Copland and Brenner

Table of Contents

1. 2008 Poverty Guidelines Issued
2. Documentary Requirements in Effect for U.S. Entry
3. REAL ID: "Final" Rule, Extended Implementation
4. In Brief: Recent Developments

1. 2008 Poverty Guidelines Issued

   On January 23, 2008, updated “poverty guidelines” of the U.S. Department of Health and Human Services (“HHS”) were published in the Federal Register . As is typical, the poverty guidelines increased to account for cost of living adjustments for the last calendar year as measured by the Consumer Price Index.

   Section 212(a)(4) of the Immigration and Nationality Act (“INA”) makes inadmissible to the U.S.A. “any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” In determining whether a prospective immigrant is likely to become a public charge, the INA specifies that certain factors – including age, health, family status, assets, education and skills – are to be assessed.

   Any family-based petitioner must submit Form I-864 and supporting documents to the agency so that it can make the necessary “public charge” determination. In doing so, a consular or immigration officer refers to the poverty guidelines established by HHS. For immigrant visa and adjustment of status applicants subject to the I-864 contractual affidavit of support requirement, the financial sponsor(s) must document ability to maintain an annual income equal to at least 125 percent of the federal poverty line applicable to the size of the sponsor’s household.

   For most purposes, the new guidelines became effective on the date of publication. However, USCIS has not yet updated its online Form I-864P regarding the 125 percent multiple that applies to immigration matters. When it does, we expect that a household of two within the 48 contiguous states will require documentation verifying $17,500 in income (an increase of $388 over last year). This amount is derived from the HHS poverty guideline of $14,000 for a household of two, and adding the 25 percent mandated by INA Section 212(a)(4). A household of three will require $22,000 (an increase of $538). Higher figures apply to residents of Alaska and Hawaii. The new amounts will be reflected in an updated Form I-864P. Readers should refer to the USCIS web site at www.uscis.gov and click on “Immigration Forms” to ascertain when the agency imposes the new guidelines for immigration purposes.

2. Documentary Requirements in Effect for U.S. Entry

   We remind readers that documentary requirements for any person – even U.S. citizens - seeking entry to the U.S.A. have changed. U.S. citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico entering and departing the U.S.A. at air ports of entry from within the Western Hemisphere are generally required to present a valid passport. Exceptions apply to those who possess a Merchant Mariner Document, Canadians who possess a NEXUS Air Card, and members of the U.S. Armed Forces traveling on active duty.

   For those – including U.S. citizens - seeking entry by land, oral declarations no longer provide sufficient proof of citizenship. All travelers, including those claiming to be U.S., Canadian, or Bermudian citizens arriving by land and sea will generally be expected to present some form of documentation to satisfy the U.S. Customs and Border Protection (“CBP”) officer of his or her identity and citizenship. On January 31, the Department of Homeland Security (“DHS”) issued a release listing acceptable documents, as follows:

   Single document option – preferred:
   - U.S. Passport Card (newly available)
   - Trusted Traveler Card (NEXUS, SENTRI, or FAST)
   - Enhanced State or Provincial Issued Driver License (when available)
   - Enhanced Tribal Cards (when available)

   Single document option – acceptable:
   - U.S. or Canadian passport
   - U.S. Military Identification with Military Travel Orders
   - U.S. Merchant Mariner Document
   - Native American Tribal Photo ID Card
   - Form I-872 American Indian Card
   - Indian and Northern Affairs Canada Card

   If an applicant for admission lacks one of the above documents, he or she must present two documents, one each from list (a) and list (b) below:

   (a) Identification document – must bear photograph, name, and date of birth:
   - Driver license or ID card issued by a federal, state, provincial, county, territory or municipal authority
   - U.S. or Canadian military ID card

   (b) Citizenship document:
   - U.S. or Canadian birth certificate issued by a federal, state, provincial, county, territory or municipal authority
   - U.S. Consular report of birth abroad
   - U.S. Certificate of Naturalization
   - U.S. Certificate of Citizenship
   - U.S. Citizen Identification Card
   - Canadian Citizenship Card
   - Canadian certificate of citizenship without photograph

   Procedures for children – other than Mexican:
   - U.S. and Canadian born children ages 18 and under must present a birth certificate issued by a federal, state, provincial, county, territory or municipal authority

   Travelers other than U.S. and Canadian citizens:
   - Previously existing nonimmigrant visa and passport requirements remain in effect
   - U.S. lawful permanent residents must present Form I-551 or other evidence of lawful permanent residence
   - Mexican citizens, including children, must present a valid passport and B-1/B-2 nonimmigrant visa or Border Crossing Card

   As to the U.S. Passport Card, U.S. citizens became eligible to apply for this new document on February 1. Applicants may appear at any Passport Acceptance Agent office – most commonly, U.S. Post Offices - to apply. Some state, county, township and municipal offices, and even public libraries and public universities, are also Passport Acceptance Agents. It is important to keep in mind that a Passport Card is valid only for departure from and entry to the United States through land and sea ports of entry between the United States and Mexico, Canada, the Caribbean and Bermuda. The document cannot be used for any air travel, and cannot be presented at any land or sea port other than those listed above.

