An amusing YouTube video is currently going viral on the Internet. The video shows an individual singing the questions that typically appear on USCBP/USCIS/DOS forms and which are intended to determine whether you are legally inadmissible to the United States.

I feel the need to clarify that these questions do not actually appear on the Customs Declaration Form, as is suggested by some individuals. A sample image of the declaration form appears here; the questions are nowhere to be found on this form.

On the other hand, some or all of these inadmissibility questions appear on Form I-94Ws used by aliens entering the United States under the visa waiver program, Forms DS-156 and DS-160 used by DOS in nonimmigrant visa applications, Form DS-230 Part 1 used by DOS in immigrant visa applications, and on the Form I-485 adjustment of status application used by USCIS in permanent residence applications. As a result, these questions may be surprising to United States citizens, who complete the Customs Declaration Form each time they enter the United States but who will probably never see the above USCBP/USCIS/DOS forms.

The YouTube video appears here.

The American Bar Association (ABA) Section of International Law will be holding a Continuing Legal Education teleconference on United States and Canadian immigrant investor options. The title of the teleconference is “Dealing with the Investment Immigration Visa: Navigating the Differences in U.S. and Canadian Laws” and it will take place tomorrow (Wednesday, January 27, 2010) at 1:00pm-2:00pm ET.

Along with other panelists, Mr. Chang will provide an overview the U.S. EB-5 immigrant investor category, the Canadian federal immigrant investor category, the Quebec immigrant investor category, and other investor options available under Provincial Nominee Programs. The EB-5 program will also be compared to its Canadian counterparts.

The teleconference is open to ABA members (at a discounted price) and to the general public (at full price). For additional information, please refer to the following URL: http://www.abanet.org/cle/programs/t10iiv1.html

In a January 19, 2010 press release, United States Customs & Border Protection (USCBP) reminded U.S.-bound travelers from Visa Waiver Program (VWP) countries that they must register under the Electronic System for Travel Authorization (ESTA) in order to continue using the VWP. ESTA is an electronic travel authorization that all citizens of VWP countries must obtain prior to boarding a carrier to travel by air or sea to the United States under the VWP. The requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa.

Technically, ESTA has been mandatory for VWP travelers since January 12, 2010. According to USCBP, beginning January 20, 2010, it will initiate a 60-day transition to enforced ESTA compliance for air carriers. Its press release states that VWP travelers without an approved ESTA “may not be allowed to board a U.S.-bound plane.” This presumably means that during the transition period, travelers who do not have an approved ESTA may be giving a warning initially and then denied boarding on subsequent applications unless they obtain an ESTA during the transition period. However, it could also mean that they could be admitted or denied at the discretion of the inspecting officer.

ESTA applications may be submitted at any time prior to travel, and once approved, generally will be valid for up to two years or until the applicant’s passport expires, whichever comes first. Authorizations are valid for multiple entries into the U.S.

VWP travelers are required to log onto the ESTA Website and complete an online application. The web-based system prompts applicants to answer basic biographic and eligibility questions typically requested on a paper I-94W form; ESTA is expected to completely replace the paper I-94W in the coming months. A third party, such as a relative, a friend, or a travel agent, may submit an application on behalf of a VWP traveler.

On January 15, 2010, the Department of Homeland Security (“DHS”) issued a memorandum providing interim field guidance for the various forms of relief that United States Citizenship and Immigration Services (“USCIS”) has committed to undertake as a result of the January 12, 2010 Haiti earthquake. This guidance may be summarized as follows:

Change or Extend Nonimmigrant Status

USCIS will use its discretion to more readily approve applications for change or extension of nonimmigrant status filed by affected aliens. Haitian B-1/B-2 visa holders who are unable to return home may file an extension of status for an additional 6 months. Those aliens who are unable to pay fees may file a fee waiver request. In cases where an alien is no longer able to extend his or her current nonimmigrant status, favorable consideration should be given to requests to a change of status to B-1 or B-2.

Service Center directors have the authority to accept applications for an extension of stay or change of status submitted after the applicant’s period of admission has expired. Haitian nationals and residents in lawful, nonimmigrant status on January 12, 2010, will be excused for filing up to March 12, 2010. After March 12, 2010, eligibility for delayed filing will be determined on a case by case basis.

Reparole Affected Parolees

Haitian aliens already in the United States pursuant to a grant of parole by USCIS may file for reparole at the District Office having jurisdiction over the alien’s place of residence. Absent compelling adverse factors, the District Director should exercise his or her discretion favorably for reparole.

Extend Grants of Advance Parole

An automatic extension of advance parole is granted until March 12, 2010, to those aliens who are currently in Haiti if their advance parole authorization expires between January 12, 2010 and March 12, 2010.

