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April 11, 2006 Immigration News Update
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April 11, 2006 immigration news update from Miller Mayer 1. Immigration Reform Heats Up in Congress 1. Immigration Reform Heats Up in Congress The U.S. Senate failed to pass a comprehensive immigration reform bill last week, but may take up the bill again after Senators return April 24. Key senators had thought they had devised a compromise agreement on April 6, but the deal broke down the next day over squabbling on how many amendments might be allowed to the bill. The proposed compromise focused on legalizing the estimated 11 million undocumented in the country. The proposal would have divided the 11 million into three groups, depending on how long they have been in the United States: * Those individuals who have been here and working for more than five years would be eligible to embark immediately on a path to earned permanent residence. That path would involve a six to eight year prospective work requirement, a clean record, English language study, and the payment of significant fines and back taxes. * Those who arrived less than five years ago but before January 7, 2004 would be required to pay significant fines and, within three years, would have to leave the country and reenter in a temporary status. Upon reentry, these individuals would have full job portability and could apply for permanent resident status after the first category of undocumented workers completed their processing. * The final group of undocumented workers, those who arrived after January 7, 2004, would be required to leave the United States. However, they could then apply for a new proposed temporary worker program. Although most press coverage has focused on possible legalization provisions, the Senate bill would also have a major impact on business immigration. For example, the Senate immigration bill would replace the current I-9 form with a new electronic employment verification system. Implementation of the electronic system would be rolled out over several years, with the largest employers being required to participate first. The bill would also allow the Department of Homeland Security to charge employers taxes tied to use of the system. The Senate bill would also increase the number of H-1B temporary worker visas to115,000 for the next three years. After that, the H-1B cap would remain at 115,000, but could rise up to 20% per year if the whole cap is used up the prior year. The Senate bill would also more than double the number of employment-based green cards available each year, from the current 140,000 to 290,000. Moreover, green cards for spouses and children would not be counted against the numerical limits. These two provisions would eliminate or reduce many of the current backlogs in the employment-based immigrant visa system. Please write your Senators over the next two weeks and encourage them to support comprehensive immigration reform. A sample letter is at http://capwiz.com/aila2/issues/alert/?alertid=8339716&type=CO. 2. USCIS Notifies Employers of Filing Changes On March 24, 2006, U.S. Citizenship and Immigration Services (USCIS) announced changes to the filing locations for two popular employer-sponsored immigration forms. Beginning April 1, 2006, employers filing a Petition for a Nonimmigrant Worker (Form I-129) should mail it to the Vermont Service Center. Also beginning April 1, 2006, employers filing an Immigrant Petition for an Alien Worker (Form I-140) should mail it to the Nebraska Service Center. Employers should file any accompanying forms at these same centralized locations. USCIS explained that these changes mark the first phase of an initiative to use centralized filing and "bi-specialized" adjudication. USCIS plans to align similar workloads between two "sister" service centers. After April 1, the Vermont and California Service Centers will process all I-129s and related dependent applications, and the Nebraska and Texas Service Centers will process all I-140s and related permanent residence applications. Applicants and petitioners should note that the filing location for the form type is not necessarily the Service Center that will decide the case; the "sister" service center may perform the actual processing. Applicants will receive a receipt notice from the service center that will process their cases. USCIS will continue to process cases received before April 1 using pre-existing procedures. Once the amended filing instructions take effect on April 1, the agency will not reject any I-129s or I-140s sent to the incorrect service center. Instead, USCIS will accept the filing, redirect it to the correct location, and honor the initial receipt date. The new filing locations do not affect other aspects of the forms' instructions and do not change the forms themselves. USCIS will continue to honor previous versions of the forms. Additional details, such as information on premium processing and where to file dependent applications when the principal application has already been filed, are included in a USCIS fact sheet available at http://uscis.gov/graphics/publicaffairs/factsheets/BiSpecPh01_24Mar06FS.pdf. 3. Reminders Issued for New H-1B Filing Period U.S. Citizenship and Immigration Services (USCIS) issued reminders of important regulatory requirements in anticipation of the agency's acceptance of H-1B filings under the fiscal year 2007 cap that on April 1, 2006. H-1B petitioners should keep these requirements in mind to avoid delays in processing and possible requests for evidence. USCIS noted that if work is to be performed in more than one location, H-1B petitioners must provide a detailed itinerary of the dates and places where the work will be performed. For example, a labor contractor or consultant who hires H-1B workers to work at client sites must provide in advance an itinerary with the dates and places where the worker will perform services for the clients. Also, in situations in which an H-1B worker is changing to an employer other than the one for which the initial H-1B petition was approved, the worker must demonstrate that he or she performed work for the original petitioning employer for a "significant length of time." If the H-1B worker is processing abroad, USCIS will work with the Department of State to ensure