Hearing about the earthquake in Haiti, you want to help but you don't know where to go. One of the more creative ways you can help is by volunteering with Crisis Commons. According to their website, Crisis Commons is an international volunteer network of professionals drawn together by a call to service. They create technological tools and resources for responders to use in mitigating disasters and crises around the world. It is essentially a way for computer professionals to use their skills via social networking for a good cause. Volunteers are working on mapping and creating tools that people on the ground can use to find missing people, hospitals, and other services.

I had not heard of Crisis Commons until a colleague of mine, Stephen Wu from the law firm of Cooke, Kobrick, and Wu, told me about it. He was volunteering his expertise on legal issues with Crisis Commons. You do not need to be a techie or a legal expert in order to volunteer. Indeed, Crisis Commons solicits help from everyone and has tasks that anyone can do.

You can volunteer by signing up on their website or by attending a crisis camp. By using brain power, energy, and skills, it is a great way for people not in Haiti to make a needed contribution to the relief effort.

As a California immigration lawyer who files many asylum cases, I am used to thinking of a the United States as a place of refuge and to documenting the horrible country conditions of other countries. I have successfully represented applicants for asylum who feared staying in their countries because while serving in their countries' armies, they were harmed on account of their sexual orientation.

It is therefore rather surprising to come across a story of a U.S.soldier who is fleeing to Canada because she fears harm in the U.S. Army on account of her sexual orientation. According to CBC news, U.S. Army Pte. Bethany Smith fled Canada in September 2007 from a U.S. Army base in Fort Campbell, Ky. She applied for refugee status in October 2007, saying that she was harassed and threatened by fellow soldiers over her sexual orientation and feared that her life would be in danger if she were deported and returned to the army. The Canadian authorities initially rejected in her claim in February 2009. However, on appeal, the Federal Court of Canada held that the refugee board must reconsider the case again because the Board made several mistakes in initially reviewing her claim.

The Federal Court's decision noted that the refugee board failed to fully consider the evidence pertaining to the situation of gays and lesbians in the U.S. Army to determine whether Pte. Smith could have availed herself of protection in the United States. The Federal Court also noted that the Board failed to determine whether Pte. Smith would be persecuted on account of her social group - as a lesbian in the U.S. Army if forced to return. There were other errors mentioned in the decision.

It is sad that the U.S. policy of "Don't Ask, Don't Tell," is the basis of an asylum claim in Canada. Pt. Smith was only 19 years old when she fled to Canada. From everything I read, it appears that she wanted to serve in the U.S. Army and no real desire to leave the United States. At a time when we apparently need people to serve in the Armed Forces and in fact give non-citizens a way to immigrate to the United States faster for their service, it seems ridiculous that an American citizen should have to leave. It it is time to eliminate the "Don't Ask, Don't Tell" policy.

The issue of applying or having applied for Selective Service comes up a lot when applying for naturalization. Recently I have seen a number of clients at my San Francisco office who have not registered for Selective Service. I will write a couple of blog posts on the issue of Selective Service and naturalization.

Applicants for naturalization need to establish good moral character for the five years prior to the filing of the naturalization application (Form N-400) up to the time the oath of allegiance is taken. Although there is no specific law, USCIS (United States and Citizenship Services) interprets a failure to register for Selective Service as an act that reflects negatively on an applicant's ability to establish good moral character.

The Selective Service agency is the agency responsible for maintaining a list of men who are eligible the military draft, if we should have one. All men, even if in the United States illegally, between the ages of 18-25, must register for Selective Service. (If you 26 or older, you are too old to register.) A Social Security number is not required to register. The only exception to the registration requirement is for men who are in the United States in valid non-immigrant status (i.e., students on F-1 visas or professionals on H-1B visas). Women are not required to register.

You may register for Selective Service online on their website or you can use the link at the bottom of this page. You may also register at a post office. In addition, you can register if you are applying for a student loan by completing a Federal Student Financial Aid (FAFSA form). You can check "Register Me" on Box #22 of that form, and the Department of Education will furnish Selective Service with the information to register. Finally, if you are applying for adjustment of status in the United States, you will automatically be registered upon USCIS' acceptance of your Form I-485. (The last page of the form indicates that you agree to have USCIS transmit your information to Selective Service.)

If you are not sure whether or not you have registered with Selective Service or you want proof that you have registered, you may go to their website and click on the link to check registration.

My next few blog posts will discuss how to obtain a status letter from Selective Service and what to do if you have not registered with Selective Service.

Yesterday President Obama announced the elimination of the HIV inadmissibility ban at the signing of the Ryan White HIV/AIDS Treatment Extension Act of 2009. Currently individuals with HIV are inadmissible to the United States. As part of the new legislation, individuals with HIV will be admissible and individuals seeking permanent residence will no longer have to be tested for HIV as part of the medical exam that is given to all new immigrants.

The final rule was published yesterday and goes into effect on January 4, 2010.

I recently wrote a post on whether the receipt of health insurance through San Francisco Healthy Families made that person a public charge. I concluded that it did not.

Soon after I wrote that post, United States Citizenship and Immigration Services ("USCIS") issued some new guidance on the definition of public charge. It is helpful because it lists many programs and specifies what does and not support a public charge definition. For instance, it clarifies that the receipt of unemployment compensation, Title II Social Security benefits and Veteran's benefits do not make an individual a public charge.

USCIS issued guidance on public charge determinations on October 20, 2009.

As readers of this blog know, I am a big fan of the internet virtual reality world, Second Life®. I plan to write many more posts about Second Life over the next year as I will be the incoming president of the Second Life Bar Association with my term beginning in February 2010.

For now, I would like to highlight an upcoming conference that will be held on Second Life that is being sponsored by the Second Life Bar Association and the Young Lawyers Division of the American Bar Association. The conference will be about practicing law in a virtual world. It will take place on November 14, 2009 from 12:00-3:00 p.m., (pacific standard time). There will be two sessions divided into broad topic areas led by lawyers who are members of our association and experienced in issues relating to virtual law:

Session 1: Practice Issues Unique to the Virtual World Setting

Daniel Perry – ‘DanielPerry Laa’
Virtual Law Teams

James Bryce Clark -'JamieBryce Infinity'
Privacy and Security

Stephen Davies – ‘Little Gray’
Dispute Resolution, Civil Rights

and

Session 2: Substantive Issues in a Virtual World

Craig Abrahamson – ‘Lexis Looming’ Contracts and Business Transactions

Stephen Wu – ‘Legal Writer’ Intellectual Property Rights

The conference is free but you do need to RSVP ahead of time. For more details about the conference and how to register, you may check the "Practicing Law in a Virtual World" conference page of the SL Bar Association's NIng website. Hope to see you there.

I previously wrote a post about the implementation of a San Francisco city identification card. Now Oakland is moving toward implementation of a similar plan.

On October 20, the Oakland City council will be considering a staff plan on how to implement the municipal identification card

The Oakland City council meeting will take place at 7:00 p.m., at Oakland City Hall, 1 Frank H. Ogawa Plaza. You can find out more information about the Oakland municipal identification card on a website called Oakland City ID Card. (The website is sponsored by a coalition of organizations in support of the identification card and is not an official city website.) It has links to all articles about the identification card and reports on developments on this issue.

On October 2, 2009, The U.S. State Department launched the 2011 Diversity Visa Program. Between October 2 to November 30, 2009, applicants from countries around the world may register for a chance at winning one of the 55,000 immigrant visas that are drawn randomly from all eligible applicants. The State Department will notify all successful applicants between May - July 2010 of their selection. Applicants will then be able to start the visa application process in October 2010.

The State Department has announced that during the first week of registration, they have received over 900,000 entries. This reflects a 63% increase in applications over the same period last year.

For information and instructions on how to register for the lottery, go to the State Department's lottery website: http://www.dvlottery.state.gov/

I previously wrote about how the health care and immigration debate has hit Vallejo. Specifically the Solano County Grand jury had recommended that funding by the Solano County Board of Supervisors to La Clinica De La Raza be limited to only those residents of the county who could prove legal residence or citizenship. (See also my previous post on Update on proposal to limit funding to La Clinic De La Raza.) On October 6, 2009, the Board submitted their response to the Grand Jury's report. I am happy to write that the Board has chosen not to follow the Grand Jury's recomendation and will leave all funding to the clinic intact. I commend the Board for making this decision. The health of all residents of Solano County should be a priority for all of us.

I recently had a client inquire as to whether her enrollment in San Francisco's "Healthy Families" health insurance plan would endanger her green card application because she might be considered a "public charge." I originally thought it would be a problem but it turned out not to be.

San Francisco has a health insurance program called "Healthy Families." It is for uninsured children and low income individuals living in San Francisco. Members pay a small monthly fee and the program is partly funded by the government.

Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (green card) is inadmissible if the individual, "at the time of application for admission or adjustment of status, is likely at any time to become a public charge."

An individual becomes a "public charge" when he or she is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.

USCIS has a very extensive article on their website that discusses what type of benefits, if received, would and would not be relevant in a determination concerning public charge. Non-cash benefits (other than institutionalization for long-term care) are generally not taken into account for purposes of a public charge determination. Specifically regarding San Francisco Healthy Families, USCIS states that Healthy Families benefits "are not considered for public charge purposes."

In an interview with the New York Times, about comprehensive immigration reform, the director of United States Citizenship and Immigration Services (USCIS), Alejandro Mayorkas, indicated that the agency was making plans to accommodate the filing of more visa applications although no new laws have been passed. He stated that the goal was to be able to rapidly process a large increase in applications if some kind of comprehensive immigration reform bill is passed by Congress.

He told the paper that USCIS is currently able to handle applications for about six million applicants a year. Under some legalization proposals, the agency may receive that number of applications in a few weeks.

There are no serious legalization proposals currently pending before Congress. It is heartwarming to me though that USCIS thinks there might be and is actively planning on how to be prepared for it.

Applying for citizenship can be a daunting task because your entire immigration history is reviewed at the time you apply for citizenship. It can also be an expensive one because the filing fee with the biometrics is quite expensive at $675.00.

If you are looking for legal assistance with your citizenship application, you are low income and you live in the San Francisco Bay area, you may wish to consider contacting the legal department of Jewish Family and Children's Services ("JFCS"). The agency provides legal assistance with a variety of family based immigration petitions and applications. The staff also assists people with applying for citizenship and disability waivers (Form N-648). They do an outstanding job and as recognition of their work in the community, United States and Citizenship Services ("USCIS") just awarded them a grantfor the purpose of citizenship assistance and education.

For legal immigration assistance, you may check out their citizenship services websiste or call the emigre department of JFCS at (415) 449-2900.

I recently wrote a post about a proposal pending in front of the Solano County Board of Supervisors that recommends that the Board limit funding to La Clinica de la Raza in Vallejo to only Solano County residents who have proof of citizenship or legal residency. I indicated in my post that the Board was going to vote on the proposal on September 22, 2009. This date has now been changed. The Board is now going to vote on the proposal at their meeting scheduled for October 6, 2009.

I have received a copy of the actual report issued by the "watch dog" group that recommended the cut in funding. It turns out that the recommendation was made by the Solano County Grand Jury. Apparently the Grand Jury received a complaint from a "citizen" (although the report does not indicate how they verified the citizenship of this individual) about Solano County providing funding to the clinic because the clinic provides services to illegal aliens. The Grand Jury decided to investigate the complaint. Based on their investigation, the Grand Jury recommended that the County contributions (of $100,000 each year for three years) be limited to "serving only Solano County residents who have proof of citizenship or legal residency."

In my opinion there is a lot that is wrong with the recommendation morally and socially, but I wish to focus on the immigration aspect of it for this post. Basically it is my opinion that a verification requirement of immigration status will create an unworkable and bureaucratic mess for the following reasons.

Today was a day where everything worked out the way it should have. I represented two individuals at their naturalization interviews at the San Francisco district office. My clients, husband and wife, are both severely disabled. They could not learn history and English because of their disabilities. We filed their applications for naturalization (Form N-400) along with waivers of the English and history requirements (officially called Medical Certification for Disability Exceptions, Form N-648),

I have had my share of battles with USCIS officers over N-648s so I expected today to be no different. I was pleasantly surprised today. In both situations, the officers had read the N-648s and approved them without incident. Just as importantly, the USCIS officers treated my clients in a respectful and understanding manner. Today the officers seemed to understand that my clients were disabled and were willing to work with them to adjudicate their applications.

And for the best part, USCIS agreed to administer administrative oaths to my clients today so that they would not have to travel to the oath ceremony.

I am very pleased at how the day worked out. I had represented my clients in their very first applications with USCIS and now I have seen them all the way through the immigration process. It is has been a rewarding experience.

If your experience with the N-648 process has not been good or you are concerned about the adjudications of N-648s in general, you may be interested in an upcoming meeting/teleconference sponsored by the USCIS on the N-648. On October 8, USCIS will be soliciting views from the public about the adjudication of Form N-648 and will be seeking suggestions on how to improve the process.

I am a member of the Legislative Affairs Committee of the Benicia Chamber of Commerce. We periodically invite federal and Solano County legislators and their aides to our committee meetings to update us on local issues that impact business owners and residents of Benicia. I enjoy being on the committee because I get a real feel for what is happening in the city.

On Wednesday, September 9, the legislative aides for Congressman George Miller and Solano County Supervisor Linda Seifert spoke at our meeting. One of the issues they spoke about was the existence of La Clinica North Vallejo. The health clinic was established in November 2008 to provide urgent and primary care to the community's low income and uninsured population. The clinic is situated across the street from Sutter Solano Hospital and is funded in part by Sutter Solano, Kaiser Vallejo and Solano County. The idea behind the establishment of the clinic and the location of the clinic was to provide care for patients who were going to the emergency room in the hospitals. It is more cost effective for people to go to a clinic and receive preventive care than to show up at an emergency room for something that could have been prevented. Some of the clients who I see in my Benicia Social Security practice have been receiving care at La Clinica Vallejo so I was excited to hear about it.

After the meeting I returned to my office and decided to read more about La Clinica North Vallejo. What I learned, surprised me. I did not know that it has become the focus of a debate about illegal immigration. As the Wall Street Journal recently reported, the clinic has been criticized for providing care to undocumented residents. A "watchdog group" (unidentified in the article) has released a report advising the county that the clinic should only serve residents who have proof of citizenship or legal residency. According to the article, the County board of supervisors and the County health director have 90 days to respond to their report.

• 156
  
  
• DS-157
  
  
• DS-158 (for students)
  
  
• Current CV/Resume
  
  
• Full list of all of your publications

1. Name and Passport Number
   
   
2. Describe in detail your current field of research/work
   
   
3. Describe your current position
   
   
4. Provide dates and reasons for any past travel to the US
   
   
5. Provide a detailed statement of the purpose of your visit to the US
   
   
6. What organizations and individual facilities will you have access to in the US?
   
   
7. Describe in detail the real and potential applications of your work or research. Assume that you are describing your work to a qualified professional in your field
   
   
8. What work, if any, does your US sponsor do for the US Government? Is any of that work sensitive or classified? Will you be involved in the work?
   
   
9. Describe in detail what research or work you will perform in the US and explain how your trip to the United States will benefit or change your current research or work
   
   
10. Who is funding your trip?
    
    
11. Provide a list of three references of people who are familiar with your work or research. Please provide their names, professional title, and contact information
    
    
12. Provide your trip itinerary with contact information for where you will be staying in the US. If you are a student, please provide the contact information for the professors who will be overseeing your studies/research
    
    
13. List the names of all accompanying travelers, including both family members and colleagues

Department of Homeland Security (DHS) Secretary Janet Napolitano announced the designation of Greece as a member of the Visa Waiver Program (VWP) - strengthening passenger information sharing and ensuring strict security standards while streamlining travel for Greek citizens visiting the United States.

“Our efforts to guard against terrorism while enhancing legal travel and trade depend upon close collaboration with our international partners,” said Secretary Napolitano. “I commend our partners in Greece for committing to strong screening and security standards and enhanced information sharing for travel by Greek citizens to the United States as we work together to protect our citizens and strengthen our economies.”

Greece’s Visa Waiver Program (VWP) designation represents a major step forward in the continued and long-standing economic and security partnership between the United States and Greece - reflecting more than two years of coordination between the two countries on Greece’s entry into Visa Waiver Program (VWP).

In accordance with the VWP designation process, DHS determined that Greece complies with key security and information-sharing requirements—such as enhanced law enforcement and security-related data sharing with the United States; timely reporting of lost and stolen passports; and the maintenance of high counterterrorism, law enforcement, border control, aviation and document security standards. In turn, Greek citizens will be permitted to travel to the United States for up to 90 days without obtaining a visa.

With this announcement, Greece joins the 35 nations already participating in Visa Waiver Program (VWP) - established as a pilot program in 1986 to help eliminate unnecessary barriers to travel and made permanent on October 30, 2000. Like VWP travelers from other countries, Greek citizens will be required to apply for an Electronic System Travel Authorization (ESTA) through the Web-based system. Greek citizens will be able to visit the United States without visas in approximately 30 days.

[Federal Register: August 25, 2009 (Volume 74, Number 163)]
[Notices]
[Page 42909-42910]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25au09-91]

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DEPARTMENT OF HOMELAND SECURITY

U.S. Customs and Border Protection

[CBP Dec. 09-34]

Notice of Postponement of H-2A and H-2B Temporary Worker Visa Exit Program Pilot

AGENCY: U.S. Customs and Border Protection, Department of Homeland Security.

ACTION: General notice; postponement of commencement date.

---------------------------------------

SUMMARY: U.S. Customs and Border Protection (CBP) announces the postponement of the commencement date of the H-2A and H-2B Temporary Worker Visa Exit Program Pilot, originally set for August 1, 2009. The pilot program will require temporary workers within H-2A and H-2B nonimmigrant classifications that enter the United States at either the port of San Luis, Arizona or the port of Douglas, Arizona, to depart from one of those ports and to submit certain biographical and biometric information at one of the kiosks established for this

[[Page 42910]]

purpose. A delay of the commencement date is necessary to ensure that the kiosks are fully operational.

DATES: The pilot program will commence December 8, 2009.

FOR FURTHER INFORMATION CONTACT: Ms. Erin M. Martin via e-mail at ERIN.Martin@dhs.gov.

SUPPLEMENTARY INFORMATION: On December 18, 2008, U.S. Customs and Border Protection (CBP) published a Notice in the Federal Register (73 FR 77049), announcing that CBP is establishing a new land-border exit system for H-2A temporary workers, starting on a pilot basis, at certain designated ports of entry.\1\ This notice was published concurrently and is in accordance with a Final Rule published by the Department of Homeland Security (DHS) in the Federal Register (73 FR 76891). The Final Rule implements the pilot program by adding 8 CFR 215.9, which provides that an alien admitted on an H-2A visa at a port of entry participating in the Temporary Worker Visa Exit Program must also depart at the end of his or her authorized period of stay through a port of entry participating in the program and present designated biographic and/or biometric information upon departure. As required by 8 CFR 215.9, CBP published a Notice in the Federal Register (73 FR 77049) designating H-2A workers that enter the United States at either the port of San Luis, Arizona or the port of Douglas, Arizona, as participants in the Temporary Worker Visa Exit Program, who must depart from one of those ports and submit certain biographical and biometric information at one of the kiosks established for this purpose.

---------------------------------------

\1\ The H-2A nonimmigrant classification applies to aliens seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States. Immigration and Nationality Act (Act or INA) sec. 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a); see 8 CFR 214.1(a)(2) (designation for H-2A classification).

---------------------------------------

On December 19, 2008, CBP published a Notice of Expansion of Temporary Worker Visa Exit Program Pilot To Include H-2B Temporary Workers in the Federal Register (73 FR 77817), in line with the Final Rule published concurrently by DHS in the Federal Register (73 FR 78104).\2\ The Final Rule expands the pilot program by amending 8 CFR 215.9, to provide that aliens admitted on an H-2B visa at a port of entry participating in the Temporary Worker Visa Exit Program must also depart at the end of his or her authorized period of stay through a port of entry participating in the program and present designated biographic and/or biometric information upon departure. As required by 8 CFR 215.9, as amended, CBP published a Notice in the Federal Register (73 FR 77817) to include H-2B workers in the Temporary Worker Visa Exit Program at the ports of San Luis, Arizona and Douglas, Arizona.

---------------------------------------

\2\ The H-2B nonimmigrant classification applies to foreign workers coming to the U.S. temporarily to perform temporary, non- agricultural labor or services. Immigration and Nationality Act (Act or INA) sec. 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b); see 8 CFR 214.1(a)(2) (designation for H-2B classification).

---------------------------------------

Pursuant to the Notices in the Federal Register (73 FR 77049 and 73 FR 77817) published by CBP containing all the required elements referenced in 8 CFR 215.9, as amended, any alien that is admitted on an H-2A or H-2B visa into the United States at a designated port on or after August 1, 2009, is subject to the pilot program. However, in order to ensure that the facilities necessary to implement the pilot program are fully operational and meet the needs of the agency and the public, this notice postpones the start date of the pilot program. Accordingly, this notice postpones the start of the pilot program from August 1, 2009 to December 8, 2009.

Dated: August 20, 2009.
Jayson P. Ahern,
Acting Commissioner, U.S. Customs and Border Protection.
[FR Doc. E9-20424 Filed 8-24-09; 8:45 am]

BILLING CODE 9111-14-P

U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano today granted deferred action for two years to widows and widowers of U.S. citizens—as well as their unmarried children under 18 years old—who reside in the United States and who were married for less than two years prior to their spouse’s death.

“Smart immigration policy balances strong enforcement practices with common-sense, practical solutions to complicated issues,” said Secretary Napolitano. “Granting deferred action to the widows and widowers of U.S. citizens who otherwise would have been denied the right to remain in the United States allows these individuals and their children an opportunity to stay in the country that has become their home while their legal status is resolved.”

Secretary Napolitano also directed U.S. Citizenship and Immigration Services (USCIS) to suspend adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for reassessment of immigration status was the death of a U.S. citizen spouse prior to the second anniversary of the marriage.

Additionally, U.S. Immigration and Customs Enforcement (ICE) will defer initiating or continuing removal proceedings, or executing final orders of removal against qualified widow(er)s and their eligible children.

USCIS will also consider favorably requests for humanitarian reinstatement where previously approved petitions for widow(er)s had been revoked because of the law. DHS will soon issue guidance instructing the public on how to apply for this relief.

These directives apply regardless of whether the citizen filed a petition for the alien spouse before death. Deferred action is generally an act of prosecutorial discretion to suspend removal proceedings against a particular individual or group of individuals for a specific timeframe; it cannot resolve an individual’s underlying immigration status. Individuals granted deferred action may apply for work authorization if they can demonstrate economic necessity.

While Secretary Napolitano’s directive provides a short-term arrangement for widow(er)s of deceased U.S. citizens, legislation is required to amend the definition of “immediate relatives” in the Immigration and Nationality Act to permit surviving spouses to remain indefinitely after the U.S. citizen spouse dies, enabling them to seek permanent resident status.

[Federal Register: April 6, 2009 (Volume 74, Number 64)] [Rules and Regulations] [Page 15367-15369] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr06ap09-2]

DEPARTMENT OF HOMELAND SECURITY

U.S. Citizenship and Immigration Services 8 CFR Part 208 [CIS No. 2440-08; DHS Docket No. USCIS 2008-0022]

Forwarding of Affirmative Asylum Applications to the Department of State

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Final rule.

SUMMARY: The Department of Homeland Security (DHS) is amending its regulations to alter the process by which it forwards Form I-589, Application for Asylum and Withholding of Removal, for asylum applications filed affirmatively with U.S. Citizenship and Immigration Services (USCIS) to the Department of State (DOS). The affirmative asylum process allows individuals, who are physically present in the United States, regardless of their manner of arrival and regardless of their current immigration status, to apply for asylum. The current regulation requires USCIS (formerly Immigration and Naturalization Service (INS)) to forward to DOS a copy of each completed asylum application it receives. This rule provides that USCIS will no longer forward all affirmative asylum applications to DOS. Instead, USCIS will send affirmative asylum applications to DOS only when USCIS believes DOS may have country conditions information relevant to the case. This change will increase the efficiency of DOS' review of asylum applications. Additionally, in accordance with the Homeland Security Act, this rule revises references to legacy INS in 8 CFR 208.11.

