(http://www.millermayer.com/):

1. Backlogged Immigration Cases 'Could Take Years' to Process, USCIS Says; No Forward Movement of Green Card Cut-Off Dates
2. Talent Pool Increasingly Global: EU Blue Cards Proposed
3. USCIS Streamlines Readmission for Certain H and L Adjustment Applicants
4.  Labor Dept. Cracks Down on PERM Fraud, Increases Audits
5. Court Stops No-match Letter Rule
6. Congressional Roundup: Seasonal Workers, DREAM Act
7. H-2B Half-Year Cap Reached
8. Steve Yale-Loehr Quoted in the Wall Street Journal re EB-5 Immigrant Investors
9. Carolyn Lee Leads AILA EB-5 Teleconference
10. EB-5 Success Story: Entrepreneur Gets Green Card
11. Miller Mayer Immigration Group Halloween Photo
12. The Firm Speaks
13. Immigration Processing Times

1. Backlogged Immigration Cases 'Could Take Years' to Process, USCIS Says; No Forward Movement of Green Card Cut-Off Dates

U.S. Citizenship and Immigration Services faces a large backlog of immigration cases because of fee changes that led to a rush in applications filed in advance of the increases, combined with confusion over the cut-off date for employment-based change or adjustment of status applications. The latter confusion was caused by an announcement effective July 2 and rescinded two weeks later by the Department of State's Visa Office that employment-based visa numbers were no longer available for the remainder of the fiscal year. (See our August 2007 newsletter at http://www.millermayer.com/new/news8_8_07.html.)

The USCIS received over 2.5 million applications during July and August, including 300,000 employment-based adjustment applications. "It could take years to process all of the applications and issue all the visas," Michael Aytes, USCIS's Associate Director for Domestic Operations, told reporters. Mr. Aytes said that USCIS is considering some streamlining measures to speed things up, including the possibility of handling specific industries within a single USCIS office that is familiar with the unique demands of that industry, similar to what has already been done for sports teams.

Mr. Aytes also said that USCIS doesn't want a repeat of last year's H-1B debacle, where the H-1B numerical limit for fiscal year 2008 was met the first day applications were received, resulting in a lot of wasted time on preparing and processing applications that went nowhere. "While there was a significant use of resources by USCIS, I am even more concerned about the time and effort used [by employers] in preparing the applications," he said. USCIS is considering a pre-registration option that would allow the filing of a more limited application, with the remaining portions to be filed if the applicant succeeds. Mr. Aytes added that he wants "to do everything I can to dissuade" employers from filing multiple petitions for one worker based on different criteria.

Meanwhile, the Visa Bulletin for November 2007 reports that there has been no forward movement of the employment green card cut-off dates. "The reason for this is that it is still too early to see what impact the movement of the cut-off dates toward the end of FY 2007 may have on demand," the State Department noted. Depending on the rate of demand being received from USCIS offices for adjustment of status cases, some forward movement of dates may be possible for December. The Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3827.html.

2. Talent Pool Increasingly Global: EU Blue Cards Proposed

Will the European Union (EU) and other countries' aggressive recruitment strategies leave the U.S. behind in the dust? Robert Hoffman of Oracle warned that could be the case if the U.S. continues down its current discouraging path. With the proposed EU "blue card" for highly skilled workers looming on the horizon, Mr. Hoffman noted in the October 25, 2007, edition of Information Week that "[t]he competition for talent is truly global" and that the EU "clearly recognizes the challenges of an aging population and that highly talented individuals are job generators." Franco Frattini, European Commissioner for Justice, Freedom, and Security, said in a speech at the London School of Economics that it is essential for the EU to "become a real magnet for highly skilled immigrants."

The proposed renewable EU blue card would allow workers to live and work in an EU nation for three years and would allow them to bring their immediate families. Technology companies are likely to invest and expand wherever it is easier for tech employees to work, Mr. Hoffman said, noting that "[t]he competition for talent is truly global." Hoffman said that "if the U.S. immigration policy continues on this path, what choice do we have" but to begin looking elsewhere to expand its options.

A recent graduate of Cornell University who has accepted a postdoctoral stint at the National Institutes of Health commented, "I certainly can't put my life on hold for another 5 to 10 years waiting for a green card, and most definitely cannot live permanently in this toxic anti-immigrant environment." Another said, "I have recently been transferred to the USA by my company. I can see the red tape and the 10-year wait to get a green card. I don't have the patience or inclination to stay past my initial visa when I can work anywhere in Europe by virtue of my EU passport. The red tape here, and the abrasiveness towards foreigners in general, make this an unattractive place to be."

Leonard Lynn, a professor of management policy at Case Western Reserve University, and Harold Salzman, a sociologist and senior research associate at the Urban Institute in Washington, D.C., recently authored "The Real Global Technology Challenge" for Change magazine. They recently asked a class of 80 engineering and science graduates in India how many wanted to go to the U.S. A decade ago, the authors said, almost every hand would have gone up. But now, nobody raised their hand. "Why go to the U.S. when all the opportunity is in India?," the Indian graduates suggested. The authors also noted that Chinese managers they met who had received U.S. degrees were choosing to return to China rather than stay in the U.S., as they had previously planned to do, because opportunities in China were becoming more appealing.

