What the Election Results Mean for Immigrants.

The decisive victory of Barack Obama in November’s election, coupled with gains by the Democrats in the U.S. Senate and the House of Representatives, could be good news for immigrants. However, it’s likely they will have to wait at least 1-2 years for immigration reform, as it appears low on the agenda of priorities for an Obama administration.

Obama clearly voiced his support for immigration reform in his Presidential campaign. His transition website (www.change.gov) states that it is the policy of the Obama Administration to “support a system that allows undocumented immigrants who are in good standing to pay a fine, learn English, and go to the back of the line for the opportunity to become citizens.” However, it is notable that this goal is listed behind other immigration policy goals such as “creating secure borders” and “removing incentives to enter illegally”. His recent choice for Director of Homeland Security, Janet Napolitano, was tough on border security while serving as Governor of Arizona. (During a subsequent issue I will discuss what the selection of Ms. Napolitano means for immigration policy.)

If and when Obama chooses to make immigration reform a priority, he will likely have more support for it in Congress. The Democratic Party gained at least 7 seats in the Senate and will hold at least a 58-40 advantage there. In the House, the Democrats also had substantial gains and have a 255-175 advantage. In 2007, the McCain-Kennedy immigration reform bill never reached a vote in the Senate because it lacked the necessary 60 votes to cut-off debate or prevent a promised filibuster by the Republicans. Generally, Democrats tended to support immigration reform while Republicans opposed it – although there were many exceptions in both parties. After January, when the newly-elected Congress is sworn in, there may be enough votes to pass immigration reform, depending upon the timing and substance of such a bill and to what extent the public supports or opposes it.

The big impediment for undocumented immigrants now is that the Obama Administration will have many other priorities in the coming year, including an economic stimulus package, health care reform, the energy crisis, tax legislation and ending the war in Iraq. In an interview on CNN recently, Barack Obama listed immigration as a priority item below these other five. Obama did discuss immigration reform in his post-election meeting with his opponent Senator John McCain and it could be that this becomes their own, special planned bipartisan legislative project in the coming 2-3 years.

The fact is that in these difficult economic times, an immigration reform bill is likely to be politically unpopular. I believe it will be left off of the legislative agenda in 2009 and considered in 2010 at the earliest.

New Crackdown on Employers of Illegal Immigrants Could Affect North Bay Businesses

This month the Secretary of Homeland Security announced a new policy of more aggressively pursuing prosecution of employers of illegal immigrants, changing the focus and methods of the previous Bush administration practice. The policy was already implemented following a recent worksite raid where the undocumented workers were released and given legal status so that they could testify in a criminal case against their employer.

It coincides with new efforts to target employers who hire undocumented workers indirectly, through independent contractors, rather than putting them on payroll. Employers like Walmart who hired subcontractors with illegal workers have been hit with punitive fines.

Together these new policies and practices of the Obama Administration increase the risk to many North Bay employers who knowingly or unknowingly employ workers who do not have status here.

This article outlines the new federal government crackdown and the way it could affect North Bay businesses. In a future article, we will explore what employers can do to protect themselves from the risk of criminal or civil penalties for hiring undocumented workers.

Going After the Boss.
Starting in 2006, U.S. Immigration and Customs Enforcement (ICE) initiated stepped up enforcement against employers of the undocumented. ICE began aggressively bringing criminal and civil cases against employers and even seizing corporate assets.

Last fiscal year, 863 employers of illegal workers were arrested on criminal charges and over $30 million in fines were imposed. Federal prosecutors began to charge employers with money laundering, harboring of illegal aliens, and violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). Convictions on these charges can result in prison sentences of up to 20 years.

Courts have approved the use of federal laws creatively to prosecute those who hire illegal workers. One appeals court recently upheld a conviction of an employer for “harboring” an illegal alien if the employer had “knowledge or reckless disregard of the alien’s unlawful status.” Employers are now routinely being prosecuted under another criminal statute which prohibits the “practice of hiring or continuing the employment of an unauthorized alien.”