DATES: Effective date: This final rule is effective April 6, 2009. COMMENT DATE: Written comments must be submitted on or before June 5, 2009 in order to be assured of consideration. ADDRESSES: The public may submit comments, identified by DHS Docket No. USCIS-2008-0022, by any of the following methods: Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Mail: Chief, Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security,111

[[Page 15368]]

Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To ensure proper handling, please reference DHS Docket No. USCIS-2008-0022 on the correspondence. This mailing address may be used for paper, disk, or CD-ROM submissions.

HAND DELIVERY/COURIER: U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. Contact Telephone Number (202) 272-8377.

FOR FURTHER INFORMATION CONTACT: Jedidah M. Hussey, Deputy Chief, Asylum Division, Refugee, Asylum, and International Operations Directorate, U.S. Citizenship and Immigration Services, 20 Massachusetts Avenue, NW., Third Floor, Washington, DC 20529; Telephone (202) 272-1614.

SUPPLEMENTARY INFORMATION:

I. Public Participation

Instructions: All submissions received should include the agency name and DHS Docket No. USCIS-2008-0022 for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov. Submitted comments may also be inspected at the Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529.

II. Background

DHS regulations, at 8 CFR 208.11(a), currently state, ``The Service shall forward to the Department of State a copy of each completed application it receives. At its option, the department of State may provide detailed country conditions information relevant to eligibility for asylum or withholding of removal.'' Under the affirmative asylum application process, USCIS receives asylum applications filed by applicants who are not in removal proceedings at its service centers. Upon receipt of an asylum application, service center personnel review the asylum application to confirm that the application is properly filed and complete, after which the service center forwards the application to one of the Asylum Division's eight field asylum offices for adjudication by an asylum officer.

Simultaneously, the service center forwards a copy of the asylum application to DOS's Bureau of Democracy, Human Rights and Labor (DRL). However, when an asylum applicant is permitted to file an asylum application directly with an Asylum Office, the Asylum Office is responsible for forwarding a copy of the application to DRL.

In fiscal year 2007, USCIS received 25,680 affirmative asylum applications and forwarded a copy of each to DOS. DOS and USCIS have determined that the current forwarding process is not an efficient method for the agencies to identify and review cases for which DOS review would yield the most value. To address this problem, this rule permits USCIS, in its discretion, to send affirmative asylum applications to DOS in those cases where USCIS believes DOS would be likely to have information relevant to the applicant's eligibility for asylum and withholding of removal. Generally, this would be information that is not otherwise available or confirmation of publicly available information, where such validation would be helpful to the adjudication.

Additionally, USCIS and DOS have already implemented an arrangement in which USCIS's Asylum Division headquarters (HQASM) forwards certain applications to DRL for review and comment. USCIS requires all Asylum Offices to send specific categories of cases to HQASM for further review after the Asylum Office completes its initial interview and preliminary assessment of eligibility. HQASM reviews these cases for quality assurance purposes to ensure that eligibility standards are properly applied. In conducting the quality assurance review, an asylum officer at HQASM seeks DRL comments if the asylum officer believes that DRL could provide information specific to the applicant or the applicant's situation. This process has proven to be a productive system by which USCIS obtains country conditions information on specific cases. USCIS and DOS intend to maintain this system, which has been in place for several years.

DRL applies its country conditions expertise to asylum matters in a variety of ways, which as a whole are referred to as DRL's asylum function. Consistent with the regulation currently at 8 CFR 208.11(c), and as will be retained in the amended regulation, DRL responds to requests for comments on cases specifically brought to its attention by USCIS's Asylum Division and by the Department of Justice (DOJ), Executive Office for Immigration Review (EOIR) immigration judges.

DRL also produces updated issue papers or ``country profiles'' for use in asylum adjudications, and it responds to certain DHS, U.S. Immigration and Customs Enforcement's requests for document verification in asylum cases before EOIR. Additionally, DRL is required to provide to Congress annually Country Reports on Human Rights Practices and International Religious Freedom Reports which provide country conditions information that will continue to be useful to the adjudication of asylum applications. This rule will not alter these DRL functions. This rule also does not affect how USCIS reviews and considers these DRL published reports in asylum adjudications. USCIS will continue to review the aforementioned reports, which provide country conditions information useful to the adjudication of asylum applications.

Finally, this rule is limited to 8 CFR 208.11. This rule only addresses submissions of affirmative asylum applications from USCIS to DOS. It does not make any amendments to 8 CFR 1208.11, which governs the defensive application procedure for asylum applications filed by individuals in removal proceedings before EOIR.

III. Regulatory Requirements

A. Administrative Procedures Act

This rule addresses requirements that are procedural in nature and does not alter the substantive rights of applicants or petitioners for immigration benefits. Accordingly, this rule is exempt from the notice and comment requirements under the Administrative Procedures Act (APA) at 5 U.S.C. 553(b)(A). This rule does not change the eligibility rules governing any immigration benefit and it will not confer rights or obligations upon any party. Accordingly, USCIS is implementing these amendments effective immediately upon publication in the Federal Register. Nonetheless, DHS believes that public comments may be valuable and is providing the public the opportunity to make comments on this change as a matter of discretion. Comments are welcome about the relationship between the USCIS and DOS, DHS and DOS, and the role of foreign policy considerations in asylum adjudications.

B. Regulatory Flexibility Act

Because USCIS is not required by the APA to publish a notice of proposed rulemaking to make the changes promulgated in this rule, the Regulatory Flexibility Act (RFA) is not applicable.

C. Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by state, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of the United States-based companies to compete with foreign-based companies in domestic and export markets.

E. Executive Order 12866

This rule has been designated as not significant under Executive Order 12866, section 3(f), Regulatory Planning and Review. Thus it has not been reviewed by the Office of Management and Budget.

F. Executive Order 13132: Federalism

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

D. Small Business Regulatory Enforcement Fairness Act of 1996

G. Executive Order 12988: Civil Justice Reform

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

H. Paperwork Reduction Act

The information collection requirement (Form I-589) contained in this rule has been previously approved by the Office of Management and Budget under the provisions of the Paperwork Reduction Act. The OMB control numbers for these collections are contained in 8 CFR 299.5, Display of control numbers. This rule does not contain a new or revised information collection.

List of Subjects in 8 CFR Part 208

Administrative practice and procedure, Aliens, Immigration, Reporting and recordkeeping requirements

Accordingly, chapter I of title 8 of the Code of Federal Regulations is amended as follows:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

1. The authority citation for part 208 continues to read:

Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 8 CFR part 2.

2. Section 208.11 is revised to read as follows:

U.S. Customs and Border Protection officials in San Diego are anticipating an increase in applications by Mexican travelers for the required I-94 permit during holy week and the Easter holiday.

Mexican border crossing card (or “laser visa”) holders who plan to make an extended visit to the United States during the upcoming holiday season are urged to obtain the essential document early instead of waiting until the day of travel, CBP officials announced today.

“We urge travelers to obtain the required document as much as a week early to avoid congestion and potential delays, if they apply now they will obtain the essential document faster and more conveniently,” said Oscar Preciado, port director of the San Ysidro and Otay Mesa passenger border stations. “Travelers may obtain the permit 24 hours a day at both the San Ysidro and Otay Mesa ports.”

Permit seekers are reminded that at the San Ysidro facility they must leave their vehicles in Mexico and travel on-foot to the old port building on the pedestrian walkway just across the border. Because the building is located in front of the pedestrian entrance to the port, travelers will not need to make formal entry into the U.S. and can conveniently walk back to Mexico.

At the Otay Mesa border crossing, permit seekers must also travel on foot to obtain the I-94 at the pedestrian facility.

As the busiest land border port in the nation with 35,000 - 40,000 vehicles and 20,000 pedestrians daily entering the U.S. through its gates, the San Ysidro facility is one of the Southwest border stations most affected by heavy holiday I-94 processing.

All traveling family members need to be present during the I-94 application process. Those requesting the permits also must be able to establish financial solvency and proof of residency outside the U.S.

Since 1991, the United States has provided safe haven for Liberians who were forced to flee their country as a result of armed conflict and widespread civil strife, in part through granting Temporary Protected Status (TPS). The armed conflict ended in 2003 and conditions improved such that TPS ended effective October 1, 2007. President Bush then deferred the enforced departure of the Liberians originally granted TPS. That grant of Deferred Enforced Departure (DED) expires on March 31, 2009. I have determined that there are compelling foreign policy reasons to extend DED to those Liberians presently residing in the United States under the existing grant of DED.

Pursuant to my constitutional authority to conduct the foreign relations of the United States, I have determined that it is in the foreign policy interest of the United States to defer for 12 months the removal of any Liberian national, or person without nationality who last habitually resided in Liberia, who is present in the United States and who is under a grant of DED as of March 31, 2009. The grant of DED only applies to an individual who has continuously resided in the United States since October 1, 2002, except for Liberian nationals, or persons without nationality who last habitually resided in Liberia:

1. who are ineligible for TPS for the reasons provided in section 244(c)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. 1254a(c)(2)(B);
2. whose removal you determine is in the interest of the United States;
3. whose presence or activities in the United States the Secretary of State has reasonable grounds to believe would have potentially serious adverse foreign policy consequences for the United States;
4. who have voluntarily returned to Liberia or his or her country of last habitual residence outside the United States;
5. who were deported, excluded, or removed prior to the date of this memorandum; or
6. who are subject to extradition.

On December 19, 2008, DHS published in the Federal Register a final rule ‘Changes to Requirements Affecting H-2B Nonimmigrants,’ which provides that the Secretary of Homeland Security will publish a list of designated countries whose nationals can be the beneficiaries of an approved H-2B petition and are eligible for H-2B visas. This initial list will be composed of countries that are important for the operation of the H-2B program and are cooperative in repatriation of its citizens, subjects, nationals or residents who are subject to a final order of removal from the United States. Publication of such notice is made by the Secretary of Homeland Security, with the concurrence of the Secretary of State.

Under the final rule, the Department of Homeland Security (DHS) will only approve petitions for H-2B nonimmigrant status for nationals of countries designated by means of this list or by means of the special procedure allowing petitioners to request approval for particular beneficiaries if the Secretary of Homeland Security determines that it is in the U.S. interest. Pursuant to the final rule, this notice designates those countries the Secretary of Homeland Security, with the concurrence of the Secretary of State, has found to be eligible to participate in the H-2B program.

This notice is effective January 18, 2009, and shall be without effect at the end of one year after January 18, 2009.

Pursuant to the authority provided to the Secretary of Homeland Security under sections 241, 214(a)(1), and 215(a)(1) of the Immigration and Nationality Act (INA) (8 U.S.C. 1231, 1184(a)(1), and 1185(a)(1)), I have designated, with the concurrence of the Secretary of State, that nationals from the following countries are eligible to participate in the H-2B visa program:

• Argentina;
• Australia;
• Belize;
• Brazil;
• Bulgaria;
• Canada;
• Chile;
• Costa Rica;
• Dominican Republic;
• El Salvador;
• Guatemala;
• Honduras;
• Indonesia;
• Israel;
• Jamaica;
• Japan;
• Mexico;
• Moldova;
• New Zealand;
• Peru;
• Philippines;
• Poland;
• Romania;
• South Africa;
• South Korea;
• Turkey;
• Ukraine;
• United Kingdom.

This notice does not affect the status of aliens who currently hold H-2B nonimmigrant status.

U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano announced today a wide-ranging action directive on immigration and border security.

The directive requires specific department offices and components to work together and with state and local partners to review and assess the plans and policies to address: criminal and fugitive aliens; legal immigration benefit backlogs; southbound gun smuggling; cooperation with the National Guard; widows and widowers of U.S. citizens; immigration detention centers; and electronic employee verification.

Secretary Napolitano has already issued 11 action directives: Federal Emergency Management Agency (FEMA) state and local integration; national planning, cybersecurity; northern border strategy; critical infrastructure protection; risk analysis; state and local intelligence sharing; transportation security; state, local and tribal integration; first responder health surge capacity and Hurricane Katrina.

Today’s directive is the last in an initial series on a wide variety of issues impacting the department’s critical missions: Protection, Preparedness, Response, Recovery and Immigration.

The full action directive is below:

Immigration and border security - America is a nation of immigrants – and it is the Department of Homeland Security's role to manage America’s borders in a way that furthers this heritage, promoting legal immigration and cross-border commerce, while upholding the rule of law. The department must also enforce the law, targeting border criminals who use violence and fraud to smuggle people and drugs into the United States. But, the department must facilitate international travel and the naturalization of immigrants into our society. Smart, resolute enforcement by the department can keep Americans safe, foster legal immigration to America, protect legitimate commerce, and lay the groundwork for a more comprehensive reform.

To this end, the relevant components and offices of the department are asked to provide the following assessments about current programs, including metrics of success, gaps in service/ resources, partnerships with state and local governments and other federal agencies as well as offer suggestions for reforms, restructuring, and consolidation where needed.

Criminal and Fugitive Aliens

The Secure Communities Program works with state, local, and tribal law enforcement to identify and remove aliens unlawfully present who are involved in criminal activity. How can we best accelerate its development and expansion?

The Institutional Removal Program facilitates the entry of final removal orders before aliens convicted of crimes are released from criminal custody. What measures are needed, and with what priority, to secure expansion of this resource-saving program? Which state or federal facilities are the main targets of opportunity for efficient expansion? What specific cooperation is needed from the Department of Justice (DOJ) to facilitate expansion?

Fugitive Operation Teams. Please provide the current metrics of fugitive apprehension and removal (clearly differentiate the number of fugitives that are actually removed versus those aliens unlawfully present who are simply encountered by the teams while on assignment). How can fugitives be more effectively prioritized for these purposes and what steps can be taken to expedite removal?

The Electronic Travel Document Program facilitates the travel of persons subject to removal orders. How can the department best secure an expansion of this program to include the consulates of additional countries?

The 287(g) program provides for agreements whereby federally trained and supervised state and local law enforcement officials can participate in the investigation, apprehension, and transport of unauthorized aliens. How many officers have been trained to date? How many agreements have been signed with state and locals to date and how many are ready to be signed? What is the current turnaround time to sign an agreement and what can be done to expedite more agreements? How does this model compare in cost, effectiveness, and administration, to other forms of cooperation with these officials or entities? What are the strengths and challenges with jail model agreements versus task force model agreements?

Legal Immigration Benefit Backlogs - What progress has been made in reducing the significant backlogs that had developed in the adjudication of naturalization petitions and adjustment of status (green card) applications? Which regional offices still lag behind in making progress toward target processing times, and what specific steps are recommended for providing priority resources to those offices?

Please provide an assessment of information-sharing with the Department of State’s Bureau of Consular Affairs on projected adjustment caseloads, to be used by that Bureau in setting each month’s cutoff dates on waiting lists for immigration categories that are limited by a yearly quota. What steps have been taken and what further steps are recommended to make sure that the full quota of permanent immigration spaces is used each fiscal year? What regulatory or legislative changes (including a possible pre-application filing procedure for adjustment cases) are recommended to facilitate caseload planning and make optimum use of U.S. Citizenship and Immigration Services adjudication capacity?

Southbound Gun Smuggling - A growing wave of criminal violence in Mexico’s border communities and in the interior of the country, fueled by the availability of guns and currency smuggled south from the U.S. poses a serious threat to Mexico’s security and portends deepening problems for our nation’s border regions. How are U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection currently addressing southbound smuggling and how can these efforts be improved? Include an assessment of potential infrastructure needs, investigative and interdiction capabilities, and cooperation with other agencies or offices such as the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Drug Enforcement Administration (DEA), or the Department of State Bureau of International Narcotics and Law Enforcement Affairs, and with intelligence centers (the DEA El Paso Intelligence Center and DOJ National Drug Intelligence Center). Also assess the prospects for enhanced use of investigations and prosecutions for money laundering or other financial offenses to disrupt the illicit firearms trade. Please explain how these efforts will be enhanced with funding from the Merida Initiative and how this is being coordinated with the states and the Office of National Drug Control Policy.

National Guard. Describe and assess the current deployment of the National Guard at or near the border. What overarching plans exist for coordinating with the Guard at the border? How could the arrangements for the Guard’s presence be made more effective for support of DHS missions?

Widows and Widowers of U.S. Citizens - Recent media accounts have highlighted the cases of widows and widowers of U.S. citizens who had petitioned for the alien spouse’s immigration, but whose petitions were not adjudicated before the citizen spouse’s death. Because of the death of the petitioning spouse, the petitions were denied. What are the regulatory, legislative, and litigation options that could be considered to immediately address the situation of these widows and widowers?

Immigration Detention Facilities - What is the current status of the Performance Based National Detention Standards (Standards), and in what ways do they improve upon previous detention standards? To which facilities do they apply at present, and what are the plans for full application of the standards to all facilities housing ICE detainees? How do the Standards address concerns associated with the treatment of families and unaccompanied children? What are the arrangements for monitoring compliance with the Standards, and what corrective actions or sanctions are applied in the case of violation or shortfall? What steps are taken to segregate ordinary detainees from those with a serious criminal record (either immigration detainees or other inmates of a facility that may also house prisoners in the criminal justice system)? What are the prospects, advantages, and disadvantages of expanding the use of community-based alternatives to detention or of less-restrictive models of detention as have been used in Broward County, Fla.?

Electronic Employment Verification - Reducing unauthorized employment is crucial for controlling the problem of illicit migration. E-Verify has been a key component in proposals for comprehensive immigration reform and holds real promise as a central element in effective immigration enforcement that combines border efforts with interior measures. But E-Verify has encountered criticism both for false negatives (persons who are authorized to work but who nonetheless receive a tentative non-confirmation from the system) and for false positives (unauthorized aliens who receive a confirmation because they have borrowed or stolen the identity of an authorized worker).

U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano announced two action directives, on Federal Emergency Management Agency (FEMA) integration with state and local partners and national planning.

These directives instruct specific offices to gather information, review existing strategies and programs, and provide oral and written reports back to her in February. Secretary Napolitano has already issued seven action directives: cyber security; northern border strategy; critical infrastructure protection; risk analysis; state and local intelligence sharing; transportation security; and state, local and tribal integration. She will continue to issue additional action directives in the coming days focused on the missions critical to the department: Protection, Preparedness, Response, Recovery and Immigration.

FEMA state and local integration - Ensuring the nation’s preparedness for all events and all hazards is vital to economic and homeland security and a responsibility of all levels of government. To that end, FEMA shall work with state and local emergency management to:

Immediately review plans and activities underway to strengthen and coordinate preparedness activities and assess any overlaps and inconsistencies in these plans and activities. These assessments should include, but not be limited to, the following:

• Post-Katrina Emergency Management Reform Act
• Target Capabilities List; the Integrated Planning System
• State Preparedness Reports
• Federal Preparedness Reports
• Nationwide Plan Reviews
• Planning requirements for emergency management grants
• National Response Framework

Immediately submit any possible restructuring or consolidations for these plans and activities that are necessary and identify areas where state and local emergency management agencies can provide input.

National planning - The department is leading an interagency effort to develop plans at multiple levels to address eight scenario sets, which are based on the 15 National Planning Scenarios crafted by the Homeland Security Council. DHS and the federal interagency are utilizing the Integrated Planning System to develop and adjudicate interagency plans for each scenario. What is the status of each of these plans and the anticipated timeframe and actions needed to complete the process? Are there any recommendations for restructuring or consolidation? Where can state and local emergency management agencies provide input and assistance? An oral report is due Feb. 9, with a final report due Feb. 23.

• E-Verify is an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees. U.S. Citizenship and Immigration Services (USCIS) administers the program.



• Free, safe, secure and simple to use, E-Verify is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers. The program provides participating employers an automated Internet-based resource to verify the employment eligibility of newly hired employees. Participating employers run authorization checks on all newly hired employees, including U.S. citizens and non-U.S. citizens, against SSA and DHS databases (about 449 million, and 60 million records respectively). Through this process, E-Verify assists employers in maintaining a legal workforce and protects jobs for authorized U.S. workers.



• USCIS began testing a photo screening tool enhancement to E-Verify and formally launched it on Sept. 17, 2007. The tool allows a participating employer to check the photos on Employment Authorization Documents (EAD) or Permanent Resident Cards (green cards) against images stored in USCIS databases. The goal of the photo tool is to detect and deter identify fraud by helping employers determine whether the document presented is the same document issued by USCIS (e.g., that it is not a forgery involving photo-substitution).



• More than 100,000 employers are currently using the E-Verify program to verify that their new hires are authorized to work in the United States. For FY2009 to date, more than 2 million employment verification queries have been run. During FY2008, approximately 6.6 million employment verification queries were run (as compared to a total of 3.27 million in all of FY2007). The Department of Homeland Security’s FY2009 appropriation legislation, signed into law on Sept. 30, 2008, provided $100 million to continue, expand and improve E-Verify in FY2009.



• Employers can register for E-Verify on-line, (see the “Related Links” section on the upper-right hand side of this page for a link.) The site provides instructions for completing the Memorandum of Understanding (MOU) needed to officially register for the program. Once registered, employers use E-Verify by entering information captured on the Employment Eligibility Verification form (I-9).



• A recent study conducted by Westat, a social science research firm which monitors the effect of various changes made to the E-Verify program, found that between April and June 2008:
  
  
  - Approximately 96.1 percent of all cases queried through E-Verify were instantly found to be employment authorized (this is a substantial improvement from 94.2 percent);
  
  - About 99.6 percent of all work-authorized employees verified through E-Verify are verified without receiving a tentative non-confirmation or having to take any type of corrective action;
  
  - Erroneous tentative non-confirmations (those that were work-authorized but who received a non-confirmation) have improved from 0.5% to 0.4%. Ultimately, these mismatches are successfully resolved; and
  
  - Of all queries received, final non-confirmations (meaning not work-authorized) are 3.5 percent; down from 5.3 percent.

1. On page 75561, in the second column, at the end of paragraph (d)(9), revise the term ``by specific:'' to read: ``by specific facts;''.



2. On page 75561, in the second column, at the end of paragraph (d)(10), remove the ``.'' and add a ``; and'' in its place.

The U.S. Department of Labor announced today that it has debarred Asian Journal Publications from using the H-1B visa program to hire temporary workers.

An investigation conducted by the department's Wage and Hour Division, determined that the employer did not properly pay the workers and misrepresented facts on the Labor Condition Application filed with the department's Employment Training Administration requesting approval to hire the workers. The debarment will remain in effect until July 30, 2012.

"Misrepresenting the facts of the employment situation harms the workers who are hired for their professional expertise, and hurts domestic job seekers who may have otherwise been eligible for the positions," said Secretary of Labor Hilda L. Solis. "We cannot allow employers to take advantage of temporary workers who might be reluctant to come forward in such situations, nor will we allow unscrupulous employers to gain an unfair advantage over competitors who play by the rules."

The LCA submitted by Asian Journal stated that workers were sought for positions as accountants, reporters, news writers, journalists, business analysts, public relations specialists and financial analysts. However, the investigation revealed that most were working in sales as account executives. In addition to misrepresenting the facts on the application, the employer failed to properly pay the required wage rate and to maintain documentation required under the H-1B visa program. The department also contends the employer required the workers to pay visa processing fees. Asian Journal has agreed to pay the 22 workers hired using the H-1B program, a total of $473,218 in back wages as a result of the investigation, as well as a $40,000 civil money penalty.

The department also found that 10 employees not hired through the H-1B program were due $43,276 in back wages resulting from violations of the federal Fair Labor Standards Act. The employees, who worked as delivery drivers and office staff, were not receiving overtime pay when working more than 40 hours in a week. Asian Journal has operations in Los Angeles, San Francisco, Las Vegas, New York and the Philippines.

