Passports Required

Washington, DC
April 5, 2005

New Passport Initiative Announced To Better Secure America’s Borders - Initiative Designed To Expedite Travel in the Western Hemisphere While Enhancing Security

The Departments of State and Homeland Security announced today the Western Hemisphere Travel Initiative to secure and expedite travel. The Western Hemisphere Travel Initiative will require all U.S. citizens, Canadians, citizens of the British Overseas Territory of Bermuda, and citizens of Mexico to have a passport or other accepted secure document to enter or re-enter the U.S. by January 1, 2008.

Currently, U.S. citizens, and some citizens of other countries in the Western Hemisphere are not required to present a passport to enter or re-enter the U. S. when traveling within the Western Hemisphere. The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA, also known as the 9/11 Intelligence Bill), signed into law on December 17, 2004, mandated that the Secretary of Homeland Security, in consultation with the Secretary of State, develop and implement a plan to require U.S. citizens and foreign nationals to present a passport, or other secure document when entering the United States.

To provide vital information to the general public, the Departments of Homeland Security (DHS) and State (DOS) are issuing an Advance Notice of Proposed Rulemaking (ANPRM) on the plan to the public and requesting input and/or comment on the suggested documents and possible alternative documents that can meet the statutory requirements. A more formal rulemaking will be issued later this year following review of those comments to implement the first phase of the initiative. This rulemaking will take into account comments received from the advanced notice as well as soliciting further comments on the rulemaking itself.

"Our goal is to strengthen border security and expedite entry into the United States for U.S. citizens and legitimate foreign visitors," Homeland Security Acting Under Secretary for Border and Transportation Security, Randy Beardsworth stated. "By ensuring that travelers possess secure documents, such as the passport, Homeland Security will be able to conduct more effective and efficient interviews at our borders."

"We recognize the implications this might have for industry, business and the general public, as well as our neighboring countries, and they are important partners in this initiative. The advanced notice of proposed rule making will allow these affected publics to voice concern and provide ideas for alternate documents acceptable under the law," explained Assistant Secretary of State for Consular Affairs, Maura Harty. "The overarching need is to implement this legal requirement in a way that strengthens security while facilitating the movement of persons and goods."

DHS and DOS propose to roll out the Western Hemisphere Travel Initiative in phases, providing as much advance notice as possible to the affected public to enable them to acquire the necessary documents before the deadline.As previously noted, the passport (U.S. or Foreign) will be the document of choice for entry or re-entry into the U.S. However, another document that we anticipate will be acceptable under the travel initiative is the Border Crossing Card, (BCC – or "laser visa"). Currently, the BCC serves in lieu of a passport and a visa for citizens of Mexico traveling to the U.S. from contiguous territory. Other documents that we anticipate will be acceptable under this Initiative are the Customs and Border Protection Secure Electronic Network for Travelers Rapid Inspection (SENTRI), NEXUS and Free and Secure Trade (FAST) program cards.

Additional documents are also being examined to determine their acceptability for travel. The public will be notified of additional travel document options as those determinations are made. The government would expect that acceptable documents must establish the citizenship and identity of the bearer, enable electronic data verification and checking, and include significant security features. Ultimately, all documents used for travel to the U.S. are expected to include biometrics that can be used to authenticate the document and verify identity.

20,000 More H-1B Visas for 2005

U.S. Citizenship and Immigration Services (USCIS) announced today that it will be able to process additional petitions for H-1B workers for FY 2005. The available petitions for FY 2005 will be applied to all qualified H-1B nonimmigrant aliens, and will not be limited to those individuals holding a master’s degree or higher degree from a U.S. institution of higher learning.

However, USCIS advises employers not to file H-1B petitions seeking approval for workers who may benefit from these provisions until USCIS publishes a rule concerning the Visa Reform Act and related issues. USCIS will reject any new H-1B petition that is received prior to the filing date set forth in the regulations.

Complete information, including the exact date and address for filing, will be published in the Federal Register as soon as possible. However, employers also should be aware that the filing date announced in the regulation may occur shortly after publication of the regulation. Employers should monitor the Federal Register and www.uscis.gov and prepare their filings accordingly.

