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April 4, 2007 Immigration News Update from Miller Mayer
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1. H-1B Rush Began and Ended in a Few Hours 1. H-1B Rush Began and Ended in a Few Hours A few hours marked the start and end of the annual H-1B rush. U.S. Citizenship and Immigration Services (USCIS) announced on April 3 that it received about 150,000 H-1B cap petitions the morning of April 2, the very first filing day of the year. That is almost triple the statutory quota of 65,000. By contrast, the H-1B cap was filled in 8 weeks last year, and was not filled at all between 1999 and 2003, when there were 115,0000 or 195,000 H-1Bs available each year. USCIS will use a random selection process to determine which cases will actually be accepted. All other H-1B cap petitions will be returned with the filing fees. The USCIS memo announcing that the H-1B cap for FY 2008 had been reached and the random selection procedures it will use is at http://www.uscis.gov/files/pressrelease/H1BFY08Cap040307.pdf Because USCIS expects data entry for H-1B cap cases to take several weeks, we do not expect to learn which cases have been selected for many weeks. This includes premium processed cases. The H-1B cap is a huge problem for U.S. employers seeking needed, professional employees. We urge you to support bills pending in Congress to raise the H-1B cap. A model letter is found at: http://capwiz.com/aila2/issues/alert/?alertid=9589591 Please circulate this link at your company and to others to send as many letters as possible to Congress about this problem. Also, please watch for announcements in our newsletter and special emails about contacting Congress, usually timed with key votes on Capitol Hill. 2. Comprehensive Immigration Reform Bill Introduced in House Bipartisan legislation introduced in the House of Representatives on March 22, 2007, would lift the H-1B cap from the current 65,000 to 115,000, with market-based automatic increases up to 180,000. The "Security Through Regularized Immigration and a Vibrant Economy (STRIVE) Act of 2007" (H.R. 1645) also would eliminate visa limits on foreign workers with advanced U.S. degrees in science, technology, engineering, or math (STEM). Certain "extraordinary ability" workers in science and business would find it easier to obtain permanent residence ("green cards") under the legislation. The new legislation also would establish an H-2C temporary visa, valid for three years and renewable for another three. Under the H-2C visa, employers would be required to attempt to hire U.S. workers first and would be barred from hiring new immigrant workers in areas with high unemployment rates for workers with no education beyond high school. The H-2C visa program would have an initial cap of 400,000, adjusted yearly based on market fluctuations, and would include labor rights and protections, such as visa portability and competitive wage protections. The new bill also would create a new guestworker program under a conditional nonimmigrant visa for eligible undocumented workers and their spouses and children in the U.S., valid for six years. Such workers, if they qualify, would have the opportunity to apply for permanent residence and eventual "earned citizenship," but would have to wait at the back of the line for green cards and would have to pay a hefty fine. Among other things, to gain earned citizenship, a worker in most cases would need to meet a "legal reentry" requirement, whereby the worker would "reboot" his or her status by leaving the U.S. and returning. Also, the new legislation calls for an electronic work authorization verification system for employers. The bill also incorporates the DREAM Act of 2007 and the AgJOBS Act of 2007. Passage of the House bill remains uncertain. Some Republicans have condemned the bill as an amnesty program for undocumented immigrants. Discussions between Republican lawmakers in the Senate and the White House could lead in a different direction. Sen. Arlen Specter (R-Pa.) is reportedly heading a group of Republicans who are drafting a competing set of proposals in consultation with the White House. The Bush administration released an outline of a new immigration reform plan on March 29, 2007, that would also include a temporary guestworker program, with a "Z" visa renewable every three years after payment of a large fine each time. Under the administration's plan, undocumented workers would need to register for temporary status within six months of the bill's passage for the worker to receive consideration for legal status. A Senate vote on immigration reform may take place in June. Senate majority leader Harry Reid (D-Nev.) reportedly stated that the Senate immigration debate may be slated for the last two weeks of May. Hearings are expected in the House shortly. If legislation does not pass by the end of 2007, many expect that it will be difficult to move it forward in the 2008 presidential election year. Compete America, a coalition of corporations, educators, research institutions, and trade associations, has endorsed key provisions of the House bill, including updating the employment-based green card cap and exempting key categories of professional; creating exemptions from employment-based immigrant visa and H-1B caps for foreign students receiving an advanced degree from a U.S. university, as well as for foreign professionals who have earned advanced STEM degrees at foreign universities; updating the cap on H-1B visas for highly educated temporary workers; and creating a new student visa category to allow U.S. STEM degree holders who have a job offer to transition directly from student visa to green card. Compete America's statement is available at http://www.competeamerica.org/news/alliance_pr/20070322_strive.html. On March 7, 2007, at a hearing before the Senate Committee on