ObserverMarch 2004

Albany

Amsterdam

Atlanta

Boca Raton

Boston

Chicago

Dallas

Delaware

Denver

Fort Lauderdale

Los Angeles

Miami

New Jersey

New York

Orange County

Orlando

Philadelphia

Phoenix

Silicon Valley

Tallahassee

Tysons Corner

Washington DC

West Palm Beach

Zuumlrich

wwwgtlawcominfogtlawcom

GT BusinessImmigrationNewsletter

1 Immigration Law Seminar Series Planned 2

2 H-1B Cap Reached - What Now 2

3 US - VISIT 3

4 Global Visas 5

5 H-2B Nonimmigrant Visas Reach Cap 5

6 IRS SSN amp ITIN ndash Oh My 6

7 Applying for a Visa Security Checks Likely 7

8 Congressional Update 9

9 Global Immigration Seminars 10

10 Whatrsquos New at GT 10

11 Resources 11

This newsletter is sent only to subscribers or to friends of Greenberg Traurig If you no longer wish to receive The GTBusiness Immigration Observer follow the unsubscribe instructions at the bottom of this newsletter If you are havingproblems contact millernagtlawcom

In this issue Page

Page 2March 2004

ObserverImmigration Law Seminar Series Planned

H-1B Cap Reached - What Now

Beginning this month GT will host a monthly luncheonseminar series to discuss hot topics in immigration Seniorhuman resource managers executives general counsel andmanagers across industries are directly impacted byimmigration and tax regulations the government agenciesadministering the regulations and by employmentenforcement audits Join us for these seminars and learn how

to strategize and improve your organizationrsquos understanding ofglobal transfers and employment of foreign nationals Our firstseminar will feature I-9 Compliance and Audit issues and willbe held on March 31 2004 at our offices in Washington DCPlease contact Camilla Velasquez conference organizer atvelasquezcgtlawcom for more information You can registeron-line at httpwwwgtlawcompubeventsindexhtm

The US Citizenship and Immigration Services (USCIS)announced after business hours on February 17 2004 that itreceived enough H-1B petitions to meet this yearrsquos cap of 65000new H-1B workers USCIS will not accept any petitions receivedfor new employment for the 2004 fiscal year after the close ofbusiness on February 17 2004 The USCIS implemented thefollowing procedures for the remainder of FY 2004

bull USCIS processed all petitions filed for first-timeemployment received by close of business February 17

2004

bull USCIS will return all petitions and filing fees for first-timeemployment subject to the annual cap received afterFebruary 17 2004

bull Petitioners may re-submit their petitions when H-1B visasbecome available for FY 2005 Cases can be submittedsix months in advance of the start date thus cases withstart dates of October 1 2004 can be filed beginning April1 2004

The restrictions above apply only to petitions for individualsrequesting H-1B status for the first time The following types ofpetitions do not count against the cap and USCIS will continueaccepting and adjudicating these petitions

bull Petitions for changes in employment or for concurrentemployment for current H-1B workers unless theworker is changing from an employer who is exempt (ieeducational institutions nonprofit research institutionsgovernmental research organizations) to one who is not

exempt Petitions for an extension or amendment of H-1B status

bull Petitions for new employment at an ldquoexemptrdquoorganization ie institutions of higher education orrelated or affiliated nonprofit entities nonprofit researchorganizations and governmental research organiza-tions

bull Petitions for H-1B workers under the Singapore andChile Free Trade Agreements

To date the USCIS has not released information or guidance onthe many other concerns raised by the cap One of the issuesmany foreign nationals will be facing is the impact of the capon the status of individuals who are in the US as students in F-1 status completing their optional practical training (OPT) Formany F-1 students whose OPT employment authorization willbe ending between now and October 1 2004 there will be agap in employment authorization However it is not yet clearwhether an F-1 individualrsquos status in the US will be protectedbetween the time OPT ends and H-1B status takes effectUSCIS has not indicated whether provisions will be made tobridge this gap in status which may negatively impacteligibility for changes of status travel and obtainingpermanent resident status in the future In previous yearswhen reaching the cap was an issue provisions were made tobridge this gap in status

Page 3March 2004

ObserverUS - VISITPost September 11 a series of changes have occurred at ournations border leading to tightened security theimplementation of new technology longer lines and stricterprocedures US-VISIT is the latest innovation in an effort toprotect our borders

New entry-exit procedures for nonimmigrants requiring avisa to enter the US

Effective January 5 2004 all nonimmigrant visa holders who arenot subject to the National Security Entry Exit RegistrationSystem (ldquoNSEERS special registrationrdquo) and who are entering theUS are subject to United States Visitor and Immigrant StatusIndicator Technology (ldquoUS-VISITrdquo) US citizens and lawfulpermanent residents are exempted from US-VISIT as are visitorscoming to the US pursuant to the Visa Waiver Program

US-VISIT is currently implemented in designated ports ofentry and ports of exit

US-VISIT is being implemented in most but not all ports of entryand ports of exit Currently US-VISIT is not yet implemented atland ports of entry For a listing of the ports of entry and portsof exit subject to US-VISIT please visit wwwdhsgovus-visit

What is US-VISIT

US-VISIT is a new US entry-exit system with enhanced securityto be used at designated ports of entry to and ports of exit fromthe US The purpose of US-VISIT is to improve overall bordermanagement through the collection of arrival and departureinformation on foreign visitors to enhance the security of theUS and its individuals

US-VISIT is an additional form of inspection and does notsupersede any existing operating procedures of inspectioncurrently in place

What procedure does US-VISIT entail

As part of the US-VISIT process the Custom and BorderProtection (ldquoCBPrdquo) officer will obtain biometrics from applicablenonimmigrant visa holders to verify their identities and toauthenticate their travel documents through digitalfingerprinting of the visa holdersrsquo left and right index fingersand through digital photographing

How will the information obtained during US-VISIT be used

The biometrics and other information will be used to determineif the nonimmigrant visa holder should be admitted to the USSuch information is checked against law enforcement andintelligence data to determine whether a nonimmigrant visaholder would pose a threat to national security public safety oris otherwise inadmissible The biometric information will beshared with other governmental agencies

What happens if a nonimmigrant who is subject to US-VISITis unable andor unwilling to comply with its entry-exitprocedures

A nonimmigrant visa holder subject to US-VISIT who fails tocomply with the US-VISIT entry procedure where required maybe denied admission into the US based solely on this failure

A nonimmigrant subject to US-VISIT who exits the US at a portwhere US-VISIT is being implemented must ldquocheck outrdquo at portwork stations to provide requested information and biometricsfor purposes which include but are not limited to verificationof information already stored within the systems of US-VISITverification of hisher identity and verification that thisindividual has not overstayed hisher permitted period of stayin the US A nonimmigrant who fails to comply with exitprocedure where required may adversely affect hisher futureadmission to or visa issuance at a consulate for later entry intothe US

What happens if a nonimmigrant subject to US-VISIT madea timely departure from a port of entry where US-VISIT isnot in place

A nonimmigrant visa holder (except those subject to NSEERS)who has entered the US legally through US-VISIT may departthe US through any port of exit Such a nonimmigrant who isnot subject to NSEERS is not required to depart from the sameport of entry or from a port that has US-VISIT procedures in place

How does the DHS record a nonimmigrantrsquos timelydeparture from a port of exit where US-VISIT is not in place

Such a nonimmigrant should retain proof of evidence of timelydeparture from the US For instance the individual could retainairline ticket boarding passes for flights leaving the US and

Page 4March 2004

ObserverUS VISIT (contrsquod)entry stamp(s) into a foreign country An individual who has avalid I-94 Departure Record (ldquoI-94rdquo) when departing the USmust surrender this I-94 to the airline which then sends it to theappropriate division of the US Department of HomelandSecurity (ldquoDHSrdquo) to ensure that such an individualrsquos departurecan be accurately recorded into the DHS system

What happens if a nonimmigrant subject to US-VISIT isdisabled to the degree where biometric information cannotbe obtained

Where the identity of such an individual with disability is not anissue the CBP officer may exercise hisher discretion to waivethe fingerprint and other biometric requirements In suchinstances the CBP officer may accept another biometricidentifier or information that will reasonably identify the person

What happens if a nonimmigrant who is subject to US-VISIThas privacy concerns for the biometric procedures

Nonimmigrant visa holders subject to US-VISIT who have privacyconcerns with its procedures are to be referred to secondaryprocessing At this moment there are no guidelines to thegeneral public with regard to such secondary processing andwhat this procedure will entail

Such an individual may be denied admission to the USespecially if his or her identity is questionable

The following classifications of individuals are exemptedfrom the US-VISIT

1 US citizens

2 US lawful permanent residents

3 Nonimmigrants who do not require a visa to enter theUS (eg Canadians Visa Waiver Program visitors)

4 Children under 14 years of age

5 Persons over the age of 79

6 Aliens who hold a valid visa under

a) A-1 A-2 C-3 (except for attendants servants orpersonal employees of accredited officials)

b) G-1 G-2 G-3 and G-4

c) NATO-5 or NATO-6

7 Classes of aliens designated by the Secretary ofHomeland Security and the Secretary of State in thefuture to be exempted and

8 In addition the Secretary of Homeland Security theSecretary of State and the Director of the CentralIntelligence Agency (CIA) may determine that anindividual is exempt from US-VISIT

