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September 2, 2005 immigration news update
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1. H–1B Cap Reached, USCIS Announces 2. Visa Number Cut-Off Dates Will Apply in October for Certain Countries 3. Labor Department Rescinds Controversial Portions of August PERM FAQ, Reports on Labor Cert Backlogs 4. Passports to be Required for U.S. Citizens by 2008? 5. National Interest Waiver Green Card Approved for Graphic Artist 6. U.S. Begins Using Radio Frequency Technology at Some Land Borders 7. USCIS Reminds I–90 Applicants of e-Filing Option 8. New Report Evaluates Visa Procedures in Post 9-11 Era 9. New Articles on our Web Site 10. The Firm Speaks 11. Immigration Processing Times Links
1. H–1B Cap Reached, USCIS Announces U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough H-1B petitions as of August 10 to meet the congressionally mandated cap for fiscal year (FY) 2006, which runs from October 1, 2005, to September 30, 2006. This means that the H-1B cap has been reached more than 14 months before the start of the fiscal year, causing havoc for many U.S. employers. The USCIS press release about the H-1B cap is at http://uscis.gov/graphics/publicaffairs/newsrels/H-1Bcap_12Aug05.pdf. USCIS noted that of the annual 65,000 H-1B numbers available each fiscal year, 6,800 are set aside for the H-1B1 program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements. The total H-1B cap number available for FY 2006, therefore, is 58,200. Any unused Chile/Singapore numbers will be reallocated to the FY 2006 H-1B cap and will be made available on October 1, 2006, the start of FY 2007. USCIS noted that it treats as exempt from the cap for any fiscal year the first 20,000 H-1B petitions reflecting a beneficiary with a U.S.-earned master's or higher degree. For FYs 2005 and 2006, USCIS has received approximately 10,000 and 8,000 of such petitions, respectively, as of early August. USCIS also noted that petitions for new H-1B employment are not subject to the annual cap if the worker will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit or governmental research organization. Thus, petitions for these exempt H-1B categories may still be filed for employment start dates in FYs 2005 or 2006. Others exempt from the cap include those who have been counted toward an H-1B cap within the past six years, unless they would be eligible for another full six years of admission (i.e., unless they have been outside the U.S. for at least one year). Also exempt are certain physicians who have obtained waivers of the two-year home residence requirement based on service in an underserved area. Procedures. Having determined that the numerical limits have been exceeded, USCIS is identifying H-1B petitions seeking a number for FY 2006 that were received on August 10, the final receipt date. For petitions received on that date, USCIS will randomly select by computer the exact number of petitions from the day's receipts needed to meet the cap. After random selection, any remaining H-1B petitions that do not receive a number for FY 2006 and are not otherwise exempt will be rejected and returned along with the filing fee. Petitioners may resubmit their petitions when H-1B visa numbers become available again for FY 2007. April 1, 2006, is the earliest date for which a petitioner may file a petition requesting FY 2007 H-1B employment with a start date of October 1, 2006. USCIS said it will continue to process petitions filed to extend the period of time a current H-1B worker may remain in the U.S.; to change the terms of employment for current H-1B workers; to allow current H-1B workers to change employers; and to allow current H-1B workers to work concurrently in a second H-1B position. To sign a letter urging Congress to raise the H-1B cap, go to http://capwiz.com/aila2/mail/oneclick_compose/?alertid=5183421. It only takes a few seconds, and can have a big impact. Also, as chair of the American Immigration Lawyers Association's Business Visa Committee, Steve Yale-Loehr is looking for examples of how the H-1B cap is hurting U.S. businesses. If you feel that the cap is hurting your business and are willing to share your experience, please email Steve at syl@millermayer.com. For more information about H-1B visas generally, see: http://www.millermayer.com/resources/nonimmigrant/h1fact.html. 2. Visa Number Cut-Off Dates Will Apply in October for Certain Countries As noted in last month's newsletter (http://www.millermayer.com/resources/news8-05-05.html article 1), the Department of State announced that most employment-based third preference (EB-3) immigrant visa numbers will be unavailable for the remainder of this fiscal year, until September 30, 2005. Visa numbers are also unavailable in September for the EB-3 "Other Workers" category. Delays of three to four years seem likely for professionals from backlogged countries and skilled workers from all countries; backlogs of five to eight years for unskilled workers, last experienced in the 1990s, are apt to return. This means that it is more important then ever to file for an employment-based green card as soon as possible to avoid the risk that your temporary work status will expire before you can get your green card. Backlog reduction efforts of both U.S. Citizenship and Immigration Services and the Department of Labor continue to result in heavy demand for employment-based numbers, the State Department noted. The quantity of such cases is expected to be sufficient to use all available numbers in many categories. As a result, cut-off dates in the employment-based third preference category will apply to China, India, and the Philippines beginning in October, and it is possible that Mexico may be added to this list. Heavy demand is expected to result in the establishment of a third preference cut-off date on a worldwide basis by December. The Department also noted that the demand for employment-based numbers for applicants from China and India is likely to result in oversubscription of the employment first and second preference categories for those areas. Establishment of such cut-off dates is expected to occur by December. The level of demand in the employment categories is expected to far exceed the annual limits and, once established, cut-off date movements are likely to be slow, the Department warned. 