United States: Recent Developments in Immigration Law

In our December Alert, we discussed pending legislation before the Senate and House of Representatives regarding H-1B and L-1 visas, including recapture of unused employment-based immigrant visas, recapture of unused H-1B visa numbers dating back to 1991, and additional filing fees, among other provisions. Unfortunately, this legislation was dropped as part of the Budget Reconciliation Bill.

New legislation addressing H-1B and retrogression relief is currently being proposed. If your company is affected by the lack of availability of H-1B visas and/or immigrant visas (green cards), please contact your congressional delegation. There are also sign-on letters being sent to Congress. Let us know if you would like to participate or would like assistance.

The H-1B Advance Degree Exemption visa quota for FY 2006 was filled with petition filings received by the U.S. Citizenship and Immigration Services (USCIS) on January 17, 2006. Petitions received on January 17, 2006 will be randomly selected until the statutory quota of 20,000 reserved for U.S. master's degree holders (or higher) is reached.

The quota has several exceptions, in general including extensions of H-1B stay; change of H-1B employer petitions for individuals who have previously held H-1B status; and for those who have held H-1B status and not departed the U.S. for over one year, among others. Please contact us if you have questions on whether an individual is subject to the H-1B quota, or whether an H-1B petition filing for a FY 2007 visa number might be advisable this spring.

Please note that H-1B program visas remain available to date in FY 2006 for citizens of Chile and Singapore.

The following is the most recent cap count for H-1B and H-2B nonimmigrant worker visas provided by USCIS:

*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.

**Currently, there is insufficient data for USCIS to make a reasonable determination of the cut-off number needed to reach the FY 06 H-2B cap. The cut-off number will be posted when such information is available.

The February 2006 Visa Bulletin issued by the U.S. Department of State (DOS) continues to show little forward progression in the employment-based (EB) categories for immigrant visa (green card) availability. The particularly long quota cut-off dates for Chinese and Indian nationals continues in all three employment-based (EB) categories, and for all nationalities in the EB-3 category.

For February, the EB-3 cut-off date for Indian nationals is January 01, 2000; for Mexican nationals it is March 15, 2001; and for all other nationalities, including China and the Philippines, it is April 22, 2001. This marks an advancement of about seven months for EB-3 Indian nationals from January. For other nationals, the progression has been only two to three weeks.

EB-2 cut-off dates moved forward significantly for Indian and Chinese nationals. For February, the EB-2 cut-off dates for Indian nationals is August 1, 2001 (an advancement from January 1, 2001). The EB-2 cut-off date for Chinese nationals is April 1, 2002 (an advancement from June 1, 2001).

The EB-2 and EB-1 categories remain current, meaning sufficient numbers are available under the quota to meet current demand for all nationalities other than nationals from China and India. The EB-1 classifications remain backlogged for China at a January 1, 2003 cut-off, and for India at a February 1, 2004 cut-off.

DOS announced in the February Visa Bulletin that the forward movement of employment cut-off dates during the past several months has been greater than originally anticipated due to lower than expected visa numbers demanded by USCIS for its adjustment of status to permanent resident cases. DOS, however, was unable to provide an estimate as to the future demand it will experience from USCIS, and that the demand may be of such a level that forward movement in cut-off dates may slow or cease.

Lengthy EB quota immigrant visa backlogs continue to prevent many foreign workers - Indian and Chinese nationals, in particular, along with all others who qualify under EB-3 classification - from securing final green card approval for many years. Ironically, while the processing time of labor certifications under the new PERM system (the first step in the employment-based permanent residence process for the majority of foreign nationals) has been greatly reduced, most employer-sponsored green card processing has been considerably lengthened due to the retrogression in EB quotas. Fortunately, extensions of foreign workers' H-1B status beyond the six-year limit are permitted in many cases while waiting for their quota cut-off date to be reached.

*In our last Alert we initially reported in error that the December 2005 Visa Bulletin denoted an EB-2 cut-off date for India of July 1, 2004; the actual cut-off in December 2005 was July 1, 2000. This correction has been made in the Web-posted version of our December Alert.

The U.S. Department of Labor (DOL) has announced that if an employer currently has multiple PERM labor certification applications in process for the same individual and job opportunity, the employer must have withdrawn by January 19, 2006 all applications except the one application it wished to have processed. If such PERM applications filed through January 19, 2006 remain pending after that date, DOL will adjudicate the last PERM application filed and deny all other pending PERM applications.

After January 19, 2006, DOL requests that when an employer wishes to file a second application under PERM for the same individual for the same job opportunity, the employer withdraw the first application filed prior to filing the second application. After January 19, 2006, if two PERM applications are pending for the same individual and job opportunity, DOL will continue processing the PERM application that was filed first; it will deny any subsequently filed PERM applications. Alternatively, of course, a second PERM application can be filed after receiving a final determination of denial from DOL of the first PERM application.