3. REAL ID: "Final" Rule, Extended Implementation

   The REAL ID Act of 2005 (Public Law 109–13, 119 Stat. 231, 302), enacted on May 11, 2005, established requirements for State-issued driver’s licenses and identification cards that Federal agencies can accept for official purposes on or after May 11, 2008. Among the requirements is that a license or ID applicant must provide evidence of lawful U.S. status. For those lawfully in the U.S.A. on a temporary basis, the state document must expire at the end of the authorized stay. If there is no definite end to the stay (for example, for F-1 and J-1 nonimmigrants authorized for the duration of status), the document may be valid for only one year, with extensions possible upon proof of the ongoing authorization to be present.

   It is important to note that REAL ID is not considered to be a state mandate imposed by the federal government. A state can still issue documents that do not meet the REAL ID requirements, but must use a unique identifier (color or design) to alert federal authorities that it may not be used for federal purposes, and must clearly state this limitation on the face of the document. However, only a REAL ID-compliant document will authorize a holder to present it for federal purposes such as accessing federal facilities, boarding an aircraft or entering a nuclear power plant.

   REAL ID), which was decried for these and other provisions restricting asylum, further limiting judicial review, and eliminating habeas corpus, was sponsored as H.R. 418 by Representative James Sensenbrenner (R-WI). Though the bill was criticized for lack of congressional hearings or meaningful debate, it was attached to a must-pass spending bill and sailed through both Houses of Congress. The American Immigration Lawyers Association (“AILA”) predicted that among the negative consequences regarding state-issued documents would be an increase in the number of uninsured, unlicensed drivers on U.S. roadways.

   On January 11, 2008, DHS announced a final rule to (slowly) implement the state document provisions of REAL ID, by establishing standards to meet the minimum requirements for such documents under the statute. The standards involve a number of requirements regarding the process and the documents produced, including “application information to establish the identity and immigration status of an applicant before a card can be issued.” However, the rule presents a unique method of requiring that all state-issued documents are in compliance by May 11, 2008 as the statute seemingly mandates. Section 205(b) of REAL ID authorizes DHS to grant extensions of the May 11, 2008 compliance date to states that provide justification for their inability to comply by the statutory deadline. On March 1, 2007, DHS announced that it had already decided all states would be granted extensions, which the final rule reiterates.

   Thus, as the Summary to the final rule states, “[a]s of May 11, 2008, Federal agencies cannot accept driver's licenses or identification cards for official purposes [ ] from States that have not been determined by DHS to be in compliance with the REAL ID Act unless a State has requested and obtained an extension of the compliance date from DHS. ” (emphasis added) The initial extension request must be submitted to DHS no later than March 31, 2008. By doing so, and by making an additional extension request no later than October 11, 2009 and obtaining “certification that the State has achieved the benchmarks set forth in the Material Compliance Checklist,” a state will not actually have to satisfy REAL ID mandates until May 11, 2011. But even this “final” compliance date is not universal for document holders themselves. Persons born after December 1, 1964 will not be required to present a REAL ID-compliant document until December 1, 2014. All persons must present REAL ID-compliant documents by December 1, 2017.

4. In Brief: Recent Developments

   H-1B Update: It is February 2008. Do you know where your H-1B case is? April 1 is the first date upon which a cap-subject H-1B petition may be filed for employment to commence on October 1, 2008. ‘Tis the season, then for prevailing wage requests, filing labor condition applications, and drafting petitions and supporting documents for what is sure to become another lottery scenario sometime after April 1. If you need assistance with your H-1B case, please contact us.

   Worksite Enforcement Advisory: U.S. Immigration and Customs Enforcement has posted an advisory on its web site, exhorting employers to “Know Your Workforce” by noting “things to look for” regarding workforce makeup and features of legitimate documents. The advisory is online at http://www.ice.gov/doclib/pi/news/newsreleases/articles/wse_advisory_v27.pdf.

   India Employment Second Preference “Unavailable”: The Department of State’s Visa Bulletin for February reflects that demand for numbers by CIS Offices for adjustment of status cases has remained extremely high in recent months. As a result, the annual limit for the India Employment Second preference category has been reached and is now “unavailable.”

   Employment authorization extensions: By notice on February 5, AILA informed its members that a recent USCIS update, stating that applications for extensions of an employment authorization should be filed 120 days before the current card expires, has a bit more bite than is apparent. The update provides no indication that the agency informed AILA liaison that an I-765 extension application “received on or after January 29, 2008, that was filed more than 120 days from the date of expiration, will be denied as filed too early.” AILA InfoNet Doc. No 08020430. Mark your calendars accordingly.