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The May Visa Bulletin Shows Significant Forward Movement for Eligible Professionals and Skilled Workers; Unavailability for Unskilled Workers
Special Alert
The Department of State's May Visa Bulletin reveals significant forward movement for professionals and skilled workers in the employment-based third preference category (except for individuals born in China , India , or Mexico ), publishing a new priority date cut-off of August 1, 2003. This means that eligible foreign nationals with priority dates earlier than August 1, 2003 may be able to apply for adjustment of status or consular processing in the month of May. Moreover, the Visa Bulletin cautions that the rapid forward movement holds a great potential for future retrogression.
The Visa Bulletin also reports that the unskilled "other worker" category will become completely unavailable in May and for the remainder of the fiscal year, or until October 2007, narrowing the window during which those workers can apply for permanent residence. In order words, eligible unskilled workers should file their applications prior to May 1st.
Those who believe they are eligible should contact their immigration attorney immediately.
H-1B Cap Reached for Fiscal Year 2008
Breaking News
As widely predicted and illustrative of the inadequacy of the current H-1B visa number quota, the U.S. Citizenship and Immigration Services (USCIS) reached the H-1B cap for fiscal year 2008 on April 2, 2007, the first day on which such petitions could be received. USCIS’s April 3, 2007 press release explains the procedures for selecting those petitions which will be processed under the mandated cap.
Under USCIS regulations, the agency must use a random selection process, or "lottery," for all cap-subject petitions received on both the first and second day--April 2 and April 3. USCIS will thus reject and return (with filing fees) all cap-subject petitions received on or after April 4th. USCIS will then also return any petitions that are not selected under the lottery.
The latest report from USCIS indicates that the agency received 133,000 pieces of mail containing H-1B petitions on Monday and Tuesday of this week. It is important to note that each piece of mail may contain more than one H-1B petition. Therefore, it is possible that the actual number of H-1B filings will exceed 133,000. Not surprisingly, USCIS reports that it will take a "substantial amount of time to open and sort through" this enormous volume of mail.
As of Wednesday, April 4, USCIS had sorted approximately 28,500 cap-subject cases, and approximately 4,703 cap-exempt H-1B petitions for foreign nationals with U.S. advanced degrees (for which an additional 20,000 H-1B visa numbers, beyond the base 65,000, are available).
While it would appear that numbers are still available under the U.S. advanced degree exemption, USCIS still has many thousands of cases to sort through. Therefore, the quota for this category may be met very soon as well. In light of these circumstances, whenever possible, employers should consider immediately filing H-1B petitions for their employees who have completed the requirements for a U.S. advanced degree in the event that some numbers remain available.
With much uncertainty, one thing is clear: a USCIS filing “receipt” does not mean that USCIS has accepted the petition for processing under the H-1B cap. Rather, at this time, such a receipt only means that the case will be included in the eventual lottery. This, of course, raises the question of how USCIS will deal with "premium processed" H-1B petitions given the length of time that it will take to open and sort mail prior to the mandated lottery process and the likely impossibility that this will occur within the mandated 15-day review time for premium processed cases. USCIS will need to address this issue in the days ahead.
The magnitude of the H-1B crisis is apparent. In each of the past two years, USCIS reached the H-1B cap in August and then May, with the coming fiscal year's numbers exhausted on "day 1" for filing. We encourage employers to contact their congressional representatives to voice frustration at the unprecedented 18-month restriction on access to new H-1B visas for so many temporary professional workers, and how this lack of H-1B visas negatively impacts American businesses and organizations in the increasingly global economy. Surely, any immigration reform must include an increase in H-1B numbers.
Update on H-1B Cap - Lottery for Most Coveted Work Visa
As we reported in our April 6, 2007 Special Alert, the annual 65,000 H-1B cap for fiscal year 2008 was reached on April 2nd, the first day on which such petitions could be received. In fact, U.S. Citizenship and Immigration Services ("USCIS") determined that approximately 123,480 H-1B petitions were received. Under USCIS regulations, the agency is required to use a random selection process, or lottery, for selection of those petitions for which an H-1B visa may be approved. On April 12, 2007, USCIS conducted its random selection lottery and has begun to issue receipt notices. Some petitioners, however, have received receipt notices prior to April 13, 2007. USCIS advises that receipts dated on or before April 12, 2007 are not to be considered evidence that the case was selected in the lottery. For those who reported receiving two receipts for the same cap-subject H-1B petition when only one petition was filed, USCIS also explains that a number of H-1B cap cases were receipted prior to the random selection but the agency subsequently abandoned that practice. Thus, USCIS reiterates that these initial receipt numbers - those issued prior to April 13, 2007 - had been voided and petitions that were selected in the lottery were issued new receipt numbers. Petitions not selected in the lottery will be returned and filing fees refunded. USCIS expects to complete notification of those petitions not selected in May.