that the same level of scrutiny is applied to consular-processed H-1Bs. The reminder notice is available at http://uscis.gov/graphics/publicaffairs/statements/H1Bnotice_24Mar06PN.pdf. H-1B numbers are expected to hit the cap sometime this summer. To see how close H-1B filings are to the cap, go to the following page on the USCIS web site, which is updated regularly: http://uscis.gov/graphics/services/tempbenefits/cap.htm 4. State Dept. Announces Changes in Earliest Issuance Dates for F, M Visas The Department of State (DOS) recently announced that persons applying for initial-entry F-1, F-2, M-1 and M-2 visas now may be issued these visas up to 120 days before the program start date as listed on their I-20s, although such students may not enter the United States more than 30 days in advance of the beginning of studies. These changes apply only to initial-entry students. Continuing students may apply for new F or M visas at any time, as long as they have been maintaining student status and their SEVIS records are current. Continuing students may enter the United States at any time before their classes start. The DOS also announced a plan to allow initial-entry students to apply for admission to the United States up to 45 days before their program start dates, although the Department of Homeland Security (DHS) must publish a regulation to implement this change. The Department of State said it would notify posts when the DHS does so. Until then, posts were instructed to continue informing initial-entry students that they may not enter the United States more than 30 days before their program start dates. The DOS's announcement, which also includes information on J visas, is available at http://travel.state.gov/visa/laws/telegrams/telegrams_2843.html. 5. Labor Dept. Releases FAQs on Labor Certifications The Department of Labor has released guidance on procedures for requesting a duplicate labor certification when the original has been lost or misplaced. The guidance is available at http://workforcesecurity.doleta.gov/foreign/pdf/perm_faqs_3-20-06.pdf. Other recent FAQs on labor certifications are available at http://workforcesecurity.doleta.gov/foreign/pdf/perm_faqs_2-21-06.pdf and http://workforcesecurity.doleta.gov/foreign/pdf/perm_faqs_2-14-06.pdf. The full set of PERM FAQs in PDF format is available for download at http://workforcesecurity.doleta.gov/foreign/ (scroll to Quick Links). 6. New Report Counters Perception that H-1B Workers Harm U.S. Labor The National Foundation for American Policy released a policy brief countering the perception that the entry of skilled H-1B professionals harms native U.S. workers. The brief discusses common misconceptions and fallacies that affect people's understanding of high-skilled immigration, and research showing no negative impact of H-1B professionals on native workers' opportunities and wages. The policy brief, H-1B Professionals and Wages: Setting the Record Straight, is available at http://www.nfap.com/researchactivities/articles/NFAPPolicyBriefH1BProfessionalsAndWages0306.pdf. 7. DHS Releases Report on L-1 Visa Fraud; Other Reports Rebut Allegations The Department of Homeland Security's Inspector General's new report, Review of Vulnerabilities and Potential Abuses of the L-1 Visa Program, charges that the L-1 program is vulnerable to fraud in several respects. For example, adjudicators "find it difficult to be confident" that a firm truly intends to use an imported worker in a managerial or executive capacity as claimed. Also, "specialized knowledge" is so broadly defined that adjudicators "believe they have little choice but to approve almost all petitions." Further, adjudicators have little ability to evaluate the substantiality of foreign operations, and the program encompasses petitioners who do not yet have their first U.S. office and permits petitioners to transfer themselves to the United States. The report makes several recommendations, including that U.S. Citizenship and Immigration Services (USCIS) establish a procedure to obtain overseas verification of pending H and L petitions by Department of State officers; that USCIS explore with U.S. Immigration and Customs Enforcement whether experienced criminal investigators assigned abroad could check the bona fides of L petitions submitted by petitioners in the countries in which the officers are assigned; and that USCIS seek "legislative clarification" of various terms, concepts, and criteria used in the L program. The Inspector General's report, including USCIS's responses to the Inspector General's recommendations, is available at http://www.dhs.gov/interweb/assetlibrary/OIG_06-22_Jan06.pdf. The National Foundation for American Policy issued a report on the L visa program that questions aspects of the Inspector General's recommendations and counters claims of widespread abuse. That report, Understanding L-1 Visas and the Recent OIG Report, is available at http://www.nfap.com/researchactivities/articles/NFAPPolicyBriefUnderstandingL1Visas0306.pdf. The Global Personnel Alliance (GPA) reiterated in a rebuttal to the Inspector General's report that there is no widespread evidence of L program misuse and noted that the Inspector General's office did not speak to any users of the L-1 program. Had it done so, GPA said, it would have found that L-1 users have had petitions rejected for incorrect or unclear reasons and have been subjected to repeated requests for additional supporting evidence and required to make trips overseas to satisfy consular officers' skepticism. The report also notes that smaller businesses, such as those started by a handful of managers and executives sent to the United States to expand operations, provide much of the new employment available to U.S. workers. The GPA's report, Mixed Messages in DHS Office of Inspector General's Report on L-1 Program, is available at http://www.aila.org/content/fileviewer.aspx?docid=18810&linkid=143200. 8. The Firm Speaks Rosanne Mayer will present a seminar on visa options after graduation at Colgate University on Wednesday April 12 from 5-7 pm. Steve Yale-Loehr 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 Rosanne at mailto:rm@millermayer.com or Steve at mailto:syl@millermayer.com for more details on these talks. 9. 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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