The Employment and Training Administration’s Office of Foreign Labor Certification (OFLC) has developed a new web-based tool, the H-2A Job Registry, allowing the H-2A visa aspirants to search and retrieve temporary agricultural jobs with unprecedented ease and timeliness. This new tool was developed to comply with the Department’s new H-2A regulations implemented on March 15, 2010, and is fully integrated into the OFLC’s iCERT Visa Portal System (http://icert.doleta.gov).

For the first time, U.S. workers and organizations representing farmworkers will have convenient access to learn about temporary agricultural jobs accepted by the OFLC through a single public location and searchable along a series of common data points. The H-2A Job Registry will display all active agricultural jobs until 50 percent of the period of employment has elapsed as well as an archive of certified agricultural jobs for up to 5 years.

Major Features/Benefits

• Provides a single, easily searched point of entry for the public to retrieve agricultural jobs filed under the H-2A program;
  
  
• Offers customizable searches and ability for users to view, print, or download agricultural jobs in Adobe PDF format;
  
  
• Improves transparency of OFLC decisions making and encourages public access to agricultural jobs without the need for FOIA requests;
  
  
• Enhances U.S. worker access to learn about agricultural jobs to make informed decisions about where they want to work; and
  
  
• Meets 508 compliance requirements and offers direct assistance to persons with disabilities through email or phone contact with the OFLC National Processing Center.
  

Key Statistics – 2010 H-2A Final Rule

• Since March 15, 2010, OFLC has received more than 620 H-2A applications requesting nearly 11,000 workers;
  
  
• OFLC anticipates that nearly 450 active H-2A job orders will be available to the public on July 8th when the H-2A Job Registry is released.

iCERT Visa Portal System – H-2A Job Registry

• Easy access to the H-2A Job Registry from the iCERT System public home page at http://icert.doleta.gov;
  
  
• Quickly search for active H-2A jobs posted within the last 30 days by using the interactive map;
  
  
• Search results are displayed in a standard table format;
  
  
• Custom searches based on a set of common data points can be performed.

The U.S. Department of Labor today announced that approximately 14,000 workers from companies in 20 states — Alabama, Arizona, California, Colorado, Connecticut, Illinois, Indiana, Kentucky, Michigan, Minnesota, Montana, New York, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee, Texas and Washington — are eligible to apply for Trade Adjustment Assistance.

“Through the Trade Adjustment Assistance program, the U.S. Department of Labor is taking aggressive steps to help displaced workers gain access to the types of job training and placement services that will lead them to permanent good jobs in local industries,” said Secretary of Labor Hilda L. Solis.

Workers covered by these latest TAA certifications will be contacted by their respective states with instructions on how to apply for individual benefits and services. Those who apply may receive case management and re-employment services, training in new occupational skills and trade readjustment allowances that provide income support for workers enrolled in training. Some workers may also receive job search and relocation allowances, and the Health Coverage Tax Credit.

“President Obama and this entire administration are committed to a coordinated federal response that will soften the blow of the current downturn and speed the economic recovery for communities across the country affected by auto industry restructuring and other mass industrial layoffs,” said Dr. Ed Montgomery, executive director of the White House Council on Automotive Communities and Workers. “Trade Adjustment Assistance�is just one tool the federal government is using to help American workers during these tough times. Today’s TAA certifications can provide thousands of workers and their families in auto communities nationwide with much needed income support, access to health care, job training and other assistance as they transition to new jobs in other sectors of the economy.”

Workers 50 years of age and older may elect to receive Re-employment Trade Adjustment Assistance. If a worker obtains new employment at wages less than $55,000 and less than those earned in adversely affected employment, the RTAA program will pay 50 percent of the difference between the old wage and the new wage, up to $12,000 over a two-year period. RTAA participants may also be eligible for retraining and the HCTC.

The U.S. Department of Labor today announced a $1,137,425 grant to assist about 100 workers affected by layoffs at Joe's Sports, Outdoor, Auto/Truck and More in Wilsonville, Ore.

"Helping all workers access the type of training opportunities that lead to new careers and a stronger economy is a crucial part of our mission at the U.S. Department of Labor," said Secretary of Labor Hilda L. Solis. "Today's grant will provide these Oregonians with the re-employment and retraining services necessary to enter good jobs in promising regional industries."

Awarded to the Oregon Department of Community Colleges and Workforce Development, this grant will be operated by The Workforce Investment Council of Clackamas County. The grant will provide affected workers with access to dislocated worker services. These services may include skills assessment, basic skills training, individual career counseling and occupational skills training.

An Oregon Department of Community Colleges and Workforce Development analysis indicates possible future job vacancies in the medical, human resources, business administration, criminal justice and hospitality fields.

On June 15, 2009, Joe's Sports, Outdoor, Auto/Truck and More, a supplier of sporting goods, outdoor equipment, automotive supplies and general merchandise, closed its corporate offices, distribution center and retail stores.

Of the $1,137,425announced today, $863,865 will be released initially. Additional funding up to the amount approved will be made available as the state demonstrates a continued need for assistance.

Secretary of Labor Hilda L. Solis announced that the U.S. Department of Labor will begin exercising its authority to certify applications for U Nonimmigrant Status Visas. U visas — as they are known — are designed to help victims of qualifying criminal activities who have suffered substantial physical or mental abuse and are willing to assist law enforcement or other government officials in the investigation or prosecution of those crimes.

"Regardless of immigration status, no one should have to suffer criminal abuse silently. U visas give some measure of security to immigrant victims who are desperate to escape an abusive situation and are willing to cooperate with law enforcement," said Secretary Solis. "I have instructed Labor Department investigators to identify potential U visa applicants as they conduct workplace investigations. This action will help local law enforcement rescue vulnerable immigrants from suffering and help put criminals behind bars."

Individuals who receive U visas may remain in the United States for up to four years and may eventually apply for permanent residency. The U visa was created by the Victims of Trafficking and Violence Prevention Act of 2000. Qualifying criminal activities involve violations of certain federal, state or local criminal laws, including: abduction, abusive sexual contact, blackmail, domestic violence, extortion, false imprisonment, female genital mutilation, felonious assault, hostage-taking, incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, peonage, perjury, prostitution, rape, sexual assault, sexual exploitation, slave trade, torture, trafficking, witness tampering, unlawful criminal restraint and other related crimes.

Labor Department authority to certify U visas will be delegated to its Wage and Hour Division, which will identify potential applicants in appropriate circumstances during the course of workplace investigations. Among other U visa application requirements, a federal law enforcement agency or official must certify that the U visa petitioner has been helpful, is being helpful or is likely to be helpful in the investigation or prosecution of the criminal activity.

The U.S. Department of Labor announced that approximately 5,500 workers from companies in 12 states — California, Florida, Georgia, Indiana, Iowa, Kentucky, Michigan, North Carolina, Ohio, Pennsylvania, Texas and Vermont — are eligible to apply for Trade Adjustment Assistance.

"Helping workers who are impacted by trade, and ensuring they are better positioned to secure permanent jobs that will bring them family-supporting wages, is an important part of keeping the nation's economic recovery on track," said Secretary of Labor Hilda L. Solis. "Trade Adjustment Assistance will help these workers access the employment and training services they need to prepare for good jobs in promising industries."

Workers covered by these latest TAA certifications will be contacted by their respective states with instructions on how to apply for individual benefits and services. Those who apply may receive case management and re-employment services, training in new occupational skills and trade readjustment allowances that provide income support for workers enrolled in training. Some workers may also receive job search and relocation allowances, and the Health Coverage Tax Credit.

"Trade Adjustment Assistance is a key part of the Obama Administration's coordinated response to helping workers and families in communities affected by auto industry restructuring and other mass industrial layoffs," said Dr. Ed. Montgomery, executive director of the White House Council on Automotive Communities and Workers. "TAA certification can provide these families with much needed income support, access to health care, job training and other assistance as they transition to new jobs in other sectors of the economy."

While TAA is open to eligible workers of all ages, workers 50 years of age and older may elect to receive Re-employment Trade Adjustment Assistance instead. If a worker obtains new employment at wages less than $55,000 and less than those earned in adversely affected employment, the RTAA program will pay 50 percent of the difference between the old wage and the new wage, up to $12,000 over a two-year period. RTAA participants may also be eligible for retraining and the HCTC.

A chart reflecting companies covered by these certifications is below.

The U.S. Department of Labor today announced that approximately 5,500 workers from companies in 16 states — Alabama, California, Connecticut, Georgia, Illinois, Louisiana, Michigan, Mississippi, New York, Ohio, Oregon, South Carolina, Tennessee, Utah, Virginia and Wisconsin — are eligible to apply for Trade Adjustment Assistance (TAA).

"The U.S. Department of Labor is committed to supporting all of the nation's workers — including those who lose their jobs because their companies relocate abroad," said Secretary of Labor Hilda L. Solis. "Through the Trade Adjustment Assistance program, we are leveraging opportunities for displaced workers to acquire new occupational skills, which will help them secure good jobs in emerging areas of their local economies."

Workers covered by these latest TAA certifications will be contacted by their respective states with instructions on how to apply for individual benefits and services. Those who apply may receive case management and re-employment services, training in new occupational skills and trade readjustment allowances that provide income support for workers enrolled in training. Some workers may also receive job search and relocation allowances, and the Health Coverage Tax Credit (HCTC).

Workers 50 years of age and older may elect to receive Re-employment Trade Adjustment Assistance (RTAA). If a worker obtains new employment at wages less than $55,000 and less than those earned in adversely affected employment, the RTAA program will pay 50 percent of the difference between the old wage and the new wage, up to $12,000 over a two-year period. RTAA participants may also be eligible for retraining and the HCTC.

The chart below reflects the companies covered by the Trade Adjustment Assistance:

NOTE: Trade Adjustment Assistance (TAA) is a program of the United States Department of Labor that provides a variety of reemployment services and benefits to workers who have lost their jobs or suffered a reduction of hours and wages as a result of increased imports or shifts in production outside the United States. The TAA program aims to help program participants obtain new jobs, ensuring they retain employment and earn wages comparable to their prior employment.

The U.S. Department of Labor (DOL) reminds employers and employees that the federal minimum wage will increase to $7.25 on Friday, July 24. With this change, employees who are covered by the federal Fair Labor Standards Act (FLSA) will be entitled to pay no less than $7.25 per hour.

"This administration is committed to improving the lives of working families across the nation, and the increase in the minimum wage is another important step in the right direction," said Secretary of Labor Hilda L. Solis. "This well-deserved increase will help workers better provide for their families in the face of today's economic challenges. I am especially pleased that the change will benefit working women, who make up two-thirds of minimum wage earners."

This increase is the last of three provided by the enactment of the Fair Minimum Wage Act of 2007, which amended the FLSA to increase the federal minimum wage in three steps: to $5.85 per hour effective July 24, 2007; to $6.55 per hour effective July 24, 2008; and now to $7.25 per hour effective July 24, 2009.

The latest change will directly benefit workers in 30 states (Alabama, Alaska, Arkansas, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maryland, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin and Wyoming) where the state minimum wage is currently at or below the federal minimum wage, or there is no state minimum wage. It will also benefit workers in the District of Columbia, where the minimum wage is required to be $1 more than the federal minimum wage.

A family with a full-time minimum wage earner would see its monthly income increase by about $120. That is more than a week's worth of groceries for an average family of four or more than one week's utility bills. The $120 buys three tanks of gas for a small car. The $120 would easily cover the cost of replacing all the light bulbs in a typical home with compact fluorescent light bulbs — which would save the family money in the long term and be an important step toward a greener country. The benefits are not just for full-time workers. About half of minimum wage workers are part-timers, and they, too, are going to see a very welcome boost to their incomes.

Every employer of workers subject to the FLSA's minimum wage provisions must post, and keep posted in each of its establishments, a notice explaining this act. The notice must be posted in conspicuous places to permit employees to readily read them.

Many states have minimum wage laws with provisions that differ from the federal law. When an employer is subject to both, the employer must pay the higher of the two rates.

The DOL's Office of Foreign Labor Certification has published the following notice on its website on July 6, 2009.

The DOL notice says:

On June 29, the U.S. District Court for the Middle District of North Carolina issued a preliminary injunction against the Department's Final Suspension of the December 2008 Final H-2A Rule. As a result of this court action, and unless and until additional court action takes place, the Suspension is no longer in effect; the December 2008 Final Rule remains in effect.

The US Department of Labor (DOL), on June 1, 2009, released some frequently asked questions and answers (FAQs) regarding the May 29, 2009 suspension of a December 18, 2008 H-2A final rule. The suspension of the H-2A final rule will take effect on June 29, 2009.

Question: What has the Department published with respect to the H-2A regulations? What does it mean?

Answer: On May 29, 2009, the Department published in the Federal Register a final rule suspending (“Suspension”) the H-2A final rule published on December 18, 2008 and in effect as of January 17, 2009 (the “December 2008 Rule”). The final rule reinstated the regulations in effect on January 16, 2009 (the “reinstated regulations”). The Suspension will be effective 30 days after its publication, on June 29, 2009.

Employers should be aware that all applications filed prior to June 29, 2009 will be subject to and adjudicated under the December 2008 Rule. Applications filed on or after June 29, 2009 will be subject to and adjudicated under the reinstated regulations. The reinstated regulations will be in place for a period of no more than 9 months while the December 2008 Rule is under review by the Department.

Question: Which rule applies to what applications?

Answer: If an employer files an application for a labor certification for H-2A workers before June 29, 2009 then the employer’s application must comply with, and will be adjudicated under the December 2008 Rule transition procedures contained in 20 CFR 655.100(b), and extended by the Department in an Interim Final Rule on April 16, 2009 (74 FR 17597). If the employer files the application on or after June 29, 2009, then its application must comply with and will be adjudicated under the reinstated regulations. The last day that the Department will receive for processing an H-2A application on ETA Form 9142 is on June 28, 2009, the last day the December 2008 Rule is in effect. Forms ETA 9142 received after June 28, 2009 will be returned and the employer will be instructed to re-file its application using the correct form –ETA Form 750.

Question: I need my workers to begin working on July 15, 2009. What procedures should I follow to get an H-2A temporary labor certification?

Answer: Under both sets of regulations employers must file their applications for a labor certification at least 45 days before their date of need. Therefore, this particular employer must file its application no later than June 1, 2009. On June 1, 2009 the December 2008 Rule will still be in effect and will apply to this employer’s application.

Question: I need to file before the effective date of the Suspension. What procedure should I follow - the December 2008 Rule or the reinstated regulations?

Answer: If an application is filed before the effective date of the Suspension, i.e. before June 29, 2009, it must be filed in accordance with the December 2008 Rule. On April 16, 2009, the Department published in the Federal Register (74 FR 17597) an Interim Final Rule extending the December 2008 Rule transition period procedures (20 CFR 655.100(b) of the December 2008 Rule) for all applications with a date of need before January 1, 2010. Employers who are filing or intend to file their applications before the effective date of the Suspension must follow the transition procedures and not the full implementation procedures of the December 2008 Rule.

Question: I am planning to file an application for a temporary labor certification under the H-2A program. What form should I use?

Answer: The form that an employer uses, and the procedures that it follows, depend upon when the employer files. For applications that will be received by CNPC before June 29, 2009, employers will continue to use the Application for Temporary Employment Certification - ETA Form 9142. For applications that will be received by the CNPC on or after June 29, 2009 (the effective date of the Suspension), employers will use the Application for Alien Employment Certification - ETA Form 750. In addition, all employers regardless of their filing date will need to include the Agricultural and Food Processing Clearance Order - ETA Form 790 and all attachments with their applications.

Question: Where should I send my application?

Answer: Employers filing their applications prior to June 29, 2009 (the effective date of the Suspension) should send their applications to the:

Employers whose applications are filed on or after June 29, 2009 will submit one originally signed application and accompanying documents to the Chicago National Processing Center at the address provided above and one copy of the application and accompanying documents to the SWA serving the area of intended employment. Please visit http://www.foreignlaborcert.doleta.gov/contacts.cfm for a list of SWAs.

Question: I have already filed an application on ETA Form 9142, but it has not yet been accepted. Do I have to re-file on ETA Form 750?

Answer: Employers who filed their applications on ETA Form 9142 under the December 2008 Rule (extended transition procedures) prior to June 29, 2009 have properly filed their applications and should not re-file on ETA Form 750, even if the CNPC subsequently reviews the application and finds deficiencies with it.

Question: How can I obtain the required wage?

Answer: For employers filing prior to June 29, 2009 the employer will send the Application for Temporary Employment Certification (ETA Form 9142) and Agricultural and Food Processing Clearance Order (ETA Form 790) to the CNPC. The employer has an option of leaving the wage section(s) blank or supplying the highest of the AEWR, the prevailing hourly wage rate, the prevailing piece rate, or the Federal or State minimum wage rate as the offered wage rate; wage rates can be viewed on the Online Agricultural Wage Library available on the OFLC website, but the CNPC determines the highest wage, not the employer. When it accepts the application for processing, the CNPC will either verify the offered wage rate to ensure that the employer’s offered wage meets the required minimum on the date of filing or in the case of an employer who has left the wage section(s) blank will provide the employer with the minimum wage rate it must offer its prospective employees.

For employers filing under the reinstated regulations (after the Suspension is in effect on June 29, 2009) the employer will send the signed original Application for Alien Employment Certification (ETA Form 750) and the signed original Agricultural and Food Processing Clearance Order (ETA Form 790) to the CNPC and one copy of each form to the SWA serving the area of intended employment.

Under the reinstated regulations the employer will fill in the wage section with the highest of the AEWR (which was published by the Department concurrently with the Suspension), the prevailing wage rate, the prevailing piece rate or the Federal or State minimum wage rate. Again, the employer may review wages on the Agricultural Online Wage Library to determine what it believes is the appropriate wage but the CNPC makes the final determination. Upon receipt of the employer’s application, the SWA and the CNPC will each verify the wage supplied by the employer and either accept the wage rate or inform the employer that the stated wage is too low. The employer must offer a wage rate that is the highest of the AEWR or the prevailing wage rate, the prevailing piece rate, or the Federal or State minimum wage rate.

Question: Which AEWR is applicable to my application?

Answer: Employers filing under the December 2008 Rule will offer a specific wage rate as directed by the CNPC, which will be based on the AEWR determined under the December 2008 Rule. Employers filing under the reinstated regulations will fill in the wage section of the ETA Form 750 with the AEWR published by the Department concurrently with the Suspension. Both the CNPC and the SWA will verify the wage to ensure that the prevailing wage rate, the prevailing piece rate or the Federal or State minimum wage is not higher than the AEWR. If any of those are higher than the newly published AEWR, the CNPC will inform the employer that the wage offered is too low through a letter of deficiency and request that the employer modify its application to reflect a higher wage. A copy of the letter of deficiency will be sent to the SWA.

Question: I am concerned about the effect the Suspension will have on my workforce. After the reinstated regulations come into effect I will have workers certified under different regulations working side by side. What should I do?

Answer: The Department acknowledges that employers may have, as a result of the Suspension, groups of workers to whom two different sets of regulations apply. However, employers follow varying requirements for workers in other situations; for example, employers may be required to follow different rules for workers hired under H-2A and non-H-2A pay schemes. The Department expects that employers will need to segregate required paperwork for each type of H-2A employee. Regardless of which regulation an application is certified under, the employer must comply with all required obligations under the respective applicable regulations.

Question: I received a labor certification under the December 2008 Rule. Will I have to change the amount of wages and benefits I pay to my H-2A employees after the December 2008 Rule is suspended and the reinstated regulations are in effect?

Answer: No. Employers who either applied for or received a labor certification under the December 2008 Rule will continue to pay the wages offered in accordance with the wage determination they received from the CNPC.

Question: How do I conduct my positive recruitment?

Answer: Under both regulations the employer will be directed to follow particular positive recruitment procedures as part of the acceptance letter. Under the December 2008 Rule the employer will receive recruitment requirements directly from the CNPC, whereas under the reinstated regulations the employer will receive, as part of the notice of acceptance, information that will inform it of the specific efforts that it is expected to undertake in cooperation with the SWA in order to carry out the assurances with respect to the recruitment of U.S. workers.

Question: Once the reinstated regulations are in effect, will I be able to use recruiters who charge recruiter’s fees of the employees, and not me?

Answer: Employers who file prior to June 29, 2009 will be held to the standards outlined in the December 2008 Rule. Those employers who file after the Suspension takes effect on June 29, 2009 will be required to follow the requirements of the reinstated regulations and will not be required to pay the fees of recruiters used to find H-2A workers. However, employers must continue to comply with the Department of Homeland Security’s H-2A regulations prohibiting the payment of recruiters’ fees.

Question: If US workers apply for the jobs I advertise or through the SWA, will I have to hire these workers during the first half (50 percent) of the work contract or during the first 30 days of the work contract?

Answer: If an employer files an application under the December 2008 Rule, the employer will be required to accept referrals pursuant to the “30 day rule” in that regulation. This means the employer will be obligated to accept referrals of able, willing and qualified U.S. workers for the first 30 days after the first date of need stated in the application. If the employer files an application on or after June 29, 2009, i.e. under the reinstated regulations, then the employer will be required to accept referrals for the duration of the first half of the contract, as required by the "50 percent rule" contained in the reinstated regulations.

Question: If I am a small employer, will I be exempt from the 50 percent rule regarding referrals?

Answer: Once the reinstated regulations are in effect, a small employer will accept U.S. referrals only until its foreign workers depart for the work site, and need not accept referrals through fifty percent of the work contract, as long as the employer meets the following criteria:

• Did not during any calendar quarter during the preceding calendar year, use more than 500 “man-days” of agricultural labor, as defined in section 3(u) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(u)), and so certifies to the OFLC Administrator in the H-2A application; and
• Is not a member of an association which has applied for a temporary alien agricultural labor certification under this subpart for its members; and
• Has not otherwise “associated” with other employers who are applying for H-2A workers under this subpart, and so certifies to the OFLC Administrator.

Question: What procedure should I follow regarding housing inspections?

Answer: Under the December 2008 Rule the CNPC informs the SWA of the need to perform the housing inspection and the application moves forward even if the SWA does not complete the housing inspection 30 days before the date of need, providing that the delay in performing a timely inspection is not the fault of the employer. Under the reinstated regulations the SWA receives a copy of the application directly from the employer and is required to complete the housing inspection before the application can be approved.

Question: What will happen to the special procedures after the Suspension is in effect on June 29, 2009?

Answer: Special procedures operate under both regulations and have been promulgated as independent guidance issued either as a Training & Employment Guidance Letter (TEGL) or a General Administration Letter.

Question: I own a logging business. What should I do to get an H-2A labor certification for my workers when the December 2008 Rule is suspended?

Answer: Logging is a seasonal activity; almost all logging applications are filed at the same time every year. The Department has reviewed logging application patterns and determined that virtually all logging applications for submission to USCIS in support of an H-2A petition were filed with the Department no later than May 15, 2009 and would therefore be considered to be H-2A applications, and processed by the Department, before the effective date of the Suspension.

Question: I am a joint employer. Do I need to file my own application or will I be able to file a master application?

Answer: Joint employers, by definition, are associations. Associations have always been able to file master applications as long as the dates of need for all the occupations were identical. The concept of the master application was originally developed through policy guidance contained in the Employment and Training Administration H-2A Program Handbook 398 and was in effect until January 16, 2009. The December 2008 Rule codified the concept of master applications. Upon suspension of the December 2008 Rule, the guidance issued pursuant to the reinstated regulations will once again govern master applications.

Question: After the Suspension is in effect, will the SWAs be required to verify the work eligibility of referrals they send employers?

Answer: Under policy guidance in effect before the December 2008 Rule, SWAs had the obligation to verify the employment eligibility of each potential employee and to refer only employment-eligible individuals to job opportunities for which H-2A workers were being sought. This obligation was articulated in TEGL 11-07, Change 1 which will continue as policy guidance after the reinstated regulations are in effect on June 29, 2009.

The Department of Labor (DOL) has postponed obligatory use of the new iCERT online portal for labor condition applications (LCAs). Employers will now be able to use the legacy online system for H-1B, E-3 and H-1B1 LCAs through June 30.

