US IMMIGRATION NEWS UPDATE - JANUARY 2008 HEADLINES

Effective January 1, 2008, the nonimmigrant visa application fee will increase from $100 to $131. This increase allows the US Department of State (DOS) to recover the costs of security and other enhancements to the nonimmigrant visa application process. This increase applies both to nonimmigrant visas issued on machine-readable passports and to border crossing cards issued to certain applicants in Mexico.

Applicants who paid the prior $100 application fee before January 1st will be processed only if they are scheduled and appear for a visa interview before January 31st. Applicants who paid the prior $100 application fee and appear for visa interviews after January 31, 2008 must pay the difference of $31 before they will be interviewed.

The DOS is required by law to recover the cost of processing nonimmigrant visas through the collection of the Machine-Readable Visa application fee. Because of new security-related costs, new information technology systems, and inflation, the $100 Machine-Readable Visa fee is lower than the actual cost of processing nonimmigrant visas. In fact, the $100 fee was already lower than the cost of processing nonimmigrant visas when the fee was reviewed as a part of the cost of service study in 2004. The DOS has been absorbing the additional cost. We are now collecting 10 fingerprints from each applicant, and the cost charged by the FBI to review those fingerprints no longer allow us to do this. The application fee has increased twice since 9/11, the last time in 2002.

The US Department of Homeland Security (DHS) and the US Department of State (DOS) have reminded the traveling public that as of January 31, 2008, all adult travelers will be required to present proof of citizenship, such as a birth certificate, and proof of identity, such as a driver's license when entering the United States through land and sea ports of entry.

The DHS and DOS believe that the change is a required step to prepare travelers and relieve the transition to the future requirements of the Western Hemisphere Travel Initiative (WHTI). WHTI proposes to establish documentation requirements for travelers entering the United States who were previously exempt, including citizens of the US, Canada, and Bermuda. As recommended by the 9/11 Commission, Congress enacted WHTI in the Intelligence Reform and Terrorism Prevention Act of 2004. WHTI will result in both enhanced security and increased facilitation across the border once implemented. During this transition, DHS and the DOS are working diligently to minimize the impact on legitimate trade and travel.

Currently, US Customs and Border Protection (CBP) officers may accept oral declarations of citizenship from US and Canadian citizens seeking entry into the United States through a land or sea border. However, as of January 31, 2008, oral declarations of citizenship alone will no longer be accepted. US and Canadian citizens ages 19 and older will need to present a government-issued photo ID, such as a driver's license, along with proof of citizenship, such as a birth certificate or naturalization certificate. Children ages 18 and under will only be required to present proof of citizenship, such as a birth certificate. Passports and trusted traveler program cards - NEXUS, SENTRI and FAST - will continue to be accepted for cross-border travel.

All existing nonimmigrant visa and passport requirements will remain in effect and will not be altered by this change.

DOS also reminded the public that the current turnaround time for a passport is four to six weeks, so Americans planning international travel may wish to apply now.

The United States is a nation where diversity is celebrated and people from all over the world are welcome. The information below will help guide you through the biometric collection process as it is used at US visa-issuing posts and US airports and seaports. Biometric procedures is the collection of digital fingerprints and photos for international travelers holding a non-US passport or visa.

Upon Applying for a Visa

If you need a visa, you must go to your closest US visa-issuing post for an interview as part of the application process. During this interview, you can expect a consular officer to:

- Review your visa application and supporting documents; and
- Collect your biometrics (up to 10 digital fingerprints and a digital photograph)

En Route to the United States by Air and Sea

Airline or ship representatives will give you a white Form I-94 (if you are a visa holder) or green Form I-94W (if you are a Visa Waiver Program traveler) to fill out before you arrive in the United States.

Upon Arrival

The immigration officer will scan up to 10 of your fingerprints and take your photo with a digital camera. An immigration officer will guide you through the inspection process. Have your travel documents ready, such as your passport and Form I-94 or Form I-94W. The officer will review your travel documents and ask you questions, such as why you are visiting and how long you will stay.

