Today, United States Customs & Border Protection (“USCBP”) announced that the first-year anniversary of the Western Hemisphere Travel Initiative (“WHTI”) at all land and sea ports of entry occurred on June 1, 2009. WHTI was intended to enhance border security and facilitate lawful cross-border travel between the U.S. and Canada and Mexico.

“WHTI is the first fully implemented 9/11 Commission border recommendation designed to enhance security while affording facilitation to legitimate border crossers through the use of technology,” said USCBP Commissioner Alan Bersin. “We have already seen a number of cases where new document requirements have led to significant positive results at increasing security at ports of entry.”‪

WHTI is the joint Department of State-Department of Homeland Security plan that implemented a key 9/11 Commission recommendation to establish document requirements for travelers entering the U.S. who were previously exempt, including citizens of the U.S., Canada and Bermuda. It requires U.S. and Canadian citizens, age 16 and older, to present a valid, acceptable travel document that denotes both identity and citizenship when entering the U.S. by land or sea.

According to USCBP, its preliminary analyses indicate that the implementation has had no negative impact on wait times at the land border ports of entry and the national compliance rate has been steady at 95 percent. USCBP also claims that WHTI has had a positive impact on specific apprehensions. False claims to U.S. citizenship apprehensions rose 25 percent on the southern border following WHTI implementation on June 1, 2009. The rate of fraudulent documents intercepted at the land border increased by 12 percent compared to the rate in 2008.

Under WHTI, radio frequency identification (“RFID”) technology and license plate readers were deployed, on-time and on-budget, to the top 39 high-volume land ports of entry covering approximately 95 percent of land border traffic. These facilitative technologies are playing an integral role in improving efficiencies.

RFID technology facilitates travel across the land border by allowing traveler information to be pre-positioned for the CBP officer as a vehicle approaches primary inspection. Processing travelers with RFID documents is 60 percent faster than processing documents that are not RFID-enabled.

More than five million WHTI-compliant, RFID-enabled documents have been issued. USCBP continues to strongly encourage travelers to obtain RFID-enabled travel document to expedite their entry and to help make the borders more efficient.

The WHTI RFID technology and license plate readers have also been installed at U.S. Border Patrol checkpoints and will soon be installed at CBP outbound operations sites.

As of May 28, 2010, United States Citizenship & Immigration Services (“USCIS”) has receipted 26,737 H-2B petitions, towards the 47,000 beneficiaries target for the second half of the fiscal year. This count includes 25,570 approved and 1,167 pending petitions. Beneficiaries target is the estimated number of petitions needed to reach the cap; it will always be higher than the actual cap.

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs. There is a statutory numerical limit, or “cap,” on the total number aliens who may be issued a visa or otherwise provided H-2B status (including through a change of status) during a fiscal year.

Currently, the H-2B cap set by Congress is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 – March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 – September 30). Any unused numbers from the first half of the fiscal year will be made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year. There is no “carry over” of unused H-2B numbers from one fiscal year to the next.

Generally, an H-2B worker who extends his/her stay in H-2B status will not be counted again against the H-2B cap. Similarly, the spouse and children of H-2B workers classified as H-4 nonimmigrants are not counted against this cap. Additionally petitions for the following types of workers are exempt the H-2B cap:

1. Fish roe processors, fish roe technicians and/or supervisors of fish roe processing
2. From November 28, 2009 until December 31, 2014, workers performing labor or services in the
   Commonwealth of Northern Mariana Islands (CNMI) and/or Guam.

Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap.

United States Citizenship and Immigration Services (“USCIS”) has updated its count of FY2011 cap-subject and advanced degree cap-exempt H-1B petitions receipted. As of May 14, 2010, approximately 19,000 H-1B cap-subject petitions were receipted. USCIS has also receipted 8,100 H-1B petitions for aliens with advanced degrees.

USCIS has also updated its count of FY2010 cap-subject H-2B petitions receipted. As of May 12, 2010, USCIS approved 65,498 H-2B petitions out of the 66,000 allocated per fiscal year. Currently, there are 784 petitions still pending.

On May 20, 2010, the Department of State (“DOS”) published an interim final rule in the Federal Register to increase nonimmigrant visa application processing fees, also known as the Machine-Readable Visa (“MRV”) fee, and Border Crossing Card (“BCC”) fees. The interim final rule also establishes a tiered structure with separate fees for different nonimmigrant visa categories. The new fees are scheduled to go into effect on June 4, 2010.

According to DOS website, it is increasing fees to ensure sufficient resources to cover the rising cost of processing nonimmigrant visas. The fee increase applies both to nonimmigrant visas placed in passports and to border crossing cards issued to certain applicants in Mexico.

According to DOS, the new, tiered fee structure was created to cover the higher unit costs for processing certain categories of nonimmigrant visas that are more complicated and require more in-depth consideration than most other categories of nonimmigrant visas. For a number of reasons, including new security enhancements, DOS believes that the $131.00USD MRV fee set on January 1, 2008 no longer covers the current, actual cost of processing nonimmigrant visas.

