Immigration News & Analysis, Maggio & Kattar’s electronic immigration newsletter, offers up-to-date information and insightful commentary on U.S. immigration law and policy. Immigration News & Analysis is published monthly in an electronic format and is available via e-mail. Subscribe to Immigration News & Analysis.
Employment-Based Preference Categories Current in July 2007
Breaking News
The Department of State's July 2007 Visa Bulletin reveals that all employment-based preference categories, with the exception of "other workers", will be current for all nationalities in the month of July. This means that foreign nationals with approved labor certification applications, except so called "lesser skilled" workers, will be eligible to apply for adjustment of status to permanent resident during July, regardless of their priority date or nationality. In addition, foreign nationals eligible for permanent residence under the labor certification exempt categories may apply for adjustment of status in July based on a pending or currently filed I-140 visa petition.
The unanticipated availability of immigrant visa numbers across nearly all employment-based preference categories is welcome news for those who have waited patiently for years to proceed to the final stage of the green card process. It also is good news for individuals whose spouses and/or children are eager to obtain employment authorization. Individuals who elect to apply for adjustment of status will be eligible for employment authorization, and in most instances, an advance parole travel document, in one-year increments while their adjustment application is processed.
Adjustment of status applications must be supported by various documents. These include the applicant's birth certificate or alternate evidence of birth and parentage, and in the case of derivative family, a marriage certificate and evidence of the termination of any prior marriages. All foreign language documents must be accompanied by an English translation. Certified court dispositions of any arrests anywhere in the world also are essential, as are photographs (generally eight per applicant) and copies of all passport pages, I-94 cards, and prior I-797 approval notices. Further, a medical examination must be conducted by a civil surgeon who has been designated by the U.S. Citizenship and Immigration Services (USCIS), the sealed results of which must be submitted on Form I-693. In most employment-based cases, a letter from the sponsoring employer reiterating the job offer is required. Immigration counsel prepares the required application forms and submits the entire package to the USCIS.
It is anticipated that thousands of permanent residence applications will be submitted during the month of July, which in turn will lead to severe retrogression in visa numbers early in the 2008 fiscal year, if not before. This effectively means that eligible individuals who do not apply for adjustment of status in July may loose the opportunity to apply for many months. Therefore, it is essential that eligible foreign nationals consider filing their applications in the month of July, whenever possible.
Once an adjustment of status application is filed, applicants must not depart the U.S without a valid travel document, to avoid potential abandonment of their application. Adjustment applicants returning to the U.S. on valid H or L visas are required by regulation to present an original I-797 filing receipt for their application for adjustment of status. All other adjustment of status applicants are required to secure an advance parole travel document before they depart the U.S. Backlogs in filing receipts, as well as employment authorization and advance parole applications, are anticipated due to unprecedented volume. Applicants must consult immigration counsel before making international travel plans.
Those who apply for adjustment of status in July may still have to wait many months, or even years, before they are granted permanent residence because of anticipated visa number retrogression and processing delays.
Immigration Filing Fees Increase Dramatically on July 30, 2007
Dramatic increases in immigration filing fees averaging 65% start July 30 despite unprecedented opposing comments from almost 4,000 individuals and organizations, and criticism from Congress.
Astonishingly, the fee for an application for adjustment of status to permanent resident, Form I-485, increases to $1,010, affecting the vast majority of immigrants who become green card holders. Naturalization increases to $675 from $330, while a petition to remove the conditions on residence based on marriage increases $545 from $275, I-130 relative petition will be $355, and I-140 petition for immigrant worker, $475. While some of these fees now include the biometric fee of $80, this is not the case across the board. And, while there is other bundling of fees (e.g., employment and travel authorization is included in the new $1,010 I-485 fee) and very limited fee waivers, in large part, come July 30th, it becomes much more expensive to apply for immigration benefits. The U.S. Citizenship and Immigration Services ("USCIS") justifies this dramatic fee increase on the proposition that those applying for immigration benefits should bear the costs of their processing. Unfortunately, despite a convoluted explanation regarding improved USCIS service as a result of the new fee schedule - including a commitment to substantially reduce processing times for key applications by September 31, 2008 - past experience has been otherwise. In fact, USCIS filing fees have often been used to fund not only the agency's overhead, but have been siphoned off to fund the agency's law enforcement activities, including investigations and security checks. In its public announcement, USCIS also makes known that it plans to review fees every two years.
