October 2008

From the Editor's Desk

Hello and welcome to the October 2008 Immigration Newsletter!

With the advent of the 2010 DV Lottery program this month in immigration was no less than an adventurous roller coaster ride. The 2010 DV Lottery came in with so little fanfare that unless you were paying attention you would have missed the announcement. With the 2010 DV Lottery Russians have reason to celebrate – they have returned to the list of eligible countries and can now participate in the DV Lottery program. Also, new to the list of eligible countries this year is Kosovo. While Russia and Kosovo were added to the list no countries were removed from the list of eligible countries for DV-2010. As with past years individuals from those countries, including India, China, Pakistan, Canada, Mexico and 14 other countries, that have sent more than 50,000 immigrants to the US in the previous 5 years are not eligible to apply. The Department of State began accepting applications for the DV-2010 Lottery Program on October 2, 2008. The last date for submitting a DV-2010 Lottery application is noon EST on December 1, 2008, so you still have time to apply. What are you waiting for, hurry up!

The DV Lottery is a nice reminder of the diversity that we now find in the US population. A recent survey shows that the makeup of America’s newest citizens has changed from the European pioneers that forged a new nation in its early days, to the recent wave of Hispanic and Asian migrants that are adding their skills and talents to the world’s largest economy. Statistics from United States Citizenship and Immigration Services (USCIS) detail this shift and highlight the ever increasing influence immigration imparts on the nation. Immigration has been slowly, but constantly, changing the demographic makeup of the US. Beginning in the 1960s, the countries of origin for America’s immigrants have shifted from Europe to Asia and Latin America. Most experts believe that immigration, under our current policies, will continue to dramatically change the demographic landscapte of America in the coming decades. Most predict that by the year 2050 one in four Americans will be of Hispanic origin.

On the political front (a very hot area with the Presidential elections coming up on November 4, less than 3 weeks away) the “web-based grassroots community of pro-migrant, human rights, and civil-rights bloggers and activists group,” The Sanctuary, sent a questionnaire to both US Presidential candidates. In his response, Barack Obama, the Democratic candidate for President, stated that he would make immigration one of his “top priorities” during the first month of his presidency. One of the questions in the survey asked if the candidates supported expanding the H-1B visa scheme by raising the limit above the current 65,000 H-1B visas allowed per year: Obama replied that he would support “multiple proposals for increasing access to the world’s best and brightest to work in America.” In response to a later question on reducing family-based visas in favor of a merit-based system, he stated that he would not support having skilled immigration take precedence over family-based immigration. Asked whether he supported a guest worker program, Obama replied that he did, however it would have to meet certain requirements. Obama’s statement to make immigration the top priority has certainly brought smile on many advocates faces. Let’s see if he holds to his statements if elected.

Many people think of the USCIS as a large and unfeeling organization, however in truth they try to understand and accommodate people when the unexpected happens. In this vein they recently sent out a reminder of the services available to those that have been affected by the recent bad weather in the Caribbean. The USCIS noted in the reminder that they understand that unexpected events in a person’s home country can sometimes affect their travel or other plans and that they will try to be flexible in assisting those individuals. The reminder then laid out some of the services that are available to those travelers that were delayed in the US (foreigners in the US on a visitor’s visa may request for the extension of their stay or change of their status if the unexpected events in their home country delay their travel); and for students either on F-1 or M-1 visas that may be affected by the recent global financial crisis (may request an Employment Authorization Document (EAD)). In these situations, nonimmigrant visitors affected by unexpected events in their home country may request expedited processing of their applications or petition. The USCIS gave some relief to many of the foreign nationals by taking the initiative to remind its customer base of the flexibilities in their programs.

There was some very welcome news for employers this month. The Department of Homeland Security recently took a step in the right direction when it increased the amount of time a TN nonimmigrant from Canada or Mexico can remain in the US. On October 14, 2008, USCIS announced the adoptions of a final rule that increased the maximum period of time a Trade-NAFTA (TN) professional worker from Canada or Mexico may remain in the United States before seeking readmission or obtaining an extension of stay. With the adoption of this final rule the initial period of admission for TN workers is increased from one to three years, making it the same as the initial period of admission given to H-1B professional workers. Additionally, under the new rule eligible TN nonimmigrants may be granted extensions of stay in increments of up to three years instead of the prior maximum period of stay of one year. This will ease administrative burdens and costs on TN workers and also benefit US employers by increasing the amount of time TN employees will be able to work for them before having to seek an extension of status. Spouses and unmarried minor children of TN nonimmigrants in their corresponding nonimmigrant classifications will also benefit from the new regulation.

