1. H-1B Cap Reached on May 26
2. USCIS to Expand Premium Processing Service to Most Employment-Based Green Card Petitions
3. Senate Passes Immigration Reform Bill, Compromise With House Remains Uncertain
4. USCIS Reminds Adjustment Applicants to Obtain Advance Parole Before Summer Travel
5. Hearings Focus on Physicians for Underserved Areas, Impact of Visa Delays
6. DHS Cracks Down on Nonimmigrant Visa Overstays, Worksite Violations
7. Third Preference "Other Worker" Green Card Category Becomes Unavailable
8. Labor Dept. to Close America's Job Bank
9. New Articles on our Web Site
10. The Firm Speaks
11. Immigration Processing Times Links

1. H-1B Cap Reached on May 26

The U.S. Citizenship and Immigration Services (USCIS) announced June 1 that it has received enough H-1B visa petitions to meet the annual limit for Fiscal Year 2007, which starts on October 1, 2006. The USCIS has designated May 26, 2006 as the "final receipt date" for H-1B visa petitions for FY2007. H-1B visa petitions that are received by USCIS after May 26 will be rejected. Petitions received on May 26 will undergo a computer-generated, random selection process to determine which ones will be accepted or rejected. Unless Congress acts to increase the H-1B cap, employers whose H-1B petitions are rejected will have to wait until April 1, 2007 to file a new H-1B visa petition for FY2008, with a start date of October 1, 2007 or later.

This announcement does not apply to the separate "advanced degree" cap of 20,000 H-1B petitions per year for people who have Masters or higher degrees from American universities. As of May 25, USCIS reported that approximately 29% of the advanced degree cap has been used.

The USCIS announcement comes as a surprise. On May 25, only one day before the "final receipt date," the USCIS reported that it had over 9,000 slots remaining for the regular H-1B cap. The USCIS has not explained how the count could change so quickly.

The USCIS's press release is at http://www.uscis.gov/graphics/publicaffairs/newsrels/FY07H1Bcap_060106PR.pdf. Additional information regarding the specific number of H-1B petitions processed is at: http://www.uscis.gov/graphics/services/tempbenefits/cap.htm.

Who Is Not Subject to the H-1B Cap?

H-1B visa petitions for people who already hold H-1B visa status and who have been counted toward the cap in a prior fiscal year do not count towards the cap, so the USCIS will continue to process petitions filed to:

• extend the amount of time a current H-1B worker may remain in the United States;

• change the terms of employment for current H-1B workers;

• allow current H-1B workers to change employers; or

• allow current H-1B workers to work concurrently for another employer.

Also exempt from the cap are H-1B petitions for:

• people who will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization;

• citizens of Singapore and Chile, who are subject to a different cap under the free trade agreements with those countries;

• people who have been counted toward an H-1B cap within the past six years, unless they would be eligible for another full six years of admission (i.e., unless they have been outside the U.S. for at least one year); and

• physicians who have obtained waivers of the two-year home residence requirement resulting from their J-1 visa status.

What Other Visa Alternatives Are Available?

People who are subject to the H-1B cap may be able to obtain some other temporary visa status that provides work authorization, such as:

• F-1 visa status as a student;

• TN (NAFTA) visa status for citizens of Canada and Mexico who work in certain occupations, including entry-level and experienced employees;

• E-3 visa status (similar to H-1B) for citizens of Australia, pursuant to the free trade agreement with that country;

• J-1 (Exchange Visitor) and H-3 (Trainee) visa status, typically for entry-level or junior employees;

• L-1 (Intracompany transferee) visa status for employees transferred to the U.S. from an affiliated company abroad;

• E-1 (Treaty Trader) or E-2 (Treaty Investor) visa status for employees of certain foreign-owned companies doing business in the United States;

• O-1 (Extraordinary Ability) visa status for people who have achieved sustained national or international acclaim in their field of employment; or

• B-1 (Business Visitor) visa status, which is normally used only for short visits to the United States, but can be used in some cases for longer visits where an H-1B visa would otherwise be appropriate.

The USCIS notice means that normal H-1B numbers will not be available for 16 months, seriously hurting U.S. businesses. Miller Mayer's Steve Yale-Loehr chairs the business visa committee of the American Immigration Lawyers Association, and is working hard on legislation to increase H-1B numbers. If you would like to participate in this effort, contact Steve at mailto:syl@millermayer.com.