Regardless of US-VISIT DHS reserves the right to requirefingerprints or other identifying information from any individualtraveling to and from the US whenever it has reason to doubthisher identity

Nonimmigrants whose biometric information has beencollected during the US-VISIT may examine or makecorrections to an inaccurate record of information

Nonimmigrant visa holders whose information has beencollected by US-VISIT and who have concerns about theirpersonal information may to the extent permitted by lawexamine their information andor request correction ofinaccuracies by contacting

The Privacy CoordinatorUS-VISIT Program

Border and Transportation SecurityUS Department of Homeland Security

Washington DC 20528

This newsletter article is prepared based on currently availableinformation and is intended to assist our clients and thegeneral public to make informed decisions regarding theirtravel plans

For further information or updates on the US-VISIT programand a list of ports of entry and ports of exit currently subject toUS-VISIT please visit wwwdhsgovus-visit You are welcometo contact imminfogtlawcom for further information

Page 5March 2004

ObserverGlobal VisasSpotlight on changes in the UK (by contributing writerGavin Jones)

Over the past 12 months there have been a number ofdevelopments in the way the UK government has addressedforeign workers The trend appears to be towards thegovernment addressing the fact that it does not know howmany overseas workers are in the UK and then installing acontrolled immigration program On top of this as with mostother areas of government these programs and policies are tobe funded by the users The changes introduced last year canbe summarized as follows

All Home Office applications now require a fee The onlyexception is where as a matter of EU law fees cannot be charged(in which case the Home Office will not deal with an applicationquickly) or where as a matter of policy the government hasdecided that it would be unfair for certain organizations to payeg charities schools etc

All foreign nationals coming to the UK with a work permit formore than six months now must have entry clearance (a visa)Certain nationalities ndash visa nationals ndash will require a visairrespective of the length of work permit granted thegovernment is introducing new machine readable codes forpassport endorsements there is now a specified form to advisethe government when a work permit holder leaves theiremployment the criteria under the Highly Skilled Migrantprogram were lowered and a lower threshold was introducedfor those under 28 the restrictions on type of work and hours ofwork for commonwealth citizens in the UK under the workingholidaymaker concession were also removed

In 2004 it is expected that the following changes will beintroduced

1 Increased fees for applications The government isproposing that in-country work permit applicationattract two fees One for processing the work permitapplication (current estimate is pound155 - pound180) the secondfor passport endorsement (pound95 - pound125) It has beensuggested that this second fee can be passed on to theemployee

2 A revision of section 8 of the Asylum and ImmigrationAct The documents providing the statutory defenseto a charge of illegal employment is to be updatedincreasing the burden on employers

Spotlight on the Netherlands

On March 8th the United States and The Netherlands will sign aprotocol to the 1992 US-NL tax treaty for the avoidance ofdouble taxation The protocol provides under certainconditions for a complete exemption of withholding tax ondividend distributions from a US resident company to a Dutchresident company and vice versa Until that date suchdividend distributions were subject to a 5 withholding taxFurthermore distributions by a US branch from Dutchmultinationals will under certain conditions no longer besubject to the current 5 branch profit tax

The protocol will in principle enter into force on January 12005 However the withholding tax on dividend distributionswill no longer be due after a period of two months has lapsedsince the formal approval procedure has been finalized in bothcountries

The Netherlands will strongly improve its position as ldquothegateway to Europerdquo for US outbound investmentsFurthermore US inbound investments from Europe throughthe Netherlands will benefit from this amendment

H-2B Nonimmigrant Visas Reach CapThe American Immigration Lawyers Association has reportedthat officials within USCIS have indicated that the 66000 H-2Bcap has been exhausted

The H-2B nonimmigrant program permits employers to hireforeign workers to come to the United States and performtemporary nonagricultural work which may be one-timeseasonal peak load or intermittent There is a 66000 per year

limit on the number of foreign workers who may receive H-2Bstatus during each USCIS fiscal year (October throughSeptember) Qualifying criteria for this visa category includesthe job and the employerrsquos need must be one time seasonalpeak load or intermittent the job must be for less than oneyear and there must be no qualified and willing US workersavailable for the job

Page 6March 2004

ObserverIRS SSN amp ITIN ndash Oh MyIn an effort to increase security and to properly identifyindividuals as authorized to reside and work in the US amongall of the other changes enhancements and additions to theissuance of visas and to port of entry procedures there has alsobeen a change in the way the Social Security Administrationprocesses and issues Social Security Numbers (SSN) What mayhave once been available to most people legally and physicallypresent in the US with minimal documentation is now anelusive and much coveted item that may require giving up yoursoul to the Social Security Administration (SSA) in exchange Alittle dramatic perhaps but talking to the dependents of foreignnationals who are in the US in valid status not even their soulswill get them the much coveted SSN

Those who are in the US in valid status but with no workauthorization are basically out of luck SSA policy is that theydonrsquot qualify for an SSN so one will not be issued except for thevery limited and elusive exception of ldquovalid nonwork reasonrdquo SSAproposals and current application of their standards restrict thisto instances where the applicant needs the SSN to

1 Satisfy federal statute or regulation requiring theforeign national to have an SSN to receivefederally funded benefit such as TANF or SSIBenefits to which the foreign national hasestablished entitlement

2 Satisfy state or local law requiring SSN to receivegeneral public assistance benefits to which thealien has established entitlement

In the past SSA operational instructions allowed the issuanceof an SSN if a local statute or regulation required the SSN Thisoften included state statutes requiring an SSN to issue driverrsquoslicenses or for motor vehicle registration This is no longer thecase making it very difficult for dependents to obtain driverrsquoslicenses among other things

In addition to limiting the pool of qualified applicants the SSAhas also added verification procedures prior to issuing an SSNIn light of these new verification methods for foreign nationalswho have recently obtained employment authorization it maytake up to two months or longer for such individuals to obtainan SSN This extensive delay in processing is caused by SSArsquoscross-reference and verification with the US Citizenship andImmigration Services (USCIS) formerly INS Due to the factthat the issuance of the SSN is dependent on USCISrsquoconfirmation of employment authorization whether or not

USCIS has updated their database and how quickly theyrespond to the SSA inquiry often leads to these long delays

It is important to note that the delay should not prevent acompany from placing the foreign national on payroll TheUSCIS and not the SSA verifies and authorizes employment inthe US The foreign nationalrsquos I-94 card depicting the statusand validity dates is the document verifying the individualrsquosstatus in the US and corresponding employmentauthorization Therefore the foreign national can beginemployment upon receipt of a valid I-94 card irrespective ofthe status of their application for an SSN

According to Internal Revenue Service (IRS) regulations if anemployee does not have a social security number to initiateemployment the employee has the option of providingdocumentation verifying that the SSN has been requestedfrom the SSA When receipt acknowledgement is provided theemployer can then maintain the employee information in theirrecords with the SSA receipt until the SSN is issued If the SSN isnot available at the time the company is filing its return andreporting wages paid to such employee pursuant toregulations the receipt information and documentation canbe submitted in lieu of the SSN

As a practical matter an employer may want to discuss theavailable options with its payroll administrator Generallythere are two options available (1) provide the employee witha ldquodummyrdquo number and enter the employee in the payrollsystem while applying the appropriate withholdings or (2)estimate withholding amounts and pay the employeersquos netsalary Once the SSN is obtained the withholding can then beapplied to the employeersquos account and the company will thenneed to amend its returns

For those who have tried to obtain an alternative identifier tothe SSN and applied for an Individual Taxpayer IdentificationNumber (ITIN) with the IRS that option is also disappearingThe IRS issues ITINs only to individuals who are required tohave a US taxpayer identification number but who do nothave and are not eligible to obtain an SSN from the SSA ITINsare issued regardless of immigration status because bothresident and nonresident aliens may have US tax return andpayment responsibilities under the Internal Revenue CodeIndividuals must have a filing requirement and file a validfederal income tax return to receive an ITIN unless they meetan exception (just as limited and elusive as the SSAexceptions)

Page 7March 2004

ObserverIRS SSN amp ITIN (contrsquod)Concerns over restrictions to obtain an SSN are fundamentalMany of our record keeping systems have been developedwith the assumption that an SSN will be available as theprimary identifier As the SSA continues to revise itsregulations in an effort to reduce fraud and misuse of socialsecurity cards and numbers it is becoming more and moredifficult for foreign nationals temporarily residing in the US tofunction and lead ldquonormalrdquo lives What was once a simple taskof obtaining a driverrsquos license or adding a spouse to lifeinsurance or health insurance plans is slowly becoming more

difficult than obtaining authorization to enter the US withdependents Hopefully our record-keeping systems inindustries affecting the day-to-day lives of individuals livingand working in the US will be able to adjust quickly enough toallow for efficient and smooth transitions to theimplementation of a new ldquoidentifierrdquo that is not linked to thenow infamous SSN

Applying for a Visa Security Checks LikelyAlong with the additional security measures being taken at ourborders and with most federal agencies involved in some wayor another with the granting of benefits to foreign nationals USconsulates abroad have also increased their security measureswhen processing nonimmigrant visa applications (H L O P etc)So if you are planning on traveling abroad and applying for avisa be ready for the possibility of spending several weekssometimes even several months waiting for your visa to beissued While this may not be the case for a majority of theapplications being filed being ldquostuckrdquo abroad is still a definitepossibility that foreign nationals should think about beforeleaving the country without a valid visa that will allow them tore-enter the US