50,000 Schedule A numbers remain available for professional nurses, physical therapists, and persons "of exceptional ability in the sciences or arts," and their accompanying spouses and children. For more information about EB-3 and other employment-based green cards, please see the article "Employment-Based Permanent Residence Options for International Workers in the United States" on the True, Walsh & Miller website: http://www.millermayer.com/resources/immigrant/empbased.html To view the current State Department Visa Bulletin please visit: http://travel.state.gov/visa/frvi/bulletin/bulletin_2616.html To read more about the USCIS backlog reduction campaign, please visit: http://www.millermayer.com/resources/news7_6_04.html 3. Labor Department Rescinds Controversial Portions of August PERM FAQ, Reports on Labor Cert Backlogs The Department of Labor has rescinded portions of a FAQ on the new PERM regulations (http://ows.doleta.gov/foreign/faqsanswers.asp#filing12). The rescinded portions dealt with multiple labor certification filings; in essence, in contrast to past practice, it appeared that employers under PERM would be precluded from having more than one application for the same worker actively in process at any given time, and would be unable to have one application processed under both the old and new systems. The Labor Department said that it has "removed [these portions of the FAQ] posted on August 8, 2005. The Department is considering questions and information stakeholders have submitted in response to this FAQ posting, and will be developing and posting a clarified response in the near future." According to sources, 16,000 cases have been filed under PERM so far, of which approximately 2,000 have been approved in a variety of occupations. Labor Department Backlog Processing Centers hope to have completed entry of approximately 200,000 backlogged (pre-PERM) labor certification cases and to have issued 45-day letters for them shortly, although the Department said it cannot promise when the letters will be sent out. Once the employer receives the 45-day letter, all requested corrections, supporting documents, and the Selection of Continuation Option Letter must be returned to the appropriate Backlog Processing Center. In the designated space at the bottom of the Selection of Continuation Option Letter, the employer should place a check mark next to the appropriate option: "I wish to withdraw this application" or "I wish to continue the processing of this application." Also, the Department has released an extensive labor certification contacts list, available at http://www.ows.doleta.gov/foreign/contacts.asp (scroll down for the state-by-state details). 4. Passports to be Required for U.S. Citizens by 2008? On September 1, 2005, the Departments of Homeland Security (DHS) and State (DOS) issued an advance notice of proposed rulemaking (APRM) on the Western Hemisphere Travel Initiative (WHTI). The WHTI will require, by January 1, 2008, citizens of the U.S., Bermuda, Canada, and Mexico to have a passport or other accepted secure document that establishes the bearer's identity and nationality to enter or re-enter the United States. The DHS anticipates that Border Crossing Cards (laser visas) will be acceptable under the WHTI. Other documents being considered are the SENTRI, NEXUS, and FAST program cards. The DHS and DOS are reviewing new technology for secure travel documents, and this list could be revised in the future as a result. In the proposed implementation plan, the WHTI will be rolled out on phases: (1) by December 31, 2006, the requirement will be applied to all air and sea travel to or from Canada, Mexico, Central and South America, the Caribbean, and Bermuda; (2) by December 31, 2007, the requirement will be extended to all land border crossings as well as air and sea travel. For more information on how to apply for a passport, see: http://travel.state.gov/passport/passport_1738.html. 5. National Interest Waiver Green Card Approved for Graphic Artist Rcently True Walsh & Miller received a national interest waiver approval for a talented graphic artist and network security specialist. In his position at a prominent university, he creates digital images to display complex scientific ideas visually to disseminate research to interested parties. He also maintains a website that publicizes research in an image-rich format. His artwork has been widely published and has attracted national attention. His position also requires him to maintain the security of the university’s computer networks to protect millions of dollars in intellectual property, national defense projects, and other sensitive material. After we originally filed the national interest waiver petition, we received an request for evidence from the immigration agency asking for proof that his talents would benefit the country as a whole. Rosanne Mayer responded that the university's research was undoubtedly in the national interest, and that his work enabled the university to publicize, acquire additional funds, and attract attention for the university’s top research projects. Also, since the projects that he protects in his network security duties were in the national interest, it also benefited the U.S. to have a network security specialist with his talent. The immigration agency agreed, and approved the petition. For more information about EB-2 national interest waivers, see: http://www.millermayer.com/resources/immigrant/immigrant9cont.htm. 6. U.S. Begins Using Radio Frequency Technology at Some Land Borders On August 4, 2005, the Department of Homeland Security (DHS) issued a press release that they are now testing radio frequency identification (RFID) technology at five land ports: Pacific Highway, Washington; Peace Arch, Washington; Alexandria Bay, New York; Nogales East, Arizona; and Mariposa-Nogales West, Arizona. The notice likens RFID to bar code identification. The RFID tags are embedded