You can also help by sending a letter to your Senators and Representative urging them to support the high-skilled immigration provisions in the Comprehensive Immigration Reform Act of 2006 (S. 2611) (discussed below), which would provide a permanent solution to the H-1B problem. A model letter is at http://www.aila.org/content/default.aspx?docid=19562. Please fill it out right now!

2. USCIS to Expand Premium Processing Service to Most Employment-Based Green Card Petitions

As reported in our last issue, the U.S. Citizenship and Immigration Services (USCIS) published a notice in the Federal Register on May 23, 2006, that will soon open the agency's premium processing service to nearly all Form I-140 employment-based immigrant worker petitions (also known as green card applications). The agency also will extend premium processing to certain Form I-539 applications to change or extend nonimmigrant status, as well as to Form I-765 applications to renew employment authorization for foreign nationals with pending employment-based applications for adjustment of status.

USCIS's premium processing program allows petitioners and applicants to request expected adjudication of certain cases. Upon payment of a $1,000 fee, designated applications and petitions are slated for adjudication within 15 calendar days of filing. If the agency does not act on the case within the stated period -- by issuing an approval, a denial or a request for evidence in the case -- the $1,000 fee is refunded.

USCIS will extend premium processing service to Form I-765 applications to renew employment authorization for foreign nationals who have pending Form I-485 applications to adjust status that are supported by immigrant visa petitions in the EB-1 through EB-5 classifications.

In addition, USCIS will permit concurrent filing of Forms I-539 and I-765 for certain nonimmigrant classifications. Premium processing, if requested, will apply only to Form I-539. USCIS will not guarantee 15-day processing for an I-765 filed concurrently with a premium-processed I-539.

The USCIS premium processing notice is at: http://frwebgate5.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=398853149330+2+0+0&WAISaction=retrieve.

A separate USCIS notice clarified that USCIS Service Centers will not accept filings for any of these form types under the premium processing service until a formal announcement is made on the USCIS Web site announcing the specific start dates for acceptance of the new form types. Until that date is established and announced, USCIS Service Centers will reject any premium process filings for I-140s, I-539s or I-765s. That USCIS clarification is at http://www.uscis.gov/graphics/publicaffairs/statements/PremProcess052406PN.pdf.

3. Senate Passes Immigration Reform Bill, Compromise With House Remains Uncertain

On May 25, 2006, after months of back-and-forth wrangling, the U.S. Senate passed S. 2611, the Comprehensive Immigration Reform Act of 2006, a sweeping immigration reform package that includes both a guestworker program and border control and enforcement components. The House of Representatives passed its own version of immigration reform legislation last December (H.R. 4437). The House bill focuses on border enforcement and lacks a guestworker program. The two bills must be reconciled before a final bill can be enacted. In hopes of bringing the immigration reform legislation to a conclusion, Senate majority leader Bill Frist (R-Tenn.) is calling for swift negotiations with the House of Representatives.

Finding a compromise may be difficult because the two bills are so different. Rep. James Sensenbrenner, Jr. (R-Wis.), however, who will lead the House negotiators, signaled a general willingness to compromise: "I don't think anything is a deal-breaker. We can't have legal proceedings to deport 11 to 12 million people; that is evident."

The Senate bill contains numerous business-related provisions. For example, the Senate bill would:

• Raise the cap on H-1B nonimmigrant visas for highly educated temporary workers to 115,000, with a flexible market-based annual adjustment.

• Raise the employment-based green card cap and exempt key categories of workers from the cap.

• Provide exemptions for both H-1B and employment-based green card caps for certain workers who have earned an advanced degree in science, technology, engineering or mathematics.

• Allot two-thirds of the 50,000 green cards granted annually by the diversity visa lottery to those with advanced degrees.

• Establish a new electronic employment verification system that would replace the current paper-based I-9 system.