These additional measures that some individuals are subjectedto and that are leading to unexpected delays involve threekinds of security checks affecting nonimmigrant visaprocessing If the application is flagged as a possible securityconcern when a consulate receives a visa application a requestis sent to the Department of State (DOS) for securityclearances

The first possible check is the CONDOR clearance It is difficultto anticipate whether or not an individual will be subject to thissecurity clearance since the criteria is classified However someof the factors that may result in a name being cross referencedthrough CONDOR include

bull Information disclosed on the visa application Form DS-157 Responses to questions regarding travel topredominantly Muslim countries in the last 10 yearsprior employment military service for certain nationalsand specialized skills or training

bull Country of Birth Citizenship or Residence

bull Individuals born in one of the seven countries currentlydesignated as state sponsors of terrorism Cuba IranIraq Libya North Korea Sudan or Syria

bull Individuals born in one of the ldquoList of 26rdquo countries whichthe USCIS has not publicized but includes Arab andMuslim countries including Afghanistan AlgeriaBahrain Eritrea Lebanon Morocco North Korea OmanQatar Somalia Tunisia the United Arab EmiratesYemen Pakistan Saudi Arabia Bangladesh EgyptIndonesia Jordan and Kuwait among others

DOS reports indicate that approximately 80 of CONDORclearances are completed within 30 days If a CONDOR checkhas been pending for over 90 days inquiries to the DOS arerecommended

The second possible check is the MANTIS clearance This is aldquosensitive technologyrdquo alert based on whether an applicant isinvolved in any of the 15 categories found on the Critical FieldsList (CFL) of DOSrsquo Technology Alert List (TAL) The TAL includesan expanded list of technologies with potential ldquodual-userdquoapplications Some of these technologies appear benign butare deemed to have potential military applications

The list is very comprehensive and includes almost everypossible associated technology or skill involving chemistrybiochemistry immunology chemical engineering civilengineering and pharmacology to name a few Having such abroad all-inclusive list means that most research scientistsphysicians academics and engineers involved in any of these

Page 8March 2004

ObserverApplying for a Visa (contrsquod)fields could be subject to the MANTIS clearance So it is verypossible to run across a consular officer who will decide to erron the side of caution and obtain a MANTIS clearance prior toissuing a visa Based on current DOS guidelines generally aMANTIS clearance is not warranted if the technology falls withinthe public domain where it is widely available to the public or ifit involves information that would generally be taught in anacademic course In addition recently there have been reportsof a substantial increase in the number of MANTIS ldquohitsrdquoparticularly for nationals from Russia China and Hong Kong

DOS reports indicate that approximately 80 of MANTISclearances are completed within 30 days If a MANTIS clearancehas been pending for over 90 days inquiries to the DOS arerecommended

The third possible check involves then NCIC Criminal clearanceUnfortunately for those with common names (GonzalezMohammad Smith etc) false hits are occurring with increasedregularity An NCIC clearance can take four to six weeks toprocess Approximately seven million names have beendumped into the system and about half of them are Latinoresulting in a large number of false hits and delays for personswith common Latino names If you have a common name ThirdCountry National processing in Mexico may be advisable at poststhat have implemented a pilot fingerprint program This pilotprogram allows posts to process clearances on ldquofalserdquo hits thesame day and clearances for positive hits in as little as two days

Even if you have maintained a spotless immigration record andhave never had more than a traffic violation false hits are thebiggest headache for unsuspecting visa applicants Individualswith common Muslim or Latino names are almost guaranteedhits in CONDOR or NCIC

For some an alternative may be available It appears that somethird country national applicants from the ldquolist of 26rdquo may be ableto apply for their visas at certain Canadian consulates Howeverin some cases the applicant must be prepared to wait for thefinal decision on their application in Canada or outside ofCanada

If you are planning on applying for your visa in Canada some ofthe things you should be aware of include

bull A proper Canadian visa to enter and remain in Canadaor re-enter Canada is required

bull In some situations if you are applying for a visa in thesame category as previously issued consider applying60 days prior to the expiration of your valid multiple-entry visa When applying for the new visaspecifically request from the Consular Officer NOTto cancel your existing valid visa so that you may usethe visa to re-enter the US while the security check ispending

bull Some applicants have been issued NIVs on the sameday while others had to wait approximately one totwo weeks

As for visa revalidation the DOS now only accepts ldquoclearlyapprovablerdquo cases Due to the security checks being conductedby the Department of State (DOS) the Revalidation Unit at theDOS Visa Office has been rejecting applications for visarevalidation The Revalidation Unit has advised that the DS-157form responses sometimes trigger a Visa CONDOR check Whenthe CONDOR is triggered the Revalidation Unit will not issuethe visa and the application is returned If the application isreturned the foreign national must apply for the visa outside ofthe US The individual will be subject to the CONDOR check atthat time

Unfortunately for the time being for a foreign nationalresiding in the US on a temporary basis traveling abroad for abusiness meeting or to see family requires a little morepreparation and consideration to ensure that all possible risksare addressed and considered As various agencies andgovernments continue to share information and expand theirdatabase of names and security concerns to enhance ournationrsquos security we hope that new and developingtechnology will be used as well to reduce the long wait and thedread of being ldquostuckrdquo outside while an identity is verified andreverified before rejoining employers and families left behindin the US

Page 9March 2004

ObserverCongressional UpdateThe Senate Committee on the Judiciary Subcommittee onImmigration Border Security and Citizenship held their hearingon ldquoEvaluating a Temporary Guest Worker Proposalrdquo on ThursdayFebruary 12 2003 Senator Saxby Chambliss (R-GA) presided

The following testified

bull Sen John McCain (R-AZ)

bull Sen John Cornyn (R-TX)

bull Sen Chuck Hagel (R-NE)

bull Sen Larry Craig (R-ID)

bull The Honorable Asa Hutchinson Under SecretaryBorder and Transportation Security

bull The Honorable Eduardo Aguirre Director Citizenshipand Immigration Services

bull The Honorable Steven J Law Deputy Secretary of theDOL

bull Charles Cervantes Director of Legal Affairs amp PrivacyUS-Mexico Chamber of Commerce

bull Richard R Birkman President Texas Roofing Company

bull Dr Vernon Briggs Professor of Industrial and LaborRelations-Cornell University

bull Demetrios Papademetriou Co-Director MigrationPolicy Institute

Immigration Subcommittee Looks at Presidentrsquos Reforms

Senators Bush administration officials migration experts andother stakeholders applauded the administrationrsquos proposal forimmigration reform at a hearing before the Senate JudiciaryrsquosImmigration Subcommittee

Several Senators took the unusual step of speaking before thepanel regarding the need for reform The Senators who includedSen John McCain Sen Hagel and Sen Craig focused on theneed to recognize and correct the problem of an ever-increasingflow of illegal immigration US Department of HomelandSecurity (DHS)and US Department of Labor (DOL) officialsoutlined at least some details of the Presidentrsquos plan to overhaulthe nationrsquos immigration laws saying that the proposed guestworker program would grant legal status to illegal immigrantswho were living in the United States on January 7 2004 Directorof Citizenship and Immigration Services Eduardo Aguirre statedthat under the Presidentrsquos plan legal status would also begranted to the families of immigrants participating in the

program The plan outlined would also include travel and theability of such workers to recapture funds through individualsavings accounts or social security repatriation both toencourage participation and eventual return to the homecountry

Guest workers who would be matched up with willingemployers who have proven in advance the unavailability of USworkers for jobs for which the temporary workers are soughtwould be granted temporary work permits for an initial periodof three years The Presidentrsquos proposal would permit renewalsof that status

The Presidentrsquos plan also calls for a ldquoreasonable increaserdquo inimmigrant visas but does not tie the increase to this programIn fact many of the governmentrsquos witnesses went out of theirway to demonstrate that the Bush plan was not tied to anyamnesty for such workers to make clear that a future programwould not allow those who break the law to ldquoget aheadrdquo of thosewaiting in the long line for immigrant visas and green cards

Undersecretary for Border and Transportation Security AsaHutchinson focused on the need for greater worksiteenforcement to accompany the grant of legal status as a neededincentive against future flows of illegal immigration and toencourage workers to avail themselves of the legal buttemporary status Several witnesses tied the imminent need forreform to current perceived and documented instances ofimmigrant smuggling and document fraud Senator Chamblissin his opening statement noted that employers need to sharethe burden in enforcement through employer sanctions afterthe current burdensome system is corrected

The final panel of witnesses included immigration experts as wellas representatives from the business community Mr Birkmanhead of a family-owned roofing company represented theEssential Worker Immigration Coalition He relayed thefrustration his company feels when trying to recruit workers inthe US He also described the worker shortages in the roofingindustry both current and long-term

Enforcement of current law was in fact a strong focus of manywitnesses and members of the Subcommittee Senator Jon Kyl(RmdashAZ) emphasized that enforcement needed to be broughtto the forefront of current policy implementation before anyreform of the system could be addressed Senator Jeff Sessions(R-AL) also noted that respect for the law was an absolute

Page 10March 2004

ObserverCongressional Update (contrsquod)predicate for future reform including any plan along the line ofthe Presidentrsquos proposal stating that the subcommittee andCongress needed to ldquotake our time in thinking about itrdquo and notacting in the absence of meaningful enforcement Senator Craigstated that more enforcement was not the answer and

underscored the fact that the employer sanctions system isbroken

We at GT are looking forward to providing continuing coverageon this very important issue

