Immigration Dispatch

August 2004

USCIS Releases FY05 H-1B Cap Usage through August 4, 2004

U.S. Citizenship and Immigration Service (USCIS) advised that as of August 4, 2004 it had received 40,000 cap-subject H-1B filings subject to the fiscal 2005 cap. Of those 40,000, 21,000 have been approved; the rest are in the pipeline. Of the 65,000 annually available H-1B numbers, 6,800 are reserved for Singapore and Chile under recent Free Trade Agreements. On October 1, 2004 additional H-1B numbers will added to the FY2005 H-1B quota because relatively few of the FY2004 6,800 slots, that were reserved for Singapore and Chile applicants, were used in FY2004. These added-back H-1B numbers must be allocated before November 15, 2004. Once the FY2005 cap is reached, unless relief is granted by Congress, the new start date for cap-subject H-1B approvals will be October 1, 2005.


USCIS’ Nationwide Roll-Out Of InfoPass
By Hector A. Chichoni

The InfoPass program is an online immigration appointment system that allows an individual seeking immigration benefits falling under the jurisdiction of local U.S. Citizenship and Immigration Services ("USCIS") district offices to schedule a date and time to meet with an immigration officer about his or her particular case. InfoPass is particularly important for cases that are better handled in person. InfoPass is part of an electronic immigration initiative undertaken by USCIS to make services more convenient and accessible for the general public.

InfoPass was originally launched as a pilot program in Miami in 2003 and was expanded earlier this year to include Los Angeles and Dallas. This summer, USCIS announced an ambitious plan to implement InfoPass nationwide to include all 33 USCIS districts by September 2004. Thus far, in addition to its Miami, Los Angeles, Dallas and New York district offices, USCIS has either launched, or is planning to launch, InfoPass in the following cities:

August 9   Buffalo, Newark, Philadelphia

August 16   Atlanta, Baltimore, Boston, Portland (Maine), New Orleans

August 18   Chicago, Houston

August 23   Cleveland, Detroit, San Juan, Washington D.C.

August 30   Anchorage, Honolulu, Phoenix, Portland (Oregon), San Diego, San Francisco, Seattle

September 8   Denver, El Paso, Harlingen, Helena, Kansas City, Omaha, San Antonio, St. Paul

To use the InfoPass scheduling system, an applicant must log on to its web site at www.uscis.gov. After entering the applicant’s ZIP Code, the applicant is directed to the appropriate USCIS office. The website then displays a range of appointment dates and times that are available. Once the appointment time is selected, the system generates an electronic appointment notice. The applicant must print the notice and take it with him or her to the USCIS appointment

Appointments made through InfoPass can be rescheduled or cancelled over the internet using the ID numbers at the bottom of the appointment confirmation notice. Applicants must report no earlier that 30 minutes prior to the scheduled appointment, but are instructed to be prepared to spend up to several hours at USCIS’ office.

To use InfoPass, users need a computer with an internet connection, Internet explorer 4.0 or above, Netscape 4.0 or above, or any other similar browser. It is to the user’s advantage to have an e-mail address for USCIS contact purposes. However, if the applicant does not have one, USCIS will use the applicant’s home mailing address. Among other things, InfoPass offers a secure internet site and is offered in 12 languages, including Arabic, Chinese, Creole, English, French, Korean, Polish, Portuguese, Spanish, Tagalog, Russian, and Vietnamese. USCIS plans to add more languages in the future.



Deadline for Visa Waiver Program Participants to Obtain Biometrics Passports Extended to October 26, 2005

On August 10, 2004, President Bush signed a law that extends until October 26, 2005 the deadline by which citizens of Visa Waiver Program countries must obtain biometric passports. The Visa Waiver Program enables business visitors and tourists from 22 countries that have an excellent record of U.S. immigration compliance, including but not limited to Japan, the United Kingdom, and Germany, to travel to the U.S. without a U.S. visa for trips of less than 90 days. The migration to a biometric passport requirement was mandated by the Enhanced Border Security and Visa Entry Reform Act of 2002. The reason for the extension is that the 22 countries need more time to develop the program and technology required to produce more secure, biometrically enabled passports.

