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E&M Visa Update for December 21, 2005
Volume Five, Number Four, published by Elliot & Mayock LLP
H-1B Relief Dies In Congress; Other Non-Immigrant Visas Must Fill The Gap
H-2B Cap Reached For 1st Half of Fiscal Year 2006; April '06 Start Dates OK
Negligible Immigrant Visa Priority Date Movement for January 2006
E&M Evangelizes New E-3 Temporary Professional Visa for Australians
Mike Hoops Joins E&M SF; Mayock Featured in San Francisco Attorney
To subscribe
H-1B Relief Dies In Congress; Other Non-Immigrant Visas Must Fill The Gap
Hope for
relief from the lack of H-1B visa numbers for Fiscal Year 2006 [1 Oct 05
– 30 Sep 06] died this week when language adding another 30,000 visa
numbers was stripped from pending legislation. Proponents of more H-1B visas beyond the 65,000 annual limit
[reached on August 11, 2005] have vowed to renew efforts when Congress
reconvenes in 2006. H-1B visas are
restricted to those "specialty occupations" which require a 4-year Bachelors
degree [or its equivalent].
In the
run-up to the next fiscal year [FY07], employers will have to rely upon other
non-immigrant visa categories [J-1 Practical Trainee; O-1 Outstanding
Individual; H-2B Shortage Worker] to fill the gap between now and October 1,
2006. Petitions for new H-1B
workers for FY07 may be filed starting April 1, 2006, but employment may not
begin until October 1, 2006.
There are
still visa numbers immediately available for new H-1B workers who hold advanced
degrees from U.S. universities, but these numbers are expected to run out
momentarily. Universities
themselves, government entities, and certain non-profit organizations are
exempt from the cap. Holders of
passports from Chile, Singapore and Australia also enjoy separate visa quotas,
which are still available. Those
already in H-1B status may change employers or extend status without regard to
the cap.
Draconian
immigration enforcement legislation passed by the House [H.R. 4337] is unlikely
to become law in its current form, but will play a part in the ongoing
immigration reform debate, which may lead to a "guest worker" program next
year.
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H-2B Cap Reached For 1st Half of Fiscal Year 2006; April '06 Start Dates OK
The H-2B
visa category is for temporary workers in shortage occupations that are
seasonal, peak-load, intermittent, or one-time events. U.S. Citizenship and Immigration
Services (CIS) announced December 16, 2005 that it had received a sufficient
number of petitions to reach the congressionally mandated H-2B cap for the
first six months of FY06. CIS will
now accept only those petitions with start dates on or after April 1, 2006.
Petitions
for H-2B workers currently in the U.S. do not count towards the congressionally
mandated bi-annual H-2B cap. "Returning workers" (those counted against the H-2B numerical cap
between October 1, 2002 and September 30, 2005) are also exempt from H-2B cap
limitations.
USCIS
will continue to process petitions filed in order to:
• Extend
the stay of a current H-2B worker in the United States;
• Change
the terms of employment for current H-2B workers and extend their stay;
• Allow
current H-2B workers to change or add employers and extend their stay; or
• Request
eligible H-2B "returning workers."
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Negligible Immigrant Visa Priority Date Movement for January 2006
Many of
the Employment preference cut-off dates for immigrant visas advanced for the
month of December, but there was little movement for January 2006. Due to
legislation in the spring of 2006 – "recapturing" 50,000 additional visa
numbers – there are plenty of immigrant visas available for "Schedule A
Workers," including Registered Nurses and Physical Therapists.
"Other
Workers" – those with limited skills – are backlogged for all
countries to April 1, 2001. This
is the same priority date cut-off for 3rd Preference Skilled
Workers, with the exception of those born in Mexico [March 1, 2001] and India
[June 1, 1999]. Heavy demand in
the 1st and 2nd Preference Categories by natives of India
and China has also closed these categories to current immigration. Read the latest State Department Visa Bulletin.
The
backlog reduction efforts of both CIS and the Department of Labor continue to
result in very heavy demand for Employment-based numbers. Monthly changes in
visa number availability are based on the demand from CIS for adjustment of
status cases, and consideration for CIS's processing and staffing.
Applicant demand for numbers increases whenever there are rapid advances in the
cut-off dates. This causes cut-off date movement to be sporadic, and such
movement often slows or stops later in the fiscal year. At this time, it
is not possible to predict the rate of movement in future months.
