Immigration News

August 2005






Foreign Students May Need to Return to Home Country to Obtain H-1B Visas


Update on H-1B Numbers


Visa Interview Requirements Codified


USCIS Introduces New Welcome Guides, Fact Sheets


DOS Opens Worldwide Business Visa Center


CIS Ombudsman Issues Annual Report



Immigration Tutorial




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If you would like more information about Serotte Reich Wilson or wish to speak to an attorney, contact us at 1-716-854-7525 or visit our web site at www.srwlawyers.com


Foreign Students May Need to Return to Home Country to Obtain H-1B Visas



Senior immigration officials who spoke late last month at the annual conference of the American Immigration Lawyers Association stated that President Bush wants tighter screening of foreign students.



For that reason, the officials said, the President prefers that foreign students return to their home countries to obtain H?1B visas because foreign students can be subjected to criminal and security clearances at U.S. consular interviews before they return to the U.S. In previous years, F-1 and J-1 students who successfully changed status to the H-1B ?specialty occupation? category were not required to return home to obtain visas, even in the event that the annual H-1B cap left a gap in their ability to begin work immediately after their education or training programs had ended. Action on the President?s preference has not yet been taken.



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Update on H-1B Numbers



U.S. Citizenship and Immigration Services recently announced that approximately 27,300 H?1B petitions are approved or in the pipeline that will be counted against the fiscal year 2006 H?1B cap of 65,000. About 8,300 H?1B petitions that are approved or are in the pipeline will count against the 20,000 exemptions for applicants holding advanced degrees from U.S. institutions for fiscal year 2005.



Although the 2005 cap was hit on October 1, 2004, the first day of the new fiscal year, at this point, there is no way to predict when the 2006 cap may be reached. The 2006 cap may not be reached as early due to the extra 20,000 H-1Bs provided by the Congressionally mandated exemptions passed in May of this year. However, the best course of action is to file the H-1B paperwork to get it ?in the pipeline? as soon as possible.



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Visa Interview Requirements Codified



In accordance with the provisions of the Intelligence Reform & Terrorist Prevention Act, visa interview requirements have been interjected into the U.S. Immigration and Nationality Act for the first time. Although most of these requirements were already in place at the various U.S. Consulates and Embassies around the world, a State Department cable issued in July of 2005 mandated the immediate implementation of the following visa interview requirements, which are subject to very narrow exceptions:



All nonimmigrant visa applicants aged 14 to 79 must appear for a personal interview.



All nonimmigrant visa applicants applying somewhere other than in their home country must appear for a personal interview.



All nonimmigrant visa applicants previously refused must appear for a personal interview unless the refusal was temporary and subsequently overcome or the ground of inadmissibility has been formally waived;



All nonimmigrant visa applicants ?from? a country designated as a state sponsor of terrorism must appear for a personal interview.



In light of these new statutory requirements, which will appear in Section 222(h) of the INA, the State Department will issue modifications and amendments to its own regulations as well as the Foreign Affairs Manual.



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USCIS Introduces New Welcome Guides, Fact Sheets



U.S. Citizenship and Immigration Services (USCIS) has published Welcome to the United States: A Guide for New Immigrants, which includes ?how-to? information on a variety of practical topics, such as maintaining status, obtaining a driver?s license or social security number, U.S. history and government, civic rights and responsibilities, obtaining medical care, and becoming a citizen. The guide is available in English, Spanish, Chinese, and Vietnamese; future editions are planned in Korean, Russian, Arabic, Tagalog, Portuguese, French, and Haitian Creole. The free guide, and ordering information for the print editions, are available from USCIS?s website at http://uscis.gov/graphics/citizenship/welcomeguide/index.htm.



USCIS also has released a new series of ?How Do I? fact sheets, including series on services for U.S. citizens and for permanent residents. Upcoming fact sheets will include information for nonimmigrants, refugees, asylees, and employers. The fact sheets are available in English and Spanish from USCIS?s website at http://uscis.gov/graphics/services/factsheet/index.htm.



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DOS Opens Worldwide Business Visa Center



On July 15, 2005, the U.S. Department of State (DOS) opened its new Worldwide Business Visa Center, an office dedicated to assisting U.S. businesses by explaining the visa process when foreign employees or clients are invited to either work or visit in the United States. This general information can be accessed at the Center?s website at BusinessVisa@state.gov or by phone at 202-663-3198. According to the DOS, this new office is ?one more way the Department of State is actively supporting international business travel, U.S. commerce and the U.S. economy.



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CIS Ombudsman Issues Annual Report



In his annual report to Congress, U.S. Citizenship and Immigration Services Ombudsman, Prakash Khatri, focused on the continued struggle for efficiency and improved customer service in the immigration benefits application process.



The report outlines the Ombudsman?s desire for ?an efficient, secure immigration benefits system with world-class customer service.? The report goes on to describe the Ombudsman?s vision of the future, which would include ?up front processing?. Among other things, this new system would ?allow applicants to be interviewed, if required, on the day of filing and provide the immigration benefit within a few days of filing an application.?



Of course, the report notes that USCIS is plagued with several serious problems that currently stand in the way of the ultimate goal of ?up front processing?, such as severe adjudication backlogs, ?antiquated? information technology systems, lack of uniformity and inadequately trained staff.



In response to these ongoing problems, the Ombudsman?s report made 12 formal recommendations for improvement. These recommendations include standardized security checks throughout the Department of Homeland Security; improved communication between USCIS and customers; and consistent adjudications policies among the Service Centers, District officers and even between individual officers.



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Immigration Tutorial



What are the new driver?s license requirements under the new REAL ID Act?



Starting 2008, states will be compelled to implement new federal guideline son driver?s license issuance. License applicants will need to present a photo identity document or a non-photo document if it includes the person?s full legal name and date of birth. The applicant must present documentation showing the person?s date of birth. The applicant must present proof of their social security number or verification that the person is not eligible for a number. In addition, the applicant must present documentation of their name and address.



Finally, a state must require evidence that the person:

is a citizen or national of the US
is an alien lawfully admitted for permanent or temporary residence in the US
has conditional permanent residence in the US
has an approved application for asylum or has entered the US in refugee status
has a valid, unexpired non-immigrant visa or non-immigrant status
has a pending application for asylum in the US
has a pending or approved application for temporary protected status in the US
has approved deferred action status or
has a pending application for adjustment of status to lawful permanent resident status in the US.
If a person can prove they fit into at least one of these nine categories, they will be eligible for a temporary license or identification card that will only be valid during the period of time the applicant is authorized to stay in the US or, if there is no definite end to the period of authorized stay, for a period of one year. The fact that the documents are temporary would need to be prominently noted on the card.



In order to extend the validity of the card, applicant would need to present documentation of continuing legal status.

About Serotte Reich Wilson

Serotte Reich Wilson, LLP (SRW) is a full service immigration law firm with a national reputation. Headquartered in Buffalo, New York, SRW also has offices in Toronto, Ontario and Rochester, New York, as well as global affiliations and networks with other immigration practices.

Originally established in 1925, SRW is highly recognized for its strong expertise and achievements in the field of immigration law. SRW represents companies and individuals from all over the world in all aspects of immigration law, including NAFTA, business and computer professionals, investors, global transfers, waivers, border problems and denials, and Immigration Court representation and appeals. As a firm, we are dedicated to defining our client's immigration objectives, planning their immigration priorities, and managing their immigration needs.