To mitigate security concerns, the Department of Homeland Security ("DHS") will begin enrolling Visa Waiver Program travelers in the U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) program arriving at all U.S. airports and seaports on or about September 30, 2004. US-VISIT requires two digital index finger scans and a digital photograph from each traveler to enable DHS to verify the traveler’s identity. Therefore, citizens of Visa Waiver countries will experience this addition to their usual entry experience after September 30, 2004. In addition, to participate in the Visa Waiver program, children must have their OWN passport and may not be included as an endorsement in a parent’s passport.



Filing Electronic Applications With U.S. Citizenship and Immigration Services
By Hector A. Chichoni

In May 2003 U.S. Citizenship and Immigration Services (USCIS) put into effect through an interim rule, and a good deal of publicity, a new program that allows applicants, or their attorneys, to file immigration applications online. E-Filing petitions and applications with USCIS for immigration benefits can ONLY be done through its website.

By accepting E-Filed applications USCIS seeks to streamline its information collection processes, improve its customer service (deal more effectively with its ever growing backlog), and move towards fulfilling the mandates of the Government Paperwork Elimination Act (GPEA).

Initially USCIS offered E-Filing for only two forms, namely, the I-90, Application to Replace Permanent Residence Card, and the I-765, Application for Employment Authorization. Despite its technical and substantive limitations, the E-Filing program appeared to be a step in the right direction.

In May 2004, USCIS expanded its E-Filing to include seven more forms: I-129 - Petition for Nonimmigrant Worker; I-129S - Nonimmigrant Petition based on Blanket L Petition; I-131 - Application for Travel Document; I-140 - Immigrant Petition for Alien Worker; I-539 - Application to Change/Extend Nonimmigrant Status; I-821 - Application for Temporary Protected Status; and I-907 - Request for Premium Processing Service. This expansion, however, does not mean service or technical improvement. It means only an increase in the number of applications available for E-Filing.

Advantages
E-Filing is quicker and more efficient vis-à-vis same immigration forms filed via mail or courier. E-Filing is instantaneous. These advantages are important when submitting extensions or change of nonimmigrant status and the foreign nationals’ current stay may expire before USCIS can receive the application by regular mail and issue a receipt. E-Filing can also be advantageous when an original Employment Authorization Document (EAD) has already been issued and the foreign national is applying for a renewal of the EAD online. E-Filing provides instant confirmation that the government has received the application. All fees can be paid and confirmed in one transaction, and processed at a single location. E-Filing can save some applicants from having to stand in long lines at USCIS offices. However, applicants must be organized before E-Filing their applications. Although, it is true the status of E-Filed applications may be tracked online, this is true for all applications filed regularly through the mail or via courier with USCIS offices.

Disadvantages
USCIS has promoted E-Filing as a good deal. Yet, despite its potential, E-Filing does not measure up.

E-Filing presents procedural challenges. It does not eliminate the applicant’s need to submit evidence or supporting documents by mail. Having to file via mail the required supporting evidence for applications that have already been E-Filed is not only burdensome as and additional step, but also worrisome when considered in light of federal bureaucratic inefficiency and historical case mishandling. E-Filing does not simplify or expedite the application process because supporting documents still have to be filed with USCIS in hard-copy form.

Concurrent E-Filing, a feature of E-Filing and the practice of submitting multiple related applications at the same time, is limited and NOT offered for all E-Filed applications. For example, an authorized representative cannot E-File ten I-90 forms for ten different foreign nationals concurrently. In these cases, each application must be E-Filed, and paid for, separately.

E-Filing lacks a data integration feature. Currently, E-Filing software does not permit the electronic integration with databases or forms programs use by businesses, applicants, or their lawyers.

The E-Filing program has a technical quirks. For example, in the past, the program interface did not allow addresses to be entered if it included a fraction (such as 8½ Main Street). Similarly, unless the web browser is at least Internet Explorer 5.0 or Netscape 4.7, applicants are not be able to use E-Filing. Applicants using Windows 2000 and Internet Explorer 5.5 or higher still need to install the Windows 2000 High Encryption Pack. Applicants using Windows 95, 98, ME or NT are required to use Internet Explorer version 5.5 or higher. Furthermore, USCIS’ E-Filing instructions are confusing, time consuming, and not user-friendly. A failure to follow USCIS electronic guidelines properly may result in processing delays or even denial of the application.