Upon Departure

When you leave the country, you should return your Form I-94 or Form I-94W to an airline or ship representative. By returning your form, you have completed the US entry-exit process. You do not currently have to check out at a biometric exit kiosk as DHS has completed the pilot test of biometric exit procedures. However, at a date to be announced in the future, you will be required to provide biometrics when departing the United States. The immigration officer will tell you when you have completed the process.

US Citizenship and Immigration Services (USCIS) announced that employers must transition to the revised Employment Eligibility Verification Form (I-9) not later than December 26, 2007.

All employers are required to complete a Form I-9 for each employee hired in the United States. The revision seeks to achieve full compliance with the document reduction requirements of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which reduced the number of documents employers may accept from newly hired employees during the employment eligibility verification process. The revised Form I-9 is a further step in USCIS’ ongoing work toward reducing the number of documents used to confirm identity and work eligibility. Key to the revision is the removal of five documents for proof of both identity and employment eligibility. They include: Certificate of US Citizenship (Form N-560 or N-570); Certificate of Naturalization (Form N-550 or N-570); Alien Registration Receipt Card (Form I-151); the unexpired Reentry Permit (Form I-327); and the unexpired Refugee Travel Document (Form I-571). The forms were removed because they lack sufficient features to help deter counterfeiting, tampering, and fraud.

Additionally, the most recent version of the Employment Authorization Document (Form I-766) was added to List A of the List of Acceptable Documents on the revised form. The revised list now includes: a US passport (unexpired or expired); a Permanent Resident Card (Form I-551); an unexpired foreign passport with a temporary I-551 stamp; an unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A, or I-688B); and an unexpired foreign passport with an unexpired Arrival-Departure Record (Form I-94) for nonimmigrant aliens authorized to work for a specific employer.

The Form I-9 with a revision date of June 5, 2007 is the only version of the form that is valid for use.

US Citizenship and Immigration Services (USCIS) issued a final rule to streamline the readmission of certain “H” and “L” nonimmigrants who have applied for adjustment of status to become permanent residents (i.e., green card). The rule removes the requirement that such persons present a receipt notice (Form I-797, Notice of Action) for their adjustment applications when returning to the United States from travel abroad.

This rule benefits certain types of H or L nonimmigrants who have a pending adjustment of status application. H-1 nonimmigrants affected by this rule are the H-1B classification for “specialty occupation” workers and the H-1C classification for certain registered nurses. L-1 nonimmigrants affected by this rule are the L-1A classification for certain intracompany transferees who are managers or executives, and the L-1B classification for “specialized knowledge” workers. Dependents of affected H-1s and L-1s, who are admitted as H-4s and L-2s, are also relieved of the receipt requirement.

Generally, adjustment of status applicants must obtain Advance Parole (Form I -131, Application for Travel Document) from USCIS prior to leaving the United States or else their applications are deemed abandoned. H-1 and L-1 nonimmigrants (and their H-4 or L-2 dependents) are now exempt from this requirement. Previously, they were required to present a receipt for their adjustment application at the time of readmission to the United States following foreign travel. This final rule eliminates the unnecessary burden of presenting this receipt since the application information in the receipt is in USCIS databases available to immigration inspectors and adjudicators.

H-1 and L-1 nonimmigrants (and their dependents) with pending adjustment of status applications, who are not under exclusion, deportation, or removal proceedings, are reminded to comply with all other requirements of the regulations. Upon application for readmission to the United States, they must provide evidence to a US Customs and Border Protection (CBP) Inspector at the port of entry that they are:

• Still eligible for H-1 or L-1 status, • Coming to resume employment with the same employer for whom they were previously employed, and • In possession of a valid H-1 or L-1 visa, if required.

In the case of H-4 or L-2 dependents, the spouse or parent through whom they received their H-4 or L-2 status must meet the above requirements and the dependent must remain eligible for admission in H-4 or L-2 classification.

Many immigrants who have met all the requirements to become US citizens are forced to wait for months or years due to slow processing of FBI name checks, according to a class-action lawsuit filed in federal court on December 4, 2007. The lawsuit, Bavi v. Mukasey, states that these delays violate time limits in the law that are meant to reduce naturalization backlogs while ensuring national security.