The Senate bill also has many other interesting immigration provisions, including:

Family-based Immigration Backlog Relief
•  New family-based cap of 480,000 per year, adding 260,000 new visas per year to eliminate backlogs
• Those in current family backlogs will get approval before any currently undocumented immigrants get legalized

New Temporary Worker Program
•  New program for 200,000 new temporary "essential" workers per year
• Employer has to seek U.S. workers first; labor protections and market wage requirements apply
• 3 year visa, renewal for 3 years, with portability to change employers
• Currently undocumented workers who entered U.S. after January 2004 are eligible; must leave U.S. to apply; 3 and 10 year bars are waived
• Can apply for permanent status within the new employment-based cap; can self-petition if worked for 4 years, otherwise employer can petition

Path to Legal Status for Undocumented Currently in the United States
• Undocumented immigrants who have been in the U.S. for at least 5 years prior to April 5, 2006 (estimated 6.7 million) are eligible for 6 years of work authorization and a path to eventual permanent legal status, upon payment of $2,000 fine, meeting English and civics requirement, passing background checks and paying taxes owed

• Undocumented immigrants who have been in the U.S. less than 5 years but more than 2 years, (estimated 2.8 million) are eligible for Deferred Mandatory Departure status, providing work authorization and eventual path to permanent status with the following requirements:

• Must leave U.S. within 3 years, "touch base" in home country and return to U.S.
• Can apply for readmission before departure from U.S.
• Departure requirement waived for spouses/children, or if substantial hardship on person or immediate family

Path to Legal Status for Undocumented High School Students (DREAM Act)
• Students who entered U.S. before the age of 16 and are present for 5 years preceding the date of enactment, and who have graduated from high school or obtained a GED can apply for 6-year conditional status

• Within 6 years, if the student has graduated from college or completed two years in a degree program, or served in Armed Forces, conditional status becomes permanent status

The full text of the final Senate immigration bill is at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:s2611es.txt.pdf

4. USCIS Reminds Adjustment Applicants to Obtain Advance Parole Before Summer Travel

The U.S. Citizenship and Immigration Services issued a statement on May 24, 2006, reminding those who have: (1) been granted temporary protected status; (2) applied for adjustment of status; (3) applied for relief under the Nicaraguan Adjustment and Central American Relief Act; or (4) filed asylum applications that they must apply for and obtain advance parole (permission to re-enter the U.S.) at a USCIS Service Center before traveling abroad. Persons failing to do so may have their immigration benefit applications denied.

The announcement is available at: http://www.uscis.gov/graphics/publicaffairs/newsrels/TravAdvisory052406PR.pdf. Additional information on how to apply for various travel documents is at: http://www.uscis.gov/graphics/howdoi/travdoc.htm. The I-131 Application for Travel Document is at: http://www.uscis.gov/graphics/formsfee/forms/files/I-131.pdf.

5. Hearings Focus on Physicians for Underserved Areas, Impact of Visa Delays

The House Judiciary Committee held a hearing on May 18, 2006, on H.R. 4997, the Physicians for Underserved Areas Act. The bill would reauthorize the J-1 visa waiver program, which provides opportunities for graduates of foreign medical schools who have trained in U.S. medical residency programs on J-1 cultural exchange visas to stay in the U.S. if they serve for three years in a designated health professional shortage area. Such areas are located in both rural and urban areas.

Leslie G. Aronovitz, Director of Health Care for the U.S. Government Accountability Office, (GAO) testified that the use of J-1 waivers remains a major means of placing physicians in underserved areas of the U.S., with more than 1,000 waivers requested in each of the past three years for physicians to practice in nearly every state. About 44 percent of states' waiver requests in fiscal year 2005 were for physicians to practice exclusively in primary care, while about 41 percent were for physicians to practice in nonprimary care specialties such as anesthesiology or cardiology. An additional seven percent were for physicians to practice psychiatry. More than three-fourths of the states' waiver requests were for physicians to work in hospitals or private practices. The GAO also noted that over 6,100 foreign physicians with J-1 visas took part in U.S. graduate medical education programs during academic year 2004-05, which was about 40 percent lower than was the case a decade earlier. The reasons for the decline are not completely understood.

The GAO noted that some states filled the per-state 30-waiver limit, but others reported needing more. Some states that had a sufficient allotment expressed their willingness under certain circumstances to share their allotment, but such redistribution would require legislation.

The GAO's testimony is at: http://www.gao.gov/new.items/d06773t.pdf. The hearing testimony on physicians in underserved areas is at: http://judiciary.house.gov/hearings.aspx?ID=142.

