fiscal Year. The 2005 Fiscal Year commences on October 1, 2004. H-1B
petitions that are presently being submitted are being counted toward the
Fiscal Year 2005 Cap. At the Conference it was reported that in April and
May, the CIS approved over 16,000 petitions against the Fiscal Year 2005
Cap.
Premium Processing in the H-1B Context - Representatives of the CIS
stated that H-1B numbers are allocated at the time of receipt of the
application. Thus, while premium processing does lead to a rapid response
it does not necessarily mean that those who premium process will be given
an H-1B number (toward the numerical cap) for the Fiscal Year. Therefore,
unless you need a quick answer, there is no need to file premium
processing to meet the Cap.
J-1 and F-1 Gap and the Cap - If a person is in F-1 or J-1 status,
and the status is due to lapse prior to October 1, 2004, the CIS will not
grant a change of status to H-1B. Presently, the position of the CIS seems
to be that the beneficiary will have to leave the country and return. CIS
states that it is working on the formulation of a policy to deal with F-1
and J-1 visa holders in the U.S. who have applied to change their status
in connection with the October 1st start date on the H-1B.
E-Filing Initiatives - Recently, the CIS has brought the Form I-129
into its list of documents for permissible e-filings. On May 29, 2003, the
CIS began a program which allows immigrants and their attorneys to submit
two applications online: (1) I-90 Form (Application to Renew/Replace
Permanent Resident Card) and (2) I-765 (Application for Employment
Authorization Document). On May 24, 2004, the CIS expanded e-filing to
include seven more forms. Presently, the e-filing process is complex and
confusing since one has to submit the supporting documents by mail anyway.
However, government representatives at the Conference did reference one
valuable use for the e-filing process and that is when a filing needs to
be done immediately. For example, this may be necessary (1) in the H-1B
portability context where there is a need for the applicant to work
immediately; and (2) in the B context when submitting an application for
an extension or a change of nonimmigrant status so that one's current stay
does not expire before the CIS can receive an application/petition.
InfoPass - CIS is in the process of experimenting with an online
appointment system that presently is being used in Miami, Dallas and Los
Angeles. The system allows an individual to schedule an appointment at the
District Office using a special kiosk or by using the internet. The agency
reports that the program has been successful and that it plans to extend
the program to all District Offices before the end of September.
Nurses - On June 1st, 2004 the National Council of State Boards of
Nursing (NCSBN) announced that starting in January 2005, the National
Council Licensure Examination (NCLEX), the state RN licensure examination,
is going to be offered internationally. The first three examination sites
that have been identified are London, England; Seoul, Korea; and Hong
Kong.
Foreign Medical Graduates - Foreign Physicians - Recently, the
House Subcommittee on Immigration, Border Security and Claims voted to
approve "The Access to Rural Physicians Improvement Act of 2004"
(H.R.4453) which extends the CONRAD State 30 Program for one year and
further clarifies that foreign national physicians sponsored for J waivers
under the Conrad program are to be exempt from the H-1B Cap. Also, of
interest to foreign national physicians is that the Clinical Skills
Assessment ("CSA") is no longer required. The CSA is now incorporated into
USMLE, Step 2, Clinical Skills (Step 2, CS). Foreign medical graduates who
wish to match for a residency program need to take Step 2, CS.
New Waiver Program for Foreign Medical Graduates - Recently, the
Delta Regional Authority has implemented a new Visa Waiver Program that
will assist foreign medical graduates to obtain waivers of the two year
home residence requirement. Questions regarding the new J visa waiver
program can be directed to Justin Ferguson, DRA's Federal Policy
Coordinator at (662) 624-8600 x22 or via e-mail at jferguson@dra.gov
Access To Service Centers - CIS announced that it is working to
restore public telephone lines to its Service Centers by September 30th,
2004.
Visa Revalidation - In both the DOS Open Forum and the CIS Open
Forum there was discussion about the DOS Revalidation process. As of July
16, 2004 the DOS will be taking the Revalidation process offline. Thus,
July 16, 2004 will be the last day that an individual can apply to
revalidate a visa in the U.S. By way of background, each year the DOS
revalidates up to 65,000 nonimmigrant (E, H, I, L, O and P) visas instead
of requiring applicants to apply abroad. We anticipate that there will be
a significant surge in Third Country Processing in Canada and Mexico due
to this startling new development.
DOS Biometrics - DOS representatives at the Conference mentioned
that they are anticipating a new requirement to be implemented at the end
of October, 2004 which is that all nonimmigrant visas shall contain two
biometric identifiers, fingerprints and facial scans.
PERM - At the DOL Open Forum and at several Programs about the
Labor Certification Process, DOL representatives continue to reiterate
that they have not issued final regulations regarding the PERM Program and
no definitive dates or timelines could (or would) be given. DOL
representatives continue to implement a backlog reduction program aimed at
reducing labor certification application backlogs that have mounted over
the past three to five years. Allegedly, backlog reduction means that
cases will be sent to regional centers to be processed more rapidly.
U.S. VISIT Program - By October of this year, CBP
will fingerprint and photograph all NIV holders at the Port-of-Entry.
Additionally, and unlike in the past, citizens of Visa Waiver Program ("VWP")
Countries will also be photographed and fingerprinted. CBP reiterated its
interest in the rapid flow of persons across the border.
I Visa at the POE - Foreign media representatives have, in the
past, been required to have an I visa. A new policy however gives Port
Directors the discretionary authority to allow a foreign journalist to
enter the United States in B-1 or Visa Waiver status. If CBP exercises
discretion, the journalist will be required to have the correct visa
classification for any future trips to the U.S.
National Video Immigration Court - At the Conference it was
announced that the EOIR will begin National Video Immigration Court
operations in Falls Church, Virginia. The Court will conduct overflow
removal proceedings via videoconference. The respondents, their attorneys
and the government attorneys will present their cases in their local
courtrooms, and the judges will conduct the proceedings by video monitors.
The respondents are given the option of physically appearing before the
judges in Virginia. The first cases will be from the New Orleans court
where there is a judicial vacancy.
CIS Memorandum On Ability to Pay RFEs - On May 4, 2004 the CIS
issued a memorandum which provides guidance to adjudicators about issuing
RFEs in relation to an employer's ability to pay the proffered wage in
employment-based immigrant visa petitions (I-140s). The memorandum states
that recent CIS practices show that many adjudicators have been issuing
unnecessary RFEs and causing processing delays and confusion. The
memorandum clearly states that as long as the petition contains a fully
completed I-140 and at least one of the required items of financial
stability/ability to pay the adjudicator should be able to make a
decision. Also, the CIS may deny the petition if the initial evidence does
not establish the petitioner's ability to pay. A final portion of the
memorandum indicates that acceptance of some financial evidence is purely
discretionary. If the adjudicator decides to accept the evidence then the
documentation must clearly establish the ability to pay. If it does not,
then the adjudicator may deny the petition without asking for further
evidence.
About The Author
David Nachman, Esq. is principal of Nachman & Associates, P.C. Mr. Nachman is a frequent speaker on panels and television. He is also an Adjunct Professor of Paralegal Studies at Bergen Community College and Fairleigh Dickinson University. In addition, he is a member of the Bergen County and New Jersey State Bar Associations; the Court of International Trade; the Third Circuit Court of Appeals; American Immigration Lawyers' Association; and the Northern New Jersey and Rockland County Chapters of the Society of Human Resource Management. David Nachman may be contacted by phone:(201) 236-9998 ext. 100, fax: (201) 236-9997 or email: David_Nachman@Visaserve.com
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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