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May 02, 2005 immigration news update from True, Walsh & Miller
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1. The Hs are Coming! 20,0000 Advanced Degree H-1Bs 1. The Hs are Coming! 20,0000 Advanced Degree H-1Bs On December 8, 2004 President Bush signed the Consolidated Appropriations Act of 2005 into law. The law included several changes to the H-1B category. Among other things, the law exempts from the H-1B visa cap 20,000 H-1B visas for foreign nationals with masters or higher-level degrees from U.S. universities. Employers and foreign national workers have been greatly anticipating these additional visas as a relief to the taxed H-1B category. The law required the U.S. Citizenship and Immigration Services (USCIS) to start accepting applications for the additional 20,000 H-1B visas on March 8. The agency did not publish implementing regulations by that date, however. Now they are about to. An advance copy of the regulation has just been sent to the Federal Register, where it will be published May 5. Under the regulation, only graduates of U.S. master's or higher programs will be eligible to apply for the additional 20,000 H-1B visas. They can begin filing for the visas on May 12. All filings must go to a special address at the Vermont Service Center. The rule sets forth a special selection process if the USCIS receives more than 20,000 requests. The rule also sets forth a procedure for converting H-1B petitions already filed for a fiscal year 2006 start date that now want to take advantage of the additional 20,000 visas in this fiscal year. We anticipate that the additional 20,000 H-1B visas will be used very quickly. Because of this, if you are interested in applying for an H-1B visa you should contact True, Walsh & Miller at twm@millermayer.com as soon as possible. The confusion and delay about the additional H-1B visas numbers only highlights the need to reform the H-1B category to make it responsive to the needs of applicants and the United States. To contact your congressperson to request sensible reform of this tangled issue, please visit: http://capwiz.com/aila2/home/ For more information about H-1B visas generally please visit: http://www.millermayer.com/resources/nonimmigrant/tempworker.html 2. The DOL Responds to Concerns About PERM Rejections Since PERM's inception on March 28, 2005, hundreds of potential U.S. workers have filed PERM applications. So far most applicants have received denials because of the rigorous automatic screening employed in PERM processing. PERM is an electronic process for filing and processing labor certification applications for permanent employment-based immigration. The PERM regulations are intended to help streamline the permanent labor certification system and thus combat the current labor certification backlog. For more on PERM generally go to: http://www.plc.doleta.gov/eta_start.cfm Many immigration professionals have complained to the DOL about these early PERM denials because they seem to be based on technical rather than substantive grounds. The American Immigration Lawyers Association (AILA) recently interviewed the DOL about these concerns. During the interview the DOL conceded that the PERM system can be unforgiving of minor mistakes. Among these mistakes are: using the wrong set of prevailing wages; applying for PERM before a state workforce agency (SWA) job order has been listed for 30 days; and registering for PERM through a computer other than the employer's. Despite the innocence of these mistakes, the DOL seems reluctant to readdress the denials. According to the interview the DOL expects a high percentage of denials until applicants grow accustomed to the new system. In the same AILA interview, the DOL also addressed issues about registering for PERM. The DOL tries to verify the existence of each employer after they attempt to register. While the process is supposed to take a few hours, because of the volume of registrations the process can take up to two weeks. When responses do come back by email to the employer they can end up in spam filters, causing employers to overlook them. The DOL advises employers to be conscious of these problems and to be patient with the system before reapplying. The DOL also recommends the following to ease the registration process: avoid "doing business as" names; create a subaccount for any lawyer you retain; and use your company's headquarters' address rather than the address of the beneficiary's office. True, Walsh & Miller has written a memo to current clients about the pros and cons of converting current labor certification applications to PERM. If you would like a copy of that memo, contact Hilary Fraser at htf@millermayer.com. 3. GAO Probes Problems with EB-5 Immigrant Investor Category Congress created the employment-based fifth preference (EB-5) immigrant investor green card category in 1990 for immigrants who invest in and manage U.S. companies that benefit the U.S. economy and create or save at least 10 full-time jobs for U.S. workers. The normal amount required to invest is $1 million, although that amount is reduced to $500,000 if the investment is made in a high unemployment area or rural region. In 2003 Congress asked the Government Accountability Office (GAO) to study the EB-5 category for ways to improve the program. The GAO recently published its findings. The EB-5 visa category has been severely underused since its inception. According to the GAO report, despite making 10,000 EB-5 visas available each year, the USCIS has only issued a total 6,024 visas to immigrant investors and their families since 1992, or about 500 a year. The GAO attributes the low issuance of these visas to