Health, Education, Labor and Pensions, Microsoft Corporation Chairman Bill Gates recommended an increase in the H-1B cap and streamlining the green card process for highly skilled workers. He lamented the current state of the U.S.'s "obsolete immigration system," recommended changes in STEM education in the U.S., and expressed concerns about the dissuasion of foreign students from studying in the U.S. by the immigration system and new security measures. "Unfortunately, America's immigration policies are driving away the world's best and brightest precisely when we need them most," he said. Mr. Gates predicted that if current trends continue, a significant percentage of all scientists and engineers in the world will be working outside of the U.S. by 2010. Mr. Gates noted that the number of H-1B visas available "runs out faster and faster each year." The current cap of 65,000 "is arbitrarily set and bears no relation to U.S. industry's demand for skilled professionals," he said, noting that for fiscal year 2007, the H-1B supply "did not last even eight weeks into the filing period, and ran out more than four months before that fiscal year even began." For fiscal year 2008, Mr. Gates noted, H-1Bs are expected to run out in April, the first month that it is possible to apply for them. "This means that no new H-1B visas -- often the only visa category available to recruit critically needed professional workers -- will be available for a nearly 18-month period," he warned. Moreover, this year, for "the first time in the history of the program, the supply will run out before the year's graduating students get their degrees. This means that U.S. employers will not be able to get H-1B visas for an entire crop of U.S. graduates. We are essentially asking top talent to leave the U.S." He noted similar trends with the employment-based green card categories. Among other things, Mr. Gates called for "expedit[ing] the path to permanent resident status for highly skilled workers." He said, "If Social Security is the dreaded third rail of politics, immigration is its downed electrical wire: a problem everyone knows about, but no one's sure how to fix, so they just walk away." Mr. Gates's testimony is available at http://help.senate.gov/Hearings/2007_03_07/Gates.pdf. An overview of the STRIVE Act from Rep. Flake's office is available at http://flake.house.gov/UploadedFiles/STRIVE%20Overview.pdf. The full text of the lengthy bill is available at http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.1645.IH:. 3. USCIS Reminds Applicants of New Filing Procedures Effective April 2 U.S. Citizenship and Immigration Services (USCIS) has issued a reminder to applicants that effective April 2, 2007, all Forms I-129 (Petition for a Nonimmigrant Worker) and I-539 (Application to Change/Extend Nonimmigrant Status) are to be filed directly with the California Service Center or the Vermont Service Center, whichever is applicable. USCIS has released two separate filing charts for the forms to assist applicants in determining the direct filing location for their petition or application. Applicants are responsible for filing the forms with the correct Service Center and should verify that they are using the correct filing address by referring to the instructions on the relevant form. USCIS said that the center where an applicant files a petition will generate the receipt notice and adjudicate the case. Compliance with the revised filing instructions "will ensure timely intake and case processing," USCIS said. USCIS's reminder notice is available at http://www.uscis.gov/files/pressrelease/I129andI539filing_033007.pdf, and the filing charts for the forms are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3df261151e821110VgnVCM1000000ecd190aRCRD&vgnextchannel=fe529c7755cb9010VgnVCM10000045f3d6a1RCRD (Form I-129) and http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=2eede945cbc21110VgnVCM1000000ecd190aRCRD&vgnextchannel=fe529c7755cb9010VgnVCM10000045f3d6a1RCRD (Form I-539). 4. H-2B Cap Reached U.S. Citizenship and Immigration Services (USCIS) announced on March 23, 2007, that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the final six months of fiscal year 2007. March 16, 2007, is the "final receipt date" for new H-2B worker petitions requesting employment start dates before October 1, 2007. The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the second half of FY 2007. USCIS will reject petitions for new H-2B workers seeking employment start dates before October 1, 2007, that arrived after March 16, 2007. Petitions for both current and returning H-2B workers do not count toward the congressionally mandated biannual H-2B cap, USCIS noted. To qualify as a returning worker, the worker must have counted against the H-2B numerical cap between October 1, 2003, and September 30, 2006. USCIS said it would reject petitions received after the final receipt date that contain a combination of returning workers and workers subject to the H-2B cap. Petitioning employers will receive partial approvals for those who qualify as returning workers if otherwise approvable. USCIS will continue to process petitions filed to: • Extend the stay of a current H-2B worker in the U.S.; 5. New Guidance Issued on National Interest Waivers and Adjustment Applications for Physicians in Underserved Areas U.S. Citizenship and Immigration Services (USCIS) has established interim procedures for adjudicating national interest waiver (NIW) immigrant petitions and related adjustment of status applications filed on behalf of physicians practicing in medically underserved areas or at facilities operated by the Department of Veterans Affairs (VA), in light of the U.S. Court of Appeals for the Ninth Circuit's decision in Schneider v. Chertoff. Among other things, physicians with an approved NIW petition will no longer be restricted to a specific time period in which to fulfill