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November 1, 2004 immigration news update
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1. Labor Dept. Issues Transitional Guidance For Processing Labor Certifications 1. Labor Dept. Issues Transitional Guidance For Processing Labor Certifications In early October the federal Department of Labor (DOL) issued an important memo to State Workforce Agencies (SWAs), marking a major step toward implementing the DOL backlog reduction plan and PERM. This guide instructs SWA employees on their rapidly changing role in the labor certification process over the next two years. Currently the backlog of applications for permanent labor certification is over 310,000. PERM refers to an electronic process for filing and processing labor certification applications for permanent employment-based immigration. PERM regulations, first proposed in May 2002, have long been awaited to help streamline the current permanent labor certification system and thus combat the backlog. A final rule instituting PERM is awaiting clearance from the Office of Management and Budget. However, a PERM rule is not guaranteed. Given this, the new memo provides for major changes whether or note the PERM rule is published. In general, the guidance makes clear that the DOL will address its labor certification backlog by centralizing the permanent labor certification process. The process used to be conducted in two parts, one at the state and the other at the federal level. To centralize this process, the Employment and Training Administration (ETA) has created two temporary backlog elimination centers in Philadelphia and Dallas and two permanent centers in Atlanta and Chicago. The temporary centers, which are already fully operational, process backlogged cases sent to them from federal and state offices. The DOL expects these temporary centers to eliminate the labor certification backlog within two years. At that point they will be closed. Whether or not the PERM rule is published, SWAs will be phased out of the permanent labor certification process in favor of the national centers. They will, however, continue all other foreign employment certification functions, including H-1B and H-2B program functions. For fiscal year (FY) 2005 each SWA will receive 50% of their FY 2004 funding. From these funds they must create a full-time position dedicated to overseeing the transition from the old system to the federal system. Further, they must continue to process cases opened through January 1, 2005, unless the ETA publishes a PERM regulation. In the latter case, SWAs will continue to accept cases for 60 days after the PERM regulation's publication. SWAs will continue to work on all cases opened but not completed as of January 1, until they are ready to be forwarded to the new Atlanta or Chicago office. Finally, SWAs will "time stamp" all cases received after January 1, 2004 and forward them to the national centers. The DOL hopes to adhere strictly to its "first-in, first-out principle" regardless of where a case is originally filed. Perceiving the potential boon and burden of the new PERM regulation, employers and employees may be ambivalent about the imminent changes. Many hope these changes will spell the end of the enormous labor certification backlog. However, a national system may handicap tools for securing labor certifications. In particular, employers may lose the ability to sufficiently hone job descriptions to fit local conditions. For an overview of the current labor certification process see the following article on the True, Walsh & Miller web site: http://www.millermayer.com/resources/immigrant/immigrant2cont.htm For more information on the permanent labor certification centralization process see: http://www.millermayer.com/resources/news7_30_04.html To read the new DOL memo visit: http://www.workforceatm.org/sections/pdf/2004/FY05tranguid.pdf 2. Caught by the H-1B Cap? Consider Some Alternatives On October 1, the first day of the FY 2005 federal fiscal year, the U.S. Citizenship and Immigration Services (USCIS) announced that it had already received 65,000 petitions for new H-1B workers, thus reaching the statutory limit for this important temporary work visa category. See our October 4, 2004 newsletter at http://www.millermayer.com/resources/news10_4_04.html. Additional H-1B visas for new H-1B workers will not be available until October 1, 2005, when the next fiscal year begins, thus leaving many employers and potential H-1B workers in a difficult position. Legislation to alleviate the problem is pending in Congress, but it is unclear whether it will be enacted. Although there may be no immediate solutions to the H-1B cap, employers and highly educated foreign nationals can employ alternative strategies to resolve their needs. Some H-1B eligible employees are exempt from the cap. One such category consists of those who work at an institution of higher education or a “related or affiliated