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E&M
Visa Update for April 22, 2005 Senate Votes To Ease H-2B Temporary Worker Cap & End Immigrant Visa Backlog for Registered Nurses Failure to Legislate Recapture of Lost Immigrant Visas Will Imply a Bleak 2006 CIS Begins Segregating Advanced Degree H-1Bs for FY 05 Approval PERM On-Line Labor Cert Process Has Yet To Return An Approval; New FAQs Nonimmigrant Waivers of Inadmissibility Centralized Stateside by CBP Exit Control Rollout Continues at Atlanta and Philadelphia International Airports Passports To Be Required of Canadians and Americans
Entering the U.S.
A Supplemental Appropriations Bill was passed by the Senate on Tuesday, April 19th, including key provisions designed to ease the 66,000 annual cap on H-2B temporary & seasonal workers, and to recapture lost immigrant visa numbers - with a 50% set-aside for RNs. The Immigration Service's inability to approve sufficient immigrant visa petitions over the past 5 years, coupled with dramatic catch-up action this year, has led to major backlogs for 3rd Preference Employment-Based workers [EB-3] from those countries supplying the greatest numbers: India, China & the Philippines. As a result, the flow of international nurses from these three countries has been at a standstill for the past four months. If the legislative language survives in House / Senate conference and becomes law, the supply of these essential workers will begin to flow again this summer. Failure to Legislate Recapture of Lost Immigrant Visas Will Imply a Bleak 2006 The Department of State [DOS] has been judiciously managing the 247,000 Immigrant Visas available for the Employment-Based categories in the current Fiscal Year 2005. The Priority Date cut-off for India, China & the Philippines has been set at June 1, 2002 for the upcoming month of May 2005. Little forward movement is expected for the remainder of this Fiscal Year, which ends on September 30, 2005. “Oversubscription” of the higher EB-2 Advanced Degree worker category is anticipated in FY 06 for natives of India and China. DOS even warns of the possibility of the EB-1 category [Extraordinary Ability; Outstanding Researchers; Multinational Executives] becoming backlogged for these two countries. The “Other Workers” category [requiring less than two years of training or education] will “retrogress” [requiring even earlier Priority Dates] and perhaps become unavailable.
Six weeks after the March 8th date set by Congress for release of an additional 20,000 new H-1B numbers for the current Fiscal Year 2005, Citizenship & Immigration Services [CIS] has begun segregating visa petitions filed on behalf of new workers with U.S. advanced degrees. While no implementing regulations have been published, it appears that CIS has resolved its dispute with federal legislators in favor of limiting the new batch of visas, and not making the additional 20,000 visas more broadly available. Qualified filers seeking to obtain one of these H-1B visas for FY 05 at this time must set the employment start date on Form I-129 as “1 Oct 05” in order to insure acceptance by CIS. However, the underlying DOL Labor Condition Application must be approved for a current date to insure FY 05 approvability. CIS will segregate clearly marked petitions requesting an alternative FY 05 employment start date, and approve the FY 05 date once regulations are published. Employers seeking to hire H-1B temporary professionals who do NOT
hold an advanced U.S. degree may file immediately for an October
1, 2005 start date. FY 06 availability will include the base quota
of 65,000, plus another 20,000 for U.S. advanced degree holders.