The LCA component of iCERT is expected to become mandatory on July 1, 2009. The iCERT portal was initially scheduled to become obligatory for labor condition applications (LCAs) on May 15, 2009, but is being postponed so that DOL can make technological improvements to the new system.

DOL began accepting LCAs through the iCERT system on April 15, 2009. Since that date, users have reported numerous problems, including difficulties in registering to use the system, functionality that does not work or does not appear in the system, and problems in preparing LCAs for submission. In recent meetings with stakeholders, DOL officials collected comments and reports of problems. The agency has begun to make technological fixes to the iCERT portal and will likely continue to do so through June 30.

The legacy LCA system is available at http://www.lca.doleta.gov. The iCERT portal is available at http://icert.doleta.gov.

[Federal Register: April 16, 2009 (Volume 74, Number 72)]

[Rules and Regulations]

[Page 17597-17601]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

RIN 1205-AB55

Temporary Agricultural Employment of H-2A Aliens in the United States

AGENCY: Employment and Training Administration, Labor.

ACTION: Interim Final Rule.

SUMMARY: The Department of Labor (``Department'' or ``DOL'') is amending its regulations to extend the transition period of the application filing procedures currently in effect for all H-2A employers with a date of need on or before July 1, 2009, as established in the H-2A Final Rule published on December 18, 2008 and in effect as of January 17, 2009. The transition period is extended to include all employers with a date of need on or before January 1, 2010.

DATES: This Interim Final Rule is effective April 16, 2009. The grounds for making the rule effective upon publication in the Federal Register are set forth in SUPPLEMENTARY INFORMATION below. Interested persons are invited to submit written comments on the Interim Final Rule on or before May 18, 2009.

ADDRESSES: You may submit comments, identified by Regulatory Information Number (RIN) 1205-AB55, by any one of the following methods:

Federal e-Rulemaking Portal: http://www.regulations.gov: Follow the Web site instructions for submitting comments.

[[Page 17598]]

Mail: Please submit all written comments (including disk and CD-ROM submissions) to Thomas Dowd, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5641, Washington, DC 20210.

Hand Delivery/Courier: Please submit all comments to Thomas Dowd, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5641, Washington, DC 20210.

Please submit your comments by only one method. The Department will post all comments received on http://www.regulations.gov without making any change to the comments, including any personal information provided. The http://www.regulations.gov Web site is the Federal e- Rulemaking portal and all comments posted there are available and accessible to the public. The Department cautions commenters not to include their personal information such as Social Security numbers, personal addresses, telephone numbers, and e-mail addresses in their comments as such submitted information will become viewable by the public via the http://www.regulations.gov Web site. It is the responsibility of the commenter to safeguard his or her information. Comments submitted through http://www.regulations.gov will not include the commenter's e-mail address unless the commenter chooses to include that information as part of his or her comment. Postal delivery in Washington, DC, may be delayed due to security concerns. Therefore, the Department encourages the public to submit comments via the Web site indicated above.

Docket: For access to the docket to read background documents or comments received, go to the Federal eRulemaking portal at http:// www.regulations.gov. The Department will also make all the comments it receives available for public inspection during normal business hours at the ETA Office of Policy Development and Research at the above address. If you need assistance to review the comments, the Department will provide you with appropriate aids such as readers or print magnifiers. The Department will make copies of the rule available, upon request, in large print and as an electronic file on a computer disk. The Department will consider providing the proposed rule in other formats upon request. To schedule an appointment to review the comments and/or obtain the rule in an alternate format, contact the Office of Policy Development and Research at (202) 693-3700 (VOICE) (this is not a toll-free number) or 1-877-889-5627 (TTY/TDD).

FOR FURTHER INFORMATION CONTACT: William L. Carlson, PhD, Administrator, Office of Foreign Labor Certification, Employment and Training Administration (ETA), U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210; Telephone (202) 693-3010 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1- 800-877-8339.

SUPPLEMENTARY INFORMATION:

1. The Need for Extending H-2A Transition Procedures

On December 18, 2008, the Department published final regulations revising title 20 of the Code of Federal Regulations (20 CFR), part 655, and title 29 of the Code of Federal Regulations (29 CFR), parts 501, 780, and 788 (the ``H-2A Final Rule''). See 73 FR 77110, Dec. 18, 2008. The H-2A Final Rule replaced the previous versions of 20 CFR part 655 subparts B and C (2008), and amended parts of 29 CFR part 501 (2008) that, in large part, were published at 52 FR 20507, June 1, 1987. The H-2A Final Rule became effective on January 17, 2009.

The H-2A Final Rule significantly changes the H-2A labor certification process. The Final Rule provides for a transition period to enable employers to gradually change their process for recruitment and solicitation of workers, both foreign and domestic, and become accustomed to the filing procedures delineated in the new regulations. The transition procedures set out an application process enabling employers to file applications with the Department and then to initiate recruitment following the new procedures. Currently, the transition period procedures apply to employers with a date of need for workers prior to July 1, 2009. The Department estimates that on or about April 17, 2009 employers with a date of need of July 1, 2009 or later will begin to use the regular filing procedures and thus commence the process of recruiting prior to filing as outlined in the December 18 Final Regulations.

On March 17, 2009, the Department published a Notice of Proposed Suspension of the Final Rule to provide the Department with an opportunity to review and reconsider the new requirements, while minimizing the disruption to the Department, State Workforce Agencies, employers, and workers. The Department further proposed to reinstate the rules that were in place on January 16, 2009, on an interim basis. The period for submitting comments on the Department's proposal closed on March 27, 2009. The Department received over 800 unique, substantive comments on its proposal and is currently in the process of considering those comments. Because of the time required to carefully consider all the comments on the proposed suspension, the Department will not be able to complete its analysis of the comments before employers with dates of need beginning July 2, 2009 are expected to commence the process of pre-filing recruitment on April 17, 2009, in accordance with the Final Rule. The full implementation schedule of the regulation requires employers with a date of need for workers on or after July 1, 2009, to engage in full recruitment prior to filing an application for H-2A certification. The regulation calls for such pre-filing recruitment to take place at least 75 days prior to the date of need for workers. Seventy-five days from a date of need of July 1, 2009--the first date anyone with a date of need of July 1, 2009, would actually need to begin pre-filing recruitment--is April 17, 2009.

Accordingly, the Department has determined that an extension of the period in which the transition procedures are available is necessary. This is required for the following reasons. First, absent an extension of the transition procedures, the Department will be unable to designate traditional and expected labor supply States in which positive recruitment must take place, as required by statute. Under the Final Rule, employers must engage in positive recruitment consistent with Section 218(b)(4) of the Immigration and Nationality Act (INA). In particular, the regulation at 655.102(i) requires employers to engage in positive recruitment in traditional or expected labor supply States in which there are a significant number of qualified domestic workers who would be willing and available for work in those States. Under the transition procedures, employers are provided that information as part of their post-filing recruitment instructions. However, employers with dates of need after July 1, 2009 would be subject to the pre-filing recruitment model of the Final Rule and would no longer have access to that information when conducting recruitment. Rather, the Final Rule requires the Department

[[Page 17599]]

to first solicit information from a broad range of sources and then publish an annual determination for each State, of the States where the sources of traditional or expected labor supply would be (the ``Secretary's Annual Determination''). 20 CFR 655.102(i), 73 FR 77215, Dec. 18, 2008. However, that information would have to be solicited through a notice in the Federal Register at least 120 days before the announcement of the Secretary's Annual Determination, allowing the public to provide the Department with information to assist the Secretary in making her determination. Id. In order for the first Annual Determination to have been timely, the Department would have had to publish the solicitation before the Final Rule's effective date, effectively implementing a provision of the Final Rule before the rule itself. Accordingly, the Department is evaluating how best to implement this provision.

Second, without an extension of the transition period, the Department would not be able to meet its statutory obligation under Section 218(b)(4) of the INA to designate traditional or expected labor supply States in which there are a significant number of qualified domestic workers who would be willing and available for work in those States. The absence of such a designation would create a gap in the recruitment process since employers would effectively be excused from engaging in recruitment in such States. The nation's current unemployment rate of 8.5%--the worst that it has been in nearly 25 years--makes it even more compelling for the Department to designate, and employers to conduct recruitment in, traditional or expected labor supply States. Given the current economic conditions, it would be contrary to the public interest and detrimental to the nation's economic well-being to deprive U.S. workers of the opportunity to apply for jobs that they would be willing and available to perform. Additionally, extending the transition period merely continues the longstanding practice of positive multi-state recruitment by employers. Accordingly, an extension of the transition period, with direct notice to employers of their expected recruitment in States of traditional or expected labor supply (and a suitable time frame for its execution), is necessary.

Because it would be impossible to solicit such information and issue the Determination in time for employers with start dates of July 1, 2009, the Department believes it is appropriate to extend the transition period procedures in 20 CFR 655.100(b)(2) to all employers filing H-2A applications with the Department that have a date of need prior to January 1, 2010. This will extend the transition procedures fully until mid-October, 2009, at which time employers will begin to initiate recruitment under the full final regulatory procedures, absent any further Department action. Employers requiring H-2A temporary agricultural workers to start work before January 1, 2010, will file Applications for Temporary Employment Certification in accordance with the transition period procedures in 20 CFR 655.100(b)(2).

2. Administrative Information

• Executive Order 12866--Regulatory Planning and Review

Under Executive Order (E.O.) 12866, the Department must determine whether a regulatory action is ``significant'' and therefore subject to the requirements of the E.O. and subject to review by the Office of Management and Budget (OMB). Section 3(f) of the E.O. defines a ``significant regulatory action'' as an action that is likely to result in a rule (1) having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as ``economically significant''); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O.

The Department has determined that this Interim Final Rule is not an ``economically significant regulatory action'' under Section 3(f)(1) of E.O.12866. The procedures for extending the time during which employers seeking H-2A workers will file pursuant to the transition procedures will not have an economic impact of $100 million or more. The regulation will not adversely affect the economy or any sector thereof, productivity, competition, jobs, the environment, nor public health or safety in a material way. The Department has also determined that this Interim Final Rule is a ``significant regulatory action'' under Section 3(f)(4) of the E.O., and accordingly OMB has reviewed this Interim Final Rule.

Summary of Impacts

The change in this Interim Final Rule is expected to have little net direct cost impact on employers, above and beyond the baseline of the current costs required by the program as it is currently implemented. Employer costs for newspaper advertising for the conduct of positive recruitment in traditional or expected labor supply states will not increase as a result of this Interim Final Rule.

• Regulatory Flexibility Analysis

When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (RFA) requires that a regulatory flexibility analysis be prepared and made available for public comment. The RFA must describe the impact of the rule on small entities. See 5 U.S.C. 603(a). Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have significant economic impact on a substantial number of small entities. The Deputy Assistant Secretary of ETA has notified the Chief Counsel for Advocacy, Small Business Administration (SBA), and certifies under the RFA at 5 U.S.C. 605(b), that this rule will not have a significant economic impact on a substantial number of small entities. The rule does not substantively change existing obligations for employers who choose to participate in the H-2A temporary agricultural worker program.

The factual basis for such a certification is that even though this rule can and does affect small entities, there are not a substantial number of small entities that will be affected, nor is there a significant economic impact upon those small entities that are affected. Of the total 2,089,790 farms in the United States, 98 percent have sales of less than $750,000 per year and fall within SBA's definition of small entities. In FY 2007, however, only 7,725 employers filed requests for only 80,294 workers. That represents fewer than 1 percent of all farms in the United States. Even if all of the 7,725 employers who filed applications under H-2A in FY2007 were small entities, that is still a relatively small number of employers affected, and this is expected to have little net direct cost impact on employers, above and beyond the baseline of the current costs required by the program as it is currently implemented.

• Unfunded Mandates Reform Act of 1995

Section 202 of the Unfunded Mandates Reform Act (UMRA) of 1995

[[Page 17600]]

(2 U.S.C. 1501 et seq.) directs agencies to assess the effects of a Federal regulatory action on State, local, and tribal governments, and the private sector to determine whether the regulatory action imposes a Federal mandate. A Federal mandate is defined in the Act at 2 U.S.C. 658(5)-(7) to include any provision in a regulation that imposes an enforceable duty upon State, local, or tribal governments, or imposes a duty upon the private sector which is not voluntary. Further, each agency is required to provide a process where State, local, and tribal governments may comment on the regulation as it develops, which further promotes coordination between the Federal and the State, local, and tribal governments.

This Interim Final Rule imposes no enforceable duty upon State, local or tribal governments, nor does it impose a duty upon the private sector that is not voluntary. In fact, the Interim Final Rule imposes no duties whatsoever upon State, local or tribal governments. The duties imposed are completely upon the Federal government--the Chicago National Processing Center of the Office of Foreign Labor Certification--and on the employers who will continue to recruit, but by personalized instruction rather than through compliance with a Notice in the Federal Register.

• Executive Order 13132--Federalism

Executive Order 13132 addresses the Federalism impact of an agency's regulations on the States' authority. Under E.O. 13132, Federal agencies are required to consult with States prior to and during the implementation of national policies that have a direct effect on the States, the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Further, an agency is permitted to limit a State's discretion when it has statutory authority and the regulation is a national activity that addresses a problem of national significance.

This Interim Final Rule has no direct effect on the States, the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. The continuation of a procedure by which employers comply with a statutory recruitment requirement has no direct impact on the States.

• Executive Order 13175--Indian Tribal Governments

Executive Order 13175 requires Federal agencies to develop policies in consultation with tribal officials when those policies have tribal implications. This Interim Final Rule regulates the H-2A visa program and does not have tribal implications. Therefore, the Department has determined that this E.O. does not apply to this rulemaking.

• Assessment of Federal Regulations and Policies on Families

Section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact of Federal regulations and policies on families. The assessment must address whether the regulation strengthens or erodes the stability, integrity, autonomy, or safety of the family.

This Interim Final Rule does not have an impact on the autonomy or integrity of the family as an institution, as it is described under this provision. The Department has determined that there are no costs associated with the Interim Final Rule; even if there were, however, they are not of a magnitude to adversely affect family well-being.

• Executive Order 12630--Protected Property Rights

Executive Order 12630, Governmental Actions and the Interference with Constitutionally Protected Property Rights, prevents the Federal government from taking private property for public use without compensation. It further institutes an affirmative obligation that agencies evaluate all policies and regulations to ensure there is no impact on constitutionally protected property rights. Such policies include rules and regulations that propose or implement licensing, permitting, or other condition requirements or limitations on private property use, or that require dedications or exactions from owners of private property. The Department has determined this rule does not have takings implications.

• Executive Order 12988--Civil Justice Reform

Section 3 of E.O. 12988, Civil Justice Reform, requires Federal agencies to draft regulations in a manner that will reduce needless litigation and will not unduly burden the Federal court system. Therefore, agencies are required to review regulations for drafting errors and ambiguity; to minimize litigation; ensure that it provides a clear legal standard for affected conduct rather than a general standard; and promote simplification and burden reduction.

This Interim Final Rule has been drafted in clear language and with detailed provisions that aim to minimize litigation. The purpose of this rule is to continue the transition procedures to enable employers to continue to comply with their statutory recruitment requirements. Therefore, the Department has determined that the regulation meets the applicable standards set forth in Section 3 of E.O. 12988. Plain Language

Every Federal agency is required to draft regulations that are written in plain language to better inform the public about policies. The Department has assessed this Interim Final Rule under the plain language requirements and determined that it follows the government's standards requiring documents to be accessible and understandable to the public.

• Executive Order 13211--Energy Supply

This Interim Final Rule is not subject to E.O. 13211, which assesses whether a regulation is likely to have a significant adverse effect on the supply, distribution, or use of energy. Accordingly, the Department has determined that this rule does not represent a significant energy action and does not warrant a Statement of Energy Effects.

• Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR part 1320) requires that the Office of Management and Budget (OMB) approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. Information collections in this Interim Final Rule have been previously approved under OMB No. 1205-0466. No change in that collection is proposed by this Interim Final Rule.

• Good Cause Exception

For reasons identified in the preamble, the Department finds good cause to adopt this Interim Final Rule, effective immediately, and without prior notice and comment. See 5 U.S.C. 553(b)(3) and 553(d)(3). DOL has determined that it would be impracticable, unnecessary, and contrary to the public interest to delay the effective date of this rule. The reasons for extending the transition period, discussed above, lead the Department to believe that immediate action must be taken to ensure that the Department and employers are able to meet their statutory obligations and to prevent confusion, ensure program

[[Page 17601]]

integrity, and maximize the availability of job opportunities for the U.S. workforce during a time of economic crisis. As such, a delay in promulgation of this rule past the date of publication would confuse and potentially disrupt the program to the detriment of the public interest.

List of Subjects in 20 CFR Part 655

Administrative practice and procedure, Foreign workers, Employment, Employment and training, Enforcement, Forest and forest products, Fraud, Health professions, Immigration, Labor, Passports and visas, Penalties, Reporting and recordkeeping requirements, Unemployment, Wages, Working conditions.

For the reasons stated in the preamble, the Department amends 20 CFR part 655 as follows:

PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES

1. The authority citation for part 655 continues to read as follows:

Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 1182(m), (n) and (t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1), Public Law 101-238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), Public Law 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Public Law 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Public Law 103-206, 107 Stat. 2428; sec. 412(e), Public Law 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d), Public Law 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Public Law 109-423, 120 Stat. 2900; and 8 CFR 214.2(h)(4)(i).

Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184(c), and 1188; and 8 CFR 214.2(h).

Subparts A and C issued under 8 CFR 214.2(h).

Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 CFR 214.2(h).

Subparts D and E authority repealed.

Subparts F and G issued under 8 U.S.C. 1288(c) and (d); and sec. 323(c), Public Law 103-206, 107 Stat. 2428.

Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Public Law 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), Public Law 105-277, 112 Stat. 2681; and 8 CFR 214.2(h).

Subparts J and K authority repealed.

Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).

2. Amend Sec. 655.100 by revising paragraph (b)(1) and the introductory text of paragraph (b)(2) to read as follows:

Sec. 655.100 Overview of subpart B and definition of terms.

(b) * * *

(1) Compliance with these regulations. Employers with a date of need for H-2A workers for temporary or seasonal agricultural services on or after January 1, 2010 must comply with all of the obligations and assurances required in this subpart.

(2) Transition from former regulations. Employers with a date of need for H-2A workers for temporary or seasonal agricultural services prior to January 1, 2010 will file applications in the following manner:

* * * * *

Signed in Washington, DC, this 14th day of April 2009.

Douglas F. Small,

Deputy Assistant Secretary, Employment and Training Administration.

[FR Doc. E9-8815 Filed 4-15-09; 8:45 am]

BILLING CODE 4510-FP-P

The Department of Labor (DOL) provided an update regarding the new iCERT system which will be used to file labor condition applications (LCAs) and PERM applications. The iCERT system is now planned to launch on April 15, 2009 for LCA filings. Although the DOL had planned to open the iCERT system in late March 2009 to allow users to register, April 15 is the earliest the system will be available.

Accordingly, attorneys and employers can begin the registration process as well as begin filing LCAs on this new system effective April 15. The current LCA system will remain open until May 14. Effective May 15, the iCERT system must be used for all LCAs. Under the iCERT system, LCAs will no longer receive immediate approval as under the current LCA system. The DOL has advised that LCAs submitted through the iCERT system may take up to seven days to process. In addition, the DOL anticipates that iCERT will be available for the new PERM application in September 2009.

The DOL also provided updates on current PERM processing times as follows:

• Unaudited PERM cases – currently processing cases with July 2008 priority dates.

• Audited PERM cases – currently processing cases with September 2007 priority dates.

• PERM Appeal (non-government error) cases – currently processing cases with June 2007 priority dates.

• PERM Appeal (government error) cases – current.

DOL's Office of Foreign Labor Certification released FAQs regarding the department's consideration of H-2As recent notice of proposed suspension of the H-2A final rule published in December 2008.

Frequently Asked Questions – Notice of Proposed Suspension

Question: The Department has published a Notice of Proposed Suspension of the H2A regulations which were initially published in a final rule on December 18, 2008 and became effective on January 17, 2009. I have an application pending that was filed after January 17. What will happen to my application?

Answer: The Department’s publication of the Notice of Proposed Suspension has no immediate effect on the regulated community as it outlines a proposed action on which the Department is currently soliciting public comment. The Notice opens a 10day public comment period, and the Department must take into consideration all comments before taking final action. Therefore, all applications pending as of the date of publication of the Notice of Proposed Suspension will continue to be adjudicated under the regulations currently in place. The Notice of Proposed Suspension does not make any changes to the regulations currently in force.

Question: The Department published a Notice of Proposed Suspension of the H2A regulations which were initially published in a final rule on December 18, 2008 and became effective on January 17, 2009. I am just beginning my recruitment for the harvest season and may need to use H2A workers. What do I do?

Answer: The Department’s publication of the Notice of Proposed Suspension has no immediate effect on employers seeking to hire H2A workers, since it simply outlines a proposed action on which the Department is currently soliciting public comment. The Notice opens a 10 day period for public comments. Until the Department takes further action, all employers are expected to comply with the regulations currently in place and effective as of January 17, 2009. The Department will publish in the Federal Register any final actions taken in response to the Notice of Proposed Suspension.

The U.S. Department of Labor today issued policy guidance to states and outlying areas for the implementation of American Recovery and Reinvestment Act of 2009 (ARRA) investments in core employment and training programs. This critical investment of $3,514,500,000 in the nation’s workforce system and network of One-Stop Career Centers is intended to help unemployed Americans upgrade their skills and get back to work.

"One-Stop Career Centers have a wide array of services and resources to help workers and youth who are unemployed or underemployed," said Secretary of Labor Hilda L. Solis. "Through the One-Stops, the workforce system will play a vital role in America's economic recovery by assisting workers who are facing unprecedented challenges to retool their skills and re-establish themselves in viable career paths."

The training and employment guidance letter distributed today provides policy and direction regarding activities authorized under the Workforce Investment Act of 1998 and the Wagner Peyser Act, as funded through ARRA. The letter also provides specific instructions to states on how they can use funding under the Recovery Act to serve adults, dislocated workers and youth, and provide labor exchange services to all who need them. The workforce investment system will use Recovery Act funds to increase service levels, address immediate employment needs and spur future economic growth to advance shared prosperity for all Americans.

The US Department of State (DOS) has announced Form DS-260, a new, completely electronic application for foreign nationals seeking immigrant visas at U.S. consulates abroad. The new form has not yet been made available for use by the public, but is expected eventually to replace Form DS-230, the paper-based immigrant visa application. Initially, DOS will accept either the paper-based or the electronic version of the application.

Form DS-260 has been in development at the State Department for several years and follows implementation of Form DS-160, the electronic nonimmigrant visa application form that was introduced in late 2008 and became mandatory for all nonimmigrant visa applicants in April 2010. The DS-260 form is expected to resemble its nonimmigrant counterpart.

When Form DS-260 is fully implemented, users will electronically complete, sign and submit their applications online; they will not submit a paper application to DOS. Applicants will be permitted to have their immigration counsel assist them in filling out the form, but will be required to complete the electronic signature portion themselves. The completed application will then be transmitted to DOS, where it will be visible to officers at the National Visa Center – the DOS division that administratively processes immigrant visa applications – and to adjudicating officers at U.S. consulates.

U.S. Customs and Border Protection today announced an interim final rule that amends Department of Homeland Security regulations to require travelers from Visa Waiver Program (VWP) countries to pay operational and travel promotion fees when applying for an Electronic System for Travel Authorization (ESTA) beginning September 8.

A fee of $4 will recover the costs incurred by CBP of providing and administering the ESTA system and is in addition to the mandatory $10 travel promotion fee established by the Travel Promotion Act of 2009, enacted as Section 9 of Public Law 111-145, the United States Capitol Police Administrative Technical Corrections Act of 2009. The total fee for a new or renewed ESTA will be $14.

DHS published a notice of the interim final rule in the Federal Register today and will accept comments through October 8. Collection of the fees will begin for ESTA applications filed on or after September 8.