Also, the House Government Reform Committee recently held a hearing on the impact of visa processing delays on the arts, education, and American innovation. Committee chairman Tom Davis (R-Va.) noted that U.S. businesses need to be able to bring foreign partners and customers in on short notice; U.S. universities need to continue attracting top foreign students, many of whom will choose to stay in the U.S. and bolster the economy as a result; and "the U.S. cultural scene will continue to remain vibrant only as long as foreign artists are able to bring their work to American stages and galleries." He also noted that trade shows and arts presenters in particular "represent a significant segment of the U.S. economy, comprised largely of small businesses that don't always have the resources to cope with the significant additional expense of an inefficient visa process."

The hearing testimony on visa delays, which includes a statement by famed cellist Yo-Yo Ma, among others, is available at: http://reform.house.gov/GovReform/Hearings/EventSingle.aspx?EventID=41471.

6. DHS Cracks Down on Nonimmigrant Visa Overstays, Worksite Violations

According to reports from the field, U.S. Immigration and Customs Enforcement (ICE) has been visiting those whose nonimmigrant visa status has expired, even if such a person has obtained another status. In some cases, ICE agents are unable to verify the new status. Meanwhile, the Department of Homeland Security (DHS) announced last month that it is stepping up enforcement efforts against employers who knowingly hire undocumented workers. In addition, the DHS plans to work with Congress to build employer compliance systems. "Employers who want to stay within the law need a clear set of rules to follow. ICE and DHS will seek to develop an administrative regulatory program to provide clearer guidance to employers," the DHS said.

For more on the DHS's new efforts, see http://www.dhs.gov/dhspublic/display?content=5546.

7. Third Preference "Other Worker" Green Card Category Becomes Unavailable

The Department of State has announced that continued heavy demand for visa numbers in the employment-based third preference category for unskilled workers meant that the 5,000 annual numerical limit for that category was reached during May. Therefore, the employment-based third preference "Other Worker" category has become "unavailable" for June and will remain so for the remainder of the fiscal year.

The Visa Bulletin for June is available at: http://travel.state.gov/visa/frvi/bulletin/bulletin_2924.html.

8. Labor Dept. to Close America's Job Bank

Citing costs that outweigh benefits, the Department of Labor recently informed states that America's Job Bank (AJB) will be phased out gradually and will close by June 30, 2007. AJB, which aggregates job listings online of 2,000 state employment offices nationwide, lists more than 682,000 resumes and 2.1 million job openings. "The Department recognizes there will be a periodic need for a national job board due to unique circumstances, such as the recent dislocations related to the hurricanes in the Gulf Coast," the notice said. "It is the Department's assessment that it will be more cost effective to contract for this type of service with the private sector on an 'as needed basis.' "

AJB is often used by lower-skilled workers seeking jobs through state agencies and by employers seeking such workers to meet labor certification recruitment requirements or to demonstrate good-faith compliance with federal hiring guidelines.
AJB is at: http://www.ajb.dni.us/.

9. New Articles on our Web Site

Steve Yale-Loehr has co-authored a new article about "source of funds" issues for immigrant investors. The article is at http://www.millermayer.com/resources/immigrant/eb5cont.html

10. The Firm Speaks

Steve Yale-Loehr will speak at a NAFSA regional conference on June 15 in Utica, New York on immigration options for undocumented college students.

Steve will speak on a panel on how to be a better immigration lawyer at the annual conference of the American Immigration Lawyers Association (AILA) in San Antonio, Texas on June 22.

Contact Steve at mailto:syl@millermayer.com for more details on these talks.

11. Immigration Processing Times Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Centers: https://egov.immigration.gov/cris/jsps/index.jsp
Department of Labor: http://www.ows.doleta.gov/foreign/times.asp
Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

_____________________
That's it for this issue. Some of the information in this issue comes from the American Immigration Lawyers Association. Thanks to AILA for allowing us to reprint their information.

Some of the information in this issue also comes from the Academy of Business Immigration Lawyers (ABIL). Steve Yale-Loehr is a founding member of ABIL, the think tank of premier business immigration counsel.

For answers to any of your immigration questions, contact:

Hilary Fraser (mailto:htf@millermayer.com)
Carolyn Lee (mailto:csl@millermayer.com)
Rosie Mayer (mailto:rm@millermayer.com), or
Steve Yale-Loehr (mailto:syl@millermayer.com).

For general information, visit our web site at http://www.millermayer.com/

The usual required legal disclaimers (we ARE attorneys, after all): Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. The information in this newsletter is for general purposes only, and is not intended as legal advice for any particular situation. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

Copyright (c) 2006 Miller Mayer, LLP. All rights reserved.