LitwinLaw Newsletter 6/1/06

LitwinLaw Update

June 1, 2006

Headlines:

1. H-1B Cap Reached - USCIS announced that the H-1B cap for fiscal year 2007 has been reached.

2. USCIS to Expand Premium Processing Service to Most Employment-Based Green Card Petitions - USCIS will soon open the agency's premium processing service to nearly all employment-based green card applications but, not yet.

3. Senate Passes Immigration Legislation, Compromise With House Remains Uncertain - The Senate has passed sweeping immigration reform legislation that includes both a guest worker program and enforcement components.

4. Many Hondurans, Nicaraguans in Danger of Losing Work Authorization; Salvadorans Face TPS Renewal Period at End of Summer - Hondurans and Nicaraguans who are re-registering for TPS after the June 1 re-registration deadline may submit their applications with a letter explaining a "good cause for failure to timely file."

5. DHS Cracks Down on Nonimmigrant Visa Overstays, Worksite Violations - The DHS is increasing visits to nonimmigrants with expired status and stepping up enforcement actions against employers.

6. Third Preference "Other Worker" Visa Category Becomes Unavailable - The employment-based third preference "Other Worker" green card category will remain unavailable for the remainder of the fiscal year.

7. Labor Dept. to Close America's Job Bank - The Department of Labor has informed states that America's Job Bank will close by June 30, 2007.

Details...

1. H-1B Cap Reached

U.S. Citizenship and Immigration Services (USCIS) has announced that as of May 26, 2006, all of the "regular" H-1B visa numbers for start dates effective October 1, 2006, have been used up. The H-1B cap for FY 2007 was 58,200; the agency also added back 6,100 unused FY 2006 H-1B1 visa numbers, for a total of 64,300.

Any additional petitions subject to the fiscal year 2007 H-1B annual cap received after May 26, 2006, will be rejected and returned along with the filing fee. Petitions that were received on May 26, 2006, are being subjected to a computer-generated random selection process to enable USCIS to apply the remaining number of H-1B visas available on that date to those petitions. Petitioners may resubmit their petitions when H-1B visas become available for FY 2008. The earliest date for filing an H-1B petition subject to the FY 2008 cap, with an employment start date of October 1, 2007, is April 1, 2007.

The first 20,000 H-1B petitions filed on behalf of those with U.S.-earned master's or higher degrees are exempt from the fiscal year cap on available H-1B visas. The advanced degree cap could be met in September 2006, however. USCIS reports that it has received approximately 5,830 exempt petitions in that category so far. For that reason, any such person who is eligible to file for H-1B status should do so immediately.

It is still possible to obtain H-1B status with an immediate start date for "new" employees who currently maintain H-1B status with another employer, or who previously have been in H-1B status in the past six years and subsequently have been absent from the U.S. for less than one year.

Institutions of higher education, nonprofits related or affiliated to such institutions, and nonprofit or governmental research organizations are exempt from the cap and may continue to obtain H-1B status for new employees.

USCIS also will continue to process petitions filed to: (1) extend the amount of time a current H-1B worker may remain in the U.S.; (2) change the terms of employment for current H-1B workers; (3) allow current H-1B workers to change employers; or (4) allow current H-1B workers to work concurrently in a second H-1B position.

2. USCIS to Expand Premium Processing Service to Most Employment-Based Green Card Petitions

U.S. Citizenship and Immigration Services (USCIS) published a notice in the Federal Register on May 23, 2006, that will soon open the agency's premium processing service to nearly all Form I-140 employment-based immigrant worker petitions (these petitions are part of the permanent residence process). The agency also will extend premium processing to certain Form I-539 applications to change or extend nonimmigrant status, as well as to Form I-765 applications to renew employment authorization for foreign nationals with pending employment-based applications for adjustment of status.

USCIS's premium processing program allows petitioners and applicants to request expected adjudication of certain cases. Upon payment of a $1,000 fee, designated applications and petitions are slated for adjudication within 15 calendar days of filing. If the agency does not act on the case within the stated period -- by issuing an approval, a denial or a request for evidence in the case -- the $1,000 fee is refunded.

USCIS will extend premium processing service to Form I-765 applications to renew employment authorization for foreign nationals who have pending Form I-485 applications to adjust status that are supported by immigrant visa petitions in the EB-1 through EB-5 classifications.

In addition, USCIS will permit concurrent filing of Forms I-539 and I-765 for certain nonimmigrant classifications. Premium processing, if requested, will apply only to Form I-539. USCIS will not guarantee 15-day processing for an I-765 filed concurrently with a premium-processed I-539.

A SEPARATE USCIS NOTICE CLARIFIED THAT USCIS SERVICE CENTERS WILL NOT ACCEPT FILINGS FOR ANY OF THESE FORM TYPES UNDER THE PREMIUM PROCESSING SERVICE UNTIL A FORMAL ANNOUNCEMENT IS MADE ON THE USCIS WEB SITE ANNOUNCING THE SPECIFIC START DATES FOR ACCEPTANCE OF THE NEW FORM TYPES.

3. Senate Passes Immigration Legislation, Compromise With House Remains Uncertain

On May 25, 2006, after months of back-and-forth wrangling, the U.S. Senate passed S. 2611, a sweeping immigration reform package that includes both a guest worker program and border control and enforcement components. The House of Representatives passed its own version of immigration reform legislation last December (H.R. 4437). The House bill focuses on border enforcement and lacks a guest worker program. The two bills must be reconciled before a final bill can be enacted. In hopes of bringing the immigration reform legislation to a conclusion, Senate majority leader Bill Frist (R-Tenn.) is calling for swift negotiations with the House of Representatives.