The Department of State (DOS) has recently released the Visa Bulletin for August 2010. The eleventh visa bulletin for the fiscal year 2010 brings some substantial forward movement in the EB-2 India category which had not moved for the past few months. Also, there is some gradual forward across all EB-3 employment-based categories.

The cut-off dates for the employment-based categories are as follows.

The Department of State published an interim final rule in the Federal Register on May 20, 2010 to increase nonimmigrant visa application processing fees, also called the Machine-Readable Visa (MRV) fee, and Border Crossing Card (BCC) fees.

The Department is increasing fees to ensure sufficient resources to cover the rising cost of processing nonimmigrant visas. This increase applies both to nonimmigrant visas placed in passports and to border crossing cards issued to certain applicants in Mexico.

The new, tiered fee structure was created to cover the higher unit costs for processing certain categories of nonimmigrant visas that are more complicated and require more in-depth consideration than most other categories of nonimmigrant visas. The Department is required to recover, as far as possible, the cost of processing nonimmigrant visas through the collection of the application fees. For a number of reasons, including new security enhancements, the $131 fee set on January 1, 2008 no longer covers the current, actual cost of processing nonimmigrant visas.

Under the new schedule of fees, applicants for all visas that are not petition-based, including B1/B2 tourist and business visitor visas and all student and exchange visitor (F, M and J) visas, will pay a fee of $140.

Applicants for petition-based visas will pay an application fee of $150.

These categories include:

• H visa for temporary workers and trainees

• L visa for intracompany transferees

• O visa for aliens with extraordinary ability

• P visa for athletes, artists and entertainers

• Q visa for international cultural exchange visitors

• R visa for religious occupations

The application fee for K visas for fiancé(e)s of U.S. citizens will be $350. The fee for E visas for treaty-traders and treatyinvestors will be $390.

Concurrent with the publication of the interim final rule, the Department will also release additional cost of service data and re-open the public comment period for an additional 60 days. At the conclusion of that period, the Department will consider public comments and publish a final rule.

In the first week of the DV-2011 Program, Department of State (DOS) has received over 900,000 entries, submitted by people around the world submitted, which marks 63 percent increase over the same period last year. DOS expects to receive more than 13,000,000 entries for the DV-2011 Program.

The U.S. Department of State launched DV-2011 on October 2 and will conclude the registration period on November 30. This Congressionally-mandated program makes available 55,000 immigrant visas annually, drawn randomly from all entries and issued to persons who meet strict eligibility requirements from countries with low rates of immigration to the United States.

Successful DV-2011 entrants will receive notification of their selection via mail between May and July, 2010, and will be permitted to commence the Immigrant Visa application process in October 2010. The deadline for visa issuance is September 30, 2011.

The Diversity Immigrant Visa Program is open to persons meeting simple, but strict, eligibility requirements. Nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years are not eligible.

For DV-2011, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years:

Brazil, Canada, China (Mainland-Born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

NOTE: Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

There is no fee to enter DV-2011. Successful entrants, however, will be required to pay all applicable application fees and costs, including those for medical examinations, for themselves and qualifying immediate relatives. Entries must be submitted online. Paper entries are not acceptable. All successful entrants will be notified by mail, but entrants who retain their online confirmation page will be able to check their entry status through the internet.

SUMMARY: To comply with the Department of Homeland Security regulation requiring sponsoring employers to file petitions for all aliens for whom R-1 nonimmigrant status is sought. This rule establishes the requirement that consular officers ensure that R-1 visa applicants have obtained an approved U.S. Citizenship and Immigration Services Form I-129 petition from the Department of Homeland Security before issuance of a visa.

DATES: This rule is effective October 6, 2009.

FOR FURTHER INFORMATION CONTACT: Lauren A. Prosnik, Legislation and Regulations Division, Visa Services, Department of State, 2401 E Street, NW., Room L-603D, Washington, DC 20520-0106, (202) 663-2951.

SUPPLEMENTARY INFORMATION:

Why is the Department promulgating this rule?

On November 26, 2008, the Department of Homeland Security (DHS) promulgated regulations requiring sponsoring employers to file petitions for all aliens for whom R-1 nonimmigrant status is sought. 73 FR 72276. As a result, the requirements for an R-1 nonimmigrant visa now include establishing that the applicant is the beneficiary of an approved petition. U.S. Citizenship and Immigration Services (USCIS) has implemented the petition requirement for nonimmigrant religious workers as a way to determine the bona fides of a petitioning religious organization located in the United States and to determine that a religious worker will be admitted to the United States to work for a specific religious organization at the request of that religious organization. This rule amends the Department regulations to ensure consistency with the regulations set forth by DHS.

Regulatory Findings:

Administrative Procedure Act:

This regulation involves a foreign affairs function of the United States and, therefore, in accordance with 5 U.S.C. 553(a)(1), is not subject to the rule making procedures set forth at 5 U.S.C. 553.

Regulatory Flexibility Act/Executive Order 13272: Small Business:

Because this final rule is exempt from notice and comment rulemaking under 5 U.S.C. 553, it is exempt from the regulatory flexibility analysis requirements set forth at sections 603 and 604 of the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, consistent with section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities. This regulates individual aliens who seek consideration for R-1 nonimmigrant visas and does not affect any small entities, as defined in 5 U.S.C. 601(6).

The Unfunded Mandates Reform Act of 1995:

Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule will not result in any such expenditure, nor will it significantly or uniquely affect small governments.

The Small Business Regulatory Enforcement Fairness Act of 1996:

This rule is not a major rule as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104- 121. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign based companies in domestic and import markets.

Executive Order 12866:

The Department of State has reviewed this proposed rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866 and has determined that the benefits of this final regulation justify its costs. The Department does not consider this final rule to be an economically significant action within the scope of section 3(f)(1) of the Executive Order since it is not likely to have an annual effect on the economy of $100 million or more or to adversely affect in a material way the economy, a sector of the economy, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities.

Executive Orders 12372 and 13132: Federalism:

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor will the rule have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132.

Executive Order 12988: Civil Justice Reform:

The Department has reviewed the regulations in light of sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

Paperwork Reduction Act:

This rule does not impose information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35.

List of Subjects in 22 CFR Part 41

Aliens, Foreign officials, Immigration, Nonimmigrants, Passports and Visas.

For the reasons stated in the preamble, the Department of State amends 22 CFR Part 41 as follows:

PART 41--[AMENDED]

1. The authority citation for part 41 continues to read as follows:

Authority: 8 U.S.C. 1104; Public Law 105-277, 112 Stat. 2681- 795 through 2681-801; 8 U.S.C.1185 note (section 7209 of Pub. L. 108-458, as amended by section 546 of Pub. L. 109-295).

2. Revise Sec. 41.58 to read as follows:

Sec. 41.58 Aliens in religious occupations.

(a) Requirements for ``R'' classification. An alien shall be classifiable under the provisions of INA 101(a)(15)(R) if:

(1) The consular officer is satisfied that the alien qualifies under the provisions of that section; and

(2) With respect to the principal alien, the consular officer has received official evidence of the approval by USCIS of a petition to accord such classification or the extension by USCIS of the period of authorized stay in such classification; or

(3) The alien is the spouse or child of an alien so classified and is accompanying or following to join the principal alien.

(b) Petition approval. The approval of a petition by USCIS does not establish that the alien is eligible to receive a nonimmigrant visa.

(c) Validity of visa. The period of validity of a visa issued on the basis of paragraph (a) to this section must not precede or exceed the period indicated in the petition, notification, or confirmation required in paragraph (a)(2) of this section.

(d) Aliens not entitled to classification under INA 101(a)(15)(R). The consular officer must suspend action on the alien's application and submit a report to the approving USCIS office if the consular officer knows or has reason to believe that an alien applying for a visa under INA 101(a)(15)(R) is not entitled to the classification as approved.

Pursuant to the provisions of Section 212(e) of the Immigration and Nationality Act (INA), as amended, 8 U.S.C. 1182(e) and 22 CFR 41.63, the Secretary of State designated on April 25, 1972, and revised on February 10, 1978, a list of fields of specialized knowledge or skills (referred to as the Exchange Visitor Skills List) for countries which clearly required the services of exchange visitor participants engaged in one or more of the designated fields. Any national or resident of a country on the skills list who obtained a J-1 exchange visitor visa and/or became a participant in an exchange visitor program involving a designated field of specialized knowledge or skills after the effective date of those public notices is subject to the two-year foreign-residence requirement of Section 212(e) of the INA, as amended.

The revised 2009 J-1 visa Exchange Visitor Skills List was published in the Federal Register (Volume 74, Number 82) on April 30, 2009 and the The new Skills List is effective on June 28, 2009.

Exchange visitors who entered the United States on a J-1 visa prior to June 28, 2009 shall continue to be governed by the 1997 Exchange Visitor Skills List, as amended, only if their country remains on the revised 2009 list. Exchange visitors whose countries were removed from the revised 2009 skills list are retroactively not subject to the two-year home residence requirement based on the Exchange Visitor Skills List, even if they entered the United States prior to the effective date.

For residents of countries who remain on the revised 2009 Skills list, if the exchange visitors obtained a J-1 visa based on a previous skills list, they remain subject to Section 212(e) of the INA. This is true even if their country has removed that skill from the revised 2009 Skills List. Exchange visitors are subject, based on the skills list that was in effect when they first obtained the J-1 visa.

The Department of State (DOS) opened its twenty-first domestic passport issuance facility in Minneapolis, Minnesota, on May 18. The Minneapolis Passport Agency is located at 212 South Third Avenue in downtown Minneapolis and is designed to provide in-person passport services to American citizens throughout the North Central border region.

The Minneapolis location provides gateway access to Canada. Its proximity to a major domestic and international airport will be instrumental in helping American citizens with their travel plans.

The Minneapolis Passport Agency serves U.S. citizens who have urgent/emergency travel needs and has the capability to issue passport books and passport cards on-site to qualified applicants. With the final phase of the Western Hemisphere Travel Initiative scheduled to be implemented June 1, 2009, this agency will greatly improve their ability to meet the travel needs of the customers in several of the northern Border States.

Information on the cost and how to apply for a passport book and/or a passport card can be found at www.travel.state.gov. U.S. citizens may also obtain passport information by calling the National Passport Information Center toll-free at 1-877-487-2778.

Student and Exchange Visitor Update

Reference Document: STATE 017314, Date 2/09

TO ALL DIPLOMATIC AND CONSULAR POSTS

1. SUMMARY: The F, M, and J FAM notes have been extensively updated to reflect current guidance. VO/P has established a Student and Exchange Visitor Visa Center to answer F, M, and J case inquiries. Please remember that while the SEVIS record is the definitive proof of F, M and J eligibility, applicants currently are required to present accurately completed I-20 or DS-2019 paper forms. The CCD reports for SEVIS lookups have been enhanced. While not required for F or M applicants, medical insurance could help establish an applicant's eligibility. Admission to a lesser-known college or English language program is not in itself a reason for refusal, although all applicants should be able to explain their school choice and educational plan. The J-1 Skills List has been updated and is nearing publication in the Federal Register. This cable also provides reminders on the Summer Work/Travel program, an overview of F/M/J validation studies, and an update on two J-1 pilot programs. End Summary.

2. As part of the extensive 2008 9 FAM revisions, the 9 FAM notes for 41.61 and 41.62 have been updated to include all recent guidance on F, M, and J visas. Suggestions for further revisions or clarifications are always welcome and should be sent to VO/L/R and your VO/F/P post liaison officer.

3. VO's Public Inquiries Division has created a unit to respond to inquiries about individual student and exchange visitor visa cases. The Center can be reached via email at fmjvisas@state.gov and typically receives almost 900 inquiries a month.

4. The SEVIS record is the definitive record to determine student or exchange visitor visa eligibility (see 9 FAM 41.61 N2.2 and 41.62 N 8.1). The new version of SEVIS, expected to be released by spring 2010, will remove the requirement for the paper forms, but until then F/M/J visa applicants must present signed I-20 or DS-2019 forms. If there are minor errors on the form (e.g., a program start date that is off one day) you can process the case using that form. However, if the form indicates an unrealizable program start date, or has a typographic error in the bio data, you must verify that the information is correct in SEVIS. You should then consider whether the error on the form would cause the traveler difficulty at the port of entry. If it would, you should request that the applicant travel with a corrected hard copy of the form. 9 FAM 41.61 N3.1 and 9 FAM 41.62 N3.1 will be updated to include this information.

5. Please remember that, as noted in 9 FAM 41.61 N 7.2, attendance at a lesser-known college, English language program, or a community college is not, in itself, a reason for refusing a student visa applicant. A student must establish that he/she has a plan for his/her education. A plan that includes initial attendance at a community college or English language program, and then a transfer to a four-year college, certainly is acceptable. Which school a student chooses is not nearly as important as why he/she chose it.

6. We encourage you to welcome community college or other university recruiters to brief your section on their schools and programs. You may wish to ensure your post website has links to USG sites such as www.exchanges.state.gov, www.educationusa.state.gov, www.ed.gov, and educational association sites such as www.communitycollegeusa.com, www.edupass.org, or www.iie.org.

7. Per 22 CFR 62.14, J-1 and J-2 travelers are required to have adequate medical insurance in order to participate in an exchange program. While F and M students and their dependants are not required to have U.S. medical or travel insurance in order to qualify for a visa, most universities require students to have medical insurance. Assurance that a student would be able to afford any health care expenses in the United States could certainly help a student overcome public charge concerns. 9 FAM 41.61 N6.1-3 and 41.62 N 8.1 (c) will be added to reflect this reminder.

8. You may have already noticed enhanced ways to check an applicant's SEVIS status using the CCD. The CCD now has an expanded "NIV Applicant SEVIS Status" search function that allows you to search by additional fields. In addition, the existing "SEVIS Lookup" function allows you to search for a SEVIS number by school or program name as well as applicant name. SEVIS reports now should indicate whether an F or M visa applicant has been approved for Optional Practical Training (OPT) or Conditional Practical Training (CPT), as well as the status of a school (active or terminated). Please let us know if you would like additional functionality in these reports

11. Consular officers who uncover patterns of abuse or suspicious activity from a particular school should send that information to VO/F/P and FPP. We can pass along information from the field that sometimes leads SEVP to reevaluate a school's SEVIS status.

12. The Exchange Visitor Skills List has been updated and is nearing publication in the Federal Register. Once it is published, we will notify posts and provide details about when it will take effect.

13. Thank you to all posts that have been working hard to remind sponsors of the requirement that Summer Work Travel (SWT) programs may only take place during a student's summer leave period, and may not exceed four months. Please note that, as explained in 9 FAM 41.62 N 8.6, the SWT program must end before the next school term begins. However, each J participant is allowed to remain in the U.S. for a 30-day grace period after the program ends. Any validation studies about J overstays must take into account this allowed grace period, which in some cases would extend into the next school year (9 FAM 41.62 N4.12-3).

14. SWT applicants are not required to have a job placement at the time of their visa application. However, it is reasonable, especially in this economic climate, that applicants without job placements may have a more difficult time establishing their ability to support themselves during their program, as well as their intent to return abroad after the program ends. One effective way to minimize potential SWT abuse is to verify job offers for SWT applicants who have them. Additional information about the types of employment permitted on SWT can be found on the ECA site at www.exchanges.state.gov/jexchanges/programs/swt.html.

15. As noted in Ref A, posts should establish uniform SWT program dates and send to [redacted] VO/F/P. We have received SWT program dates from approximately 50 posts. We will share this with the U.S. sponsors and have provided it to ECA.

16. The Summer Au Pair Pilot Program that began in the summer of 2005 and provided participants a four-month au pair program during the U.S. summer will be discontinued at the end of the 2009 summer placement period.

17. ECA has authorized a two-year extension of the Pilot program being conducted by the Center for International Education (ref E). The pilot was originally authorized through February 15, 2009. The two-year extension authorizes it through February 15, 2011, and adds a second teacher exchange sponsor, Foreign Academic and Cultural Exchange Services (FACES). 9 FAM 41.62 N 4.13 will be updated to include paragraph c, as follows:

c. Pilot Program for Exchange Visitor Teachers

1. In February 2007 ECA announced a two-year Pilot Program for Exchange Visitor Teachers to provide an opportunity to evaluate the need for and acceptance of a reduced experience requirement. The Pilot period, scheduled to conclude February 15, 2009, has been extended for an additional two-year period to February 15, 2011. The Pilot is being conducted by the Center for International Education, Inc. and Foreign Academic and Cultural Exchange Services (FACES), Department-designated Exchange Visitor Program sponsors. The Pilot is limited to nine countries: Australia, Canada, Columbia, New Zealand, South Africa, Spain, United Kingdom, Ireland, and Venezuela. Only nationals from these countries who apply in their country of nationality may participate.
2. Participants in this pilot program are not required to have three years of prior teaching experience. Participants are required to be eligible for employment as a teacher in their home country as demonstrated by a provisional or full teaching certificate, license, or other credential that permits employment as a teacher in the respective home country. They must also present a signed letter of acceptance for a full time teaching position from a U.S. accredited school (K-12), on school letterhead and signed by the appropriate school official. All other eligibility requirements for this exchange category must be met (Teacher - 22 CFR 62.24).
3. Pilot program participants are not exempt from the usual MRV and reciprocity fees or the SEVIS I-901 Fee.

18. As has been the case for the past several years, please ensure that student and exchange visitor visa applicants are given priority when scheduling appointments for interview. Information on the availability of expedited appointments should be available on post's website, recorded information and via call centers. Whenever possible, every applicant should be able to receive an appointment before his/her program starts. Priority should go to first-time applicants, while repeat applicants can be placed on a lower-priority tier.

19. Questions on F, M, or J visas may be directed to your VO/F/P post liaison officer; questions on J programs may be directed to ECA/EC.

The State Department has recently released the Visa Bulletin for June 2009. As per the June 2009 Visa Bulletin, the waiting period for the second employment-based green card (EB-2) category will increase considerably for India next month. The State Department will impose a cut-off date of January 1, 2000 for EB-2 India – a retrogression of more than four years – in order to make sure that annual quotas are not exceeded. The third employment-based preference category (EB-3) will remain unavailable for all countries and waiting periods for all other employment-based categories will be unchanged.

In June, priority date cut-offs for the first three employment-based categories will be as follows:

Because of heavy demand for employment-based immigrant visas, the State Department is projecting that availability of visa numbers in all categories and for all countries could become more limited in the last three months of Fiscal Year (FY) 2009, which ends on September 30. In the coming months, the State Department could impose waiting periods on employment-based categories that are now current and lengthen waiting periods for categories that are already backlogged.

Read the complete Visa Bulletin for June 2009.

On Saturday, March 28, the Department of State will celebrate “Passport Day in the USA,” a national outreach event to inform the public about the upcoming changes to U.S. travel document requirements, provide passport information and accept passport applications from U.S. citizens from coast-to-coast and border-to-border.

All Department of State Passport Agencies, and many Passport Acceptance Facilities around the country, will host passport application acceptance events. U.S. citizens without a valid passport book or passport card are encouraged to apply on this day.

U.S. citizens will receive passport information and can apply for their passport at “Passport Day in the USA” events. For this day only, appointments and expedite fees are not required for those applying at a Passport Agency. Applicants can expect to receive their passport in approximately four weeks for routine service and about two to three weeks for expedited service.

The hours of operation for each Passport Agency for this event may vary across the country. Times may also vary for Passport Acceptance Facilities, so U.S. citizens should check with their local acceptance facility for event information.

Information on the cost and how to apply for a passport book and/or a passport card is available at travel.state.gov. U.S. citizens may also obtain passport information by phone by calling the National Passport Information Center toll-free at 1-877-487-2778.

As of January 23, 2007, everyone traveling in and out of the United States by air needs a passport. On June 1, 2009, U.S. citizens must present a passport book, passport card, or other travel documents approved by the U.S. government to enter the United States from Canada, Mexico, the Caribbean, and Bermuda at land borders and sea ports of entry.

The Department of State, together with the Department of Homeland Security, the U.S. Postal Service, and non-postal Passport Acceptance Facilities, are working together to ensure that citizens are aware of the new requirements effective June 1.

As per the State Department's April 2009 Visa Bulletin, priority date cut-offs for the third employment-based preference (EB-3) subcategory for professional and skilled workers will advance more than four months for China and will advance 16 days for India.

All other EB-3 subcategories will retrogress substantially; cut-off dates will retrogress five months for Mexico and more than two years for the Philippines and all other countries. There will be no change in priority date cut-offs for the second employment-based preference category (EB-2) for India and China. The first employment-based preference category (EB-1) will remain current for all countries.

The cut-off dates for the retrogressed EB-3 subcategories – which cover all countries except India and China – are effective immediately. Beginning today, USCIS will not accept applications for Adjustment of Status in the retrogressed EB-3 subcategories unless the priority date is current under the April 2009 Visa Bulletin. Immigrant visa applications overseas should be processed according to the March 2009 Visa Bulletin, as the March 2009 visa numbers were allocated to the consular posts by the State Department at the beginning of the month.

In April, priority date cut-offs for the first three employment-based categories will be as follows:

• EB-1: Current for all countries.
• EB-2: China – February 15, 2005; India – February 15, 2004; all other countries – current.
• EB-3 Professionals and Skilled Workers: India – November 1, 2001; all other countries – March 2003.
• EB-3 Other Workers: All countries – March 1, 2001.

In addition, cut-off dates for the Regional Center Pilot Program for employment-based fifth preference (EB-5) immigrant investors and the special immigrant category for non-minister religious workers appear as "unavailable." The State Department indicates that these two categories will remain unavailable until Congress passes legislation to extend the programs. Congress is currently considering legislation that would extend both categories until September 2009.

U.S. Customs and Border Protection reminds Visa Waiver Program travelers the $14 fee for the Electronic System for Travel Authorization applications that will begin Wednesday, Sept. 8.

A fee of $4 will recover the costs incurred by CBP of providing and administering the ESTA system and is in addition to the mandatory $10 travel promotion fee established by the Travel Promotion Act of 2009. The total fee for a new or renewed ESTA will be $14.

All payments for electronic travel authorization applications must be made by credit card or debit card when applying for or renewing an ESTA. Payment arrangements may be made through a third party, such as a travel agent, since the name on the credit card does not have to match the name of the traveler. The ESTA application will not be submitted for processing until all payment information is received.

Travelers with an approved ESTA will not need to pay the ESTA fee when updating an ESTA application. However, travelers with new passports and re-applying for an ESTA will need to pay the ESTA fee.

The U.S. Senate has passed by unanimous consent the Emergency Border Security Supplemental Appropriations Act of 2010, which contains provisions that increased fees for certain employers with a U.S. workforce of more than fifty percent H-1B or L-1 nonimmigrants. �The bill was initially passed by the Senate on August 5, but because of a constitutional requirement that revenue measures originate in the House, the bill was sent back to the House, which passed the measure on August 10. �The bill then returned to the Senate for its final approval.� Though the Senate was in recess, it reconvened with just a few members present. The bill went to President for approval and has been signed by the President into law.

The new border security bill has been termed as "discriminatory" by the Indian and American companies, as it raises H-1B and L-1 visa fee mostly for Indian companies to generate funds for the USD 600 million to secure the US-Mexico border.

Obama, in a statement, welcomed the passage of the bill after the US Senate came back from its summer recess for a rare special session on August 12, 2010 morning to approve it by a voice vote. Only two senators attended the short session: Democrats Ben Cardin and Charles Schumer.
Under Senate rules, only two members must be present if legislation is unanimously agreed to by all others. The House of Representatives had passed the bill early this week.

To offset the emergency border spending, the proposal would hike fees assessed on particular companies that exploit two categories of visas. Firms with more than 50 employees and more than 50 percent of their employees on H-1B work visas would be affected.

"A handful of foreign-controlled companies that operation in the US, such as Wipro, Tata, Infosys and Satyamrely on H1B and L visas to import foreign workers to the US.� The Senate Democrats' border security proposal would increase the visa fees paid by these companies by roughly USD 2,000 per visa application," said Senator Claire McCaskill.

Obama said that this action by Congress answers his call to bolster the essential work of federal law enforcement officials and improve their ability to partner with state, local, and tribal law enforcement.

