The REAL ID Act – The Real Winners* 

By Stanley Mailman and Stephen Yale-Loehr**

All legislation has winners and losers. From the perspective of most immigrant, civil liberties, and bar groups, the REAL ID Act of 2005 is a real disaster. It became law on May 11, 2005 as part of a general appropriations bill. See   Division B of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Pub. L. No. 109-13, 119 Stat. 231. Most media attention to the REAL ID Act has properly focused on those provisions that make it harder for asylum applicants to obtain relief, e.g., section 101, curiously entitled “Preventing Terrorists from Obtaining Relief from Removal,” as if the 9/11 terrorists entered as asylees rather than as students; and section 106, which restricts judicial review by habeas corpus in removal proceedings. Accounting for its title, the REAL ID Act sets minimum standards for drivers’ licenses and other state identification documents used for federal purposes (section 102). Those who rely on the institutions of asylum and judicial review are the losers. As discussed in some detail below, the package also contains three provisions that ease the entry of some temporary workers and immigrants, among the REAL ID Act’s few winners.

 E-3 Visas for Australians

Of relatively little interest everywhere but Down Under is the temporary worker classification enacted by the REAL ID Act just for Australians. At a press conference to celebrate the new “E-3” visa in Canberra on May 31, a reporter asked Rep. F. James Sensenbrenner, Jr. (R-WI), Chairman of the House Judiciary Committee, “Why have Australians been singled out for this new visa?” See   http://Canberra.usembassy.gov/Sensenbrenner%20Q&A.htm (last visited June 18, 2005). According to Rep. Sensenbrenner, who led the fight for the REAL ID Act, the Australian government had pushed for the provision during earlier negotiations on its free trade agreement with the United States. He indicated then that he was opposed to mixing free trade with immigration, but that he would do what he could to incorporate the request into immigration legislation. He succeeded in doing that by slipping it into the REAL ID Act as Section 501.

Although the REAL ID Act places the new visa category in section 101(a)(15)(E)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 101(a)(15)(E)(iii), making it an E classification, the E-3 bears little resemblance to its companions, the E-1 (treaty trader) and E-2 (treaty investor). Rather, it has virtually all the earmarks of the H-1B. In fact, it is similar to the H-1B1, established for nationals of Chile and Singapore, to conform to the trade agreements that we earlier negotiated with those countries. See  2 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure § 20.08[6] (2005). To understand what the E-3 classification does for Australians it is helpful to start with a short description of the H-1B.

The H-1B is a nonimmigrant, i.e., temporary, classification for persons in a specialty occupation, for whom a U.S. employer petitions. Id. § 20.08. A specialty occupation is one that ordinarily requires a university degree in a particular field or the equivalent in education, training, and/or experience. To petition, a U.S. employer must establish to the immigration agency both its need for someone in that occupation and the worker’s credentials. While it doesn’t have to show a shortage of U.S. workers, neither may it underpay the market. The employer must first file a “labor condition application” with the U.S. Department of Labor, attesting among other things that it will pay at least the prevailing wage.

H-1B workers are ordinarily limited to six years in the United States. While they can come from any country, the annual cap on new H-1B workers is 65,000, a figure that has been so restrictive in recent years that the numbers have run out just a few months into or even on the first day of the federal fiscal year. See  Edward Alden, US Fills Annual Temporary Visa Quota for Skilled Foreign Workers in a Day, Financial Times, Oct. 6, 2004, at 1. By way of dispensation, Congress has enacted certain exceptions and, on two occasions, a temporary expansion. In exchange for these benefits, Congress has exacted special charges in addition to the regular filing fees. One is a surcharge of $1,500 ($750 if the petitioner has less than 25 employees). Another is a “fraud prevention and detection” fee of $500.

The new E-3 visa is also limited to workers in a “specialty occupation,” defined the same as for the H-1B. And it too requires the filing of a labor condition application, substantially the same as that needed for the H-1B. But after this the resemblance ends – almost altogether in favor of the E-3.