From a transactional point of view, E-Filing also presents a few challenges. For example, if an applicant files an I-765 Employment Authorization application, the applicant must send his I-485 Adjustment of Status Application via mail or courier in advance of E-Filing the I-765 EAD application because the I-765s may not be E-Filed without a USCIS file number known as an "A number." Since the USCIS is not required to issue an EADs until 90 days following the filing of the I-765 EAD application, filing the I-485 application by mail and the I-765s online will result in additional delay in EAD issuance. After E-Filing an I-765 application, the foreign national must make an appointment to visit an Application Support Center (ASC) by calling the National Customer Service Center. All of these steps take time and increase the burden on the applicant.

Conclusion
Although USCIS has embarked on a 10-year effort to modernize the immigration service program to improve its efficiency, integrity and customer service, as it presently stand, E-Filing is at best undependable, incomplete, and far from being the solution it is touted to be.


H-1B Documentation Requirements for Physicians
By Mary M. (Peggy) Godar

An H-1B visa is a temporary work visa for individuals who will work in what the law refers to as a "specialty occupation." The immigration regulations define specialty occupation as "an occupation which requires [the] theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor . . . and which requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States." In order for a position to qualify as a specialty occupation:

  1. The position must require a baccalaureate or higher or its equivalent as the minimum for entry into the position; or
  2. The degree requirement must be common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree; or
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Some occupations require evidence beyond proof that a baccalaureate or higher is required for entry into the position. Physicians must meet additional requirements to qualify for an H-1B approval. A physician who will primarily teach or conduct research, or both, at or for a public or nonprofit private educational or research institution or agency, must submit evidence that he/she meets the following requirements:

  1. Has a license or other authorization required by the state of intended employment to practice medicine (or is exempt from this requirement by law), if the physician will perform direct patient care and the state requires the license or authorization, and
  2. Has a full and unrestricted license to practice medicine in a foreign state or has graduated from a medical school in the United States or in a foreign state.
  3. A physician engaged in patient care that is not incidental to the physician’s teaching or research, must submit evidence of the above two requirements as well as evidence that the physician:
  4. Has passed both parts of the Federation Licensing Examination (FLEX), or Parts I, II, and III of the National Board of Medical Examiners (NBME) examinations, or steps 1, 2, and 3 of the United States Medical Licensing Examination (USMLE); and
  5. Has competency in oral and written English which is demonstrated by the passage of the English language proficiency test given by the Educational Commission for Foreign Medical Graduates ("ECFMG"); or is a graduate of a school of medicine accredited by a body or bodies approved for that purpose by the Secretary of Education.

However, a physician who will be engaging in patient care that is not incidental, is exempt from providing evidence that he or she has passed a medical licensing exam or the English test of the ECFMG in items (3) and (4) if the physician is a graduate of a medical school in a foreign state and has national or international renown in the field of medicine. The nationally or internationally renown physician would still need to show that he has a license as required by the state of intended employment to practice medicine (or is exempt by law) and has a full and unrestricted license to practice medicine in a foreign state or has graduated from a medical school in the United States or in a foreign state. In addition, the physician must submit evidence of his/her national or international renown to establish that he is exempt from the medical licensing examination and ECFMG requirement.

Because of the special documentation requirements for physicians it is important to examine the nature of the physician’s proposed duties to determine whether patient care will be a principal or incidental component of the job duties. This is vital to determine what documents are required for the H-1B petition.



Nonimmigrant Visa Application Waiting Times Now on the Internet

The U.S. Department of State, which operates all U.S. embassies and consulates abroad and overseas the visa application and visa issuing functions, has made available on its website the visa application waiting times that exist at all U.S. consulates. As the State Department notes, advance travel planning and early visa application are important, since visa applications are subject to a greater degree of scrutiny than in the past. For foreign nationals planning to apply for a nonimmigrant visa to come to the United States, the State Department wants applicants to know how long they will have to wait to get an interview appointment to apply for a visa and how long it will take for the nonimmigrant visa to be issued.

The State Department also stresses the importance of reviewing all information on the specific Embassy’s Consular Section website for local procedures and instructions, such as how to make an interview appointment. Consular Websites explain any additional procedures for students, exchange visitors and those persons who need an earlier visa interview appointment. The State Department reminds applicants that a small percentage of visa applications require additional special clearances or administrative processing but that most special clearances are resolved within 30 days of application

To view the estimated nonimmigrant visa application waiting times at all U.S. embassies and consulates, please visit: http://travel.state.gov/visa/tempvisitors_wait.php.

Additional Documents:

Practices

Top