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June 5, 2007 Immigration News Update from Miller Mayer
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1. Senate Debates Immigration Reform Bill 1. Senate Debates Immigration Reform Bill The Senate's bipartisan bill on comprehensive immigration reform (S. 1348) is being debated this week. Among other things, the new legislation would establish a guestworker program and allow many undocumented persons to remain in the U.S. under a new "Z" visa program. The bill also features a "points system" that would replace many of the current family- and employment-based green card categories. Those with certain types of education and experience, and those with English skills, would be favored under the legislation. The bill also contains additional enforcement and border control provisions. Sen. Edward M. Kennedy (D-Mass.) called it "the most far-reaching immigration reform in our history." Under the Senate bill, up to 200,000 temporary guestworker (Y-1) visas would be provided in the first year, with increases or decreases depending on whether and when the cap is reached in the previous year. A separate guestworker program for farm laborers is also included. The bill would increase the H-1B cap for temporary professional workers from 65,000 to 115,000 beginning in fiscal year 2008 and 180,000 annually after that. The bill would exempt from the annual H-1B cap a worker who has: (1) earned a master's or higher degree from an accredited U.S. university; or (2) been awarded a medical specialty certification based on post-doctoral training and experience in the U.S. The bill would require employers and subcontractors, within 18 months, to verify the legal status of new hires by using a new electronic verification system that would replace the current paper I-9 form. The maximum fine for hiring an undocumented worker would increase to $20,000 for each worker and repeat offenders could be sent to jail. The Information Technology Association of America (ITAA), a lobbying group that represents high-tech companies, fears the bill will not address sufficiently the shortage of skilled workers and will make it harder to hire qualified foreign workers. ITAA President and CEO Phillip J. Bond noted in a letter to Sens. Harry Reid and Mitch McConnell how quickly the H-1B cap for fiscal year 2008 was reached, thus preventing many employers from recruiting skilled foreign nationals. Among other things, the ITAA expressed concerns that the Senate bill eliminates existing "degree equivalency" provisions so that employers would be barred from obtaining H-1B workers if their formal degrees do not correlate exactly to proposed positions. The bill would also end dual intent for both H-1B and L-1B nonimmigrants, "interfering with the ability of companies to recruit from U.S. universities and seek a green card for them while employing them on an H-1B." The ITAA also said the proposed point system would "diminish America’s competitiveness by making nonimmigrant visas and green cards even more difficult to obtain." Among other things, the ITAA noted, highly skilled professionals recruited by firms would be forced to compete with self-nominated applicants for the small number of available green cards. "The proposal will move America’s immigration system away from one that is sensitive to business needs to one driven by the perceptions of government employees," the ITAA said. The ITAA added that the proposed employment verification system, which is based on the current Basic Pilot Program, "needs a significant IT investment to make the system scalable for all employers to use as well as to reduce the current error rate within the system." Opposition to the Senate immigration bill is fierce. The White House reportedly favors the bill, but its lobbying efforts are being resisted by many Republicans, who fear anti-"amnesty" sentiment among their constituents. Some Democrats also oppose the bill, fearing that the temporary worker program will create an underclass of indentured workers. Over 100 amendments are being considered in the Senate. Miller Mayer's Steve Yale-Loehr was quoted in the New York Times on May 17 about the Senate bill. He noted that the new legislation "represents a major philosophical shift. It tells the world that we are emphasizing characteristics that will enhance our global competitiveness, like education and job skills. We would not rely as much on family background as we have in the past." Steve was also quoted in the New York Times on June 5. He criticized the Senate bill’s proposed points system for selecting economic immigrants because it would lock in the criteria for selecting immigrants for at least 14 years. "The economy changes much faster than that," he noted. A summary of the Senate bill's main provisions is available at http://immigrationforum.org/documents/PolicyWire/Legislation/110/SenateBillQ&A.pdf. The full text of the bill and amendments are available at http://thomas.loc.gov (search S. 1348). The ITAA's letter to the Senate is at http://www.itaa.org/upload/news/docs/s1348letter.pdf; an attachment outlining the ITAA's key concerns is at http://www.itaa.org/upload/news/docs/1348concerns.pdf. 2. USCIS Increases Immigration Fees U.S. Citizenship and Immigration Services (USCIS) has issued a final rule, effective July 30, 2007, that drastically increases fees for many immigration benefits. USCIS said that without these fee adjustments, the agency would not be able to maintain critical business functions, properly address fraud and national security issues, and process incoming applications and petitions