A QUARTERLY UPDATE ON IMMIGRATION
LAW FROM MEYNER AND LANDIS LLP

Second Quarter 2006

In this Issue:

• USCIS Reaches H-1B Cap
• Comprehensive Immigration Reform
• Introduction of H-1B and Green Card Reform Legislation in House of Representatives Hints of Progress on Immigration Reform

USCIS REACHES H-1B CAP

U.S. Citizenship and Immigration Services (USCIS) announced on June 1, 2006 that it has received a sufficient number of H-1B petitions to meet the congressionally mandated cap for fiscal year 2007 (FY 2007). The "final receipt date" for H-1B petitions subject to the FY 2007 annual cap was May 26, 2006. Affected H-1B petitions received on that date will be subject to the random selection process described below. H-1B petitions subject to the FY 2007 annual cap that are received by USCIS after the "final receipt date" will be rejected. Additional information regarding the specific number of H-1B petitions processed is available at: www.uscis.gov/graphics/services/tempbenefits/cap.htm.

Caps and Set Asides: Congress has established an annual fiscal year limitation of 65,000 on the number of available H-1B visas, commonly referred to as the "H-1B cap." Under the terms of the legislation implementing the United States-Chile and United States-Singapore Free Trade Agreements, 6,800 of the 65,000 available H-1B visas are annually set aside for the Chile/Singapore H-1B1 program. As a result of reserving 6,800 H-1B visas for FY 2007, the H-1B cap for that fiscal year is 58,200. However, USCIS has added back to the H-1B cap 6,100 unused FY 5006 H-1B1 visas, for a total of 64,300, as described below.

Unused Chile/Singapore visa numbers for a particular fiscal year are to be used within the first 45 days of the next fiscal year. As FY 2007 H-1B petitions are approved for start dates beginning no earlier than the first day of fiscal year 2007 and reasonable anticipated usage of approved H-1B petitions for any 45-day period exceeds 8,000, USCIS has incorporated its reasonable projection based on H-1B1 usage to date that 700 H-1B1 visa numbers will be used in FY 2006 into the FY 2007 H-1B cap count by adding the remaining 6,100 unused H-1B1 visas back into that count, resulting in a total cap of 64,300 FY 2007 H-1B visas approvable. Because unused H-1B1 visas for FY 2006 have been already allocated in this manner, there will be no additional later H-1B filing season to use these visas. The 6,800 visas reserved from the FY 2007 H-1B count for FY 2007 H-1B1 purposes are anticipated to be handled in a similar manner with respect to the FY 2008 H-1B cap count during calendar year 2007. This allocation of FY 2006 H-1B1 visas based upon reasonable projections of usage to the end of the fiscal year will not affect the availability of H-1B1 visas in any way; they will continue to be fully available, with any year-end difference between actual and projected usage expected to be minimal.

Cap Procedures: In accordance with the procedures announced in the Federal Register at 70 FR 23775 (May 5, 2005) (Allocation of Additional H-1B Visas Created by the H-1B Visa Reform Act of 2004) USCIS has implemented the following process for handling H-1B petitions subject to FY 2007 cap:

• USCIS closely monitored FY 2007 H-1B filings and used projections to determine the date on which it received the number of petitions necessary to reach the Congressionally mandated cap.
• USCIS determined that the Congressionally mandated cap had been exceeded on May 26, 2006, the "final receipt date."
• USCIS will subject H-1B petitions received on the "final receipt date" to a computer-generated random selection process. This process will enable USCIS to apply the remaining number of available H-1B visas to petitions received on that day.
• Cap subject H-1B petitions that are not randomly selected in the process described above will be rejected and returned along with the filing fee(s).
• Petitioners may re-submit the petitions when H-1B visas become available for FY 2008.
• The earliest date for which a petitioner may file a petition requesting FY 2008 H-1B employment with an employment start date of October 1, 2007, is April 1, 2007.

Current H-1B Workers: Petitions filed on behalf of current H-1B workers do not count towards the Congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States.
• Change the terms of employment for current H-B workers.
• Allow current H-1B workers to change employers.
• Allow current H-1B workers to work concurrently in a second H-1B position.

