United States: Recent Developments in Immigration Law

Congressional Alert: The House and Senate Consider Measures to Provide H-1B Visa and Employment Based Immigration Relief

The Senate and the House of Representatives have recently passed legislation affecting H-1B and L-1 visas, as well as employment-based immigrant visa categories. Provisions of the Senate bill would:

• Impose a new $500 fee on immigrant visa petitions for the first, second and third employment preference categories;
• Recapture unused employment-based immigrant visas from prior years, which would result in the immediate availability of up to 90,000 visas per year;
• Exempt spouses and minor children from counting against the cap of employment-based immigrant visas;
• Allow individuals to file their application for permanent residence before an immigrant visa number is available;
• Recapture 300,000 unused H-1B numbers dating back to 1991;
• Impose a new fee on the recaptured H-1B visas, such that fees on the original 65,000 H- 1B's currently available each year would remain unchanged, but the additional H-1B visas made available would require an additional $500 fee;
• Impose a new $750 fee on L-1 visas.

The House bill imposes a $1,500 fee increase on L-1 visas and does not, at this time, include any of the other provisions contained in the Senate version of the bill.

The House and Senate are poised to form a conference committee to resolve differences in their respective budget reconciliation packages. The conference may take place early in December. This may be the only chance for H-1B and retrogression relief all year. If your company is affected by this, please contact your congressional delegation. There are also sign-on letters being sent to Congress. Let us know if you would like to participate.

President Bush recently reentered the debate over immigration reform with a significant speech and two visits to the border. In a White House press release issued November 28, 2005, the President outlined his three-part plan for a comprehensive reform of the immigration laws, focusing on a strategy to "secure the border, prevent illegal crossings, and strengthen the enforcement of immigration laws." He also discussed the creation of a new "Temporary Worker Program."

Congress has also been moving forward with immigration legislation. The House Judiciary Committee is expected to consider interior and border enforcement legislation next week, with full House consideration of the legislation scheduled for the week of December 12. The Senate Judiciary Committee is expected to consider comprehensive immigration reform in late January, after the conclusion of the Supreme Court confirmation hearings. In addition, Senator Frist reaffirmed his commitment this week to schedule floor time early next year for a full Senate debate on immigration, which is expected to occur in late February or early March.

The Department of State (DOS) issued its December 2005 visa bulletin, which reflected continued long quota cut-off dates for Chinese and Indian nationals in all three employment-based (EB) categories and for all nationalities in the EB-3 category. EB-2 cut-off dates moved forward for India from November 1, 1999, to July 1, 2004; China moved forward from May 1, 2000, to February 1, 2001. The EB-3 category for Indian nationals has a current cut-off date of January 1, 1999, and January 1, 2001, for Chinese nationals. The date for EB-3 for all nationalities is March 15, 2001, reflecting movement forward of about two weeks. The EB-1 and EB-2 categories for all other nationalities remain "current," meaning there are sufficient numbers available under the quota to meet current demand. However, the State Department recently indicated that it is expected that EB-2 will likely retrogress this spring or summer.

Lengthy EB quota backlogs continue to prevent certain foreign workers (Indians and Chinese nationals, in particular), and all others who qualify under EB-3 and are sponsored by U.S. employers, from securing final green card approval for many years. Ironically, while the processing time of labor certifications under the new PERM system has been greatly reduced, employer-sponsored green card processing has been considerably lengthened due to the retrogression in EB quotas. Fortunately, extensions of a foreign worker's H-1B status beyond the six-year limit are permitted while waiting for their quota cut-off date to be reached.

Upon establishment of the Backlog Elimination Centers (BEC) last year, the Department of Labor (DOL) instituted a First-In/First Out (FIFO) policy for pending applications. The FIFO system was based on the initial filing date of each application. However, widespread reports confirmed that many applications were being reviewed out of turn. In response to questions raised surrounding the FIFO policy, DOL recently issued clarification, indicating that a number of factors affect the order in which cases are reviewed, including whether the application was filed under the regular labor certification process or under the reduction in recruitment process; the stage of processing at which the application was received by the BEC; the dates of other applications pending at each backlog center; the quality of the application (some applications raise questions, which take longer to get resolved); and the response time of the employer to BEC's request for confirmation to continue processing the application.

The Department of Homeland Security (DHS) announced on November 8, 2005, that it had completed a status report on countries that participate in the Visa Waiver Program. As a result of their review, 25 of the 27 countries that currently participate in the program will maintain their enrollment status. The reviews of Italy and Portugal take place on a different time schedule, and those status reports will be released at a later date.

The Visa Waiver Program permits nationals from participating countries to travel to the United States for a period of less than 90 days for business or pleasure without first applying for a B-1/B-2 visitor visa. Countries that currently participate in the Visa Waiver Program include Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland and the United Kingdom.

*6,800 are set aside for the H-1B program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements and to the extent unused can first be made available for general use on October 1, 2006, the start of FY 2007.

**Filings will be rejected the day after the cut-off date for new filings. The cut-off date will be whenever sufficient petitions and associated worker applications have been received to satisfy the cap of 33,000 visas minus first-time beneficiaries changing status. USCIS has estimated that 62% of approved beneficiaries will actually result in H-2B visas issued by Department of State. Accordingly, USCIS will cut off the first half cap at 52,000.

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