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

In this Issue:

• USCIS Implements H-1B and L-1 Visa Reform
• Visa Bulletin for January 2005: Retrogression in EB-3 Category
• President Signs Bill Allowing Employers to Fill Out and Store I-9 Forms Electronically
• DOS Issues Instructions on Registering for DV 2006 Program
• PERM is Coming

USCIS IMPLEMENTS H-1B AND L-1 VISA REFORM

NEW LAW CHANGES ASPECTS OF THE TEMPORARY WORK PROGRAM

USCIS announced on December 8, 2004 that President Bush has signed the Omnibus Appropriations Act for FY 2005, which contains provisions affecting the H-1B and L nonimmigrant visa categories. Both the H-1B and L programs allow U.S. employers to sponsor temporary foreign workers.

New Fees.

Before October 1, 2003, employees who used the H-1B program were required to pay an additional $1,000 fee imposed by the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). In part, that $1,000 fee paid for U.S. citizens, lawful residents and other U.S. workers to attend job training and receive low-income scholarships or grants for mathematics, engineering or science enrichment courses administered by the National Science Foundation and the Department of Labor. Those ACWIA fee requirements sunset on October 1, 2003.

The H-1B provisions of the Omnibus Appropriations Act reinstitutes the ACWIA fee and raises it to $1,500. Petitioners who employ no more than 25 full-time equivalent employees, including any affiliate or subsidiary, may submit a reduced fee of $750. Certain types of petitions, that were previously exempt from the $1,000 fee, are still exempt from the new $1,500 and $750 fee. The new $1,500 and $750 fee applies to any non-exempt petitions filed with USCIS after December 8, 2004.

In addition, the Act creates a new Fraud Prevention and Detection Fee of $500 which must be paid by petitioners seeking a beneficiary’s initial grant of H-1B or L nonimmigrant classification or those petitioners seeking to change a beneficiary’s employer within those classifications. Other than petitions to amend or extend stay filed by an existing H-1B or L employer, there are no exemptions from the $500 fee. The new $500 fee applies to petitions filed with USCIS on or after March 8, 2005.

Each of these fees is in addition to the base processing fee of $185 to file a Petition for a Nonimmigrant Worker (Form I-129) and any premium processing fees, if applicable.

H-1B Cap

This Act, and Public Law 108-411 (Dec. 3, 2004), provides new exemptions from the congressionally mandated annual H-1B cap.

• The first 20,000 H-1B beneficiaries who have earned a master’s degree or higher from a U.S. institution of higher education are not subject to the annual congressionally mandated H-1B visa cap of 65,000. After those 20,000 slots are filled, USCIS is required to count those cases against the cap for the remainder of the fiscal year.
• For FY 2005, the new provision will allow USCIS to accept new petitions on behalf of up to 20,000 beneficiaries meeting these criteria. Petitions under this provision cannot be filed at this time, as the provision is not effective until March 8, 2005. USCIS will provide additional guidance on eligibility and process at a later date.
• Public law 108-441 extended the “Conrad 30” J-1 program covering certain medical guidelines. Nonimmigrants currently in the United States on a J-1 (exchange) visa who received a waiver of the two-year residency requirement if requested by either a federal or state agency are now exempt from the H-1B cap. Qualifying employers of these beneficiaries may submit H-1B petitions, notwithstanding the fact that the H-1B cap was already met for FY 2005, after December 8, 2004. Petitioners must separately evaluate whether an H-1B petitioner is exempt from certain fees and whether the petition is exempt from the H-1B cap, because the rules applicable to each type of exemption are not the same. For example, a petition by an otherwise non-exempt employer to extend the H-1B stay of a beneficiary for the first time would be exempt from the H-1B cap, but not from either the $1,500 or $750 fee.

L-1 Visa Reform

An L-1B nonimmigrant is an alien who has been employed overseas by a firm with an affiliated entity in the U.S., who comes to the U.S. to perform services for the international entity that involve specialized knowledge.

The L-1 Reform Act amends previous legislation by addressing the issue of “outsourcing.” L-1B temporary workers can no longer work primarily at a worksite other than their petitioning employer if the work will be controlled and supervised by a different employer or if the offsite arrangement is essentially to provide labor for hire, rather than service related to the specialized knowledge of the petitioning employer. This limitation will apply to all L-1B petitions filed with USCIS on or after June 6, 2005. This includes extensions and amendments involving individuals currently in L-1 status.

