Immigration Law Advisory

As businesses struggle to address the exhaustion of visas in the H-1B and H-2B employment categories, the US Department of Homeland Security (DHS) continues to deal with pressure from the Bush Administration and Congress to handle security concerns.  Last month, senior DHS officials testified at an oversight hearing before a Congressional Subcommittee that the US Visitor and Immigrant Status Indicator Technology (US-VISIT) program had been deployed successfully, processing more than two million visitors since its inception in January.  In fact, DHS has been able to roll out the program, which is supposed to track all foreigners entering the United States by recording two digital index finger scans and a digital photograph, only at 115 airports; the implementation is even more sporadic with respect to logging the exits of foreigners from the country.  And this week, DHS has asked Congress to pass legislation for a two-year extension for Visa Waiver Program (VWP) countries to include biometrics in passports issued on or after October 26, 2004.  Visitors for Business or Pleasure from VWP countries are not required to obtain a visa stamp in their passports before coming to the United States, so long as they seek to enter for less than 90 days.  The requirement for VWP travelers to have biometrics included in passports issued on or after October 26, 2004 was mandated in the Enhanced Border Security and Visa Entry Reform Act of 2002.  Ironically, to date, the US Department of State has been unable to develop a mechanism for all US passports to include such biometric information.
To compensate for the shortcomings, DHS has asked Congress for an $85 million budget allocation and it is turning to other, less expensive measures to achieve its security-related goals.  Some of those measures are draconian, affecting our closest allies.  Last week, DHS announced plans to expand US-VISIT on September 30, 2004, to include travelers from VWP countries.  This will affect an estimated 13 million visitors a year, many of whom are on brief, pressing business trips where time is of the essence.  Although DHS maintains that the airport process is quick and efficient, the lines at the airport and complaints from passengers tell a different story and US travelers to VWP countries are already experiencing retaliation from foreign immigration and customs officials.  Mexicans and Canadians, however, continue to be exempt from US-VISIT requirements.

For now, those seeking to employ and / or transact business with non-US citizens must proceed with caution and patience.  DHS is increasing its scrutiny of L-1 petitions, in some cases requiring extensive documentation about the qualifying company outside the United States as well as the bona fides of the petitioner.  There is no indication that Congress will increase the number of visas allotted for the H-1B and H-2B categories for Fiscal Year 2005.  Consequently, we are expecting those categories to be exhausted soon after October 1, 2004, the beginning of the DHS fiscal year.  The Department of State released a cable earlier this month, encouraging consular posts to issue visas with deferred validity dates in order to manage a "possible flood of applicants" for H-1B and H-2B visas for approved FY 2005 employment.  On the other hand, the consular posts are giving closer scrutiny to visa applications, sometimes even requiring DNA tests to prove the underlying familial relationship where relevant.  For now, it appears that the heightened tension continues between the US Government’s objective of protecting its borders and commercial/societal interests of allowing foreigners to visit the United States.