Hiring Subcontractors Who Hire the Undocumented.
ICE has also begun to fine and prosecute companies who do not hire the undocumented worker directly, but through “subcontractors” who perform tasks such cleaning and maintenance, farm labor or construction. An ICE raid against a Kentucky construction developer, Fischer Homes, resulted in the arrest of 76 undocumented workers and the prosecution of six company supervisors for “conspiracy” and “harboring illegal aliens”. This was true even though the workers were not on the payroll of the company, but rather paid by subs hired by Fischer. The company was charged with knowingly using subcontractors to avoid compliance with the requirement to employ only workers with proper work authorization.

The same argument was made against Walmart, who hired independent contractors to clean their stores. The contractors routinely employed undocumented immigrants to do the cleaning. The federal government took the position that the megacompany was legally responsible for the widespread use of store cleaning staff without work permission. Although Walmart contested the charges, they agreed to pay a $11 million fine and change their practices.

It is now clear that simply hiring through subs or independent contractors does not absolve you of liability under the immigration law.

Obama Administration Employs New Tactic Against Employers of Illegal Immigrants.
President Obama repeatedly stated in his campaign that he would be even tougher against those who hire undocumented immigrants. The first changes in Department of Homeland Security (DHS) policy are already evident in his first 100 days in office.

In February, Secretary of Homeland Security Janet Napolitano reversed past ICE policy in the handling of a raid on an industrial employer in Washington state. When she learned of the raid after the fact, Napolitano released the arrested illegal immigrants, gave them temporary status and work permission, and enlisted them to testify against the company that employed them.

This represents a new tactic in the handling of such raids by the federal government. During the 8 years of the Bush Administration, undocumented workers were always arrested in raids and subsequently deported, some after being prosecuted for identity theft for using others’ social security numbers. It was often difficult to prosecute the employers without the workers around to testify.

In the new guidelines just announced, the Department calls for more severe fines and criminal prosecution against employers found to violate these laws. The directives instruct ICE field offices and agents to focus on employers and supervisors. Moreover, they suggest the approach used in Washington may be employed more often: use the workers themselves to help prosecute their bosses.

“Enforcement efforts focused on employers better target the root causes of illegal immigration” state the new guidelines. “ICE must prioritize the criminal prosecution of actual employers who knowingly hire illegal workers because such employers are not sufficiently punished or deterred by the arrest of their illegal work force.”

What This Means for North Bay Businesses.
North Bay employers should heed the message that these guidelines clearly send: non-compliance with U.S. laws in the hiring, directly or indirectly, of undocumented immigrants will not be tolerated. There are steps that can and should be taken to make sure your workers have the proper work authorization, or that they obtain it. My next article will cover what an employer must do to avoid being at risk of more severe federal civil and criminal penalties.

Analysis Of Immigration Reform Bill Approved By The Senate Judiciary Committee And Now Pending In The Full Senate.

The Immigration Reform bill that has been approved by the most important committee of the Senate could offer hope to many foreign-born nationals in the U.S. either out of status or with little or no way to stay in status when their visa expires.

The Senate bill provides for persons presently out of status in the U.S. who meet certain conditions to obtain legal status. This is the first time in over 5 years that such a possibility has existed for most of foreign-born nationals of this country.

The bill also creates a temporary worker visa (H-2C visa) for persons to come to work in the U.S. as so-called “guest workers” for up to six years.

The proposed law was approved by the Judiciary Committee last week by a vote of 12 to 6, and was sent to the full Senate for debate. The Senate is now debating the law and, if approved, must be later approved by the House. The House of Representatives passed its own immigration bill several weeks ago which contained no such legalization provisions.

Below is a summary of the most important provisions of the Immigration bill that would provide visas or permanent residence to various foreign nationals here. Please Note that I did not summarize the many enforcement provisions of the proposed law – this will be done in a future article if the bill becomes law.

Legalization Provisions (allowing persons out of status to obtain legal status).