Change to Blanket L Program

The act also requires that all L-1 temporary workers must have worked for a period of no less than one year outside the United States for an employer with a qualifying relationship to the petitioning employer. Previously, participants in the “blanket L-1” program could participate after as little as six months of qualifying employment. This change applies to petitions for initial L-1 classification filed with USCIS on or after June 6, 2005. USCIS will be publishing guidance and regulations on these changes at a later date.

VISA BULLETIN FOR JANUARY 2005:

RETROGRESSION IN EB-3 CATEGORY

The U.S. Department of State visa bulletin for the month of January 2005 shows a retrogression to 1/1/02 in the Employment Based Third Preference category for China, India, and the Philippines. This means that a native of one of those countries must be the beneficiary of an alien labor certification or immigrant visa petition filed by 1/1/02 in order to be eligible to apply for adjustment of status to a permanent resident.

PRESIDENT SIGNS BILL ALLOWING EMPLOYERS TO

FILL OUT AND STORE I-9 FORMS ELECTRONICALLY

On October 30, 2004, President Bush signed into law H.R. 4306, which will allow employers to both fill out and store Employment Eligibility Verifications (Forms I-9) electronically, in addition to the previously allowed options.

The Congressional Report on H.R. 4306 notes several reasons for the introduction of the bill, such as facilitating employer compliance with, and enhancing enforcement of, the current law through easier review of, and access to, I-9s. Additionally, insufficient storage space for the traditional paper or microfiche copies of the forms has caused a significant problem for many companies, especially those with a high turnaround of employees. Finally, the report contends, allowing employers to store the information electronically will improve privacy measures, because electronic passwords and access codes will be needed in addition to physical measures.

The bill amends INA §274A(b) (8 USCA § 1324a(b)) by allowing for hand-written or electronic signatures to suffice for the required attestations for employment authorization verification and to allow for the retainment of verification records in either a paper or electronic version. The bill also provides that the effective date for the provisions will be either the promulgation date of final regulations or 90 days after the bill’s enactment, whichever is sooner.

DOS ISSUES INSTRUCTIONS ON REGISTERING FOR DV 2006 PROGRAM

This public notice provides information on how to apply for the DV 2006 Program. This notice is issued pursuant to 22 CFR 42.33(b)(3) which implements sections 201(a)(3), 201(e), 203(c) and 204(a)(1)(G) of the Immigration and Nationality Act, as amended, (8 U.S.C. 1151, 1153, and 1154(a)(1)(G)).

Instructions for the 2006 Diversity Immigrant Visa Program (DV-2006)

The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). Section 131 of the Immigration Act of 1990 (Pub. L. 101-649) amended INA 203 to provide for a new class of immigrants known as “diversity immigrants” (DV immigrants). The Act makes available 50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States.

The annual DV program makes permanent residence visas available to persons meeting the simple, but strict, eligibility requirements. Applicants for Diversity Visas are chosen by a computer-generated random lottery drawing. The visas, however, are distributed among six geographic regions with a greater number of visas going to regions with lower rates of immigration, and with no visas going to citizens of countries sending more than 50,000 immigrants to the U.S. in the past five years. Within each region, no one country may receive more than seven percent of the available Diversity Visas in any one year.

For DV-2006, natives of the following countries are not eligible to apply because they sent a total of more than 50,000 immigrants to the U.S. in the previous five years (the term “country” in this notice includes countries, economies and other jurisdictions explicitly listed in this notice): Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Russia, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.

Application Submission Dates

Entries for the DV-2006 Diversity Visa Lottery must be submitted electronically between noon (EST) on Friday, November 5, 2004 and noon (EST) on Friday, January 7, 2005. Applicants may access the electronic Diversity Visa entry form at http://www.dvlottery.state.govduring the registration period beginning noon November 5, 2004. Paper entries will not be accepted. Applicants are strongly encouraged to not wait until the last week of the registration period to enter. Heavy demand may result in delays. No entries will be accepted after noon (EST) on January 7, 2005.

PERM IS COMING

The Office of Management and Budget (“OMB”), which oversees regulatory policies for the Executive Branch, completed its review of the final PERM rule on Friday, December 10, 2004. Such rule will drastically change permanent labor certification applications (first step to employment-based green cards). This rule had been pending at the OMB since February 23, 2004. Upon completion of the final rule, the rule is forwarded for publication in the Federal Register, a process which can be as quick as a day, or can take several weeks. In light of the lengthy period during which the rule was pending at OMB, it is anticipated that publication in the Federal Register will be prompt.

The effective date of the final PERM rule has not yet been confirmed, though the Department of Labor previously indicated in a memo to the local DOL offices that the effective date will be 60 days from the date of publication.

Portions of this newsletter have been reprinted with permission from AILA

Copyright © 2004, American Immigration Lawyers Association