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.
H-1B and Employment-Based Green Card Shortage Compel Immediate Planning
Comprehensive immigration reform, predicated on the President’s plan to fuse the much needed increase in employment- and family-based visa numbers with a path to citizenship for the undocumented, and substantially increased border enforcement, has become completely unraveled. What is more, immigration continues to be a political “wedge issue” for both Democrats and Republicans, with no softening in sight. Although there is talk of piecemeal immigration reform, this, in our view, is unlikely, and more so as the 2008 elections rapidly approach. This reality presents formidable challenges for human resource personnel, other managers, and foreign nationals.
First is the continued inadequate number of available H-1B professional worker visas based on apparent demand. For the last three years, H-1B visas have run out shortly after they become available, resulting in thousands of professionals unable to obtain visas for needed work. This year, for the first time ever, 65,000 H-1B visas were exhausted the first day they become available, which represented only about half of the H-1B visas requested (filed). That’s right. Only 65,000 of the 130,000 H-1Bs filed were approved due to a lack of visa numbers. This upcoming year the odds very well may reach one in three.
Second is the anticipated unavailability of employment-based green cards. As discussed in the article below, backlogs are expected to grow considerably in employment-based immigrant visa categories, even in those that historically have been available since 1990. This too has implications for employers and employees alike. Consider this: hundreds of thousands of immigrant visa applicants were already in line before the historic green card filing blitz this summer. See our articles in the July and August issues of Immigration News & Analysis. Moreover, the Department of Labor continues to eliminate its backlogs, paving the way for more and more I-140 employment-based visa petitions and adjustment of status applications (I-485s) to be filed.
It is clear that advanced immigration planning now is more essential than ever, and this must include the likelihood of valuable employees failing to make what has become the H-1B “lottery” cut. Transferring such employees abroad for one year so they may qualify for L-1 intra-company transferee status may be an alternative for multi-nationals. Hiring more “portable” H-1B employees may be an option as well for some employers. Due to the projected unavailability of immigrant visas, many employees being sponsored for permanent resident status will need to remain in the same or similar occupation in order to keep their place in line for permanent resident status, and this too can have a significant impact.
Human resources, other managers, and foreign nationals all must be aware of and discuss these and related concerns with one another and with their immigration counsel.
Current Immigrant Visa Priority Dates: What to Expect in October and Beyond
For the beginning of the fiscal year in October, the Department of State (DOS) advises that employment-based numbers for priority workers (first preference) and members of the professions holding advanced degrees or exceptional ability foreign workers (second preference) are likely to resemble September visa availability, with cut-off dates of January 1, 2007 for most countries. (Nationals from China and India in the second preference category are expected to have to wait longer.) This prediction is unfortunate and quite curious, because as of June 2007 these categories were largely current (except for China and India) and historically have been so. Skilled workers, professional, and other workers also are likely to resemble the January 2007 Visa Bulletin where the cut-off date for all chargeability, China and the Philippines was August 1, 2002. (For India , the cut-off date was May 8, 2001; for Mexico , May 15, 2001.) Other workers, currently unavailable, will again have to wait six years, as the priority date is expected to be October 1, 2001. Visas for immigrant investors, however, are likely to be available again.
On the family-based side, the DOS has not provided a specific forecast for October but no significant change is expected. In September, cut-offs edged up incrementally in many preference areas, including a six year advance for married sons and daughters of U.S. citizens from the Philippines. These individuals, however, still face an unconscionable wait: 15 plus years (instead of more than 20) to become lawful permanent residents! (Note, too, that Mexican brothers and sisters of adult U.S. citizens retrogressed three years for September.)
For some people, ameliorating visa waits only will be accomplished by winning the annual green card lottery. The next lottery, the DV-2009 lottery, opens for online entry on October 3, 2007 (noon-EDT) and ends at noon on December 2, 2007 (EDT). Although a lottery green card application certainly may be filed without the assistance of an attorney, it is always best to consult with immigration counsel prior to making any immigration application. For more details on current priority dates, winners of the DV-2008 lottery, and other visa information, see the Visa Bulletin.
“No-Match” Letter Rule Stayed by Court but Increased Enforcement Looms
As reported in our most recent special news alert, a federal district court in Northern California has issued a temporary restraining order staying the implementation of the Department of Homeland Security’s (DHS) final rule on Social Security Number (SSN) “no-match” letters. A hearing on whether the court should impose a preliminary injunction is scheduled for October 1st although the government has asked the court to move up the hearing to September 19th. In the meantime, employers should use this time to get ready in case the rule is implemented, and, in doing so, should prepare for other enforcement actions.
In fact, the SSN “no-match” letter regulation is but one example of the Administration’s August 2007 26-point immigration-related initiative, designed largely to secure borders and beef up interior and worksite enforcement. Other initiatives include more border patrol agents, increased capacity to detain the undocumented, expanded exit requirements, raising by 25% fines imposed on employers who knowingly hire those not authorized to work, and expanded use of E-Verify, the government’s electronic employment verification system. Another significant initiative involves the training of state and local law enforcement officers by offering assistance with immigration law enforcement and developing partnerships to address specific local issues. Delegating border search and seizure authority is among those enforcement tools under consideration.
