Immigration Law Advisory

September 1, 2004

The Immigration Law Advisory summarizes legal developments of interest to our clients and friends of the firm. It is published on a periodic basis as developments warrant.

Despite pressure from businesses for the US government to address problems and delays with the issuance of employment visas, the US Department of Homeland Security (DHS) has just announced that it expects the H-1B visa category to be exhausted soon. In an effort to protect US workers from foreign competition, Congress had set a quota of 65,000 for this visa category. Notwithstanding the economic slump, the quota was reached last February for the fiscal year ending on September 30th. The situation will be gloomier this year, because the passage of free trade agreements with Chile and Singapore has cut into the quota further, reducing the number of H-1B visas available this fiscal year to 58,200. Thus far, DHS reports that 40,000 H-1B petitions have been received since April 2004, 21,000 of which have been approved and counted towards the 2005 fiscal year quota.

A similar problem has plagued the H-2B visa category, in that the quota was also reached months before the end of the 2004 fiscal year. However, President Bush has recently signed legislation exempting certain professions, such as fish roe processors, technicians, and supervisors, from the numerical limitation, in hopes of avoiding exhaustion of the visa numbers next year.

The US government’s efforts aimed at improving “homeland security” are, in part, a response to the critical report released by the 9/11 Commission at the end of July blaming lax immigration enforcement for the terrorist attacks. Yesterday, DHS issued regulations implementing the US Visitor and Immigrant Status Technology Program (US-VISIT), an integrated, automated entry-exit system for foreigners traveling into and out of the United States. On January 5, 2004, DHS implemented the first phase of US-VISIT requiring aliens to provide fingerprints, photographs, or other biometric identifiers upon arrival in, or departure from, the United States at air and sea ports of entry. The new regulation rolls out US-VISIT to the 50 most highly trafficked land border ports of entry and adds to the list of those to whom the US-VISIT applies, which will now include:

nonimmigrant aliens entering under the Visa Waiver Program (VWP); and
crewmembers applying for landing privileges.

The DHS is also proceeding with requirements that as of October 26, 2004, all passports used for admission pursuant to the VWP must be machine-readable. However, it did push for legislation, signed earlier this month by President Bush, that extends the implementation of the requirement that passports used for admission into the United States include biometric identifiers until October 26, 2005. As the findings of the 9/11 Commission are digested and implemented and the presidential election approaches, we are likely to see even greater impact in the way US borders are managed and secured.

Please contact Lynda Zengerle (202-429-8170) , lzengerle@steptoe.com, if you would like to discuss any of these specific issues.