Another Victory for Delayed Naturalization

December 22nd, 2006

In Aslam v. Gonzales, December 19, 2006, the U.S. District Court for the Western District of Washington ordered prompt processing of a long-pending naturalization case (filed November 2003) due to the failure of the FBI to process the name check.  It stated: “[T]he case is held in abeyance for sixty (60) days while the FBI completes Mr. Aslam’s name check. The parties are to file a joint status report updating the Court on the status of Mr. Aslam’s application and name check no later than February 20th, 2007. If the FBI name check has not been completed at that time, the Government must appear on February 23rd, 2007, at 11:00 a.m., to show cause why Mr. Aslam should not be immediately naturalized.”  

USCIS Proposes Changes to Naturalization Exam

December 19th, 2006

According to the Federal Register, the USCIS will be conducting a pilot of a redesigned naturalization test.  The notice states:  “Applicants for naturalization must, among other things, demonstrate an understanding of the English language, a knowledge and understanding of the fundamentals of the history, and the principles and form of government in the United States. Currently the naturalization testing process and test content vary in each USCIS district office. USCIS plans to revise the naturalization testing process to ensure that the naturalization testing process is uniform. Thus, a newly redesigned English reading and writing test, as well as the U.S. history and government test, will be pilot tested in the following, randomly selected sites: Albany, New York sub-office; Boston, Massachusetts, District Office; Kansas City, Missouri, District Office; Charleston, South Carolina sub-office; El Paso, Texas District Office; San Antonio, Texas District Office; Miami, Florida District Office; Denver, Colorado District Office; Tucson, Arizona Sub-Office; and Yakima, Washington Sub-Office. Based on the evaluation of the pilot, the final test will be implemented nationally beginning in 2008. DATES: This notice is effective January 3, 2007.” FR, Dec. 19, 2006.

USCIS Proposes New Background Check Repository

December 13th, 2006

On December 4, 2006, the U.S. Citizenship and Immigration Services (USCIS) proposed in the Federal Register (71 FR 70413, December 5, 2006) to add a new system of records, the Background Check Service, to the Department of Homeland Security’s (DHS) inventory. USCIS developed the Background Check Service to serve as a centralized repository that contains the consolidated data on all background check requests and results. Authorized USCIS representatives can request background checks and access data stored in the system of records during the adjudication process of pending applications. The established system of records will be effective January 3, 2007 unless comments to the Federal Register notice result in a contrary determination.

It is crucial that this repository provide a more efficient and quicker response to the USCIS’s request for background checks.  Delays in receiving responses to background checks have caused unreasonably long delays in approving immigration applications.  Applicants have been forced to sue the DHS in mandamus petitions in the federal courts and the results have been favorable for many applicants.  However, after paying exorbitant immigration filing fees, applicants should not be forced to pay additional fees to obtain a decision within a reasonable period of time.  Also, flooding the federal courts with such mandamus petitions does no credit to our judicial system. 

DOL Issues FAQ #9 Dated 11/29/06

December 13th, 2006

The Department of Labor (DOL) published its ninth set of responses to frequently asked questions (FAQ) about PERM applications and this FAQ deals with withdrawals, alien experience, recruitment timeframes, and acceptable publications for recruitment advertising. Guidelines are provided on withdrawing certified and uncertified PERM applications, the inclusion of training in an employer’s minimum requirements for the position, the counting of days to meet recruitment requirements and on the use of an electronic national professional journal to advertise recruitment. The complete questions and answers can be found on the DOL’s website.  This includes all the FAQs. 

Supreme Court Issues a Favorable Decision in Drug Posession Case

December 13th, 2006

In Lopez v. Gonzales, decided on December 5, 2006, the Supreme Court, in an 8-1 decision, held that drug possession convictions that qualify as state felonies, but would not qualify as felonies under federal law, are not “aggravated felonies” as defined under INA section 101(a)(43)(B) (“drug trafficking crimes”).  The Court resolved a split among the federal circuit courts, unequivocally stating that, “Unless a state offense is punishable as a federal felony it does not count.” 

The Court’s decision means that a noncitizen convicted for the first time of a state felony simple drug possession offense (except for persons convicted of possession of more than five grams of crack cocaine or any amount of flunitrazepam) does not have an “aggravated felony” conviction for immigration purposes. That person is therefore no longer barred from applying for INA 240A(a) cancellation of removal, asylum, and/or naturalization based on aggravated felony eligibility bars. 

Congress Extends Law for Physicians in Underserved Areas

December 12th, 2006

On 12/9/06, the Senate passed the Physicians for Underserved Areas Act (H.R. 4997), which followed the House’s passage H.R. 4997 on 12/6/06. The bill extends for two years the Conrad 30 program, which is the J-1 visa waiver program for foreign physicians serving in underserved areas, and which allows J-1 foreign physicians who work in underserved areas to remain in the country after completing their medical training.

Normally, J-1 visa holders who come to the U.S. for graduate or medical education are required to leave the country for two years before applying for legal permanent residency or for H-1B status. The Conrad 30 program allows the foreign physician to waive that requirement if the physician agrees to spend three years working with patients in medically underserved areas. The authorization for the program expired on June 1, 2006. Once it is signed into law by the President, H.R. 4997 will reinstate the visa waiver program for a period of two years.

Congress Approves Expansion of P-1 Visa for Athletes

December 12th, 2006

Congress has passed legislation called the COMPETE ACT to expand the scope of the P-1 nonimmigrant visa.  The COMPETE Act amends the Immigration and Nationality Act to broaden the scope of P-1 nonimmigrant visas to include: (1) a professional athlete; (2) a person who performs as an athlete, coach, or part of a team that is located in the United States and is a member of certain amateur foreign leagues or associations from which a significant number of individuals are drafted by major sports leagues or their minor league affiliates; and (3) a professional or amateur athlete who performs individually or as part of a group in a theatrical ice skating production coming to the United States in a specific ice skating production or tour. Currently P-1 visas are only available for athletes performing at an “internationally recognized level of performance.”

Senator Cornyn Seeks More H-1B Visa Numbers

December 11th, 2006

U.S. Sen. John Cornyn of Texas has proposed an additional 100,000 H-1B visa numbers for foreign workers annually in the high-tech and nursing fields, according to the Houston Chronicle.  Currently, there are 65,100 such visas available this year.  Senator Cornyn states that it is vital to increase the numbers, since U.S. employers are unable to find a skilled work force at home: “Unfortunately, industries are dying on the vines for lack of a qualified work force,” Cornyn said. “So this is very important for industries ranging from nurses to high-tech industries.”

Also, Cornyn’s proposal would not count the visa numbers for H-1B family members against the cap. 

H-2B Cap Reached for First Six Months of Fiscal Year 2007

December 7th, 2006

The USCIS announced that the congressionally-mandated H-2B cap has been reached for the first six months of Fiscal Year 2007.   It stated that November 28, 2006 is the ‘final receipt date’ for new H-2B worker petitions requesting employment start dates prior to April 1, 2007.”  Petitions to extend H-2B status, amend the terms of H-2B status, change H-2B employers, or to request H-2B “returning worker” status are not subject to the cap.  Please see the USCIS December 5, 2006, Press Release at the USCIS website.