into the non-immigrant traveler’s Form I-94 or I-94W when they arrive at a land border port-of-entry and can be read up to thirty feet away. The chip itself will not contain any information about the traveler. Instead, the tag can be read when the traveler exits and/or re-enters the U.S. and passes by the RFID antenna set up at the port-of-entry. The test will monitor the optimal distance from which the tag can be read, as well as the tag’s effectiveness and accuracy So far, the antennas have had a high rate of accuracy, so no action has been needed by travelers to make the technology work. DHS advises, however, that in the future they might find that the technology works only if it is carried in a specific way. If so, DHS will further advise all travelers who have been issued an RFID-embedded tag. For the DHS press release, go to: http://www.dhs.gov/dhspublic/display?content=4719 7. USCIS Reminds I–90 Applicants of e-Filing Option U.S. Citizenship and Immigration Services (USCIS) has issued a reminder that e-filing remains an option for filing a Form I-90 (Application to Replace a Permanent Resident Card). E-filing is a free service; no additional processing fees are charged. Step-by-step instructions and reminders are intended to help reduce errors and time spent filling out applications. Users may save partially completed applications for completion at a more convenient time. The system provides an immediate confirmation receipt notice upon successful submission of the application. The receipt provides a receipt number, a receipt of payment notice, and next step instructions. Users may pay application fees electronically at no extra charge by using either their personal checking or savings account or credit/debit card (Visa, MasterCard, American Express, and Discover are accepted). Those e-filing an I-90 do not need to submit paper photographs or self-schedule an appointment at an Application Support Center to capture biometrics. The applicant will receive a notice in the U.S. mail of a USCIS-scheduled appointment for capturing biometrics and photographs. All required initial evidence and supporting documentation should be brought to the appointment. The application and instructions are available at http://uscis.gov/graphics/formsfee/forms/e-i-90.htm 8. New Report Evaluates Visa Procedures in Post 9-11 Era Steve Yale-Loehr has co-written a report with members of the Migration Policy Institute analyzing post-September 11 changes to U.S. visa policy. The report finds that administrative procedures in immigration agencies have changed considerably since 9/11. The report makes four main recommendations for the visa process: the need to define a clear vision for U.S. visa policy, the need for a means to evaluate the agencies’ actions, the need for a simplified visa classification and application process, and improved intelligence. Because the focus of visa policy has shifted significantly towards security, immigration agencies have implemented new requirements such as interviews for all visa applicants, restricting travel through the U.S. to other countries, and machine-readable passports. The authors find that the shift towards security check has brought about improvement in the security check process, making it more thorough. Yet such security checks have caused delays in the visa application process. A more balanced approach would allow fast-tracking of the security check process for those who have traveled and been cleared recently, to prevent discouraging legitimate travel to the U.S. The authors also find that the agencies need to coordinate and communicate decisions more effectively. Information should be more complete, secure and available to the public. Administrative elements of the visa process should be transparent as well as constantly evaluated and updated. The Department of Homeland Security and the State Department also need to invest in training for personnel and decide which agency has responsibility for this training. The authors observe that U.S. economic interests are disadvantaged by confusing and complex visa procedures, which discourage talented students and international business. The full article can be found at: http://www.migrationpolicy.org/pubs/visa_report.pdf. 9. New Articles on our Web Site Steve Yale-Loehr has written an article on immigration reform and the competing bills being discussed now in Congress. Please visit the article at http://www.millermayer.com/new/immigrationreform.html. 10. The Firm Speaks Steve Yale-Loehr will speak on a teleconference about legal research techniques on Tuesday September 27 for members of the American Immigration Lawyers Association. Steve will give a talk on visa options after graduation in the Hollis E. Cornell auditorium in Goldwin Smith Hall at Cornell University on Monday October 24 from 7-9 pm. Steve and Hilary Fraser will give two talks in Buffalo on Friday November 18: one on visa options after graduation to students at the University of Buffalo; the other to medical students on their visa options. 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 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 provides to human resource professionals, corporate counsel, in-house immigration managers, and other immigration decision makers access to a coalition of U.S. business immigration attorneys who have a demonstrated history of client service and a dedication to providing the best and most effective solutions to your immigration concerns. Each of ABIL’s Founding Fellows is committed to the highest standards of professionalism, to maintaining the most up-to-date knowledge in the field of U.S. immigration law, and to providing the kind of accessibility you expect from the best in the field. ABIL's website is: http://www.abil.com/ For answers to any of your immigration questions, contact: Hilary Fraser (mailto:htf@millermayer.com) Carolyn Lee (mailto:csl@millermayer.com) Rosie Mayer (mailto:rma@millermayer.com), or Steve Yale-Loehr (mailto:syl@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) 2005 True, Walsh & Miller, LLP. All rights reserved.
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