On October 1, 2009, United States Citizenship and Immigration Services (“USCIS”) announced that it had published a revised Notice of Entry of Appearance as Attorney or Accredited Representative (“Form G-28″) and a new Notice of Entry of Appearance as Attorney in Matters Outside the Geographical Confines of the United States (“Form G-28I”). This is significant because it now makes a clear distinction between U.S.-licensed lawyers and foreign lawyers who are not licensed in the United States.

As explained in our article on How to Choose a U.S. Immigration Lawyer, this distinction already existed under the Department of Homeland Security (“DHS”) regulations. However, both USCIS and United States Customs & Border Protection (“USCBP”) did not strictly enforce the regulation in the past.

According to 8 CFR 292.1(a)(6), an attorney who is not licensed in the United States but who is licensed to practice law and is in good standing in in the country in which he or she resides may act as a representative only in matters outside the geographical confines of the United States (i.e. the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the U.S. Virgin Islands) and the official before whom he or she wishes to appear must allow the representation as a matter of discretion.

Since the issuance of the revised Form G-28/G-28I, it would appear that both USCBP and USCIS (both part of DHS) will now begin to restrict the ability of foreign lawyers to act as legal representatives in U.S. immigration matters. In light of this change, applicants should ensure that they retain only U.S.-licensed lawyers to represent them in U.S. immigration matters.

The Department of State has announced the opening of the registration period for the DV-2011 Diversity Visa lottery. Entries for the DV-2011 Diversity Visa lottery may be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Friday, October 2, 2009, and noon, Eastern Standard Time (EST) (GMT-5), Monday, November 30, 2009.

Applicants may access the electronic Diversity Visa entry form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon EST on November 30, 2009.

For DV-2011, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years: BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, POLAND, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

On 10/01/09, President Obama signed a continuing resolution to fund continued federal government operations through October 31, 2009. Included in the legislation were provisions to extend the E-Verify, Religious Worker, Conrad 30 and EB-5 programs. The continuing resolution was attached to the FY10 Legislative Branch Appropriations bill (H.R. 2918), and was passed by the House of Representatives on 9/25/09 and the Senate on 9/30/09.

As of July 24, 2009, approximately 44,900 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. 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.

The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

The H-1B Visa Reform Act of 2004 makes available 20,000 new H-1B visas for foreign workers with a Master’s or higher level degree from a U.S. academic institution. For each fiscal year, 20,000 beneficiaries of H-1B petitions on behalf of persons who hold such credentials are statutorily exempted from the cap.

During the 90′s, the former Immigration & Naturalization Service (“INS”) frequently recognized a limited form of dual intent for TN nonimmigrants. The basis for this recognition was a 1996 letter from Ms. Yvonne LaFleur, then Chief of the Business and Trade Branch at the INS’ Benefits Division, which suggested that a TN professional could still have bona fide nonimmigrant intent even if he or she was the beneficiary of an approved immigrant petition, where the TN intended to seek consular processing rather than adjustment of status.

Initially, many (but not all) ports of entry followed this guidance. However, more and more ports of entry began to disregard it in later years. Fortunately, a 2008 letter from United States Customs & Border Protection (“USCBP”) appears to have resurrected this principle once again.

In a letter dated April 21, 2008, from Mr. Paul M. Morris, Executive Director, Admissibility and Passenger Programs, USCBP opined that the mere filing or approval of a Form I-140 immigrant petition on behalf of a TN nonimmigrant would not automatically constitute immigrant intent. A TN nonimmigrant and his or her dependents may have an intention to immigrate or adjust status at a future time but, as long as his or her intention at the time of admission is to be in the United States for a temporary period, he or she could be admitted. However, once the TN files an application for an immigrant visa or adjustment of status, the TN would no longer be eligible for admission or an extension of stay as a TN nonimmigrant.

Although opinion letters are not legally binding on USCBP, the 2008 USCBP letter once again supports the recognition of dual intent for TN nonimmigrants. In fact, it goes further than the 1996 letter in permitting dual intent even in cases where the alien intents to adjust status within the United States. Click here for the full TN article.

The E-1 and E-2 categories are intended for use by individual entrepreneurs (and also corporations) who are ether engaged in substantial trade (E-1) or substantial investment (E-2) in the United States. Unlike most categories, which require a United States employer to petition on behalf of the foreign worker, E-1 and E-2 applicants may apply on their own for the purpose of operating their own businesses in the United States. Foreign corporations may also use the E-1 and E-2 categories to send their foreign workers to the United States. Click here for the full article.

When the REAL ID Act of 2005 was enacted, it established a new nonimmigrant visa category at INA §101(a)(15)(E)(iii); this new category is commonly referred to as the “E-3.” Despite the fact that this category appears at INA §101(a)(15)(E)(iii), it has very little in common with the E-1 (treaty trader) and E-2 (treaty investor) nonimmigrant categories. It more closely resembles the H-1B nonimmigrant category for specialty occupations. Click here for the full article.

On June 1, 2009, the Western Hemisphere Travel Initiative (“WHTI”) became effective for land and sea travel; it has applied to air travel since January 23, 2007. WHTI requires U.S. and Canadian travelers to present a passport or other document that denotes identity and citizenship when entering the U.S.

As of June 1, 2009, Canadian citizens traveling to the United States by land or by sea will be will be required to present one of the travel documents listed below:

1) A Canadian Passport – This is an internationally recognized travel document that verifies a person’s identity and citizenship. It is accepted for travel by air, land and sea.

2) Enhanced Driver’s Licence (“EDL”)/Enhanced Identification Card (“EIC”) – Canadian provinces have begun issuing these documents that denote identity and citizenship that are WHTI-compliant for cross-border travel into the U.S. by land or sea but not by air.

3) Trusted Traveler Programs – NEXUS, FAST/Expres and SENTRI enrollment cards can speed your entry into the U.S. and are issued only to pre-approved travelers. FAST/Expres cards are valid for use at land or sea ports of entry; the NEXUS card can be used at land or sea ports of entry and at kiosks at participating airports.

Some, but not all, Canadian Provinces have already begun issuing EDLs to facilitate cross-border travel:

1) The Province of Quebec began taking applications from Quebec drivers for EDLs on March 16, 2009; click here for further information. (For information in French, click here.)

2) The Province of British Columbia began taking applications from British Columbia drivers for for EDLs on April 6, 2009; click here for further information.

3) The Province of Ontario began taking applications from Ontario drivers for EDLs on May 19, 2009; click here for further information (For information in French, click here).

4) The Province of Manitoba was scheduled to begin issuing EICs to Manitoba drivers but the Manitoba Public Insurance website still indicates that the program is awaiting final approval. Click here for further information on the Manitoba EIC program. (For information in French, click here.)

In the United States, the State of Michigan, the State of New York, the State of Vermont, and the State of Washington are also currently issuing EDLs to their residents.