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V. DEVELOPMENTS AFFECTING
EMPLOYMENT BASED CASES
A. Department of Homeland Security
The most significant change arose from the Homeland Security Act of 2002 (Pub. L. No. 107‑296, 116 Stat. 2135) which moved both immigration enforcement and adjudication services from the now defunct Immigration & Naturalization Service into the new Department of Homeland Security. Security and enforcement concerns continue to take priority over timely adjudications of applications for immigration benefits submitted by employers for foreign national employees and by U.S. citizens and residents for their relatives. The Department of Homeland Security includes three distinct immigration agencies. Customs and Border Protection (CBP) focuses on the movement of goods and people across our borders. Immigration and Customs Enforcement (ICE) focuses on the interior enforcement of immigration and customs laws. Citizenship and Immigration Services (CIS) is responsible for adjudications of visa petitions and applications for naturalization, asylum, or refugee status. This law requires in Section 458 that the Department of Homeland Security (DHS) eliminate immigration backlogs. Prompt adjudication of applications and petitions for immigration benefits is now a high priority for the CIS. The immigration courts remain under the Executive Office for Immigration Review of the U.S. Department of Justice. The functions of the INS moved to the DHS on March 1, 2003.
B. Special Registration
The CIS implemented a call‑in "Special Registration" program which required males over age sixteen who are citizens or nationals of designated countries and who are not U.S. citizens, permanent residents, diplomats, refugees or asylees to register with the CIS. This registration was part of the National Security Entry‑Exit Registration System (NSEERS), which was the CIS’ first step towards developing a comprehensive entry‑exit program. The first group required to appear for registration interviews were citizens and nationals from Iran, Iraq, Libya, Sudan and Syria. Another twenty countries were later added to the list. This registration required a designated foreign national to discuss with a CIS officer his stay and activities in the U.S, provide fingerprints, and have his photo taken. Failure to have timely registered may result in a decision that the foreign national is out of status and deportable.
C. Employment Authorization for Dependent Spouses
Relatively recent legislation now allows E‑2 spouses of treaty traders and treaty investors, as well as L‑2 spouses of L‑1 intracompany transferees to obtain employment authorization from the CIS.
D. Premium Processing
An additional $1000 fee can be paid to the CIS for "premium processing" so that the CIS will adjudicate an H‑1B, O‑1, L‑1, or certain other types of nonimmigrant petitions within 15 days (or at least issue a request for more evidence needed to promptly adjudicate such a petition). Recently the CIS expanded premium processing to include several employment-based categories of the I-140 Petition for Alien Worker. It now includes the first preference category for outstanding professors and researchers, the second preference category for professionals with advanced degrees or exceptional ability (but not those seeking a National Interest Waiver), and third preference I-140 petitions.
E. Extensions of Nonimmigrant Status
Section 11030 of the 21st Century Department of Justice Appropriation & Authorization
Act allows an H‑1B nonimmigrant employee to obtain extensions beyond the normal maximum time limits if an alien labor certification has been pending for over one year or if an I-140 petition was approved and visa numbers are unavailable.
F. Monitoring of International Students
F‑1 academic students, M‑1 vocational students, and J‑1 exchange visitors are now closely monitored by educational institutions and the CIS under the new Student and Exchange Visitors Information System (SEVIS) mandated by the U.S.A. Patriot Act.
G. Protecting Immigration Benefits for Children
The Child Status Protection Act amended the Immigration & Nationality Act on August 6, 2002. Children of foreign nationals seeking U.S. permanent resident status previously lost the opportunity to immigrate with their parents if they reached age twenty‑one while waiting for the INS to adjudicate pending immigration applications. Fairly complicated new rules essentially require the CIS to establish such a child’s age as the date of filing and not the date of adjudication of the application for permanent resident status.
H. Address Change Notification Requirements
The CIS now requires all foreign nationals, including permanent residents, to report any change in address within ten days of moving. Failure to provide notification is a misdemeanor offense that could result in a fine and/or sentence. If the failure to provide notice is found to be willful, the alien could be removable from the U.S. The form to use for an address change is the AR‑11, which is available on the CIS website at: http://www.uscis.gov/graphics/formsfee/forms/ar-11.htm
I. Additional Security Clearances
Due to the terrorist attacks of 9/11, and to enhanced computer technology, many additional security checks must be completed before the CIS or U.S. consular officials will approve nonimmigrant visas, immigrant status, or naturalization for U.S. citizenship. Employers have seen and will probably continue to see longer delays before foreign national workers and their dependents will be able to enter the U.S. or obtain extensions of status. Congress passed the Enhanced Border Security and Visa Entry Reform Act of 2002, which included a new security system known as CHIMERA. Many other new laws such as the National Security Entry Exit Registration System (NSEERS) seek to coordinate security clearances between the CIA, FBI, CIS, CBP, ICE, Department of State, and other agencies. The move of all immigration functions into the Department of Homeland Security seeks to coordinate these new security clearances; however, applications and petitions for employment authorization and other benefits continue to be delayed.
J. Employer or Job Changes While Immigration Applications Pending
Downturns in the economy trigger new problems for employers as well as foreign national employees. The U.S. Department of Labor issued requirements relating to applications for permanent alien labor certifications in situations when the employer has laid off workers during the prior six months as well as when there have been layoffs in a particular industry. If the employer has terminated workers, the employer must provide documentation about the number of workers laid off in the particular occupation and provide lawful, job related reasons that any laid off workers were rejected for the position for which certification is sought. Laid off foreign national employees often must scramble to change to another nonimmigrant immigration status, if eligible, or seek to take advantage of the H‑1B portability provisions. A useful change allows an intending immigrant whose adjustment of status application has been on file for over 180 days to transfer to a "same or similar" position with another employer without abandoning the pending immigration applications if the employer’s I-140 petition has been approved. There are still no regulations to interpret the definitions of a "same or similar" position; however, many of these cases have been approved by the CIS.
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U.S. Immigration Laws 