"The resources made available through this legislation will build upon our successful efforts to protect communities along the Southwest border and across the country. This new law will also strengthen our partnership with Mexico in targeting the gangs and criminal organizations that operate on both sides of the shared border," Obama said.

"So these steps will make an important difference as my administration continues to work with Congress toward bipartisan comprehensive immigration reform to secure our borders, and restore responsibility and accountability to our broken immigration system," he said.

Nine people pleaded guilty to charges connected with their involvement in a scheme in central Ohio to arrange marriages between foreign nationals and U.S. citizens. The sentences were announced by the U.S. Attorney's Office and U.S. Immigration Customs and Enforcement (ICE).

Brian Moskowitz, ICE special agent in charge of the Office of Homeland Security Investigations in Ohio and Michigan, along with Carter M. Stewart, U. S. Attorney for the Southern District of Ohio, announced the sentences by U.S. District Judge Algenon L. Marbley.

The sentences were imposed on the following individuals:

• Hasan Salohutdinov of Dublin, Ohio, and an illegal alien from Uzbekistan, was sentenced to 15 months imprisonment followed by deportation. He pleaded guilty on April 5, 2010, to one count of conspiracy to commit marriage fraud and on count of presenting false statements to U.S. immigration authorities. Salohutdinov introduced other Uzbeks into the scheme in order that they might pay to engage in sham marriages.
  
  
• Dmitry Pani also of Dublin, and an illegal alien from Estonia, was sentenced to one year imprisonment. Pani also pleaded guilty to one count of conspiracy to commit marriage fraud.
  
  
• Sviatlana A. Piskunova of Columbus pleaded guilty to conspiracy and sentenced to time served.
  
  
• Laura Elizabeth Grace Scott of Columbus pleaded guilty to conspiracy and was sentenced to two years probation which includes six months of home confinement.
  
  
• Courtnie Susann Good of Columbus pleaded guilty to marriage fraud and was sentenced to two years probation which includes six months of home confinement with electronic monitoring.
  
  
• Elbek A. Saidjanov of Philadelphia, Penn., pleaded guilty to marriage fraud and was sentenced to time served, about seven and one-half months.
  
  
• Iskander Odilovich Tairov, of Galloway, Ohio, pleaded guilty to marriage fraud and was sentenced to two years probation.
  
  
• Brent James Woods of Columbus pleaded guilty to marriage fraud and was sentenced to four years probation including four months in Alvis House.
  
  
• Djafar B. Sobirov of Columbus pleaded guilty to marriage fraud and was sentenced to two years probation.

Pani established an informal "business" to find U.S. citizens who would accept money to enter into sham marriages with aliens for the purpose of evading a provision of the immigration laws of the United States, and to aid and abet in the making of false statements to immigration authorities with respect to those sham marriages in an effort to convince the immigration authorities that they were genuine marriages.

Salohutdinov, who had entered into a sham marriage in Illinois, moved to Ohio and came to know Pani. Salohutdinov and Piskunova joined the conspiracy with Pani and arranged sham marriages for certain other aliens that Salohudinov knew of.

The sham marriages typically occurred shortly after the alien and the U.S. citizen met each other, sometimes even the same day. Saidjanov, an alien, came to Columbus from Philadelphia, Penn., and paid Pani to arrange a sham marriage on Feb. 9, 2009, with Good. Saidjanov also paid his girlfriend, who is an alien, too, to enter into a sham marriage on the following day. These sham marriages took place at The Columbus Wedding Chapel, in Columbus. After the marriages, Sadijanov and his girlfriend returned to Philadelphia, and did not live with their new American spouses.

"Today's sentences are a reminder that America's legal immigration system is not for sale," said Moskowitz. "ICE will aggressively investigate and bring to justice those who seek to compromise the integrity of that system for personal profit or to avoid immigration laws."

Stewart commended the investigation conducted by ICE agents, and the assistance of the ICE Office of Enforcement and Removal, U.S. Citizenship and Immigration Services, and the Columbus Police Department, and Assistant U.S. Attorney Dan Brown, who prosecuted the case.

On the one-year anniversary of implementing the Electronic System for Travel Authorization (ESTA), the Department of Homeland Security’s U.S. Customs and Border Protection reminds U.S. bound travelers from Visa Waiver Program (VWP) countries of the ESTA requirement. Beginning January 20, CBP will initiate a 60-day transition to enforced ESTA compliance for air carriers; VWP travelers without an approved ESTA may not be allowed to board a U.S. bound plane.

ESTA is an electronic travel authorization that all citizens of VWP countries must obtain prior to boarding a carrier to travel by air or sea to the United States under the VWP. ESTA has been mandatory since Jan. 12, 2009 for all nationals of VWP countries traveling to the U.S under the VWP. The requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa.

ESTA applications may be submitted at any time prior to travel, and once approved, generally will be valid for up to two years or until the applicant’s passport expires, whichever comes first. Authorizations are valid for multiple entries into the U.S. The Department of Homeland Security recommends that ESTA applications be submitted as soon as an applicant begins making travel plans.

VWP travelers are required to log onto the ESTA Web site and complete an online application. The web-based system prompts applicants to answer basic biographic and eligibility questions typically requested on a paper I-94W form; ESTA is expected to completely replace the paper I-94W in the coming months. A third party, such as a relative, a friend, or a travel agent, may submit an application on behalf of a VWP traveler.

The ESTA Web site is available in 21 languages: Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Hungarian, Icelandic, Italian, Japanese, Korean, Latvian, Lithuanian, Norwegian, Portuguese, Slovak, Slovenian, Spanish and Swedish.

Department of Homeland Security (DHS) Secretary Janet Napolitano today announced the publication of a rule formalizing DHS' longstanding policy to expedite and streamline the citizenship process for men and women bravely serving in America's armed forces.

"The foundation of our national security is the patriotic service and extraordinary sacrifices made by the men and women of our armed forces," said Secretary Napolitano. "Expediting the citizenship process for service members reflects our commitment to honoring those who come from all over the world to serve our country and become its newest citizens."

The rule amends DHS regulations to conform to the National Defense Authorization Act of 2004, reducing the time requirements for naturalization through military service from three years to one year for applicants who served during peacetime, and extending benefits to members of the Selected Reserve of the Ready Reserve of the U.S. Armed Forces. Service members who have served honorably in an active-duty status or in the Selected Reserve of the Ready Reserve for any time since Sept. 11, 2001, can file immediately for citizenship.

Question: What labor certification programs are affected by the new prevailing wage process administered by the National Prevailing Wage and Helpdesk Center (NPWHC)?
Answer: As described in the Department’s December 4, 2009 Federal Register Notice (74 FR 63796), the National Prevailing Wage and Helpdesk Center (NPWHC) will process Prevailing Wage Determination (PWD) requests for H1B, H1B1 (Chile/Singapore), H1C (if reauthorized by Congress), H2B, E3 (Australia) programs, and the permanent labor certification program (PERM).

Question: What form should I use to request a Prevailing Wage Determination?
Answer: An employer must use ETA Form 9141 to request a PWD from the NPWHC.

Question: How do I file a PWD request?
Answer: To request a PWD, an employer must mail a completed ETA Form 9141 to the NPWHC at the following address:

U.S. Department of Labor
Employment and Training Administration
National Prevailing Wage and Helpdesk Center
Attn: PWD Request
1341 G Street, NW
Suite 201
Washington, DC 200053142

Question: Will the NPWHC accept prevailing wage determination requests via fax, email, or other electronic means?
Answer: No. Initially, the NPWHC will only accept mailed in ETA Forms 9141. The Department is, however, in the process of creating a prevailing wage module on its iCert portal.

Question: Once the NPWHC makes a PWD, how will I receive it?
Answer: The Department’s strong preference is for the electronic transmittal of PWDs. Therefore, we encourage all requestors to include their email addresses
on the ETA Form 9141, under item B15. Once a determination is made, the NPWHC will email the requestor an electronic copy of the PWD. In order to
receive emails from the NPWHC, requestors should ensure that the domain @dol.gov is not blocked by their email provider. If the requestor does not provide an email address on its ETA Form 9141, item B15, the NPWHC will send the PWD to the requestor’s mailing address by regular mail.

Question: How can I obtain assistance in preparing a PWD request?
Answer: Persons with questions regarding the preparation of PWD should consult the OFLC website: www.foreignlaborcert.doleta.gov

Question: Once I submit a PWD request, how long will it take to receive a determination?
Answer: The NPWHC is working to provide Prevailing Wage Determinations as quickly as possible, in the firstin, firstout (FIFO) order. However, determination times may fluctuate somewhat as the Department works to centralize processing of PWD requests at the NPWHC. Therefore, we continue to encourage requestors to submit their ETA Forms 9141 at least 60 days in advance of the employers’ initial recruitment efforts.

Question: What do I do once I receive my PWD?
Answer: Once an employer receives a PWD, the employer may begin recruitment or file an application for foreign labor certification, depending on the program. The employer must follow programspecific rules and regulations for filing foreign labor certification applications. In addition, employers may refer to
OFLC’s website: www.foreignlaborcert.doleta.gov for more information on labor certification programs.

Question: I already sent a PWD request to the State Workforce Agency (SWA) and have not yet received a response. Will the SWA process my request?
Answer: SWAs have been instructed to complete all PWD requests received on or prior to December 31, 2009. Any PWD request received at a SWA between January 1, 2010 and up to and including January 15, 2010 will be forward by the SWA to the NPWHC. Any PWD request received at a SWA after January 15, 2010 will be returned to the requestor with instructions on how to file the PWD request with the NPWHC.

Question: I sent a request to the Chicago National Processing Center (CNPC) for an H2B Prevailing Wage Determination. Will the CNPC process my request?
Answer: The CNPC will complete all H2B PWD requests received on or prior to December 31, 2009. H2B PWD requests received at the CNPC between
January 1, 2010 and up to and including January 15, 2010 will be forward by the CNPC to the NPWHC. However, any H2B PWD request received at the CNPC after January 15, 2010 will be returned to the requestor along with written instructions on how to file a PWD request with the NPWHC.

Question: What do I do if I have a problem or issue with a PWD request I submitted to the NPWHC prior to receiving a determination?
Answer: For issues with PWD requests prior determinations being issued, please email the NPWHC at FLC.PWD@dol.gov.

Question: I received a PWD from the NPWHC, but I misplaced it. How can I get a duplicate copy of the PWD?
Answer: To request a duplicate PWD, send an email to FLC.PWD@dol.gov. The NPWHC will send an exact duplicate of the PWD to the requestor named on the ETA Form 9141.

Question: How do I request a PWD based upon a source other than OES?
Answer: On the ETA Form 9141 item D.a.6 (Job Duties), after the description of job duties, include a sentence surrounded by asterisks (***) requesting the use of a specific source, with the name, edition, revision and publication date as appropriate. In addition, after entering the employers’ job title in item D.a.1, enter the title or occupation name and code, as appropriate in square brackets.

Example
D.a.6: *** Request SCA WD 950221
(Rev.23)
Emergency Incident/Fire
Safety Services ***
D.a.1: Site Sample Technician [30210 Laboratory
Technician]

Question: What supporting documentation should I submit with my ETA Form 9141 to request the use of SCA or DBA wage?
Answer: No supporting documentation is required to request the use of SCA or DBA wage. If we need additional information to make a PWD, we will send a
letter to the requestor asking for specific information.

Question: What documentation should I submit in addition to ETA Form 9141 when the job opportunity is covered by a collective bargaining agreement (CBA)?
Answer: Submit the following at the time you submit the ETA Form 9141:

• A copy of the relevant portion of the CBA;
• A letter, on letterhead, from the employer, stating the relevant section of the CBA, the CBA job title, and the appropriate wage; and
• A letter, on letterhead, from the collective bargaining unit’s (union) authorized representative, stating the relevant section of the CBA, the
  CBA job title, and the appropriate wage.

Question: What documents do I need to send with a request to use an employer provided/published or employer conducted/commissioned survey?
Answer: The NPWHC will consider wage information provided by the employer in making a PWD. An employer must provide the following information pertaining to the survey:

• The name of the published survey;
• The publication schedule for the survey. This should include the publication date of the requested survey, the date of the previous version of the survey and the date of the next anticipated release of the survey;
• When the data was collected;
• A description of the job duties or activities used in the survey; and
• The methodology used in the survey:
• How the universe is defined;
• How the sample size was determined
• How the participants were selected; and
  • The number of employers surveyed for the occupation in the area;
  • The number of wage value responses (employees) for the occupation in the area;
• A list of employer participants or explanation of how the cross industry nature of the survey was maintained;
• How the presented wage was determined and if it is the “mean” or “median”;
• Any other appropriate information on the survey’s methodology;
• The area covered by the survey or relevant portion thereof and an explanation of any expansion of the area beyond normal commuting distance, when applicable.

Question: How do I request that a Higher Education American Competitiveness and Workforce Improvement Act (ACWIA) wage be used?
Answer: On the ETA Form 9141 item D.a.6 (Job Duties), after the description of job duties, include the following statement surrounded by asterisks: “***This
employers is an institution of higher education or a research entity under 20 CFR 656.40(e).***”

Question: For H2B only: How do I indicate on ETA Form 9141 that I want to use the H2B special procedures for itineraries?
Answer: On the ETA Form 9141 item D.a.6 (Job Duties), after the description of job duties include the following statement surrounded by asterisks: “***This
position is for H2B temporary employment in the . An itinerary is attached.***”

Question: What information should I include to get PWDs for the various locations under the H2B special procedures for itineraries?
Answer: The itinerary must include the following:

• The place of employment with full address if available; use the name of the area covered if there is no street address such as George
  Washington National Forest;
• The county or equivalent for that address;
• Any additional work site in that area;
• The begin and end date in that work site; and
• Each page must include, as entered on the ETA Form 9141 on page one:
  • the Employer’s Name
  • the trade (DBA) Name
  • the Employer’s Job Title
  • the date of the request
  
  
  
• DOL Published Proposed Rule to Increase Non-Immigrant Visa Application Fees
  

  On December 14, 2009, the Department of State published a proposed rule in the Federal Register to increase the nonimmigrant visa application processing fees, also called the Machine-Readable Visa (MRV) fee, and Border Crossing Card (BCC) fees.�The proposed rule also establishes a tiered structure with separate fees for different visa categories.

  The Department is proposing the increase to ensure sufficient resources to cover the increasing cost of processing nonimmigrant visas (NIVs).�This increase applies both to non-immigrant visas placed in passports and to border crossing cards issued to certain adult applicants in Mexico.

  The new tiered fee structure was created to cover the higher unit costs for processing certain categories of nonimmigrant visas that are more complicated and require more in-depth consideration than most other categories of nonimmigrant visas�U.S. law requires the Department to attempt to recover the cost of processing non-immigrant visas through the collection of the application fees. Because of ongoing process and security enhancements, the $131 fee set on January 1, 2008 is lower than the current, actual cost of processing non-immigrant visas.

  Under the proposed rule, applicants for all visas that are not petition-based, including B1/B2 tourist and business visitor visas and all student and exchange-visitor visas, would pay a fee of $140.

  Applicants for petition-based visas would pay an application fee of $150.�These categories include:

  • �H visa for temporary workers and trainees
  • �L visa for Intracompany transferees
  • �O visa for aliens with extraordinary ability
  • �P visa for athletes, artists and entertainers
  • �Q visa for international cultural exchange visitors
  • �R visa for religious occupations

  The application fee for K visas for fianc�(e)s of U.S. citizens would be $350.�The fee for E visas for treaty-traders and treaty-investors would be $390.

  The Department will not begin collecting the new proposed fees until it considers public comments and publishes a final rule.

  FAQs on DOS’ Proposed Rule to Increase the Non-Immigrant Visa Application Fees

  Q: Why is the Department of State proposing to increase the basic nonimmigrant visa application fee to $140 from its current $131?

  A: The Department is required by law to recover the cost of processing nonimmigrant visas through the collection of the MRV fee.�Periodically, independent contractors conduct a Cost of Service Study to determine direct and indirect costs to the U.S. Government of providing consular services, such as nonimmigrant visas.�Such a study was completed in June using an activity-based costing model, which is standard for estimating the cost of government services.� The Study determined that the cost of accepting, adjudicating, and issuing nonimmigrant visas will be greater than $131 in Fiscal Year 2010, which began October 1, 2009.� Also, since the last fee increase in 2008, there have been new security-related costs, new IT systems have been put in place, and there is a new mandate from Congress to charge nonimmigrant visa applicants $1 to support programs to combat trafficking in persons.

  Q: When do the new processing fees go into effect?

  A: The Department is proposing these new fees in a Federal Register notice, but will not implement them until it reviews and considers any comments received from the public and publishes a final rule.� Applicants must start paying the new processing fees once the Department publishes that second, final rule.

  Q: Why is the Department of State establishing new, higher fees for certain types of nonimmigrant visas which previously cost $131, the same as all other nonimmigrant visas?

  A: An independent study of consular operations costs shows that certain categories of nonimmigrant visas are more complicated and require more in-depth consideration than most other categories of nonimmigrant visas.� Therefore, those categories of nonimmigrant visas have higher unit costs.� The cost of accepting, adjudicating, and issuing the following categories of visas are appreciably higher than for other categories: E (treaty trader and investor); H (temporary worker or trainee); K (fianc�(e)); L (Intracompany transferee); O (alien with extraordinary ability); P (athlete, artist or entertainer); Q (international cultural exchange visitors); and R (religious worker).� Each of these visa categories requires a review of extensive documentation and a more in-depth interview of the applicant than other categories, such as tourists.

  Q: Will this fee increase discourage people from traveling to the United States?

  A: The proposed fees accurately reflect the processing costs incurred and regulations require full cost recovery through fees.� Past increases in nonimmigrant visa fees did not negatively impact the number of applications received worldwide.� The Department is aware that this fee increase may suppress the demand for nonimmigrant visas in some countries.� However, the cost is still small compared to the cost of round-trip airfare from most countries to the United States.� Most visas issued worldwide are tourist visas with a validity of ten years, meaning the bearer can visit the United States as often as he or she likes for ten years.

  Q: Will other countries respond by increasing the visa fees they charge American citizens?

  A: While some countries may increase visa fees, we expect many will not because, under the principle of reciprocity, we will be able to offset the nonimmigrant fees increase with a simultaneous reduction in reciprocity fees.� For some countries, the combined total of nonimmigrant visa fees and reciprocal issuance fees will remain the same.

  Q: How does this MRV processing fee differ from reciprocal issuance fees?

  A: The MRV processing fee is paid by all visa applicants, worldwide, with certain limited exceptions, for example, those pertaining to government officials.� It must be paid in advance, whether or not the visa is granted. �The reciprocal issuance fee is an additional charge paid by visa applicants from certain countries in certain categories and is based on similar fees U.S. citizens are charged for visas to visit those countries.� The reciprocity fee is charged only if the visa is granted.

  
  
  
• CBP Launches H-2A and H-2B Temporary Worker Exit Pilot Program in Arizona
  

  U.S. Customs and Border Protection on Tuesday, December 8 launched a pilot program for exiting H-2A and H-2B temporary workers. The program will be tested at San Luis and Douglas land ports of entry in Arizona and it is expected to last approximately one year.

  The goal is to ensure that temporary workers comply with the requirement to leave the country when their work authorization expires. The program will also help secure U.S. borders more effectively and streamline existing guest worker programs.

  H-2A and H-2B visas are issued to temporary seasonal workers. H-2A visas allow foreign nationals to temporarily work in agricultural jobs while H-2B visas allow temporary work in non-agricultural jobs.

  To verify final departure from the United States, H-2A and H-2B non-immigrant temporary workers will be required to scan their visa and their fingerprints and return their I-94, Arrival/Departure form, at an exit kiosk located at the port of departure. Under the pilot program, travelers admitted under H-2A and H-2B non-immigrant visa classifications at San Luis or Douglas ports of entry must also depart through one of the two designated ports.

  The kiosk will provide instructions in English and Spanish.

  Frequent border crossers or commuters do not need to register their every departure, but only their final departure from the United States. Only H-2A and H-2B temporary workers who enter the United States on or after December 8, on a new work authorization will be required to register their final departure from the United States when their authorized period of stay expires.

  More than 205,000 H-2 guest workers crossed into United States in FY 2009. Of those, more than 147,000 were H-2A and more than 58,000 were H-2B visa holders.
  
  
  
• CBP Announces Two New Ports Of Entry for Nonimmigrant Aliens Subject to Special Registration Requirements
  

  The U.S. Customs and Border Protection has released a notice announcing the addition of two new ports of entry to the list of ports through which nonimmigrant aliens subject to special registration requirements may depart from the United States. The new ports-of-entry include Oakland International Airport, California and Saipan, the Commonwealth of the Northern Mariana Islands. Special registration is required of nonimmigrant aliens whose presence in the United States requires closer monitoring.

  Nonimmigrant aliens subject to special registration requirements may depart from the Oakland International Airport, California, effective November 25, 2009, and Saipan, the Commonwealth of the Northern Mariana Islands, effective November 28, 2009.

  Certain nonimmigrant aliens, who apply for admission to the United States, are subject to special registration requirements. Upon arrival in the United States, they shall provide information required by the Department of Homeland Security (DHS), such as information relating to their visa status, and they shall be fingerprinted and photographed.

  Other special registration requirements include appearing at in-person verification or re-registration interviews at the discretion of DHS; providing notice to DHS of any change of address, residence, employment, or educational institution; and reporting departure from the United States to close their registration.

  An alien who has been specially registered and has not yet departed the United States may seek relief from the departure control requirement for that admission by applying to the U.S.

  Customs and Border Protection (CBP) field office director for the port from which the alien intends to depart. The alien must establish that exigent or unusual circumstances exist and that the alien warrants a favorable exercise of discretion.

  This notice expands the August 8, 2006 listing by adding two POEs. Additional Ports-of-Entry Designated for Final Registration and Departure by Nonimmigrant Aliens Subject to Special Registration.

  Effective November 25, 2009, Oakland International Airport, California, is designated as a POE authorized to provide final registration and departure by nonimmigrant aliens subject to special registration.

  Effective November 28, 2009, Saipan, the Commonwealth of the Northern Mariana Islands, is designated as a POE authorized to provide final registration and departure by nonimmigrant aliens subject to special registration.

  
  
  
• CBP Debuts Global Entry Program at Seattle Airport
  

  U.S. Customs and Border Protection and the Port of Seattle today demonstrated a new clearance system for international air passengers at Seattle-Tacoma International Airport. Global Entry uses a risk-based approach to facilitate the entry of pre-approved U.S. citizens, lawful permanent residents of the U.S. and citizens of certain other countries. Global Entry now allows pre-screened, approved, registered travelers to receive expedited processing at Sea-Tac.

  “Global Entry is a definite win-win for international travelers and for CBP,” said Michele James, director of the Seattle Field Office. “It provides pre-approved travelers an expedited clearance process and allows our CBP officers the ability to focus on processing other arriving passengers.”

  Approved applicants present their machine-readable passport, submit their fingerprints for biometric verification, and make a declaration at the kiosk. Upon successful completion of the process at the kiosk, they are then directed to baggage claim and the exit, unless chosen for a selective or random secondary inspection.

  To date, approximately 18,000 members have enrolled in the program. The Global Entry kiosks have been used more than 58,000 times at existing pilot locations. Global Entry reduces average wait times for CBP processing by 70 percent, with more than 75 percent of travelers using Global Entry processed in under five minutes.

  The Global Entry process was piloted in 2008 at John F. Kennedy (JFK) International Airport, N.Y.; Washington Dulles International Airport, Dulles, Va.; and Houston Intercontinental Airport, Houston, Texas. Global Entry was later expanded to Miami, Atlanta, Los Angeles and Chicago. On August 24, CBP expanded the program to 13 additional international U.S. airports. Global Entry is now available at Detroit, Dallas, Newark, San Francisco, Boston, Orlando, Honolulu, Las Vegas, Orland-Sanford, Philadelphia, San Juan and Fort Lauderdale, as well as Sea-Tac.