• Section 601 of the bill provides for persons presently out of status in the U.S. who meet certain conditions to obtain legal status in the United States.
• To obtain legal status, a nonimmigrant worker status must prove that he or she: (1) was physically present and employed in the U.S. before January 7, 2004; and (2) has been employed in the U.S. since that date, whether full time, part time, seasonally, or self-employed.
• The immigrant worker’s spouse and children are also eligible to apply for adjustment of status or to follow to join the immigrant from a foreign country.
• An immigrant worker may prove such employment by submission of government employment records or, if unable to do so, they may prove a history of employment by submitting at least two of the following types of documents that provide evidence of employment: bank records; business records; sworn affidavits from non-relatives who have direct knowledge of the alien’s employment; or remittance records.
• The employment requirements under this section will not apply to minors under 21 years of age.
• In addition, a foreign national may satisfy the employment requirements, in whole or in part, by full-time attendance at either an institution of higher education or a secondary school.
• An applicant for this status must pay an initial fine of $1000 in addition to an application fee, submit fingerprints and other data, and undergo criminal and security background checks.
• An applicant is not eligible for this conditional nonimmigrant status for grounds related to criminal conduct, security reasons, terrorist activity, or participating in the persecution of any person.
• However, other “grounds of inadmissibility” that normally would apply related to the applicant’s undocumented status will be waived.
• The period of authorized stay for a conditional nonimmigrant is 6 years, during which time the person may not change from this classification to any other nonimmigrant or immigrant classification.
• A person who files an application for conditional nonimmigrant status (as well as the person’s spouse or child) will be granted employment authorization, permission to travel abroad, and may not be detained, determined inadmissible or deportable, or removed pending final adjudication of the alien’s application, unless the person becomes ineligible for such status based upon conduct or criminal conviction.
• Persons present in the U.S. who have been ordered excluded, deported, removed, or ordered to depart voluntarily may, notwithstanding such order, apply for adjustment to conditional nonimmigrant status.

Adjustment of Status for undocumented persons.

• Section 602 of the bill provides for adjustment of status to permanent residence for conditional nonimmigrants meeting certain conditions.
• A conditional nonimmigrant qualifies for the adjustment to lawful permanent resident status if he or she satisfies the following requirements: (1) completes the employment requirement; (2) pays an additional $1000 fine as well as the application fee; (3) is admissible under the immigration laws; (4) undergoes a medical examination; (5) shows proof of payment of taxes; (6) demonstrates the requisite knowledge of English and U.S. civics; (7) successfully undergoes criminal and security background checks; and (8) registers for military selective service, if applicable.
• The children and spouse of such an alien may also apply for adjustment.
• The proposed law exempts from the direct numerical limitations aliens whose status is adjusted from conditional nonimmigrant status to lawful permanent resident status.
• Section 604 of the law provides that employers of aliens who apply for conditional status or adjustment of status shall not be subject to civil or criminal tax liability relating to the employment of the alien prior to his or her receiving employment authorization.
• Persons may not apply for permanent residence until all those within the same class of persons who have previously applied for permanent residence but are waiting as part of the backlog, will have become eligible.

Nonimmigrant Temporary Worker Program .

• Section 402 of the bill creates a new “essential worker category” (“H-2C visa ”) for persons coming temporarily to the U.S. to initially perform labor or services.
• Spouses and children would be eligible to accompany or follow to join the principal worker.
• The worker must give proof to the Consulate of a job offer from an employer in U.S., adhering to certain requirements.
• The nonimmigrant worker is required to pass a criminal and security background check, pay a $500 application fee, and undergo a medical examination.
• An H-2C visa holder may not change their visa status is to be admitted for a period of 3 years, with one 3-year extension allowed.
• An H-2C visa holder is to be admitted for a period of 3 years, with one 3-year extension allowed.
• The visa terminates if the worker is unemployed for 60 or more consecutive days, at which point alien is required to leave U.S. Failure to depart within 10 days after H-2C authorization is over is barred from receiving any immigration benefits in the future
• An H-2C visa holder whose period of authorization is still valid may travel outside the US and re-enter without obtaining a new visa.
• A worker cannot exceed 6 years on an H-2C visa, unless the worker has been physically present outside US for at least 1 year after expiration of H-2C status.
• An employer who hires H-2C nonimmigrant to attest to the fact that such a hire did not and will not adversely affect the wages, working conditions, and employment status of US workers employed by the employer within the 180-day period beginning 90 days before the date on which petition is filed.
• The US employer must also prove that good faith efforts in compliance with Department of Labor regulations have been made to ensure that there are not sufficient US workers willing or available to fill the position.
• The US employer must prove that H-2C worker is being sought for a bona fide job for which employer needs the labor or services, has been and is clearly open to any US worker, and for which employer will be able to place H-2C worker on the payroll.
• The employer to provide the same wages, benefits, and working conditions to H-2C workers as are provided to similarly employed U.S. workers, including providing the same level of health insurance coverage available to US workers, at no cost to the H-2C worker.
• The number of visas under this program is limited to 400,000 for the first fiscal year under the H-2C program. The bill provides for incremental increases if the total number of visas allotted is reached at certain points before the end of the fiscal year

Ability to Adjust Status to Permanent Residence for H-2C visa holders.

