E&M Visa Update for November 23, 2004

DHS Breaks America’s Promise to Former Marcos Entourage Nanny

Congress Adds 20,000 H1B Visas for US Post-graduate Degree Holders

J-1 Physician Waiver Program Expanded for Underserved Areas

One-Third of H-2B Temporary Worker Quota for FY05 Has Been Allocated

File Labor Certification Applications before PERM; File Adjustments ASAP; Backlog Reduction Impact

CIS Filing Initiatives Continue: Direct Mail of Forms 485 / 765 / 131

ICE deports record 157,000 aliens in Fiscal Year 2004

Bush Guest-worker / Amnesty Proposal Revived

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DHS Breaks America’s Promise to Former Marcos Entourage Nanny

Very few immigrants have come to our shores on U.S. military aircraft at the request of the President of the United States. Our client Teresita Huppanda is one such person.

On February 26, 1986, “Miss Tess” was a nanny for a member of the "Marcos Entourage." Led by the ailing President Marcos, the group was airlifted out of the Philippines to ensure a peaceful transition to renewed democracy in our key Asian ally. The US government promised that Miss Tess would be able to renew her parole status "indefinitely." Now she is on the doorstep of deportation, with her removal scheduled by the Immigration & Customs Enforcement [ICE] branch of the Department of Homeland Security [DHS] for December 6, 2004.

We have been fighting a battle with the US government to keep Miss Tess here for over 10 years. Recently, the struggle has gotten intense, as agents of ICE arrested Tess and incarcerated her in Yuba County Jail. Last month, we filed a Petition for a Writ of Habeas Corpus in Federal District Court in San Francisco to obtain her release and prevent her deportation. She is back at work now, but the struggle will continue in both the District Court and the 9th Circuit Court of Appeals.

Miss Tess is a 56-year old single and childless tax-paying homeowner who has worked throughout her 18 years in America. Her parents are dead, and she has nothing and no one to return to in the Philippines. She is unemployable and will have no health coverage in the Philippines. If deported, she will lose her Social Security contributions, the equity in her home, and the health insurance that she enjoys as a cashier at Wal-Mart.

Miss Tess has exhausted her resources in this effort to hold the US government to its promise. We urge you to visit www.SaveMissTess.com to read formerly classified documents from the National Security Council -- and to make a contribution to her cause. Time is of the essence, since we have less than three weeks to win freedom for Tess.

Thanksgiving is a time to count our blessings. Please help Miss Tess enjoy the promise of America.

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Congress Adds 20,000 H1B Visas for US Post-graduate Degree Holders

The $388 billion Omnibus Spending Bill, passed by Congress on Saturday, November 20th, contains mixed relief for US employers. 20,000 additional H-1B visa numbers have been added to the annual cap of 65,000 for foreign professionals who hold a Masters degree or higher from a US university.

However, the $1,000 per petition Employer Fee that sunset on September 30, 2003 has been permanently revived and increased to $1,500 for petitioners who employ 26 or more workers in the US. Those petitioners who employ 25 or less workers in the US will pay $750 per H-1B petition. On top of this fee is a one-time per worker, initial petition “Fraud Fee” of $500. The “Employer Fee” is payable for new petitions upon enactment [expected to be soon after December 6, 2004], while the “Fraud Fee” will be imposed only on petitions filed 90 days after enactment.

The legislation also revives Department of Labor investigative authorities and “H-1B dependency” calculations. Employers must pay 100% [instead of 95%] of the “prevailing wage,” although the current two-tiered prevailing wage level system is expanded to four levels.

The limit for FY05 [Oct 1, 2004 – Sept 30, 2005] was reached on October 1, 2004. In 2000, the government had raised the cap to 195,000, but that temporary expansion “sunset” on September 30, 2003. The bill was sponsored by Senator Saxby Chambliss (R- GA), chair of the Senate Immigration Subcommittee and Representative Lamar Smith (R-TX), who is on the House Immigration Policy Subcommittee.

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J-1 Physician Waiver Program Expanded for Underserved Areas

The Conrad 30/J-1 Physician Waiver program goes to President Bush for signature following House approval. The program allows each state to sponsor up to 30 foreign-born physicians annually. The doctors work for three years in hard-to-staff, underserved areas under the H-1B temporary professional visa category. By making this commitment, the doctors obtain a waiver of the requirement that they return to their native country for two years. The legislation provides that these physicians will be exempt from the H-1B numerical limit and may now work in specialty medicine, in addition to primary care. Moreover, Federal agencies other than the Veterans Administration may now sponsor such physicians, and each state has the flexibility to use five waivers for jobs located outside underserved areas, but serving people living in shortage areas.

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One-Third of H-2B Temporary Worker Quota for FY05 Has Been Allocated


As of November 1, 2004, U.S. Citizenship and Immigration Services (CIS) has received H-2B petitions for 33,153 beneficiaries counting against the statutory visa cap of 66,000 for fiscal year 2005 (October 1, 2004 through September 30, 2005). The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment the existing labor force with temporary workers. Typically, H-2B workers fill labor needs in occupational areas such as education, construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.

CIS needs to approve approximately 100,000 beneficiaries to fully utilize the 66,000 H-2B visa cap during a fiscal year. On March 9, 2004, USCIS stopped accepting H-2B petitions that counted against the fiscal year 2004 statutory cap. USCIS anticipates imposing a similar cut-off during fiscal year 2005.

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File Labor Certification Applications before PERM; File Adjustments ASAP; Backlog Reduction Impact

DOL is now considering the move of the next set of Labor Certification cases to the Backlog Reduction Centers, starting with some cases from the processing centers in Atlanta and Chicago. DOL will be issuing written guidance to the states to advise them of the first-in-first-out (FIFO) policy -- taking the oldest cases first and providing instructions on processing procedures.

