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U.S. IMMIGRATION NEWSLETTER is the E-Newsletter regarding U.S. Immigration Laws, News & Issues compiled by GLOBAL LAW CENTERS on a Bi-weekly basis and special news issues are sent when important immigration news arises. It is a must reading for potential immigrants, employers and human resources managers. It provides analysis of the latest developments in U.S. immigration laws. Information provided in this newsletter is general information only and may not apply to any particular set of facts or situations.
Topics In This Issue
Third Country Nationals residing in the United States who wish to apply for a visa in Mexico will want to keep in mind the following updates provided by the CDJ U.S. Consulate. Third Country Nationals (citizens of countries other than Mexico) may make their interview appointment at any of the ten posts comprising Mission Mexico on-line at http://www.usvisa-mexico.com/.
Who Can Apply in Mexico:
• Applicants seeking to renew their visa in any category except B1/B2 (tourist/business), if the initial visa was issued in the applicant’s country of former residence.• Applicants seeking to renew their visa in any category except B1/B2 (tourist/business), if the initial visa was issued in the applicant’s country of former residence, and a subsequent visa by a consular post in Mexico.Certain visa applicants may be subject to additional administrative processing. This administrative processing may last weeks, thus delaying visa delivery and the applicant’s return to the United States. Every effort will be made to expedite these procedures; however, it is not possible to guarantee completion of this process by a particular date.Who Cannot Apply in Mexico:
- Applicants for B1/B2 visas, including renewals, are not accepted from Third Country Nationals who are not resident in Mexico.
- Applicants who entered the U.S. with a visa issued in their home country and changed status with Department of Homeland Security in the U.S. who seek a new visa in the new visa category.
- Applicants who entered the United States in one visa category and are seeking to re-enter the U.S. in a different visa category.
- Applicants who have been out of status in the U.S. having violated the terms of their visas or having overstayed the validity indicated on their I-94s.
- Applicants who entered the U.S. under the auspices of the Visa Waiver Program.
- Applicants who obtained their current visa in a country other than that of their legal residence.
PLEASE NOTE: If you were informed when you obtained the original visa in your home country that you are subject to National Security Entry Exit Registrations (NSEERs) or are a national of North Korea, Cuba, Syria, Sudan or Iran, you are not eligible to renew your visa in Mexico.
Third Country Nationals
Visa Renewals– Before deciding to apply at a consular section in Mexico, third country nationals should keep in mind that traveling to the country may require the appropriate Mexican visa from a Mexican embassy or consulate before making the trip. Potential applicants should be sure they have a visa, if necessary, and are prepared to wait several days in Mexico while their visa is being processed.
Section 2 – Department of Homeland Security (DHS) issues Supplemental Final Rule regarding No-Match policy.
The Department of Homeland Security (DHS) issued a Supplemental Final Rule that provides additional background and analysis for the department’s No-Match Rule. The DHS regulation, which was originally proposed in June 2006 and issued in August 2007 as a Final Rule, clarifies what steps responsible employers can take to resolve discrepancies identified in “no-match” letters issued by the Social Security Administration (SSA). It also provides guidance to help businesses comply with legal requirements intended to reduce the illegal employment of unauthorized workers.
SSA informs thousands of employers every year via “no-match” letters that certain employees’ names and corresponding Social Security numbers provided on the employers’ Form W-2 wage reports do not match SSA’s records. As many as 4 percent of approximately 250 million wage reports the SSA receives each year belong to employees whose names and corresponding Social Security numbers do not match SSA records. The No-Match Rule details steps employers may take when they receive a “no match” letter and guarantees that U.S. Immigration and Customs Enforcement (ICE) will consider employers who follow those steps to have acted reasonably. If an employer follows the safe harbor procedures in good faith, ICE will not use the employer’s receipt of a no-match letter as evidence to find that the employer violated the employment provisions of the Immigration and Nationality Act by knowingly employing unauthorized workers.
What kind of effort is an employer required to make in its attempts to contact U.S. applicants in the course of a recruitment effort? In Matter of Technivate, Inc., 2008-INA-00065 (BALCA, August 27, 2008), the Board of Alien Labor Certification Appeals (BALCA) upheld the Certifying Officer’s findings that an employer did not make a good faith effort to recruit U.S. applicants when it failed to send recruitment letters to two candidates who could not be reached by phone or e-mail. While the case was decided under the pre-PERM regulations, it still serves as a useful illustration of the fact that the procedures an employer normally follows in its recruitment efforts may insufficient to satisfy the demands of the labor certification process.
The employer in Technivate received five referrals from a regional job center for the position of Heavy Equipment Operator, a job paying $21.89 an hour with no experience required. The employer left a phone message for one of the candidates, but the call was not returned. An e-mail was sent to a second candidate, but it was returned due to an inoperable e-mail address. The employer did not make any further efforts to reach either candidate, inferring that an applicant who does not even bother to return a call for a well-paying job with no experience required must not be interested in the position. The certifying officer took the position that, while an employer might be justified in making such assumptions in the course of a standard job recruitment, the efforts made in this case to reach the applicants were not sufficient for the purposes of obtaining a labor certification.