Immigration SeminarsGreenberg Traurig continues its tradition of providingcomplimentary presentations to companies on outboundimmigration issues as well as discussions on money saving taxstrategies for employees as well as employers GT providesinformation guidance and assistance to our clients on visa

matters relating to the international relocation of personnel toand between countries outside of the United States Pleasecontact Dawn Lurie at luriedgtlawcom for furtherinformation

Whatrsquos New at GTGT Business Immigration Of Counsel quoted in Benefitnewscomarticle addressing issues raised by the Presidentrsquos proposals forimmigration reform to include provisions for essential workersh t t p w w w b e n e f i t n e w s c o m d e t a i l c f m i d = 5 5 9 9ampterms=|dawn||lurie|

Greenberg Traurig Grows in California

Greenberg Traurig opens two new offices in Silicon Valley andOrange County to join our previously established LA office Forthe press release go to httpwwwgtlawcompubpr2004california04ahtm

Page 6March 2004

ObserverIRS SSN amp ITIN ndash Oh MyIn an effort to increase security and to properly identifyindividuals as authorized to reside and work in the US amongall of the other changes enhancements and additions to theissuance of visas and to port of entry procedures there has alsobeen a change in the way the Social Security Administrationprocesses and issues Social Security Numbers (SSN) What mayhave once been available to most people legally and physicallypresent in the US with minimal documentation is now anelusive and much coveted item that may require giving up yoursoul to the Social Security Administration (SSA) in exchange Alittle dramatic perhaps but talking to the dependents of foreignnationals who are in the US in valid status not even their soulswill get them the much coveted SSN

Those who are in the US in valid status but with no workauthorization are basically out of luck SSA policy is that theydonrsquot qualify for an SSN so one will not be issued except for thevery limited and elusive exception of ldquovalid nonwork reasonrdquo SSAproposals and current application of their standards restrict thisto instances where the applicant needs the SSN to

1 Satisfy federal statute or regulation requiring theforeign national to have an SSN to receivefederally funded benefit such as TANF or SSIBenefits to which the foreign national hasestablished entitlement

2 Satisfy state or local law requiring SSN to receivegeneral public assistance benefits to which thealien has established entitlement

In the past SSA operational instructions allowed the issuanceof an SSN if a local statute or regulation required the SSN Thisoften included state statutes requiring an SSN to issue driverrsquoslicenses or for motor vehicle registration This is no longer thecase making it very difficult for dependents to obtain driverrsquoslicenses among other things

In addition to limiting the pool of qualified applicants the SSAhas also added verification procedures prior to issuing an SSNIn light of these new verification methods for foreign nationalswho have recently obtained employment authorization it maytake up to two months or longer for such individuals to obtainan SSN This extensive delay in processing is caused by SSArsquoscross-reference and verification with the US Citizenship andImmigration Services (USCIS) formerly INS Due to the factthat the issuance of the SSN is dependent on USCISrsquoconfirmation of employment authorization whether or not

USCIS has updated their database and how quickly theyrespond to the SSA inquiry often leads to these long delays

It is important to note that the delay should not prevent acompany from placing the foreign national on payroll TheUSCIS and not the SSA verifies and authorizes employment inthe US The foreign nationalrsquos I-94 card depicting the statusand validity dates is the document verifying the individualrsquosstatus in the US and corresponding employmentauthorization Therefore the foreign national can beginemployment upon receipt of a valid I-94 card irrespective ofthe status of their application for an SSN

According to Internal Revenue Service (IRS) regulations if anemployee does not have a social security number to initiateemployment the employee has the option of providingdocumentation verifying that the SSN has been requestedfrom the SSA When receipt acknowledgement is provided theemployer can then maintain the employee information in theirrecords with the SSA receipt until the SSN is issued If the SSN isnot available at the time the company is filing its return andreporting wages paid to such employee pursuant toregulations the receipt information and documentation canbe submitted in lieu of the SSN

As a practical matter an employer may want to discuss theavailable options with its payroll administrator Generallythere are two options available (1) provide the employee witha ldquodummyrdquo number and enter the employee in the payrollsystem while applying the appropriate withholdings or (2)estimate withholding amounts and pay the employeersquos netsalary Once the SSN is obtained the withholding can then beapplied to the employeersquos account and the company will thenneed to amend its returns

For those who have tried to obtain an alternative identifier tothe SSN and applied for an Individual Taxpayer IdentificationNumber (ITIN) with the IRS that option is also disappearingThe IRS issues ITINs only to individuals who are required tohave a US taxpayer identification number but who do nothave and are not eligible to obtain an SSN from the SSA ITINsare issued regardless of immigration status because bothresident and nonresident aliens may have US tax return andpayment responsibilities under the Internal Revenue CodeIndividuals must have a filing requirement and file a validfederal income tax return to receive an ITIN unless they meetan exception (just as limited and elusive as the SSAexceptions)

Page 7March 2004

ObserverIRS SSN amp ITIN (contrsquod)Concerns over restrictions to obtain an SSN are fundamentalMany of our record keeping systems have been developedwith the assumption that an SSN will be available as theprimary identifier As the SSA continues to revise itsregulations in an effort to reduce fraud and misuse of socialsecurity cards and numbers it is becoming more and moredifficult for foreign nationals temporarily residing in the US tofunction and lead ldquonormalrdquo lives What was once a simple taskof obtaining a driverrsquos license or adding a spouse to lifeinsurance or health insurance plans is slowly becoming more

difficult than obtaining authorization to enter the US withdependents Hopefully our record-keeping systems inindustries affecting the day-to-day lives of individuals livingand working in the US will be able to adjust quickly enough toallow for efficient and smooth transitions to theimplementation of a new ldquoidentifierrdquo that is not linked to thenow infamous SSN

Applying for a Visa Security Checks LikelyAlong with the additional security measures being taken at ourborders and with most federal agencies involved in some wayor another with the granting of benefits to foreign nationals USconsulates abroad have also increased their security measureswhen processing nonimmigrant visa applications (H L O P etc)So if you are planning on traveling abroad and applying for avisa be ready for the possibility of spending several weekssometimes even several months waiting for your visa to beissued While this may not be the case for a majority of theapplications being filed being ldquostuckrdquo abroad is still a definitepossibility that foreign nationals should think about beforeleaving the country without a valid visa that will allow them tore-enter the US

These additional measures that some individuals are subjectedto and that are leading to unexpected delays involve threekinds of security checks affecting nonimmigrant visaprocessing If the application is flagged as a possible securityconcern when a consulate receives a visa application a requestis sent to the Department of State (DOS) for securityclearances

The first possible check is the CONDOR clearance It is difficultto anticipate whether or not an individual will be subject to thissecurity clearance since the criteria is classified However someof the factors that may result in a name being cross referencedthrough CONDOR include

bull Information disclosed on the visa application Form DS-157 Responses to questions regarding travel topredominantly Muslim countries in the last 10 yearsprior employment military service for certain nationalsand specialized skills or training

bull Country of Birth Citizenship or Residence

bull Individuals born in one of the seven countries currentlydesignated as state sponsors of terrorism Cuba IranIraq Libya North Korea Sudan or Syria

bull Individuals born in one of the ldquoList of 26rdquo countries whichthe USCIS has not publicized but includes Arab andMuslim countries including Afghanistan AlgeriaBahrain Eritrea Lebanon Morocco North Korea OmanQatar Somalia Tunisia the United Arab EmiratesYemen Pakistan Saudi Arabia Bangladesh EgyptIndonesia Jordan and Kuwait among others

DOS reports indicate that approximately 80 of CONDORclearances are completed within 30 days If a CONDOR checkhas been pending for over 90 days inquiries to the DOS arerecommended

The second possible check is the MANTIS clearance This is aldquosensitive technologyrdquo alert based on whether an applicant isinvolved in any of the 15 categories found on the Critical FieldsList (CFL) of DOSrsquo Technology Alert List (TAL) The TAL includesan expanded list of technologies with potential ldquodual-userdquoapplications Some of these technologies appear benign butare deemed to have potential military applications

The list is very comprehensive and includes almost everypossible associated technology or skill involving chemistrybiochemistry immunology chemical engineering civilengineering and pharmacology to name a few Having such abroad all-inclusive list means that most research scientistsphysicians academics and engineers involved in any of these

Page 8March 2004

ObserverApplying for a Visa (contrsquod)fields could be subject to the MANTIS clearance So it is verypossible to run across a consular officer who will decide to erron the side of caution and obtain a MANTIS clearance prior toissuing a visa Based on current DOS guidelines generally aMANTIS clearance is not warranted if the technology falls withinthe public domain where it is widely available to the public or ifit involves information that would generally be taught in anacademic course In addition recently there have been reportsof a substantial increase in the number of MANTIS ldquohitsrdquoparticularly for nationals from Russia China and Hong Kong

DOS reports indicate that approximately 80 of MANTISclearances are completed within 30 days If a MANTIS clearancehas been pending for over 90 days inquiries to the DOS arerecommended