The authors believe that the U.S. is "no longer the universally preferred home for the global technology elite," observing that increasing numbers of scientists and engineers who were educated and have built successful careers in the U.S. are returning to China, India, and other countries, and that many in the younger generation are simply not coming to the U.S. in the first place. Noting these trends, the authors note that "the policy and technology communities are sounding the alarm about an impending U.S. fall from scientific and technological dominance." The declining appeal of science and engineering for American students is compounding the problem, the authors argue, while the numbers of engineers and scientists trained in China and India continue to rise. A summary of this article is available at http://www.heldref.org/change/feas1.php.

3. USCIS Streamlines Readmission for Certain H and L Adjustment Applicants

U.S. Citizenship and Immigration Services (USCIS) published a final rule on November 1, 2007, to streamline the readmission of certain H and L nonimmigrants who have applied for adjustment of status to become permanent residents. The rule removes the requirement that such persons present a receipt notice (Form I-797, Notice of Action) for their adjustment applications when returning to the U.S. from travel abroad.

H-1 nonimmigrants affected by this rule include those under the H-1B classification for specialty occupation workers and the H-1C classification for certain registered nurses. L-1 nonimmigrants affected by this rule include those under the L-1A classification for certain intracompany transferees who are managers or executives, and the L-1B classification for specialized knowledge workers. Dependents of affected H-1s and L-1s, who are admitted as H-4s and L-2s, are also relieved of the receipt requirement.

USCIS also noted that H-1 and L-1 nonimmigrants (and their H-4 or L-2 dependents) are now exempt from the advance parole requirement. Previously, they were required to present a receipt for their adjustment application at the time of readmission to the U.S. following foreign travel. The final rule eliminates the "unnecessary burden" of presenting this receipt, USCIS said, because the information in the receipt is in USCIS databases available to immigration inspectors and adjudicators. Upon application for readmission to the U.S., they still must provide evidence to a U.S. Customs and Border Protection (CBP) inspector at the port of entry that they are:
* Still eligible for H-1 or L-1 status,
* Coming to resume employment with the same employer for whom they were previously employed, and
* In possession of a valid H-1 or L-1 visa, if required.

In the case of H-4 or L-2 dependents, the spouse or parent through whom they received their H-4 or L-2 status must meet the above requirements and the dependent must remain eligible for admission in H-4 or L-2 classification.
The full text of the final rule is available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-21506.pdf.

4.  Labor Dept. Cracks Down on PERM Fraud, Increases Audits

In response to the Department of Labor's final rule, effective July 16, 2007, requiring, among other things, that employers pay the costs of applications filed under the Program Electronic Review Management (PERM) program, Catherine L. Haight, a Los Angeles-based immigration attorney, said the risks are high for both employers and attorneys and that the Department would not hesitate to enforce the rule. She was quoted in the Daily Labor Report that the Labor Department is "taking this rule very seriously and are willing to consider any attempt to get around the rule as fraud." Others suggested that the Department would seek out employers and attorneys as examples and conduct more audits of the rationale for applications to show they are serious about rooting out fraud.

We have also seen increasingly frequent audits, often conducted on a random basis. For this reason we suggest filing PERM applications with great care. Contact us for guidance.

5. Court Stops No-match Letter Rule

On October 10, 2007, a federal court issued a preliminary injunction enjoining the Department of Homeland Security (DHS) and the Social Security Administration (SSA) from implementing the final rule, "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter." The plaintiffs are a consortium of labor and business groups. The court ruled that the balance of hardships "tips sharply in plaintiffs' favor" and that plaintiffs have "raised serious issues going to the merits." The court noted that the planned mailing of the no-match letters and accompanying DHS guidance under the final rule, within the timeline allotted, would have resulted in the "termination of employment to lawfully employed workers" because there are numerous errors in the SSA records, and that the "threat of criminal prosecution" represents a major change in DHS policy. Approximately eight million workers would have been affected, and the letters would have gone to about 140,000 employers. In response to the court's ruling, the SSA has said it will postpone sending out any no-match letters to employers until 2008.

Miller Mayer's Steve Yale-Loehr was quoted in the October 11, 2007 Wall Street Journal about the court's ruling Mr. Yale-Loehr noted that "[i]f you read the fine print [of the judge's decision], it doesn't mean the new rule can't go forward. It means the government must do a better job of determining its impact on business before it can republish the rule." Mr. Yale-Loehr also noted, in the London Financial Times that "[t]he Department of Homeland Security went too far in trying to promulgate rules to curb illegal immigration in the workplace when really Congress has to resolve the issue."
The preliminary injunction is available at http://www.nilc.org/immsemplymnt/SSA_Related_Info/no-match_PI_order_2007-10-10.pdf.

