A QUARTERLY UPDATE ON IMMIGRATION LAW FROM MEYNER AND LANDIS LLP
First Quarter 2004

In this Issue:

• Practice Advisory on the H-1B Cap
• USCIS Announces H-2B Procedures – Reaches Cap
• DHS Rule Eliminates Numerical Cap on Mexican TN Non-Immigrants
• Visas Mantis Security Checks
• Visa Applications, Machine-Readable Passports and Biometrics:  Requirements for NIV Applicants before and after October 26, 2004
• President Bush Proposes Immigration Plan Action Alert

Practice Advisory on the H-1B Cap

The FY2004 H-1B Cap Has Been Reached – What’s Next?

Here’s what we know:

• The U.S. Citizenship and Immigration Services (“USCIS”) announced on February 17, 2004 that it had received enough H-1B petitions to meet FY2004’s cap of 65,000 new workers
  
  
• The USCIS also announced that it will reject any new H-1B petitions received after February 17, 2004, for first-time employment subject to the FY2004 annual cap. The announcement indicated that the USCIS will process all petitions filed for first-time employment if they were received by the end of business day on February 17.
  
  
• The USCIS indicated that the earliest date on which a petitioner may file a petition requesting new FY2005 H-1B employment is April 1, 2004, which is six months before the earliest possible start date in FY2005, October 1, 2004.
  
  
• The notice announcing the reaching of the cap indicated that petitions for foreign nationals currently in H-1B status do not count toward the H-1B cap. Thus, the notice indicated that the USCIS will continue to process petitions filed to extend status, change terms of employment, change employers, or work concurrently in a second H-1B position. However, the INA subjects to the cap individuals who are changing from a cap-exempt employer to a cap-subject employer.
  
  
• Under the INA, individuals who have been counted toward an H-1B cap within the past six years are not subject to the cap unless they would be eligible for another full six years of admission (i.e., unless they have been outside the U.S. for at least one year). No reference was made to this provision in the notice announcing the cap.
  
  
• Under the INA, J-1 physicians granted waivers of the two-year home residence requirement at the request of a State Department of Health (Conrad waivers) had been exempt from the cap. However, a peculiarity in how the exemption provision was drafted has raised some question as to whether that exemption sunset on October 1, 2003. The notice announcing the cap did not refer to this provision one way or another.
  
  
• Also exempt from the H-1B cap are H-1Bs who will work at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization.
  
  
• The USCIS will also continue to process H-1B petitions for workers from Singapore and Chile consistent with Public Laws 108-77 and 108-78.

What questions are still open?

• The Department of Homeland Security (“DHS”) has not yet addressed what the procedures will be for persons in Duration of Status (F/J). AILA has been informed that this decision is in the hands of ICE, which controls the SEVIS system, and as of this writing no conclusion has been reached.

Background:

• • When the H-1B cap was reached in 1999, the USCIS published an interim rule on June 15, 1999, amending the regulations to provide that the USCIS Commissioner could publish a notice in the Federal Register to extend the duration of status for certain F-1 and J-1 status holders when the H-1B cap was reached. The interim rule eventually became sections 8 C.F.R. 214.2(f)(5)(vi) and 214.2(j)(1)(vi).
    
    
  • The USCIS Commissioner exercised authority under these provisions in 1999 and again in 2000. The cap had not been reached since 2000 until the current year.
    
    
  • Under the reorganized regulations, the term “Commissioner” means, after March 1, 2003, the “Director of the Bureau of Citizenship and Immigration Services, the Commissioner of the Bureau of Customs and Border Protection, and the Assistant Secretary for the Bureau of Immigration and Customs Enforcement.” 8 C.F.R. § 1.1(d).
    
    
  • As of February 19, 2004, no notice has been published in the Federal Register granting extended duration of status to F-1 and J-1 applicants for change of status to H-1B.
    
    
• The USCIS has not yet addressed how it will handle any remaining H-1B numbers under the United States-Chile and the United States-Singapore Free Trade Agreements.

Background:

• • Under these agreements, H-1B numbers that are unused pursuant to the agreements at the end of a given fiscal year may be used under INA § 101(a)(15)(H)(i)(b) by those who applied within the fiscal year in which there are remaining numbers under the agreements, if those remaining numbers are used within the first 45 days of the next fiscal year.
    