in a timely manner. Selected specific increases include: Petition for a Nonimmigrant Worker (Form I-129): Fee increased from $190 to $320 Application for Travel Document (Form I-131): Fee increased from $170 to $305 Immigrant Petition for Alien Worker (Form I-140): Fee increased from $195 to $475 Application to Register Permanent Residence or Adjust Status (Form I-485): Fee increased from $325 to $930 Immigrant Petition by Alien Entrepreneur (Form I-526): Fee increased from $480 to $1,435 Application to Extend/Change Nonimmigrant Status (Form I-539): Fee increased from $200 to $300 Application for Waiver of the Foreign Residence Requirement (Form I-612): Fee increased from $265 to $545 Application for Employment Authorization (Form I-765): Fee increased from $180 to $340 Biometric Services: Fee increased from $70 to $80 The final rule, published at 72 Fed. Reg. 29852 (May 30, 2007), is available at http://www.uscis.gov/files/nativedocuments/FinalRule.pdf. USCIS's press release is available at http://www.uscis.gov/files/pressrelease/FinalFeeRulePressRelease052907.pdf. Questions and answers from USCIS are available at http://www.uscis.gov/files/pressrelease/FinalFeeRuleQsAs052907.pdf. 3. USCIS Announces H-1B Cap Receipting Time Frames Because of the unprecedented volume of recent H-1B filings, U.S. Citizenship and Immigration Services (USCIS) is temporarily experiencing a receipting/data-entry "frontlog" at its Service Centers. USCIS provided the following projections for fee receipting and data entry processing for H-1B cap cases currently at the Service Centers. These projections do not apply to Premium Processing or I-129 H-1B (cap or non-cap) cases: California Service Center. USCIS expects to provide in time-compliance for receipting of all form types by June 15, 2007. Nebraska Service Center. USCIS is currently providing in time-compliance for receipting of all form types. Texas Service Center. USCIS is currently providing in time-compliance for receipting of all form types. Vermont Service Center. USCIS expects to provide in time-compliance for receipting of all form types by June 6, 2007. USCIS noted that it may take additional time for a Service Center to complete fee receipting and data entry of an application or petition received and for the receiving Center to mail the appropriate receipt notice. USCIS recommends that persons who have filed a petition or application with USCIS wait at least 30 days from the applicable receipt processing time frame noted above before contacting USCIS with inquiries. If a response is not received from USCIS within 30 days of the dates listed above, USCIS recommends checking the Web site at http://www.uscis.gov or calling USCIS customer service at 1-800-375-5283 for updated processing information. USCIS's announcement is available at http://www.uscis.gov/files/pressrelease/H1BReceipts051107.pdf. 4. DOL Publishes Final Labor Certification Rule, Prohibits Substitutions; USCIS Terminates Premium Processing for I-140s Requesting Substitutions The Department of Labor (DOL) published a final rule, effective July 16, 2007, to "enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States." The provisions apply to permanent labor certification applications and approved certifications filed under both the Program Electronic Review Management (PERM) program regulation, effective March 28, 2005, and previous regulations implementing the permanent labor certification program. In general, the DOL rebutted commenters' concerns about a wide variety of issues, such as increased costs and the loss of priority dates resulting from the new prohibition on substitution of beneficiaries, by maintaining that the benefits of the new provisions to the labor market and in preventing fraud outweigh the concerns of individual employers. Meanwhile, U.S. Citizenship and Immigration Services (USCIS) announced that beginning on Friday, May 18, 2007, Premium Processing Service is no longer available for Immigrant Petition for Alien Worker (Form I-140) petitions that request labor certification substitution. USCIS anticipates a substantial increase in the number of petitioning employers that will file I-140 petitions requesting Premium Processing Service and seeking labor certification substitution before July 16, 2007. The volume of such petitions is expected to exceed USCIS' capacity to provide the service according to the program guidelines. The DOL rule's major provisions include: A prohibition on the substitution of beneficiaries. This prohibition will apply to all pending permanent labor certification applications and to approved permanent labor certifications. The prohibition does not affect substitutions approved by the DOL or Department of Homeland Security (DHS) before the effective date. It also does not affect substitution requests in progress as of the rule's effective date. The final rule also prohibits the sale, barter, and purchase of labor certification applications and approved labor certifications. A 180-day validity period for approved labor certifications. Employers will have 180 calendar days within which to file an approved permanent labor certification in support of an I-140. All permanent labor certifications approved on or after the effective date will expire 180 calendar days after certification, unless filed before expiration in support of a Form I-140 petition with DHS. Likewise, all certifications approved before the final rule's effective date will expire 180 calendar days after the effective date unless filed in support of a Form I-140 petition with DHS before the expiration date. A requirement that employers pay