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March 13, 2006 Miller Mayer Immigration News Update
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1. Dept. of Labor Proposes Labor Certification Changes 1. Dept. of Labor Proposes Labor Certification Changes The Department of Labor (DOL) is proposing to eliminate the current practice of allowing the substitution of beneficiaries on permanent labor certification applications and resulting certifications. Also, the DOL proposes a 45-day limit for employers to file approved permanent labor certifications in support of an immigrant visa petition with U.S. Citizenship and Immigration Services. The proposed rule, published in the Federal Register on February 13, 2006, would also expressly prohibit the sale, barter, or purchase of permanent labor applications and certifications, as well as other related payments. Finally, the rule highlights existing law pertaining to the submission of fraudulent or false information, clarifying current DOL procedures for responding to possible fraud and adding procedures for debarment from the permanent labor certification program. The provisions would apply to permanent labor certification applications and approved certifications filed under both the PERM regulation effective March 28, 2005, and any prior regulation implementing the permanent labor certification program. The proposed rule also proposes clarifying modifications of applications filed after March 28, 2005, under the new streamlined permanent labor certification process. The proposed rule seems to prohibit the transfer of a labor certification as an asset in a corporate sale, merger, or reorganization. Further, employers are expending honest resources to make good-faith applications for a benefit that belongs to the company once a labor certification has been issued. As such, they should be able to assign that benefit to another qualified employee if the original beneficiary becomes unavailable. Also, the 45-day time limit seems far too short and hardly allows for normal postal delays. The DOL is soliciting comments on the proposed provisions. Interested persons should submit written comments on the proposed rule by April 14, 2006. See the proposed rule for details on the provisions and how to submit comments at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-1248.pdf. 2. State Dept. Advises on Student Visa Validity After a Break in Studies The Department of State recently issued guidance on the validity of student visas after a break in studies. In several circumstances, a student's visa is automatically invalidated after a lengthy break in studies (longer than five months). An individual admitted in F-1 or M-1 status to study in the United States who is transferring between schools or programs is no longer regarded to be in student status if classes are not resumed within five months of the date of transferring out of the previous school or within five months of the date of program completion, whichever is applicable. No formal finding of loss of status needs to be made. For that student to restore lawful status, he or she must apply for reinstatement of student status with U.S. Citizenship and Immigration Services (USCIS). A student may pursue studies while reinstatement is pending. If student status is restored, the student's F-1 or M-1 visa remains valid (assuming that the visa has not expired). If the student is denied reinstatement, however, the student is held to have lost F-1/M-1 status at that point, and any valid student visa that was in the student's possession would be invalidated. Because the student is considered to be out of status from the time reinstatement is denied, the student must immediately leave the U.S. There is no bar for a student who was denied reinstatement from applying for and receiving another student visa. Consular officers, however, are instructed to review the circumstances surrounding why the student ceased full-time study and lost status in the first place, including any actual status violation, in determining whether the applicant is a bona fide student when applying for a new visa. Students who are enrolled in schools in the U.S. often take a break from studies and return home for a semester or more. When a student has been out of the country for more than five months, the student's F-1 or M-1 visa is considered invalid. Under Department of Homeland Security regulations, an F-1 student returning to the U.S. from a temporary absence of five months or less may be readmitted for study upon presentation of a valid certificate of eligibility for student status (Form I-20). After an absence of more than five months, a student is no longer admissible as a continuing student. An immigration officer is authorized to physically cancel the nonimmigrant visa of a student who appears to be inadmissible. Because a student who has been out longer than five months can be found inadmissible, that student's F-1 or M-1 visa is subject to cancellation and should not be used, even though it remains valid on its face, the State Department noted. A student who wishes to resume study in the U.S. under these circumstances must obtain a new visa. To apply, the student should either obtain a new I-20 from the school or verify that his or her previous I-20 remains valid and the SEVIS record is in active status before applying for a new F-1 or M-1 visa. Students who have the approval of their schools to take an extended break from study must have their SEVIS record terminated for Authorized Withdrawal. When the student is ready to resume his or her studies, the school will issue the student a new initial Form I-20 with a new SEVIS number. These students must pay the SEVIS I-901 fee. Some students leave the U.S. for extended periods of time for activities related to their course of study, such as field research. Schools are expected to maintain those students in an active SEVIS status. Because these students continue to maintain their student status while overseas, their F-1 visas are not considered invalid after an absence of more than five months. The State Department's