    
  • The treaties themselves prohibit the imposition of a petitioning requirement, with the result that applications can be filed directly with the consulates. Thus, it is doubly unclear how USCIS will count usage of H-1B numbers under those treaties and how it will recapture any unused numbers.
    
    
• The USCIS also has not made clear how it will address the status of those who seek to change status to H-1B, but who are not in a status that is authorized for duration of status.

Certain factors need to be considered in this situation:

• • It seems clear that, if the current nonimmigrant status will expire before the filing of a new H-1B petition is allowed (i.e., before April 1), a change of status to H-1B will not be approvable unless the person is first able to timely change to another status, such as B-2. But note, however, that an April 2, 2003, Counsel’s office memorandum calls into question the extent to which applying for a “bridging” status will be effective or safe, particularly if the change of status application for the intervening status is denied.
    
    
  • If the individual’s current non-D/S nonimmigrant status will not expire until after April 1 when a new H-1B petition can be filed, but will expire before the earliest available requested start date of October 1, there is still considerable question whether a change of status would be approved. In the past, if the new H-1B start date was not immediately available at the expiration of the previous nonimmigrant status, the then-INS took the view that there was a gap in status and change of status was not approvable. AILA has received no answer as to whether the USCIS will still take this view, but there is good reason to believe that this would still be the agency’s position.
    
    
• Although the USCIS cut off filings based on its belief that it has enough cases in the pipeline to fill the cap, that count is not an exact science. Thus, it is at least possible that some cases in the pipeline will not be processed before the cap is actually reached with approved cases. The USCIS has given no indication how it will handle any “leftover” cases. Similarly, if it turns out that fewer than 65,000 petitions are actually approved, it is not clear how (or even if) the USCIS will reopen processing or filing to fulfill the cap.
  
  
• In the past, the USCIS assessed the numbers of H-1B petitions pending in the various Service Centers, and made efforts for the Service Centers with slower processing times to catch up to those with faster processing times in order to balance the processing of H-1B petitions throughout the country. The USCIS is implementing that same procedure this year.
  
  
• AILA believes that new H-1B petitions filed in FY 2003 with a requested start date in that fiscal year should have been counted against 2003’s cap even if they were not adjudicated until FY 2004. So far, USCIS has not adopted this view, but AILA will continue to advocate for it.

AILA is attempting to obtain answers from DHS on these open questions, and will notify the membership immediately on receiving any additional information. Visit AILA InfoNet frequently for the latest news on the H-1B cap.

USCIS Announces H-2B Procedures -- Reaches Cap

USCIS announced that it has received enough H-2B petitions to meet this year's congressionally mandated cap of 66,000 new workers. After March 9, 2004, USCIS will not accept any new H-2B petitions subject to the FY 2004 annual cap.

USCIS will use the following procedure for the remainder of FY 2004:

• USCIS will process all petitions received by the end of business on March 9, 2004.
  
  
• USCIS will return all petitions subject to the annual cap (along with the filing fee and, if applicable, the premium processing fee) that are filed after the end of business on March 9, 2004.
  
  
• Petitioners may re-submit or file new petitions when they have received labor certification approval for work to start on or after October 1, 2004.

Petitions for current H-2B workers do not count towards the congressionally mandated H-2B cap. Accordingly, USCIS will continue to process petitions filed to:

• Extend the stay of a current H-2B worker in the United States.
  
  
• Change the terms of employment for current H-2B workers.
  
  
• Allow current H-2B workers to change or add employers.

DHS Interim Rule Eliminates Numerical Cap on Mexican TN Non-Immigrants

This rule, effective January 1, 2004, removes the annual numerical cap on the number of Mexican professional admissions under the North American Free Trade Agreement (NAFTA). This rule also eliminates the associated requirement of a petition for a Mexican-based NAFTA professional and the corresponding labor condition application. These changes to the regulations are consistent with the NAFTA’s requirement that the annual numerical cap and petition provisions for Mexican professionals sunset by January 1, 2004. Note that on March 1, 2003, the Immigration and Naturalization Service (Service) transferred from the Department of Justice to the Department of Homeland Security (the Department) pursuant to the Homeland Security Act of  2002, Public Law 107-296. Accordingly, the Service's adjudication function transferred to the Bureau of Citizenship and Immigration Services (BCIS) of the Department.