  
  
  
• US Visas for Nurses – Possible New W Visa
  

  There is currently a huge shortage of nurses in the US; about 116,000 unfilled registered nurse vacancies at U.S. hospitals and nearly 100,000 nurse vacancies at Nursing homes.

  On February 11, 2009, a new Nurse Relief Act was introduced in the House - HR 1001. This would introduce a new non-immigrant W visa category for nurses with an annual cap of 50,000.

  Currently it is difficult for nurses to gain entry to the US:

  • Preference is given to nurses under the third preference employment based immigrant category (EB-3). Nurses and physiotherapists come under Schedule A and do not require labor certification. However, at the present time visas are unavailable under this category. We will have to wait until October to see if any more visas become available.
    
    
  • The H-3 non-immigrant visa allows temporary entry for the purposes of training in the US. You are expected to leave at the end of the training period.
    
    
  • In a limited number of cases where you are employing very senior level nurses the H-1B non-immigrant visa may be possible. However, this is difficult.
    
    
  • Similarly, in a limited number of cases it may be possible for nurses to gain entry under the J-1 exchange visitor scheme.

  The Findings and Purpose of the Bill:

  1. There are more vacant nursing positions in the United States than there are qualified registered nurses and nursing school candidates to fill those positions.
     
     
  2. According to the Department of Labor, the current national nursing shortage exceeds 126,000.
     
     
  3. States in the West and Southwest have a disproportionate number of nursing vacancies because of rapid population growth, which exacerbates a widening gap in the number of facilities and staff compared to patients that need care.
     
     
  4. Foreign countries such as the Philippines, India, and China have an oversupply of nurses.
     
     
  5. Major hospital systems in the United States spend hundreds of millions of dollars every year recruiting foreign nurses under our current immigration system.
     
     
  6. Current law, with certain limited exceptions, requires health care providers to sponsor desired nurses for permanent resident status while the nurses remain outside of the United States, which can take as much as 3 years or more.
     
     
  7. This cost is passed on to consumers and adds to the rising cost of health care.
     
     
  8. Health care providers cannot efficiently and effectively recruit qualified foreign nurses through the existing immigration process.
     
     
  9. Our health care system requires an immediate modification of Federal laws relating to recruitment of qualified foreign nurses in order to operate at an efficient and effective level.

  US President Barack Obama wants to train more nurses locally to deal with the shortage of nurses. However, it takes years to train nurses. Even if more nurses are trained in the US it is unlikely that this will provide all the nurses needed in the US. The only way forward is to allow in nurses from Countries such as India, china and the Philippines. On 6 March 2009 Obama made the following comments:

  "The notion that we would have to import nurses makes absolutely no sense," Obama told a gathering of health experts and lawmakers at a White House meeting on health care reforms.

  "For people who get fired up about the immigration debate and yet don't notice that we could be training nurses right here in the United States," he said responding to Congresswoman Lois Capps from California.

  "We have a huge shortage of nurses today. Estimates are that the US will be lacking over 500,000 nurses in the next seven years," said Capps.

  "That's something that we've got to fix. That should be a no-brainer. That should be a bipartisan no-brainer, to make sure that we've got the best possible nursing staffs in the country," Obama said.

  
  
  
• CBP to Start SENTRI Program at San Luis Port of Entry
  

  Travelers wanting to participate in U.S. Customs and Border Protection’s trusted traveler program in the San Luis area will soon have the opportunity to participate in the Secure Electronic Network for Travelers Rapid Inspection(SENTRI) program.

  CBP will open a local enrollment center in the fall of 2009, followed by dedicated commuter lanes at the San Luis port of entry in late 2009. Travelers interested in participating in the program are encouraged to apply early for the new SENTRI program.

  Because the application process takes approximately six to eight weeks to complete, interested travelers are urged to apply now to be prepared for the opening of the enrollment center and so they will have their document when the lane opens. The program membership fee is $122.25 and will give members access to the dedicated vehicle lanes for five years.

  SENTRI provides expedited travel to approved members between the US and Mexico border using dedicated vehicle or pedestrian lanes. Applicants must voluntarily undergo a thorough biographical background check against criminal, law enforcement, customs, immigration, and terrorist indices; a 10-fingerprint law enforcement check and a personal interview with a CBP Officer.

  In addition to the quick crossings associated with SENTRI membership, program members will receive an enhanced Radio Frequency Identification card that meets the requirements of the Western Hemisphere Travel Initiative for approved-travel documents for U.S. citizens who cross the border by land or sea, which went into effect June 1. The SENTRI card can be used at any land border crossing in lieu of a passport or passport card.

  The SENTRI program was first implemented at Otay Mesa, Calif., in 1995, and has grown to include 16 lanes at the nine largest ports on entry along the U.S.-Mexico border including San Ysidro, Calif.; Calexico, Calif.; Nogales, Ariz.; two crossings in El Paso, Texas; Laredo, Texas; Hidalgo, Texas; and Brownsville, Texas. More than 180,000 travelers from both sides of the border currently are enrolled in the program.

  
  
  
• ICE Supplemental Fact Sheet on the Cap-Gap Extension
  

  This supplemental guidance addresses two significant areas related to the Student and Exchange Visitor Information System’s (SEVIS) functionality and interface with other government systems, provides guidance on this issue and describes current workarounds, where available.

  This guidance applies only to 2009. The cap gap is determined on an annual basis by demand for H-1B workers.

  If you have any questions concerning the cap-gap extension or other SEVP guidance issues that are not covered in this supplemental guidance, please contact SEVP via e-mail at sevis.source@dhs.gov. Enter the words, Attention Policy: Gap Gap, in the subject line.

  Cap-Gap Extension Functionality

  Normally when U.S. Citizenship and Immigration Services (USCIS) enters H-1B petition information into CLAIMS, the information is pushed into SEVIS where student records automatically update with the full cap-gap extension. If time constraints do not allow the process to complete, a designated school official (DSO) can employ the Cap-Gap Extension functionality in SEVIS.

  The Cap-Gap Extension functionality was developed to allow DSOs to provide interim cap-gap extensions for students whose optional practical training (OPT) or status ends before USCIS has the opportunity to receive the H-1B petition and enter it into CLAIMS.

  SEVIS now allows DSOs to indicate that an F-1 student is the beneficiary of an H-1B petition with a change of status request that has either been:

  • Filed and accepted for processing by USCIS; or
  • Supplemental Guidance on the Cap-Gap Extension 2
  • Filed and waitlisted by USCIS.

  The Cap-Gap Extension functionality should not be used for all students who are eligible for the cap-gap extension. Rather, it should only be used in cases where a student’s status or OPT may end before USCIS can receipt the H-1B petition.

  For example: if a student’s OPT ends on April 15 (approximately two weeks after the student’s employer filed the H-1B petition on his or her behalf), there is a chance that USCIS will not be able to receipt the H-1B petition by April 15. Because the student’s employment could end before his or her SEVIS record is updated with the full cap-gap extension, it would be appropriate for the student’s DSO to use the Cap-Gap Extension function to provide an initial cap-gap extension through June 2.

  When a DSO selects Cap Gap Extension “filed,” a student’s OPT (or status if the student isn’t eligible for OPT during the cap gap) is extended to June 2. For students whose OPT ends before June 2, this is the appropriate action.

  However, we have received reports of DSOs using this function for all students who are eligible for the cap gap. This is not appropriate and creates problems in SEVIS and for the students. If a student’s OPT ends after June 2 and the DSO uses the “filed” function, the employment end date is changed to June 2. The DSO then has to contact the Help Desk to get the employment end date returned to the correct date.

  Inappropriate Termination/Completion of SEVIS Records

  SEVP has received a number of reports stating that SEVIS records are being inappropriately terminated or completed when students are eligible for the cap-gap extension. This is happening due to USCIS interface issues.

  USCIS adjudicators enter petition information into a database which interfaces with CLAIMS Mainframe. There is a glitch in the interface between those databases that can prevent petition information, including benefit dates, from reaching the CLAIMS Mainframe. When this happens, CLAIMS Mainframe does not have any benefit dates to send to SEVIS. Consequently, SEVIS sees the change of status but does not have a benefit start date. This leads SEVIS to believe the change of status takes effect immediately and causes a student’s record to terminate or complete when it should be updated with the cap-gap extension. USCIS is aware of the issue and is investigating in order to identify the problem and resolve it.

  Until the issue is resolved, SEVP has a workaround in place. If a student’s record is inappropriately terminated or completed due to an H-1B petition filed on a student’s behalf, we request that DSOs contact the SEVIS Help Desk to have the record returned to Active status and add the cap-gap extension.

  
  
  
• DOJ Provides Dos and Don’ts for Employers On E-Verify
  

  In order to provide guidance to employers regarding E-Verify, the Office of Special Counsel for Immigration-Related Unfair Employment Practices in Department of Justice (DOJ) has published a pamphlet containing “Dos and Don’ts.”

  The pamphlet clearly says that employers should use E-Verify to verify employment eligibility of new hires and not for current employees. Further, employers may allow an employee who has not been issued a Social Security number to work throughout the period that the employee is waiting for his or her Social Security number (SSN) to be issued. There are other aspects that are illustrated in the pamphlets, readers and employers are advised to go through the same thoroughly to stay informed.

  DO...

  • Use program to verify employment eligibility of new hires
    
    
  • Use program for all new employees regardless of national origin or citizenship status
    
    
  • Use program for new employees after they have completed the Form I-9
    
    
  • Promptly provide and review with the employee the notice of tentative non-confirmation
    
    
  • Promptly provide the referral notice from the Social Security Administration (SSA) or Department of Homeland Security (DHS) to the employee who chooses to contest a tentative non-confirmation
    
    
  • Allow an employee who is contesting a tentative non-confirmation to continue to work during that period
    
    
  • Check E-Verify daily for updates in connection with the tentative non-confirmation
    
    
  • Contact E-Verify if you believe an employee has received a final non-confirmation in error
    
    
  • Post required notices of the employer’s participation in E-Verify and the antidiscrimination notice issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC)
    
    
  • Accept any Form I-9 List B document with a photo from an employee who chooses to provide a List B document
    
    
  • Secure the privacy of employees’ personal information and the password used for access to the program
    
    
  • Delay running an E-Verify query for an employee who has not yet been issued a Social Security number until the Social Security number is issued
    
    
  • Allow an employee who has not been issued a Social Security number to work throughout the period that the employee is waiting for his or her Social Security number to be issued
    

  DON’T...

  • Use program to verify current employees
    
    
  • Use program selectively based on a “suspicion” that a new employee or current employee may not be authorized to work in the U.S. or based on national origin
    
    
  • Use program to pre-screen employment applicants unless you are a State Workforce Agency
    
    
  • Influence or coerce an employee’s decision whether to contest a tentative non-confirmation
    
    
  • Terminate or take adverse action against an employee who is contesting a tentative non-confirmation, including denying or reducing scheduled hours, delaying or preventing training, mistreating the employee, requiring the employee to work longer hours, requiring the employee to work in poorer conditions, or subjecting the employee to any assumption that s/he is unauthorized to work during this period, unless and until receiving a final non-confirmation or no show response
    
    
  • Ask an employee to obtain a printout or other written verification from SSA or DHS when referring that employee to either agency
    
    
  • Ask an employee to provide additional documentation of his or her employment eligibility after obtaining a tentative non-confirmation for that employee
    
    
  • Request specific documents in order to activate E-Verify’s photo tool feature
    
    
  • Run an E-Verify query for an employee who is waiting for his or her Social Security number to be issued until the employee is issued a Social Security number
  
  
  
• CBP Released Tips for US-Canadian Border Travelers During the Summer Holidays
  

  U.S. Customs and Border Protection (CBP) reminds both Americans and Canadians planning their holiday travel for Canada Day, Fourth of July and summer vacation season that there are a number of steps they can employ to cross the border more efficiently.

  The Western Hemisphere Travel Initiative was implemented on June 1 and requires U.S. and Canadian citizens age 16 and older to present a valid, acceptable document that denotes both identity and citizenship when entering the U.S. by land or sea. WHTI acceptable documents include a passport, U.S. passport card, enhanced driver’s licenses -- now produced by the State of Washington and Province of British Columbia -- or a Trusted Traveler Program card (NEXUS, SENTRI and FAST).

  CBP also wants to remind U.S. lawful permanent residents that the Form I-551 (green card) is acceptable for land and sea travel into the U.S.

  "The United States remain a welcoming nation for our neighbors to the north, however the holidays and summer weekends will require additional planning and patience on the part of travelers,” said Michele James, CBP director of Field Operations-Seattle.

  Here are a few ‘Travel Tips’ that will assist travelers crossing the international border:

  Tip #1 – Travelers should familiarize themselves with the “Know Before You Go” section of the CBP Web site to avoid fines and penalties associated with the importation of prohibited items.

  Tip #2 – Travelers should prepare for the inspection process before arriving at the inspection booth. Individuals should have their crossing documents available for the inspection and they should be prepared to declare all items acquired abroad. In addition, individuals should end cellular phone conversations before arriving at the inspection booth.

  Tip #3 – Members of the traveling public should consult the CBP Web site to monitor border wait times for various ports of entry including Blaine and Sumas, Wash.; Sweetgrass, Mont.; and Pembina, N.D. Information is updated hourly and is useful in planning trips and identifying periods of light use/short waits.

  Tip #4 – During periods of heavy travel, border crossers may wish to consider alternative, less heavily traveled entry routes.

  Tip #5 – Travelers should plan to build extra time into their trips in the event they cross during periods of exceptionally heavy traffic (i.e. Canada Day and the Fourth of July holidays and adjacent weekends).

  Tip #6 – Know the difference between goods for personal use vs. commercial use.

  Tip #7 – Do not attempt to bring fruits, meats, dairy/poultry products and firewood into the United States from Canada without first checking whether they are permitted.

  Tip #8 – Understand that CBP officers have the authority to conduct enforcement examinations without a warrant, ranging from a single luggage examination up to and possibly including a personal search. Even during the summer vacation season, international border crossers should continue to expect a thorough inspection process when they enter the U.S. from Canada.

  CBP officials continually monitor traffic and border crossing times at area ports of entry. They plan to fully staff all inspection lanes during peak periods and to implement various traffic management operations to maintain the flow of traffic during periods of exceptionally heavy usage.

  
  
  

On June 11, 2009, Senators Menendez (D-NJ), Gillibrand (D-NY) and Leahy (D-VT) introduced the Orphans, Widows and Widowers Protection Act (S. 1427) which addresses the immigration-related hardships caused by the death of a sponsoring relative.

Specifically, the bill would:

• protect orphans, parents and spouses of United States citizens by allowing them to continue their applications through the family immigration system in cases where the citizens' or residents' relative died if the individual self-petitions within two years;
• allow the spouse and minor children of family-sponsored immigrants and derivative beneficiaries of employment-based visas to benefit from a filed visa petition after the death of a relative or adjust status on the basis of a petition filed before the death of the sponsoring relative if the application is filed within two years;
• allow the spouse and minor children of refugees and asylees to immigrate to the U.S. despite the death of the principal applicant and allow them to adjust their status to permanent residence;
• provide processes to reopen previously denied cases and allow individuals to be paroled into the U.S. in cases where the sponsoring relative died after submitting an immigration application; and
• promote efficient naturalization of widows and widowers by allowing the surviving spouse to continue with a naturalization application as long as the deceased spouse was a citizen of the United States during the three years prior to filing.

You may also read the interim rule passed by the U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano to grant deferred action for two years to widows and widowers of U.S. citizens as well as their unmarried children under 18 years old—who reside in the United States and who were married for less than two years prior to their spouse’s death.

• All NIV applicants who are ages 14 to 79 must be interviewed unless the alien is eligible for a waiver of the interview requirement
  
  
• Any NIV applicant who is not a national or resident of the country in which he or she is applying must be interviewed, unless the applicant is eligible for a waiver of the interview
  
  
• Any NIV applicant who was previously refused a visa must be interviewed, unless: 1) the visa was refused temporarily and the refusal was subsequently overcome; 2) the alien was found inadmissible, but the inadmissibility was waived; or 3) the applicant is eligible for a waiver of the interview
  
  
• Any NIV applicant who is listed in CLASS may not be granted a waiver of interview, unless the alien would be eligible for a waiver under the requirements set forth in (c) above. Thus, for example, an alien refused a visa under 212(a) but granted a waiver of or otherwise overcame that ground of inadmissibility could be granted a waiver of the interview requirement in connection with a subsequent application, although that person may continue to be listed in CLASS because of the underlying ineligibility.
  
  
• Any NIV applicant who is "from" a country designated by the Secretary of State as a state sponsor of terrorism, regardless of age, must be interviewed, unless the applicant is eligible for a waiver

FOR FURTHER INFORMATION CONTACT: Mary Beth Keller, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041, telephone (703) 305-0470.

For complete Federal Register Notification, please Click Here.

1. Hand carry (do not check) the following documents:
   
   Your passport;
   Your SEVIS form I-20 or DS-2019;
   Evidence of financial resources;
   Evidence of student or exchange visitor status, such as tuition receipts, transcripts or letter of acceptance;
   Paper receipt for the SEVIS fee; and
   The name and contact information of your designated school official or sponsor
   
   Important Note: If you are a new student, remember to carry with you the sealed envelope given to you by the U.S. Department of State’s Consular Officer -- attached to your passport. It is important that you do not open this envelope.
   
   
2. Inform the CBP Officer at the port of entry as soon as possible that you will be a new or returning student or exchange visitor in the United States.
   
   
3. Report to your school or program upon arrival so that your school official can validate your participation in SEVIS.
   
   
4. Maintain contact with your designated school or sponsor official throughout your stay to ensure your SEVIS data is updated and accurate.
   
   Important Note: If you are a new exchange visitor participant, remember to carry with you the sealed envelope given to you by the U.S. Department of State’s Consular Officer -- attached to your passport. It is important that you do not open this envelope.

New program facilitates payment for International Students, Exchange Visitors in local currency

Paying the Student and Exchange Visitor Information System (SEVIS) fee in local currency is now possible, thanks to a new program announced this month by U.S. Immigration and Customs Enforcement (ICE) and Western Union.

The new fee payment method, which became available November 1, makes it possible for non-immigrant students and exchange visitors around the world to pay the fee, which is used to support SEVIS, in their home countries’ currencies using the Western Union Quick Pay ™ service.

SEVIS, the Web-based system for collecting and maintaining information on international students and exchange visitors in the United States, is administered by ICE, the largest investigative agency in DHS.

The SEVIS fee – in most cases, $100 – is mandated by Congress and was instituted on September 1, 2004. The fee applies to F, J and M non-immigrant visa classifications and is used to cover the costs of maintaining SEVIS and to provide assistance and technical support for SEVIS users.

There are currently several methods of payment for the SEVIS fee: Internet payments via debit or credit card; checks or money orders drawn on a U.S. account; third-party payments; and bulk-filing payments for certain exchange visitor program sponsors. The Western Union fee payment method presents an additional, more convenient option to students and exchange visitors wishing to pay in their local currency.

Under this new payment initiative, Western Union collects the SEVIS fee, in local currency, along with the student or exchange student’s required registration data and transmits the payment and data to ICE. The properly completed Western Union receipt serves as immediate proof-of-payment for a visa interview at a U.S. consulate and for admission at a U.S. port of entry. This option is available in any country where Western Union offers its Quick Pay ™ service – currently more than 130 nations nationwide.

There have been 11 other significant enhancements to SEVIS since August 2003, when registration in the system was required for foreign students, exchange visitors and academic institutions. These technical and procedural adjustments, made at the request of the academic community, have improved inquiry response time from an average of 7 minutes to 97 seconds.

For these improvements, SEVIS was one of only 15 government entities recognized by the E-Gov institute with the 2004 Pioneer Award. This recognition was for SEVIS’ overall improvement in operations and streamlined processes.

The SEVIS system was deployed after the 9/11 attacks as part of the effort to restore integrity to the U.S. immigration system. SEVIS has simplified what was once a manual process, resulting in more accurate and timely data, faster processing and fewer delays for students and exchange visitors.

Currently, more than 770,000 students and exchange visitors are active in SEVIS at over 9,000 approved/designated schools and program sponsors nationwide. From August 2003 through August 2004, SEVIS recorded a slight increase in the foreign student population studying in the United States, from 605,000 to 640,000.

For full Notice Click Here.

UNCLAS STATE 154060

E.O. 12958: N/A
TAGS: CVIS, CMGT
SUBJECT: STUDENT AND EXCHANGE VISITOR PROCESSING REMINDER

REF: (A) 04 STATE 70079 (B) 03 STATE 349930 (C) 03 STATE 279071
(D) 03 STATE 144850 (E) 03 STATE 144850

1. This cable was cleared by SEP.

1. SUMMARY: With the summer student and exchange visitor visa season in full swing, the Department would like to remind Posts of several important visa processing policies to ensure that applications for these categories of visas are handled in the most expeditious way.

INITIAL ENTRY STUDENTS MUST NOT ENTER BEFORE 30 DAYS

2. While students may apply for F visas at any time, consular officers may not physically issue them until ninety days before the program start date. More importantly, initial entry students may not use these visas to enter the United States for the first time until thirty (30) days before their program start date. This rule does not/not apply to returning students, who may be issued an F visa at any time, and who may return to school at any time.

3. While J visas may be applied for and issued at any time, initial- entry J visitors also may not enter the United States for the first time until thirty (30) days before their program start date.

4. Immigration inspectors have turned around qualified students who have attempted to enter the United States for the first time as a student before the thirty-day period. In order to prevent this from happening, Posts should attach the following notice to F, M or J visas issued to initial-entry students more than thirty days before their program start date:

"To all recipients of an F, M, or J student or exchange visitor visa: Please be aware that United States Department of Homeland Security regulations state that holders of F, M, or J nonimmigrant visas will not be admitted to the United States until a date thirty days or less prior to the beginning of your program date, or start date, as given on your Form I-20 (for F or M visas) or DS-2019 (for J visas). An immigration inspector may deny you entry into the United States if you use this visa earlier than this thirty day period. Please consider that date carefully when making your travel plans to the United States."

5. Students who are still interested in traveling to the United States before the thirty-day period may do so on B visas, as described in para 17, reftel(A). They may have both a B and an F, J or M visa in their passport at the same time. Students coming in to the United States early on a B should be reminded that they cannot begin their programs in B status. As it is unlikely they could receive change-of-status before the start of their studies, they will have to depart the United States and re-enter on their F no more than thirty days before their program start date.

PRIORITY SCHEDULDING

6. Posts are also reminded to give priority scheduling to persons applying for F, J and M visas. These visitors are often subject to deadlines, and consular officers should give them every opportunity to arrive in the United States on time to begin their programs. While there may be a number of ways to offer expedited processing to these visitors, all Posts should have procedures in place to do so.

7. Posts must insure that procedures for obtaining priority appointments for students and exchange visitors are well-publicized and transparent. At a minimum, these procedures should be posted on the consular section's web page. Outside agencies contracted to provide interview scheduling for the consulate should also be briefed on how to give priority appointments for students and exchange visitors. Instructions should be given to local educational groups, exchange visitor programs and other interested parties about how to do this.

8. Several posts have expressed concerns about abuse of the special scheduling for students and exchange visitors by persons hoping to get an earlier appointment to apply for a visa in another category. One way to screen out such applicants is to ask for their SEVIS number. All applicants for Fs, Js and Ms will have a SEVIS-generated I-20/DS-2019 with a unique SEVIS number. If this is a potential problem, Posts have the discretion to request SEVIS numbers when giving priority appointments. However, this is not a requirement; students and exchange visitors may wish to make visa appointments before they receive their actual form. Posts may give priority appointments to these individuals if it is apparent that they are in fact bona fide students or exchange visitors.

9. More than ever before, visa processing for students and exchange visitors is not only an important consular function, but an important and visible part of the Department's overall mission. We are counting on our consular officers overseas to make sure that these applicants are accommodated to the greatest extent possible.

