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City Of Brotherly Love Hosts The 2004 National AILA Conference: A Recap

by David Nachman, Esq.

From June 9th to June 13th, over 2500 immigration lawyers from across the country and around the world met in Philadelphia to receive a state of the agency address from representatives of the DHS, DOL, and DOS. David Nachman, Esq., the Managing Attorney at Nachman & Associates, P.C. attended the Annual 2004 National American Immigration Lawyer's Association Meeting in Philadelphia, Pennsylvania. Mr. Nachman has been attending Annual AILA National Conferences for over a decade.

The Conference provides immigration law practitioners from all over the country (and the world) with an opportunity to meet with representatives of the U.S. Department of Homeland Security ("DHS"), the U.S. Department of State ("DOS"), and the U.S. Department of Labor ("DOL"). This year numerous Conference programs focused on the lack of statutory and regulatory guidance in the immigration arena. Furthermore, agency representatives were "vague" concerning such issues as the implementation of the long-awaited PERM Program.

The following is a non-exhaustive list of many of the items that were discussed at the Conference:

Employment Authorization Documents ("EADs") - On June 3, 2004 the Office of Management and Budget approved an Interim/Final rule which allows the CIS to grant EADs in Adjustment of Status cases for more than a one year period. During the DHS Open Forum, William Yates stated that EADs should be issued to coincide with processing backlogs (between one to three years). We are given to understand that a rule should be published within the next several weeks. Please note that this does not mean that everyone's card will be good for five years, but that CIS will, depending on the processing times, be able to issue the EAD for a period of time between one to five years.

Advance Parole Travel Documents - During the DHS Open Forum, William Yates stated that the CIS is in the process of assessing the need for Advance Parole Travel Documents. Also, during the Ombudsman Open Forum, the CIS Ombudsman, Prakash I. Khatri, stated that the CIS was in the process of considering the implementation of certain policies so as to avoid the need for Advance Parole Travel Documents. One such option was the possibility of using the I-485 receipt notice as a travel document.

The H-1B Cap - As we are all aware, the H-1B Cap for this Fiscal Year was reached in February 2004 which was less than half-way through the year. On April 1, 2004, CIS began to accept H-1B petitions for the 2005 Fiscal Year. The 2005 Fiscal Year commences on October 1, 2004. H-1B petitions that are presently being submitted are being counted toward the Fiscal Year 2005 Cap. At the Conference it was reported that in April and May, the CIS approved over 16,000 petitions against the Fiscal Year 2005 Cap.

Premium Processing in the H-1B Context - Representatives of the CIS stated that H-1B numbers are allocated at the time of receipt of the application. Thus, while premium processing does lead to a rapid response it does not necessarily mean that those who premium process will be given an H-1B number (toward the numerical cap) for the Fiscal Year. Therefore, unless you need a quick answer, there is no need to file premium processing to meet the Cap.

J-1 and F-1 Gap and the Cap - If a person is in F-1 or J-1 status, and the status is due to lapse prior to October 1, 2004, the CIS will not grant a change of status to H-1B. Presently, the position of the CIS seems to be that the beneficiary will have to leave the country and return. CIS states that it is working on the formulation of a policy to deal with F-1 and J-1 visa holders in the U.S. who have applied to change their status in connection with the October 1st start date on the H-1B.

E-Filing Initiatives - Recently, the CIS has brought the Form I-129 into its list of documents for permissible e-filings. On May 29, 2003, the CIS began a program which allows immigrants and their attorneys to submit two applications online: (1) I-90 Form (Application to Renew/Replace Permanent Resident Card) and (2) I-765 (Application for Employment Authorization Document). On May 24, 2004, the CIS expanded e-filing to include seven more forms. Presently, the e-filing process is complex and confusing since one has to submit the supporting documents by mail anyway. However, government representatives at the Conference did reference one valuable use for the e-filing process and that is when a filing needs to be done immediately. For example, this may be necessary (1) in the H-1B portability context where there is a need for the applicant to work immediately; and (2) in the B context when submitting an application for an extension or a change of nonimmigrant status so that one's current stay does not expire before the CIS can receive an application/petition.

InfoPass - CIS is in the process of experimenting with an online appointment system that presently is being used in Miami, Dallas and Los Angeles. The system allows an individual to schedule an appointment at the District Office using a special kiosk or by using the internet. The agency reports that the program has been successful and that it plans to extend the program to all District Offices before the end of September.

Nurses - On June 1st, 2004 the National Council of State Boards of Nursing (NCSBN) announced that starting in January 2005, the National Council Licensure Examination (NCLEX), the state RN licensure examination, is going to be offered internationally. The first three examination sites that have been identified are London, England; Seoul, Korea; and Hong Kong.

