U.S. Citizenship and Immigration Services (USCIS) issued guidance on January 11, 2006, regarding the adoption of an alternate definition of "American firm or corporation" under the Immigration and Nationality Act (INA). The definition is used in applications to preserve residence for citizenship purposes and applications for expedited naturalization for spouses of U.S. citizens stationed abroad by an American firm or corporation.

INA section 316(b) defines what constitutes breaking the continuity of residence required to qualify for naturalization, with exceptions including employment by certain American firms or corporations abroad.  USCIS's guidance states that a publicly held corporation may be deemed an "American firm or corporation" if the applicant establishes that the corporation is both incorporated in the U.S. and trades its stock exclusively on U.S. stock exchange markets.  If the applicant is unable to establish by a preponderance of the evidence that the employer is both incorporated in the U.S. and trades its stock exclusively on U.S. stock markets, the nationality of the firm would be determined instead by the nationality of those who own 51 percent or more of the corporation.  USCIS said that this reasoning also may be applied in determining the nationality of a publicly traded foreign corporation.

INA section 319(b) provides that spouses of U.S. citizens stationed abroad for an "American firm or corporation" may be naturalized without having to establish a period of residence or presence in the U.S. The three- or five-year waiting period is waived for these applicants.

While the guidance creates an "alternate" definition of American firm or corporation, it also clarifies that it is not enough to be incorporated in the U.S. if a majority of shareholders are not U.S. citizens.

U.S. Citizenship and Immigration Services (USCIS) issued guidance on January 6, 2006, on the eligibility requirements and documentation needed for workers wishing to change status to that of an E-3 worker or to extend their E-3 status.  The new E-3 nonimmigrant classification, created by the REAL ID Act of 2005, allows for the admission of an Australian temporary worker to perform services in the U.S. in a specialty occupation.  Nonimmigrants who are already in the U.S. may apply to change their status to that of an E-3 specialty worker.

USCIS said that, to qualify for E-3 classification, a worker must be an Australian national seeking employment in a specialty occupation requiring possession of a bachelor's degree or higher (or its equivalent), and possess the appropriate degree (or its equivalent) in the field in which the person wishes to work.  E-3 nonimmigrant status is granted initially for a period of no more than two years; extensions of stay may be granted indefinitely in increments not to exceed two years.

Congress has established a yearly cap of 10,500 new E-3 workers.  For purposes of the cap, "new E-3 workers" are those who, coming from abroad, are admitted initially in E-3 classification or those who change their nonimmigrant status to E-3 classification or change employers while in E-3 status.  Unlike the dependent of a worker in the H-1B nonimmigrant classification, a separate and independent category, the dependent spouse of an E-3 temporary worker may apply for and receive work authorization.

Those already in the U.S. who wish to change their status to E-3 or to extend their E-3 status may do so by filing Form I-129, Petition for a Nonimmigrant Worker, with the Vermont Service Center.  The fee is $190.  In addition to the I-129, applicants must include: (1) proof of Australian nationality; (2) a letter from the prospective U.S. employer describing the worker's occupation, the worker's anticipated length of stay, and salary or remuneration arrangements; (3) evidence that the worker meets the educational requirements for the position to be filled (a bachelor's degree or higher or its equivalent in the specialty occupation); (4) evidence that the worker meets any licensing or other occupational requirements; and (5) evidence that the prospective U.S. employer has filed with the Department of Labor a labor condition application (LCA) specifically designated for E-3 specialty occupations.  Employers must apply for LCAs online at http://www.lca.doleta.gov/.  Contact your ABIL member to help you navigate these complex evidentiary requirements.

USCIS's announcement appears at http://uscis.gov/graphics/publicaffairs/newsrels/E3_010606PR.pdf.  Processing guidelines for E-3 workers and spouses are available at http://uscis.gov/graphics/lawsregs/handbook/E3PolGdnc_121505.pdf.  A list of frequently asked questions about E-3 visas is available from U.S. consular services in Australia, http://canberra.usembassy.gov/consular/visa-e3.html.  The Australian government has posted a statement about E-3 visas at http://www.dfat.gov.au/geo/us/e3_visa.html.

U.S. Citizenship and Immigration Services (USCIS) recently released field office guidance on evaluating requests for rescheduling interviews and handling the failure of an individual to appear for a scheduled interview.  The memorandum notes that failure to appear for a scheduled interview generally results in denial of the application or petition.  USCIS said that it recognizes that an individual may fail to appear "reasonably" because the agency received a change-of-address notification after the interview notice has gone out, or because the agency erred in processing the change of address.  An applicant or petitioner also may demonstrate good cause for requesting that an interview be rescheduled "because of circumstances beyond the individual's control."  The guidance is available at http://uscis.gov/graphics/lawsregs/handbook/NoShowIntrvw112305.pdf.

Homeland Security Secretary Michael Chertoff announced on January 17, 2006, the development of "a new, inexpensive secure travel card for land border crossings" that will meet the documentation requirements of the Western Hemisphere Travel Initiative but "not necessarily require people to have passports."  "We're talking about essentially like the kind of driver's license or other simple card identification that almost all of us carry in our wallets day in and day out,'' he said. 

The People Access Security Service (PASS) system card is expected to be targeted for use by those in border communities who regularly cross northern and southern borders.  Secretary Chertoff said the PASS system is "an important first step in implementing a broader shared vision for a unified, user-friendly system for trusted travelers."  He and Secretary of State Condoleezza Rice have been working together to establish a "global enrollment network that will unify our various registered traveler programs into a single comprehensive system."  The idea is, he said, to get necessary information only one time from an applicant and create a system that allows both Homeland Security and Department of State officers to access the data to confirm a traveler's identity.  Secretary Chertoff hopes to begin issuing PASS cards by the end of 2006, although they would not be required for an additional year.

The transcript of Secretary Chertoff's speech is available at http://www.dhs.gov/dhspublic/interapp/speech/speech_0266.xml.

The US-VISIT biometric security program is now operational in 115 airports, 14 seaports, and 154 land-based ports of entry in the United States, and a pre-screening capability is operational in visa issuance offices.  Homeland Security Secretary Michael Chertoff noted that, since 2004, more than 970 individuals with suspected criminal or immigration violations have been intercepted by US-VISIT.  Since January 2004, US-VISIT reportedly has processed more than 44 million visitors, which makes the program the largest-scale application of biometrics in the world, according to Government Technology.  US-VISIT currently applies to all nonimmigrant visitors (with limited exemptions), regardless of country of origin.  Under the program, a border officer takes a digital photograph of the traveler and uses an inkless, digital finger scanner to capture two fingerprints. 

The Congressional Budget Office's new report, "The Role of Immigrants in the U.S. Labor Market," discusses the impact of foreign workers' educational attainments and earnings.  Sharp differences exist between the educational attainments of workers from Mexico and Central America versus those from other parts of the world.  A flexible labor market will adjust over time to the presence of foreign workers, the report states, and the U.S. economy should attract more capital from investors who seek opportunities here.  During the next half-century, immigrants and their descendants are expected to provide the majority of the U.S.'s population growth.  Who immigrates to the U.S. and what they and their descendants do after their arrival increasingly will determine the size and skill composition of the U.S. labor force, the report notes.  Tables provide statistics on foreign workers in the U.S. and their occupations.  The report is available at http://www.cbo.gov/ftpdocs/68xx/doc6853/11-10-Immigration.pdf.