nonprofit entity,” or at a “nonprofit research organization or a governmental research organization.” The L-1 (intracompany transferee) category may be an option in selective cases, although it may be difficult to obtain. See generally http://www.millermayer.com/new/L-1visa.html The State Department has warned its consular officers that the H-1B squeeze may cause an increase in L-1 petitions. Employers may also consider whether new hires can qualify for other temporary visa categories. For example, the O-1 category is available for persons of “extraordinary ability.” See http://www.millermayer.com/resources/nonimmigrant/nonimmigrant18cont.htm Some artists, athletes, and entertainers may qualify for P visas. Certain professionals from Canada and Mexico can enter in the TN (Treaty NAFTA) category. None of these other visa categories have annual caps. But not all workers who would normally obtain a H-1B visa will qualify for these alternatives. Some foreign nationals may also qualify for B-1 visas in lieu of H-1Bs. See http://www.millermayer.com/new/b-1.html The main caveat of this visa category is that B-1 visitors can not receive a salary from a U.S. source. Finally, the J-1 visa for exchange visitors allows certain foreign nationals to receive training in the United States for up to 18 months. For more information about alternatives to the H-1B visa visit: http://www.millermayer.com/resources/h1h2.html 3. USCIS Issues Reminders About Advance Parole, ADIT Stamps In anticipation of the upcoming holiday season, the U.S. Citizenship and Immigration Services (USCIS) has issued a reminder to foreign nationals applying for adjustment of status to obtain advance parole if they plan to travel outside the United States while their adjustment applications are pending. To do so, a traveler must file Form I-131, Application for Travel Document, with the USCIS before traveling abroad. Advance parole permits foreign nationals applying for adjustment of status to re-enter the United States after traveling abroad and continue their adjustments. If a foreign national does not apply for advance parole, they might not be readmitted to the country, or could have their adjustment application denied. Foreign nationals may apply for advance parole at a USCIS Service Center or at a USCIS district office. Processing time for Service Centers may range from 90-150 days. District office processing times vary. The USCIS has also published a statement confirming that it will continue to issue "ADIT" stamps. ADIT stamps are added to a passport or an Arrival-Departure Record (I-94) as temporary proof of residence. While necessary, they can be inconvenient to obtain, as the process involves going to a local USCIS office, with several forms of evidence and waiting for an official. To address the ADIT stamp problem the USCIS "continues to aggressively pursue technological improvements to allow the prompt issuing of permanent alien resident cards without the need to issue these temporary stamps." For the USCIS press release about advance parole, please visit: http://uscis.gov/graphics/publicaffairs/newsrels/Travel_10_22_04.pdf For the USCIS press release about the continued issuance of ADIT stamps, please visit: http://uscis.gov/graphics/publicaffairs/newsrels/adit_10_21_04.pdf 4. The Advantages of Naturalizing As election season draws to a close it is important to remember that one of the primary advantages to naturalization is the ability to vote. Nonimmigrants and legal permanent residents are not allowed to vote. Moreover, financial donations are forbidden for the former and are limited for the latter. Naturalized citizens are also eligible for U.S. passports, which affords citizens government protection when abroad. Citizens also do not have to fear deportation if they commit a crime while in America. Generally, an applicant for naturalization establishes eligibility for naturalization by showing that he or she: (1) is over 18 years old; (2) has been a legal permanent resident of the U.S. for the past five years (or three years if married to a U.S. citizen); (3) has resided in the state where he or she is filing a naturalization petition for at least three months before filing the application; (4) does not advocate or support the overthrow of the U.S. government; (5) can speak, read, and write English; and (6) is of good moral character. Derivative citizenship can be obtained when a petition is filed on behalf of a child under 18 years of age by a parent who is a U.S. citizen. Expedited procedures are available for certain military personnel and for spouses of U.S. citizens stationed overseas. For more information about naturalization please visit: http://uscis.gov/graphics/services/natz/index.htm See also the following article on the True, Walsh & Miller web site: http://www.millermayer.com/resources/general13cont.htm Feel free to contact us about starting the naturalization process if you became a lawful permanent resident more than five years ago.