Other Developments in Immigration Law:

USCIS Delays Implementation of Direct Mail Program For N-400, Application for Naturalization

The USCIS announced that it will delay implementation of the Direct Mail Program for the N-400, Application for Naturalization. The USCIS even realized a Federal Register notice which was published on Oct. 10, 2008, announcing this delay. The USCIS is delaying implementation of this new filing procedure to conduct additional tests of the technology involved. Applicants for naturalization should continue to submit their Form N-400 according to the instructions on the form until further notice. In almost all cases, this means applicants will submit their N-400s to a USCIS Service Center.

Overseas Naturalization Eligibility for Certain Children of U.S. Armed Forces Members

President Bush signed into law the National Defense Authorization Act for Fiscal Year 2008 on January 28, 2008 and this law amended Section 322 of the Immigration and Nationality Act (INA) to allow certain eligible children of members of the armed forces to become naturalized U.S. citizens without having to travel to the United States for any part of the naturalization process. This Section 322 provides for the naturalization of minor children of U.S. citizens residing abroad. The general conditions are that at least one parent is a U.S. citizen, that the child is younger than age 18 and resides abroad in the physical and legal custody of that parent, and that parent has been physically present in the United States for a certain period of time. Section 322 requires that in general, the child must be temporarily present in the United States pursuant to a lawful admission in order to complete the naturalization.

CBP Installs Radiation Monitors in Alabama Port

U. S. Customs and Border Protection (CBP) announced on October 3, 2008 that they have unveiled the first radiation portal monitors at the Port of Mobile, Ala. yesterday. The CBP designed these highly sophisticated tools to prevent any attempts to smuggle radiological materials used in nuclear weapons into the United States. The five portal monitors now in operation act as an extremely sensitive receiving antenna to detect radiation sources. These systems are capable of detecting various types of radiation emanating from nuclear devices, dirty bombs, special nuclear materials, natural sources, and isotopes commonly used in medicine and industry. They are completely safe for anyone passing by them; they are passive “detectors” of radiation, not emitters of radiation.

U.S. and U.K. Border Agencies Exchange Passenger Information to Protect Borders

The U.S. Customs and Border Protection (USCBP) entered into a joint agreement with the United Kingdom Border Agency (UKBA) in Washington, D.C., to strengthen the countries’ borders by sharing information on people who may present a threat – including illegal immigrants, smugglers and foreign criminals – before they even arrive. The agreement will strengthen the capability of the U.S. and the U.K. to verify travel documents, detect false identities, determine admissibility, carry out customs purposes and identify persons traveling between the countries who may pose a security risk. The exchange of information between NTC and the JBOC will serve both enforcement and facilitation interests of both nations. The agreement also will improve communication between the two agencies when a person is denied entry and returned to the traveler’s country of origin.

Immigration Articles and Other Fun Stuff:

Now for the regulars – this month’s Immigration Article is a must read if you are a Lawful Permanent Resident (Green Card holder) in US or are intending to apply for one. The article reveals you the importance of being a Permanents Resident of US and also explains you why and how important it is to maintain your Permanent Resident Status in the US. You can’t afford to miss this article, friend. And also check out our In Focus section for this month which gives you a detailed analysis for becoming a Naturalized US Citizen.

Every month we introduce a new and interesting question for our opinion poll. Last month’s poll results indicate that approximately 56.41 % of the respondents believe that the New Passport Card issued by DOL cannot be used for international travel by air. We appreciate that people take interest in the opinion question and cast their vote to give us their feedback. Keep it up! And continue to cast your vote to express Your Opinion.