Grant F-1 Students Off-Campus Employment Authorization Documents (“EADs”)

Nonimmigrant students from Haiti who may be unable to continue to cover the cost to engage in a full course of study may need an off-campus EAD. A Haitian national or resident who has been recommended by the Designated School Official will receive such an EAD.

Expedited Processing

USCIS will expedite processing of the following applications:

1. Requests for advance parole; and
2. Relative petitions for minor children of eligible lawful permanent residents (“LPRs”) and United States citizens (“USCs”) residing in affected areas.

Assist Persons Stranded Without Documents

When the Embassy in Port-au-Prince is open, the USCIS field office there will assist LPRs who have lost their documents. The field office in Santo Domingo should also continue to provide assistance to individuals evacuated to the Dominican Republic who may have lost their documents.

Issue EADs for Orders of Supervision

USCIS shall adjudicate, as promptly as possible, EADs relating to aliens who have been issued Orders of Supervision pursuant to stays of removal by U.S. Immigration and Customs Enforcement.

Abandonment and Requests for Evidence

USCIS will consider exercising discretion on a case-by-case basis not to deny for abandonment or failure to respond to a Request for Evidence, if the applicant/petitioner/beneficiary lives in the affected area or if the alien needed to obtain documentation from the affected area or otherwise demonstrates a direct connection between the disaster and the failure to pursue the application/petition.

Humanitarian Parole

Humanitarian parole may be used on a case-by-case basis to address compelling and urgent humanitarian needs. Many USC prospective adoptive parents are already in the process of adopting a child from Haiti. In these cases, USCIS will consider granting humanitarian parole to a child without a visa where it is presented with evidence of a final adoption decree issued by the Government of Haiti or a grant of custody to USC adoptive parents for the purposes of emigration and adoption in the United States.

The Department of Homeland Security (“DHS”) has announced temporary relief measures that will be made available to those individuals who are unable to return to their home country due to the destruction and humanitarian crisis in Haiti or are currently traveling in the United States. United States Citizenship and Immigration Services (“USCIS”) will also expedite the processing of certain immigration applications. Standard requirements for security checks will remain in place under expedited procedures. DHS will continue to work with other branches of the United States Government to closely monitor developments in Haiti to determine the need for additional action.

Temporary relief measures available to nationals of Haiti include favorable adjudication, where possible, of requests for change or extension of nonimmigrant status, acceptance of applications for change or extension of nonimmigrant status submitted after the alien’s authorized period of admission has expired, re-parole of aliens granted parole by USCIS, extension of certain grants of advance parole, expedited processing of advance parole requests, favorable and expedited adjudication, where possible, of requests for off-campus employment authorization due to severe economic hardship for F-1 students, expedited processing of immigrant petitions for children of U.S. citizens and lawful permanent residents (“LPRs”), issuance of employment authorization where appropriate and assistance to “LPRs” stranded overseas without documents.

For some time now, there has been a trend towards treating the practice of corporate immigration law as a commodity rather than a professional service. Faced with shrinking budgets, many HR departments now consider primarily the bottom line when deciding who will act on their behalf in corporate immigration matters.

If one assumes that legal services in the field of corporate immigration law are a homogeneous commodity, with all law firms offering identical services, it is logical to choose the service provider that offers the lowest price. However, in reality, the quality of legal services varies greatly from firm to firm.

At the high end of the range, a lawyer will personally prepare an individual immigration filing and will not delegate a substantial proportion of the work to a paralegal or legal assistant. At the low end of the range, a lawyer will supervise up to 12 paralegals/assistants (who perform virtually all of the work) and will do only a basic review of the filing before signing it.

Knowing that the quality of legal services varies so greatly, why do many HR departments continue to make decisions based primarily on cost? The reason is simple: in corporate immigration matters, the decision maker is separate and distinct from the person receiving the benefit of the lawyer’s services.

HR professionals do not retain corporate immigration lawyers on their own behalf; they retain them on behalf of their employees. While the priority of the individual employee may be to have the best legal representation, the priority of many HR departments is to stay within its budget even if the legal representation received is less than ideal. As long as the employee eventually obtains the immigration benefit sought, it does not matter if he or she encounters problems that could have been avoided with more comprehensive legal representation. Although this trend is likely continue, it should be discouraged.

The practice of law is considered a profession because it requires skill; corporate immigration law is no different. If the market demands that all corporate immigration law firms match the fees of these “visa factories,” they will have no choice but to adopt the same mass production business model and the quality of representation in this field of law will deteriorate.

