1. Congress Approves Changes to H-1B and L-1 Visa Categories
2. Congress Approves Conrad State 30 Program Extension
3. USCIS Unveils New Green Card
4. IRS Issues Statement about Delays in Issuing Social Security Numbers
5. President Signs Bill Allowing Electronic Storage of I-9 Forms
6. The Firm Speaks

1. Congress Approves Changes to H-1B and L-1 Visa Categories

Congress has approved an appropriations bill to fund the government for another year. Among the many provisions in the bill are major changes to the H-1B temporary worker and L-1 intracompany transferee visa categories. President Bush is expected to sign the bill shortly.

Under the bill, up to 20,000 foreign nationals with masters or higher level degrees from U.S. universities will be exempt from the H-1B cap each year. It appears that H-1B visas will be available to the first 20,000 foreign nationals who apply on or after the effective date of the new law, which should be in early March 2005. Demand for these additional 20,000 H-1B visas will be extremely high. As a result, companies wishing to hire eligible foreign nationals should file H-1B petitions on or about the first day the numbers become available. The new law is especially important to F-1 and J-1 nonimmigrants working for employers based on authorized practical training that will expire in the spring or summer of 2005.

Legislators also agreed to increase the financial burden on employers who hire H-1B non-immigrants. The "worker retraining fee" applied to each H-1B petition has been raised from $1,000 to $1,500. Employers with 25 or fewer employees will only have to pay $750. The law also introduces a new $500 fraud prevention and detection fee.

Employers will have to pay 100% of the prevailing wage for the particular job, rather than 95%, as permitted in the past. The law requires the Department of Labor (DOL) to provide a four-tiered evaluation system to match training and experience with the appropriate wage. This would be more comprehensive than the system currently offered.

Fraud is a major concern addressed in both the H-1B and the L-1 visa category changes. The H-1B visa reform includes a section that permanently reinstates the DOL's ability to investigate H-1B employers if the agency has "reasonable cause to believe" that the employer is not in compliance with any H-1B requirements.

Changes to the L-1 visa category reflect concerns by legislators and the media that some overseas companies have allegedly used the L-1 visa category to outsource their employees to large U.S. companies and thus displace U.S workers. In an attempt to erase any loopholes that might lead to visa abuses, the new law clarifies that an L-1 specialized knowledge worker cannot be effectively an employee of a third party company. The petitioning company must primarily control and supervise its L-1 employees.

The new fees take effect on the date the President signs the bill into law. Most of the H-1B changes are effective 90 days after that date, while the L-1 changes become effective 180 days after that date. Contact any of our immigration attorneys to analyze how the new H-1B and L-1 changes may affect you or your company.

2. Congress Approves Conrad State 30 Program Extension

On November 17 Congress passed a bill reauthorizing and augmenting the Conrad State 30 program. The core of the Conrad State 30 program is that it allows up to 30 foreign medical school graduates per state to waive the normal requirement of having to return to their home countries for two years after completing their U.S. medical studies.

First, the bill extends the Conrad State 30 program for two years, until June 1, 2006.

Second, the new bill exempts Conrad State 30 participants from the H-1B cap. The U.S. Citizenship and Immigration Services (CIS) has consistently interpreted the Conrad program legislation as exempting foreign medical graduate students from the H-1B cap. However, prior legislation could have been interpreted to include Conrad State 30 participants under the H-1B cap. Such an interpretation could have seriously handicapped the effectiveness of the bill. This new bill removes that possibility.

Third, the new legislation allows Conrad State 30 participants to practice specialty and primary care. Previously, only State Agency or Veterans Administration-sponsored participants could practice specialized medicine. This provision allows medical graduates who have trained in specialty professions to use their training in areas without specialty care.

Fourth, the bill allows a facility that employs a Conrad waiver physician to be located outside of a Health Professional Shortage Area (HPSA), provided that the facility serves patients from HPSA areas. The old legislation only allowed facilities to request a Conrad waiver if they were physically in a HPSA.

President Bush is expected to sign the bill shortly.

For a state-by-state summary of Conrad State 30 programs, visit http://www.millermayer.com/resources/medical/conrad.html

3. USCIS Unveils New Green Card

On November 15, U.S. Citizenship and Immigration Services (USCIS) announced several changes to Form I-551, or the "green card". The new green cards bear the seal of the Department of Homeland Security as well as several enhanced security features. These changes come as the USCIS exhausts its supply of green cards marked with old Immigration and Naturalization Services (INS) information. Green cards distributed before November 15 will remain valid until their expiration dates or until the USCIS recalls them.

To view an electronic copy of the new green card, visit:
http://uscis.gov/graphics/publicaffairs/newsrels/PRCard_11_15_04.pdf

4. IRS Issues Statement about Delays in Issuing Social Security Numbers

The Internal Revenue Service (IRS) recently issued a statement on its website addressing concerns about IRS-imposed penalties resulting from delays in issuing social security numbers. The IRS recognized that immigrants have been experiencing delays in receiving social security numbers. The IRS identified policy changes the Social Security Administration (SSA) made in August 2002 as the major cause of these delays. Without a social security number, the IRS cannot issue an Individual Taxpayer Identification Number (ITIN). Failure to have an ITIN would ordinarily cause the IRS to impose penalties on employers.

If an employer cannot furnish an ITIN because of SSA delays, the IRS will be "quite favorable toward considering this situation [as] one in which 'reasonable cause' exists for not asserting such penalties." The employer should document their failure to supply a payee ITIN as a direct result of new SSA procedures. The IRS further mentions in its statement that other documents listed on employment eligibility or I-9 forms may prove work eligibility. The IRS also cautioned that other federal, state and local agencies have the ability to impose penalties for an employer's failure to report a payee's ITIN number.

To read the IRS' statement on SSA-caused delays in issuing social security numbers, please visit: http://www.irs.gov/businesses/small/international/article/0,,id=129227,00.html

5. President Signs Bill Allowing Electronic Storage of I-9 Forms

On October 30, President Bush signed into law an act that allows businesses to electronically complete and store employment eligibility or I-9 forms.

Under the Immigration Reform and Control Act of 1986, employers must sign I-9 forms and store them for potential reference by the immigration services. The new law allows employers to electronically "sign" I-9 forms and store them.

While this new law has the potential to facilitate I-9 filing, the Department of Homeland Security (DHS) has not formulated any regulations spelling out the law's implementation. Although the law will take effect April 28, 2005, without DHS guidance employers will not be able to take advantage of the electronic storage option.

To find out more about the I-9 form please visit: http://uscis.gov/graphics/formsfee/forms/i-9.htm

6. The Firm Speaks

December 16: Steve Yale-Loehr will give a talk to judges on the U.S. Court of Appeals for the Second Circuit in New York City about recent changes in immigration law.

March 23, 2005: Steve will chair the PLI annual basic immigration law seminar in New York City. Details about the seminar are available at http://www.pli.edu/product/program_detail.asp?ptid=511&stid=3&id=EN00000000020270

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).