• Section 408 of the bill provides for adjustment of status to legal permanent residence aliens having H-2C visa status, either through employer-based petitions or, if the alien has maintained H-2C status in the U.S. for a cumulative total of four years, through self-petition.
• Applicants for adjustment under this section must be physically present in the U.S.
• Applicants must also establish that they meet the same English language and civics requirements for naturalization applicants.
• Applicants will not be deemed ineligible for H-2C nonimmigrant status solely by virtue of the fact that they have filed for adjustment of status or have otherwise sought permanent residence in the U.S.
• The legal stay of an H-2C nonimmigrant beyond the period of authorized stay if a labor certification or immigrant visa petition filed on behalf of the applicant is pending. In such cases, the worker’s stay shall be extended in one-year increments until a final decision is made on his or her lawful permanent residence.

Decrease in Visa Backlogs.

• Section 501 of the bill increase the number of family-based immigrant visas available thus reducing the backlog for persons waiting for a green card through sponsorship by a family member.
• The bill would do so by removing immediate relatives (spouses, children, and parents) of U.S. citizens from the annual worldwide ceiling of 480,000 family-based visas and redistribute them elsewhere in the family-based preference system.
• The bill also would also reduce the backlog for persons waiting for a green card through sponsorship by an employer. It would do so by increasing the ceiling on employment-based visas from 140,000 to 290,000.
• The bill would exempt spouses and children of employment-based immigrants from the limits.
• Section 502 of the bill would also increase per-country ceilings for both employment-based and family-based immigrant visas.

H-1B Visas.

• The proposed law dramatically increases the numbers of H-1B visas available (to 115,000 from 65,000 in the first fiscal year following enactment);
• The law also adds a market-based escalator mechanism so that the number available annually will fluctuate in response to the demand for such visas in the preceding fiscal year;
• The proposed law would also exempt from the numerical limit on H-1B visas certain advanced-degree holders.

Agricultural Worker Program.

• Section 613 of the proposed law would set up a “Blue Card Program” for immigrant workers to obtain legal status
• Applicants would qualify if they worked in U.S. agriculture for at least 150 days or 863 hours, whichever is less, during the 24-month period ending December 31, 2005;
• No more than 1.5 million blue cards could be issued during the 5-year period beginning on the date of enactment of the Act.
• After obtaining “blue card” status, participants would have to do the following to earn a green card: perform agricultural work for a minimum number of days in the next 5-year period beginning on the date of enactment of the Act.

Other Provisions.

• Section 507 of the bill would authorize 24 months of optional practical training for F-1 students
• The bill would also create a new F-4 visa for individuals pursuing an advanced degree in a math, engineering, technology, or a physical sciences program.
• All F4 students, after completing the advanced degree program, obtain full-time employment related to the field of study, to adjust their status to permanent resident upon payment of a $2,000 fee.

Section 508 of the bill would exempt individuals with advanced degrees from the numerical limitations on employment-based immigration: (1) aliens with advanced degrees in science, technology, engineering, or math who have been working in a related field in the United States on a nonimmigrant visa during the three year period immediately preceding their application for an immigrant visa; and (2) aliens with extraordinary ability, outstanding professors and researchers, and aliens who have received a national interest waiver.

A New Immigration Law Passed By Congress: The REAL ID Act.

The decisive victory of Barack Obama in November’s election, coupled with gains by the Democrats in the U.S. Senate and the House of Representatives, could be good news for immigrants. However, it’s likely they will have to wait at least 1-2 years for immigration reform, as it appears low on the agenda of priorities for an Obama administration.