For purposes of premium processing, USCIS advises that April 13, 2007 will begin the mandated 15-day review period for these cases.
The cap, however, of 20,000 H-1B petitions for foreign nationals with U.S. advanced degrees ("masters cases") has not yet been met, although it too is widely predicted to be met very soon. USCIS further advises that if an H-1B petition for a U.S. masters program graduate has been erroneously rejected, the petition can be resubmitted with a letter providing specific reasons why the case was properly submitted.
The current H-1B "blackout" dramatically underscores the crisis that U.S. businesses and organizations face as they are now cut off from the global talent pool for another year. How can the U.S. economy remain competitive in our increasingly global economy? Rather than adversely impacting U.S. workers and the U.S. economy, highly skilled, professional workers bring talent, ideas, and new developments to American businesses. Yet, for the fifth consecutive year, businesses are stymied to do so, as this arbitrary numerical limitation has been reached before the start of the fiscal year. The current system is simply untenable for American business. We urge employers to voice their frustrations to their congressional representatives and provide real world examples of how their inability to hire H-1B temporary workers harms economic growth and expansion.
Immigration Overhaul Now in Play; Prospects Remain Far from Clear
Comprehensive immigration reform witnessed a flurry of activity both in Congress and the Administration in late March and early April in an effort to jumpstart comprehensive immigration overhaul. White House and other Administration officials, including Homeland Security Secretary Michael Chertoff and Commerce Secretary Carlos Gutierrez, not only floated a number of proposals but also met quietly with members of Congress to reach a compromise - and consensus - that is capable of winning support among key Republicans. Although all parties concerned appear to agree that there is broad support for the principles of tighter border security, stricter employment enforcement, and relief for the undocumented, it remains unknown whether that consensus will translate into actual votes. Immigration in the 21st Century remains a politically-charged, hot button issue.
Last month, the House took the first serious step toward addressing our immigration laws when Representatives Luis Gutierrez (D-IL) and Jeff Flake (R-AZ) along with a bipartisan group of co-sponsors introduced the STRIVE (Security Through a Regularized Immigration and a Vibrant Economy) Act. The 700-page proposal clearly represents a compromise between those who want tougher border and interior enforcement and those who seek to regularize the status of some 12 million undocumented immigrants who currently live in the shadows of American society. The bill, which is more restrictive than the proposal the Senate enacted in its last legislative session but more inclusive than the House's proposal, is believed to be the best framework for renewed deliberation, despite a number of enforcement-related "trigger" or certification provisions that must be in place before the new worker or legalization programs can be implemented. These "trigger" provisions were defeated in the Senate last year, for fear that they would effectively kill any real chance of implementing more ameliorative programs.
In summary, the STRIVE Act provides a number of positive reforms, but it also raises various due process-related concerns as well as many new burdens for business. These include: (1) border enforcement enhancements, such as increased border and immigration personnel and stepped-up border technology; (2) greater interior enforcement, which is implemented in part by expanded removal procedures and enhanced penalties for crimes such as document fraud, drunk driving, money laundering, and firearms possession; (3) a new system for electronic employment verification for employers as well as increased employer and employee penalties (civil and criminal) for work authorization non-compliance; (4) provision for a new "H-2C" guest worker program (an initial annual cap of 400,000) with a path to permanent residency and eventual citizenship; and (5) legalization for undocumented individuals who can demonstrate unlawful physical presence prior to June 1, 2006. To be eligible, the principal applicant must meet a reentry or "touchback to their home country" requirement. The STRIVE Act also includes visa reforms, such as increased employment-based immigrant visas, increased H-1B visas, exemptions for highly-skilled workers from the employment-based quotas, exemptions for immediate relatives of U.S. citizens from the family-sponsored immigrant visa quotas, the AgJOBS Act, the DREAM Act, and the American Citizenship Act. (See article below.)
Although the House introduced the comprehensive vehicle for immigration reform, House leaders have clearly indicated that they want the Senate to act first on the issue. Responding to this perceived dynamic, Senate Majority Leader Harry Reid has scheduled the last two weeks of May for full Senate floor debate on immigration, even though as yet there is no Senate bill. While Senator Kennedy and Senator John McCain were expected to join Reps. Gutierrez and Flake, Sen. McCain has backed away from the immigration issue as he tries to garner political support from conservatives in his bid for the White House.
