IndiaPost.com - June 2008 immigration update

(Continued from last week's article)

USCIS Announces Proposed Rule to Increase Periods of Stay for TN Professionals from Canada, Mexico

US Citizenship and Immigration Services (USCIS) published a Notice of Proposed Rulemaking (NPRM) on May 9, 2008, to increase the maximum amount of time a Trade NAFTA (TN) professional worker from Canada or Mexico can remain in the U.S. before seeking readmission or obtaining an extension of stay.

The proposal would extend the maximum period of admission for TN workers from one year to three years, the same term that USCIS currently may grant to H-1B specialty occupation workers. The proposed rule would further allow eligible TN nonimmigrant to be granted an extension of stay in increments of up to three years, as opposed to the current maximum of one year.

TN nonimmigrant are not subject to a maximum period of stay and thus may seek multiple readmissions or extensions, provided their intended professional activity continues and they remain otherwise eligible. Current regulations require that TN workers seek readmission or apply for an extension of stay each year. Canadian and Mexican citizens seeking temporary entry to the U.S. as professionals may come into the country as TN nonimmigrant under the North American Free Trade Agreement (NAFTA).

TN status is available to Canadian and Mexican citizens with a minimum of a bachelor's degree, or appropriate professional credentials, who work in professions listed in Appendix 1603.D.1 to Annex 1603 of the NAFTA and under DHS regulations at 8 CFR 214.6(c). Eligible TN professions include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers. USCIS said the rule is intended to ease administrative burdens and costs on TN nonimmigrant and will benefit U.S. employers.

The proposed changes also would apply to spouses and unmarried, minor children of TN nonimmigrant in their corresponding nonimmigrant classifications as NAFTA dependents. Alliance of Business Immigration Lawyers members have observed that the rule would lessen the burden on TNs who are in the permanent residence process who may fear difficulties in extending their TN status, which must be temporary, ending "at a predictable time."

This was not a problem when TN employers could time the filing of the immigrant petition to coincide with the foreign worker's permanent residence application. This is no longer possible: immigrant petitions must now be filed within 180 days of approval of the labor certification under the Department of Labor's "Anti-Fraud" rule.

The additional two years allowable as a TN under this proposed rule will allow more "elbow room" to file all critical phases of the process without the needing to extend the TN stay, ABIL notes. However, the benefits could be undermined by the proposed halt of concurrent I-140 and I-485 filing because this will add to the time required for permanent residence processing.

The NPRM is available at http://edocket.access.gpo.gov/2008/pdf/E8-10343.pdf. Persons wishing to comment may access the Federal e-Rulemaking Portal and follow the instructions for submitting comments. USCIS will accept public comments until June 9, 2008. Largest-Ever Immigration Raid Results in Nearly 400 Arrests, Lawsuit Almost 400 people were arrested on May 12, 2008, by U.S. Immigration and Customs Enforcement (ICE) at Agriprocessors Inc. in Postville, Iowa. Of the 389 people arrested at the slaughterhouse and meatpacking plant, 297 pleaded guilty and were sentenced on federal felony charges.

U.S. Attorney Matt Dummermuth said that "[b]ased on the number of criminal convictions, this is the largest criminal worksite enforcement operation ever in the United States." Among others, 230 defendants were sentenced to five months in prison and three years of supervision for using false identification to obtain employment after admitting to using an actual person's identity; and 30 defendants were sentenced to five months in prison and three years of supervision for falsely using a social security number or card after admitting to using an actual person's social security.

A lawsuit was filed on behalf of almost 150 of the workers, reportedly accusing the government of arbitrary and indefinite detention and seeking to prevent the government from moving them out of state while their cases are being processed. The ICE-led, multi-agency investigation is ongoing. Laptops, Storage Devices May Undergo Scrutiny at Border The Ninth Circuit Court of Appeals held on April 21, 2008 (U.S. v. Arnold) that the federal government has discretion to search a laptop or other personal electronic storage device at the border.

The court concluded that "reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border," noting that "Arnold has failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicionless border searches of travelers' luggage that the Supreme Court and we have allowed."

In the brief for amici curiae, the Association of Corporate Travel Executives (ACTE) and the Electronic Frontier Foundation (EFF) noted that although laptop searches by border agents have raised increasing concerns during the last year, they still come as a surprise to most travelers.

The brief notes that in an October 2006 survey of business travel managers, ACTE found that only six percent of the managers knew that border agents randomly search, seize, and copy the contents of travelers' computers, and only one percent had received reports from travelers that their laptops had been seized by U.S. border officials.

The survey results showed that "even very experienced business travelers are completely surprised to learn that the U.S. government conducts these searches and seizures randomly," the brief noted. ACTE and EFF noted the "wide ranging implications of the government's arguments."

Indeed, they said, under the government's reasoning, border authorities could systematically collect all of the information contained on every laptop computer, BlackBerry, and other electronic device carried across our national borders by every traveler, American or foreign. "The government could then store and search all of this information without justification and without oversight from the courts." The Fourth Amendment simply does not apply.

"If accepted, the government's argument will establish an end run around the Constitution's prohibition against unreasonable searches and seizures." While this issue remains unresolved, travelers handling sensitive information for corporations or clients may wish to work remotely online using a leased computer, or e-mail information, rather than storing it on a laptop and carrying it across the border. Even a BlackBerry could pose a serious breach of privacy if carried during international travel.