Obama clearly voiced his support for immigration reform in his Presidential campaign. His transition website (www.change.gov) states that it is the policy of the Obama Administration to “support a system that allows undocumented immigrants who are in good standing to pay a fine, learn English, and go to the back of the line for the opportunity to become citizens.” However, it is notable that this goal is listed behind other immigration policy goals such as “creating secure borders” and “removing incentives to enter illegally”. His recent choice for Director of Homeland Security, Janet Napolitano, was tough on border security while serving as Governor of Arizona. (During a subsequent issue I will discuss what the selection of Ms. Napolitano means for immigration policy.)

If and when Obama chooses to make immigration reform a priority, he will likely have more support for it in Congress. The Democratic Party gained at least 7 seats in the Senate and will hold at least a 58-40 advantage there. In the House, the Democrats also had substantial gains and have a 255-175 advantage. In 2007, the McCain-Kennedy immigration reform bill never reached a vote in the Senate because it lacked the necessary 60 votes to cut-off debate or prevent a promised filibuster by the Republicans. Generally, Democrats tended to support immigration reform while Republicans opposed it – although there were many exceptions in both parties. After January, when the newly-elected Congress is sworn in, there may be enough votes to pass immigration reform, depending upon the timing and substance of such a bill and to what extent the public supports or opposes it.

The big impediment for undocumented immigrants now is that the Obama Administration will have many other priorities in the coming year, including an economic stimulus package, health care reform, the energy crisis, tax legislation and ending the war in Iraq. In an interview on CNN recently, Barack Obama listed immigration as a priority item below these other five. Obama did discuss immigration reform in his post-election meeting with his opponent Senator John McCain and it could be that this becomes their own, special planned bipartisan legislative project in the coming 2-3 years.

The fact is that in these difficult economic times, an immigration reform bill is likely to be politically unpopular. I believe it will be left off of the legislative agenda in 2009 and considered in 2010 at the earliest.

Bush Renews His Call for Temporary Worker Visa Program in Speech to Congress

On February 2, in his annual State of the Union speech to the Joint Session of Congress, President Bush renewed his call for a temporary worker visa program. As previously proposed the program would allow persons presently out of status to legalize their status and receive a visa for three years based upon a work sponsor. Combined with the faster labor certification procedure for getting permanent residence through work announced in December, this could possibly offer persons presently out of status in the U.S. a road to permanent residence.

In January of 2004, the Bush Administration announced his Administration's immigration reform proposal, which some have called an "amnesty" program – although he has specifically emphasized it is not an amnesty. Even though it was a very limited temporary worker visa program, the plan was not promoted by the Bush Administration because of the fact it was viewed as politically unpopular and last year was an election year. Now, with a new term in office and immigration reform is once again a topic of discussion in Congress and there is a likelihood that the Bush Administration will now re-introduce and promote its 2004 proposal.

The Bush proposal would have to be ultimately approved by Congress before it became law; but it appears to offer both a three-year temporary visa and the hope of permanent residence, contingent upon a job offer from an American employer. Immigrants hoping to qualify for this program may begin to secure potential employers willing to offer them a job offer in writing that might be used to qualify for this program if it becomes law.

The Administration's proposal includes an uncapped worker program in which immigrants can participate as long as they are working. Undocumented people as well as workers residing outside of the U.S. can apply for the program. American employers must make reasonable efforts to find U.S. workers.

Under this proposal, temporary workers in the program will be allowed to travel back and forth between their countries of origin and the U.S., and the annual number of green cards leading to citizenship will be increased. The proposal also includes incentives for people to return to their home countries.

If reintroduced, the proposal will meet with substantial opposition in Congress. Many members of Congress oppose any type of "amnesty" plan that helps undocumented aliens obtain status. It is difficult to predict whether President Bush will ultimately prevail on this specific proposal, but many in Congress have stated a desire to do something about the numbers of undocumented workers in the U.S. It is likely that some new immigration reform law will be passed and hopefully it will be one that improves the very difficult present laws for persons here without status or persons wishing to come to the U.S.

The Federal Goverment Announces New Much Faster Procedure for Obtaining a Green Card Through Work Sponsors.

For the last several years, the procedure for obtaining permanent residence has been mired in enormous delays, taking anywhere from 3-5 years or more. This has made obtaining a green card through a work sponsor all but impossible.