the medical service requirement. USCIS said it is implementing the Schneider decision nationwide not only to ensure immediate compliance with the decision in cases within the jurisdiction of the Ninth Circuit, but also to ensure consistent adjudication of all NIW physician cases nationwide. The interim guidance will be followed by amended regulations to give regulatory effect to the Schneider decision, USCIS said. In addition, although not mandated by Schneider, USCIS is expanding the fields of medical specialty that may qualify physicians for NIWs by accepting petitions on behalf of physicians who provide "specialty care." USCIS said it will adjudicate and approve NIW petitions for physicians who work in geographic areas that are designated by the Secretary of Health and Human Services as having a shortage of medical specialists for the Physicians Scarcity Area (PSA) program. Also, the Conrad State 30 Program, established to address the shortage of qualified physicians in medically underserved areas, has been extended until June 1, 2008. The Schneider guidance is available at http://www.uscis.gov/files/pressrelease/SchneiderIntrm012307.pdf. The Conrad State 30 announcement is available at http://www.uscis.gov/files/pressrelease/ConradExtnsn012907.pdf. 6. FOIA 'E-Delinquents' Include DOL, ICE 7. New GAO Report Outlines US-VISIT Challenges The U.S. Government Accountability Office (GAO) has issued a report analyzing challenges that continue to face the US-VISIT program. The GAO noted that US-VISIT has improved the Department of Homeland Security's (DHS's) ability to process visitors and verify identities upon entry, but found that management controls in place to identify and evaluate computer and other operational problems at land ports of entry were insufficient and inconsistently administered. In addition, the GAO noted, a biometric exit capability is not yet available. The GAO said that DHS continues to face longstanding US-VISIT management challenges and future uncertainties. The GAO recommended that critical acquisition management processes be established and followed to ensure that program capabilities and expected mission outcomes are delivered on time and within budget. Such processes include, the GAO said, effective project planning, requirements management, contract tracking and oversight, test management, and financial management. Until these issues are addressed, the risk of US-VISIT continuing to fall short of expectations is increased, the GAO concluded. The report, "Homeland Security: US-VISIT Faces Operational, Technological, and Management Challenges" (GAO-07-632T), is available at http://www.gao.gov/new.items/d07632t.pdf. 8. Tips for Finding Info on the New USCIS Web Site On November 1, 2006, U.S. Citizenship and Immigration Services (USCIS) announced that it had replaced its existing web site with a "new and improved" site that promised to offer "easier access" to immigration information. Unfortunately, many users have disagreed. The new site has buried popular pages in nooks and crannies difficult to find for most searchers. If you're having trouble navigating the revised USCIS web site, these tips might help: * Google: The Google search engine is sometimes better at finding relevant pages than the USCIS site's own search engine. You can use Google's advanced search to "only return results from the site or domain" or search the keywords that you want, followed by "site: uscis.gov". * Customer Guides: If you are looking for a specific page, another option is to start with a general category on the Customer Guides page, and navigate to the page you need from there. * Old USCIS web site: Yet another method if you are looking for a specific page that you used before the change is to use the old web site address at http://149.101.23.2. Beware, however, that this site has not been updated since October 30,2006, so you should only use this site if you know that the information has not changed since then. 9. Steve Yale-Loehr Named "Exceptional" Attorney in Chambers Global Directory The 2007 edition of Chambers Global has listed Miller Mayer's Steve Yale-Loehr as one of the best business immigration lawyers in the world. Chambers and Partners publishes a listing each year ranking law firms and individual lawyers around the world based on testimonials from clients and competitors. The qualities on which rankings 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. Clients and other immigration attorneys called Steve "outstanding" and "exceptionally talented." 10. New Articles on Our Website Steve Yale-Loehr has co-authored an article about local and state immigration laws. The article is at http://www.millermayer.com/new/nylj_localimmig.html An updated Conrad state 30 chart is at http://www.millermayer.com/resources/medical/conrad.html An updated memo on how to report address changes to USCIS is at: http://www.millermayer.com/new/ar11.html 11. The Firm Speaks Steve Yale-Loehr will give a talk about visa options after graduation at Binghamton University on Wednesday April 18 at 4 pm. Steve will speak on EB-5 immigrant investor green cards on Wednesday April 25 in Washington, DC at a diplomatic luncheon. On Thursday April 26 Steve will speak on EB-1 priority worker green cards, national interest waiver green cards, and EB-5 immigrant investor green cards at an immigration law seminar sponsored by the American Law Institute and the American Bar Association in Washington, DC. Contact Steve at mailto:syl@millermayer.com for more details on any of these talks. 12. 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 Department of Labor: http://www.ows.doleta.gov/foreign/times.asp Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html _____________________ 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) 2007 Miller Mayer, LLP. All rights reserved.
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