Employers also must be mindful of their potential vulnerability to other immigration enforcement efforts, especially with immigration’s emergence as a “hot button” political issue as the country moves closer to Presidential and Congressional elections next year. These include labor certification audits, H-1B public access file audits, and export control scrutiny.
Our current guidance on the new “no-match letter regulation” is provided here, subsequent guidance will be prepared.
Who’s Who Legal, Chambers USA, and Best Lawyers in America Rate Maggio & Kattar Attorneys at the Very Top
Three renowned legal publications that rank American business and immigration lawyers again have placed Maggio & Kattar and its attorneys at the very top of our field. The legal profession and the public view these as among the highest form of professional accolade, in part because the selection process is conducted through an exhaustive and rigorous peer-review and client interview process.
Who’s Who Legal, The International Who’s Who of Business Lawyers, recognizes Michael Maggio as one among fifteen of the most highly regarded corporate immigration lawyers in the United States in its 2007 edition. Acknowledging the vital role played by corporate immigration lawyers who facilitate the flow of personnel across international borders on behalf of corporations and individuals, Who’s Who Legal describes Michael as “a star.” In its 2007 edition, Chambers USA Guide, America’s Leading Lawyers for Business, an internationally regarded British publication, ranks Maggio & Kattar among the top four immigration law firms in the District of Columbia. Chambers describes the firm as one that “has an outstanding reputation for complex court cases” and the firm’s “depth of experience” “said to be one of its major strengths.” It singles out the firm’s chairman, the “superb” Michael Maggio, as “substantially one of the smartest and most creative lawyers in his field.” It also highlights the work of Senior Attorney and Shareholder Andres Benach, who “is particularly well-known” as “one of the rising stars of the litigation Bar.” And, finally, the Best Lawyers in America includes Michael Maggio, Andres Benach, and Elizabeth Quinn in its latest edition
New Green Card Replacement Program
In a potentially significant development for tens of thousands of long time permanent residents, the U.S. Citizenship and Immigration Services (USCIS) recently announced a proposal that would require lawful permanent residents who carry green cards without expiration dates to replace their current cards with ones that expire every ten years. This would require many long time green card holders with old and often relatively minor criminal cases to the risk of being placed in removal proceedings or detained and denied admission upon their return to the United States. In addition, residents who have spent considerable time abroad can face charges that they abandoned their permanent resident status. The proposed rule was published in the Federal Register with a 30-day public comment period, ending on September 21, 2007. Those green card holders who fall under this new rule should consult with counsel, especially those who have had any contact with law enforcement or have spent any appreciable time abroad since acquiring their green card status.
J-1 Waiver Update
J waivers for physicians continue to be the source of controversy and intense political debate. On one side stand mounds of evidence that the United States faces an acute shortage of physicians, especially primary care doctors and foreign doctors provide a demonstrable benefit to our nation. On the other side of the debate is concern about the potential impact of the “brain drain” on developing countries. Nevertheless, current law imposes numerous restrictions on foreign doctors that undermine the quality of healthcare in the United States. Legislative stirrings to remove bureaucratic restrictions and facilitate the admission of doctors are in the works, however, we fear that like other non-enforcement immigration legislation, substantial improvements are unlikely for the next two years.
Re-Registration for Salvadoran TPS Now Through October 22, 2008
As noted in our previous newsletters, the USCIS extended temporary protected status (TPS) designation for eligible nationals of El Salvador until March 9, 2009. Under guidelines issued by USCIS in late August, eligible Salvadorans must register during the 60-day re-registration period, which began August 21, 2007 and ends October 22, 2007. USCIS also advises that EADs will be automatically extended for six months, or until March 9, 2008. Those seeking extension of their employment authorization document (EAD) must submit a $340 filing fee with their EAD application (I-765) along with Form I-821 (Application for Temporary Protected Status). The USCIS notice provides detailed instructions on what to file, where, and by whom.
Bolivian Historian Receives Visa After Litigation of “Security Check” Delay
Dr. Waskar Ari, a Bolivian historian whom the University of Nebraska—Lincoln (UNL) has sought to hire as an Assistant Professor of History and Ethnic Studies, finally was admitted in H-1B status, ending a more than two year saga involving “security checks” in a case that implicates the First Amendment, academic freedom, and an unlawful approach to background checks for foreign academics.
Dr. Ari’s saga began in 2005 when an H-1B visa petition was filed by the UNL on his behalf with DHS. Although the petition was filed under the premium processing procedure that guarantees a decision within 15 business days, DHS failed to act and the petition remained pending for unspecified “security checks”—seemingly delayed indefinitely—for almost two years. In March 2007, the UNL, represented pro bono by Maggio & Kattar, filed a complaint for writ of mandamus seeking to compel the DHS to act. The suit alleged that background checks being conducted by the DHS were not authorized by law, that DHS lacked authority to withhold or delay action on UNL’s petition, and that even if DHS did have such authority, two years was more than sufficient time to conclude background checks on a Bolivian academic who merely seeks to teach in the United States. In May 2007, DHS finally approved the H-1B petition but provided no explanation for the extraordinary delay or the sudden change of heart. In July, two months after he applied for his visa, Dr. Ari received his work visa from the U.S. Consulate in La Paz, Bolivia.
Professor Ari represents one of a growing number of foreign nationals whose immigration cases are delayed due to security checks that can last for years. Litigating these delays often motivates the government to complete security checks and approve long pending cases.