Now, a new procedure has been announced which the federal government says will take less than one month to process. This has opened up the possibility that persons here temporarily could actually process an application for permanent residence while they wait here legally.

The employment-based permanent residence process is usually a three-step process. The first step is the Application for Foreign Labor Certification whereby the intending immigrant attempts to prove that there is a job available and which cannot be filed by a qualified American applicant. The U.S. Department of Labor has announced a major overhaul of this procedure.

The new labor certification program, known by the name "PERM," will require employers to demonstrate, through advertising and other forms of recruitment, that there are no qualified and available U.S. workers for a particular position. As before with the present “RIR” system, the advertising must be placed before the application is filed. The ads must include two Sunday newspaper advertisements and a job order with the state workforce agency.

The PERM application form will be filed electronically. As presently, there is no processing fee.

DOL has said processing times should be dramatically shorter under PERM than under current Labor Certification/RIR procedures. It is projecting the total processing time to be 45-60 days.

In the past, state workforce agencies (the Employment Development Department in California) administered this process. Under new procedures disclosed by the Department of Labor, these state workforce agencies no longer process Labor Certification applications; the state workforce agencies simply receive newly filed applications and then forward the applications to National Processing Centers for processing.

The new law takes effect March 28, 2005. However, since the recruitment period prior to filing an application lasts 30-180 days, persons may choose to begin the recruitment process immediately so as to be prepared for filing new applications when the law takes effect.

The USCIS Becomes Part of the Bureau of Homeland Security.

In what may be a first step to reform the U.S. Citizenship and Immigration Services (USCIS), the government made radical changes in the structure of this important government agency earlier this year. These changes are now largely fully implemented and in place.

The agency has restructured itself into two divisions; one providing services and adjudications and the other enforcement and security. A single agency head - the Secretary of the Department of Homeland Security - will oversee both divisions. The Bush Administration has stated that it hopes the changes will help improve the efficiency and effectiveness of the agency, which remains to be seen.

A new Bureau of Immigration Enforcement oversees issues involving intelligence, investigations and illegal aliens. The new Bureau of Immigration Services will process applications for naturalization, asylum, work permits and residency green card renewals and deal with other immigrant benefits questions.

An Executive Commissioner who is responsible for all immigration benefit services heads the Bureau of Immigration Services. These services include processing applications for naturalization, asylum, adjustment of status, employment authorization, Green Card renewals/replacement and petitions for family and employment-based immigration.

An Executive Commissioner who is responsible for all enforcement activities heads the Bureau of Immigration Enforcement. The Bureau is critical to enhancing national security and is charged with combating illegal immigration activities at the border, ports of entry and in the interior of the United States.

The field service structure has six services areas that are relatively similar to one another in terms of physical size and client population. They are headed by Service Area Directors, who will focus on immigration service delivery.

The field enforcement structure consists of nine investigations offices headed by Special Agents in Charge and nine inspections port areas headed by Area Port Directors. The former 21 Border Patrol Sectors headed by Chief Patrol Agents continue to be part of the Enforcement Bureau. The sectors and field offices strategically focus resources on the areas of highest security concern and illegal immigration activity.

The former USCIS Regional, District and local field offices, which have increasingly struggled with the responsibilities of dual missions, have been replaced with area and local offices focused on either immigration services or law enforcement. The new structure creates direct chains of command that match expertise with the function being managed. It will also strengthen accountability through clearly defined roles and responsibilities for USCIS employees.

Two new offices have been established to address individual concerns of the public. The Ombudsman in the Bureau of Immigration Enforcement is supposed to provide the public with a means to communicate concerns and complaints about enforcement actions. The Customer Relations Office in the Bureau of Immigration Services is intended to provide the public with direct access to problem-solving assistance related to immigration benefits.

The Chief Information Officer (CIO) is responsible for marshalling the information systems to provide agency-wide data to the enforcement and services bureaus. The CIO, through the Information Coordinator, ensures that the Services Bureau maintains access to relevant enforcement data for adjudication, and that the Enforcement Bureau maintains access to data collected by the Services Bureau. The CIO is also responsible for developing the necessary information inter-links with other federal, state, local law enforcement and other relevant agencies.