The third possible check involves then NCIC Criminal clearanceUnfortunately for those with common names (GonzalezMohammad Smith etc) false hits are occurring with increasedregularity An NCIC clearance can take four to six weeks toprocess Approximately seven million names have beendumped into the system and about half of them are Latinoresulting in a large number of false hits and delays for personswith common Latino names If you have a common name ThirdCountry National processing in Mexico may be advisable at poststhat have implemented a pilot fingerprint program This pilotprogram allows posts to process clearances on ldquofalserdquo hits thesame day and clearances for positive hits in as little as two days

Even if you have maintained a spotless immigration record andhave never had more than a traffic violation false hits are thebiggest headache for unsuspecting visa applicants Individualswith common Muslim or Latino names are almost guaranteedhits in CONDOR or NCIC

For some an alternative may be available It appears that somethird country national applicants from the ldquolist of 26rdquo may be ableto apply for their visas at certain Canadian consulates Howeverin some cases the applicant must be prepared to wait for thefinal decision on their application in Canada or outside ofCanada

If you are planning on applying for your visa in Canada some ofthe things you should be aware of include

bull A proper Canadian visa to enter and remain in Canadaor re-enter Canada is required

bull In some situations if you are applying for a visa in thesame category as previously issued consider applying60 days prior to the expiration of your valid multiple-entry visa When applying for the new visaspecifically request from the Consular Officer NOTto cancel your existing valid visa so that you may usethe visa to re-enter the US while the security check ispending

bull Some applicants have been issued NIVs on the sameday while others had to wait approximately one totwo weeks

As for visa revalidation the DOS now only accepts ldquoclearlyapprovablerdquo cases Due to the security checks being conductedby the Department of State (DOS) the Revalidation Unit at theDOS Visa Office has been rejecting applications for visarevalidation The Revalidation Unit has advised that the DS-157form responses sometimes trigger a Visa CONDOR check Whenthe CONDOR is triggered the Revalidation Unit will not issuethe visa and the application is returned If the application isreturned the foreign national must apply for the visa outside ofthe US The individual will be subject to the CONDOR check atthat time

Unfortunately for the time being for a foreign nationalresiding in the US on a temporary basis traveling abroad for abusiness meeting or to see family requires a little morepreparation and consideration to ensure that all possible risksare addressed and considered As various agencies andgovernments continue to share information and expand theirdatabase of names and security concerns to enhance ournationrsquos security we hope that new and developingtechnology will be used as well to reduce the long wait and thedread of being ldquostuckrdquo outside while an identity is verified andreverified before rejoining employers and families left behindin the US

Page 9March 2004

ObserverCongressional UpdateThe Senate Committee on the Judiciary Subcommittee onImmigration Border Security and Citizenship held their hearingon ldquoEvaluating a Temporary Guest Worker Proposalrdquo on ThursdayFebruary 12 2003 Senator Saxby Chambliss (R-GA) presided

The following testified

bull Sen John McCain (R-AZ)

bull Sen John Cornyn (R-TX)

bull Sen Chuck Hagel (R-NE)

bull Sen Larry Craig (R-ID)

bull The Honorable Asa Hutchinson Under SecretaryBorder and Transportation Security

bull The Honorable Eduardo Aguirre Director Citizenshipand Immigration Services

bull The Honorable Steven J Law Deputy Secretary of theDOL

bull Charles Cervantes Director of Legal Affairs amp PrivacyUS-Mexico Chamber of Commerce

bull Richard R Birkman President Texas Roofing Company

bull Dr Vernon Briggs Professor of Industrial and LaborRelations-Cornell University

bull Demetrios Papademetriou Co-Director MigrationPolicy Institute

Immigration Subcommittee Looks at Presidentrsquos Reforms

Senators Bush administration officials migration experts andother stakeholders applauded the administrationrsquos proposal forimmigration reform at a hearing before the Senate JudiciaryrsquosImmigration Subcommittee

Several Senators took the unusual step of speaking before thepanel regarding the need for reform The Senators who includedSen John McCain Sen Hagel and Sen Craig focused on theneed to recognize and correct the problem of an ever-increasingflow of illegal immigration US Department of HomelandSecurity (DHS)and US Department of Labor (DOL) officialsoutlined at least some details of the Presidentrsquos plan to overhaulthe nationrsquos immigration laws saying that the proposed guestworker program would grant legal status to illegal immigrantswho were living in the United States on January 7 2004 Directorof Citizenship and Immigration Services Eduardo Aguirre statedthat under the Presidentrsquos plan legal status would also begranted to the families of immigrants participating in the

program The plan outlined would also include travel and theability of such workers to recapture funds through individualsavings accounts or social security repatriation both toencourage participation and eventual return to the homecountry

Guest workers who would be matched up with willingemployers who have proven in advance the unavailability of USworkers for jobs for which the temporary workers are soughtwould be granted temporary work permits for an initial periodof three years The Presidentrsquos proposal would permit renewalsof that status

The Presidentrsquos plan also calls for a ldquoreasonable increaserdquo inimmigrant visas but does not tie the increase to this programIn fact many of the governmentrsquos witnesses went out of theirway to demonstrate that the Bush plan was not tied to anyamnesty for such workers to make clear that a future programwould not allow those who break the law to ldquoget aheadrdquo of thosewaiting in the long line for immigrant visas and green cards

Undersecretary for Border and Transportation Security AsaHutchinson focused on the need for greater worksiteenforcement to accompany the grant of legal status as a neededincentive against future flows of illegal immigration and toencourage workers to avail themselves of the legal buttemporary status Several witnesses tied the imminent need forreform to current perceived and documented instances ofimmigrant smuggling and document fraud Senator Chamblissin his opening statement noted that employers need to sharethe burden in enforcement through employer sanctions afterthe current burdensome system is corrected

The final panel of witnesses included immigration experts as wellas representatives from the business community Mr Birkmanhead of a family-owned roofing company represented theEssential Worker Immigration Coalition He relayed thefrustration his company feels when trying to recruit workers inthe US He also described the worker shortages in the roofingindustry both current and long-term

Enforcement of current law was in fact a strong focus of manywitnesses and members of the Subcommittee Senator Jon Kyl(RmdashAZ) emphasized that enforcement needed to be broughtto the forefront of current policy implementation before anyreform of the system could be addressed Senator Jeff Sessions(R-AL) also noted that respect for the law was an absolute

Page 10March 2004

ObserverCongressional Update (contrsquod)predicate for future reform including any plan along the line ofthe Presidentrsquos proposal stating that the subcommittee andCongress needed to ldquotake our time in thinking about itrdquo and notacting in the absence of meaningful enforcement Senator Craigstated that more enforcement was not the answer and

underscored the fact that the employer sanctions system isbroken

We at GT are looking forward to providing continuing coverageon this very important issue

Immigration SeminarsGreenberg Traurig continues its tradition of providingcomplimentary presentations to companies on outboundimmigration issues as well as discussions on money saving taxstrategies for employees as well as employers GT providesinformation guidance and assistance to our clients on visa

matters relating to the international relocation of personnel toand between countries outside of the United States Pleasecontact Dawn Lurie at luriedgtlawcom for furtherinformation

Whatrsquos New at GTGT Business Immigration Of Counsel quoted in Benefitnewscomarticle addressing issues raised by the Presidentrsquos proposals forimmigration reform to include provisions for essential workersh t t p w w w b e n e f i t n e w s c o m d e t a i l c f m i d = 5 5 9 9ampterms=|dawn||lurie|

Greenberg Traurig Grows in California

Greenberg Traurig opens two new offices in Silicon Valley andOrange County to join our previously established LA office Forthe press release go to httpwwwgtlawcompubpr2004california04ahtm

Page 7March 2004

ObserverIRS SSN amp ITIN (contrsquod)Concerns over restrictions to obtain an SSN are fundamentalMany of our record keeping systems have been developedwith the assumption that an SSN will be available as theprimary identifier As the SSA continues to revise itsregulations in an effort to reduce fraud and misuse of socialsecurity cards and numbers it is becoming more and moredifficult for foreign nationals temporarily residing in the US tofunction and lead ldquonormalrdquo lives What was once a simple taskof obtaining a driverrsquos license or adding a spouse to lifeinsurance or health insurance plans is slowly becoming more

difficult than obtaining authorization to enter the US withdependents Hopefully our record-keeping systems inindustries affecting the day-to-day lives of individuals livingand working in the US will be able to adjust quickly enough toallow for efficient and smooth transitions to theimplementation of a new ldquoidentifierrdquo that is not linked to thenow infamous SSN

Applying for a Visa Security Checks LikelyAlong with the additional security measures being taken at ourborders and with most federal agencies involved in some wayor another with the granting of benefits to foreign nationals USconsulates abroad have also increased their security measureswhen processing nonimmigrant visa applications (H L O P etc)So if you are planning on traveling abroad and applying for avisa be ready for the possibility of spending several weekssometimes even several months waiting for your visa to beissued While this may not be the case for a majority of theapplications being filed being ldquostuckrdquo abroad is still a definitepossibility that foreign nationals should think about beforeleaving the country without a valid visa that will allow them tore-enter the US

These additional measures that some individuals are subjectedto and that are leading to unexpected delays involve threekinds of security checks affecting nonimmigrant visaprocessing If the application is flagged as a possible securityconcern when a consulate receives a visa application a requestis sent to the Department of State (DOS) for securityclearances

