SEASONS GREETINGS FROM THE IMMIGRATION FRONT *

By Alan Lee, Esq.

Happy tidings should be the theme of all our immigration news at this time of year, but the holiday season - alas - brings a mixed Santa's bag of reports:

The omnibus budget bill is set to be passed and signed by the President as soon as Congress returns for the second chapter of its lame duck session on December 6th. The bill was previously approved by both houses of Congress, but was sidelined temporarily because an IRS related tax provision was slipped into the final bill which all parties denied having sponsored or discussed. Of special interest is a portion of the bill that would exempt individuals with U.S. master's degrees from being counted towards the 65,000 annual quota of H-1B workers up to a limit of 20,000. Assuming that there are no changes when Congress reconvenes, the following scenarios should occur -- As we are still in fiscal year 2005 (10/1/04-9/30/05), H-1B numbers up to 20,000 which were previously assigned to persons with U.S. master's degrees should be counted and freed up for further use 90 days after the President signs the legislation. The new law should benefit new applicants for H-1B benefits with or without U.S. master's degrees who would then compete for the freed up numbers. U.S. master's degree holders would appear to be advantaged if a breakdown of the 65,000 shows lesser use than 20,000 by their members as they would be allowed to fill in the shortfall up to 20,000 numbers. This cap exemption, however, comes with a huge price -- the training fee of $1,000 will return immediately as soon as the bill is signed into law but at the enhanced rate of $1,500. This fee will be charged to new H-1B's, H-1B transfers, and first-time extensions of H-1B status by the same employer. Readers should note that if they are within six months of H-1B expiration, will be staying with their present H-1B organization, and will need an extension, they should consider filing extension applications before the President signs the bill since H-1B extensions can be filed up to six months before H-1B expiration. Present H-1B holders who will be transferring to another company should also consider filing H-1B transfer applications before the law's enactment as, in addition to the training fee, a new $500 fraud prevention and detection fee will be assessed upon the President's signature for new H-1B's or H-1B transfers.

Also of great interest in the lame-duck session will be the pending intelligence reform legislation which was derailed in the first lame-duck session because of Pentagon opposition over the bill's purported effect upon military chain of command which the Pentagon claimed could negatively impact battlefield operations and Judiciary Committee Chairman James Sensenbrenner's opposition to the non- inclusion of restrictive immigration provisions in the final bill. The Senate bill contained no immigration provisions while the House version became a wish list of U.S.C.I.S./U.S.I.C.E./ C.B.P. ( the three agencies replacing INS) for piling on restrictive provisions including raising the standard of proof that aliens must meet for federal courts to grant stays of deportation or removal; easing the path for the government to revoke approved visas and visa petitions; forcing expedited removal procedures on all individuals entering the United States without inspection unless they are able to prove that they have been physically present for more than five years (with an exception for individuals with less than one year who wish to apply for asylum), and disallowing the granting of asylum cases where there are mixed motives for fleeing the country of persecution unless applicants prove that persecution on account of race, religion, political opinion, social group, or nationality was the central motive. The House bill specifically targeted our successful litigation before the Second Circuit Court of Appeals in Firstland International v. INS in which the court held that the government could not revoke approved immigrant visa petitions after the applicants had begun their journeys to this country.

The Department of Labor's Program Electronic Review Management System ( PERM ) program (sidetracked during the presidential race for fear that it would be used negatively against Mr. Bush for granting labor certifications to aliens within 21 days of filing at the expense of laid-off U.S. workers) may soon come into effect with the publication of a final regulation followed by a short implementation date. A caveat, however, is that there appears to be no recent news although the Department of Labor did previously project a final regulation by the end of December and implementation 60 days hence. Obviously one cannot predict the final outlines of a final rule, but a look back at the proposed rule in 2002 shows that professional jobs (defined as those usually requiring a bachelor's degree or higher) would have a higher standard of recruitment proof to meet than nonprofessional ones. The proposed regulation vis-a-vis professional positions contemplated a job order with the state workforce agency, 2 Sunday ads at least 28 days apart in the newspaper most suited to attract U.S. workers in the occupation, placement of a journal ad in place of one Sunday newspaper ad if the position required experience and an advanced degree, and posting in any and all in-house media, whether electronic or printed. Besides these requirements, professionals would also have to show 3 additional pre-filing recruitment steps from professional recruitment channels such as job fairs, job search websites and private employment agencies. If the final regulations mirror the proposed in the recruitment process for professionals, companies and other organizations may ultimately conclude that the PERM program will be too cumbersome for this class of employees, and take steps to begin employment based cases pursuant to either traditional or reduction in recruitment labor certification procedures prior to the implementation of the PERM program.

With the exception of aliens residing in Alaska, California, Idaho, Iowa, Kansas, Maryland, Missouri, Montana, Nebraska, New Mexico, Oklahoma, Oregon, Texas, and Washington, all aliens filing family based I-485 applications for adjustment of status to permanent residence with current visa availability or non-quota immediate relative cases, must file directly to the National Benefits Center (NBC) as of December 1, 2004. (Other miscellaneous classes are included, but not employment based cases). Applications must be sent to U.S. Citizenship and Immigration Services, P.O. Box 805887, Chicago, Ill. 60680-4120 or for non-U.S. Postal Service deliveries U.S. Citizenship and Immigration Services, 427 South LaSalle, 3rd floor, Chicago, Ill. 60605-1098. The Federal Register notice allows I-131 advance parole applications and I-765 employment authorization applications to be filed at the same time as the I-485s. We note, however, that the rule does not provide for the filing of I-824 applications for action on approved applications or petitions for follow-to-join overseas family members, and wonder how and when such applications are supposed to be filed. Previously, I-824s could be filed along with the I-485s. Direct filing to the NBC's lockbox in Chicago has been an event eagerly anticipated by U.S.C.I.S. and the public for the past year, and this new process is generally perceived as an improvement over the old system of indirectly filing with a local office of U.S.C.I.S. only to have local office personnel do nothing except box up the applications including fee payments and shipping them all off to the Chicago lockbox anyway. The direct filing system should reduce processing times by weeks or even months and free up local U.S.C.I.S. personnel to take care of local matters.

Well, that is it for now. This is a short column so that it can be published quickly and so I can begin work on decorating the tree, editing our Christmas letter and sending out cards. So until the next column, happy shopping!

* Note to readers: Subsequent to the articles publication on the website, U.S.C.I.S. stated that the $500 Fraud Prevention & Detection fee would go into effect on March 8, 2005.


The author is a 26 year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof.

This article © 2004 Alan Lee, Esq.

 

Copyright © 2003-2012 Alan Lee, Esq.
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