Visitor Visas

General Requirements for Temporary Visitors

A nonimmigrant is a foreign national seeking to enter the United States (U.S.) temporarily for a specific purpose. Nonimmigrants enter the U.S. for a temporary period of time, and once in the U.S. are restricted to the activity or reason for which their visa was issued. They may have more than one type of nonimmigrant visa but are admitted in only one status.General requirements for foreign nationals seeking temporary admission include, but are not limited to, the following:

The purpose of the visit must be temporary;
The foreign national must agree to depart at the end of his/her authorized stay or extension;
The foreign national must be in possession of a valid passport;
A foreign residence must be maintained by the foreign national, in most instances;
The foreign national may be required to show proof of financial support;
The foreign national must be admissable or have obtained a waiver for any ground of inadmissability;
The foreign national must abide by the terms and conditions of admission.

vmartin@hjlawfirm.com

Maintaining Your Permanent Resident Status

There are some things you must do to maintain your permanent resident status. These are also important to remember if you plan to apply for U.S. citizenship in the future.

• Don’t leave the United States for an extended period of time or move to another country to live there permanently.
• File federal and state income tax returns.
• Register with the Selective Service, if you are a male between the ages of 18 and 26.
• Give your new address to DHS.

H-2B Cap Reached for FY 2005

USCIS REACHES H-2B CAP

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-2B petitions to meet this year’s congressionally mandated cap of 66,000 new workers. After
January 3, 2005, USCIS will not accept any new H-2B petitions subject to the FY 2005 annual cap.
USCIS will follow the procedures set forth in the notice published on March 16, 2004 in the Federal Register at 69 FR 12340 to address the cap reached during FY 2004.

USCIS will use the following procedure for the remainder of FY 2005:

• USCIS will process all petitions received by the end of business on January 3, 2005.
• USCIS will return all petitions subject to the annual cap (along with the filing fee and, if applicable, the premium processing fee) that are filed after the end of business on January 3, 2005.
• Petitioners may re-submit or file new petitions when they have received labor certification approval for work to start on or after October 1, 2005.

If you or anybody you know can benefit from an increase in the apparently arbitrary cap, you should contact your congress people and express your concerns at: http://www.senate.gov/general/contact_information/senators_cfm.cfm

2006 DV Lottery

2006 Diversity Visa Lottery Program Registration

The following information has been provided by the U.S. Department of State:

Applications for the 2006 Diversity Visa (DV) Lottery will be accepted between November 5, 2004 and January 7, 2005. Persons seeking to apply must register electronically, online through the designated Internet website, www.dvlottery.state.gov during the registration period. The 2006 Diversity Visa Lottery marks the second year that electronic registration is required. Paper entries and mail-in requests for Diversity Visa Lottery registration are not accepted.
The Department of State implemented the electronic registration system last year for the 2005 Diversity Visa Lottery to improve efficiency and make the process less prone to fraud, thus making it less vulnerable to use by persons who may pose a threat to the security interests of the United States.

The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). Section 131 of the Immigration Act of 1990 (Pub. L. 101-649) amended INA 203 to provide for a new class of immigrants known as "diversity immigrants" (DV immigrants). The Act makes available 50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States.

The annual DV program makes permanent residence visas available to persons meeting the simple, but strict, eligibility requirements. Diversity Visa entries are chosen by a computer-generated random lottery drawing. The visas, however, are distributed among six geographic regions with a greater number of visas going to regions with lower rates of immigration, and with no visas going to citizens of countries sending more than 50,000 immigrants to the U.S. in the past five years. Within each region, no one country may receive more than seven percent of the available Diversity Visas in any one year.

For DV-2006, natives of the following countries are not eligible to apply because they sent a total of more than 50,000 immigrants to the U.S. in the previous five years:
CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, EL SALVADOR, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PHILIPPINES, RUSSIA, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.

New Asylum Regulations for Aslyum Seekers at U.S.-Canada Land Border Port-of-Entry, and In Transit Through the United States or Canada During Removal

United States and Canada Implement Safe Third Country Agreement on Asylum

Press Release from U.S. Citizenship and Immigration Services

Washington D.C. – Eduardo Aguirre, Director of U.S. Citizenship and Immigration Services (USCIS), announced today the implementation of a bilateral agreement between the United States and Canada that affects asylum seekers both at U.S.-Canada land border ports-of-entry, and in transit through the United States or Canada during removal by the other country. The final rule implementing the agreement, published November 29, 2004, takes effect today.
“This agreement is an important step towards strengthening public confidence in the integrity of our asylum systems,” said Director Aguirre. “It also ensures that all asylum seekers will be heard, that they receive procedural safeguards, and that they will not be removed until either Canada or the United States has made a determination on the protection claim, in accordance with national laws implementing our treaty obligations.”