Moreover, President Bush has recently weighed in, calling on Congress to pass reform legislation. Searching for a viable solution that may ensure a legacy for him - as immigration is one area where he could still make his mark as a "compassionate conservative" - the President renewed his support for immigration overhaul that includes provisions for guest workers and legalization. As reflected in a leaked White House outline, the President's most recent position has been less clear and more punitive than in the past (it includes a $10,000 fine in order to have a chance at citizenship), and it is certainly a step backward from the proposals the President embraced just last year.
Meanwhile, the Department of Homeland Security's Immigration and Customs Enforcement ("ICE") division continues to carry out enforcement raids, most recently in the Baltimore area, where about 70 arrests were made. Drawing lessons from its experience in Massachusetts last month, ICE officials interviewed those who were arrested to ascertain whether there were any medical, sole-caregiver, or other issues that would qualify them for humanitarian release. A 24-hour toll-free hot line, (866) 341-3858, also was established for the family members of those detained.
While Congress and the Administration continue to posture and wring their collective hands, the attitudes of Americans have remained consistent. A sampling of public opinion surveys conducted since the November 2006 elections show continued majority support for comprehensive immigration reform. The public's support for immigration solutions includes enhanced border security, workplace enforcement, earned legalization for undocumented immigrants with a path to citizenship, and expanded visas for future immigrant workers and their families. At present, this view is perhaps best reflected at the local level, where immigration policy is being played out on the nation's Main Streets. Notwithstanding the fact that federal authorities have begun to enlist local law enforcement agencies to act as their "deputies" - and a number of towns have responded with zero-tolerance policies towards the undocumented - a growing number of other communities are becoming "sanctuary" cities and towns. As recently reported in The Washington Post, at least 20 cities and towns have approved pro-immigration measures and an equal number are considering a similar stance. Mayors are realizing that issues related to immigration status are major concerns at the local level, particularly as they relate to applying for bank accounts, signing rental agreements, reporting crime, and revitalizing dying neighborhoods. These communities are declaring that if Congress is not going to fix our immigration system, they will do so, at least in limited ways that impact people on an everyday basis. Tip O'Neill, the legendary former Speaker of the House, said that all politics is local. It remains to be seen how this issue will ultimately unfold.
Enactment of Stand-Alone Legislation Unlikely Unless Comprehensive Immigration Fails; Nevertheless, SKIL Bill, High Tech Workers Relief Act of 2007, and Others Introduced
For months, those following the immigration debate and the push to enact comprehensive immigration reform legislation have wondered whether stand-alone legislation increasing H-1B specialty worker visas and employment-based immigrant visas might be enacted late this year, in lieu of comprehensive immigration reform. Although most observers now agree that stand-alone relief will not move forward until debate and consideration of comprehensive immigration reform have been exhausted, the vehicles for such reform have now been introduced in the Senate.
In the aftermath of the April 2nd H-1B filing debacle - when almost double the annual allotment of visas for H-1B professional workers was received by USCIS - Republican Senators introduced the SKIL (Securing Knowledge, Innovation and Leadership) Act of 2007 (S. 1083) and the High-Tech Worker Relief Act (S. 1092). The SKIL Act would increase the H-1B cap from 65,000 to 115,000, increase employment-based visa availability from 140,000 to 290,000, and provide other positive reforms. (See our July/August 2006 issue of Immigration News & Analysis for a discussion of similar bills introduced last year.) The High-Tech Worker Relief Act, as its name states, focuses more narrowly on providing relief from the H-1B cap for two years, increasing the cap to 115,000 in FY07 and 195,000 in FY08. Other stand alone legislation introduced this year includes: (1) a bill intended to prevent perceived H-1B and L-1 visa fraud that imposes new restrictions and requirements for these nonimmigrant visa categories; (2) a bill passed in the Senate (S. 1104) that would increase from 50 to 500 for three years the number of Iraqi and Afghani translators and interpreters who may be admitted to the U.S. as special immigrants; (3) the American DREAM Act, legislation that would provide a path to legal status for certain undocumented students who have lived much of their lives in the U.S. but do not have an authorized immigration status (reintroduced in both the Senate and House); (4) the AgJOBS bill, legislation designed to achieve a stable and authorized agricultural workforce through a two-pronged approach including an earned adjustment program; and (5) the Citizenship Promotion Act of 2007, a bill that would authorize funding for CIS adjudication of citizenship applications, thus obviating the need to disproportionately raise fees. See our March issue of Immigration News & Analysis.
