Business Immigration News Update 
from True, Walsh & Miller 
May 24, 2000

1. National Sign-on Letter in Support of H-1B Legislation
2. INS Inches Forward on H-1B Cap Case Processing
3. DOL Revises Prevailing Wage Standards
4. Employment-based Priority Dates Remain Stuck for People from India, China
5. The Firm Speaks, Chats and Writes

1. National Sign-on Letter in Support of H-1B Legislation

The American Business for Legal Immigration (ABLI), a Washington DC-based coalition of employer groups, is circulating a letter in support of legislation to increase the number of H-1B nonimmigrant work visas.  The letter appears below.  ABLI will send this letter to the House of Representatives in early June to demonstrate both support for the Dreier-Lofgren H-1B bill (H.R. 3983) and opposition to the Smith bill, H.R. 4227. ABLI hopes to gather 300 signatures from companies, associations, educational institutions, non-profits and other employers.  Please consider signing onto this letter. To date more than 200 companies have signed on.

To sign on, please forward the following information, by e-mail (tbrown@aila.org) or fax (202-371-9449): employer's name; name, title and phone number of the individual at the employer authorizing the sign on; city and state in which the employer is located.  The deadline for sign ons is Thursday, June 1, 2000.  If you have any questions, please contact Theresa Brown at 202-216-2408). 

Thank you for your continued advocacy efforts!  Together we can raise the cap on H-1B visas. 

Please note two things, however.  First, it is not at all clear that any legislation will be enacted before October 1, the start of the new fiscal year.  In the meantime, the INS has at least given some good news by acknowledging that people in F and J nonimmigrant status can receive signing bonuses while waiting for their H-1B visas to come through.  Second, any legislation is likely to include significant new requirements for filing and documenting H-1B visa petitions.  So, although any new law will probably increase the number of H-1B visas, processing petitions under the new requirements may be as slow and cumbersome as currently, if not more so.

Draft letter:

Dear Republican Leadership:

On behalf of the American Business for Legal Immigration Coalition (ABLI), we want you to know of our strong support for H.R. 3983, the HI-TECH Act introduced by Representatives David Dreier and Zoe Lofgren. The bill, which temporarily raises the cap on H-1B visas, addresses the critical workforce shortage American employers face, particularly for jobs requiring degrees in math, science and engineering. 

Three trends are at the crux of the problem.  Unemployment is at a record thirty-year low.  Demand for professionals with highly specialized skills has soared while the number of American students graduating from U.S. universities with degrees in math, science, engineering and other technical disciplines has declined.  Finally, the way companies design, manufacture and market products and services around the globe demands international personnel mobility. Unfortunately, American employers are finding it increasingly difficult to locate and recruit professionals to meet current project demands. Failure to raise the cap to allow access to highly educated foreign professionals, many of whom were trained in U.S. universities, will result in lost sales, delayed projects and other setbacks that will threaten the technological preeminence of U.S. industry.

The Dreier-Lofgren bill would provide immediate relief to employers. It would ensure that a number of visas are clearly reserved for individuals with masters degrees and above as well as for individuals working for institutions of higher education and non-profit research organizations.  Moreover it would institute changes to the green card process that would help to alleviate some of the pressures that are currently borne by the H-1B program.  The bill also directs funds raised by the fee to effective education and training programs that help lay the groundwork for longer-term solutions to the worker shortage issue.  The bill enjoys broad bipartisan support from Members across the country.

We appreciate the fact that Immigration Subcommittee Chairman Lamar Smith has acknowledged the need to adjust the cap.  However, we believe his bill, H.R. 4227, does not provide the necessary changes to deliver meaningful relief.  Indeed, H.R. 4227 imposes burdensome new requirements on the H-1B program that would make the program unusable for many employers.  The HI-TECH Act is currently the only viable, bipartisan vehicle for moving forward on this issue this year.  With the cap on H-1Bs already expired, the need to address this issue quickly is acute.  We cannot afford to maintain an artificial cap on our technology-driven economy.  We look forward to working with you on this critical bill in the weeks ahead.

2. INS Inches Forward on H-1B Cap Case Processing

According to the American Immigration Lawyers Association (AILA), the INS continues to lurch forward a week at a time in processing H-1B cases countable toward the annual cap. INS Service Centers have now been instructed to process new H-1B cases filed up to March 2, 2000. Once the four centers reach that point, INS headquarters will evaluate where it stands with respect to the cap and issue instructions on the next goal date for processing.  Stay tuned for details. 

The fact that the H-1B cap was reached so early this year (only six months into the fiscal year) shows why new legislation is needed.  This is yet another reason to support the legislation discussed in the first article above.

3. DOL Revises Prevailing Wage Standards

The federal Department of Labor (DOL) has published a new memo on prevailing wage issues.  The memo includes new guidelines on when private or employer wage surveys can be used instead of DOL surveys. Such surveys are important for both H-1B nonimmigrant visas and many employment-based green card applications.  Please contact us ff you have a question about this memo.

4. Employment-based Priority Dates Remain Stuck for People from India, China

Priority dates for green cards measure a person's place in line to receive a green card.  While there are long waits in almost all of the family-sponsored immigrant visa categories, most of the employment-based (EB) green card categories have no backlogs.  Two noticeable exceptions are India and China.  Currently, people from China with advanced degrees can receive a green card in the EB-2 category only if they filed before September 1, 1997.  Indians in the EB-2 category can receive green cards only if they filed before June 1, 1999.  The backlog is even worse for people from India and China in the EB-3 category, which is for people with bachelor's degrees or lower. There the wait for people from these two countries is backlogged over three years, to early 1997.  In addition, people with approved green card applications cannot start the adjustment of status process to actually receive their green card until their priority date is current. Some INS offices are taking one to two years to process adjustment applications.  Thus, the overall process can take up to five years for many people from India and China.  This puts a premium on starting the green card process as early as possible, especially for Indians and Chinese in H-1B status, who face a six-year limit in that category.

5. The Firm Speaks, Chats and Writes

Steve Yale-Loehr will speak on May 31 at the NAFSA: Association of International Educators conference in San Diego on the legal, ethical and practical issues surrounding undocumented students at U.S. colleges and universities.  He will also speak on investor visas at the annual conference of the American Immigration Lawyers Association (AILA) in Chicago June 15-18.  Steve currently co-chairs the AILA investors committee.  He will also moderate a panel on the immigration aspects of corporate reorganizations at the AILA conference.

Please note that all of the firm's immigration lawyers will be at the AILA conference June 15-18.  We will check our voice mail, however, while we are out of town.

Steve Yale-Loehr recently held a live Internet chat about work-related visas and green cards.  To see a transcript of the chat, go to http://www.ilw.com/immigrants/

Steve Yale-Loehr has also co-authored an article about the immigration impact of corporate reorganizations on H-1B workers as part of his regular immigration column for the New York Law Journal.  The article is reprinted here

The contents of these web pages are provided for general informational purposes and do not constitute legal advice for specific cases, which should only be obtained from an attorney.

Copyright © 2008 Miller Mayer. Attorneys at Law The Commons, 202 East State Street, Ithaca, New York 14850 phone: 607-273-4200, fax: 607-272-6694, E-mail: info@millermayer.com