The Board agreed with the assessment of the certifying officer, finding that the employer had not made a good faith effort to contact the two candidates in question. “Clearly,” the Board found, “sending a recruitment letter to the two applicants who could not be reached by telephone would not be an undue burden.” While not deciding exactly what type of communication would have met the standard, the Board found that the employer’s efforts here were clearly insufficient, as the record contained no evidence of any attempted contact after the voicemail and e-mail went unreturned. The Board held that, on these facts, the employer had made only a “minimalist effort” at recruitment, and that the certifying officer’s denial of the labor certification should be upheld.
This case, while not decided under the current regulations, should serve as a cautionary tale for employers pursuing a labor certification. No matter what a company has done in the past to recruit candidates, one should never assume that such efforts will be sufficient for the purposes of labor certification. A recruitment plan must be created with the labor certification process in mind, and it must be strictly followed from start to finish in order to have any chance at ultimate success. Any candidate identified for the job opening must be seriously considered, and all efforts to reach such candidates must be well documented. By preparing—and scrupulously following—a comprehensive recruitment plan in conjunction with competent legal counsel, employers can avoid the fatal mistakes made by the employer in Technivate.
Last month the USCIS took time to answer questions regarding everything from restructuring their IT systems, to the processing of Adjustment of status applications. Please make sure to read the following information very carefully as the guidance provided by USCIS may affect you, your family members, or your employees.In the last Ombudsman report USCIS informed the public that they would be implementing a business transformation plan focused on the reorganization of business processes and IT systems, specifically mentioning a goal to eliminate paper-based application/petition filing. While the USCIS maintains that they are on the path to execute the agency upgrades, changes will not actually be seen until another five year span has passed. Until then, the USCIS has ensured the public that they will continue to seek out new avenues in which they can simplify filing procedures and increase the number of channels through which requests for benefits are accepted.USCIS also addressed those pending adjustment of status under Special Immigrant Religious Worker Status. Although congress authorized a 6-month extension of this provision, USCIS has stated that they will not consider the extension to take effect until the publication of a Federal Register notice confirming issuance of related (fraud) regulations. While the regulations are pending final clearance, the USCIS has stated that they have suspended the adjudication of applications made on Form I-360 (Petitions for Amerasian, Widow(er), or Special Immigrant), as well as applications made on Form I-485 (Applications to Register Permanent Residence or Adjust Status), that are based on an approved Form I-360. In addition, until the new regulation is adopted, USCIS will reject all Form I-360s and Form I-485s filed for non-ministers.In addition to the above concerns, stakeholders also asked representatives of the USCIS if preventative measures could be implemented when the rate of approvals for I-485 cases in certain categories and/or countries turn out to be faster than expected causing visa number usage to exceed the annual limit in the middle of a month. The USCIS has stated that they work vigilantly and continuously with the Department of State (DOS) ensuring that all viable cases with visa numbers available are adjudicated.
Please make sure to read this question and answer session in its entirety at http://globallawcenters.com.
Have a case outside of its normal processing time? More often than not, worried clients will contact our office asking us to perform an inquiry with the Service Center. Unfortunately, when we contact the officers in the Call Center we are told that we have to wait an additional thirty days beyond the listed processing times on the website before they will issue a service request.
The USCIS has finally confirmed in the most recent stakeholder meeting that the SRMT (Service Request Management Tool) will not allow a service request to be taken until 30 days have elapsed from the processing time listed on the website. Hoping to alleviate this problem, the USCIS has planned an entire system update tentatively scheduled to be released in mid-November. Once this update is complete, the USCIS claims they will be able to take a request one day after the listed processing date.
President Bush announced the addition of 7 new countries into the visa waiver program including the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, and South Korea. In about a month, citizens of these nations will be able to travel to the U.S. without a visa.
The VWP has been authorized by U.S. law for over 20 years, with 27 current members from Asia and Europe. The U.S. Congress authorized DHS in August 2007 to reform the VWP and strengthen the security arrangements required of existing participant countries, as well as to expand the conditions for aspiring countries to join the program.
Most notable among the new security enhancements is the Electronic System for Travel Authorization (ESTA), a new fully automated, electronic system for screening passengers before they travel to the United States under the Visa Waiver Program. Voluntary ESTA applications may be submitted at any time prior to travel to the United States, and Visa Waiver Program travelers are encouraged to apply for authorization as soon as they begin to plan a trip to the United States. It is anticipated that ESTA will become mandatory for Visa Waiver Program travelers on January 12, 2009.
VWP partners must also ensure reporting of lost and stolen passports to avoid fraudulent use, and must enhance security measures for airports that originate flights to the U.S., to including air marshals on certain flights.
In addition to these approvals, President Bush extended his offer to a number of America’s other close friends are including Bulgaria, Cyprus, Greece, Malta, Poland, and Romania, stating that he looks forward to the day when these countries join the Visa Waiver Program.
Global Law Centers understands how complicated the immigration process can be, and we would like to take this opportunity to introduce you to our forums designed to assist you with your immigration inquiries in many different ways.
Feel free to interact and exchange your ideas and information regarding immigration. We offer forums on a variety of topics regarding the many types of visas available and welcome all unique ideas that may result from these open discussions.
Sign up now at GLC-Forums and get to know different people with different backgrounds, but similar interests from around the world!