6. Congressional Roundup: Seasonal Workers, DREAM Act

A newly introduced bill, the "Save Our Small and Seasonal Businesses Act of 2007," would continue to exempt returning seasonal workers from an annual numerical limit of 66,000, after the exemption's expiration on September 30, 2007. This legislation, introduced by Sens. Barbara Mikulski (D-Md.) and John Warner (R-Va.), is supported by the U.S. Chamber of Commerce and various business organizations.

Also, the Senate rejected, 52 to 44, the Development, Relief and Education for Alien Minors (DREAM) Act, which would have provided undocumented children who were brought to the U.S. before the age of 16 with a path to permanent residence if they served in the military or completed two years of higher education. Sen. Richard J. Durbin (D-Ill.), a supporter of the bill, said that "to turn on these children and treat them as criminals is an indication of the level of emotion and, in some cases, bigotry and hatred that is involved in this debate."

7. H-2B Half-Year Cap Reached

U.S. Citizenship and Immigration Services (USCIS) announced on October 1, 2007, that it had received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the first half of fiscal year 2008. USCIS established September 27, 2007, as the "final receipt date" for new H-2B worker petitions requesting employment start dates before April 1, 2008. The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the first six months of FY 2008.

Under current law, USCIS noted, a returning worker who was counted toward the H-2B numerical limit during FYs 2004, 2005 or 2006 was exempt from being counted against the FY 2007 H-2B cap. USCIS noted that Congress has not yet reauthorized or extended the returning worker provisions for FY 2008. Absent such reauthorization or extension, USCIS must count all petitions requesting H-2B workers for new employment with an employment start date of October 1, 2007, or later toward the FY 2008 H-2B cap.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on September 27, 2007. Petitions for workers who are currently in H-2B status do not count toward the congressionally mandated bi-annual H-2B cap. USCIS will continue to process petitions filed to extend the stay of a current H-2B worker in the United States; change the terms of employment for current H-2B workers and extend their stay; or allow current H-2B workers to change or add employers and extend their stay.
The announcement is available at http://www.uscis.gov/files/pressrelease/H2B_1oct07.pdf.

8. Steve Yale-Loehr Quoted in the Wall Street Journal re EB-5 Immigrant Investors

Miller Mayer's Steve Yale-Loehr was quoted in the Wall Street Journal (November 2, 2007 edition) regarding the complexities of the EB-5 immigrant investor Program. In the article, Mr. Yale-Loehr was quoted as saying "The EB-5 program is one of the most complex and heavily scrutinized immigration programs. Investors must show that every cent was earned legally."

The article is available at http://online.wsj.com/article/SB119396545319580007.html

9. Carolyn Lee Leads AILA EB-5 Teleconference

Due to her expertise in the area, Miller Mayer attorney Carolyn Lee served as discussion leader for an AILA (American Immigration Lawyers Association) EB-5 teleconference on October 25, 2007 entitled "New Developments in EB-5s." The teleconference focused on issues and new developments in the EB-5 immigrant investor program. Carolyn used her extensive experience and substantial EB-5 practice to lead the discussion for almost 100 AILA attorneys.

For general information regarding the EB-5 program, see the EB-5 overview article at: http://www.millermayer.com/resources/eb5overview.htm. For more in-depth information, see: http://www.millermayer.com/resources/immigrant/eb5.html. For an article about recent positive trends in the EB-5 program, see: http://www.millermayer.com/EB5NYLJ0405.html. For an article about the source of funds requirement in EB-5 cases, see: http://www.millermayer.com/new/eb5funds.html.

10. EB-5 Success Story: Entrepreneur Gets Green Card

Attorney Carolyn Lee recently received an EB-5 approval for a foreign investor who set up his own custom home construction business in Florida. Originally in the U.S. on an E-2 visa, this investor financed the creation of a new business with $1 million by which he created at least 10 U.S. jobs. From advising on the business plan to responding to the immigration agency's Request for Evidence that requested information not actually needed, Carolyn guided this foreign investor to EB-5 approval. Needless to say, the investor, his family, and the company's workers are all very happy.

11. Miller Mayer Immigration Group Halloween Photo

Treat or Treat! The Miller Mayer Immigration Group was in full Halloween spirit this past October 31. Follow this link to see a picture of the entire group in costume! http://www.millermayer.com/halloween2007.html

12. The Firm Speaks

Attorney Hilary T. Fraser spoke at the Annual NAFSA Region 10 Conference on November 12 in Brooklyn, New York concerning H-1B cap issues.

On October 23, 2007, Attorney Carolyn S. Lee gave a talk about visa options for students after graduation at Cornell University in Ithaca, New York.

Carolyn Lee will serve as a panelist for the ilw.com "Investor Visas Workshop" on December 7, 2007 in New York City. To learn more about that seminar, see http://www.ilw.com/workshops/december2007investor.shtm

13. Immigration Processing Times

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.uscis.gov/cris/jsps/ptimes.jsp

Department of Labor: http://www.foreignlaborcert.doleta.gov/times.cfm
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 immigration counsel. ABIL's web site is: http://www.abil.com/

For answers to any of your immigration questions, contact:
Hilary Fraser (mailto:htf@millermayer.com)
Nicolai Hinrichsen (mailto:nh@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. Prior results do not guarantee a similar outcome.

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