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Second Quarter 2007 - A Quarterly Update on Immigration Law

A QUARTERLY UPDATE ON IMMIGRATION
LAW FROM MEYNER AND LANDIS LLP

Second Quarter 2007

In this Issue:

USCIS REACHES FY 2008 H-1B CAP

U.S. Citizenship and Immigration Services (USCIS) announced on April 3, 2007 that it has received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2008 (FY 2008). USCIS will use a random selection process (described below) for all cap-subject filings received on April 2, 2007 and April 3, 2007. USCIS will reject and return along with filing fee(s) all petitions received on those days that are not randomly selected.

Cap Procedures: In keeping with USCIS regulations, USCIS will use the following process to handle H-1B petitions subject to the FY 2008 cap:

  • USCIS has determined that as of April 2, 2007, it had received enough H-1B petitions to reach the FY 2008 H-1B cap and has set the “final receipt date” as April 2, 2007.
  • In keeping with its regulations, USCIS will subject H-1B petitions received on the “final receipt date” and the following day to a computer-generated random selection process.
  • USCIS will reject all cap-subject H-1B petitions for FY 2008 received on or after Wednesday, April 4, 2007.
  • USCIS will reject and return along with the filing fee(s) all cap-subject H-1B petitions that are not randomly selected.
  • Petitions may re-submit petitions on April 1, 2008 when H-1B visas become available for FY 2009. This is the earliest date for which an employer may file a petition requesting FY 2009 H-1B employment with a start date of October 1, 2008.

As of April 2, 2007, USCIS had received approximately 150,000 cap-subject H-1B petitions. USCIS must perform initial data entry for all filings received on April 2 and April 3 prior to conducting the random selection process. In light of the high volume of filings, USCIS will not be able to conduct the random selection for several weeks.

In order to fully utilize its data entry and initial processing capacity, USCIS may choose to distribute filings received at one service center to other service centers for data entry. In the event that USCIS exercises this option, petitioners may receive receipt notices or other correspondence from a service center other than the one to which the H-1B submission was sent. USCIS advises employers that there is no need for concern should that occur and that t here is no need to contact USCIS.

USCIS ALSO REACHES MASTER’S DEGREE CAP

Cap Procedures: In accordance with USCIS regulations, USCIS has implemented the following process for handling H-1B petitions filed on behalf of workers with a master’s or higher degree earned from a U.S. institution of higher education seeking an exemption from the FY 2008 cap:

  • USCIS has determined that as of April 30, 2007, it had received a sufficient number of H-1B petitions requesting a FY 2008 cap exemption on behalf of “foreign worker w ho has earned a master’s degree or higher from a U.S. institution of higher education” to reach the 20,000 limit. The “final receipt date” is April 30, 2007.
  • USCIS will subject H-1B petitions received on the “final receipt date” that request an exemption from the H-1B cap based on the worker holding a U.S. Master’s or higher degree to a computer generated random selection process. USCIS will reject those filings not randomly selected and return them along with the filing fee(s) unless another basis for an H-1B cap exemption exists.
  • USCIS will reject H-1B petitions requesting this exemption for FY 2008 received on or after May 1, 2007 unless another basis for an H-1B cap exemption exists.
  • The earliest date for which a petitioner may file a petition requesting cap subject FY 2009 H-1B employment or an exemption from the H-1B cap based on the worker holding a U.S. Master’s degree or higher with an employment start date of October 1, 2008, is April 1, 2008.

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-1B workers.
  • Allow current H-1B workers to change employers.
  • Allow current H-1B workers to work concurrently in a second H-1B position.

USCIS also notes that, in addition to the cap exemption for aliens with U.S. earned master’s degrees discussed above, certain H-1B petitions are exempt from the cap. Those petitions are not affected by this release.

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. The DOL’s Wage and Hour Division safeguards the treatment and compensation of H-1B workers.

PROPOSED LEGISLATION

During the weeks preceding and following the first day of H-1B filing, members of Congress introduced three bills aimed at reforming U.S. visa programs for highly skilled foreign workers or providing temporary relief from the H-1B cap.

SKIL Act (S. 1083/H.R. 1930)

On 4/10/07, Senator John Cornyn (R-TX) introduced the Securing Knowledge, Innovation and Leadership (SKIL) Act of 2007 (S. 1083). Representative John Shadegg (R-AZ) introduced an identical bill (H.R. 1930) in the House on 4/18/07. The SKIL Act proposes reforms to address the restrictive H-1B visa cap and alleviate the employment-based green card backlogs. Original cosponsors of the Senate bill include Senators Allard (R-CO), Bennett (R-UT), Hutchison (R-TX), and Lott (R-MS).

High-Tech Worker Relief Act (S. 1092)

On 4/11/07, Senator Chuck Hagel (R-NE) introduced the High-Tech Worker Relief Act (S. 1092). Unlike the broader provisions of the SKIL Act, this bill focuses more narrowly on providing temporary relief from the H-1B cap.

H-1B and L-1 Visa Fraud and Abuse Prevention Act (S. 1035)

On 3/29/07, Senator Richard Durbin (D-IL) introduced the H-1B and L-1 Visa Fraud and Abuse Prevention Act (S. 1035). In contrast to the above bills, S. 1035 would create new restrictions and requirements for the H-1B and L-1 visa programs. AILA opposes this bill.

TEMPORARY PROTECTED STATUS EXTENDED FOR ELIGIBLE HONDURANS, NICARAGUANS AND SALVADORANS

DHS Secretary Michael Chertoff announced on May 2, 2007 his decision to extend Temporary Protected Status (TPS) designations for eligible nationals of Honduras, Nicaragua and El Salvador by an additional 18 months. It will allow current TPS beneficiaries from these three countries to extend their status and continue living and working in the United States for an additional 18 months, and will affect approximately 78,000 Hondurans, 4,000 Nicaraguans, and 230,000 Salvadorans.

The extension is part of the Administration’s ongoing assistance to Honduras, Nicaragua and El Salvador in recovering from natural disasters that have affected Central America. Current TPS designations for Hondurans and Nicaraguans expire on July 5, 2007. The current TPS designation for El Savadorans expires on September 9, 2007. In accordance with a schedule to be announced in forthcoming Federal Register notices, U.S. Citizenship and Immigration Services (USCIS) will begin processing TPS re-registration applications for eligible Hondurans and Nicaraguans first. USCIS will make an announcement later this summer on the TPS re-registration process for Salvadorans. All TPS beneficiaries have registered with the department and have been provided with biometric and secure identification cards.

“Although Honduras, Nicaragua, and El Salvador have made significant progress in their recovery and rebuilding efforts, each country continues to face social and economic challenges in their efforts to restore their nations to normalcy,” said USCIS Director Emilio Gonzalez. “This 18 month extension reflects the United States’ commitment to continue assisting our Central American neighbors on their road to recovery.” Filing periods for these three designations have not yet begun. Applications received prior to or after the announced registration period for each designation will be rejected .

Details on where, when and how to file under each designation will soon be published in the Federal Register and additional information will be provided online at: www.uscis.gov. You may also call the USCIS National Customer Service Center at 1-800-375-5283.

Portions of this Newsletter have been
Reprinted with permission from AILA
Copyright © 2007, 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. 440 @ asiliato@meyner.com Website: www.meyner.com