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February 4, 2004 Immigration News Update
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1. H-1B Cap Approaching; USCIS May Stop Accepting Applications This Month 1. H-1B Cap Approaching; USCIS May Stop Accepting Applications This Month The most recent statement from U.S. Citizenship and Immigration Services (CIS) has revealed that as of December 31, 2003, the end of the first quarter of fiscal year 2004, a total of 43,500 cap subject H-1B cases were either approved or pending in the queue for adjudication. As the cap on H-1B visa approvals for fiscal year 2004 is 65,000, that leaves approximately 19,700 available spots for the remaining nine months of the fiscal year. Should the rate of H-1B applications continue at its current pace, CIS may reach its cap sometime in February. With the application cutoff date approaching so rapidly, H-1B petitioners should apply as soon as possible. For more information about the H-1B visa and the recent changes in the H-1B visa category, visit: http://www.millermayer.com/resources/nonimmigrant/h1changes.html. Steve Yale-Loehr of our firm, who chairs the business immigration committee of the American Immigration Lawyers Association (AILA), is working hard to find a legislative solution to this problem. 2. Long Awaited PERM Regulation Takes a Big Step Forward The PERM labor certification program first proposed in May 2002 has been subject to seemingly endless delays. Although the regulation was originally expected to be finalized by April 2003 and implemented three months later, it has yet to be sent from the Department of Labor (DOL) to the Office of Management and Budget (OMB). Now, almost a year behind schedule, PERM may have taken a big step forward. PERM aims to reduce backlogs in the labor certification process by removing state departments of labor from the review process and making the federal application process a "pledge" system similar to LCA filings for H-1B temporary visa petitions. Currently, the labor certification process takes years to complete. Even the Department of Labor's first attempt at streamlining the process, the Reduction in Recruitment (RIR) process, is now experiencing backlogs of many months or even years. As of December 2003, the Department of Labor was waiting to release the PERM regulation to OMB until Congress had passed the 2004 DOL budget, which is required for PERM implementation. On January 22, 2004, Congress passed a spending measure that included the budget for the DOL. Once this measure is signed by the President, the DOL budget will be in place and the DOL can forward the PERM regulation to OMB. If the regulation is cleared by OMB, which could take up to 90 days, it will be published in the Federal Register. DOL is estimating a 120 day timeframe for its implementation from this point. The shape of the final PERM regulation will have an enormous impact on the labor certification process as we know it. Once the final rule is published, True, Walsh & Miller will provide a full update on the implications of the rule and how it will affect applications for permanent resident status. For an overview of the labor certification process, visit the True Walsh & Miller web site: http://www.millermayer.com/resources/immigrant/immigrant2cont.htm 3. Focus on President Bush's Immigration Reform Proposal As part of a recent White House briefing, President Bush outlined a new immigration reform proposal that would establish a temporary guest worker program for nonimmigrants. The President's plan would allow foreign nationals currently in the United States illegally to apply for the visas along with foreign nationals who are legally in this country and those abroad. Although the President did not divulge all the details of the proposed guest worker plan, he did make it clear that: (1) the work visas would last three years and would be renewable, but not indefinitely; (2) nonimmigrants who had previously been illegal and receive the new work visas would be able to apply for green cards, but would not get preferential treatment in their applications; (3) workers looking to take advantage of the plan would need to be sponsored by an employer, who would be required to provide documentation that "every reasonable effort to find an American worker for the job at hand" had been made, much like the current labor certification process; (4) all participants in the program would be issued a temporary work card that would allow them to travel back and forth between their home country and the United States; and (5) the program would include financial incentives for temporary workers to return permanently to their home country after their period of work in the United States had expired, including preferred savings accounts and retirement benefits in their home countries. Reaction to the President's proposal has been mixed. Supporters note that the security benefits from promoting legal immigration could be substantial, as law enforcement would face fewer problems with undocumented workers, and would be better able to focus their resources on security issues. Others acknowledge that the immigration system in the United States is broken, but disagree with the President's plan to fix it. One opponent of the Bush plan noted that if the proposed temporary visa can only be extended to six years, which is rumored to be the case, then even if participants in the program apply for permanent residency as soon as they are granted a temporary visa and extend the visa to the full six years, they would be unable to acquire a green card before being forced to return to their home country. Because of this possibility others