We congratulate Lee Kyle for winning last month’s Immigration Quiz. Again, we received a significant number of responses from our readers who talked about various solutions to support their position, but Lee Kyle gave the correct answer and won a free online consultation to discuss her Immigration issues. So it’s time to get ready for this month’s quiz. If you know the correct answer your name might be featured in next month’s newsletter. All the Best!!!

See you next month with a lot more noise from the Immigration World!

Latest Immigration News

President Signs Military Personnel Citizenship Processing Act

President George W. Bush signed a law on October 9, 2008 to speed the naturalization process for members of the military and their immediate families, called the Military Personnel Citizenship Processing Act. It establishes an Office of the FBI Liaison in the Department of Homeland Security (DHS), which is meant to help the FBI process naturalization applications for people in the military. The law applies to members and former members of the Armed Forces and current spouses of active Armed Forces members, as well as surviving spouses and children of U.S. citizens who died while on active duty. The provision also applies to deceased people eligible for posthumous citizenship.

USCIS Dedicates Newest Office in Orlando - New facility also hosts first Naturalization ceremony for 29 children

The USCIS in a special dedication ceremony celebrated the official grand opening of its newest field office in Orlando. The USCIS Acting Director Jonathan “Jock” Scharfen presided at the ceremony and was joined by leaders from USCIS headquarters in Washington. The field office in Orlando provides full-service immigration processing – from fingerprints to naturalization — to the people of Central Florida from a location close to the airport. The dedication was enhanced with a special naturalization ceremony where 29 children hailing from 11 different countries received their Oath of Allegiance. Patriotic music was performed by the local Daughters of the Revolution and the new citizens were congratulated by a ‘patriotic’ Mickey Mouse – all in the spirit of celebrating America and its civic values. The field office in Orlando provides full-service immigration processing – from fingerprints to naturalization — to the people of Central Florida from a location close to the airport. The new office is based on a national model for new USCIS office locations throughout the country, and includes resources necessary to accommodate more than 450 customers daily.

Obama would make Immigration a 'Top Priority'

In a questionnaire to both US Presidential candidates from online immigrant-rights group the Sanctuary, Barack Obama, US Senator and Democratic candidate for President of the United States, stated that he would make immigration one of his ‘top priorities’ during the first month of his presidency. The questionnaire, also sent to Republican candidate John McCain’s campaign, covered a wide-range of issues central to the topic of US immigration reform. The survey covered issues such as expansion of the H-1B program and the establishment of a guest worker program. On the topic of H-1B, the survey asked if Barack Obama supported expanding the scheme by raising the limit of 65,000 H-1B visas allowed per year. In recent years – the survey noted – all 65,000 standard H-1B visas were snatched up in a matter of days. In additions to increasing H-1B quotas and supporting a guest worker program, Obama would also like to see increases in low-skilled employment-based green cards from the current annual quota of 5000.

18-Month Extension of Temporary Protected Status for Nationals of Nicaragua, Honduras and El Salvador'

The USCIS announced that it will extend Temporary Protected Status (TPS) to nationals of Nicaragua, Honduras and El Salvador through July 5, 2010. The extension will make those who have already been granted TPS eligible to reregister and maintain their status for an additional 18 months. The TPS does not apply to nationals of these two countries who entered the United States after Dec. 30, 1998. The applicants may request a fee waiver for any of the application or biometric service fees in accordance with the regulations. Failure to submit the required filing fees or a properly documented fee waiver request will result in the rejection of the re-registration application.

October's Featured Articles

Becoming a Naturalized U.S. Citizen - Do you know the requirements?

Majority of the people hold a common perception that becoming a naturalized citizen of United States is an extremely complicated and difficult process. But in reality it is not. The process to acquire US Naturalization may be time consuming and confusing but at the end of the day it’s all worth it. People find it difficult to apply for US Naturalization mainly because they do not understand what the requirements are, or why they are what they are. Proper knowledge and correct information will help you acquire your dream of US Naturalization, come true. Let’s now begin our exploration of US Naturalization topic by looking at who qualifies to file for it and the basic requirements or qualifications for US naturalization.

Being a Permanent US Resident - How to maintain your Status?

