Immigration News Litwin Law Update 11 01 06

November 1, 2006

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1. Special Alert: H-1B and EB Backlog Crisis

The inability to hire H-1B workers and delays in obtaining employment-based (EB) green cards are hurting companies, hospitals, and other employers seeking access to the best and brightest global talent. There are no normal H-1B visa numbers available until October 1, 2007. The H-1B visa cap was filled by May 26, 2006, a full 16 months before the end of the next fiscal year. There are also increasing delays in obtaining EB green cards from some countries. As a result, crucial research and development projects in critical industries are being disrupted, and the lives of talented professionals are being put on hold. In many cases, they simply tire of waiting and leave the U.S. to put their knowledge and skills to use in other countries eager to compete with the U.S.

I am a member of the Academy of Business Immigration Lawyers (ABIL). ABIL has issued a special alert and call to action regarding this crisis. Concerned corporate clients should contact their members of Congress by personalized letter, phone call, or personal meeting to let them know how the H-1B cap and EB backlog problems are hurting them. A model letter that client companies can personalize, formulated by the American Immigration Lawyers Association (AILA).

Nearly 800 companies, universities, and other entities signed a similar letter last fall, when the H-1B cap last hit. ABIL hopes that even more will sign on this year to have a real impact on Congress during this crucial period.

Another way to help is to send examples of how the inability to hire H-1B workers and the EB green card delays are adversely affecting employers. E-mail any such examples to AILA at [email protected]. If the company is willing to be named, that is ideal, but even examples without attribution will be helpful (e.g., "A manufacturing company in Pennsylvania was unable to hire an H-1B researcher to start in October 2006 because of the H-1B cap. As a result, the company could not launch a new product in its xx division"). If you need even more information, you can contact me at [email protected].

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2. Judge Grants Class Action Status to Tyson Foods Lawsuit

A federal judge has granted class action status to a lawsuit alleging that Tyson Foods, Inc., one of the largest meat producers in the world, held wages down by hiring undocumented workers at eight of its plants in Alabama, Indiana, Missouri, Tennessee, Texas, and Virginia. An attorney for the workers said this will allow thousands of workers to seek damages, instead of the four original plaintiffs. A Tyson spokesperson said the ruling was "procedural…and not based on the merits of this case." A trial date is expected to be set on January 29, 2007.

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3. USCIS Announces Extension of Returning Worker Exemption to H-2B Cap

U.S. Citizenship and Immigration Services (USCIS) announced on October 23, 2006, that the "returning worker" exemption to the H-2B numerical limitation has been extended for one year, until September 30, 2007. Petitions filed for returning H-2B workers do not count toward the semiannual H-2B cap. To qualify, the returning worker must have been counted previously against the H-2B numerical cap in one of the three fiscal years preceding the current year (between October 1, 2003, and September 30, 2006). Any worker not certified as a returning worker is subject to the cap for the relevant fiscal year. Petitions received after the "final receipt date" that contain a combination of returning workers and those subject to the current H-2B cap will be rejected with respect to non-returning workers, and petitioning employers will receive partial approvals for those who qualify as returning workers if otherwise approvable.

USCIS said it will continue to process petitions filed to extend the stay of a current H-2B worker in the U.S.; change the terms of employment for current H-2B workers and extend their stay; allow current H-2B workers to change or add employers and extend their stay; or request eligible H-2B returning workers.

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4. Labor Dept. Updates Labor Certification Procedures

The Department of Labor (DOL) recently released the following updates to its labor certification procedures:

RIR conversion extension . Because the Reduction in Recruitment (RIR) application processing takes significantly less time than traditional recruitment (TR), the Department of Labor (DOL) previously encouraged employers to convert TR applications to RIR. The Office of Foreign Labor Certification (OFLC) announced recently that it is extending the application date for employers who wish to convert their TR applications to RIR applications. Any TR application (excluding those for schedule B occupations) submitted to a state workforce agency with a postmark dated on or before March 28, 2005, may request conversion to RIR by following the established process.

Public disclosure system . The OFLC has received many requests from employers, attorneys, and workers regarding the status of applications being processed as part of the backlog elimination effort. To provide basic case status information on specific cases, OFLC has introduced the Backlog Public Disclosure System (PDS). The purpose of the PDS is to provide a way for employers, attorneys, agents, and workers to determine the status of an application filed at a Backlog Elimination Center (BEC).

