United States: Recent Developments in Immigration Law

H-1B Filings for FY 2007 Have Started

Beginning April 1, 2006, employers have been able 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, employers had been ineligible to file H-1B petitions on behalf of their cap-subject foreign national workers (the cap does not apply to most changes of H-1B employer and H-1B extensions of stay, among other exceptions).

Because the H-1B cap is being reached more quickly each year (USCIS received nearly 1,900 H-1B petitions between April 1 and April 3 this year), it is important to file H-1B petitions as soon as possible. It is critical to review your employment needs to identify candidates that require 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 student status and have optical practical training that will expire prior to October 1, 2007 (as would often be the case of U.S. university graduates this spring), it is important to begin their H-1B process as soon as possible so that you can continually employ such workers by avoiding a gap of several months of work authorization.

There are many other circumstances where H-1B status may be preferred or required in order to continue to employ a foreign national worker. Often, individuals working in the United States pursuant to the NAFTA treaty (TN classification), or other employment-based classifications, may wish to change status to H-1B classification. Now is the time to consider filing such changes of status as new H-1B numbers may become unavailable in the near future and not be open again until October 1, 2007.

The latest update provided by USCIS for the H-1B cap is as follows:

1. Refers to the estimated numbers of beneficiary applications needed to reach the cap, with an allowance for denials and revocations. Each target is subject to revision later in the cap cycle as more petitions are processed.
2. 6,800 are set aside for the H-1B1 program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreement. Unused numbers in this pool can first be made available for general use on October 1, 2006, the start of FY 2007.

Source: Department of Homeland Security, Citizenship & Immigration Services

The May 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 May 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, provided that 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 PERM system (the first step in the employment-based permanent residence process for the majority of foreign nationals) has been greatly reduced under the PERM rule implemented in March 2005, 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 wait for their quota cut-off date to be reached in order to process their final permanent residence applications.

As of April 1, 2006, the USCIS has changed the filing jurisdiction for most employment-based nonimmigrant visa petitions (filed on Form I-129), immigrant visa petitions (filed on Form I-140) and applications for adjustment of status (I-485). In the past, filing of these petitions and applications among the four national service centers has normally been determined based on the primary location of employment of the foreign national.

Under the new program, designed by USCIS to increase efficiency and consistency in adjudication, all Form I-129 nonimmigrant petitions are now filed with the Vermont Service Center (with adjudications split between the Vermont and California Service Centers). Concurrently filed dependent applications (Form I-539) are filed with the Vermont Service Center as well.

All Form I-140 immigrant petitions and concurrently filed Form I-485 applications for adjustment of status (including any concurrently filed applications for employment authorization and advance parole travel document) are now filed with the Nebraska Service Center. Adjudication of these applications is now shared between the Nebraska and Texas Service Centers. The Service Center issuing the receipt notice will indicate the Service Center that will be adjudicating the petition or application.

As part of this new USCIS program, many cases pending with the Service Centers are being transferred. For example, many pending I-140 immigrant petitions at the California Service Center have been transferred to the Texas Service Center for adjudication. As a result, individuals have received "Transfer Notices" alerting them to the transfer of the case. This is a normal part of this new specialization program initiated by USCIS and hopefully will lead to faster adjudication.

The Nebraska Service Center has stated that it will adjudicate all Form I-485 applications for adjustment of status to completion, even if an immigrant visa number is not currently available for final case approval. While immigrant visa availability is required in order to file an application for adjustment of status, it does not reserve the applicant an immigrant visa number. If immigrant visa availability retrogresses after the filing of an application for adjustment of status, the case cannot be approved until a visa number is available. In the past, Service Centers have deprioritized the adjudication of cases until immigrant visas were again available.

Generally, this practice has been viewed as potentially detrimental to cases where certain eligibility issues or security clearances require additional time for processing. Now, the Nebraska Service Center will address all eligibility issues irrespective of immigrant visa availability, up to the visa request phase of processing. The hoped-for result is that cases which have been pending for long periods due to immigrant visa retrogression can be approved more quickly once visa availability exists.

