On January 22, 2008 the United States and Vietnam entered into a repatriation treaty. Prior to this agreement, Vietnamese nationals with final orders of deportation could not be removed to Vietnam. Now, however, the US may effectuate orders of deportation to Vietnam provided that the alien (1) arrived in the U.S. on or after July 12, 1995, (2) is subject to a final order of removal, (3) is not a citizen of the U.S. or any other country aside from Vietnam, and (4) does not have residence in another country. This agreement is valid for 5 years and will be automatically renewed every three years thereafter unless the U.S. or Vietnam objects to such extension. It is estimated that this agreement will trigger the deportation of 1,500 Vietnamese currently living in the U.S.
USCIS REMINDS EMPLOYERS TO USE NEW FORM I-9
After December 26, 2007, employers who fail to use the new Form I-9 may be subject to all applicable penalties. All employers are required to complete a Form I-9 for each new employee hired in the United States.
Advisory on Processing Times
USCIS has received a significant increase in the number of applications filed. In July and August, nearly 2.5 million applications and petitions of all types were received. This compares to 1.2 million applications and petitions received in the same time period last year. This fiscal year, we received 1.4 million applications for naturalization; nearly double the volume we received the year before. The agency is working to improve processes and focus increased resources, including hiring approximately 1,500 new employees, to address this workload.
As a result, average processing times for certain application types may grow longer. In particular, naturalization applications filed after June 1, 2007 may take approximately 16-18 months to process.
USCIS has several informational services to keep you apprised of the agency’s progress. We encourage you to take advantage of information posted on our website and to create and monitor your profile in our Case Status Online system to properly track your case. You will find a link to Case Status Online in the Related Links section of this page.
We will continue to provide additional information on application processing times as it becomes available.
CBP URGES EARLY I-94 APPLICATIONS FOR BORDER CROSSING CARDHOLDERS
Border crossing cardholders (BCC) may remain in the U.S. for up to six months and travel more than 25 miles from the border when they are issued I-94 cards. During the holiday season, the busy ports of entry at San Ysidoro, Otay Mesa and Calexico process approximately 3,000 I-94 applications a day. Unfortunately, this high volume leads to processing times in excess of three hours. To avoid inconveniences and unnecessary delays, CBP has stressed that BCC travelers wishing to use I-94 cards for holiday vacations should apply early for their I-94 cards at the San Ysidoro, Otay Mesa and Calexico ports of entry. The Calexico West facility, located in downtown Calexico, will be open 24 hours a day and the Calexico East facility will be open from 6:00 a.m. to 10:00 p.m. The ports at San Ysidoro and Otay Mesa will begin 24-hour operation December 14, 2007. These extended hours will last until January 6, 2008. All ports allow for applications up to 30 days in advance of the travel. It is important that all members of the family wishing to travel on BCCs and I-94s present themselves at these ports of entry when applying for the I-94 cards in advance of travel.
Victory for Employers as Government Effectively Withdraws No-Match Rule
Employers scored a major victory last week, as the government effectively withdrew the regulation that would use Social Security Administration records for immigration enforcement. Late Friday, attorneys for the government filed a motion to stay the decision on the merits of the proposed no-match rule. The motion states that the Department of Homeland Security plans to publish new rules sometime in December that it claims will address the concerns outlined by Federal Court Judge Charles Breyer in his ruling granting the injunction against enforcement of the new rule.
This is widely viewed as a victory for employers. While not conceding any deficiencies with the rule, the government has apparently recognized that the potential for harm to lawful workers and employers due to inaccuracies in the Social Security database.
This motion gives employers a chance to put their houses in order before a new rule is published. The motion is certainly not an indication that the Department of Homeland Security will cease or suspend enforcement efforts, and the new rule is expected to keep employers in a very tenuous position in staffing their businesses. Employers should utilize this brief reprieve to assess their immigration, hiring, and retention policies in light of the trend of increased worksite enforcement, so that they are as prepared as possible for the new rules in place. Our firm is actively involved in assisting employers in the area of employee verification. Employers should contact us if they are interested in improving their verification procedures, and/or conducting an audit to determine if there is any current liability.