Once the PDS Web page is open, users enter the 10-digit case number, which begins with a "D" if the case is located in the Dallas BEC or "P" if the case is in the Philadelphia BEC. (Some cases may have had case numbers staring with "T" before data entry was completed at a BEC. All such cases have since been converted and now begin with either "D" or "P," which should be used for case status checks on the PDS.) After entering the case number, the search results show the current case status. Case status definitions are provided at the bottom of the PDS Web page.

Those who discover problems with the status of their cases (e.g., the case has been closed or withdrawn erroneously) may e-mail information and documentation to [email protected]

Sources note that, beginning in November, the DOL plans to issue monthly updates of BEC TR case processing dates. The DOL reportedly is currently working on cases with an April 2001 filing date and does not expect that date to advance any time soon.

No contact from BEC. The OFLC has developed a process for an employer or attorney who believes an application should be pending at a Backlog Elimination Center (BEC) but for which no contact (i.e., no 45-Day Center Receipt Notification Letter (CRNL), case closed letter, or other correspondence about the case) from the BECs has been received.

To provide such employers with the opportunity to have their applications processed while also guarding against potential fraud, OFLC has established steps for employers or their attorneys to follow, outlined in the FAQ
.

This process is only intended for cases where the employer or attorney has received no contact whatsoever from the BEC about the case, not for status checks or other case inquiries. Also, this process is only intended for employers or their designated attorneys. Beneficiaries of labor certification applications are not authorized to use this process.

The full text of the DOL's updates is available here (scroll down to "What's New").

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5. USCIS Transfers Cases Among Processing Locations

U.S. Citizenship and Immigration Services (USCIS) periodically shifts benefit processing workloads from one agency service center to another. Most recently, USCIS made the following changes:

Form I-129: Because of unusually high workload surges over the past several months, the Vermont Service Center (VSC) transferred nearly 20,000 H-1B petitions subject to the fiscal year 2007 annual numerical cap to the Texas Service Center (TSC) and 6,000 cap-subject H-1B petitions to the Nebraska Service Center (NSC), rather than to its "sister" service center (California Service Center (CSC)) under USCIS's bi-specialization initiative.

Form I-360: The VSC, TSC, and NSC transferred all pending petitions requesting classification as a special immigrant religious worker to the CSC. In addition, all new I-360 religious worker filings received at a service center other than the CSC are being transferred to the CSC.

Form I-130: Over the past several months, the VSC transferred approximately 20,000 green card petitions for alien relatives to the CSC.
Affected applicants will receive a transfer notice from USCIS. Applicants should direct inquiries to the service center where the case is currently located.

USCIS also noted that Requests for Premium Processing Services (Forms I-907) should be filed with the service center where the case is currently pending.

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6. State Dept. Proposes New Limited-Use Passport Card

The Department of State (DOS) issued a proposed rule on October 17, 2006, proposing an alternative format passport designed for international land and sea travel between the U.S., Canada, Mexico, the Caribbean, and Bermuda. Under the proposed rule, passport cards, like passport books, would be issued for a 10-year validity period for U.S. citizens 16 years of age and older, and for a five-year validity period for U.S. citizens under 16 years of age. The DOS proposes to use the same application procedures and adjudication standards for the passport book and card and to permit U.S. citizens to hold both a book and a card simultaneously. In addition, if a passport applicant holds a valid passport book, the applicant may apply for a passport card as a renewal and pay the lower renewal fee rate. The DOS said the passport card is designed to address the needs and travel patterns of U.S. citizens who live in land border communities and frequently cross the border in their day-to-day activities. The passport card will not be usable globally but only in the situations set forth above.

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7. Unused H-1B1 Visas Available to Employers Who Filed H-1B Petitions on May 26, 2006

According to sources, U.S. Citizenship and Immigration Services (USCIS) has made available an additional 89 H-1B1 visa numbers that are available only to citizens of Chile or Singapore but were not used in fiscal year (FY) 2006. Any unused H-1B1 numbers from a given fiscal year are added to the next year's pool of H-1B visa numbers. The 89 visa numbers will be available to employers whose FY 2007 H-1B petitions were received by USCIS on the "final receipt date" for FY 2007 (May 26, 2006) but were not selected by the random lottery that USCIS conducted to determine which of the cases received on that date would be applied toward the FY 2007 cap. USCIS plans to send a letter or e-mail to affected employers and/or their attorneys outlining the procedures to be followed. Employers with cases submitted on May 26 who do not receive a letter by November 8, 2006, may send an e-mail to USCIS at: [email protected]. USCIS also would like employers in this category who are not pursuing the H-1B petition to send an e-mail to the same address.

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

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