In addition, immigration is a very important and potentially life-changing process for many employees. An employer who provides inadequate legal representation to its employees (especially where they are not given any choice in the matter) will encounter increased employee dissatisfaction, which will adversely affect employee retention (especially when the employee acquires lawful permanent residence and is no longer bound to the employer).

For the above reasons, HR departments should resist the urge to retain their corporate immigration lawyer primarily based on cost. Where this is not an option, the following alternatives may be considered:

1. Utilizing the services of a second law firm that can act in cases involving high-value employees; or
2. Offering the employee the ability to retain their own lawyer, provided that they are willing to pay the additional cost of such representation.

By providing higher quality representation in important cases or by giving employees the ability to retain a lawyer of their own choosing (at their own cost), HR departments can bolster employee satisfaction without a significant increase in their operating costs.

The Department of Homeland Security Appropriations Act of 2010 (the “Act”) was signed by the President on October 28, 2009. The Act extends the following programs until September 30, 2012:

1. E-Verify
2. The Immigrant Investor (EB-5) Pilot Program
3. The special immigrant visa category for non-minister religious workers
4. The date by which J-1 nonimmigrant exchange visitors must obtain that status in order to qualify for the “Conrad 30″ program.

Further details regarding these programs appears below.

E-Verify

E-Verify, an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA), allows participating employers to electronically verify the employment eligibility of their newly hired employees. More than 168,000 participating employers at nearly 640,000 worksites nationwide currently use the program. Since Oct. 1, 2009, more than 1.3 million employment verification queries have been run through the system and approximately 96.9 percent of all queries are now automatically confirmed without any need for employee action.

EB-5 Regional Center Pilot Program

Under the Immigrant Investor Pilot Program, USCIS will continue to receive, process, and adjudicate all Regional Center Proposals and Forms I-526, Immigrant Petitions by Alien Entrepreneur, and Form I-485, Applications to Register Permanent Residence or Adjust Status, affiliated with Regional Centers relying on “indirect” job creation analysis. Currently, there are more than 70 regional centers throughout the United States.

Special Immigrant Visa Category for Non-Minister Religious Workers

The special immigrant visa category for non-minister religious workers covers those within a religious vocation or occupation and also applies to accompanying or ‘following-to-join’ spouses and children of non-ministers. USCIS will continue to receive and process Form 1-360, Petition for Amerasian, Widow(er), or Special Immigrant and Form I-485, Application to Register Permanent Residence or Adjust Status, based on Form I-360 petitions.

Conrad 30 J-1 Waiver Program

USCIS will continue to adjudicate immigration benefits covered by the “Conrad 30” program. The “Conrad 30” program allows each state health department to submit a request directly to the Department of State to initiate the waiver process for a foreign medical graduate who obtained J-1 status to change or adjust to another status without the required two-year foreign residence. The law previously required the foreign medical graduate to have acquired J-1 status before September 30, 2009; the law now extends the program to cover J-1 admissions before Sept. 30, 2012.

On December 22, 2009, United States Citizenship and Immigration Services (USCIS) announced that it had received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2010. As a result, December 21, 2009, is the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010. The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption.

Properly filed cases are considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after December 21, 2009.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2010 H-1B cap. Therefore, USCIS will continue to process petitions filed to:

1. Extend the amount of time a current H-1B worker may remain in the United States;
2. Change the terms of employment for current H-1B workers;
3. Allow current H-1B workers to change employers; and
4. Allow current H-1B workers to work concurrently in a second H-1B position.

On October 30, 2009, President Obama announced the elimination of the HIV entry ban at the signing of the Ryan White HIV/AIDS Treatment Extension Act of 2009. The President stated that on November 2, 2009, his Administration would issue a final rule to repeal the ban.

On November 2, 2009, the Centers for Disease Control and Prevention, within the U.S. Department of Health and Human Services, amended its regulations to remove “Human Immunodeficiency Virus (HIV) infection” from the definition of communicable disease of public health significance and remove references to “HIV” from the scope of examinations for aliens. Prior to this final rule, aliens with HIV infection were considered to have a communicable disease of public health significance and were thus inadmissible to the United States per the Immigration and Nationality Act.

While HIV infection is a serious health condition, it is not a communicable disease that is a significant public health risk for introduction, transmission, and spread to the U.S. population through casual contact. As a result of this final rule, aliens will no longer be inadmissible into the United States based solely on the ground they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration.

The final rule is effective on January 4, 2010.

As of October 25, 2009, approximately 52,800 H-1B cap-subject petitions had been filed. United States Citizenship and Immigration Services (“USCIS”) has approved sufficient H1-B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H1-B petitions filed on behalf of an alien with an advanced degree will now count toward the general H1-B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.