• On your way to the United States you may be given a Customs and Border Protection declaration form. Fill it out entirely and sign the bottom. You may also be given a form I-94 (white) or a form I-94W (green). This will ask you for basic identification information and the full address where you will be staying in the United States.
  
  
• When you arrive at a port of entry in the United States you will be inspected by an officer of the U.S. Customs and Border Protection. Be prepared to tell the officer the purpose of your trip and how long you wish to stay.
  
  
• Most travelers will have a digital photo and two finger scans taken by the officer. This will only add a few seconds to the interview. Be sure to follow the instructions of the CBP officer.
  
  
• Make sure you have a valid nonimmigrant visa and a passport valid for six months beyond your initial stay in the United States. There are some exceptions to this requirement.
  
  
• If you are a temporary visitor for business or pleasure, and wish to stay for up to six months, you must apply for a B1/B2 visa at the U.S. Consulate in your country.
  
  
• If you are planning to travel for another purpose, e.g. student, temporary worker, crewperson, journalist etc. you must apply for a different visa in the appropriate category through the Department of State at an American Embassy or Consulate abroad.
  
  
• If you are a citizen of a visa waiver country, you may apply for entry without a visa if you are seeking entry for 90 days or less for business or pleasure. Check to make sure your intended purpose of travel falls within the guidelines.
  
  
• If you stayed beyond the 90 days allowed under the Visa Waiver Program on your last visit to the U.S.—you are required to get a visa (at a U.S. Consulate in your country) for your next visit to the United States.
  
  
• Remember, even though certain individuals may be exempt from visa and/or passport requirements, the burden of proof is on the applicant to establish eligibility to enter the United States. Carrying proof of citizenship will help determine this
  
  
• Some items may be prohibited from entry, have to meet certain requirements, or require a license or permit. If you would like to bring in any of the following, make sure you find out the rules and regulations concerning them:
  
  
  • Absinthe
  • Biological materials
  • Endangered species and their products
  • Wildlife
  • Meat, poultry, eggs and their products
  • Fruits, vegetables and plants
  • Hazardous materials
  • Weapons
    
    
• There is no limit to the amount of money (U.S. or foreign) you may bring into or take out of the United States. If you have more than 10,000 dollars or foreign equivalent, however, you must report this to the Customs and Border Protection officer upon entry and/or departure.
  
  
• Medicine containing habit-forming drugs must be clearly identified. Carry only the amount you normally need. Also bring a prescription or statement from your physician explaining that the medicine is necessary for your well being.

• Atlanta, Georgia (William B. Hartsfield International Airport)
  
  
• �Dallas/Fort Worth, Texas (Dallas/Fort Worth International Airport)
  
  
• Denver, Colorado (Denver International Airport)
  
  
• Detroit, Michigan (Detroit Metropolitan Wayne County Airport)
  
  
• Newark, New Jersey (Newark International Airport)
  
  
• Philadelphia, Pennsylvania (Philadelphia International Airport)
  
  
• Phoenix, Arizona (Phoenix Sky Harbor International Airport)
  
  
• San Francisco, California (San Francisco International Airport)
  
  
• San Juan, Puerto Rico (Luis Muñoz Marin International Airport)
  
  
• Seattle, Washington (Seattle/Tacoma International Airport
  
  
• Los Angeles, California (San Pedro and Long Beach Seaports)

Any foreign visitor with a visa who leaves the United States through one of the pilot locations is required to comply with the exit procedure. After September 30, 2004, visitors traveling under the Visa Waiver Program (VWP) will be required to comply.

"We will begin testing processes that will make exiting quick for visitors and effective for security," said Asa Hutchinson, Under Secretary for Border and Transportation Security at the Department of Homeland Security. "We must implement a straightforward exit process to ensure that individuals adhere to the terms of their admission. This supports our efforts to strengthen homeland security and ensure the integrity of our immigration system."

As this is a pilot program, US-VISIT will analyze the benefits and challenges of each exit process in order to better develop a system that enhances security while facilitating legitimate travel and ensuring privacy.

The exit procedures being piloted require foreign visitors to check out at an automated exit kiosk or with a US-VISIT exit attendant at the departure gate at the port. Foreign visitors will go though one of the following two processes, depending on location.

Under one alternative, visitors departing the United States will check out of the country at exit kiosks located within the airport or seaport terminal. As with the process the visitors encounter upon entry, their travel documents are read, their two index fingers will be digitally scanned at the exit kiosk, a digital picture will be taken and they will receive a printed receipt that verifies that they have checked out. An exit workstation attendant will be available to assist with visitors' check out. Visitors also may be required to present the receipt at their departure gate to confirm that they checked out at the exit kiosk.

Another alternative under the pilot program is a biometric check-out process with a US-VISIT exit attendant stationed at visitors' departure gates.

To help the process run smoothly, foreign visitors will receive a printed card explaining the exit process from U.S. Customs and Border Protection when they arrive in the United States. Also, directional signs are strategically located throughout the airports and seaports.

US-VISIT is a continuum of security measures that begins overseas and continues on through entry and exit at U.S. airports and seaports and eventually, at land border crossings. The US-VISIT program enhances the security of U.S. citizens and visitors by matching the identity of visitors with their travel documents. At the same time, it facilitates legitimate travel and trade by leveraging technology and the evolving use of biometrics to expedite processing at our borders.

The first phase of US-VISIT launched on January 5, 2004, when DHS deployed the new biometric entry capabilities at 115 airports and 14 seaports and began testing a biometric departure confirmation system at two locations. Since then, millions of foreign visitors have been processed without impacting wait times and it is working. US-VISIT has helped to prevent hundreds of criminals and immigration violators from entering the country. Before the biometric component of US-VISIT, these people might have gotten through our system and into our country.

Biometric technology - digital finger scans and digital photographs - helps make US-VISIT simple and effective. In fact, the use of biometrics for identification is fast becoming the standard, and much of the world is following the trend.

US-VISIT is helping us demonstrate that we remain a welcoming nation and that we can keep America's doors open and our nation secure. For more information on US-VISIT, or to learn more about the new exit procedures, please visit the US-VISIT Web site at www.dhs.gov/us-visit.

• The child has at least one United States citizen parent (by birth or naturalization);
  
  
• The child is under 18 years of age;
  
  
• The child is currently residing permanently in the United States in the legal and physical custody of the United States citizen parent;
  
  
• The child has been admitted to the United States as a lawful permanent resident or has been adjusted to this status;
  
  
• An adopted child must also meet the requirements applicable to the particular provision under which they qualified for admission as an adopted child under immigration law.

• At least one adoptive parent is a U.S. citizen,
  
  
• The child is under 18 years of age,
  
  
• An adopted child meets the requirements applicable to adopted children under immigration law,
  
  
• The child is admitted to the United States as a permanent resident, or acquires this status through adjustment of status
  
  
• The child is residing permanently in the United States with the child’s citizen parent(s).

Must an application be filed with USCIS to establish a child’s citizenship?

No. If a child qualifies for citizenship under the Child Citizenship Act, the child’s citizenship status is no longer dependent on USCIS approving a naturalization application. The child’s parents may, however, file an application for a certificate of citizenship (Form N-643K) on the child’s behalf to obtain evidence of citizenship.

If a child satisfies the requirements listed above, he or she automatically acquires U.S. citizenship by operation of law either on the day of admission to the United States or on the day that the last condition for acquiring citizenship is satisfied. If a full and final adoption is completed abroad, and the child meets the requirements applicable to adopted children under the immigration law – for example, in an orphan case, both parents saw the child before or during the foreign adoption proceeding -- the child automatically becomes a citizen on the day he or she is admitted to the United States as an immigrant. If the orphan was adopted abroad, but at least one parent did not see the child before or during the foreign adoption proceeding, the child will become a citizen on the day the citizen parent(s) completes any procedure the State of residence may require to obtain recognition of the foreign adoption. If the orphan’s adoption is completed in the U.S., the child becomes a citizen when the citizen parent(s) obtain(s) a final adoption decree from the proper State court.

Will Eligible Children Automatically Receive Proof of Citizenship –– Such As Citizenship Certificates and Passports?

Adopted children admitted in the IR-3 category (alien orphan with a finalized adoption abroad), whom both parents saw before or during the foreign adoption proceeding) on or after January 1, 2004, will automatically receive a Certificate of Citizenship within 45 days of admission into the U.S. The IR-3 visa accounts for approximately seventy percent of children adopted by U.S. Citizens, and is for cases where adoptions are made final overseas.

This program eliminates the need for the issuance of a Permanent Resident Card for newly entering children, since these cards are not applicable to U.S. citizens. The program, announced in November 2003, is managed from the USCIS Buffalo, New York District Office.

This special program does not apply to alien child admitted as IR-2 (biological children or adopted children who immigrate under INA section 101(b)(1)(E) instead of (F) or IR-4 immigrants (orphans who will be adopted in the United States or who were adopted abroad, but without having been seen by both parents). The parents of these children may file a Form N-643K to obtain evidence of the child’s citizenship. They would file the Form N-643K with the USCIS district in which they live, not with the Buffalo district.

If parents desire a passport for their child, they should apply for one with the Department of State.

Will the certificate of citizenship reflect any change in an adopted child’s name?

If the adoption decree (whether acquired abroad or in the United States) legally changes an adopted child’s name, the certificate of citizenship will show the child’s new legal name. In some cases, the adoptive parents choose a new name for the adopted child, but are not able actually to change the child’s legal name. If the immigrant visa, adjustment application, or Form I-600 shows the alternative name, USCIS will issue the certificate of citizenship to show both the legal name and the alternative name, such as “LEGAL NAME aka ALTERNATIVE NAME.” Parents should understand that putting the alternative name on the certificate of citizenship DOES NOT legally change the child’s name. If the parents want to change the child’s name legally, they must comply with the relevant requirements of their own State’s law.

Is Automatic Citizenship Provided for Children (Including Adopted Children) Born and Residing Outside the United States?

No. In order for a child born and residing outside the United States to acquire citizenship, the United States citizen parent must apply for naturalization on behalf of the child. This only applies to children who not acquire U.S. citizenship at birth. The naturalization process for such a child cannot take place overseas. The child will need to be in the United States temporarily to complete naturalization processing and take the oath of allegiance. The child does not have to be admitted as a permanent resident; a lawful nonimmigrant admission is enough.

To be eligible, a child must meet the definition of “child” for naturalization purposes under immigration law, and must also meet the following requirements:

• The child has at least one United States citizen parent (by birth or naturalization);
  
  
• The United States citizen parent has been physically present in the United States for at least five years, at least two of which were after the age of 14 –– or the United States citizen parent has a citizen parent who has been physically present in the United States for at least five years, at least two of which were after the age of 14;
  
  
• The child is under 18 years of age;
  
  
• The child is residing outside the United States in the legal and physical custody of the United States citizen parent;
  
  
• The child is temporarily present in the United States –– having entered the United States lawfully and maintaining lawful status in the United States;
  
  
• An adopted child must also meet the requirements applicable to adopted children under immigration law.

1. Aliens who obtained lawful permanent residence by reason of an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant under section 204(a)(1)(A)(iii) or (iv) of the INA, or under section 204(a)(1)(B)(ii) or (iii), if the abusive spouse or parent naturalizes after the Form I-360 has been approved.;
   
   
2. Aliens who obtained lawful permanent residence by reason of cancellation of removal under section 240A(b)(2)(A)(i)(I), or 240A(b)(2)(A)(i)(III) of the INA where the applicant was the intended spouse of a USC; or
   
   
3. Aliens who obtained lawful permanent residence by reason of an approved waiver of the joint filing requirement under section 216(c)(4)(C) of the INA.

• The circumstances surrounding the act or conviction, including the relationship of the abuser to, and his/her role in, the act or conviction committed by the self-petitioner; and
  
  
• The requisite causal relationship between the act or conviction and the battering or extreme cruelty.

1. Sole adjudicative jurisdiction for Regional Center applications pursuant to the Immigrant Investor Pilot Program for purposes of approval, denial and Requests for Evidence (RFE's).
   
   
2. Monitor and follow up on the actions of approved Regional Centers to ensure compliance with the terms, scope, and conditions of their approval/designation relative to their approved business plans and indirect job creation methodologies.
   
   
3. Develop and propose EB-5 program, policy, and regulation changes/improvements to USCIS management.
   
   
4. Monitor and be responsible for the policy coordination relating to CIS wide I-526 and related I-829 Immigrant Investor cases.
   
   
5. In coordination with SCOPS, conduct quarterly evaluations and an annual analysis of Regional Center activities in terms of number of alien investors, aggregate investment capital, average value of investments per alien investor, aggregate total of direct and indirect jobs per each regional center, and review total number of alien investors petitioning through each regional center per year.
   
   
6. Coordinate with the SCOPS and FDNS, to develop program and process integrity improvements and assessments for purposes of strengthening fraud detection and preventing abuses of the program by mala fide promoters and investors.
   
   
7. In coordination with SCOPS, develop and update Executive Level Review Criteria (ELRC) for purposes of identifying and selecting I-526 and I-829 Regional Center affiliated cases to review and/or adjudicate for both audit and "special handling" to verify consistent application of applicable regulations and policies, and to provide oversight, guidance and provide priority adjudication of sensitive high visibility cases.
   
   
8. In coordination with SCOPS conduct random and focused audits and quality assurance reviews of individual and groups of both Regional Center affiliated I-526 and I-829 cases, and non-Regional Center affiliated cases, in accordance with ELRC procedures.
   
   
9. In coordination with SCOPS, conduct both Regional Center and EB-5 regulatory/policy training for CAO's and DAO's adjudicating individual EB-5 alien petitions as well as petitions affiliated with a regional center.
   
   
10. Maintains and updates the USCIS web content on the EB-5 program and Pilot Program information.

The Pilot Program began in accordance with a Congressional mandate aimed at stimulating economic activity and creating jobs for U.S. workers, while simultaneously affording eligible aliens the opportunity to become lawful permanent residents. Through this innovative program, foreign investors are encouraged to invest funds in an economic unit known as a “Regional Center.”

A Regional Center is defined as any economic unit, public or private, engaged in the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment. Prior law required investment in a Regional Center to generate an increase in export sales. However, statutory amendments in 2000 and 2002, no longer require an increase in export sales for approval of a Regional Center, although the statutory amendments still encourage this aspect of the Pilot Program.

Presently up to 3000 immigrant visas are set aside each year for the Pilot Program. Although the Pilot Program temporarily sunset on September 30, 2003, it was reinstated and extended for five years by Congress via a law enacted in November 2003, with a new sunset date of November 2008. As of June 1, 2004, a total of 26 Regional Centers have been designated by the legacy Immigration and Naturalization Service (INS) and today, the U.S. Citizenship and Immigrations Services (USCIS).

Basic requirements for Regional Center designation: Applicants must show how their proposed program will:

• Focus on a geographic region;
  
  
• Promote economic growth through increased export sales, if applicable;
  
  
• Promote improved regional productivity;
  
  
• Create a minimum of 10 direct or indirect jobs per investor;
  
  
• Increase domestic capital investment;
  
  
• Be promoted and publicized to prospective investors;
  
  
• Have a positive impact on the regional or national economy through increased household earnings; and
  
  
• Generate a greater demand for business services, utilities maintenance and repair, and construction jobs both in and around the center.

How The Pilot Program And Regional Centers Fall Within The EB-5 Investor Requirements

The requirements for an investor under the Pilot Program are essentially the same as in the basic EB-5 investor program except that the Pilot Program allows for a less restrictive requirement for “indirect” job creation rather than “direct” job creation. The capital investment requirement for any EB-5 investor, inside or outside of a Regional Center is $1 million. The capital investment requirement for an EB-5 investor in a Targeted Employment Area (TEA) or a Rural Area (RA) is $500,000.

Indirect Job Creation: An important advantage to obtaining Regional Center designation is the “indirect” nature of the job creation, which is less difficult to achieve than the “direct” creation of 10 new jobs. The requirement of creating at least 10 new full-time jobs may be satisfied by showing that, as a result of the investment and the activities of the new enterprise, at least 10 jobs will be created indirectly through an employment creation multiplier effect. To show that 10 or more jobs are actually created indirectly by the business, reasonable methodologies may be used, such as multiplier tables, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and other economically or statistically valid forecasting tools which support the likelihood that the business will result in increased employment.

Targeted Employment Area (TEA): A TEA is a geographic area or political subdivision located within a metropolitan statistical area or within a city or town with a population in excess of 20,000 with an unemployment level at least 150% of the national unemployment rate. TEAs within a state are identified and designated by the governor (and for a TEA within the District of Columbia, designation is made by the Mayor). Typically a Regional Center seeks to encompass one or more TEAs. One example of a TEA is a Regional Center, which encompasses a large city which contains clearly delineated census tracts that have been designated as a TEA by the State based on the measured unemployment rates for the population residing within those locations.

Rural Area: A RA is a geographical area that is outside a metropolitan statistical area, or part of the outer boundary of any city or town having a population of 20,000 or less as shown by population indicators. In certain areas involving a sparsely populated state, an approved statewide Regional Center likely encompasses both TEAs and RAs.

Required Amount of Investment: Depending on the location of the commercial enterprise to be invested in, the required amount of the investment may be either $1 million or $500,000. If the investment is located within a TEA or RA, the required minimum threshold for investment is $500,000. Otherwise, an alien must invest a minimum of $1 million to qualify.

Required Commercial Enterprise: In order to qualify under the Pilot Program, an investment of the requisite amount ($500K or $1 million) must be made in a new commercial enterprise located within an approved Regional Center.

New Commercial Enterprise: The law and regulations require that the commercial enterprise in which the investment is made must:

1. Have been created/established after November 29, 1990; or
   
   
2. If the investment is made in a pre-1990 enterprise, the alien’s investment must have created a 40% or more increase in either the enterprise’s net worth or number of employees; or
   
   
3. The pre-1990 enterprise has been restructured or reorganized so that the result is a new commercial enterprise.
   

Although the 2002 EB-5 amendments eliminated the requirement that the alien “establish” the new commercial enterprise, the law retained the requirement that the enterprise into which the alien has invested be “new.”

Risk: The regulations and precedent decisions require an alien to incur a reasonable risk for purposes of generating a return on his or her capital investment. As such there should be no guarantees, buy back arrangements, unsecured promissory notes, other agreements or arrangements that in effect merely structure or organize the investment for appearance sake only for purposes of obtaining the permanent resident status without the alien’s capital being fully invested and at risk in the investment in the new commercial enterprise to create or spawn the required 10 jobs.

Engagement of the Alien Investor in the Enterprise: The regulations require that the alien investor is or will be engaged in the management of the new commercial enterprise, either through day-to-day managerial control or through participation in policy-making decisions for the commercial enterprise.

Application for Regional Center designation: There is no established application form by which to apply. The process provides that any entity, government or private organization which desires Regional Center designation by the USCIS proceed as follows:

1. Prepare a written narrative proposing a for-profit investment which addresses each of the requirements for Regional Center designation participating in the pilot program, with supporting evidence as prescribed in the regulations at 8 CFR 204.6(m).
   
   
2. Submission of the written proposal to the USCIS Associate Director for Operations.

The U.S. Senate agreed on Friday to set restrictions on the hiring of H-1B workers by financial services firms that receive federal bailout funds, but it didn't bar the hiring of foreign workers as proponents had sought.

U.S. Sens. Bernie Sanders (I-Vt.) and Chuck Grassley (R-Iowa) had proposed legislation this week to prohibit any firm that received money under the Troubled Assets Relief Program (TARP) from hiring foreign workers.

The amendment, part of the stimulus plan being debated in the Senate, didn't include a blanket restriction on H-1B use and instead set a series of strict standards on H-1B hiring.

The Senate's amendment would require companies receiving TARP funds, mostly financial services firms with a lot of bad mortgages, to comply with hiring rules set for "H-1B dependent" firms -- those with more than 15% of their workers on H-1B visas.

Any firm receiving TARP funds will be automatically considered H-1B dependent, regardless of the percentage of H-1B workers on the payroll.

The H-1B dependent designation subjects employers to a number of provisions, including a good faith effort to hire U.S. workers first.

Sen. Grassley said in a statement late Friday that the modified bill means companies receiving TARP funds would still be able to hire H-1B visa holders, but would have to comply with the "H-1B dependent"-employer rules "which include attesting to actively recruiting American workers; not displacing American workers with H-1B visa holders; and not replacing laid off American workers with foreign workers."

"Hiring American workers for limited available jobs should be a top priority for businesses taking taxpayer money through the TARP bailout program," Sen. Grassley said.

"With the unemployment rate at 7.6 percent, there is no need for companies to hire foreign guest workers through the H1-B program when there are plenty of qualified Americans looking for jobs," Sen. Grassley said.

Both Sen. Grassley and Sen. Sanders argue that U.S. firms have a moral obligation to protect U.S. workers' jobs.

This amendment may be tougher than the existing law. There are now exceptions to the H-1B dependency rule for foreign workers who are paid at least $60,000 in base wages or who have advanced degrees -- but those exceptions don't appear in the amendment. It is thus believed that the companies affected by this proposed law would be unlikely to hire H-1B workers.

The fate of this H-1B amendment rests on the fate of the stimulus bill before the Senate today, and if that's approved it will head to a conference where other changes are possible.

• April 1, 2008 is the first day petitions may be received for an October 1, 2008 start date. When it is determined that the numerical limitations have been reached, USCIS employs a random selection process to choose among the petitions received on the "final receipt date." If the "final receipt date" falls within any one of the first five business days, the random selection will be run using all the cap-subject petitions received on those five days.



• USCIS will reject and return the filing fee(s) for all cap-subject H-1B petitions that are not selected in the process described above. The new rule clarifies that this provision only applies to petitions that indicate they are cap-subject. If a petitioner claims to be exempt from the cap and is later found to be subject to the cap, USCIS will not refund or return fees and that petition will be denied if no cap numbers are available.



• Petitions for the FY 2009 cap received before April 1, 2008 will be rejected. A petition is considered received when USCIS takes possession of and stamps the petition as received, not by the date the petition is postmarked.

• Extend the amount of time a current H-1B worker may remain in the United States;



• Change the terms of employment for current H-1B workers;



• Allow current H-1B workers to change from one cap-subject position to a different cap-subject position with a different employer; or



• Allow current H-1B workers to work concurrently in a second H-1B position.

1. Clearly label all H-1B cap cases in red ink on top margin of Form I-129 petition. Use the following
   
   codes:
   
   
   
   • Reg. Cap (65,000 regular cap cases minus the C/S cap cases received)
     
     
   • C/S Cap (Chile/Singapore H-1B1s)
     
     
   • U.S. Masters (20,000 cap exemption for beneficiaries with U.S. Masters or higher degrees)
     
     
   • Exempt (for petitions filed by certain institutions of higher education; nonprofit organizations; and nonprofit research organizations or governmental research organizations, as defined in USCIS regulations)
     
     
2. Fill out Form I-129 and supplements correctly, consistently and completely.
   
   
   
   • Form I-129 petition
     
     
   • H classification supplement
     
     
   • H-1B Data Collection and Filing Fee Exemption Supplement
     
     
   • Original signatures are required. Tip: blue ink makes it easy to confirm an original.
     
     
3. Employer must submit the correct fees as seen on form instructions (Tip: separate checks for each are best).




Base filing fee $320 American Competitiveness and Workforce Improvement Act of 1998 (ACWIA fee) $750 For employers with 1 to 25 full time equivalent employees unless exempt $1,500 For employers with 26 or more full time equivalent employees unless exempt (see H-1B Data Collection and Filing Fee Exemption Supplement, Part B) Fraud fee $500 To be submitted with the initial H-1B petition filed on behalf of each beneficiary by a petitioner. (Not for Chile/Singapore H-1B1 cases) Premium Processing fee $1,000 For employers seeking Premium Processing Service



4. Please send only one petition per envelope. (These may then be mailed together in one mailing package.)
   
   
   
   • Regular Cap
     
     
   • U.S. Master’s Cap
     
     
   • Regular Cap Premium Processing
     
     
   • U.S. Master’s Cap Premium Processing
     
     
   • H-1B1 Chile/Singapore