Institutions and individuals who wish to avoid these higher filing fees must immediately begin preparing immigration applications that are eligible to be filed before July 30, 2007.
Senate Set to Complete Action on Comprehensive Immigration Reform
The proposed comprehensive immigration reform ("CIR") bill, S. 1348, currently being debated and amended in the Senate, has dominated the news for two weeks now. It will continue to do so until the full Senate votes up or down on the "delicately balanced" but highly controversial immigration legislation that may emerge from the Senate shortly. If that happens, attention will turn to the House of Representatives. where that chamber also will need to pass a legislative package. Failure in the Senate, however, almost certainly means the death of CIR for the next two years, maybe more.
With tortured twists and turns, S. 1348, the bill that is likely to be voted on by the Senate this week, contains the following key provisions. First, it includes a plan to give most of the estimated 12 million immigrants here illegally since before January 1, 2007 the opportunity to apply for the new "Z" visa. In order to be eligible, tough conditions would have to be met, including paying a $5,000 fine, waiting until certain border security conditions are met and backlogs are cleared, and requiring heads of households to return to their home countries to apply. This was a concession to hard-line lawmakers who have branded this winding pathway to citizenship another amnesty for lawbreakers. Second, the proposal establishes a totally new selection system for future immigrants based on skills, education, and other attributes, including the ability to speak English. This new point or merit-based system replaces the current family-based and employment-based immigration preference system. Critics fear that this new system erodes the fundamental principles of American immigration: the ability of employers to sponsor immigrants to fill jobs and the rights of citizens and lawful permanent residents to unite with their close family members by sponsoring them. We agree. Furthermore, the new point system contains no provision for multinational managers, persons with extraordinary ability, outstanding professors and researchers, or those doing work in the national interest. Also, no labor market test is included. When you add up the numbers, companies in the United States will have no way to bring in the best and the brightest to grow their companies. Third, the bill includes a program for temporary guest workers (new "Y" program), despite a narrowly defeated amendment that would have sunset the program after five years. Under the plan, 200,000 new foreign nationals would be allowed to work temporarily in the United States, but without a path to permanent residence.
For employers who were hopeful that new immigration legislation would provide precious additional H-1B visas, the bill does that - the cap is raised from 65,000 to 115,000 -- but it also contains exorbitant fees for those applying for such H-1B visas. The so-called "training fee" would be $5,000 in addition to other H-1B fees. This was a victory for Senator Bernard Sanders (I-VT), who advocates using these fees for a scholarship program in math, engineering, health care and computer science, presumably shortage occupations, but certainly not a victory for business, especially small, entrepreneurial companies. Other restrictions on the use of H-1B visas will make it a less desirable visa option.
A provision for significant backlog reductions in family categories over the next eight years is one of the more positive attributes of S. 1348. Border security, a more sophisticated employment verification system including new sanctions for violations, and other enforcement provisions remain a cornerstone of this legislative package. Also included are significant restrictions on judicial review, including restrictions on judicial review of the regulatory process.
Over the Memorial Day recess, rhetoric about immigration legislation dominated the air waves, blogs, and press. President Bush, in particular, was front and center, attempting to give those Republicans who support the bill political cover, but also trying to garner perhaps a last ditch domestic policy victory by praising the deal. Unfortunately, it appears that his tactics, including attacks on critics of the deal, may have cost him valuable political capital.
