NEW LAW

Reorganization of U.S. immigration agencies: The Immigration and Naturalization Service (INS) no longer exists. Its functions are now performed by three government agencies within the new Department of Homeland Security. The United States Citizenship and Immigration Service (USCIS) handles immigration benefits e.g. petitions and applications for citizenship and lawful status within the U.S. Customs and Border Protection (CBP) screens admission to the U.S. at the airports and ports of entry. Immigration and Customs Enforcement (ICE) handles immigration matters within the U.S.

Expect lengthy processing of visa applications: Generally foreign nationals need a visa to enter the U.S. and apply for one at the U.S. Consulate that has jurisdiction over where they live. Nationals of some countries may enter the U.S. as visitors without a visa stamp under the Visa Waiver Program. Canadians do not need visas, save for E and K status. With current fears of terrorist attacks, consular processing now takes longer than it used to. Visa applications may take several weeks and sometimes months to schedule and process. Personal interviews are normally required and security checks are made on all applications. If you have a common name or work in a profession that involves “sensitive” technology, your application is likely to take even longer. With the implementation of the new US-VISIT program (see below), consular posts will be taking fingerprints for a biometric database and this will further increase visa processing times for an initial period.

New US-VISIT program: US-VISIT is a new automated system that records people entering and leaving the U.S. The second phase is in the process of being implemented and both holders of temporary visas and persons applying for admission under the visa waiver program will need to provide digital fingerprints and photo. This involves initial enrollment in the new IDENT database, either at the U.S. Consulate or at the airports and ports of entry if you already have a valid visa. On each application for admission as well as departure from the U.S., your fingerprints and face will be scanned for matching with the IDENT database. The original plan was to set up self-service kiosks that will do the scanning. However, the Department of Homeland Security is also experimenting with passive RFID (Radio Frequency Identification Devices) that would be embedded in the I-94 arrival/departure record to facilitate tracking foreign nationals. Most international airports and seaports in the U.S. are now set up for US-VISIT enrollment and the equipment is operational at the 104 land border ports of entry. Automated exit kiosks to collect information at the time of departure are presently only operating at 12 major airports.

No new H-1B visas available until October 2007: The maximum number of H-1B visas issued each year is 65,000. These numbers have been used up for fiscal years 2006/2006 and 2006/2007. No more H-1B visas are available until the next fiscal year, beginning October 1st, 2007. Foreign nationals whose qualification is a Master's degree or higher from a U.S. educational institution may continue to be eligible for H-1B employment from October 1st, 2006: new H-1B petitions may be filed from April 1st, 2007 onwards for employment on or after October 1st, 2007. Congress may increase the number of H-1B visas as part of a Comprehensive Immigration Reform bill - see "Proposed new laws" below.

Filing fee surcharges on H-1B and L-1 petitions: Non-exempt H-1B petitions are now subject to a $1,500 filing fee surcharge; $750 if the U.S. petitioner, including any affiliate or subsidiary, employs 25 or fewer full-time staff. In addition, a further $500 fraud prevention and detection fee applies to all initial L-1 and H-1B petitions: petitions to amend or extend are not subject to this fee. These filing fee surcharges are all in addition to the base $190 filing fee.

Proposed new laws being considered by Congress: Congress is presently considering Comprehensive Immigration Reform. The Senate has recently passed a bill that would provide a path to permanent legal status for most of the current undocumented population; a new temporary worker program with labor protections and a path to permanent status; family- and employment-based visa backlog relief; 50,000 additional H-1B visas; important reforms to the agricultural worker program; significant reforms to the high-skilled immigration programs; and relief for undocumented high school graduates seeking higher education (DREAM Act). However, this has to be reconciled with a predominantly anti-immigrant bill passed earlier by the House of Representatives. Congress and the government both seem to agree that immigration law reform has to be addressed and so it is likely that a compromise resolution will be reached in the next few months.

Backlog develops in immigrant visa numbers: Immigrant visas for employment based applicants are subject to numerical quotas. These have been current for several years but now there is a 5 year backlog for professional and skilled workers (EB3) from all countries as well as unskilled workers. Immigrant visas are still available for professional nurses and physical therapists who are exempt from the labor certification process. A backlog in all the employment based categories applies to nationals of China and India.

Special Registration: Nationals of certain countries that have been associated with terrorist organizations are required to register when entering and leaving the U.S. Re-registration while in the U.S. is no longer generally required.

PERM – the new process for Green Cards through employment: The Department of Labor (DOL) new PERM process has been implemented for nearly one year. The underlying concept is that the DOL must certify that there are no qualified and available U.S. workers for the offered position before the employer can sponsor the foreign national. The new PERM process allows the U.S. employer to conduct the recruitment program in as little as 3 months and, if no qualified U.S. workers apply for the position, then file an electronic attestation with the DOL. The DOL either certify or audit the attestation and, once certified, the U.S. employer may then file the immigrant petition to sponsor the foreign worker for a Green Card.

Penalties against overstays: Persons who have been unlawfully present in the U.S. after April 1, 1997 for a total of more than 180 days but less than one year will not be allowed back in the U.S. for three years from their date of departure. Persons who remain illegally in the U.S. after April 1, 1997 for a total of one year or more will be inadmissible from the U.S. for 10 years after their date of departure. Longer bars apply to persons who have been removed from the U.S. These bars may apply even to persons who have obtained advance parole (permission to re-enter).

Adjustment of Status: Adjustment of status is the process whereby persons already in the U.S. may adjust their status to lawful permanent resident.  To qualify for this process, an immigrant visa must be immediately available, whether through close family relationship, employment or investment. See PERMANENT RESIDENT.  Foreign nationals are no longer able to adjust status if (i) they entered the U.S. illegally, or (ii) they have worked without authorization or have not maintained lawful status since their entry, unless they qualify for an immigrant visa as immediate relatives. See PERMANENT RESIDENT.  Certain foreign nationals who qualify for an immigrant visa on the basis of employment may still adjust status if they have not been out of status for an aggregate of more than 180 days. Foreign nationals who qualify for immigrant visas but are ineligible for adjustment of status may apply for immigrant visas through U.S. Consulates outside the United States. However, if they have been unlawfully present in the U.S.for more than 180 days, they will be inadmissible for three years if you leave the country. (see penalties against overstays above).