The plaintiffs also ask a federal judge to enforce the time limits on name checks for people in the naturalization process. The lawsuit names Attorney General Michael Mukasey and the FBI, which conducts the checks, and the US Citizenship and Immigration Service (USCIS), which oversees the naturalization process.

“People’s lives are on hold because they are in a bureaucratic hole. They can’t travel abroad without worrying they will be blocked at the border. They can’t vote. They can’t get business or school loans,” says ACLU staff attorney Ranjana Natarajan. As part of the naturalization process, the FBI conducts routine name checks along with fingerprints and background checks. The name checks regularly cause delays with the application because the names often produce false matches that must be resolved. As a result of this time-consuming errors, the scheduling of naturalization interviews are often behind scheduled and final approval of naturalization delayed.

According to the National Immigration Law Center (NILC), the US Citizens and Immigration Services (USCIS) ombudsman recently reported that FBI name checks have become more difficult over the past years and produce little value in identifying persons who pose a security threat. The report of the USCIS ombudsman states that the current USCIS name check policy may increase the risk to national security by extending the time a potential criminal or terrorist remains in the country.

The troubled name check process has resulted in thousands of Americans nationwide going to court to fight the delay of their naturalization cases. Rather than fix the underlying problems, the government instead often chooses to fight or settle these cases, according to the NILC.

Alex Lee, 26-years-old is one of the plaintiffs in Bavi v. Mukasey. Lee emigrated from South Korea with his family in 1998. He applied for citizenship in December 2006. It was a bittersweet moment for Lee recently after watching his family receive their citizenship despite being frustrated by the fact that his application was filed months before their applications.

Another plaintiff, Abbas Amirichimeh, born in Iran, came to the US in 1993 to study electrical engineering. He is currently a highly trained microchip designer in Irvine, California. He has waited more than four years for a response to the naturalization application he filed in May 2003.

The ninth of 10 children, he was unable to travel to Iran after the deaths of his father, aunt, uncle and grandfather for fear that he would not be allowed back into the country. “By training, I believe that if there is a problem, we should come up with a solution,” he says.” I feel as if my life is floating.” After recently speaking with a government official concerning his case, it was confirmed that his case is being delayed because of a name check and that he should get a lawyer.

Bavi v. Mukasey is the first lawsuit in the country that specifically addresses the backlogs both for people who have had their naturalization interviews and for those who have not.

US Citizenship and Immigration Services (USCIS) is revising the filing instructions for the Petition for Alien Relative (Form I-130). Effective December 3, 2007, all applicants filing stand-alone Form I-130s are encouraged to file their petitions with the Chicago Lockbox instead of a USCIS Service Center.

Petitions filed with the Chicago Lockbox will be routed to, and adjudicated at, the appropriate USCIS Service Center. This routing will be based on the petitioner’s place of residence in the United States.

Two separate post office box addresses (see below) have been established that correspond to the appropriate USCIS Service Center (either Vermont or California) that will process and adjudicate the petition. Although Form I-130 will be filed with the Chicago Lockbox, petitioners will receive receipt notices from either the Vermont or California Service Center.

Petitioners who reside in Alaska, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin or Wyoming are encouraged to file their standalone Form I-130s with the Lockbox using the following address:

USCIS
P.O. Box 804625
Chicago, IL 60680-1029

Petitioners who reside in Alabama, Arkansas, Connecticut, Delaware, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, US Virgin Islands, West Virginia or District of Columbia are encouraged to file their stand-alone Form I-130 with the Lockbox using the following address:

USCIS
P.O. Box 804616
Chicago, IL 60680-1029

While the changes are effective December 3, any Form I-130 filed with the Service Center will not be rejected; it will be forwarded to the designated Chicago Lockbox. Petitioners are encouraged, however, to begin using the designated Lockbox filing on the effective date in order to avoid processing delays.