U.S. Ratifies the Hague Convention on Intercountry Adoption
On November 16th, President Bush signed Congress’ ratification of the Hague Convention on International Adoption. This Convention was negotiated in 2000, and aims to prevent improper adoptions and promote the integrity of international adoptions. The U.S. will officially become a member of the Hague Convention on April 1st, 2008. As of that date, the Department of State and the Department of Homeland Security will become much more involved in intercountry adoptions. The Department of State will be designated as the central authority for intercountry adoptions in the United States and will be responsible for making sure that the Convention is implemented as required. In order to implement the Convention, the Department of State will need to accredit U.S. adoption service providers, maintain a registry of adoption cases and implement a system of receiving complaints and comments about accredited adoption service providers.
TANF AND I-601 WAIVER
On October 31, 2007, the AAO (Administrative Appeals Office)decided an I-601 case originating from Ciudad Juarez, Mexico. The AAO considered various pieces of information in deciding whether the applicant’s qualifying relatives demonstrated sufficient hardship to waive the applicant’s ten year re-entry bar. While the waiver application contained hardship information based on the qualifying relative’s medical conditions, the AAO relied heavily on the qualifying relative’s inability to support herself financially. The AAO was particularly concerned about the qualifying relative’s reliance on TANF (Temporary Assistance for Needy Families). While it is unclear whether the AAO will rely as heavily on the acceptance of TANF in other I-601 adjudications, this case may represent a new pattern for I-601 determinations.
H-2B Legislation Update
Currently, seasonal employers are awaiting an extension of the Returning Worker Exemption which was a primary feature of the “Save Our Small and Seasonal Business Act of 2005.” Senator Barbara Mikulski (D-MD) proposed an amendment to an Appropriations Bill which would extend a one-year exemption for returning H-2B workers not to be included in the numerical cap of 66,000 visas. This amendment was written to be made retroactive to the beginning of Fiscal Year 2008 (October 1, 2007). Final approval is pending a joint House-Senate conference on this matter.
The Save Our Small and Seasonal Business Acts of 2007 are in the process of obtaining co-sponsors to Senate version. Proposing a five-year extension of the returning worker exemption has 35 co-sponsors and 40 are needed. The House Bill version proposes a permanent H-2B returning worker exemption and has 98 co-sponsors out of 100 needed.
While Senator Mikulski’s amendment is the most promising, we do not know the fate of this provision until the Appropriations Bill comes out of a combined House and Senate conference. However, regardless of the outcome, we urge all seasonal employers and users of the H-2B visa program to contact their Senators and Representatives in Washington, D.C. to express their support for these Save Our Small and Seasonal Business Acts of 2007.
For more information on contacting Congress, please click on the link below:
http://capwiz.com/aila2/issues/alert/?alertid=10162161
NEW I-9 FORM ANNOUNCED
USCIS announced, on November 7, 2007, that it was releasing the much-awaited revised I-9 form. Employers are required to fill out an I-9 form for all employees at the time of hire. Our firm is actively involved in working with employers and making sure their employee verification program is working correctly including the proper preparation and handling of I-9 forms. The biggest change in the new rule concerns the documents that are acceptable to prove employment eligibility. For more information, see www.uscis.gov/files/pressrelease/FormI9FS110707.pdf
STERN SELECTED TO BEST LAWYERS IN AMERICA®
DENVER (November 9, 2007) Immigration lawyer Ken Stern of Stern & Curray LLC was selected by his peers for inclusion in 2008 edition of The Best Lawyers in America® for immigration law.
Stern has been listed in this prestigious guide for more than 10 years.
Published biennially since 1983, but now published annually, The Best Lawyers In America® is widely regarded as the preeminent referral guide to the legal profession in the United States. The Best Lawyers in America® lists are based on an exhaustive peer-review survey whereby almost two million votes are cast on the legal abilities of other lawyers in their specialties.