Cap-Exempt Petitions: As directed by the H-1B Visa Reform Act of 2004, the first 20,000 H-1B petitions filed on behalf of aliens with U.S.-earned masters’ or higher degrees will be exempt from any fiscal year cap on available H-1B visas. For FY 2007, as of June 23, 2006 USCIS has received approximately 12,700 exempt petitions.

USCIS also notes that petitions for new H-1B employment are exempt from the annual cap if the aliens will be employed at institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Thus, petitions for these exempt H-1B categories may be filed for work dates starting in FY 2006 or 2007.

H-1B in General: U.S. businesses utilize the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. As part of the H-1B program, the Department of Homeland Security (DHS) and the Department of Labor (DOL) require U.S. employers to meet specific labor conditions to ensure that American workers are not adversely impacted, while the DOL’s Wage and Hour Division safeguards the treatment and compensation of H-1B workers.  

COMPREHENSIVE IMMIGRATION REFORM

The Issue: Our current immigration system is broken and needs to be reformed. Immigration laws that are out of sync with 21st century economic realities and demographics have given rise to a vast underground economy characterized by criminal smugglers, fake documents, and millions of undocumented immigrants who are vulnerable to exploitation. Our borders are unmanageable, and we are unable to focus our enforcement resources on those who mean us harm. Moreover, our immigration system is plagued by backlogs and delays; as a result, some close family members are separated for more than 20 years.

AILA’s Position: Since many of the problems with our current immigration system axe interrelated, AILA believes that any workable immigration reform proposal must be comprehensive. Specifically, it must simultaneously create legal avenues for people to enter the U.S.; allow people already here to earn the opportunity to adjust their status; address the multi-year backlogs in family and employment-based immigration; and create and implement a smart border security and enforcement regime. Thus, any workable proposal to reform our immigration system must:

1. Establish a "Break-the-Mold" Worker Program: Current immigration laws do not meet the needs of our economy or workers. In the current regime, there is no visa category authorizing low- or semi-skilled workers to work in the U.S., except on a seasonal basis. That seasonal, employment-based visa—the H-2B program—is wholly inadequate to meet labor needs in a broad range of industries, from landscaping to hospitality to health care. A "break-the-mold" program would provide visas, full labor rights, job portability, and a path to permanent residence over time for those who would not displace U.S. workers. It also would significantly diminish illegal immigration by creating a legal avenue for people to enter the U.S. and return, as many wish, to their countries, communities, and families.
2. Address the Situation of People Living and Working Here: Most undocumented workers are law-abiding, hardworking individuals who pay their taxes and contribute to our society. They are essential to many sectors of our economy. By allowing these people an opportunity to come out of the shadows, register with the government, pay a hefty fine, go through security checks, and earn the privilege of permanent legal status, we can restore the rule of law in our workplaces and communities.
3. Reform the Family-Based and Employment-Based Permanent-Residency Preference Systems: U.S. citizens and legal permanent residents sometimes must wait up to 20 years to reunite with their close family members. Such long separations make no sense in our pro-family nation and undermine one of the central goals of our immigration system: family unity. Relatedly, backlogs for employment-based immigrant visas have expanded dramatically for workers with certain skill sets from certain countries. These backlogs make it difficult for employers to attract and retain the best and brightest talent from around the world, thus undermining our competitiveness in this global economy. Any workable comprehensive immigration reform proposal must eliminate our family-based and employment-based immigrant visa backlogs and reform our preference systems to catch up to 21st century realities.
4. Restore the Rule of Law and Enhance Security: By encouraging those who are already here to come out of the shadows, and by creating legal channels to provide for the future flow of workers, we can restore the rule of law in our workplaces and communities and focus our enforcement resources on those who mean us harm. We need smart enforcement that includes effective inspections and screening practices, fair proceedings, efficient processing, and strategies that crack down on criminal smugglers and lawbreaking employers. At the same time, our border security practices must facilitate the cross-border flow of goods and people that is essential to our economy. A vibrant economy is essential to fund our security needs.

