1. PERM: More Questions than Answers
2. Update on Additional 20,000 H-1B Visas
3. EB-3 Visa Worker Cut-off Extends to Skilled Workers
4. New DOS Security Fee
5. New Articles on Our Web Site
6. The Firm Speaks  

1. PERM: More Questions than Answers  

The March 28 start of the Program Electronic Review Management (PERM) has been greeted with more questions than answers. PERM is the Department of Labor (DOL)'s new electronic process for filing and processing labor certification applications for permanent employment-based immigration. The new PERM system is intended to help streamline the permanent labor certification system and thus combat the current labor certification backlog.

One of the main questions raised by PERM is what happens to labor certification applications filed before PERM began. PERM regulations allow employers to keep their current priority dates if they withdraw their original labor certification applications and re-file "identical" applications through PERM. While refiling through PERM may mean a relatively rapid adjudication, many lawyers and employers are reluctant to do so. Cases filed before PERM may not comply with PERM regulations, and changing an application to make it so would disqualify the case from keeping the old priority date. An alternative would be to keep the old labor certification and concurrently apply for a labor certification through PERM. However, PERM regulations do not specify if employers can do this. Cases that have yet to be adjudicated through the old labor certification system, which number over 200,000, have been sent to backlog reduction centers in Dallas and Philadelphia. The DOL estimates that it may take over two years to adjudicate all of these cases.  

Another question lingering after the implementation of PERM is how to determine the prevailing wage for employees. The DOL recently issued instructions for prevailing wage determinations, outlining a four-tiered system to match an employee's training and experience with their compensation. The previous DOL system only had two levels. Further, the DOL has pointed to its electronic job zone determination system, O*NET, as a source of information for wage determinations. However, the rules governing new prevailing wage determinations are ambiguous and sometimes erroneous. 

The DOL has created a web site to support the new PERM system. This site may be reached at: http://atlas.doleta.gov/foreign/. For more information about the O*NET system, please visit: http://online.onetcenter.org/  

True, Walsh & Miller's Steve Yale-Loehr has just finished editing a book explaining the PERM system. The book should be published shortly. More details on how to order the book will appear in our next newsletter.  

2. Update on Additional 20,000 H-1B Visas  

On December 8, 2004 President Bush signed the Consolidated Appropriations Act of 2005 into law. This act authorizes funds for the federal government for another year. The law included several changes to the H-1B category. Among these changes, the bill exempts from the H-1B visa cap 20,000 H-1B visas for foreign nationals with masters or higher-level degrees from U.S. universities.  

This provision has been a point of confusion among concerned parties. In March the U.S. Citizenship and Immigration Services (USCIS) announced that contrary to the letter of the new law, the additional 20,000 H-1B visas would be available to all qualified H-1B applicants, not just foreign nationals with advanced degrees. In a recent interview the American Immigration Lawyers Association (AILA) conducted with a USCIS official, the official could not confirm that the USCIS would adhere to this announcement.  

The additional 20,000 H-1B visas were supposed to be available starting March 8, 2005. Although March 8 has come and gone, no one can apply for the additional 20,000 H-1B visa numbers until the USCIS issues regulations implementing the new law. The regulation is awaiting clearance from the Office of Management and Budget.  

Further contributing to the H-1B confusion, the USCIS recently announced that they miscounted their FY 2005 visa numbers, mistakenly approving 10,000 H-1B petitions too many. We do not believe that this mistake will have any effect on the additional 20,000 visas allocated for this year.  

This situation illustrates the volatility of the immigration system. However, one message is clear: if you are considering filing an H-1B petition, prepare your case as soon as possible for filing. 

True, Walsh & Miller's Steve Yale-Loehr chairs the Business Visa Committee of AILA. He and AILA are asking Congress for an increase in access to the H-1B program. To send a letter to your member of Congress on this important issue just click to:

http://capwiz.com/aila2/mail/oneclick_compose/?alertid=5183421 It takes less than 60 seconds!  

3. EB-3 Visa Worker Cut-off Extends to Skilled Workers  

In its April 2005 visa bulletin, the Department of State (DOS) announced that the processing dates for the EB-3 "other workers" category have retrogressed to July 1, 2001. This means that only labor certifications or green card petitions started for "other workers" (i.e., unskilled workers) before July 1, 2001 are now being processed. This backslide comes after a more localized retrogression in the EB-3 green card category. In January 2005, the DOS announced a retrogression in the EB-3 professional and skilled workers category affecting only immigrants from China, India, and the Philippines. Before the retrogression the DOS processed EB-3 immigrant visas in a nearly current fashion.  

Some immigration professionals (including us) fear that increased pressure on immigrant visa categories will lead to a further retrogression of this green card category. To avoid potential delays, start your labor certification and green card applications as soon as possible.  

To read the April 2005 DOS visa bulletin please visit:http://travel.state.gov/visa/frvi/bulletin/bulletin_2150.html  

4. New DOS Security Fee  

According to the Department of State (DOS), starting April 1, 2005 all consular posts will charge a $45 "immigrant visa surcharge" to all immigrant visa applications, including diversity visas. The DOS added the surcharge to recover costs of consular services in support of enhanced border security. It is important to note that individuals who have already submitted their applications with fees and are awaiting consular interviews will be charged this fee at their appointments. Many consulates have not updated their materials distributed to visa applicants to inform them of this change.  

5. New Articles on Our Web Site  

We have added two new PowerPoint presentations to our website, one on employment immigration issues, the other summarizing visa options for international students after they graduate. To view these presentations go to the top of the following page on our web site: http://www.millermayer.com/resources/generalcont.htm  

6. The Firm Speaks  

On Wednesday April 6 at 4 pm Steve Yale-Loehr will discuss visa options after graduation for international students and scholars at Binghamton University. Steve will discuss F-1 and J-1 practical training options after graduation, H-1B and other temporary worker visas, and green cards.  

On Tuesday April 26 Hilary Fraser will discuss visa options after graduation for international students and scholars at Cornell University. The talk will take place at 5 pm in Goldwin Smith Hall. 

On Wednesday May 4 Steve Yale-Loehr will moderate a panel in New York City at a conference on the new PERM regulations. He will also give a talk on visas after graduation at Columbia University at noon that same day.  

On Tuesday June 7 Steve Yale-Loehr will testify in Ottawa, Canada before a Parliamentary commission on the legality of extraordinary rendition (the outsourcing of torture).  

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

_____________________

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.  

For answers to any of your immigration questions, contact:  

Hilary Fraser (mailto:htf@millermayer.com)
Carolyn Lee (mailto:csl@millermayer.com)
Rosie Mayer (mailto:rma@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.  

To unsubscribe to this newsletter, email mailto:syl@millermayer.com. Please type "unsubscribe to millermayer.com immigration newsletter" in your subject line.  

Copyright (c) 2005 True, Walsh & Miller, LLP. All rights reserved.