The initiative to enter into a Safe Third Country Agreement was included in the 30-point action plan under the Smart Border Declaration signed in December 2001 by Department of Homeland Security (DHS) Secretary Tom Ridge and Mr. John Manley, former Deputy Prime Minister of Canada. The Agreement highlights U.S.-Canadian cooperation to develop mutually beneficial approaches to our common security goals while simultaneously continuing to provide access to one of our two nations’ asylum systems for those with protection concerns.

What does the U.S.-Canada Safe Third Country Agreement accomplish?
The Agreement allocates responsibility between the United States and Canada whereby one country or the other (but not both) will assume responsibility for processing the claims of certain asylum seekers who are traveling from Canada into the United States or from the United States into Canada. The Agreement enhances the two nations’ ability to manage, in an orderly fashion, asylum claims brought by persons crossing our common border.

What are the terms of the Safe Third Country Agreement between the United States and Canada?
The Agreement permits the United States, subject to a host of important exceptions, to return to Canada two specific classes of asylum seekers: those attempting to enter the United States from Canada at a land border port-of-entry and those who assert protection claims while being removed by Canada through the United States. Upon return to Canada, the asylum seeker’s protection claims will be considered under Canadian law.

Similarly, asylum seekers arriving in Canada from the U.S., either at a shared land border port-of-entry, or in transit during removal by the U.S., may be returned to the U.S. for consideration of their protection claims under U.S. law.

What are the family unity exceptions under the Agreement and the rule?
The Agreement’s family unity exceptions, which have been incorporated into the rule, are generous. An asylum seeker with an “anchor” relative in the U.S. who is either in lawful immigration status (other than visitor status) or is 18 years or older and has an asylum application pending here will be allowed to enter the U.S. to join the relative. The range of family members who may qualify as “anchor” relatives under the Agreement is considerably broader than that recognized under other provisions of immigration law. The list of eligible family members includes spouses, sons, daughters, parents, legal guardians, siblings, grandparents, grandchildren, aunts, uncles, nieces, and nephews.

What are the other exceptions under the Agreement and this rule?
An alien who arrives at a land border port-of-entry is exempt from return under the Agreement if the alien:
(1) Is a citizen of Canada or, not having a country of nationality, is a habitual resident of Canada;
(2) Is unmarried, under 18 years of age, and does not have a parent or legal guardian in either Canada or the United States;
(3) Is applying for admission at a United States land border port-of-entry with a validly issued visa or other valid admission document, other than for transit, issued by the United States, or, being required to hold a visa to enter Canada, was not required to obtain a visa to enter the United States; or
(4) Has been permitted, as an unreviewable exercise of discretion by DHS, to pursue a protection claim in the United States because it was determined that it is in the public interest to do so.

How does the Agreement address the possibility that individuals will be removed without having their protection claims heard?
Under specific terms of the Agreement, an individual referred by either Canada or the United States to the other country cannot be removed to a third country until an adjudication of the individual’s protection claims has been made. The Agreement also provides that an individual returned to the country of last presence shall not be removed to another country pursuant to any other Safe Third Country Agreement or regulation.

How will the U.S. implement the Agreement?
Under the final rule published November 29, 2004, asylum officers will conduct threshold-screening interviews of asylum-seekers arriving at U.S.-Canada land border ports-of-entry. During the screening interview, an asylum officer will determine whether an asylum-seeker qualifies for one of the Agreement’s exceptions. In the case of an asylum-seeker who does qualify, the asylum officer will then proceed to determine if the asylum-seeker has a credible fear of persecution or torture, pursuant to existing regulations and procedures for asylum-seekers subject to expedited removal. In the case of an asylum-seeker who does not qualify for one of the Agreement’s exceptions, the asylum-seeker will be removed to Canada, the country of last presence, in order to pursue his or her protection claim there.

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