Current Legislation: Both the House and Senate passed significant immigration bills in the 109th Congress, but only the Senate bill embraces a realistic, comprehensive approach to solving the problems that plague our system. The House bill (HR. 4437), sponsored by Representatives King (R-NY) and Sensenbrenner (R-WI), focuses solely on ratcheting up interior and border enforcement capacities, increasing penalties for violations of the immigration law, and limiting the legal rights of noncitizens in this country. Leading H.R. 4437’s parade of horribles are provisions that would: criminalize unlawful presence; strip the courts of much of their remaining jurisdiction over immigration matters; gut the due process rights of aliens and permanent residents; expand expedited removal; broaden the definition of alien smuggling to include churches, employers, family members, and immigrant advocates; expand the definition of aggravated felony; create new grounds of deportability and inadmissibility; and increase mandatory detention.

By contrast, the Comprehensive Immigration Reform Act of 2006 (S. 2611) passed by the Senate addressed each of the critical components for reform: new legal channels for future worker flows, a path to legal status for the current undocumented population, family- and employment-based immigrant visa backlog reduction, and border security. Although the bill is imperfect and must be improved, by embracing the comprehensive architecture that advocates have sought for years, it represents a remarkable step forward in the immigration reform debate. On the positive side of the ledger, S. 2611 includes:

• The full AgJobs bill, providing a path to permanent status for 1.5 million seasonal agricultural workers and reforms to the H-2A program;
• The DREAM Act, providing a path to permanent legal status for hundreds of thousands of eligible undocumented high school graduates;
• A new "break-the-mold" temporary worker program for 200,000 new temporary workers per year with significant labor protections including portability, a path to permanent residence, and the ability to self-petition;
• A path to legalization for at least 9 million currently undocumented workers and their families;
• A significant increase in family-based and employment-based immigrant visa numbers;
• Significant reforms to the high-skilled immigration programs; and
• Reversal of the BIA streamlining rules.

Noting some of the items on the negative side of the ledger, S. 2611 also includes:

• Mandatory detention for certain individuals apprehended near the border;
• Mandatory expansion of expedited removal;
• Expansion of the aggravated felony definition;
• Restrictions on the voluntary departure program; and
• Expansion of the criminal grounds of removal.

AILA will continue to work toward final passage of a bill that tracks and improves on the Senate legislation.

INTRODUCTION OF H-1B AND GREEN CARD REFORM LEGISLATION IN HOUSE OF REPRESENTATIVES HINTS OF PROGRESS ON IMMIGRATION

New 'SKIL Bill' to Provide a Fix to Programs that Assist U.S. Employers Hire Highly Educated Foreign Talent

The American Immigration Lawyers Association (AILA) has commended the introduction of the "SKIL Bill" by Representative John Shadegg (R-AZ) to reform both the H-1B visa and employment based (EB visa) green card processes. The legislation is cosponsored by Representatives John Campbell (R-CA), K. Michael Conaway (R-TX), John T. Doolittle (R-CA), Jeff Flake (R-AZ), Peter Hoekstra (R-MI), Michael McCaul (R-TX), Mike Pence (R-IN), John Shimkus (R-IL) and Todd Tiahrt (R-KS).

The introduction of the SKIL Bill in the House is a positive sign that both the U.S. Congress and Bush Administration are serious about correcting the growing competitiveness crisis for the United States and reform the visa system for highly educated foreign nationals. AILA also supports similar provisions addressing H-1B and EB visa issues contained in comprehensive immigration legislation in the Senate as well as the President's American Competitiveness Initiative.

"Representative Shadegg's introduction of the SKIL Bill in the House brings us closer to an important fix to the broken H-1B and EB green card systems," said Carlina Tapia-Ruano, president of AILA. "History has shown that highly educated foreign-born professionals bring great benefits to the U.S. economy and we applaud him for his leadership on this critical issue."

Among the highlights of the SKIL Bill (Securing Knowledge Innovation and Leadership) include the following:

• Exemptions for U.S. educated foreign workers with master's or higher degrees from the H-1B and EB green card quotas so their talent can be retained in the United States.
• Creation of a flexible, market-based H-1B cap so that U.S. employers are not locked out of hiring critical talent for over a year at a time.
• Extension of foreign students' post curricular optional practical training from 12 months to 24 months to allow them to transition more easily from student to green card.
• Exemptions for EB green card immigrant spouses and children from the annual cap, thus making more visas available for the innovative professionals we need.

Portions of this Newsletter have been
Reprinted with permission from AILA
Copyright © 2006, 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 ext. 240 @ asiliato@meyner.com
Website: www.meyner.com