Visas Mantis Security Checks

The Government Accounting Office of Congress (GAO) issued a report on its review of the consular process for science students and scholars from abroad. The inquiry stemmed from the concern over the potential loss of top international students due to visa delays resulting from national security screening checks. Visas Mantis is a security check based on sensitive technology transfer concerns. The GAO found that the average Visas Mantis processing time was 67 days but is significantly longer for nationals from China, Russia, and India.

Visa Applications, Machine-Readable
Passports And Biometrics: Requirements
For NIV Applicants Before And After October 26, 2004

There is no worldwide requirement that visa applicants of any nationality must present a Machine-Readable Passport (a “MRP”) in order to apply for a visa.  The only MRP requirement for foreign travelers to the U.S. applies to nationals of the 27 Visa Waiver Program (“VWP”) countries arriving at ports of entry (“POEs) without visas.  The MRP requirement for most VWP travelers will take effect October 26, 2004; for nationals of Andorra, Belgium, Brunei, Liechtenstein and Slovenia, it is already in force.  Belgium has had to comply since May 2003.  Please note that the MRP requirement does not apply to VWP nationals who apply for visas, now or after October 26, 2004.

The MRP requirement applies only to VWP travelers applying for visa-free entry at U.S. POEs.  The MRP requirement does not apply to other programs or groups that are visa-waived or visa-exempt (for example, Canadian citizens, the Guam Visa Waiver Program, certain Caribbean Islanders, etc.)—either when applying for visas or at POEs.

Similarly, the October 26, 2004 requirement of a biometric passport will apply only to VWP nationals applying for visa-free entry at U.S. POEs whose passports were issued on or after that date. It does not apply to other visa-waived or visa-exempt categories, nor to NIV applicants.

President Bush Proposes Immigration Plan Action Alert

President Bush announced on  January 7th his Administration’s immigration reform proposal. This announcement came one week before the President met with Mexican President Vicente Fox. AILA agrees with the President that our current immigration laws do not make sense, do not make us safer, do not support our economy, and do not reflect our tradition as a nation of immigrants. Unfortunately, the few things we know about the president’s proposal bring into question whether the plan would work.

The proposal is centered on an uncapped temporary worker program intended to “match willing foreign workers with willing U.S. employers when no Americans can be found to fill the job.” The proposal would grant program participants temporary legal status and authorize working participants to remain in the U.S. for three years, with their participation renewable for an unspecified period. Initially, the program would be open to both undocumented people as well as foreign workers living abroad (with the program restricted to those outside of the U.S. at some future, unspecified date). American employers would have to make reasonable efforts to find U.S. workers. Under this proposal, participants would be allowed to travel back and forth between their countries of origin and “enjoy the same protections that American workers have with respect to wages and employment rights.” The proposal also includes incentives for people to return to their home countries and calls for increased workplace enforcement as well as an unspecified increase in legal immigration.

Many questions remain about the proposal, principally whether it would create meaningful access to permanent legal status. While it would not prohibit temporary workers, those undocumented living in the country or people living abroad, from applying for legal permanent residency, it would allow them to do so only under existing immigration law. The question thus remains whether the Administration’s plan would adequately deal with the grounds of inadmissibility and other bars that put road blocks in the way of undocumented people using this program to adjust. It also is unclear if the proposal adequately addresses other major concerns such as the long backlogs in legal immigration. The proposal would allow temporary worker program participants who seek to remain in America to pursue citizenship, and calls for a “reasonable increase in the annual limit of legal immigration” for others who seek to immigrate to this country. These temporary workers would be placed in line behind those already in line. However, unless current law is changed, the process to become a legal permanent resident could take decades for these temporary workers. Finally, the proposal is silent on the pressing issue of family backlog reductions.

Portions of this newsletter have been reprinted with permission from AILA
Copyright © 2004, American Immigration Lawyers Association

The material contained in this newsletter is for informational purposes and should not be considered legal advice.
For further information, please contact Anthony F. Siliato, Esq.
Meyner and Landis LLP, One Gateway Center, Suite 2500, Newark, NJ 07102
(973) 624-2800 @ asiliato@meyner.com
Website: www.meyner.com