According to U.S. Citizenship and Immigration Services, as of January 17, 2006, they had received enough H-1B petitions to reach the numerical limitations for foreign workers with a U.S.-earned master’s or higher degree. Therefore, any petition received on January 17th was subject to a computer-generated random selection process, and any petition received after January 17th was rejected.
The fiscal year 2007 H-1B temporary worker quotas will open on April 1, 2006, for employment to begin on October 1, 2006. We expect quota numbers--a total of about 85,000 to last a maximum of 60 to 90 days, and very possibly much less. Please keep in mind that this is just a rough guess, based on last year's usage.
Thus we urge all employers and their employees who must have a quota number to apply immediately. Keep in mind that persons already counted against the quota, employees of institutions of higher education and affiliated entities, entities which provide medical training programs, nonprofit research and government research organizations, as well as certain former J 1 physicians, are exempt from the quotas. The H1B temporary worker visa is intended for persons occupying "specialty occupations", that is, positions which require at least a Bachelor's degree in a specific field.
H-2B QUOTA EXHAUSTION IMMINENT
The H-2B Temporary Worker quota for the second half of fiscal year 2006, that is April 1 to September 30, 2006, is rapidly nearing exhaustion. We urge employers who are in the application process to move forward as quickly as possible. Those who have waited this late to start the process will probably have to wait until the quota opens for the first half of fiscal year 2007--that is June 1, to apply for workers to begin on October 1, 2006. The H-2B category is for skilled and unskilled workers coming to the US to fill a peakload, intermittent, seasonal or one-time need of fewer than 12 months.
The Department of Labor (DOL) has published a proposed rule modifying PERM requirements on February 13th, 2006, seeking comments before April 14, 2006. The far – ranging proposal would prohibit beneficiary substitutions, limit the validity of labor certifications to 45 days, and prohibit payment of attorney’s fees by the beneficiary. The first change would prohibit the substitution of alien beneficiaries on pending applications for permanent labor certification and on approved permanent labor certifications not yet filed with the Department of Homeland Security (DHS). The second change would require a permanent labor certification be filed with DHS within 45 calendar days of the date it is certified by DOL. Third, the proposal would prohibit the sale, barter, or purchase of applications and approved labor certifications, as well as other related payments. Of particular note, the DOL would prohibit a beneficiary employee paying for the attorney’s fees and costs associated with a labor certification. Finally, DOL is also proposing enforcement mechanisms, including debarment with appeal rights, “to protect the integrity of the permanent labor certification program and deter individuals or entities from engaging in prohibited transactions or abusing the labor certification process.” Any comments on this proposal can be sent via email to fraud.comments@dol.gov. Include RIN 1205-AB42 in the subject line of the message.
Because we have no idea when this proposal may become law, we strongly advise any employer who wishes to substitute a new employee for the prior beneficiary on a labor certification to do so immediately.
NEW FILING LOCATIONS FOR I-129 & I-140 PETITIONS
As of April 1, 2006, employers filing a Petition for Nonimmigrant Worker (Form I-129) must mail the packet directly to the Vermont Service Center. Also, starting April 1st, employers filing an Immigrant Petition for Alien Worker (Form I-140) should mail that form directly to the Nebraska Service Center. Employers should file accompanying forms at these same locations. (eg., I-539, Application for Change of Nonimmigrant Status). Vermont will divide the I-129 load with California, and Nebraska will share I-140 petitions with the Texas Service Center. RFE’s and later-filed applications or evidence should be sent to the Service Center where the case is receipted.
NEW ORLEANS DISTRICT OFFICE UPDATE
The latest information we have indicates that the New Orleans District Office of US Citizenship and Immigration Services will reopen sometime in late May or early June. Until that time it is very difficult to determine the status of cases pending in New Orleans or move them forward. We will keep you posted as new developments arise with respect to this office.
As of January 4th, a Department of Labor final rule requires that all labor condition applications, which are a necessary prerequisite to the filing of H-1B temporary worker and some other types of employment-based petitions, be filed electronically. The only exceptions to electronic filing are for those with disabilities and those with no internet access. Those persons must file at an address which has been published (ironically) at www.lca.doleta.gov. This final rule enshrines the almost universal practice of filing electronically, which is much faster and easier than filing by mail.
DHS EXTENDS TPS FOR EL SALVADOR, HONDURAS, AND NICARAGUA
On February 23rd, the Department of Homeland Security extended Temporary Protected Status for citizens of El Salvador, Honduras, and Nicaragua, for an additional twelve months. This extension covers only persons who have already been granted TPS, with very limited exceptions for those who have maintained nonimmigrant or other authorized status since TPS was initiated. The extension will expire on September 9th, 2007 for El Salvador and on July 5th, 2007 for Honduras and Nicaragua. Affected Hondurans and Nicaraguans must apply for re-registration by June 1, 2006. Re-registration details for affected Salvadorans have not yet been determined by USCIS. We will keep you posted.
WESTERN HEMISPHERE TRAVEL INITIATIVE POSTPONED
In a notice of proposed rule making dated September 1, the Department of Homeland Security and Department of State have announced that the original deadline for travelers from Canada, Mexico and Bermuda to have passports to enter the United States has been postponed. The deadline, originally set for December 31, 2005 will now apply to all air and sea travelers from these three nations as of December 31, 2006, and will apply to land border crossers from Canada, Mexico and Bermuda as of December 31, 2007.