The potential initiation of the long awaited and much-delayed PERM program for labor certifications suggests that employers should file their labor certifications immediately under the current system. Cases filed after January 1, 2005 will be date-stamped and held indefinitely until the DOL issues instructions to the state work-force agency [SWA] to forward these cases to one of the two new national processing centers. Serious delays are expected. Once PERM comes into effect, the current system – which permits precise specification of needed skills – will be dropped. Employers may have difficulty under PERM in listing key skills required, making it tougher to demonstrate a shortage of American workers. It remains unclear exactly when the PERM regulations will be finalized. However, the PERM program will be implemented 60 days after the regulations are published.

Galloping backlog reduction by CIS [400,000 applications were processed between April and June of 2004] has resulted in large numbers of employment-based immigrant visa petition approvals. Those who already enjoy an approved labor certification should immediately file the immigrant visa petition [I-140] and adjustment of status [I-485].

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CIS Filing Initiatives Continue: Direct Mail of Forms 485 / 765 / 131

Citizenship and Immigration Services (CIS) is expanding its Direct Mail Program. Certain non-business/employment-related filings of Forms I-485 [Adjust Status], I-765 [Employment Authorization], and I-131 [Advance Parole Travel Document], previously filed at several locations nation-wide, must be filed at the following lockbox facility for initial processing:

U. S. Citizenship and Immigration Services
P.O. Box 805887, Chicago, IL 60680-4120 [United States Postal Service
(USPS)] OR
427 S. LaSalle--3rd Floor, Chicago, IL 60605-1098 [Private couriers].

December 1, 2004 is the start date for filers residing in all states EXCEPT: AK, CA, ID, IA, KS, MD, MO, MT, NE, NM, OK, OR, TX & WA. Phase Two will begin for residents of the remaining states previously listed on April 1, 2005.

Adjustment and Advance Parole application types covered by this new Direct Mail initiative include:

immediate relatives of a U.S. citizen, based upon an approved, concurrently filed, or pending Form I-130, Petition for Alien Relative;

winners of the Diversity Visa lottery;

qualifying relatives of a U.S. citizen or lawful permanent resident alien subject to quotas, based on an approved Form I-130; and their derivative relatives;

fiancés of U.S. citizens or the minor child of such fiancé, based on an approved Form I-129F, Petition for Alien Fiancé;

widows/widowers of a U.S. citizen;

beneficiaries of an approved Form I-360 as a battered spouse or child;

special immigrants under sections 101(a)(27)(J), (K), and (I) of the Act;

Amerasians under section 204(f) of the Act;

beneficiaries of Private Bills;

certain former Soviet and Southeast Asian parolees under the “Lautenberg Amendment;”

and those eligible: for registry under section 249 of the Act; under the Cuban Adjustment Act of November 2, 1965; under section 646 of IIRIRA; under section 13 of the Act of September 11, 1957; and for creation of record under section 102 of the Act.

Employment authorization types covered by Direct Mail include:

(a)(10) -- Withholding of Removal grantees
(c)(9)  -- family-based applicants for adjustment of status (Form I-485)
(c)(10) -- Suspension of Deportation grantees
(c)(11) -- parolees into the United States
(c)(14) -- deferred action grantees
(c)(16) -- section 249 filers for creation of record of lawful admission
(c)(18) -- Order of Supervision grantees

For the first thirty days of each of the two phases of Direct Mail, applications mis-filed at a district or service center office will be forwarded to the Chicago lockbox. After 30 days, mis-filed applications will be returned to the filer with proper filing instructions. An application will only be considered properly filed when it reaches the Chicago lockbox!

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ICE deports record 157,000 aliens in Fiscal Year 2004

A record 157,000 aliens were removed from the United States during the past fiscal year ending September 30, 2004. About half of those deported had criminal convictions. Much of the increase came from targeting fugitives who failed to report for removal after receiving an order of deportation. The vast majority of deportees, 71 percent, were returned to Mexico, with Honduras, Guatemala, El Salvador and Brazil rounding out the top five countries. The United States is home to approximately 10 million undocumented people, of which perhaps 4 million are Mexicans. At the current removal rate, it would take 50 years to remove all 10 million people. A little over 1 million people immigrate legally to the United States annually. Annual illegal immigration far exceeds the 157,000 removed this past year.

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Bush Guest-worker / Amnesty Proposal Revived

Following his re-election, President Bush immediately revived discussion of a “guest-worker” program with members of Congress and Mexico. Bush has met recently with Arizona Republican Sen. John McCain, who is sponsoring a bill, along with Reps. Jim Kolbe and Jeff Flake, both Arizona Republicans, that would go further than the president's principles by explicitly allowing those now here illegally to enter a guest-worker program and eventually apply for permanent residence. Secretary of State Colin L. Powell told a meeting of the U.S.-Mexico Binational Commission that "The president remains committed to comprehensive immigration reform as a high priority in his second term.”

Although the president first proposed relaxing immigration shortly after taking office, he mothballed the idea after September 11, 2001, and downplayed it on the campaign trail. Mr. Bush has not sent immigration legislation to Congress, although members of the House and Senate have introduced seven bills. Rep. Tom Tancredo, Colorado Republican and chairman of the Congressional Immigration Reform Caucus, remains bitterly opposed to any proposal that smacks of “amnesty.” Congressional action on this critical agenda item is expected in 2005.

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The Visa Bulletin was updated on November 23, 2004 for December 2004

Thank you for taking the time to read this E&M Visa Update.

Elliot & Mayock LLP
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