Acquiring a Permanent Resident status in the United States does not mean your journey to live and work in the United States is just beginning. It is very important for you to maintain your status in the US if you have any desire to become a US Citizenship. The key point here is that it is necessary for you to continue to permanently “reside” in the US; otherwise you run the risk of no longer being considered a permanent resident of US.

As a permanent resident you; have adopted the US as your home. This means that you have to respect and be loyal to the United States, and are required to obey the laws of the country. It also means that you gain new rights and responsibilities to your adopted nation. It should also be noted that being a permanent resident is a “privilege” and not a “right.” The US government can take away your permanent resident status under certain conditions. This article will discuss how you can maintain your permanent resident status, and why it is so important to do so.

Questions and Answers


My employment contract is about to end on December 30, 2008. My employer will immediately report the U.S. consulate in Jerusalem about the termination of the E-1 visa. According to my employer, I cannot stay more than “a few days” in the U.S. after the visa is terminated. I need these extra 5 weeks in order to finish a crucial medical treatment that I’m about to begin soon at the UCLA Medical Center, sell our vehicles, etc. Will that 5-week gap between the termination of the E-1 visa create a future problem for me or my family members to re-enter the U.S?


You are allowed to remain in the US for a “reasonable” period of time after the termination of your employment. There is no definition of what is “reasonable,” however, given your position, the type of visa you are in the US under, and the upcoming medical treatment, 5 weeks should be considered reasonable. Moreover, since your I-94s are valid until 2009 you would not be considered overstays and would not accrue “unauthorized stay” for purposes of the 3 and 10 year bars. There would be no adverse affect on any future visa applications by yourself or your family. While there should be no adverse affect by remaining in the US for the 5 weeks you discuss, if you want to take the safest route you should file an application to change your status to B-2 visitors to cover any prolonged time that you will need to remain in the US for the medical treatment. Ongoing medical treatment is generally viewed with favor by the USCIS when reviewing applications to change or extend status.


I am a “Key Accounts Manager for my company and currently in the US in B-1 status. I would like to change my non-immigrant status from a B-1/ B-2 Visa to an L-1A/ L-1B Visa so I can transfer to our US office. Upon researching the necessary required forms I discovered the I-94 form which I was completely unaware of. My original Visa that I obtained in Australia stated 1 year validity however the I-94 form only granted a stay for 6 Months. I have unknowingly overstayed for a period of a month. Am I able to change my Visa whilst still in the US or will I have to return to Australia to have it re-issued. I am aware that there is a 3 year ban applicable to overstay periods of 180 days. Will my new visa application be affected by my length of stay, i.e. whether I overstay by 1 day or 179 days? How long will the entire process take? I understand that there is a premium processing (15 Days) fee of $1000. How long will the process take if I have to return to Australia? Am I able to start completing the process whilst still in the US? Does an L-1A/L-1B Visa allow me to attain a social security number? Please advise your suggested course of action.


As your job title is ‘Key Accounts Manager’ and that you deal with key accounts and not employees L-1B is the most appropriate visa for you. As your current status is unlawful you cannot file for a change of status in the US. You will have to go back to Australia and apply for L-1B visa through the same consulate you visited before for your B-visa. There is no prohibition in your starting the process before you leave, however you must get the new visa in Australia. The longer you remain in the US after your status expired the more difficult it can be to convince a US consular officer that you will not violate your status again in the future.


Is there a limit on home many consecutive years you may apply for an H-2A visa for the same employee? I am in the process of applying for 24 H-2A visas for my firm and this will be the fifth year (each year they are only granted a 10 month visa and end up staying only 9 of those ten months) of returning to my place of employment for some of the workers?


In general there is no limitation on the number of years that an alien can enter the US for H-2A purposes. While there is no general limitation the regulations do have some restrictions. If an individual spends 3 years in the US in H-2A status they must remain outside the US for 6 months before re-entering in H-2A. However, any absence from the US will interrupt the accumulation of the three years. Any absence of 3 months in an 18 month period will break the accumulation of time. In your case, where your employees spend 9 months per year in the US, they will not accumulate sufficient time to reach the bar to return; as long as they spend only 9 months per year in the US there will be no limitation on the number of years they can return to your farm to work.

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