As many immigrants have now realized, the new BCIS has now in place more advanced computer networks, which bring detailed information about any non-citizen within the country - provided that they came to the U.S. legally.

The new BCIS intends to strengthen its ties with foreign, federal, state and local law enforcement agencies. Combined with the enhanced computer system, this makes living here illegally more difficult than it ever was - precisely the goal of the federal government.

Government Announces Comprehensive Program to Prevent Persons from Overstaying their Visa.

The Secretary of the Department of Homeland Security announced drastic new steps to control all persons coming into the U.S. and to prevent persons from staying out of visa status in the U.S.

Pursuant to the Homeland Security Act of 2002, the Department of Homeland Security was made responsible for establishing an automated entry/exit system. The Department of Homeland Security has made its new US-VISIT (United States Visitor and Immigrant Status Indicator Technology) program one of its top priorities. The US-VISIT, the Department's automated entry/exit system is intended to make it more difficult for those intending to engage in terrorism in the United States -- but also makes it much harder for those staying here after their visa expires.

In April, Secretary Ridge announced that the US-VISIT system will be capable of capturing and reading a biometric identifier at air and sea ports of entry before the end of 2003. It is anticipated that the system will be capable of scanning travel documents and taking fingerprints and pictures of foreign nationals, which then could be checked against databases to determine whether the individual should be detained.

The US-VISIT system will be implemented incrementally, but eventually will collect information on the arrival and departure of most foreign nationals such as: date; nationality; classification as an immigrant or non-immigrant; complete name; date of birth; citizenship; sex; passport number and country of issuance; country of residence; U.S. visa number, date and place of issuance (where applicable); alien registration number (where applicable); and complete address while in the United States. The information will be stored in databases maintained by Department of Homeland Security and the Department of State as part of an individual's travel record.

The new program will then, upon departure of the individual, verify his or her identity and capture their departure information. This tells the Department of Homeland Security if that person entered legally may have overstayed their visa. Currently, the government has no certain way to know when or even if visitors leave.

When announcing the program, Under-secretary Asa Hutchinson said: "By January 1st of next year, if a foreign visitor flies into Dulles or JFK or LAX or another international airport or arrives at a U.S. seaport- the visitor's travel documents will be scanned. Then, once a photo and fingerprint are taken, the person will then be checked against lists of those who should be denied entry for any reason - terrorist connections, criminal violations, or past visa violations. The information requested will include immigrant and citizenship status; nationality; the country of residence; and the person's address while in the United States. Incomplete information will no longer be good enough. In 99.9 percent of the cases, the visitor will simply be wished a good day and sent on their way. But with that small percentage of "hits," our country will be made much safer, and our immigration system will be given a foundation of integrity that has been lacking for too long." Congress has appropriated nearly $400 million for this year alone to establish it at US airports and seaports.

The information in the US-VISIT system will be available to inspectors at ports of entry, special agents in the Bureau of Immigration and Customs Enforcement (ICE), staff at immigration services offices, U.S. consular offices, and other law enforcement agencies. This information will be made available only to authorized officials for official duties including, identifying non-immigrants who may have overstayed their visas or otherwise violated the terms of their admission, assisting in the adjudication of immigration benefits, and assisting other federal, state, and local law enforcement agencies as necessary.

The government expects that when the US-VISIT system is fully implemented, it will provide the information necessary to account for nearly all temporary foreign visitors in the United States.

This will have dramatic consequences for those who try to overstay their visas in the U.S. It will make it even more important for persons here temporarily to maintain their status here by extending their visa by application to the Immigration Service.

New Law Requires Change of Address Notice to USCIS.

A new law proposed by USCIS would require anyone in the US on a temporary visa or with permanent residence to notify the USCIS of any address changes within 30 days. The USCIS would be able to punish persons who fail to notify the government of address changes by denying immigration benefits and even deporting them.

This proposed rule would amend the regulations of the Immigration and Naturalization Service by requiring every alien who is applying for immigration benefits to acknowledge having received notice that he or she is required to provide a valid current address to the Service, including any change of address within 10 days of the change. It will allow the USCIS to use the most recent address provided by the alien for all purposes, including the service of a Notice to Appear in deportation proceedings. If the alien has changed address and failed to provide the new address to the Service, that the alien will be held responsible for any communications sent to the most recent address provided by the alien.