the costs of labor certification, including preparing, filing, and obtaining certification. The beneficiary may pay attorneys' fees for representation of the beneficiary or other "legitimate" costs incurred by him or her, but an employer's transfer to the beneficiary of the employer's costs incurred is strictly prohibited. Prohibited payments include, but are not limited to, employer fees for hiring the beneficiary; receipt of part of the beneficiary's pay, whether through a payroll deduction or otherwise, as reimbursement; reducing the beneficiary's pay for purposes of reimbursement or pre-payment; goods and services or other wage or employment concessions; kickbacks, bribes or tributes; receipt of payment from beneficiaries, attorneys, or agents for allowing a permanent labor certification application to be filed on behalf of the employer; or the payment by the beneficiary of the employer's attorneys' fees. The establishment of procedures for debarment from the permanent labor certification program. The DOL may debar an employer, attorney or agent for up to three years based on certain enumerated actions such as fraud, willful provision of false statements, or a pattern or practice of noncompliance with PERM requirements, regardless of whether the labor certification application involved was filed under the previous or current regulation. The rule extends from 90 to 180 days the period during which the DOL may suspend processing of applications under criminal investigation. The rule adds an intent requirement ("willful") to the false information section; to be actionable, the employer must willfully provide false or inaccurate information to the DOL. The rule expands the existing provision for a right to review the DOL's denial of an application or revocation of a certification, to encompass a right to review of a debarment action. The request for review would be made to, and in appropriate cases a concomitant hearing would be held by, the Board of Alien Labor Certification Appeals. Clarification of the DOL's "no modifications" policy for applications filed on or after March 28, 2005, under the PERM process. The rule finalizes with minor changes a provision in the proposed rule prohibiting modifications to permanent labor certification applications once such applications are filed with the DOL. The final rule includes details on issues raised by public comment and the DOL's resolution of those issues, the DOL's cost-benefit analysis, and statistics on small businesses' use of labor certification. It was published on May 17, 2007, and is available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-9250.pdf. USCIS's new procedures under the final rule are available at http://www.uscis.gov/files/pressrelease/PermRuleLaborCert052407.pdf. USCIS's press release announcing termination of Premium Processing Service is at http://www.uscis.gov/files/pressrelease/PPSPermRule051707.pdf. 5. USCIS Issues Final Rule Removing Standardized Request for Evidence Timeframe U.S. Citizenship and Immigration Services (USCIS) issued a final rule, effective June 18, 2007, to provide flexibility to the agency in setting the time allowed to applicants and petitioners to respond to a Request for Evidence (RFE) or to a Notice of Intent to Deny (NOID). Specifically, the final rule maintains the current 12-week standard as a ceiling on the response time to be provided, and sets a maximum of 30 days to respond to a NOID. The rule also describes the circumstances under which the agency will issue an RFE or NOID before denying an application or petition, but USCIS said it will continue generally to provide petitioners and applicants with the opportunity to review and rebut derogatory information. The rule also clarifies when petitioners and applicants may submit copies of documents in lieu of originals. USCIS said it intends to issue policy guidance setting clear standards for when a timeframe less than these maximums will be afforded before the effective date of the rule. USCIS noted that it recognizes the value of a predictable timeframe for responding to an RFE or NOID, and stated that it did not intend to make this an unpredictable, discretionary process with timeframes determined by individual adjudication officers. USCIS said it will set clear timeframes and standards for submission of different kinds of evidence in different circumstances. The timeframes will be set out in internal guidance to adjudicators. USCIS said it foresees no reason why this guidance also would not be publicly disclosed after it is developed or whenever it is adjusted. USCIS noted that important processing steps (such as background checks) may need to be repeated if processing extends beyond certain timeframes. Repeating steps may significantly delay the eventual acquisition of an immigration benefit. Longer timeframes can work against a timely response also because applicants and petitioners given almost three months to respond may delay responding simply because they consider that additional time in the U.S. to be a benefit, USCIS pointed out. Recognizing that the majority of applications and petitions are eventually approved, USCIS said it does not want to restrict arbitrarily a reasonable opportunity to submit material to prove eligibility. USCIS added that it recognizes that documents from certain countries other than the U.S. are "occasionally difficult to obtain"; thus, the timeframe flexibility will take into account these situations. Nevertheless, USCIS asserted, most applicants and petitioners can provide required documents in fewer than 12 weeks. The final rule is