Immigration Law Advisory

As we approach the one-year anniversary of the creation of the Department of Homeland Security (DHS), the agency continues to struggle with past, current and future immigration issues.  On January 5, 2004, DHS rolled out the United States Visitor and Immigrant Status Indicator Technology (US VISIT) at 129 US ports-of entry.  This program requires all non-immigrants entering the United States between the age of 14 and 79 (other than those holding a diplomatic visa or those using the Visa Waiver Program) to submit biometric data, such as fingerprints and photograph, and “register” with the DHS. Eventually, US VISIT will track exits as well, but due to funding problems, only the Miami and Baltimore airports are currently registering departures.  Throughout 2004, US VISIT will be extended to include other points of departures and to cover those entering pursuant to the Visa Waiver Program.  

The DHS is also developing the Computer Assisted Passenger PreScreening Program ( CAPPS II), which will collect the name, address, telephone number and date of birth for all travelers in / out / throughout the United States.  The information will be fed into government databases to identify  those who pose a terrorist risk.  Each traveler is then assigned a color score, ranging from red to green, and subjected to security screenings accordingly; those classified as red will not be allowed to board the plane.  Frequent travelers will be able to register in advance as a “Trusted Traveler” and issued a special biometric identification card that will allow them to pass through the airport security checkpoints more expeditiously.

US companies which employ foreign workers will also experience dramatic changes in the coming year.  The annual cap on H-1B visas has been reached already -- those wishing to employ foreign workers who do not fall within the exceptions (for institutions of higher education, related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations), and who do not qualify for other visa categories, will have to wait until October 1, 2004, when the new fiscal year for DHS commences.  Additionally, there are several bills pending before Congress which seek to streamline the L-1 visa program and close “loopholes” which allow placement agencies to apply for this classification.  Finally, on January 22, 2004, the Department of Labor received the Congressional appropriation that will enable it to institute the controversial Labor Certification for the Permanent Employment of Aliens in the United States (“PERM”) program.  The rule, as promulgated, will go into effect automatically 120 days after publication, which is expected in the next few months and will allow employers to file applications for permanent residency electronically on behalf of foreign nationals.  Though PERM is expected to cut into the current labor certification application backlog significantly, there is concern that the new requirements will make it impossible for employers to establish that there are no qualified US workers for the position offered to the foreign national and ultimately bring about the demise of the labor certification program.

As President Bush announced at the annual State of the Union address, he intends to focus on passing an immigration reform bill.  His proposal is aimed at providing uncapped, temporary employment authorization to workers (regardless of whether they are currently abroad or illegally present in the United States) who secure employment with employers able to establish that there are no US workers for the given position.  However, opponents are concerned that the “reform” does not extend far enough to remedy significant issues, especially with respect to the pervasive problem of long-term illegal immigration.  Two leading Democrats have already introduced “The Immigration Reform Act of 2004” which goes beyond President Bush’s proposal by addressing the issue of family reunification and a “Willing Worker” component that would reform the current H-2B program and create a new H-2C classification.  This bill also includes “Earned Adjustment” which would allow those meeting the following requirements to apply for permanent residency notwithstanding any unlawful presence issues: physical presence in the United States for the previous five-year period; successful fulfillment of a past and prospective employment requirement; payment of income taxes or agreement with the IRS to do so; and payment of a $1000 “penalty” fee.

If you would like additional information about any of these issues, feel free to contact Lynda S. Zengerle at 202.429.8170.