claim that workers would be better off remaining illegal and staying indefinitely in the United States, rather than revealing themselves to immigration officials by signing up for a program that could eventually lead to their deportation. The Democratic Party's Task Force on Immigration responded to the President's plan by reaffirming their principles for successful immigration reform: (1) family re-unification; (2) earned access to legalization; (3) immigrant student adjustment; (4) border safety and protection; and (5) an enhanced temporary worker program. House Democrats criticized the President's plan for neglecting to provide a path to permanent residency. Democrats instead support: (1) the bipartisan AgJobs bill, which would enable 500,000 agricultural workers to become legal permanent residents through earned legalization; (2) a bipartisan DREAM Act that would provide young immigrants with educational opportunities at institutions of higher learning; and (3) a more comprehensive overhaul of the immigration system and process. At this point, with so few of the details of the plan fleshed out, it is difficult to evaluate the merits of President Bush's new temporary guest worker program. As the details are revealed, future immigration updates will continue to focus on this debate on some of the most critical issues in immigration today. 4. Recent Successes With EB-1-1 Extraordinary Ability Green Card Petitions The EB-1-1 permanent resident visa category is an employment-based green card classification that covers "priority workers" with "extraordinary ability" in arts, sciences, education, business or athletics. To qualify for this category, the applicant must show sustained national or international acclaim and achievements recognized through extensive public documentation, and must be able to demonstrate that their contribution would "substantially benefit" the United States. Our firm has filed several successful EB-1-1 green card petitions, including the following: High Energy Elementary Particle Physicist We recently received an EB-1-1 petition approval for a distinguished particle physicist. The beneficiary does research in the field of high energy elementary particle physics, and he has been described as a world expert in this field. The petition demonstrated that the beneficiary held critical roles for organizations of the most distinguished international reputation and garnered praise from his expert peers both in the United States and around the world for his achievements in particle physics research. At the time of petition, he had published ninety-three (93) scientific papers in the most respected scientific journals in his area of expertise, and his work on a specific high energy interaction was called a breakthrough in settling one of the most important questions in the field. Based on his extraordinary ability in the sciences, Citizenship and Immigration Services (CIS) granted the beneficiary permanent resident status in the United States. Researcher of Inherited Diseases We recently received an approval of an EB-1-1 petition for a foreign national of extraordinary ability in the field of molecular genetics and experimental hematology. This immensely talented foreign national is actively researching the devastating blood disease B-Thalassemia and its possible genetic treatments. The beneficiary's research has published in the most prestigious journals in the sciences, including Nature, and this research has been cited over 450 times. Because of his significant impact in the field and his major contributions to science as documented in the petition, the beneficiary was granted permanent resident status by CIS. Computer Scientist We recently received an EB-1-1 petition approval for a world-renowned expert in the field of computer network and internet security. His work on Asynchronous Transfer Mode (ATM) networks has directly contributed to the creation of an international standardization of ATM network security, a necessary component for worldwide electronic business transactions. As part of his EB-1-1 petition, the beneficiary received letters of support from expert peers at institutions such as Lucent, Sun, Intel, IBM, and Hewlett Packard. He also submitted evidence that his more than 20 research papers had won numerous prestigious awards. The beneficiary, who is considered one of the top 1-2% of computer scientists worldwide, was granted permanent resident status because of his extraordinary ability and significant impact on the field of computer network and internet security. To find out more about the EB-1-1 visa, read the summary of the requirements for classification in this visa category on our web site: http://www.millermayer.com/resources/immigrant/immigrant11cont.htm See also the article describing recent restrictive trends in EB-1-1 cases: http://www.millermayer.com/new/eb1hard.html Steve Yale-Loehr was also quoted in a recent Miami Herald article about EB-1-1 cases. 5. New Articles on Our Web Site This month, we have added a new article about the increasingly stringent standards for O-1 nonimmigrant visa classification: 6. The Firm Speaks Steve Yale-Loehr will talk to foreign students about visa options after graduation at Cornell University on February 24 and at Binghamton University on March 24. Steve will chair a seminar on basic immigration law sponsored by the Practicing Law Institute on April 27 in New York City. Contact Steve at mailto:syl@millermayer.com for more details on any of these talks. _____________________ For answers to any of your immigration questions, contact: Hilary Fraser (mailto:htf@millermayer.com)
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