The first possible check is the CONDOR clearance It is difficultto anticipate whether or not an individual will be subject to thissecurity clearance since the criteria is classified However someof the factors that may result in a name being cross referencedthrough CONDOR include

bull Information disclosed on the visa application Form DS-157 Responses to questions regarding travel topredominantly Muslim countries in the last 10 yearsprior employment military service for certain nationalsand specialized skills or training

bull Country of Birth Citizenship or Residence

bull Individuals born in one of the seven countries currentlydesignated as state sponsors of terrorism Cuba IranIraq Libya North Korea Sudan or Syria

bull Individuals born in one of the ldquoList of 26rdquo countries whichthe USCIS has not publicized but includes Arab andMuslim countries including Afghanistan AlgeriaBahrain Eritrea Lebanon Morocco North Korea OmanQatar Somalia Tunisia the United Arab EmiratesYemen Pakistan Saudi Arabia Bangladesh EgyptIndonesia Jordan and Kuwait among others

DOS reports indicate that approximately 80 of CONDORclearances are completed within 30 days If a CONDOR checkhas been pending for over 90 days inquiries to the DOS arerecommended

The second possible check is the MANTIS clearance This is aldquosensitive technologyrdquo alert based on whether an applicant isinvolved in any of the 15 categories found on the Critical FieldsList (CFL) of DOSrsquo Technology Alert List (TAL) The TAL includesan expanded list of technologies with potential ldquodual-userdquoapplications Some of these technologies appear benign butare deemed to have potential military applications

The list is very comprehensive and includes almost everypossible associated technology or skill involving chemistrybiochemistry immunology chemical engineering civilengineering and pharmacology to name a few Having such abroad all-inclusive list means that most research scientistsphysicians academics and engineers involved in any of these

Page 8March 2004

ObserverApplying for a Visa (contrsquod)fields could be subject to the MANTIS clearance So it is verypossible to run across a consular officer who will decide to erron the side of caution and obtain a MANTIS clearance prior toissuing a visa Based on current DOS guidelines generally aMANTIS clearance is not warranted if the technology falls withinthe public domain where it is widely available to the public or ifit involves information that would generally be taught in anacademic course In addition recently there have been reportsof a substantial increase in the number of MANTIS ldquohitsrdquoparticularly for nationals from Russia China and Hong Kong

DOS reports indicate that approximately 80 of MANTISclearances are completed within 30 days If a MANTIS clearancehas been pending for over 90 days inquiries to the DOS arerecommended

The third possible check involves then NCIC Criminal clearanceUnfortunately for those with common names (GonzalezMohammad Smith etc) false hits are occurring with increasedregularity An NCIC clearance can take four to six weeks toprocess Approximately seven million names have beendumped into the system and about half of them are Latinoresulting in a large number of false hits and delays for personswith common Latino names If you have a common name ThirdCountry National processing in Mexico may be advisable at poststhat have implemented a pilot fingerprint program This pilotprogram allows posts to process clearances on ldquofalserdquo hits thesame day and clearances for positive hits in as little as two days

Even if you have maintained a spotless immigration record andhave never had more than a traffic violation false hits are thebiggest headache for unsuspecting visa applicants Individualswith common Muslim or Latino names are almost guaranteedhits in CONDOR or NCIC

For some an alternative may be available It appears that somethird country national applicants from the ldquolist of 26rdquo may be ableto apply for their visas at certain Canadian consulates Howeverin some cases the applicant must be prepared to wait for thefinal decision on their application in Canada or outside ofCanada

If you are planning on applying for your visa in Canada some ofthe things you should be aware of include

bull A proper Canadian visa to enter and remain in Canadaor re-enter Canada is required

bull In some situations if you are applying for a visa in thesame category as previously issued consider applying60 days prior to the expiration of your valid multiple-entry visa When applying for the new visaspecifically request from the Consular Officer NOTto cancel your existing valid visa so that you may usethe visa to re-enter the US while the security check ispending

bull Some applicants have been issued NIVs on the sameday while others had to wait approximately one totwo weeks

As for visa revalidation the DOS now only accepts ldquoclearlyapprovablerdquo cases Due to the security checks being conductedby the Department of State (DOS) the Revalidation Unit at theDOS Visa Office has been rejecting applications for visarevalidation The Revalidation Unit has advised that the DS-157form responses sometimes trigger a Visa CONDOR check Whenthe CONDOR is triggered the Revalidation Unit will not issuethe visa and the application is returned If the application isreturned the foreign national must apply for the visa outside ofthe US The individual will be subject to the CONDOR check atthat time

Unfortunately for the time being for a foreign nationalresiding in the US on a temporary basis traveling abroad for abusiness meeting or to see family requires a little morepreparation and consideration to ensure that all possible risksare addressed and considered As various agencies andgovernments continue to share information and expand theirdatabase of names and security concerns to enhance ournationrsquos security we hope that new and developingtechnology will be used as well to reduce the long wait and thedread of being ldquostuckrdquo outside while an identity is verified andreverified before rejoining employers and families left behindin the US

Page 9March 2004

ObserverCongressional UpdateThe Senate Committee on the Judiciary Subcommittee onImmigration Border Security and Citizenship held their hearingon ldquoEvaluating a Temporary Guest Worker Proposalrdquo on ThursdayFebruary 12 2003 Senator Saxby Chambliss (R-GA) presided

The following testified

bull Sen John McCain (R-AZ)

bull Sen John Cornyn (R-TX)

bull Sen Chuck Hagel (R-NE)

bull Sen Larry Craig (R-ID)

bull The Honorable Asa Hutchinson Under SecretaryBorder and Transportation Security

bull The Honorable Eduardo Aguirre Director Citizenshipand Immigration Services

bull The Honorable Steven J Law Deputy Secretary of theDOL

bull Charles Cervantes Director of Legal Affairs amp PrivacyUS-Mexico Chamber of Commerce

bull Richard R Birkman President Texas Roofing Company

bull Dr Vernon Briggs Professor of Industrial and LaborRelations-Cornell University

bull Demetrios Papademetriou Co-Director MigrationPolicy Institute

Immigration Subcommittee Looks at Presidentrsquos Reforms

Senators Bush administration officials migration experts andother stakeholders applauded the administrationrsquos proposal forimmigration reform at a hearing before the Senate JudiciaryrsquosImmigration Subcommittee

Several Senators took the unusual step of speaking before thepanel regarding the need for reform The Senators who includedSen John McCain Sen Hagel and Sen Craig focused on theneed to recognize and correct the problem of an ever-increasingflow of illegal immigration US Department of HomelandSecurity (DHS)and US Department of Labor (DOL) officialsoutlined at least some details of the Presidentrsquos plan to overhaulthe nationrsquos immigration laws saying that the proposed guestworker program would grant legal status to illegal immigrantswho were living in the United States on January 7 2004 Directorof Citizenship and Immigration Services Eduardo Aguirre statedthat under the Presidentrsquos plan legal status would also begranted to the families of immigrants participating in the

program The plan outlined would also include travel and theability of such workers to recapture funds through individualsavings accounts or social security repatriation both toencourage participation and eventual return to the homecountry

Guest workers who would be matched up with willingemployers who have proven in advance the unavailability of USworkers for jobs for which the temporary workers are soughtwould be granted temporary work permits for an initial periodof three years The Presidentrsquos proposal would permit renewalsof that status

The Presidentrsquos plan also calls for a ldquoreasonable increaserdquo inimmigrant visas but does not tie the increase to this programIn fact many of the governmentrsquos witnesses went out of theirway to demonstrate that the Bush plan was not tied to anyamnesty for such workers to make clear that a future programwould not allow those who break the law to ldquoget aheadrdquo of thosewaiting in the long line for immigrant visas and green cards

Undersecretary for Border and Transportation Security AsaHutchinson focused on the need for greater worksiteenforcement to accompany the grant of legal status as a neededincentive against future flows of illegal immigration and toencourage workers to avail themselves of the legal buttemporary status Several witnesses tied the imminent need forreform to current perceived and documented instances ofimmigrant smuggling and document fraud Senator Chamblissin his opening statement noted that employers need to sharethe burden in enforcement through employer sanctions afterthe current burdensome system is corrected

The final panel of witnesses included immigration experts as wellas representatives from the business community Mr Birkmanhead of a family-owned roofing company represented theEssential Worker Immigration Coalition He relayed thefrustration his company feels when trying to recruit workers inthe US He also described the worker shortages in the roofingindustry both current and long-term

Enforcement of current law was in fact a strong focus of manywitnesses and members of the Subcommittee Senator Jon Kyl(RmdashAZ) emphasized that enforcement needed to be broughtto the forefront of current policy implementation before anyreform of the system could be addressed Senator Jeff Sessions(R-AL) also noted that respect for the law was an absolute

Page 10March 2004

ObserverCongressional Update (contrsquod)predicate for future reform including any plan along the line ofthe Presidentrsquos proposal stating that the subcommittee andCongress needed to ldquotake our time in thinking about itrdquo and notacting in the absence of meaningful enforcement Senator Craigstated that more enforcement was not the answer and

underscored the fact that the employer sanctions system isbroken

We at GT are looking forward to providing continuing coverageon this very important issue

Immigration SeminarsGreenberg Traurig continues its tradition of providingcomplimentary presentations to companies on outboundimmigration issues as well as discussions on money saving taxstrategies for employees as well as employers GT providesinformation guidance and assistance to our clients on visa

matters relating to the international relocation of personnel toand between countries outside of the United States Pleasecontact Dawn Lurie at luriedgtlawcom for furtherinformation