5. USCIS Holds EB-5 Meeting in Washington DC On September 17 several top officials from the U.S. Citizenship and Immigration Services held a conference in Washington, DC to discuss the EB-5 immigrant investor visa category. This green card category is reserved for immigrant investors who will create 10 full-time jobs by investing at least $500,000 in a U.S. company. See generally http://www.millermayer.com/resources/eb5overview.htm Over 100 people attended the conference. The USCIS held the meeting to allow concerned parties to express their comments and concerns about the EB-5 visa category. Paramount among the issues discussed were lengthy processing times, which can cause businesses to back out of deals or a foreign national's financial status to change. Attendees also expressed concern about ambiguity in USCIS EB-5 regulations. The September 17 meeting may mark a major leap forward in USCIS policy toward the EB-5 visa category. Bill Yates, Associate Director of USCIS for Operations, announced that he will work to improve EB-5 processing times. He promised to provide details about the proposed changes by the middle of December. Continue to check True, Walsh and Miller's web site for further developments on this issue. 6. State Dept. Discusses Efforts to Facilitate Business and Nonimmigrant TravelAs part of a new travel initiative, the State Department recently released two memos listing programs to facilitate business and nonimmigrant travel. This new initiative aims to facilitate legitimate travel while improving U.S. security. These memos enumerate 14 consular programs and U.S. procedures already in progress to this end. Equally importantly, the memos ask all U.S. consular posts that currently lack travel facilitation programs to create them. Consulates will send reports about these programs to the State Department so that the best ideas can be promulgated. Among the most significant of the business programs, the U.S. consulates in Seoul, Bogota, Beijing, Chennai and London have programs for either expedited processing of visas or special appointments for business travelers. For example, Tokyo has a business outreach program allowing companies that send numerous employees to the United States to schedule special group appointments. The nonimmigrant travel memo discusses a multi-agency effort to streamline recent U.S. security measures and address "issues related to courtesy and processing at ports of entry." The memo goes on to highlight the importance of processing visas for students and travelers with medical emergencies in a timely manner. The State Department is making plans to establish dedicated e-mail addresses for visa category communities such as businesses or medical institutions. The department will also establish metrics and collect information to evaluate the progress made toward a successful "open doors" policy. For more information of how to contact various U.S. consulate please visit: http://usembassy.state.gov/ To view the Business Initiative and Nonimmigrant Travel Initiative memos, please visit: http://travel.state.gov/visa/state166108.html http://travel.state.gov/visa/state170771.html 7. Recent TWM Immigration Success Story True, Walsh and Miller recently received a favorable decision on a pro bono case that encompassed family court and immigration procedures. The beneficiary was a minor and a citizen of a country undergoing political upheaval. Following a family tragedy and parental neglect, the beneficiary fled her country and entered the United States on a visitor's visa. Her status had expired when a family friend in the U.S. contacted our firm. Upon hearing the case our lawyers decided to file a special immigrant juvenile green card petition to allow her to remain in the United States permanently. However, there were several obstacles to making this case successful. The case needed to be approached from both a family court and an immigration perspective, which meant two separate but coordinated sets of proceedings. As the beneficiary would be turning 18 in a matter of months, the case was time sensitive. The lawyers also had to prove to a court judge and to an immigration interviewer that the beneficiary had been neglected. Finally, the local family court was unfamiliar with this type of immigration case, so our lawyers had to work closely with family court and immigration officials to ensure a prompt and correct filing. After negotiating the aforementioned obstacles, adjusting for an eleventh hour change in pertinent immigration policy requiring greater scrutiny from the immigration examiner and handling the district office's file misplacement, all during the green card interview, the client met with success. The client's petition was approved and she received her permanent residence just before she turned 18. For further information on these or any other immigration issues, please contact True, Walsh & Miller, LLP. 8. New Articles on Our Web Site Steve Yale-Loehr has co-authored a new article about current restrictive trends in EB-1-2 outstanding professor and researcher green card cases at http://www.millermayer.com/new/eb1_2.html Steve has also co-authored an article on how to obtain national interest waiver green cards for researchers. That article is at http://www.millermayer.com/resources/niwrdm.html Steve has also co-authored an article about a current detention controversy now pending at the Supreme Court. That article is at http://www.millermayer.com/resources/defalien.html 9. The Firm Speaks On Friday November 5 Steve Yale-Loehr and Rosanne Mayer will give two presentations at the University of Buffalo, one to foreign medical students and another to international students, about visa options after graduation. On Monday November 8 Steve will speak on a panel entitled "Immigration Jeopardy--When Student's Lives Collide with the Law" at a regional conference of NAFSA: Association of International Educators on Long Island. Contact Steve at mailto:syl@millermayer.com for more details on any of these talks. 10. Happy Halloween: See Our Immigration Group Photo! Our annual Halloween photo of our top-notch immigration group will soon be posted at the top of the following page on our web site: http://www.millermayer.com/resources/generalcont.htm Who says you can’t practice high quality immigration law and have fun at the same time! _____________________ 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 (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) 2004 True, Walsh & Miller, LLP. All rights reserved.
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