Finding a compromise may be difficult because the two bills are so different. Rep. James Sensenbrenner, Jr. (R-Wis.), however, who will lead the House negotiators, signaled a general willingness to compromise: "I don't think anything is a deal-breaker. We can't have legal proceedings to deport 11 to 12 million people; that is evident."

The Senate bill contains numerous business-related provisions. For example, the Senate bill would:

Raise the cap on H-1B nonimmigrant visas for highly educated temporary workers to 115,000 -- with a flexible market-based annual adjustment.

Raise the employment-based green card cap and exempt key categories of workers from the cap.

Provide exemptions for both H-1B and employment-based green card caps for certain workers who have earned an advanced degree in science, technology, engineering or mathematics.

Allot two-thirds of the 50,000 green cards granted annually by the diversity visa lottery to those with advanced degrees.

Establish a new electronic employment verification system that would replace the current paper-based I-9 system.

Meanwhile, the Bush administration said the "five clear objectives of comprehensive immigration reform" include:

1. "Securing our borders;

2. Creating a temporary worker program;

3. Making it easier for employers to verify employment eligibility and continuing to hold them to account for the legal status of workers they hire;

4. Dealing with the millions of illegal immigrants who are already here; and

5. Honoring the great American tradition of the melting pot."

A White House fact sheet on comprehensive immigration reform is at: http://www.whitehouse.gov/news/releases/
2006/05/20060515-7.html
.

4. Many Hondurans, Nicaraguans in Danger of Losing Work Authorization; Salvadorans Face TPS Renewal Period at End of summer

As of May 25, 2006, fewer than half of Hondurans in the U.S. under the temporary protected status (TPS) program have re-registered to meet the June 1 re-registration deadline, sources say. Many of the 75,000 eligible Hondurans reportedly are awaiting immigration legislation they believe is imminent, and they do not want to spend several hundred dollars to renew their TPS if they may have a chance to apply for permanent resident status under new legislation. Lawyers and advocates warn that many could lose their work authorization as a result, placing them in illegal status after their TPS expires on July 5, 2007, and thereby rendering them potentially ineligible for citizenship in the future. "It is a serious problem. We believe they are wasting their opportunity to continue having an employment authorization document," said Antonio Amaya, executive director of La Comunidad, Inc., an immigrant services organization in Massachusetts.

There also are about 4,000 Nicaraguans in the U.S. under TPS, with the same deadline as the Hondurans. Only 1.700 had renewed their TPS as of May 25. The later re-registration period for approximately 225,000 Salvadorans in the U.S. under TPS is expected at the end of this summer. Advocates report that Salvadorans seem more aware of the risk of allowing their TPS status to lapse. Salvadoran TPS expires on September 9, 2007.

U.S. Citizenship and Immigration Services (USCIS) instructs Hondurans and Nicaraguans who are re-registering for TPS after the June 1 re-registration deadline to submit their applications with a letter explaining a "good cause for failure to timely file" (by USPS or other carrier) to:

Vermont Service Center
Attn: TPS Good Cause Exception
75 Lower Welden Street
St. Albans, VT 05479-0001

Additional information and details on the TPS requirements and deadlines for the three groups, including information on late initial registration and links to the relevant Federal Register notices, are available at: https://www.justice.gov/.

5. DHS Cracks Down on Nonimmigrant Visa Overstays, Worksite Violations

According to reports from the field, U.S. Immigration and Customs Enforcement (ICE) has been visiting those whose nonimmigrant visa status has expired, even if such a person has obtained another status. In some cases, ICE agents are unable to verify the new status. Meanwhile, the Department of Homeland Security (DHS) announced last month that it is stepping up enforcement efforts against employers who knowingly hire undocumented workers. In addition, the DHS plans to work with Congress to build employer compliance systems. "Employers who want to stay within the law need a clear set of rules to follow. ICE and DHS will seek to develop an administrative regulatory program to provide clearer guidance to employers," the DHS said.

6. Third Preference "Other Worker" Green Card Category Becomes Unavailable

The Department of State announced that continued heavy demand for visa numbers in the employment-based third preference category for unskilled workers (that is, employees who are working in jobs that require less than 2 years of education, training and experience) will result in the 5,000 annual numerical limit for that category being reached during the month of May. Therefore, the employment-based third preference "Other Worker" category has become "unavailable" for June and will remain so for the remainder of the fiscal year.

7. Labor Dept. to Close America's Job Bank

Citing costs that outweigh benefits, the Department of Labor recently informed states that America's Job Bank (AJB) will be phased out gradually and will close by June 30, 2007. AJB, which aggregates job listings online of 2,000 state employment offices nationwide, lists more than 682,000 resumes and 2.1 million job openings. "The Department recognizes there will be a periodic need for a national job board due to unique circumstances, such as the recent dislocations related to the hurricanes in the Gulf Coast," the notice said. "It is the Department's assessment that it will be more cost effective to contract for this type of service with the private sector on an 'as needed basis.' "

AJB is often used by lower-skilled workers seeking jobs through state agencies and by employers seeking such workers to meet labor certification recruitment requirements or to demonstrate good-faith compliance with federal hiring guidelines.

Our firm also recommends its use for one of the recruitment alternatives in the labor certification process.AJB is at: http://www.ajb.dni.us/.

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:

Disclaimer/Reminder

This email does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.