Whatrsquos New at GTGT Business Immigration Of Counsel quoted in Benefitnewscomarticle addressing issues raised by the Presidentrsquos proposals forimmigration reform to include provisions for essential workersh t t p w w w b e n e f i t n e w s c o m d e t a i l c f m i d = 5 5 9 9ampterms=|dawn||lurie|

Greenberg Traurig Grows in California

Greenberg Traurig opens two new offices in Silicon Valley andOrange County to join our previously established LA office Forthe press release go to httpwwwgtlawcompubpr2004california04ahtm

Page 8March 2004

ObserverApplying for a Visa (contrsquod)fields could be subject to the MANTIS clearance So it is verypossible to run across a consular officer who will decide to erron the side of caution and obtain a MANTIS clearance prior toissuing a visa Based on current DOS guidelines generally aMANTIS clearance is not warranted if the technology falls withinthe public domain where it is widely available to the public or ifit involves information that would generally be taught in anacademic course In addition recently there have been reportsof a substantial increase in the number of MANTIS ldquohitsrdquoparticularly for nationals from Russia China and Hong Kong

DOS reports indicate that approximately 80 of MANTISclearances are completed within 30 days If a MANTIS clearancehas been pending for over 90 days inquiries to the DOS arerecommended

The third possible check involves then NCIC Criminal clearanceUnfortunately for those with common names (GonzalezMohammad Smith etc) false hits are occurring with increasedregularity An NCIC clearance can take four to six weeks toprocess Approximately seven million names have beendumped into the system and about half of them are Latinoresulting in a large number of false hits and delays for personswith common Latino names If you have a common name ThirdCountry National processing in Mexico may be advisable at poststhat have implemented a pilot fingerprint program This pilotprogram allows posts to process clearances on ldquofalserdquo hits thesame day and clearances for positive hits in as little as two days

Even if you have maintained a spotless immigration record andhave never had more than a traffic violation false hits are thebiggest headache for unsuspecting visa applicants Individualswith common Muslim or Latino names are almost guaranteedhits in CONDOR or NCIC

For some an alternative may be available It appears that somethird country national applicants from the ldquolist of 26rdquo may be ableto apply for their visas at certain Canadian consulates Howeverin some cases the applicant must be prepared to wait for thefinal decision on their application in Canada or outside ofCanada

If you are planning on applying for your visa in Canada some ofthe things you should be aware of include

bull A proper Canadian visa to enter and remain in Canadaor re-enter Canada is required

bull In some situations if you are applying for a visa in thesame category as previously issued consider applying60 days prior to the expiration of your valid multiple-entry visa When applying for the new visaspecifically request from the Consular Officer NOTto cancel your existing valid visa so that you may usethe visa to re-enter the US while the security check ispending

bull Some applicants have been issued NIVs on the sameday while others had to wait approximately one totwo weeks

As for visa revalidation the DOS now only accepts ldquoclearlyapprovablerdquo cases Due to the security checks being conductedby the Department of State (DOS) the Revalidation Unit at theDOS Visa Office has been rejecting applications for visarevalidation The Revalidation Unit has advised that the DS-157form responses sometimes trigger a Visa CONDOR check Whenthe CONDOR is triggered the Revalidation Unit will not issuethe visa and the application is returned If the application isreturned the foreign national must apply for the visa outside ofthe US The individual will be subject to the CONDOR check atthat time

Unfortunately for the time being for a foreign nationalresiding in the US on a temporary basis traveling abroad for abusiness meeting or to see family requires a little morepreparation and consideration to ensure that all possible risksare addressed and considered As various agencies andgovernments continue to share information and expand theirdatabase of names and security concerns to enhance ournationrsquos security we hope that new and developingtechnology will be used as well to reduce the long wait and thedread of being ldquostuckrdquo outside while an identity is verified andreverified before rejoining employers and families left behindin the US

Page 9March 2004

ObserverCongressional UpdateThe Senate Committee on the Judiciary Subcommittee onImmigration Border Security and Citizenship held their hearingon ldquoEvaluating a Temporary Guest Worker Proposalrdquo on ThursdayFebruary 12 2003 Senator Saxby Chambliss (R-GA) presided

The following testified

bull Sen John McCain (R-AZ)

bull Sen John Cornyn (R-TX)

bull Sen Chuck Hagel (R-NE)

bull Sen Larry Craig (R-ID)

bull The Honorable Asa Hutchinson Under SecretaryBorder and Transportation Security

bull The Honorable Eduardo Aguirre Director Citizenshipand Immigration Services

bull The Honorable Steven J Law Deputy Secretary of theDOL

bull Charles Cervantes Director of Legal Affairs amp PrivacyUS-Mexico Chamber of Commerce

bull Richard R Birkman President Texas Roofing Company

bull Dr Vernon Briggs Professor of Industrial and LaborRelations-Cornell University

bull Demetrios Papademetriou Co-Director MigrationPolicy Institute

Immigration Subcommittee Looks at Presidentrsquos Reforms

Senators Bush administration officials migration experts andother stakeholders applauded the administrationrsquos proposal forimmigration reform at a hearing before the Senate JudiciaryrsquosImmigration Subcommittee

Several Senators took the unusual step of speaking before thepanel regarding the need for reform The Senators who includedSen John McCain Sen Hagel and Sen Craig focused on theneed to recognize and correct the problem of an ever-increasingflow of illegal immigration US Department of HomelandSecurity (DHS)and US Department of Labor (DOL) officialsoutlined at least some details of the Presidentrsquos plan to overhaulthe nationrsquos immigration laws saying that the proposed guestworker program would grant legal status to illegal immigrantswho were living in the United States on January 7 2004 Directorof Citizenship and Immigration Services Eduardo Aguirre statedthat under the Presidentrsquos plan legal status would also begranted to the families of immigrants participating in the

program The plan outlined would also include travel and theability of such workers to recapture funds through individualsavings accounts or social security repatriation both toencourage participation and eventual return to the homecountry

Guest workers who would be matched up with willingemployers who have proven in advance the unavailability of USworkers for jobs for which the temporary workers are soughtwould be granted temporary work permits for an initial periodof three years The Presidentrsquos proposal would permit renewalsof that status

The Presidentrsquos plan also calls for a ldquoreasonable increaserdquo inimmigrant visas but does not tie the increase to this programIn fact many of the governmentrsquos witnesses went out of theirway to demonstrate that the Bush plan was not tied to anyamnesty for such workers to make clear that a future programwould not allow those who break the law to ldquoget aheadrdquo of thosewaiting in the long line for immigrant visas and green cards

Undersecretary for Border and Transportation Security AsaHutchinson focused on the need for greater worksiteenforcement to accompany the grant of legal status as a neededincentive against future flows of illegal immigration and toencourage workers to avail themselves of the legal buttemporary status Several witnesses tied the imminent need forreform to current perceived and documented instances ofimmigrant smuggling and document fraud Senator Chamblissin his opening statement noted that employers need to sharethe burden in enforcement through employer sanctions afterthe current burdensome system is corrected

The final panel of witnesses included immigration experts as wellas representatives from the business community Mr Birkmanhead of a family-owned roofing company represented theEssential Worker Immigration Coalition He relayed thefrustration his company feels when trying to recruit workers inthe US He also described the worker shortages in the roofingindustry both current and long-term

Enforcement of current law was in fact a strong focus of manywitnesses and members of the Subcommittee Senator Jon Kyl(RmdashAZ) emphasized that enforcement needed to be broughtto the forefront of current policy implementation before anyreform of the system could be addressed Senator Jeff Sessions(R-AL) also noted that respect for the law was an absolute

Page 10March 2004

ObserverCongressional Update (contrsquod)predicate for future reform including any plan along the line ofthe Presidentrsquos proposal stating that the subcommittee andCongress needed to ldquotake our time in thinking about itrdquo and notacting in the absence of meaningful enforcement Senator Craigstated that more enforcement was not the answer and

underscored the fact that the employer sanctions system isbroken

We at GT are looking forward to providing continuing coverageon this very important issue

Immigration SeminarsGreenberg Traurig continues its tradition of providingcomplimentary presentations to companies on outboundimmigration issues as well as discussions on money saving taxstrategies for employees as well as employers GT providesinformation guidance and assistance to our clients on visa

matters relating to the international relocation of personnel toand between countries outside of the United States Pleasecontact Dawn Lurie at luriedgtlawcom for furtherinformation

Whatrsquos New at GTGT Business Immigration Of Counsel quoted in Benefitnewscomarticle addressing issues raised by the Presidentrsquos proposals forimmigration reform to include provisions for essential workersh t t p w w w b e n e f i t n e w s c o m d e t a i l c f m i d = 5 5 9 9ampterms=|dawn||lurie|

Greenberg Traurig Grows in California

Greenberg Traurig opens two new offices in Silicon Valley andOrange County to join our previously established LA office Forthe press release go to httpwwwgtlawcompubpr2004california04ahtm

Page 9March 2004

ObserverCongressional UpdateThe Senate Committee on the Judiciary Subcommittee onImmigration Border Security and Citizenship held their hearingon ldquoEvaluating a Temporary Guest Worker Proposalrdquo on ThursdayFebruary 12 2003 Senator Saxby Chambliss (R-GA) presided