guidance is at http://travel.state.gov/visa/laws/telegrams/telegrams_2780.html. The latest guidance also will be updated at http://travel.state.gov/visa/temp/types/types_1268.html. 3. Reminder: Begin H-1B Process Early H-1B petitions for the 2007 fiscal year will be accepted for processing beginning April 1, 2006. Because H-1B numbers tend to run out quickly, prospective H-1B applicants should begin the process now to enable filing by April. For example, in 2005, USCIS already had received enough H-1B petitions by August to meet the cap for the 2006 fiscal year, which did not begin until October 1. If you would like to begin the H-1B petition process or have any questions, please contact us as soon as possible. April 1, 2006 is the earliest date that employers can file H-1B visa petitions that are subject to the H-1B cap for the fiscal year that starts on October 1, 2006. Last year the limited annual supply of H-1B visas ran out in August. This year it may run out even sooner. Employers that are subject to the cap may have only 3 or 4 months, from April until June or July, to file H-1B visa petitions with employment start dates of October 1, 2006. This brief filing window is critical for foreign students who graduate from U.S. universities this winter or spring and get practical training authorization that expires before October 1, 2007 when the next fiscal year starts. It is also critical for existing employees in J-1 or other visa status that expires before October 1, 2007. The H-1B cap does not apply to applications for extension of stay or change of employer by workers who already hold H-1B visa status, except those transitioning from a cap-exempt employer to a cap-subject employer, and those who have been absent from the U.S. for more than one year. The H-1B cap also does not apply to cap-exempt employers, which are: (1) institutions of higher education; (2) nonprofit organizations affiliated with an institution of higher education; and (3) nonprofit research organizations or governmental research organizations. Not all non-profit organizations are exempt; only those described above. In addition, there are limited exemptions for citizens of Chile and Singapore (pursuant to treaties) and for people who hold graduate degrees from U.S. universities. For an overview of the H-1B process, see our fact sheet at http://www.millermayer.com/resources/nonimmigrant/h1fact.html. 4. Shorter Processing Times? The U.S. Citizenship and Immigration Services (USCIS) has recently speeded up its processing of adjustment of status applications (I-485) and employment-based immigrant visa petitions (I-140) for foreign nationals from non-backlogged countries. All service centers are processing I-140 petitions in about two months. The Texas Service Center reports that it is currently processing adjustment of status applications (I-485) in about four months. The other service centers are processing I-485 applications in about six to eight months. See the links below for a full report on service center processing times. Shorter processing times can make it riskier to travel without advance parole for those who previously did not need it because they had non-immigrant status. Overall, however, faster processing times is a welcome movement towards increased efficiency from the service centers and thus increased ease in the immigration process. The State Department's Visa Bulletin for March 2006 shows continued reductions in the long backlogs for employment-based immigrants from China and India, but little progress for other nationalities. The new cut-off dates and the forward movement in each category since last month are: EB-1 China July 1, 2003 (6 months forward movement) EB-1 India July 1, 2004 (5 months) EB-1 All Other Countries Current (no backlog) EB-2 China July 1, 2002 (3 months) EB-2 India January 1, 2002 (5 months) EB-2 All Other Countries Current (no backlog) EB-3 China May 1, 2001 (9 days) EB-3 India January 1, 2001 (12 months) EB-3 Mexico March 22, 2001 (7 days) EB-3 Philippines May 1, 2001 (9 days) EB-3 All Other Countries May 1, 2001 (9 days) Unskilled Workers All Countries October 1, 2001 (no change) The Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. 5. Employees Can Start Work Without Social Security Numbers Foreign nationals who obtain U.S. work authorization often experience delays of several weeks or months in obtaining a Social Security Number (SSN) while the Social Security Administration (SSA) verifies their work authorization. Employers are often reluctant to allow an employee to start work without a SSN. However, neither immigration law nor federal tax law requires an individual to possess an SSN to begin working. The I-9 form that is used to verify a new employee's work authorization does not require an employee to present an SSN card but instead simply lists the card as one of several acceptable "List C" documents demonstrating work authorization. Similarly, the Internal Revenue Code does not require an employee to possess an SSN to begin working. It requires only that an application for an SSN be made within seven days of starting work for taxable wages. See 26 USC § 6011 and 26 CFR § 31.6011(b)-2. Usually, the real obstacle to starting employment is the software of a third-party payroll preparer, which cannot generate a paycheck without an SSN. Under these circumstances, if permitted by its system, the preparer can use a "dummy" SSN solely to generate a paycheck, provided the actual SSN or other required information is provided on the information returns at the time of filing. Further instructions can be found on the SSA website at http://www.ssa.gov/employer/hiring.htm. 6. O and L visas: Alternative Temporary Visas to Consider Recently, our attorneys have noticed that O visa processing has become increasingly streamlined and that we are receiving significantly fewer requests for evidence from immigration service centers. The O nonimmigrant visa category is available for temporary workers who have extraordinary ability in the sciences, arts, education, business, or athletics. Depending on the individual's immigration history, an