available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-7228.pdf. 6. DHS Revamping Electronic Verification System The Department of Homeland Security (DHS) is updating its electronic records system to consolidate information from different systems of records notices and add new sources of data. The update includes Basic Pilot Program information used to determine whether a newly hired employee is authorized to work in the U.S. The notice is available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/E7-6611.htm. Information about the Basic Pilot Program, also called the Employment Verification Program, is at https://www.vis-dhs.com/EmployerRegistration. The DHS also is creating a new Biometric Storage System. See http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/07-1643.pdf. 7. DHS Issues Final Rule on Petitioning Requirements for O and P Nonimmigrants The Department of Homeland Security (DHS) issued a final rule effective May 16, 2007, to permit petitioners to file O and P nonimmigrant petitions up to one year before the petitioner's need for the worker's services. The rule is intended to enable petitioners who are aware of their need for the services of an O or P nonimmigrant well in advance of a scheduled event, competition, or performance to file their petitions under normal processing procedures. "This way, petitioners will be better assured that they will receive a decision on their petitions in a timeframe that will allow them to secure the services of the O or P nonimmigrant when such services are needed," the DHS said. Current regulations governing both O and P nonimmigrants preclude the petitioner from filing a Form I-129 (Petition for Nonimmigrant Worker) more than six months before the actual need for the alien's services. The DHS noted that the timing of filings by petitioners, combined with current U.S. Citizenship and Immigration Services (USCIS) processing times, often result in USCIS completing the adjudication of such petitions at the same time as, or even later than, the date of the petitioner's need for the worker. This created a hardship for petitioners seeking to employ a worker based on a scheduled performance, competition, or event, and who already may have booked a venue and sold advance tickets. If the petition is not approved by the time of the petitioner's need for the worker's services, the petitioner may be required to cancel a scheduled event or performance, lose funds advanced for booking a venue, and be liable for the costs associated with ticket refunds as well as other costs. If petitioners were able to file Forms I-129 for O or P nonimmigrant status more than six months in advance of the need for the worker's services, the DHS reasoned, USCIS could ensure that the adjudication is completed in advance of the date of the scheduled event, competition, or performance. Moreover, a large percentage of O and P petitioners seeking performers or athletes often must plan for and schedule competitions, events, or performances more than one year in advance. Of the 112 comments received on the proposed rule published two years ago, 110 comments supported the proposal to extend the allowable petition filing time from the current six months to one year in advance of the petitioning employer's need for the services of the O or P nonimmigrant. As nearly all comments supported the proposed rule's extension of the O and P nonimmigrant petition filing period, the final rule provides that petitioners of O and P nonimmigrants may file petitions at any time up to a maximum of one year in advance of their need for the worker's services. USCIS is not adopting a proposed requirement that petitions must be filed no sooner than six months before the actual need for the worker's services. The final rule does not apply the one-year filing timeframe to other nonimmigrant classifications associated with Form I-129. The nature of O and P employment is different from other nonimmigrant visa classifications, the DHS explained. Extending the filing period for other nonimmigrant classifications using Form I-129 "may result in the increased potential for fraud and abuse as well as an increase in case filings where the need for the alien's services has not fully materialized." The final rule is available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-7134.pdf. Average petition processing times are available at https://egov.uscis.gov/cris/jsps/ptimes.jsp 8. DOL Releases PERM Labor Certification FAQ On May 10, 2007, the Department of Labor released the Tenth Round of Frequently Asked Questions on PERM labor certification. The FAQ includes information on notices of filing, advertisement content, and types of evidence in response to audit requests. See http://www.foreignlaborcert.doleta.gov/pdf/perm_faqs_5-9-07.pdf. 9. DOL Holds H-2B Briefings, Releases Filing Tips The Department of Labor (DOL) held two national briefing sessions in May, one in Chicago and the other in Atlanta, to discuss recently updated guidance for State Workforce Agencies and ETA National Processing Centers (NPCs) when processing H-2B labor condition applications in nonagricultural occupations. The purpose of the briefing sessions was to inform the user community of the processing protocols implemented at the NPCs in Chicago and Atlanta. To ensure that all employers are aware of the filing requirements, and to ensure that applications for H-2B visas are processed in the most efficient manner, the DOL has released filing tips for employers submitting H-2B applications. The DOL also has released updated guidance for State Workforce Agencies and ETA National Processing Centers when processing