E&M Visa Update for December 15, 2004

Volume Four, Number Seven, published by Elliot & Mayock LLP

Immigration of Workers from India, China & Philippines Delayed

District Court Stays Deportation of Miss Tess; Trial Set for June

New Fees for H-1B & L-1 Categories Begin to Take Effect

Intelligence Reform Passes After Immigration Provisions Axed

CIS Shortens Additional Evidence Time and Raises Appeal Fees

Thomas Ragland, Formerly with BIA and OIL, Joins E&M DC

USCIS Announces Number of H-2B Petitions Received in FY 2005

January 2005 Visa Bulletin

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Immigration of Workers from India, China & Philippines Delayed

The U.S. Department of State has published a cut-off date of January 1, 2002 for certain immigrating workers born in India, China and the Philippines. Only those workers who initiated their immigration process before that date will be able to continue to pursue their "green cards" in an uninterrupted fashion. All others must await movement of the "priority date" before they can obtain an immigrant visa at a U.S. Embassy abroad, or file an application for Adjustment of Status in the U.S. Nurses and their dependents from these three countries who are present in the U.S. and eligible for adjustment of status should file for adjustment before the end of 2004.

Galloping backlog reduction by the Citizenship & Immigration Service over the past six months has required the State Department to closely monitor immigrant visa allocations for the remaining three quarters of Fiscal Year 2005. 140,000 employment-based immigrant visas are available annually worldwide to sponsored workers and their dependents. Individual countries are generally limited to approximately 10,000 such visas each year. However, CIS inefficiency - coupled with certain "spill-over" provisions - permitted the top three countries to far exceed their quotas. Almost 43,000 workers and their families immigrated from India in FY02. China sent over 20,000 and the Philippines over 12,000 in that same year.

Tips for avoiding the quota: Citizens of India, China and the Philippines who were not BORN in one of the three countries may be charged to the country of birth, and avoid the quota backlog. Those born in one of the three countries, but married to a spouse born elsewhere, may also escape the quota.

Later in FY05 there is likely to be movement, but significant progress may have to await the availability of another 140,000 new immigrant visas on October 1, 2005. In the interim, expect a push for legislation to recapture the 130,000 numbers "lost" by CIS over the past four years.

Nurses are particularly hard-hit by this development, since most others seeking to immigrate have older "priority dates” established long ago by the filing of a "labor certification." Those pursuing labor certifications are usually working in the U.S. under a non-immigrant visa such as the H-1B. By contrast, most RNs [other than Canadian TNs] are stuck outside the U.S. waiting for the immigration process to be completed before they can get to the bedside. From 1952 until the H-1A program "sunset" in 1995, hospitals could bring RNs under the H visa category. Expect the introduction of legislation providing a reinvigorated non-immigrant option through which RNs, like other essential workers, may come quickly to the U.S.

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District Court Stays Deportation of Miss Tess; Trial Set for June

On November 30th, San Francisco Federal District Court Judge William Alsup granted a Stay of Removal to former "Marcos Entourage" nanny Teresita Huppanda. Miss Tess is a 56-year old single and childless tax-paying homeowner who has worked throughout her 18 years in America. She will finally have a chance to prove her claim that President Reagan promised her "safe haven" in America. The matter has been set for a trial on the merits on June 6, 2005. This big victory is the first positive development since Miss Tess was initially ordered to leave America in 1992! Visit www.SaveMissTess.com to read the Judge's order, plus formerly classified documents from the National Security Council -- and to make a contribution to her cause. Expensive discovery and pre-trial motions are about to begin.

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New Fees for H-1B & L-1 Categories Begin to Take Effect

President Bush signed the Omnibus Spending Bill on December 8, 2004, putting into effect increased filing fees for H-1B visa petitions. In addition to the base filing fee of $185, petitioners employing more than 25 full-time equivalent workers [including affiliates and subsidiaries] must now pay an additional $1,500 "training fee" with each petition. Employers of 25 or less workers pay half: $750 per petition. The extra "anti-fraud" fee of $500 per initial petition does not go into effect until March 8, 2005. When it does, most petitioners will pay $2,185 per worker in base filing fees alone.

Similarly, the additional 20,000 H-1B visas for those holding a master's degree or higher from a U.S. school do not become available until March 8, 2005. CIS is not yet accepting I-129 petitions for these visas.

The L-1 Intracompany Transferee visa category has also been impacted by the recent legislation. "Outsourcing" of L-1B "specialized knowledge" employees is prohibited, but only for workers covered by initial petitions, extensions or amendments filed on or after June 6, 2005. A $500 "anti-fraud" fee is also due from the employer each time a new L-1 worker is hired, in addition to the base filing fee of $185.

To obtain "Premium Processing" [maximum 15 day turn-around] from CIS for either H-1B or L-1 petitions, yet another $1,000 must be paid for each petition – in addition to all of the fees mentioned above.

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Intelligence Reform Passes After Immigration Provisions Axed


The fight over tough anti-immigrant provisions was part of the delay in enacting intelligence reform. President Bush promised renewed attention to the issues in the next session of Congress, in return for having them dropped from the bill which recently passed. The only immigration-related provision which survived is the near doubling of the Border Patrol by adding 10,000 more agents incrementally through 2010. Preventing "illegal aliens" from obtaining drivers licenses is only one of many controversial proposals expected to be debated early in 2005. President Bush's "guest worker" proposal is also likely to take shape.

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CIS Shortens Additional Evidence Time and Raises Appeal Fees

Petitioners for immigration benefits currently enjoy a fixed 12-week period within which to respond to increasingly onerous Requests For Evidence and Notices of Intent to Deny from CIS. In order to speed up the decision-making process, CIS has announced its plans to move to a "flexible" - meaning "shorter" - timeframe. This will put increased pressure on petitioners and their counsel to gather additional documentation quickly, jeopardizing the thoroughness of response and likelihood of success.

The fee for filing an Appeal or a Motion to Reopen or Reconsider a denied petition has been $110 since 1989. Effective in 2005, this fee will jump to $385, principally to fund the operations of the Administrative Appeals Office of CIS, which has a one-year backlog.

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Thomas Ragland, Formerly with BIA and OIL, Joins E&M DC

Thomas Ragland, Esq. has joined partner Tom Elliot and associate Fabienne Chatain in the Washington, DC office of Elliot & Mayock, LLP. Mr. Ragland was most recently with the Office of Immigration Litigation of the U.S. Department of Justice, to which he moved in 2003 after eight years with the Board of Immigration Appeals. A superb writer and superior researcher, Mr. Ragland is a 1988 graduate of the University of Virginia. He received his J.D. from Boston College Law School in 1994, and is fluent in Burmese.

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USCIS Announces Number of H-2B Petitions Received in FY 2005

USCIS announced yesterday that it has received H-2B petitions for 61,747 beneficiaries counting against the annual cap of 66,000 for Fiscal Year (FY) 2005. FY 2005 funs from October 1, 2004 through September 30, 2005. The USCIS has determined that it needs to approve approximately 100,000 H-2B petitions in order to fully utilize the 66,000 annual cap, although the exact statistical formulation used to arrive at this figure is unknown. In FY 2004, the USCUUS stopped accepting cap-subject H-2B petitions on March 9, 2004.

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The Visa Bulletin was updated on December 14, 2004 for January 2005

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

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