The same is not true, however, for multiple cases for the same individual filed under the prior regulatory scheme (traditional and RIR labor certification cases). Those cases, now pending at the Backlog Elimination Centers (BECs), will continue to be processed under prior policy regarding multiple applications filed where the employer seeks to employ the individual in different bona fide position openings. If DOL is aware of multiple pending applications, it will issue Notices of Findings (NOFs) for all applications and request that the employer indicate which application represents the bona fide job opportunity.

DOL is currently evaluating how to handle the circumstance of multiple applications for the same employer, individual and job opportunity that are pending under both PERM and the prior regulatory scheme (traditional and RIR labor certification cases).

US-VISIT Update

The U.S. Department of Homeland Security (DHS) recently announced that as of December 31, 2005, US-VISIT has been deployed at all land border ports along the U.S.-Canada and U.S.-Mexico borders. US-VISIT is the new DHS entry and exit screening program that commenced implementation in 2004 to enhance security.

Departure controls continue to be phased in at a number of ports, recording individual departures in the US-VISIT system. As of January 6, 2006, US-VISIT departure controls were operating at 12 airports and two seaports. Where US-VISIT departure controls exist, subject individuals leaving the country need to comply with the exit requirement to legally record departure and avoid future immigration consequences.

The US-VISIT program is applicable to all individuals entering the U.S., including individuals entering under the Visa Waiver Program. US-VISIT is not used for citizens, permanent residents, and Canadian citizens entering in most visa categories.

USCIS recently published notices of proposed information collection in the Federal Register regarding anticipated new e-filing forms. According to the American Immigration Lawyers Association (AILA), USCIS has indicated that it wishes to establish a true electronic filing/electronic adjudication system, including the development of a database system that is applicant based, as opposed to being based on individual filings - thereby enhancing review of an individual foreign national's history. Under the proposal, individual foreign nationals will be required to complete an "i-account" registration, which would require the submission of extensive individual history to USCIS. Employers would complete "e-account" registrations, and Attorney Representatives would complete "r-account" registrations.

Among the proposed forms is a separate USCIS Form 41 to accompany petitions which request a change of nonimmigrant status or extension of stay in the U.S. The Form 41 would request specific information outlining the legal basis for eligibility for the requested change of status and/or extension of stay.

Hopefully the proposed e-filing system will also allow for the submission of electronically-scanned evidentiary documentation. Under the current e-filing system, which is allowed for a narrow range of applications, all copies of mandatory evidentiary documentation, such as passport copies, must be sent as hard copies by mail or courier to USCIS after the initial e-filing is made and a filing/receipt number is generated. There is no estimate as to when these proposed forms or the new e-filing system will be implemented.

On January 6, 2006, USCIS issued guidance on the new E-3 nonimmigrant Specialty Occupation Worker visa classification that is available to citizens of Australia. The E-3 visa classification is similar to the H-1B classification (although it does have differences) and is a useful tool for U.S. employers to hire Australian citizen professionals, as it is subject to a separate yearly quota of 10,500.

The guidance provides that an individual may either apply for an E-3 visa abroad to enter the U.S. or, if already present in the U.S. and legally eligible, may apply to have his or her nonimmigrant status changed to E-3 classification. The primary requirements for the classification are Australian nationality, with an employer petitioning for a specialty occupation position requiring a bachelor's degree or higher (or the equivalent) in a field related to the position.

In addition to the separate quota, the E-3 visa is distinct from the H-1B visa classification in other respects. For example, the spouse of an E-3 primary status holder may file for derivative employment authorization in the U.S.; dependents of H-1B status holders may not. Further, E-3 classification may be granted for a maximum period of two years and extended indefinitely into the future. E-3 visa applicants, and applicants for entry to the U.S. or change of status, must establish nonimmigrant intent (intent to remain temporarily in the U.S.). Finally, the E-3 is less costly in terms of government filing fees as it is not subject to the $500 fraud prevention and detection fee and the $1,500 training fee required for most H-1B visas. The E-3 can also be secured directly at a U.S. Consulate without prior approval from the USCIS in the U.S., and therefore, the USCIS premium processing fee of $1,000 is unlikely to be needed.

Similar to the H-1B, an E-3 petition must be filed with a Labor Condition Application (LCA) that has been certified by DOL. By filing the LCA, the petitioning employer attests to paying the greater of the actual or prevailing wage for the position, among other legal requirements. Until very recently, LCAs for E-3 classification had to be sent separately to DOL via mail for hand certification, which delayed adjudication. LCAs may now be electronically filed and certified for E-3 applications online, with most certifications being granted instantaneously by DOL.

On January 5, 2006, President Bush signed into law the Violence Against Women and Department of Justice Reauthorization Act of 2005 (H.R. 3402). It has been assigned Public Law Number 109-162.

One of the primary goals of the Violence Again Women Act (VAWA 2005), which has been previously amended, is to provide immigration relief to certain sexual assault, human trafficking, and certain violent crimes victims as abusers and traffickers often threaten victims with deportation in order to avoid being prosecuted. VAWA 2005 contains a number of new provisions which are designed to better achieve the diminution of domestic and other subject violence and crimes.

This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.

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