All persons in deportation proceedings or with pending asylum claims would be advised to immediately notify the USCIS of any changes of address. Otherwise, the USCIS could serve notices on old addresses and such notice would fficient under this new law. Persons could be ordered deported in absentia at hearings, although those persons had no notice of the hearing because they had changed addresses.

Also, this new rule will require green card holders to vigilantly notify the USCIS of any changes or face future problems, such as a denial of citizenship potentially.

Finally, this proposed law will confront persons here illegally (i.e. without valid immigration status) with a choice: either tell the USCIS where they are or potentially expose themselves to future penalties such as bars to legalizing their status.

In such situations, where persons are illegally here, I recommend that, before one takes any specific action on any specific case, he or she should retain an immigration lawyer and discuss all the facts of the case. There may be relevant facts that would affect the outcome that should be discussed with a lawyer before any filing. Do not rely solely on this article to send any notice, to file any application or take any specific steps without first consulting an immigration lawyer.

US VISIT Program for Border Inspection Begins.

On January 5th, 2004, the first phase of US-VISIT, the border inspection program, became operational at 14 seaports and 115 airports across the country. Each nonimmigrant visa holder entering at one of these ports will undergo the standard inspection process and simultaneously will be processed through the US-VISIT system. Expansion of the program at airports and seaports is expected to continue throughout 2004. Unless Congress acts to delay the implementation deadlines, DHS will be required by law to expand the entry/exit program to the top 50 high traffic land border ports by December 31, 2004, and the remaining ports of entry by December 31, 2005.

In conjunction with US-VISIT, all consular posts abroad will be required to issue biometric visas by October 26, 2004. Two digital index finger prints and a photo will be taken of visa applicants, and their information will be checked against the Automated Biometric Identification System (IDENT) database. According to DHS, US-VISIT will apply only to nonimmigrant visa holders. Canadians and foreign nationals entering the United States pursuant to the Visa Waiver Program (VWP) will not be included in US-VISIT. Conversely, Canadians and Visa Waiver country applicants for admission to the U.S. in a status requiring a visa will be required to enroll in US-VISIT.

Children under the age of 14 and persons over the age of 79 on the date of admission are exempt from the program.

Prepare clients for delays at consular posts. Delays will occur in getting appointments at consular posts since the personal appearance waiver policy announced in 2003 that requires interviews of applicants between the ages of 16 and 60 will be subsumed by the US- VISIT fingerprint and photograph requirements. Delays will also occur between the dates of an applicant''s interview and the date of visa issuance. Visa issuance could potentially take days due to the requirement of IDENT checks. (Note: the IDENT check applies in both the nonimmigrant and immigrant visa application process. Currently, US- VISIT only applies to nonimmigrant visa holders.)

What does this mean for you?

• Be prepared to plan for and expect delays upon entering and exiting the U.S via major airports and seaports after January 5, 2004.
• US- VISIT is a mandatory procedure. Failure to provide the requested biometrics necessary to verify the nonimmigrant visa holder''s identity and to authenticate travel documents may result in a determination that the visa holder is inadmissible to the U.S.
• DHS considers it mandatory for visa holders to document their departure with US- VISIT if departure is via a port with US- VISIT exit capability. Failure to properly exit could affect your client''s visa eligibility or potentially cause him or her to be removable from the U.S. For clients who are entering the U.S. through a POE that has US- VISIT capacity, but not leaving through a port that has the exit capacity, you should maintain a copy of travel records and other documents as proof that you exit through a POE without an operational exit kiosk. No matter how you depart the U.S., you are required to surrender your I-94s
• This program means that the government will be more precisely aware of non-immigrants' periods of stay in the U.S. US- VISIT will permit DHS to calculate the duration of a visa holder's presence in the U.S. Such records will affect visa holders in a variety ways such as: immigration benefit eligibility in terms of overstays; one-year abroad requirements for H-1B and L-1 visas; time recapture petitions for H and L visas; two-year home residence requirements for J visas; physical presence requirements for substantial presence determinations under our tax laws; and, potentially in the future, LPR abandonment issues as well as time spent in the U.S. for naturalization purposes.