several factors, including the torturous application process and the government's failure to publish regulations to implement a 2002 law intended to help EB-5 investors. To see the GAO report go to: http://www.gao.gov/new.items/d05256.pdf For an in-depth discussion of the decline and possible resurrection of the EB-5 visa category please visit:http://www.millermayer.com/EB5NYLJ0405.html 4. DOS Warns of Retrogression for Some Employment-based Green Cards The Department of State (DOS) warns that the demand for employment-based third preference (EB-3) green cards remains very high. The EB-3 category is divided into three subcategories: skilled workers, professionals, and other (i.e., unskilled) workers. In January, the DOS announced that the processing dates for the EB-3 immigrant visa category had been rolled back to January 2002 for skilled workers and professional workers in China, India and the Philippines, and for all members of the "other worker" category. Before these retrogressions the DOS processed the EB-3 visas in a nearly current fashion. Despite the retrogression, application rates for the EB-3 category have remained high. In response to this high demand the DOS recently announced that it may extend the retrogression placed on the EB-3 other workers category or make the numbers unavailable altogether. However, the DOS does not expect that the retrogression will immediately extend to other employment-based green card categories. The availability of visa numbers is listed in the DOS visa bulletin, which is issued monthly. To view the current DOS visa bulletin please visit: http://www.travel.state.gov/visa/frvi/bulletin/bulletin_1360.html 5. Two TWM Immigration Success Stories TWM lawyer Adam Schaye recently played a role in a complicated immigration and criminal court case. The results of this case will decide whether Bruce McDonald, a Jamaican foreign national, will be deported, despite having a spouse and four children, all U.S. citizens. Mr. McDonald initially pleaded guilty to charges of selling a small amount of marijuana and possessing cocaine, based on poor advice from his initial criminal defense lawyer. Because of the plea, Mr. McDonald was served deportation papers. Sometime later Mr. McDonald, represented by a new and better lawyer, took the case to the New York State Court of Appeals. The court held that while the advice of the initial lawyer indeed misled Mr. McDonald, Mr. McDonald would not necessarily have pleaded "not guilty" if given different advice. At this point Adam Schaye successfully convinced the trial court to give Mr. McDonald a new hearing to evaluate if he would actually have pleaded guilty if he knew that the plea would result in deportation proceedings. Mr. Schaye's efforts gave the case new life and Mr. McDonald was granted a new trial. After a three-day trial Mr. McDonald was acquitted of all felony charges and found guilty of two misdemeanors. Unfortunately, the struggle to keep Mr. McDonald in the United States continues. Under federal law two misdemeanor convictions can result in deportation. Mr. McDonald will soon appear before an immigration judge to request an immigration waiver to allow him to remain in the United States. The second TWM success story involves an imminently qualified transportation engineer. Despite teaching in several of the best universities in the United States and Canada and managing the traffic restructuring of some of the world's most populous cities, this foreign national was initially rejected for a green card in the extraordinary ability (EB-1-1) classification. After his initial denial, the foreign national retained TWM's services. After a long effort, TWM attorney Carolyn Lee eventually persuaded the immigration agency to grant our client's second EB-1-1 green card application. Needless to say, our client is very happy with the outcome, against long odds after his initial denial. For an article describing recent restrictive trends in EB-1-1 cases please visit: http://www.millermayer.com/new/eb1hard.html 6. 2005 Edition of the J Visa Guidebook Released The 2005 edition of the J Visa Guidebook, co-authored by TWM lawyer Steve Yale-Loehr, has just been published. J exchange visitors face many restrictions that if not observed or waived can lead to disastrous results. Readers need a resource that provides maximum guidance. The J Visa Guidebook provides that needed guidance by gathering together material from many sources into one publication, taking the reader step-by-step through the process, and giving inside tips on how to get through the system. For more information about the J Visa Guidebook please visit: http://bookstore.lexis.com/bookstore/catalog?action=product&prod_id=12991&ca 7. New Articles on Our Web Site Steve Yale-Loehr has co-written an article about the possible revitalization of the EB-5 immigrant visa category. The article is on our web site at: http://www.millermayer.com/EB5NYLJ0405.html 8. The Firm Speaks On Wednesday May 4 Steve Yale-Loehr will moderate a panel in New York City at a conference on the new PERM regulations. He will also give a talk on visas after graduation at Columbia University at noon that day. On Tuesday June 7 Steve will testify in Ottawa, Canada before a Parliamentary commission on the legality of extraordinary rendition (the outsourcing of torture). Contact Steve at 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 (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. To unsubscribe to this newsletter, email syl@millermayer.com. Please type "unsubscribe to millermayer.com immigration newsletter" in your subject line. Copyright (c) 2005 True, Walsh & Miller, LLP. All rights reserved.
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