O visa can have several advantages over the H-1B category. While these petitions have traditionally been very difficult to prove (see "Not Quite Extraordinary Enough" at http://www.millermayer.com/resources/nonimmigrant/o1aao.html), it seems that the process has become a little more tractable. If an individual has previously been on a J visa and is subject to the two-year home residency requirement, they cannot apply for a H-1B visa. In contrast, once an O petition is approved, the individual can receive an O visa stamp after traveling abroad to receive the visa stamp at a US consulate. Also, unlike the H petition, an educational or professional degree is not required. Nor does a prevailing wage requirement exist for an O visa petition. For more general information about O visas see our website at: http://www.millermayer.com/resources/nonimmigrant/nonimmigrant18cont.htm. Similarly, the blanket L program provides multinational companies with an immigration tool to quickly transfer executive, managerial and specialized knowledge professionals to the United States. Often, a transferee can enter the United States in blanket L status about one week after submitting the petition to the relevant embassy or consulate. Employers who have petitioned for at least 10 individual L visas, have annual sales exceeding $25 million, or have 1,000 employees in the US, should consider filing for the blanket L. If the company meets these requirements, has been doing business in the US for more than one year and has at least three US and foreign branches, blanket L authorization is often quick and easy to obtain, and affords a much better alternative to H or O visas. For more information see our website at: http://www.millermayer.com/new/blanketl.html. 7. Miller Mayer Recognized as One of the World's Top Immigration Firms The 2006 edition of Chambers Global has listed Miller Mayer (under our former name, True, Walsh & Miller) as one of the best business immigration law firms in the world. Chambers and Partners publishes a listing each year ranking law firms around the world based on testimonials from clients and competitors. The qualities on which rankings in the directory are based include technical legal ability, professional conduct, client service, commercial awareness and astuteness, diligence, commitment, and other qualities valued by clients. Chambers reports that the rankings and comments are independent and objective. Inclusion in the guide is based solely on the research team's findings. The entry for Miller Mayer describes our firm as "consistently recommended for its depth of knowledge and expertise." You can read the rest of the entry online at: http://www.chambersandpartners.com/global/comment35.aspx?fid=113729&solbar=1&pid=-1&cid=-1&Aid=-1. 8. Miller Mayer Loses Bowling Battle with Cornell International Students Office We came prepared, united, and itching to finally defeat Cornell's International Students and Scholars Office (ISSO) in our annual bowling match. Although Miller Mayer has a long history as the weaker team, this time we had two new players and were geared up to finally knock down those pins, and Cornell's team. Immigration Assistant Christine Watson designed a team T-shirt with the logo "Split Happens" on the back. We brought water bottles marked "steroids" to intimidate our opponents. To further prepare us Adam Schaye, a litigation attorney at Miller Mayer known for his bowling prowess (his average is above 100!), coached us just before the big game. Well, split did happen and many balls wandered into the gutter, but the two games were close despite all the trash-talking by our opponents. Preliminary results showed that we were once again defeated, but Attorney Hilary Fraser demanded a recount. After a long night of number crunching, Miller Mayer intern Chris Repole announced that although ISSO won the first game, Miller Mayer bowled more points altogether (counting both games) and had a higher per-player average -if you count the ten style points awarded to each Miller Mayer player for our team uniform, as well as for our overall panache. Cheers to Cornell's ISSO for joining us in another great bowling match. We'll defeat you next year! For a photo of the bowling battle, go to the top of the following page on our web site: http://www.millermayer.com/resources/generalcont.htm 9. New Articles on our Web Site "Losing Green Card Status: Who's to Decide?", an article by Steve Yale-Loehr and Stanley Mailman, is now available on our website. The article discusses how recent cases have defined lawful permanent residence (LPR) so that an individual can lose LPR status if the individual leaves the country without intending to return to the U.S. within a relatively short period of time. For more information on these cases and their implications, you can read the article at http://www.millermayer.com/new/losing_lpr.html. 10. The Firm Speaks Steve Yale-Loehr will chair a Practicing Law Institute immigration seminar on Thursday March 23 in New York City. Visit http://www.pli.edu/product/program_detail.asp?ptid=511&stid=3&id=EN00000000026385 for more details. Steve will present a seminar on visa options after graduation at the University of Binghamton on Wednesday April 5 from 4-6 pm. Steve will present a seminar on visa options after graduation at Clemens Hall 120 at the University of Buffalo on Friday April 7 from 4:30-6 pm. Steve will moderate a panel on PERM labor certification issues at a seminar sponsored by the New York City Bar Association on Thursday May 11 from 6-9 pm. Contact Steve at mailto:syl@millermayer.com for more details on any of these talks. 11. Immigration Processing Times Links 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.immigration.gov/cris/jsps/index.jsp _____________________ 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 business immigration counsel. For answers to any of your immigration questions, contact: Hilary Fraser (mailto:htf@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. Copyright (c) 2006 Miller Mayer, LLP. All rights reserved.
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