Members and certain veterans of the US armed forces are eligible to apply for United States citizenship under special provisions of the Immigration and Nationality Act (INA). In addition, US Citizenship and Immigration Services (USCIS) has streamlined the application and naturalization process for military personnel serving on active-duty or recently discharged. Generally, qualifying service is in one of the following branches: Army, Navy, Air Force, Marine Corps, Coast Guard, certain reserve components of the National Guard and the Selected Reserve of the Ready Reserve.

Qualifications

A member of the US Armed Forces must meet certain requirements and qualifications to become a citizen of the United States. This includes demonstrating:

• Good moral character;
• Knowledge of the English language;
• Knowledge of US government and history (civics); and
• Attachment to the United States by taking an Oath of Allegiance to the US Constitution.

Qualified members of the US Armed Forces are exempt from other naturalization requirements, including residency and physical presence in the United States. These exceptions are listed in Sections 328 and 329 of the INA.

An individual who obtains US citizenship through his or her military service and separates from the military under “other than honorable conditions” before completing five years of honorable service may have his or her citizenship revoked.

Service in Wartime

All immigrants who have served honorably on active duty in the US Armed Forces or as a member of the Selected Ready Reserve on or after September 11, 2001 are eligible to file for immediate citizenship under the special wartime provisions in Section 329 of the INA. This section also covers veterans of designated past wars and conflicts.

Service in Peacetime

Section 328 of the INA applies to all members of the US Armed Forces or those already discharged from service. An individual may qualify for naturalization if he or she has:
• Served honorably for at least one year.
• Obtained lawful permanent resident status.
• Filed an application while still in the service or within six months of separation.

Posthumous Benefits

Section 329A of the INA provides for grants of posthumous citizenship to certain members of the US Armed Forces. Other provisions of law extend benefits to surviving spouses, children, and parents.

• A member of the US Armed Forces who served honorably during a designated period of hostilities and dies as a result of injury or disease incurred in, or aggravated by, that service (including death in combat) may receive posthumous citizenship.

• The service member’s next of kin, the Secretary of Defense, or the Secretary’s designee in USCIS must make this request for posthumous citizenship within two years of the service member’s death.

• Under section 319(d) of the INA, a spouse, child, or parent of a US citizen who dies while serving honorably in active-duty status in the US Armed Forces, can file for naturalization if the family member meets naturalization requirements other than residency and physical presence.

• For other immigration purposes, a surviving spouse (unless he or she remarries), child, or parent of a member of the US Armed Forces who served honorably on active duty and died as a result of combat, and was a citizen at the time of death (including a posthumous grant of citizenship) is considered an immediate relative for two years after the service members dies and may file a petition for classification as an immediate relative during such period. A surviving parent may file a petition even if the deceased service member had not reached age 21.

How to Apply

• All aspects of the naturalization process, including applications, interviews and ceremonies are available overseas to members of the US Armed Forces.

• Members of the US Armed Forces are not charged a fee to file for naturalization or to receive a certificate of citizenship.

• Every military installation has a designated point-of-contact to assist with filing the military naturalization application packet. Once complete, the package is sent to the USCIS Nebraska
Service Center for expedited processing.

Statistics

• USCIS has naturalized more than 35, 125 members of the US Armed Forces since the beginning of the War on Terror.

• In October 2004, USCIS hosted the first overseas military naturalization ceremony since the Korean War. During this time and since, USCIS has naturalized more than 4,270 Soldiers, Sailors, Airmen and Marines during ceremonies in Afghanistan, Djibouti, Germany, Greece, Iceland, Iraq, Italy, Japan, Kenya, Kosovo, Kuwait, South Korea, Spain, the United Kingdom and in the Pacific aboard the USS Kitty Hawk.

• USCIS has granted posthumous citizenship to 105 members of the US Armed Forces stemming from the War on Terror.

• Historically, the US government has conducted overseas military naturalization ceremonies during times of war. During World War II, 20,011 service members were naturalized overseas. During the Korean War, 7,756 service members were naturalized overseas. Although authorized, no overseas military naturalization ceremonies were held during the Vietnam War.