Bender’s Immigration Bulletin – February 1, 2011

Bender’s Immigration Bulletin – February 1, 2011

Border Security Fees from Employers to Continue into 2015

On the second day of the New Year, President Obama signed the “James Zadroga 9/11 Health and Compensation Act of 2010” into law with no fanfare. The law sets up the World Trade Center Health Program and extends the deadline for filing claims and expands the eligibility for compensation under the September 11th Victim Compensation Fund.

To finance this expanded program, the law extends by one year the collection of the increased border security fee paid by certain H-1B and L employers. That fee, instituted in August 2010 pursuant to Public Law 111-230, requires certain H-1B and L employers to pay fees of $2,000 and $2,250 respectively. The fees were scheduled to sunset on September 30, 2014. Under the new law (Public Law 111-347), the fees will sunset on September 30, 2015. In addition, the law imposes a two-percent levy on goods and services imported from countries that are not a party to an international procurement agreement with the United States -- for example, India and China.

According to The Economic Times website, India’s Commerce and Industry Minister objected to the funding sources, saying they went against the two countries’ decision to reduce trade barriers. After India’s protest, the end of visa fees was moved from year 2021 to 2015 in the legislation.


New NIV Application Procedures in Mexico

On January 10, the U.S. Embassy and Consulates in Mexico began processing nonimmigrant visas under a new procedure. Most nonimmigrant visa applicants now will visit an Applicant Service Center for biometric information collection before a consular interview is scheduled. ASCs are not located in the embassy or consulate and are staffed by the State Department contractor Computer Sciences Corporation.

Some applicants who are renewing their visas will qualify for the Interview Waiver Program and will need to visit only the ASC, with no follow-up at the embassy or consulate. To qualify for the IWP, an applicant must be applying with a Mexican passport, be applying in the same visa category for a renewal, hold a valid visa or one expired less than a year; never have been arrested or convicted of a crime; not have dual citizenship or a second country of citizenship; be a Visa Waiver Program member; and never have been deported from or denied entry to the United States, or had any other problems with the U.S. immigration or customs authorities. As always, the embassy and consulates reserve the right to call in any applicant for a personal interview.

To start the process, an applicant completes the Form DS-160 online and pays the application fee online or via telephone with a credit card, or by printing a deposit slip with the applicant’s receipt number and paying the fee at any Banamex or Scotiabank location. There is now only one fee, covering the appointment, application, and courier fees. The current application fee is: $140 for a tourist application; $150 for petition-based visas; and $390 for treaty-trader and investor visas. There is no longer a separate appointment-scheduling fee or a separate courier fee.

The applicant will answer a series of questions online, or through a call center agent, to determine whether the applicant needs just an ASC appointment or both ASC and consular interview. At the ASC appointment, digital photographs and fingerprints will be collected. If required, an interview will be automatically scheduled. Applicants who qualify for a visa will collect their passports at the DHL courier location they designated when they scheduled their ASC appointment.

The U.S. consulates in Ciudad Juarez, Monterrey, and Nuevo Laredo have already been using the ASC system. The $26 surcharge assessed for ASC processing is now eliminated, and applicants at these consulates will pay just one fee just like applicants in all the other Mexican posts. And, as at other posts, applicants will pick up their passports at DHL locations upon completion of the process.


Mother or Parent 1? State Department Retreats from Gender-Neutral Passport Form

When the State Department published a routine announcement introducing the redesign of the forgery-resistant Consular Report of Birth Abroad that mentioned in the final paragraph that the redesigned CRBA and a new passport application use the title “parent” as opposed to “mother” and “father,” no one really noticed. A Fox News report in early January changed that and ultimately forced Secretary of State Hillary Clinton to step in and change the wording to “mother or parent 1” and “father or parent 2.”

The announcement said the improvements were made to “provide a gender neutral description of a child’s parents and in recognition of different types of families.” The conservative Family Research Council President Tony Perkins fired back, “only in the topsy-turvy world of left-wing political correctness could it be considered an ‘improvement’. This is clearly designed to advance the causes of same-sex ‘marriage’ . . . and violates the spirit if not the letter of the Defense of Marriage Act.”

Gay rights groups cheered the change after pushing for such changes since President Obama took office. It follows the recent vote to end the military’s “don’t ask, don’t tell” policy, a big win for gay rights advocates.

Government Executive reported that an official in the Bureau of Consular Affairs said that “Secretary Clinton was aware of the importance of the change but not aware of the nitty-gritty details. Once she was made aware, she decided to revise the wording.”

 Family Structures


AAO Documents Released by USCIS

On January 6, 2011, Carlos Holguín, General Counsel for the Center for Human Rights and Constitutional Law, announced that USCIS released documents responsive to its September 2009 FOIA request for documents shedding light on USCIS’s Administrative Appeals Office. CHRCL had requested, inter alia, information identifying AAO staff and officers and descriptions of the training, education, qualifications, and experience of the staff; documents describing any policies, procedures, and practices in the assigning and adjudication of cases; and statistical summaries of AAO appeal outcomes. CHRCL’s Holguín reported that the request met with “much resistance,” and in the end it had to sue to compel release of the requested information. Ultimately, USCIS disclosed most of the information requested. CHRCL’s FOIA request, USCIS’s response cover letter, and the documents released are available here: Center for Human Rights and Constitutional Law Freedom of Information Act Request;  USCIS Response Cover Letter Granting CHRCL FOIA Request;  381 Pages of Documents Released By USCIS under FOIA to CHRCL.


Rhode Island Executive Order on E-Verify

In February 2008, then Rhode Island Governor Donald Carcieri issued an executive order known as the “Illegal Immigration Control Order.” The order required state agencies and vendors to verify the legal status of all employees through the use of the E-Verify program. On January 5, 2011, newly elected Governor Lincoln Chafee issued Executive Order 11-02, rescinding the 2008 Illegal Immigration Control Order. Governor Chafee’s Order is reprinted at Appendix A.


New Handbook for Employers on I-9s

USCIS released a new version of The Handbook for Employers (Rev. 01/05/2011), also known as the M-274. This handbook helps employers understand the employment verification process and completion of Form I-9, Employment Eligibility Verification. It contains new information about applicable regulations, including new regulations on electronic storage and retention of forms; clarifies how to process an employee with complicated immigration status, and addresses public comments and frequently asked questions. It also includes information for employers in the Commonwealth of the Northern Mariana Islands who must verify their employees’ employment authorization on Form I-9 CNMI. The revised M-274 is available for download: Handbook for Employers: Instructions for Completing Form i-9 (Employment Eligibility Verification Form).


New IJ in Detroit

Chief Immigration Judge Brian M. O’Leary invested David H. Paruch during a ceremony held at EOIR headquarters on January 7, 2011. Judge Paruch will preside in the immigration court in Detroit, Michigan. Attorney General Eric Holder appointed Judge Paruch in December 2010. Judge Paruch received a Bachelor of Arts degree in 1970 from the University of Detroit Mercy and a J.D. in 1975 from the University of Michigan Law School. From 1999 to November 2010, he was in private practice as the principal of the Law Offices of David H. Paruch, PLLC. From 1975 to 1999, Judge Paruch was associated with the Clark Hill PLC. From 1971 to 1972, he served in the U.S. Army. Judge Paruch is a member of the State Bar of Michigan.

[This is an excerpt from the February 1, 2011, issue of Bender’s Immigration Bulletin.]