The Visa
Office of the Department of State subdivides the annual preference and foreign
state limitations into twelve monthly allotments. The totals of "documentarily
qualified applicants" that have been reported are compared each month with the
numbers available for the next regular allotment. Then numbers are allocated to reported applicants in order
of their priority dates, with the oldest dates first. Those individuals who are in a category subject to a cut-off
date must wait until their priority date is "current" before they may complete
an immigration process already underway, or file for Adjustment of Status in
the U.S.
U.S. law
sets an annual minimum Family-sponsored preference limit of 226,000, while the
worldwide annual level for Employment-based preference immigrants is at least
140,000. Visa issuances to any
single country may not exceed 7%. This limitation is not a quota to which any
particular country is entitled, however. The per-country limitation serves to
avoid monopolization of virtually all the visa numbers by applicants from only
a few countries.
The
American Competitiveness in the Twenty-First Century Act (AC21) recaptured a
"pool" of 131,000 Employment numbers unused in fiscal years 1999 and 2000. In recent years, the application AC21
has allowed countries such as China, India, and the Philippines to utilize
large amounts of these recaptured employment numbers, which would have
otherwise gone unused.
During
FY06, the AC21 provisions are not expected to apply, and the annual worldwide
Employment limit is expected to be 152,000. The Employment per-country limit
for FY-2006 will be approximately 10,650. Indian nationals are particularly hard hit, since during FY05, Indians
used approximately 47,175 Employment numbers.
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E&M Evangelizes New E-3 Temporary Professional Visa for Australians
On
September 14, 2005, the US consulates in Australia went "live" with the new
"E-3" non-immigrant visa category for Australian citizens. In response to queries on both sides of
the Pacific, E&M offered well-attended seminars in San Francisco, Sydney
& Brisbane, Australia, and Auckland, New Zealand in November. Those Australians who mistakenly
believed that issuance of the visa could precede an offer of US employment
learned that this is an employer-specific visa category requiring a firm job
offer from a US company.
The E-3
visa is modeled upon the H-1B Temporary Professional worker category for
"specialty occupations," but with few of the H-1B's disabilities. E-3 applications are being handled by
the U.S. Department of State [DOS] at its consulates in Sydney, Melbourne and
Perth -- avoiding CIS entirely, with its backlogs and expensive filing
fees. Total savings per worker
using E-3 instead of H-1B may exceed US$3,000. Spouses [but not "De Factos"] are eligible for an "open
market" work authorization. Australians have their own generous quota of 10,500 new visas each
fiscal year [less than 800 new H-1Bs were used by Aussies last year]. The normal limit of 6 years in H-1B
status for any given professional does not apply to Australian E-3 workers, who
receive a two-year visa, and two years of status at each entry.
Eligibility
for E-3 status requires that a Labor Condition Application (DOL form ETA 9035)
be filed with and approved by the U.S. Department of Labor before an E-3
application can be made. All of
the protections for American workers that have been built into the ETA 9035
process are carried over into the E-3 category. The regulations require the U.S. employer to ascertain and
pay the higher of the prevailing and actual wage rate; post at the job site,
and retain a Public Access File for inspection.
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Mike Hoops Joins E&M SF; Mayock Featured in San Francisco Attorney
Michael Hoops, Esq. has joined the San Francisco office of Elliot
& Mayock, LLP. Mr. Hoops was
most recently with Dinsmore & Shohl LLP, to which he moved after 2 years
with Frost Brown Todd LLC, both located in Cincinnati, Ohio. An expert in Outstanding Researcher and
Multinational Manager petitions, Mr. Hoops is a 1992 graduate of Boston
University. He received his J.D. from Hofstra University, NY in 1996.
Former E&M SF attorney Christine O'Connell accompanied her
husband to medical school in Minneapolis, while Donald Smith is pursuing his
career as a screenwriter in Hollywood. Angela Mapa has joined another Bay Area immigration law firm. E&M wishes them all the best in
their next endeavors!
San Francisco Managing Partner James Mayock was the subject of a
profile in the quarterly magazine of the Bar Association of San Francisco, "San
Francisco Attorney." Read the article.
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The
Visa
Bulletin was updated on December 8, 2005 for January 2006
Thank you for taking the time to read this E&M Visa Update.
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Elliot
& Mayock LLP
Immigration Attorneys
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E&M
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Tel: (202) 429-1725
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Tel: (415) 765-5111
Fax: (415) 765-5122
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