As of June 4, 2010, the following MRV fees will be applicable:

1. Applicants for all visas that are not petition-based, including B-1 tourist and B-1 business visitor visas and all student (F, M) and exchange visitor (J) visas, will pay a fee of $140.00USD.
2. Applicants for petition-based visas will pay an application fee of $150.00USD. These categories include:
   • H visa for temporary workers and trainees;
   • L visa for intracompany transferees;
   • O visa for aliens with extraordinary ability;
   • P visa for athletes, artists and entertainers;
   • Q visa for international cultural exchange visitors; and
   • R visa for religious occupations.
3. The application fee for K visas for fiancé(e)s of U.S. citizens (and presumably K-3 spouses of U.S. citizens) will be $350.00USD.
4. The fee for E visas for treaty-traders and treaty-investors will be $390.00USD.

On May 20, 2010, Department of Homeland Security (“DHS”) Secretary Janet Napolitano announced the elimination of the paper arrival/departure form (“Form I-94W”) for authorized travelers from nations participating in the Visa Waiver Program Program (“VWP”)—streamlining secure travel for millions of visitors to the United States every year by consolidating the collection of traveler information and enhancing security by automatically providing DHS with important passenger information prior to departure.

“The Visa Waiver Program facilitates secure and hassle-free travel for citizens of participating countries—making international travel safer and easier,” said Secretary Napolitano. “This step to eliminate the paper I-94W leverages the latest technology to further bolster security, increase convenience for visitors and better protect privacy.”

Following a successful seven-month pilot program conducted with the support of the Government of New Zealand on Air New Zealand flights from Auckland to Los Angeles International Airport, the use of paper I-94W forms will be eliminated for VWP travelers with an approved Electronic System for Travel Authorization (“ESTA”) arriving in the United States at all airports by the end of this summer. United States Customs & Border Protection (“CBP”) will activate automated processing for U.S. airports on a rolling basis over the next several months.

Under the Implementing Recommendations of the 9/11 Commission Act of 2007, applying for an ESTA became mandatory on January 12, 2009, for all nationals of VWP countries prior to boarding a carrier to travel by air or sea to the United States. This requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa, and allows DHS to determine whether a VWP traveler presents a threat long before the individual boards a U.S.-bound aircraft.

The elimination of the paper I-94W form enables travelers to provide basic biographical, travel and eligibility information automatically through ESTA prior to departure for the United States —reducing redundancy and enhancing the security of sensitive personal information, as CBP stores and protects all VWP data electronically on secure servers.

CBP recommends that travelers submit ESTA applications as soon as an applicant begins making travel plans. ESTA applications may be submitted at any time prior to travel, and once approved, will be valid for two years or until the applicant’s passport expires. To date, CBP has received more than 19 million ESTA applications from citizens of VWP countries—applications that will now automatically cover I-94W submission.

VWP—established as a pilot program in 1986 to help facilitate travel and made permanent in 2000—currently enables the nationals of 36 participating countries to travel to the United States for up to 90 days without obtaining a visa.

The U.S. Department of State has released its June 2010 Visa Bulletin. One significant change for this month is that it now includes a country-specific priority date for visa applicants chargeable to the Dominican Republic.

The Visa Bulletin shows backlogs for each permanent residence category that is subject to annual numerical limits. By examining the cut off dates shown on the Visa Bulletin, it is possible to estimate (roughly) the extent of the backlog for a particular category.

If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered “current”. Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be “oversubscribed” and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number.

According to the June 2010 Visa Bulletin, continued heavy applicant demand for family preference numbers has resulted in the oversubscription of the Dominican Republic chargeability for June, to hold issuances within the annual numerical limitation. The result has been the establishment of cut-off dates in the family second preference categories which are earlier than the Worldwide dates.

The June 2010 Visa Bulletin is available here.

U.S. Citizenship and Immigration Services (“USCIS”) announced that it has redesigned the Permanent Resident Card, commonly known as the “Green Card,” to incorporate several major new security features. The Green Card redesign is the latest advance in USCIS’s ongoing efforts to deter immigration fraud. State-of-the-art technology incorporated into the new card prevents counterfeiting, obstructs tampering, and facilitates quick and accurate authentication. Beginning today, USCIS will issue all Green Cards in the new, more secure format.

“Redesigning the Green Card is a major achievement for USCIS,” said Director Alejandro Mayorkas. “The new security technology makes a critical contribution to the integrity of the immigration system.”

The enhanced features will better serve law enforcement, employers, and immigrants, all of whom look to the Green Card as definitive proof of authorization to live and work in the United States. Among the benefits of the redesign are:

1. Secure optical media will store biometrics for rapid and reliable identification of the card holder.
2. Holographic images, laser engraved fingerprints, and high resolution micro-images will make the card nearly impossible to reproduce.
3. Tighter integration of the card design with personalized elements will make it difficult to alter the card if stolen.
4. Radio Frequency Identification (“RFID”) capability will allow United States Customs & Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data.
5. A preprinted return address will enable the easy return of a lost card to USCIS.

In keeping with the Permanent Resident Card’s nickname, it will now be colored green for easy recognition. USCIS will replace Green Cards already in circulation as individuals apply for renewal or replacement.