The Department of Labor’s [DOL] re-tooled process for demonstrating a shortage of American workers – “PERM” – was launched on March 28, 2005. To date, there have been no reported new-style Labor Certifications, but lots of denials and “incompletes.” Many employers have been unable to file a PERM Labor Cert due to the inability to obtain the required Prevailing Wage Determination from overwhelmed State Workforce Agencies [SWA]. Some states have been slow to develop their Job Order system, another required precursor. The on-line software contains numerous bugs, and it is hard to save and edit drafts. DOL has recently released a FAQ addressing [among other issues]:
impact on Labor Certs filed before PERM; requirement that ONLY employers
may create PERM registrations; use of in-house media and multiple
web advertising channels; 180 – 30 day time frame for advertising
before filing: http://www.ows.doleta.gov/foreign/pdf/perm_faqs_4-6-05.pdf Nonimmigrant Waivers of Inadmissibility Centralized Stateside by CBP Section 212(d)(3) of the Immigration & Nationality Act gives broad discretion to the government to waive grounds of inadmissibility. Applicants for nonimmigrant visas who are found inadmissible by Consular Officers of the Department of State may still have a visa issued if the Officer recommends a waiver and Customs & Border Protection (CBP) grants it. Previously a function of offices of the Immigration & Naturalization Service (INS) outside the United States, in the aftermath of the INS break-up, the successor agency CBP has decided to centralize this function Stateside. Queries are unlikely to be answered during the next 60 days. Exit Control Rollout Continues at Atlanta and Philadelphia International Airports US-Visit entry control procedures that involve the fingerprinting and photographing of arriving aliens are already in place at 115 international airports, 15 seaports, and at Secondary Inspection at the 50 busiest land Ports of Entry. Those who manage to get through Primary Inspection at land borders avoid the biometrics. Lack of hard data on departing aliens, however, continues to constrain U.S. security efforts. Traditionally, everyone has been free to leave the U.S. without documentation or challenge, unlike procedures in place at most other countries in the world. The addition of Atlanta and Philadelphia bring to ten the list of U.S. international airports experimenting with departure control, now including: Baltimore/Washington, Chicago O’Hare, Denver, Dallas/Fort Worth, Newark, San Juan, San Francisco and Detroit. Because of the enormous cost involved in retrofitting U.S. airports for international exit control - coupled with the inevitable hassle and delay - the travel industry vigorously opposed departure control in the pre-9/11 environment. The old system involves voluntary surrender of the I-94 Arrival / Departure card to airline personnel at check-in. Inspectors have found that interrogation of arriving passengers, close inspection of their passports, and search of their baggage are more fruitful sources of departure information than consulting their own woefully inadequate Non Immigrant Information System [NIIS]. But even after 9/11, imposition of security-critical departure control has proceeded gingerly. The current exit control pilot program involves two levels of security:
universal check-out via an unmanned kiosk, followed by selected,
supervised verification just before boarding at the gate. The kiosk
reads the travel document and takes index fingerprints and a photograph,
producing a check-out receipt. Departure gate verification requires
presentation of the receipt to an attendant, who verifies identity
via a single fingerprint, then permits or denies boarding.
Another major loophole in U.S. security efforts is the ability of Canadians and Americans to enter the U.S. without passports. Over one million individuals enter the U.S. daily. Those claiming to be citizens of these two countries have traditionally flowed across the borders with Canada and Mexico by showing a drivers license, or in many cases, simply a birth certificate with no photograph. In order to tighten security, Congress has required that all such entering Canadians and Americans be required to present passports for admission by January 1, 2008. The Department of Homeland Security and the Department of State have announced a three-phase Western Hemisphere Travel Initiative. By the end of this year – December 31, 2005 – all travelers by air or sea from the Caribbean and Central and South America will be required to present their passports upon arrival. This requirement will be expanded to air and sea travel from Canada and Mexico by the end of 2006, encompassing the entire Western Hemisphere. The more difficult challenge of securing U.S. land borders with Canada and Mexico – which have the largest volume - will be completed in the final run-up to 2008. The Border Crossing Card currently issued to Mexicans will continue to be accepted. Along the southern border, a frequent-crosser card named SENTRI will be promoted to non-Mexicans. Along the northern border, a card named NEXUS has been launched. Commercial truck drivers along both borders will be encouraged to enroll in the FAST card program. All programs involve background checks and biometric identifiers. Approximately 60 million Americans currently hold U.S. passports,
with almost 9 million issued last year. New U.S. passports will
contain a 64 KB radio-frequency identification device [RFID] chip,
which will emit information about the holder – including a
digitized photograph - over short distances. Concerns have been
raised that the chips will act as homing devices for high-tech muggers,
identity thieves and even terrorists. The
Visa
Bulletin was updated on April 22, 2005 for May 2005 Elliot
& Mayock LLP E&M
Washington Office E&M
San Francisco Office
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© 2005 Elliot & Mayock LLP