The E-3 is the only nonimmigrant classification that is available to qualified citizens of a single country – Australia. Despite its “E” moniker, suggesting its basis in a treaty, the E-3 is purely statutory and there are no arrangements for corresponding benefits to U.S. workers in Australia. (E-1 and E-2 visas are respectively for the qualified nationals of countries with which the United States has either a treaty of commerce and navigation, or an investment agreement with reciprocal provisions.) And unlike the employees in the E-1 and E-2 categories, E-3s aren’t limited to jobs with companies owned by compatriots: E-3s may work for any otherwise qualified U.S. employer. E-3 workers are also free of the 65,000 H-1B numerical cap and are subject only to a separate annual cap of 10,500 numbers all to themselves that will not be deducted from the H-1B allocation. (Accompanying spouses and children aren’t charged against the E-3 cap.) Note that last year, fewer than 1,000 Australians were able to enter the United States as new H-1Bs. See  Michael Gawanda, US Creates Special Visa for Australian Workers, The Age (Australia), May 12, 2005, available at http://www.advance.org/public/news.do - 1 (last visited June 19, 2005). Although filing fees are still to be set when regulations are issued, there is no provision here for the statutory surcharges mentioned above.

Section 501 of the REAL ID Act does not specify limits on the length of the E-3s’ stay. But it is understood that these nonimmigrants will, at least in this respect, be treated like the E-1 and E-2 – they will be admitted for two years, and receive two-year extensions indefinitely so long as they otherwise continue to qualify. Note that “E” nonimmigrants (including the E-3) are among those that do not have to have a residence abroad that they plan to retain. However, they must be prepared to leave the United States when their status expires. Like the E-1 and E-2 (and the L-1 intracompany transferee), accompanying spouses will be able to get work authorization and to apply for their visa directly with a U.S. consulate abroad. Although, as indicated, they must have evidence that their prospective U.S. employer has filed the labor condition application with the U.S. Department of Labor, they will not need approval of a petition filed with the U.S. Citizenship and Immigration Services, the drill that governs H-1B issuance.

H-2B Visa Changes 

With an annual cap of 66,000, the H-2B visa classification, like the H-1B, has in recent years been battered by demand. Sections 401 through 407 of the REAL ID Act seek to ease this pressure by providing additional temporary or seasonal workers and otherwise modifying the H-2B program, which is limited to such workers in short supply.

One such modification yields extra numbers by not counting “returning” H-2B workers, that is, workers who were counted during any one of the previous three fiscal years. That change, however, is only a one-time fix: it is effective retroactively to October 1, 2004 and expires October 1, 2006.

A permanent amendment provides that no more than 33,000 numbers may be assigned to H-2B nonimmigrants during the first six-months of any fiscal year. This feature will help employers who need H-2B workers for the second half of the fiscal year and have been frozen out because they are unable to file that far in advance.

On the other hand, starting October 1, 2005, section 403 imposes a “fraud prevention and detection fee” of $150 (in addition to any other applicable fees) on the filing of an H-2B petition. As an H-2B petition is usually filed for multiple workers, the sting may not be as sharp as the surcharge of $500 recently placed on H-1B and L filings for the same anti-fraud fund. Like the returning H-2B worker provision, the $150 fee is to be implemented immediately. Section 404 imposes monetary penalties and other civil sanctions, including a ban on future H-2B petitions, if the government finds a willful misrepresentation or a substantial failure to meet the conditions of the H-2B category.

More Green Cards for Health Care Workers

Finally, section 502 of the REAL ID Act restores up to 50,000 employment-based (EB) immigrant visa numbers that were unused in fiscal years 2001 through 2004. It doesn’t appear that these numbers have to be used in any specific fiscal year. The increased numbers may come in particularly handy in the next several months, when the EB-3 allocation will have run out. But they will only be available to those immigrants (together with their accompanying spouses and children) who qualify on the basis of a “Schedule A” certification. By that schedule, the Department of Labor has issued a blanket labor certification, providing that qualified U.S. workers are unavailable in certain listed categories. Schedule A is comprised of professional nurses, physical therapists, and persons “of exceptional ability in the sciences or arts” (excepting those in the performing arts). But practically it is the nurses who predominate Schedule A, and it is they who will benefit, together with the medical facilities where they are currently in short supply.

Conclusion

Nurses and physical therapists are winners under the REAL ID Act. So are the new Australian E-3s and the resort hotels and other employers that hire seasonal H-2B workers. The losers are the innumerable noncitizens who will find it harder to prove their asylum cases in administrative proceedings or to sue in the federal courts to stay in this country.

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* This article originally appeared in the June 27, 2005 issue of the New York Law Journal. Copyright © 2005 New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.

** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by LexisNexis Matthew Bender. Mr. Mailman (smailman@ssbb.com) is of counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr (syl@millermayer.com) is of counsel at Miller Mayer in Ithaca, N.Y., and teaches immigration and asylum law at Cornell Law School.