Some consulates, such as Tokyo and Paris, are now only accepting the electronic version of Form DS-156, nonimmigrant visa application, which generates a bar code after being electronically filled and printed. However, many consulates will still accept the non-electronic version. The form may be found at https://evisaforms.state.gov/ds156.asp?lang=1. This unannounced change is a reminder that it is always wise to check the individual consular webpage at www.travel.state.gov and email the consulate if necessary to find out exact policies and procedures before proceeding abroad to obtain a visa.
On March 30, the full Senate debated a bill and related amendments, which reported out of the Senate Judiciary Committee, containing provisions regarding border security, enforcement, as well as work permits and a path to permanent residence for the approximately 12 million undocumented aliens living in the US. If this bill is approved by the Senate, a Senate-House Conference Committee will have to reconcile it with the House version, which contains no provisions for guest workers or permanent residence and extremely harsh penalties for both employers and undocumented aliens. For example, under the House version, persons entering or remaining in the United States without authorization would be considered guilty of an “aggravated felony” and tried and convicted if discovered. Conviction of an aggravated felony almost always results in automatic deportation and often renders the individual ineligible for most relief from removal from the United States and for permanent residence.
The different versions of legislation affecting the undocumented reflect deep divisions within the Republican Party: on the one side, the pro-business faction that wants to ease the path to legalization for undocumented workers, who represent one in twenty workers in the US and support vital sectors of our economy, such as food processing, construction, personal services, and hospitality (for example, twenty five percent of all drywall workers are undocumented). On the other side: the staunchly anti-immigrant, those who would place a wall along the border, seek a moratorium on all immigration, and fight for a constitutional amendment to prevent the children of undocumented aliens born in the US from automatically becoming citizens. In an election year, immigration has become an extremely fractious issue and there is no telling which way the legislation will go. We will keep you updated as developments emerge.
Form N-400, application for naturalization has been revised. The revised form is dated December 16th, 2005. Prior versions of the form dated July 23rd, 2002 and October 26th, 2005 are still acceptable, and USCIS has no deadline by which the new version of the form will be the only one accepted.
STANDARD RFE RESPONSE TIMEFRAME
In a recent liaison meeting with the American Immigration Lawyers’ Association, USCIS stated that if no response is received on an application or petition during sixty days following a response to a request for evidence (RFE), it is appropriate to make inquiries with USCIS. In such cases, affected parties should contact the USCIS National Customer Service Center at 1-800-375-5283.
In the March 20th liaison meeting between the Texas Service Center of USCIS and NAFSA, TSC responded in the negative to a question from the NAFSA liaison as to whether an applicant for adjustment of status was still eligible for an optional practical training EAD.
We beg to disagree. Despite TSC’s advice, we still encourage all F-1’s who are applying for permanent residence, particularly in marriage cases, to make every attempt to maintain F-1 status all the way to completion of their adjustment application. This is particularly important in marriage cases because so many relationships fall apart prior to adjudication. If this occurs, the student who meanwhile failed to maintain status is left “without a paddle”, as intent to immigrate has been declared, reinstatement will likely be denied, and work authorization will be revoked. We have never encountered a case where TSC denied an EAD based on optional practical training where an adjustment application had been filed or where an adjustment application EAD had already issued.
THE FIRM SPEAKS, SERVES… AND AWARDS
Mr. Ware’s future speaking dates include: March 14th, Tennessee Association of International Educators, Nashville, TN; April 3rd, East Carolina University, Greenville, NC; April 5th, Florida Atlantic University, Davie, FL; April 6th, AAIE Conference, Birmingham, AL; April 10th, LA NAFSA Conference, Hammond, LA; April 21st, Mississippi State University, Starkville, MS; April 28th, Hawaii State NAFSA Conference, Honolulu, HI; May 20-27, NAFSA Annual Conference, Montreal, Canada; June 15th, “Know Your Rights”, Hispanic Community, Independence, LA; June 9th, Embry Riddle Aeronautical University, Daytona Beach, FL; June 21st, MBA Career Services, Huntington, CA.
John Robinson, Senior Paralegal, chaired and co-presented NAFSA’s Professional Practice Workshop, F-1 Regulations-The Second Step, at the TN Association of International Educators Conference, Nashville, TN on March 13. Mr. Robinson authored the original participant manual and co-developed the curriculum for this 8-hour workshop. He will also present this workshop at the NAFSA Annual Conference in Montreal on May 21st, 2006.
Mr. Robinson also co-chaired NAFSA’s Policy and Practice Implementation Task Force, which addressed the newly created NAFSA Regulatory Ombudsman position. Task Force members hailed from the University of Kansas, Fordham University, Fashion Institute of Technology, and Washington University.
On April 26, Mr. Ware will award the annual David Ware and Associates Scholarship to the Most Outstanding International Student at Southeastern Louisiana University in Hammond, Louisiana.
For information about any of these engagements, please contact Yolanda Mata at 1-800-537-0179 (or locally at 504-830-5900).
Also, see our Events Calendar for an up-to-date listing of upcoming engagements.