As the Senate now resumes debate this week it will consider another round of amendments - more than 100 amendments are circling - many of which are subtle but are meaner and narrower, and thus more threatening to this precarious coalition. One amendment would significantly expand the list of crimes defined as aggravated felonies and other offenses that would make someone ineligible for legalization; it is feared that this amendment, if passed, will gut the legalization program by barring just about everyone. Other amendments, while on their face not radical, may force legislators into unenviable positions, voting for a bill they dislike or coming up empty-handed. Not a good choice for lawmakers whose constituents back home expect leadership, not paralysis. What is more, many of the proposed amendments, if enacted, would fracture the coalition of Republicans and Democrats who have been driving this effort and without whom CIR will not happen, at least not now.
A new Washington Post-ABC poll reveals that while Americans remain divided and uncertain about how to deal with immigrants, they want action. When asked about two key elements in the current proposal, the plan to allow undocumented immigrants to regularize their status and the expansion of the temporary worker program, slight majorities were in favor of these new provisions. But, when probed deeper, Americans are mired in contradictions: they don't like the idea of giving "a free pass for lawbreakers" but realize that attempting to deport 12 million people is futile and a big "waste of millions of taxpayer dollars." Most people agree that there is no easy answer, that the country is better served if immigrants can work legally, and that ultimately it is up to their elected leaders to fix the very untenable status quo.
At the moment, many advocates of comprehensive immigration legislation are adamant that flawed as the current bill is, the measure must go forward legislatively. They hold firm that much of it can and will be fixed when the House of Representatives takes up immigration reform and then again when both Houses meet in conference committee. As one leading voice in the immigration debate explained, the Senate bill is the first inning of the game and there are at least four more innings to play: consideration by the House of Representatives immigration subcommittee, full House Judiciary Committee mark-up, House floor debate, and then conference committee negotiations, where members of the Senate and House have a final opportunity to shape this final legislative product.
Many feel too much has been invested politically this go around and too much is at stake right now to do nothing. With so many backlogs of legal immigration petitions, an increasing workforce of undocumented foreign nationals, conflicting state and local laws that seek to address our immigration woes due to a broken and dysfunctional national system, and an American public that is willing to support a legalization program as long as there are fines and other requirements, the deal now has taken on its own momentum. On the other hand, there are powerful and persuasive pro-immigrant voices in the business and labor communities alike, who feel that CIR as proposed, and even if somewhat improved, will be a disaster for immigrants and their employers alike.
Six Weeks Remain Before DOL Labor Certification Rules Go into Effect
As reported in our May breaking news, the U.S. Department of Labor's (DOL) final rules drastically changing the labor certification process go into effect July 16th, just six weeks from now. Under the rules (1) employers will be required to pay all costs - attorneys' fees and other expenses - associated with preparing, filing, and obtaining labor certification; (2) the practice of replacing or substituting the beneficiary of a labor certification application with another foreign worker who possesses qualifications that meet or exceed the stated requirements of the application will be eliminated; and (3) immigrant petitions (I-140s) based on an approved labor certification must be filed within 180 days. Labor certifications will no longer be valid indefinitely. While we expect that these new rules may be challenged in federal court, particularly those provisions that govern attorneys' and other costs as impermissibly interfering with the attorney-client relationship, employers and their foreign national employees are now on notice that these changes will be law soon, and that they must prepare accordingly.
Re-registration for Honduran and Nicaraguan TPS Begins May 29, 2007
As noted in our May 2007 issue of Immigration News & Analysis, the USCIS extended temporary protected status ("TPS") designation for eligible nationals of Honduras and Nicaragua, by an additional 18 months, or until January 5, 2009. TPS was also extended for eligible nationals of El Salvador until March 2009. Under guidelines issued by USCIS, eligible Hondurans and Nicaraguans must register during the 60-day re-registration period, which began May 29, 2007 and ends July 30, 2007. USCIS advises that EADs will be automatically extended for six months, or until January 5, 2007. Instructions for Salvadorans have not yet been released.