The Department of Labor (DOL) has stated to AILA that, as of March 2006, its Backlog Elimination Centers had adjudicated approximately 108,000 of the 363,000 labor certifications pending under the traditional recruitment and RIR labor certification systems; about 255,000 applications remain pending.

DOL anticipates completing data entry of all cases by the end of June 2006, with remaining 45-day continuation letters being issued thereafter.

The U.S. Customs and Border Protection (CBP) has announced that beginning May 1, 2006, Germany temporary/emergency passports will no longer be valid for visa waiver program (VWP) travel. Under the visa waiver program, citizens of certain countries are able to apply for admission as a temporary visitor for business or tourism without being issued a B visa stamp by a U.S. consulate abroad.

Therefore, beginning May 1, 2006, German citizens must present a regular, official or diplomatic passport to be admitted to the U.S. under the VWP.

There have been no changes to the Department of State's implementation of the first phase of Western Hemisphere Travel Initiative, effective December 31, 2006. Under this phase of the Initiative, all individuals will need to present a passport (or other acceptable secure document) to be admitted to the United States when entering via air or sea travel. This will primarily affect U.S. and Canadian citizens who have not been required in the past to present a passport after travel and will apply to all travel to or from Canada, Mexico, Central and South America, the Caribbean and Bermuda. These changes are mandated by The Intelligence Reform and Terrorism Prevention Act of 2004.

DOS currently plans to implement this Initiative to all land ports of entry as well effective December 31, 2007.

This change may come as a surprise at first to U.S. and Canadian citizens especially. Employers should probably make sure their employees who travel frequently within the Western Hemisphere know about this additional document requirement so that they can obtain and maintain current passports for travel to avoid business disruption.

The Department of State has notified all consular posts of its change to allow students to apply for student visas (F-1, M-1) up to 120 days in advance of their program start date. Previously, student visas could only be applied for 90 days in advance of a program start date. J-1 exchange visitor visas may be issued at any time prior to the program start date.

Entry into the U.S. is currently allowed up to 30 days in advance of a program start date. DOS has stated that the Department of Homeland Security may seek to change this through regulation to 45 days.

Duane Morris is pleased to announce the addition of attorney Minal Shah Fenton to our San Francisco office.

Ms. Fenton practices in the area of immigration and nationality law with a concentration in employment-based immigration. She represents corporate and individual clients before the U.S. Department of Homeland Security, the U.S. Department of Labor and the U.S. Department of State. She has extensive experience preparing employment-based visas and permanent resident petitions for specialized workers, professionals, executives, multinational managers, researchers and artists. She advises clients regarding the employment of foreign nationals and consults with employers to implement effective immigration policies.

Ms. Fenton is a 1998 cum laude graduate of the University of California, Hastings College of the Law, and a cum laude graduate of the University of California, Irvine. She served as Appellate Law Clerk to the Honorable Chief Justice Ronald T.Y Moon of the Supreme Court of the State of Hawaii. Prior to joining Duane Morris, she practiced immigration law as a supervising attorney with a prominent boutique firm in San Francisco.

In the months of April, May and June, Duane Morris is presenting our annual Workplace Law and Practice Seminar at various locations across the country. Our annual seminar is intended to provide our clients and friends with an update of important immigration, employment and benefits developments over the past year that may impact their business.

The program is of particular interest to business owners and executives, in-house counsel, human resource directors, benefits and financial professionals and consultants.

We offer our seminar at no charge. To register online for one of the seminars, please click on the link provided below. Contact any of our Practice Group members if you have any questions.

Dates and Locations
Registration and Continental Breakfast - 8 a.m.*
Program - 8:30 a.m. to 11:30 a.m.

E-mail: lmcardile@duanemorris.com

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