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E&M
Visa Update for May 13, 2005
Volume Five, Number Three, published
by Elliot & Mayock LLP
50,000
Unused EB-3 Immigrant Visas Recaptured For RNs; Backlogs To End
H-1B
Temporary Professional Visa Petitions For U.S. Advanced Degree Grads
Go To Vermont Service Center
Seasonal
& Temporary Worker Program Revitalized; More H-2B Visas Thru
Summer 2006
Australians
Get Attractive New "Pseudo H-1B" Temporary Professional Visa: "E-3"
REAL
ID Act Limits Driver’s License Availability & Tightens Asylum
Requirements
No
PERM Approvals [Yet], But More FAQs And a Manual >From DOL
To subscribe or unsubscribe
50,000 Unused EB-3 Immigrant Visas Recaptured
For RNs; Backlogs To End
The flow of international Registered Nurses from India, China and
the Philippines will soon resume in earnest. The Supplemental Appropriations
Bill provides for the recapture of 50,000 immigrant visas that had
gone unused over the past four years. These Employment-Based 3rd
Preference [EB-3] visas are reserved for future use by those immigrating
workers described in Schedule A: Registered Nurses, Physical Therapists,
and Performing Artists of Exceptional Ability. Nurses from the three
countries affected by recent priority date backlogs will be able
to obtain Immigrant Visas abroad or file for Adjustment of Status
in the United States, as soon as the Department of State [DOS] advises
of the availability of these immigrant visas – at the latest in
July of 2005. High demand in summer months for visas, coupled with
vacation time and personnel transfer at U.S. consular posts abroad,
are likely to affect the speed with which DOS can set RNs for interview.
Citizenship & Immigration Services [CIS] will be required to identify
those RN adjustment cases that have been set aside due to priority
date unavailability and approve them
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H-1B
Temporary Professional Visa Petitions For U.S. Advanced Degree Grads
Go To Vermont Service Center
After months of internal bickering over the implementation of the
issuance of an additional 20,000 H-1B Temporary Professional visas
for Fiscal Year 2005, the government has finally decided to issue
these visas ONLY to graduates of U.S. universities with advanced
degrees. A special handling procedure has been set up within the
Vermont Service Center [VSC] for the filing of these new applications.
Pending and approved applications from all four Regional Service
Centers on behalf of qualified U.S. degree holders may be “upgraded”
by filing additional documents at VSC.
Filings started on May 12, 2005, and the old petition form I-129
may be used [properly annotated], through May 30, 2005. A Labor
Condition Application for a current start date is critical. Premium
Processing [$1,000 extra for a decision within two weeks] may be
requested, but is not required. Those who do not get one of these
20,000 Fiscal Year 2005 [FY05] approvals will automatically be considered
for the FY06 pool, which is available for start dates on or after
October 1, 2005.
CIS has announced new rules to govern the processing of H-1B visas
whenever demand exceeds supply. In general, the existing " first-come,
first-served" rule will apply. However, when a cut-off is announced,
filings received on that day - and in some instances on the following
day - will be subject to random selection to fill the remaining
quota eligibility, not on a “first-come, first-served” basis. Whether
Premium Processing is requested or not will have no bearing on quota
availability
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Seasonal &Temporary Worker Program
Revitalized; More H-2B Visas Thru Summer 2006
A revitalized U.S. economy has led to increased demand for foreign
seasonal and temporary workers by employers who use the H-2B program.
Congress has addressed the shortage of available visas by temporarily
exempting "returning workers" from the annual cap of 66,000, which
was met in March of 2005. Within two weeks, CIS Service Centers
will again begin receiving I-129 petitions for jobs of less than
one year involving a demonstrated shortage of American workers.
For FY06 applications, the law adds an anti-fraud fee of $150 for
each H-2B petition. Sanctions - including fines of up to $10,000
- may now be imposed upon employers who fail to meet their obligations
or make willful misrepresentations.
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Australians
Get Attractive New "Pseudo H-1B" Temporary Professional Visa: “E-3”
In a special gift to Australian professionals, Congress has created
a new “E-3” non-immigrant visa category based upon the H-1B Temporary
Professional worker category, but with few of the H-1B’s disabilities.
