VISANOW Voice Newsletter - October 2008

Period of Stay for TN Professional Workers Extended

USCIS has increased the initial period of admission for a Trade-NAFTA (TN) professional worker from one to three years, making it equal to the initial period of admission given to H-1B professional workers. Eligible TN workers may now be allowed to receive extensions of stay in increments of up to three years instead of the prior maximum period of stay of one year. The extension will eliminate the need for employers to re-file for extensions on a yearly basis.

This revision is one of the 26 initiatives identified by President Bush’s Administration to address current immigration challenges using the tools and authorities available under existing law.

November Visa Bulletin Shows Forward Movement for Employment-Based Preference Categories.

Despite concerns regarding the unknown level of demand for employment-based immigrant visa numbers by the U.S. Citizenship and Immigration Services (USCIS), the U.S. Department of State’s (DOS) November 2008 Visa Bulletin shows measurable progress in most of these categories.

For example, workers in the employment-based second preference (EB-2) classification from China and India saw a progression of two months, from April 2004 to June 2004 for Chinese nationals, and from April 2003 to June 2003 for Indian nationals.

The employment-based third preference (EB-3) categories saw similar gains or better. The priority date for Mexican nationals moved forward by two months to September 2002. For Indian nationals, it progressed by three months to October 2001. Nationals from China, the Philippines and all other countries moved ahead by four months.

Religious workers were the only category of employment-based immigrants that saw no gains. Instead, these numbers became unavailable, implying that all available numbers for Fiscal Year 2009 have already been distributed. The DOS, however, does not confirm whether the entire year’s supply was exhausted within one month or if the purpose is to curb overwhelming demand.

The DOS also announced that the USCIS has determined that it already has an extremely large number of pending applications for permanent residency with priority dates earlier than the posted Visa Bulletin dates. This confirms the DOS’s prior predictions that forward movement will continue to be fairly slow in the coming months, and they repeat their warning that retrogression is likely as the fiscal year progresses.

Employment-Based Visa Bulletin For November 2008

USCIS Limits Scope of Religious Workers Eligible for Green Cards

Effective Oct. 1, 2008, the U.S. Citizenship and Immigration Services (USCIS) has eliminated two of the eligibility classifications for Green Card filings within the special immigrant religious worker program. The Special Immigrant classification previously allowed immigrant petition filing for individuals who were members of religious organizations in the U.S. and sought to work as a minister or in a professional capacity in a religious vocation or occupation. Classification was also available to individuals who sought to work in a religious vocation or occupation for the organization or its nonprofit affiliate. As of October 1, classification will only be available to those seeking to work as a minister. The remaining positions will no longer justify Special Immigrant classification.

Only individuals who were able to adjust status or obtain immigrant status under the affected classifications before Oct. 1, 2008, will obtain permanent residence under the Special Immigrant provisions for religious workers other than ministers. Affected individuals who have not yet obtained I-360 and I-485 approval or immigrated to the U.S. as permanent residents are no longer able to do so.

The Oct. 1, 2008 expiration date was the result of a prior extension granted by the U.S. House of Representatives. However, no further extension had been granted beyond the October 1 deadline. As of October 1, the USCIS has held pending cases that were not approved by that date in abeyance. New filings for Special Immigrant classification for non-minister religious workers cannot now be filed.

Countries Added to Visa Waiver Program

On October 17 President Bush announced that seven countries will be added to the United States’ Visa Waiver Program (VWP) including the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, and South Korea. Although an expected implementation date has yet to be announced, it is anticipated that within a month citizens from these countries will be able to travel to the United States for business or tourism for up to 90 days without a visa.

Several more countries are currently in the process of review for admission into the VWP including Bulgaria, Cyprus, Greece, Malta, Poland and Romania. These countries are allies to the United States and believe their citizens should not have to wait in line and pay for a visa to enter the country. The President agrees but indicated that post- 9/11 travel security must be increased before more countries are allowed to travel visa-free. In order to reduce the possible threat to the United States, foreign citizens who do enter the country through the VWP will have to register through a new online program that screens for potential security threats.

Currently, the VWP allows the foreign citizens of 27 countries to enter the United States for business, pleasure or transit for up to 90 days. Upon entering, the foreign citizen must hold a valid ticket for return or continued travel, and enter the United States on an air or sea carrier designated as a participant in the VWP. Beginning January 12, 2009, all travelers in the VWP must use the online program to obtain authorization into the country at least 72 hours before leaving for the Unites States. This online program is currently voluntary.

Naturalization Abroad for U.S. Armed Forces

In early 2008, the National Defense Authorization Act for 2008 was put into law. This act allows certain spouses of members in the Armed Forces to naturalize outside the United States.

To be eligible for this type of naturalization the spouse must hold lawful permanent residency for at least three years and must also provide documentation showing military orders for living abroad with their spouses.

Individuals that meet the eligibility requirements for naturalization outside the U.S. should complete the N-400 and specify that they are pursuing Overseas Naturalization. The applicant also needs to provide the following documentation for their application: cover letter stating their current U.S and foreign addresses, marriage certificate, fingerprint cards (applicant is able to take their fingerprints on the military base), Form DD-1278, military member’s proof of citizenship (this maybe a passport or birth certificate), two passport photos, applicant’s Permanent Resident Card and evidence of marital relationship which may include documentation such as joint accounts that the couple may have.

The application and all documentation should be sent to the Nebraska Service Center, with the correct filing fee of $595 dollars when the applicant is outside the U.S. Typically, the application is processed in 120 to 180 days.

2010 Diversity Visa Lottery Registration

The U.S. Department of State (DOS) is accepting applications for the 2010 Diversity Visa (DV) Lottery Program from October 2 to December 1, 2008. Applicants may access the electronic form online at www.dvlottery.state.gov during the registration period. This annual program makes immigrant visa numbers available to foreign nationals who are selected by a computer-generated random lottery. The lottery makes 55,000 numbers available each fiscal year to individuals from countries with low rates of immigration to the U.S. For fiscal year 2010, natives of the following countries are not eligible to apply: Brazil, Canada, China (mainland born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

For detailed information about requirements and frequently asked questions, please see the U.S. Department of State’s DV 2010 website at http://travel.state.gov/visa/immigrants/types/types_1318.html