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.
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