E-3 applications will be handled by the U.S. Department of State
[DOS] at its consulates in Sydney and Melbourne -- avoiding CIS
entirely, with its backlogs and expensive filing fees [total savings
per worker may exceed US$3,000]. As with the holders of L Intra-Company
and E-1/E-2 Trader/Investor visas, spouses will be eligible for
an “open market” work authorization. Australians will not be subject
to the worldwide cap, but instead will have their own generous quota
of 10,500 new visas each fiscal year. The normal limit of 6 years
in H-1B status for any given professional will not apply to Australian
E-3 workers.
Eligibility for H-1B and E-3 status is quite simple: a) the job
must require a degreed professional; b) the job candidate must have
the appropriate degree (or its equivalent – including a combination
of education and work experience); and c) the employer must pay
the prevailing wage in the marketplace for that job. No showing
of shortage of American workers is required, but a Labor Condition
Application (LCA) must be filed with and approved by the U.S. Department
of Labor before an H-1B petition or E-3 application can be made.
No timelines for implementation are contained in the legislation.
However, since DOS already has experience with adjudicating H-1Bs
for Chile and Singapore, it should be able to initiate the new E-3
program in Australia within a matter of weeks.
Recent Congressional “carve-outs” of special visa categories and
quotas for specific countries are a great boon to the recipients.
Unfortunately, the lack of centralized decision-making injects further
complexity, inconsistency and inefficiency into a system that already
suffers greatly from these defects.
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REAL
ID Act Limits Driver’s License Availability & Tightens
Asylum Requirements
Congressional impatience with state efforts to control the availability
of driver’s licenses to non-citizens has resulted in the federal
mandates of the REAL ID Act. Applicants for licenses in those states
which already have a system in place to check immigration status
with the federal government know how poorly the current system works.
Expect further delay, confusion and denials across the country.
Many states may move to a two-tier system: one type of federally
accepted license for qualified drivers, another for everyone else.
The REAL ID Act sweeps away regulatory barriers to completing a
fence separating parts of Mexico from the United States. The new
law eliminates access to federal judges via habeas corpus review
for certain aliens in the removal process, broadens the definition
of those who may be barred from admission or removed from the U.S.
for association with terrorist organizations, and makes it harder
for asylum applicants to prove eligibility for refuge in the US.
Those who have achieved asylum will no longer have to wait for availability
of permanent residence under an annual quota.
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No
PERM Approvals [Yet], But More FAQs And a Manual From DOL
The Department of Labor continues to struggle with its launch of
the new PERM system for the filing and [hopefully, someday] approval
of Labor Certifications. A manual has been produced with instructions
on how to access and use the online PERM application form: http://www.plc.doleta.gov/onlinehelp.pdf
Clarification that the PERM regulations apply to only filings made
on or after March 28, 2005 are contained in a new FAQ, along with
guidance regarding the employer’s obligation to store back-up documentation
for five years: http://ows.doleta.gov/foreign/pdf/perm_faqs_5-4-05.pdf
Those preparing PERM applications at this time should be ready to
make adjustments in the recruitment process as more is revealed
and learned about the inner workings of PERM.
Further information about DOL efforts to beat down the pre-PERM
backlog of 300,000+ pending applications collected from offices
around the country is contained in another FAQ. Guidance on employer
name change, acquisitions and change of address is included. The
FAQ acknowledges maintenance of the two-track system for Traditional
Recruitment and Reduction in Recruitment, each with its own “First-in,
First-Out” [FIFO] process. Corrections, processing times, attorney
substitution/change of address are also mentioned: http://ows.doleta.gov/foreign/pdf/backlog_faqs_5-2-05.pdf
.
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The
Visa
Bulletin was updated on April 22, 2005 for May 2005
Thank you for taking the time to read this E&M Visa Update.
top
Elliot
& Mayock LLP
Immigration Attorneys
"visas made easier"
1-866-321-VISA (8472) toll free
http://www.emvisa.com
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