The official announcement from USCIS appears here.

United States Citizenship and Immigration Services (“USCIS”) has announced that, as of April 22, 2010, 16,025 H-1B petitions filed under the regular cap and 6739 H-1B petitions filed under the Master’s exemption cap have been received. As explained in our article on the H-1B category, the annual cap on H-1Bs is 65,000, with an additional 20,000 available to aliens with U.S. Master’s (or higher) degrees.

USCIS has also announced that, as of April 21, 2010, USCIS approved 66,000 H-2B petitions of the 66,000 allocated per fiscal year. Currently, there are 1,545 petitions still pending. The H-2B cap set by Congress is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 – March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 – September 30). Any unused numbers from the first half of the fiscal year are made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year. There is no “carry over” of unused H-2B numbers from one fiscal year to the next.

On April 29, 2010, the White House issued a statement by President Obama on the Senate’s Proposal for immigration reform. This press release is reproduced below:

“It is the federal government’s responsibility to enforce the law and secure our borders, as well as to set clear
rules and priorities for future immigration. The continued failure of the federal government to fix the broken
immigration system will leave the door open to a patchwork of actions at the state and local level that are
inconsistent and as we have seen recently, often misguided.

The proposal outlined today in the Senate is a very important step in the process of fixing our nation’s broken
immigration system. I am especially pleased to see that this detailed outline is consistent with the bipartisan
framework presented by Senators Chuck Schumer and Lindsey Graham last month, and is grounded in the
principles of responsibility and accountability.

What has become increasingly clear is that we can no longer wait to fix our broken immigration system, which
Democrats and Republicans alike agree doesn’t work. It’s unacceptable to have 11 million people in the United
States who are living here illegally and outside of the system. I have repeatedly said that there are some
essential components that must be in immigration legislation. It must call for stronger border security
measures, tougher penalties for employers who hire illegal immigrants and clearer rules for controlling future
immigration. And it must require those who are here illegally to get right with the law, pay penalties and taxes,
learn English, pass criminal background checks and admit responsibility before they are allowed to get in line
and eventually earn citizenship. The outline presented today includes many of these elements. The next critical
step is to iron out the details of a bill. We welcome that discussion, and my Administration will play an active role
in engaging partners on both sides of the aisle to work toward a bipartisan solution that is based on the
fundamental concept of accountability that the American people expect and deserve.”

The official press release is available here.

According to the Washington Post, President Obama stated late Wednesday that “there may not be an appetite” to overhaul the nation’s immigration laws this year, even though he believes there is a pressing need to do so. “It’s a matter of political will,” Obama said during a rare visit to the press section of his presidential plane. ” . . . This is a difficult issue. It generates a lot of emotions . . . I need some help on the Republican side.” Obama has called repeatedly for comprehensive immigration reform, saying he wants to tighten control of the nation’s borders but also chart a path to citizenship for millions of immigrants who are in this country illegally.

Sen. Majority Leader Harry M. Reid (D-Nev.) said last week that he wanted to push forward with legislation regardless of whether lawmakers can forge a bipartisan compromise. However, he later backed away from that pledge, and Obama told reporters on the plane that he is willing to wait in order to work with Republican senators. On Wednesday, the Associated Press reported that Reid and Democratic Senators Charles E. Schumer (N.Y.) and Robert Menendez (N.J.) are forging a proposal that would call for more border security measures before expanding immigration options.

In his remarks to reporters, Obama cited the difficult battle over healthcare, the current debate on financial regulatory reform, and an energy bill, as well as November’s mid-term Congressional elections, as reasons an immigration bill might have to wait. “We’ve gone through a tough year, and I’ve been working Congress pretty hard,” the president said. “So I know there may not be an appetite immediately to dive into another controversial issue.”

Obama applauded negotiations on immigration legislation between Schumer and Senator Lindsey Graham (R-S.C.). He also said he would like to see a working group of lawmakers from both sides of the aisle craft “serious legislation that solves the border problem and solves the wide range of issues that we face under immigration reform in a way that can garner the support of the American people.”

Obama condemned a tough new immigration law signed last week by Arizona Gov. Jan Brewer (R), which criminalizes illegal immigration by defining it as trespassing and allows local law enforcement agencies to question people they suspect of being undocumented. “That carries a great amount of risk that core values that we all care about are breached,” the president said. The White House and the Justice Department are weighing whether to sue Arizona in an effort to prevent the law from being implemented.

At the same time, Obama said he could understand the frustration that many Americans feel about seeing large numbers of people enter this country without permission, especially during hard economic times and in border states. “If you’ve got hundreds of thousands of people coming in, not playing by the rules, that’s a problem,” Obama said. “And the federal government has been abdicating on its responsibilities for a very long time on this issue.”

Despite concerns that Comprehensive Immigration Reform may not be enacted this year, pro-immigration advocates continue to urge supporters to continue pressuring on Congress for legislation. Despite several setbacks, they say that Comprehensive Immigration Reform is still possible this year.

The Washington Post article appears here.