PLG Immigration Newsflash
General Release Vol. 46 (April 26, 2005)
This message is from Pearl Law Group. With more than 30 people in four states dedicated to U.S. and overseas immigration matters, Pearl Law Group has been ranked the #1 Woman-Owned Law Firm in the Bay Area (S.F. Business Times, 2003-2004) and won a Cisco Systems Technology Award for ImmigrationTracker (the top software for case management, with full client access to case updates and reports). Pearl Law Group’s "energetic and creative approach" was recently profiled in The Moral Advantage: How to Succeed in Business by Doing the Right Thing (Stanford University, 2004).
Headlines (Details below)
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- H-1B Update — USCIS still has not provided official guidance on additional H-1B visas under the H and L Visa Reform Act.
- PERM Now in Effect, but Program Facing Many Difficulties — The PERM program for labor certification applications went into effect on March 28, 2005. Although Department of Labor has provided limited guidance, technical problems and legal issues remain unresolved.
- New Passport Initiative Announced — The initiative would require all citizens of the United States, Canada, Mexico and the British Overseas Territory of Bermuda to have a passport or other accepted secure document by January 1, 2008 to enter or re-enter the U.S.
- US-VISIT Update — US-VISIT is expanding exit procedures at ports of entry.
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H-1B Update
The U.S. Citizenship and Immigration Services (USCIS) still has not provided official or consistent guidance on additional H-1B visas under the H and L Visa Reform Act.
On December 8, 2004, the President signed legislation that included significant provisions reforming H-1B and L-1 visas. For further information about the H and L Visa Reform Act, see PLG NewsFlash Vol. 42. One of the positive provisions of that legislation was the addition of 20,000 H-1Bs annually for H-1B beneficiaries who have obtained a graduate degree from a U.S. university. That provision was scheduled to take effect March 8, 2005. USCIS subsequently caused confusion by stating that it would open the additional numbers for FY 2005 to any H-1B beneficiary (regardless of whether he or she holds a U.S.-earned graduate degree), insisting that Service Centers would not accept or process any petitions under the Reform Act until the Service released guidance for filing, and confessing that it had actually already approved approximately 10,000 extra H-1B petitions for FY 2005, as a result of continued tracking problems.
As of today, USCIS has still not provided any consistent guidance as to when we may file for one of the additional 20,000 H-1B visas, nor whether we will be permitted to file for individuals who do not have a graduate degree from a U.S. university. In some cases, it may be advisable to file an H-1B petition requesting an October 1 start date (under the FY 2006 provisions) "or earlier," if a FY 2005 number becomes available. In such cases, USCIS may approve the petition for an October 1 start date, thus reserving a FY 2006 number for the beneficiary. USCIS may later provide a way to convert that petition to a FY 2005 number, once guidance is published. The American Immigration Lawyers Association (AILA) and other groups report that some USCIS Service Centers are setting these FY 2006 cases aside for consideration when USCIS provides guidance for the 20,000 additional FY 2005 numbers, while other Service Centers are apparently approving FY 2005 cases with an immediate start date. If you have an H-1B petition affected by this situation, we recommend that you consult with immigration counsel about the best strategy for that specific case. PLG will continue to follow this situation and will provide updates as soon as possible.
PERM Now in Effect, but Program Facing Many Difficulties
The Department of Labor’s (DOL) PERM program for labor certification applications took effect on March 28, 2005. To date, there have been no reports of any cases being approved under the new system. AILA members have reported widespread problems with the new filing system, particularly the electronic filing process. The most notable problem is receipt of notices that applications have been "denied" or are "incomplete." DOL originally believed that many of the problems were caused by technical difficulties, but upon further review has determined that the cases were denied because of PERM’s strict rule-based system. Denials have resulted from issues such as prevailing wage determinations dated prior to March 8, 2005, State Workforce Agency (SWA) job orders that were open for fewer than 30 days, and applications submitted within 30 days of the end of the recruitment period.
AILA members have reported numerous "technical glitches," including:
- inability to save a draft of the form;
- inability to edit a draft form;
- receipt of an error message directing the user to enter only numbers in a field that requests the name of the user’s state and country;
- lack of options for entering an employee’s degree; and
- incorrect information auto-populated into fields.
Immigration attorneys nationwide have reported additional frustration with the process, such as:
- processing times for prevailing wage determinations continue to grow — the fastest SWAs are processing requests in two weeks while other states are taking months;
- placement of a job order through a state workforce agency is required under PERM; however, the job order systems in many states have yet to be fully developed; and
- numerous difficulties with the employer registration process.
As a reminder, PERM is now the only method for labor certification, which continues to require a showing that there are no U.S. workers who are qualified and available for the job opportunity and that employing the foreign national will not adversely affect the wages or working conditions of U.S. workers similarly employed. For further information about PERM, see PLG NewsFlash Vol. 39 and PLG NewsFlash Vol. 43.
Pearl Law Group will continue to track new information closely and will provide updates as we learn more.
New Passport Initiative Announced
U.S. Department of Homeland Security (DHS) and Department of State (DOS) officials announced new passport requirements to be implemented by January 1, 2008, as part of the Western Hemisphere Travel Initiative. The initiative would require all citizens of the United States, Canada, Mexico and the British Overseas Territory of Bermuda to have a passport or other accepted secure document by January 1, 2008 to enter or re-enter the U.S. The initiative is pursuant to provisions of the Intelligence Reform and Terrorism Prevention Act of 2004.
Currently, U.S. citizens and citizens of some other nations are not required to present a passport to enter or re-enter the United States when traveling within the western hemisphere. The initiative will likely be implemented in phases, with formal rules to be published after opportunity for public comment. According to Customs and Border Protection (CBP), the proposed timeline is as follows:
- December 31, 2005: Apply passport requirement to all travel to or from the Caribbean, Bermuda, Central and South America.
- December 31, 2006: Apply passport requirement to all air and sea travel to or from Mexico and Canada.
- December 31, 2007: Apply passport requirement to all air, sea and land border crossings.
PLG will continue to monitor implementation of the Western Hemisphere Travel Initiative and provide updates as they become available. For more information, see the CBP website at http://www.cbp.gov/xp/cgov/travel/vacation/kbyg/west_hem_init/ and the DOS website at http://www.state.gov/r/pa/prs/ps/2005/44228.htm.
US-VISIT UPDATE
DHS announced further expansion of the United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT) biometric exit pilot program. Ports of entry added to the program are Philadelphia International Airport, the Atlanta International Airport, and the Los Angeles, San Pedro and Long Beach Seaports; US-VISIT exit procedures are already operational at eight other airports and the Miami International Cruise Line Terminal.
US-VISIT is designed to be an integrated, automated entry-exit system that records the arrival and departure of foreign nationals, verifies their identities and authenticates their travel documents through comparison of biometric identifiers. For more information about US-VISIT, including lists of US-VISIT ports, please visit the CBP website at http://www.dhs.gov/dhspublic/interapp/content_multi_image/content_multi_image_0006.xml and see PLG NewsFlash Vol. 35.
Click on the following links to access current processing times of the USCIS Service Centers and the Department of Labor:
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This email does not constitute direct legal advice. This email is for informational purposes only. Information provided should never replace the need for involving informed counsel on your immigration issues.
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Copyright © 2005 Pearl Law Group. All rights reserved.
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