The following testified

bull Sen John McCain (R-AZ)

bull Sen John Cornyn (R-TX)

bull Sen Chuck Hagel (R-NE)

bull Sen Larry Craig (R-ID)

bull The Honorable Asa Hutchinson Under SecretaryBorder and Transportation Security

bull The Honorable Eduardo Aguirre Director Citizenshipand Immigration Services

bull The Honorable Steven J Law Deputy Secretary of theDOL

bull Charles Cervantes Director of Legal Affairs amp PrivacyUS-Mexico Chamber of Commerce

bull Richard R Birkman President Texas Roofing Company

bull Dr Vernon Briggs Professor of Industrial and LaborRelations-Cornell University

bull Demetrios Papademetriou Co-Director MigrationPolicy Institute

Immigration Subcommittee Looks at Presidentrsquos Reforms

Senators Bush administration officials migration experts andother stakeholders applauded the administrationrsquos proposal forimmigration reform at a hearing before the Senate JudiciaryrsquosImmigration Subcommittee

Several Senators took the unusual step of speaking before thepanel regarding the need for reform The Senators who includedSen John McCain Sen Hagel and Sen Craig focused on theneed to recognize and correct the problem of an ever-increasingflow of illegal immigration US Department of HomelandSecurity (DHS)and US Department of Labor (DOL) officialsoutlined at least some details of the Presidentrsquos plan to overhaulthe nationrsquos immigration laws saying that the proposed guestworker program would grant legal status to illegal immigrantswho were living in the United States on January 7 2004 Directorof Citizenship and Immigration Services Eduardo Aguirre statedthat under the Presidentrsquos plan legal status would also begranted to the families of immigrants participating in the

program The plan outlined would also include travel and theability of such workers to recapture funds through individualsavings accounts or social security repatriation both toencourage participation and eventual return to the homecountry

Guest workers who would be matched up with willingemployers who have proven in advance the unavailability of USworkers for jobs for which the temporary workers are soughtwould be granted temporary work permits for an initial periodof three years The Presidentrsquos proposal would permit renewalsof that status

The Presidentrsquos plan also calls for a ldquoreasonable increaserdquo inimmigrant visas but does not tie the increase to this programIn fact many of the governmentrsquos witnesses went out of theirway to demonstrate that the Bush plan was not tied to anyamnesty for such workers to make clear that a future programwould not allow those who break the law to ldquoget aheadrdquo of thosewaiting in the long line for immigrant visas and green cards

Undersecretary for Border and Transportation Security AsaHutchinson focused on the need for greater worksiteenforcement to accompany the grant of legal status as a neededincentive against future flows of illegal immigration and toencourage workers to avail themselves of the legal buttemporary status Several witnesses tied the imminent need forreform to current perceived and documented instances ofimmigrant smuggling and document fraud Senator Chamblissin his opening statement noted that employers need to sharethe burden in enforcement through employer sanctions afterthe current burdensome system is corrected

The final panel of witnesses included immigration experts as wellas representatives from the business community Mr Birkmanhead of a family-owned roofing company represented theEssential Worker Immigration Coalition He relayed thefrustration his company feels when trying to recruit workers inthe US He also described the worker shortages in the roofingindustry both current and long-term

Enforcement of current law was in fact a strong focus of manywitnesses and members of the Subcommittee Senator Jon Kyl(RmdashAZ) emphasized that enforcement needed to be broughtto the forefront of current policy implementation before anyreform of the system could be addressed Senator Jeff Sessions(R-AL) also noted that respect for the law was an absolute

Page 10March 2004

ObserverCongressional Update (contrsquod)predicate for future reform including any plan along the line ofthe Presidentrsquos proposal stating that the subcommittee andCongress needed to ldquotake our time in thinking about itrdquo and notacting in the absence of meaningful enforcement Senator Craigstated that more enforcement was not the answer and

underscored the fact that the employer sanctions system isbroken

We at GT are looking forward to providing continuing coverageon this very important issue

Immigration SeminarsGreenberg Traurig continues its tradition of providingcomplimentary presentations to companies on outboundimmigration issues as well as discussions on money saving taxstrategies for employees as well as employers GT providesinformation guidance and assistance to our clients on visa

matters relating to the international relocation of personnel toand between countries outside of the United States Pleasecontact Dawn Lurie at luriedgtlawcom for furtherinformation

Whatrsquos New at GTGT Business Immigration Of Counsel quoted in Benefitnewscomarticle addressing issues raised by the Presidentrsquos proposals forimmigration reform to include provisions for essential workersh t t p w w w b e n e f i t n e w s c o m d e t a i l c f m i d = 5 5 9 9ampterms=|dawn||lurie|

Greenberg Traurig Grows in California

Greenberg Traurig opens two new offices in Silicon Valley andOrange County to join our previously established LA office Forthe press release go to httpwwwgtlawcompubpr2004california04ahtm

Page 10March 2004

ObserverCongressional Update (contrsquod)predicate for future reform including any plan along the line ofthe Presidentrsquos proposal stating that the subcommittee andCongress needed to ldquotake our time in thinking about itrdquo and notacting in the absence of meaningful enforcement Senator Craigstated that more enforcement was not the answer and

underscored the fact that the employer sanctions system isbroken

We at GT are looking forward to providing continuing coverageon this very important issue

Immigration SeminarsGreenberg Traurig continues its tradition of providingcomplimentary presentations to companies on outboundimmigration issues as well as discussions on money saving taxstrategies for employees as well as employers GT providesinformation guidance and assistance to our clients on visa

matters relating to the international relocation of personnel toand between countries outside of the United States Pleasecontact Dawn Lurie at luriedgtlawcom for furtherinformation

Whatrsquos New at GTGT Business Immigration Of Counsel quoted in Benefitnewscomarticle addressing issues raised by the Presidentrsquos proposals forimmigration reform to include provisions for essential workersh t t p w w w b e n e f i t n e w s c o m d e t a i l c f m i d = 5 5 9 9ampterms=|dawn||lurie|

Greenberg Traurig Grows in California

Greenberg Traurig opens two new offices in Silicon Valley andOrange County to join our previously established LA office Forthe press release go to httpwwwgtlawcompubpr2004california04ahtm

This GT ALERT is issued for informational purposes only and is not intended to be construed or used as generallegal advice Greenberg Traurig attorneys provide practical result-oriented strategies and solutions tailoredtomeet our clientsrsquo individual legal needs

Page 11March 2004

Observer

The GT Business Immigration Newsletter is published by thebusiness immigration practice group at Greenberg Traurighttpwwwgtlawcomaboutoverviewhtm GT Of Coun-sel Dawn M Lurie serves as the Editor The newsletter con-tains information concerning trends and recent develop-ments in immigration law Moreover the authors analyzeand report on relevant immigration related issues as wellas legislative issues

Finally the GT Business Immigration Newsletter serves as aninvaluable resource to individuals human resource manag-ers recruiters and company executives who must keep cur-rent on these matters

SPREAD THE WORD

If you have enjoyed reading this newsletter and havefound useful information in it wersquod greatly appreciateyour help in spreading the word about it You can do thisby forwarding a copy to your friends and professionalpeers and telling them about it

SUBSCRIBING UNSUBSCRIBING

To subscribe or unsubscribe go towwwgtlawcompracticesimmigrationnewslettersubscribesubscribehtm

GENERAL INFORMATION

Questions or comments Please send e-mail toimminfogtlawcomWant to schedule a consultation Contact us atimmconsultgtlawcom

DISCLAIMER

The materials contained in this newsletter or in theGreenberg Traurig Web site are for informational purposesonly and do not constitute legal advice Receipt of this e-mail newsletter or with the Greenberg Traurig Web site doesnot establish an attorney-client relationship

Business Immigration Group

Mahsa Aliaskari Tysons Corner7037491385 aliaskarimgtlawcom

Kristina Carty-Pratt Tysons Corner7037491345 prattkgtlawcom

Craig A Etter Tysons Corner7037491315 ettercgtlawcom

Oscar Levin Miami3055790880 levinogtlawcom

Linda Luiks Amsterdam+31 20 301 7323 luikslgtlawcom

Dawn Lurie Tysons Corner7039037527 luriedgtlawcom

Elissa McGovern Tysons Corner7037491343 mcgovernegtlawcom

James Morrison Tysons Corner7037491376 morrisonjgtlawcom

Mary Pivec Washington DC2024524883 pivecmgtlawcom

Laura Foote Reiff Tysons Corner7037491372 reifflgtlawcom

John Scalia Tysons Corner7037491380 Washington DC

scaliajgtlawcom

Martha Schoonover Tysons Corner7037491374 schoonovermgtlawcom

MARCH 2004 RESOURCESMarch 2004 State Department Visa Bulletin Link httptravelstategovvisa_bulletinhtmlService Center Processing TimesVermont httpwwwgtlawcompracticesimmigrationprocessingcisvermontpdfTexas httpwwwgtlawcompracticesimmigrationprocessingcistexaspdfNebraska httpwwwgtlawcompracticesimmigrationprocessingcisnebraskapdfCalifornia httpwwwgtlawcompracticesimmigrationprocessingciscaliforniapdfNational Benefits Center httpwwwgtlawcompracticesimmigrationprocessingcisnbcprocessingpdfDepartment of Labor Regional Processing Times httpwwwgtlawcompracticesimmigrationprocessingdolhtmState Employment Agency Processing Times httpwwwgtlawcompracticesimmigrationprocessingswahtm

Copyright copy2004 Greenberg Traurig All Rights Reserved