United States: Recent Developments in Immigration Law

PLAN NOW: Beginning April 1, 2006, employers may begin to file H-1B petitions subject to the FY 2007 cap, requesting an H-1B employment start date of October 1, 2006. As our recent Immigration Alerts have advised, the FY 2006 H-1B cap was reached on August 10, 2005. Since that date, cap-subject employers have been ineligible to file H-1B petitions on behalf of their foreign national workers.

Because the H-1B cap has been reached more quickly each year, it is important to file H-1B petitions as early as possible after the filing window opens on April 1, 2006. In the weeks leading up to April 1, 2006, it is important to review your employment needs to identify candidates that need H-1B sponsorship to continue to work. For example, if you currently employ, or intend to employ, any foreign national workers who are in F-1 status, with optical practical training that will expire prior to October 1, 2007, it is important to begin their H-1B process as soon as possible in order to be able to continually employ those workers.

The March 2006 Visa Bulletin issued by the Department of State (DOS) continues to show some forward progression in the employment-based (EB) categories for immigrant visa (green card) availability.

EB-1

The new cut-off dates become effective on March 1, 2006. At that time, foreign nationals may either file their application for adjustment of status to permanent residence, or may apply for an approval of their immigrant visa at a U.S. consular post abroad, if their priority date is a date prior to the cut-off date in their category outlined above.

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 these EB quotas. Fortunately, extensions of a foreign worker's H-1B status beyond the six-year limit are permitted in many cases while they are waiting for their quota cut-off date to be reached in order to process the permanent residence step.

DOL Proposes Eliminating Substitution in Labor Certification Process

The Employment and Training Administration (ETA) of the Department of Labor (Department or DOL) is publishing a Notice of Proposed Rulemaking (NPRM or proposed rule) with request for comments relating to the labor certification process, which is the first step for many employers in the process to sponsor foreign national employees in positions of permanent employment in the United States. Among the proposals, the DOL is proposing to eliminate the current practice of allowing the substitution of alien beneficiaries on permanent labor certification applications and resulting certifications. Second, the DOL is proposing a 45-day period for employers to file approved permanent labor certifications in support of a petition with the Department of Homeland Security (DHS), United States Citizenship and Immigration Services (USCIS).

Both of these changes require additional advanced planning by employers. First, if you have any unused labor certification application approvals, you should review your work force to see if there are any foreign national employees eligible to use these before they become extinct. Second, you should also work closely with your employee and attorney to be sure that all of the documentary evidence required for the filing of the I-140 petition is gathered at the labor certification stage. While we already do so for our clients, this is a good time to remember the importance of advance planning. If this is of concern to you, you may want to provide comments to the Department of Labor. Let us know if you need assistance.

As of February 13, 2006, the U.S. embassy in Paris has requested assistance from other U.S. embassies in Europe because they are experiencing delays of about nine weeks to obtain an interview appointment and their backlog continues to grow. In order to reduce the waiting time for French travelers, the U.S. embassy in Paris is shifting diplomatic staff to conduct roughly 50 percent more visa interviews per day. The U.S. embassies or consulates in Berlin, Bern, Brussels, Frankfurt, London and Madrid will now accept visa appointments from French citizens.

The Office of the Inspector General (OIG) of the Department of Homeland Security recently released a January 2006 report outlining vulnerabilities and potential abuses in the L-1B program. The report concluded that the L-1B program is vulnerable in several aspects. First, the program allows for the transfer of managers and executives, but immigration adjudicators often find it difficult to be sure that a company truly intends to use L-1 workers in a management or executive capacity. Second, the program allows for the transfer of workers with "specialized knowledge," but the term is so broadly defined that immigration adjudicators have little choice but to approve most applications. Third, the transfer of L-1 workers requires that the petitioning company has established business abroad, but immigration adjudicators in the U.S. do not have sufficient capability to evaluate the foreign company. Finally, the L-1 program is available to those entities who have not yet established, but are in the process of establishing, a new enterprise in the U.S., a situation which the OIG is concerned may lead to abuse.

The report made three recommendations to USCIS in response to the concerns raised. First, they recommend that a procedure be established to obtain overseas verification of pending H and L petitions by the Department of State officers in related countries. Second, they recommended that USCIS discuss with the Immigration and Customs Enforcement whether their criminal investigators would be able to assist in checking on the bona fides of L petitions submitted by companies. Third, the OIG recommended that USCIS seek legislative clarification relating to applying the concepts of manager and executive, and verifying that the beneficiary will in fact be employed in such a position; that they seek clarification and guidance regarding the term "specialized knowledge"; and that they seek clarification regarding the criteria and proof required when a foreign company seeks to use an L petition to open a new office in the U.S.

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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