H-2B labor condition applications in nonagricultural occupations. The guidance replaces and supersedes previous operating procedures issued under General Administrative Letter (GAL) 01-95, GAL 01-95, Change 1, and Field Memorandum (FM) 25-98. The DOL said that the guidance is intended to work in concert with the new centralized filing process at the NPCs to ensure greater consistency in the processing of H-2B applications. Special handling procedures for certain nonagricultural occupations, such as forestry workers and boilermakers, will be issued through separate guidance letters by the National Office of Foreign Labor Certification. The guidance is available at http://wdr.doleta.gov/directives/attach/TEGL/TEGL21-06.pdf. A related Federal Register notice is at http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2007_register&position=all&page=19961. The filing tips are at http://www.foreignlaborcert.doleta.gov/pdf/H-2B_Stakeholder_Application_Filing_Tips_050807_FINAL1.pdf. Separate PDFs are available for employers in the entertainment (http://www.foreignlaborcert.doleta.gov/pdf/OFLC_Briefing_May_Sessions_Entertainers_FINAL.pdf) and forestry (http://www.foreignlaborcert.doleta.gov/pdf/OFLC_Briefing_May_Sessions_Forestry_FINAL1.pdf) industries. A PDF of the presentation for employers is at http://www.foreignlaborcert.doleta.gov/pdf/OFLC_Briefing_May_sessions_FINAL.pdf. 10. Miller Mayer Obtains Long Awaited Waiver for Princeton Student After over a year of trying to regularize the status of a recent graduate of Princeton University who came to the U.S. at the age of six and overstayed his visitor's visa, attorney Steve Yale-Loehr managed to get a waiver of ineligibility approved by the Department of Homeland Security (DHS) so the recent Princeton grad, who is currently in a graduate degree program at Oxford University, can return to the U.S. to conduct research for his former thesis advisor at Princeton. Although originally determined that this young man should be barred from entering the U.S. for 10 years for being out of status in the U.S., Steve's winning strategy to overcome this bar involved getting publicity, including a lead story in the Wall Street Journal, as well as getting political support from U.S. senators and congressional members, including Senator Hillary Clinton, to sway the DHS in their decision. 11. Miller Mayer Obtains EB-1-1 Green Card for Artist Attorney Carolyn Lee received a green card approval this month for an EB-1-1 extraordinary ability artist at the Texas Service Center. This artist is a master jeweler currently in the U.S. on an O-1 temporary visa. Due to the more relaxed criteria for artists at the O-1 stage, Carolyn had to argue that this jeweler's training and unique abilities are widely recognized as extraordinary and are in fact up to the EB-1-1 standard. Using letters from other jewelers and stone setters, Carolyn successfully convinced USCIS not only that their first request for evidence was inappropriately vague, but that this world renowned jeweler qualified for a green card. For more information about EB-1-1 green cards for people who have extraordinary ability in the arts, sciences, athletics or business, see: http://www.millermayer.com/resources/immigrant/immigrant11cont.htm 12. Miller Mayer Immigration Group Welcomes Nicolai Hinrichsen Nicolai Hinrichsen recently joined our immigration law group as an associate. Nick previously practiced corporate and securities law in the San Francisco office of Sidley Austin. Before that he was in-house counsel in the Paris office of Case Corporation. Nick is admitted to practice in New York and California and is a member of the New York Bar Association, the California Bar Association, and the American Immigration Lawyers Association. He is an immigrant from Denmark and is conversant in both Danish and French. Nick becomes the fifth attorney in Miller Mayer's ever-growing immigration group. Please feel free to contact Nick with any immigration questions. 13. New Articles on Our Web Site Steve Yale-Loehr testified before the House immigration subcommittee on April 24, 2007 regarding problems in the current employment verification and worksite enforcement systems. A complete transcript of the hearing can be found at: http://www.millermayer.com/yaleloehr2007_congressional.html Steve has co-authored an article about the high volume of H-1B visa applications received by USCIS in the beginning of April 2007. This article can be found at: http://www.millermayer.com/h1bvisas_usedup.html A flow chart providing information regarding EB-5 immigrant investors can be found at: http://www.millermayer.com/mmgeneral_eb5_flowchart.pdf 14. The Firm Speaks Steve Yale-Loehr will be speaking at the annual American Immigration Lawyers Association conference on June 15 in Orlando, FL on a panel concerning EB-5 immigrant investors. Steve will also moderate a lunch that day for EB-5 immigrant investment officials. Contact Steve at mailto:syl@millermayer.comfor more details on these talks. 15. 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.uscis.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 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. 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 immigration counsel. ABIL's web site is: http://www.abil.com/ 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. To unsubscribe to this newsletter, email mailto:syl@millermayer.com. Please type "unsubscribe to millermayer.com immigration newsletter" in your subject line. Copyright (c) 2007 Miller Mayer, LLP. All rights reserved.
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