USCIS Final Rule to Permit Denial Outright and to Change Response Times for Requests for More Evidence and Notices of Intent to Deny Immigration Petitions
Effective June 12, 2007, USCIS examiners will be authorized to reduce the response time petitioners and applicants are provided to supplement their case, eliminating the current guaranteed twelve-week timeframe. For evidence that USCIS deems readily available, an examiner may set a short time period to respond to a request for evidence (RFE). For documents that the examiner considers to be more difficult to obtain, CIS may provide the full 12 weeks it is currently mandated to provide. The USCIS announcement regarding this significant shift did not address how examiners, most of whom have no formal training in the rules of evidence, would be trained to identify those documents that would be readily available and, therefore, requiring less time to produce.
Of equal importance, the new rules permit USCIS to deny the petition or application outright if initially submitted evidence does not show eligibility. Under current rules, USCIS must first issue an RFE or a Notice of Intent to Deny (NOID) before it can issue an outright denial. The rules clarify, however, that USCIS will generally continue to provide petitioners and applicants with the opportunity to review and rebut derogatory information if a NOID is based on such. Once these new rules go into effect, it will be imperative that applications and petitions be filed as complete as possible with all required initial evidence to avoid the risk of denial.
Employers May File for Their O and P Beneficiaries One Year in Advance, Effective May 16, 2007
Effective May 16, 2007, petitioners will be permitted to file O (extraordinary ability or achievement aliens) and P (artists, athletes, and performers) nonimmigrant visa petitions up to one year prior to the petitioner's need for the foreign national's services instead of six months in advance under current rules. In a step that clearly provides more flexibility and better reflects the business realities of certain industries, the USCIS's final regulations are a welcome change. By enabling petitioners to file well in advance of a scheduled event, competition, or performance, they may do so under normal processing procedures and thus save the $1,000 premium processing filing fee. Moreover, they will be more assured that a decision on their petitions will be made in a timeframe that will allow them to secure the O or P nonimmigrants when such services are actually needed. The current six-month in advance filing requirement for O and P petitions has resulted in cases being adjudicated just before or even after the intended scheduled event or employment start date, much to the consternation of the petitioner and beneficiary.
U.S. Consulates Resume Accepting I-130s from U.S. Citizens Living Abroad
The U.S. Department of State ("DOS") has resumed accepting I-130 petitions for immediate relatives - spouses, minor children, and parents - of U.S. citizens who reside abroad in a consular district. This practice was suspended in January in response to the Adam Walsh Act, which required additional criminal background checks on the petitioning relatives. To be eligible to file an I-130, the U.S. citizen petitioner must show that s/he has resided legally and continuously in the district for at least six months. Individuals who reside abroad in a temporary status would not meet the residency requirement. Students and tourists, for example, are ineligible. Eligibility also extends to members of the armed forces, those cases in the national interest, and cases involving an emergency. The option to file an I-130 at a consulate applies only where there is no USCIS international office that could otherwise accept the case.
May Visa Bulletin: Significant Forward Movement for Eligible Professionals and Skilled Workers Expected to be Short-Lived; Unavailability for Unskilled to Commence May 1st
As reported in our latest Breaking News, the State Department's May Visa Bulletin shows significant forward movement for professionals and skilled workers in the employment-based third preference category (except for individuals born in China, India, or Mexico). Eligible foreign nationals with priority dates earlier than August 1, 2003 may be able to apply for adjustment of status or consular processing in the month of May. The Visa Bulletin also reports that visas for unskilled workers will become completely unavailable in May until October 1, 2007. Those who believe they are eligible should contact an immigration attorney immediately. For more details, see our April Special Alert.
Maggio & Kattar Attorneys to Teach Immigration Law at Annual District of Columbia Bar CLE Immigration Law Program
Maggio & Kattar has been asked to teach the District of Columbia Bar's Immigration Law Course, as part of the D.C. Bar's continuing legal education (CLE) program. For more than four years, Maggio & Kattar attorneys have taught this four-part series, which examines family-based immigration, business immigration law for business lawyers, the immigration implications of criminal convictions, and immigration law ethics, among other topics. The program will be conducted on May 8, 15, 22 and 29, 2007 in Washington, D.C.