Foreign Medical Graduates - Foreign Physicians - Recently, the House Subcommittee on Immigration, Border Security and Claims voted to approve "The Access to Rural Physicians Improvement Act of 2004" (H.R.4453) which extends the CONRAD State 30 Program for one year and further clarifies that foreign national physicians sponsored for J waivers under the Conrad program are to be exempt from the H-1B Cap. Also, of interest to foreign national physicians is that the Clinical Skills Assessment ("CSA") is no longer required. The CSA is now incorporated into USMLE, Step 2, Clinical Skills (Step 2, CS). Foreign medical graduates who wish to match for a residency program need to take Step 2, CS.

New Waiver Program for Foreign Medical Graduates - Recently, the Delta Regional Authority has implemented a new Visa Waiver Program that will assist foreign medical graduates to obtain waivers of the two year home residence requirement. Questions regarding the new J visa waiver program can be directed to Justin Ferguson, DRA's Federal Policy Coordinator at (662) 624-8600 x22 or via e-mail at

Access To Service Centers - CIS announced that it is working to restore public telephone lines to its Service Centers by September 30th, 2004.

Visa Revalidation - In both the DOS Open Forum and the CIS Open Forum there was discussion about the DOS Revalidation process. As of July 16, 2004 the DOS will be taking the Revalidation process offline. Thus, July 16, 2004 will be the last day that an individual can apply to revalidate a visa in the U.S. By way of background, each year the DOS revalidates up to 65,000 nonimmigrant (E, H, I, L, O and P) visas instead of requiring applicants to apply abroad. We anticipate that there will be a significant surge in Third Country Processing in Canada and Mexico due to this startling new development.

DOS Biometrics - DOS representatives at the Conference mentioned that they are anticipating a new requirement to be implemented at the end of October, 2004 which is that all nonimmigrant visas shall contain two biometric identifiers, fingerprints and facial scans.

PERM - At the DOL Open Forum and at several Programs about the Labor Certification Process, DOL representatives continue to reiterate that they have not issued final regulations regarding the PERM Program and no definitive dates or timelines could (or would) be given. DOL representatives continue to implement a backlog reduction program aimed at reducing labor certification application backlogs that have mounted over the past three to five years. Allegedly, backlog reduction means that cases will be sent to regional centers to be processed more rapidly.

U.S. VISIT Program - By October of this year, CBP
will fingerprint and photograph all NIV holders at the Port-of-Entry. Additionally, and unlike in the past, citizens of Visa Waiver Program ("VWP") Countries will also be photographed and fingerprinted. CBP reiterated its interest in the rapid flow of persons across the border.

I Visa at the POE - Foreign media representatives have, in the past, been required to have an I visa. A new policy however gives Port Directors the discretionary authority to allow a foreign journalist to enter the United States in B-1 or Visa Waiver status. If CBP exercises discretion, the journalist will be required to have the correct visa classification for any future trips to the U.S.

National Video Immigration Court - At the Conference it was announced that the EOIR will begin National Video Immigration Court operations in Falls Church, Virginia. The Court will conduct overflow removal proceedings via videoconference. The respondents, their attorneys and the government attorneys will present their cases in their local courtrooms, and the judges will conduct the proceedings by video monitors. The respondents are given the option of physically appearing before the judges in Virginia. The first cases will be from the New Orleans court where there is a judicial vacancy.

CIS Memorandum On Ability to Pay RFEs - On May 4, 2004 the CIS issued a memorandum which provides guidance to adjudicators about issuing RFEs in relation to an employer's ability to pay the proffered wage in employment-based immigrant visa petitions (I-140s). The memorandum states that recent CIS practices show that many adjudicators have been issuing unnecessary RFEs and causing processing delays and confusion. The memorandum clearly states that as long as the petition contains a fully completed I-140 and at least one of the required items of financial stability/ability to pay the adjudicator should be able to make a decision. Also, the CIS may deny the petition if the initial evidence does not establish the petitioner's ability to pay. A final portion of the memorandum indicates that acceptance of some financial evidence is purely discretionary. If the adjudicator decides to accept the evidence then the documentation must clearly establish the ability to pay. If it does not, then the adjudicator may deny the petition without asking for further evidence.

About The Author

David Nachman, Esq. is principal of Nachman & Associates, P.C. Mr. Nachman is a frequent speaker on panels and television. He is also an Adjunct Professor of Paralegal Studies at Bergen Community College and Fairleigh Dickinson University. In addition, he is a member of the Bergen County and New Jersey State Bar Associations; the Court of International Trade; the Third Circuit Court of Appeals; American Immigration Lawyers' Association; and the Northern New Jersey and Rockland County Chapters of the Society of Human Resource Management. David Nachman may be contacted by phone:(201) 236-9998 ext. 100, fax: (201) 236-9997 or email:

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.