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Dept of State Opens Employment-Based Visa Categories for July 2007
Citizenship & Immigration Services Increases Filing Fees Dramatically, Effective July 30, 2007
Dept Of Labor Prohibits Alien Beneficiaries from Paying For the Labor Certification Process, Eliminates Substitutions, Establishes 180-day limit for filing an I-140 Immigrant Visa Petition, Effective July 16, 2007
Round Two of Senate Consideration of Comprehensive Immigration Reform Is About to Begin
Immigration & Customs Enforcement Seeks Absconders and Imposes Criminal Sanctions on Employers; Sealing the Border
In an effort to insure that all 140,000 employment-based immigrant visa numbers available annually are allocated during this Fiscal Year 2007, the Department of State [“DOS”] has announced via its Visa
Bulletin that almost all categories will become “current” and available for the month of July 2007. The only exception is the unavailable “Other Workers” category.
“Schedule A” Nurses and Physical Therapists present in the United States may file for Adjustment of Status, as may all those with approved Labor Certifications. Many Adjustment of Status cases pending with Citizenship & Immigration Services [“CIS”] and many Consular Processing cases awaiting Immigrant Visa issuance abroad may now be processed to completion until the quota is filled.
DOS had expected CIS to complete many more Adjustments by this point in the Fiscal Year [which ends September 30, 2007], but delays in obtaining background checks from the FBI have stalled CIS approvals. This forward movement in Priority Dates was unexpected, and has caused enormous anticipation and significant relief for those affected. Eligible individuals and their representatives have been scrambling to assemble the documentation necessary in order to take advantage of this opening. At this point, it is unclear how long the employment-based categories will remain “current,” perhaps for months.
The filing of an Adjustment of Status [“AOS”] application results in an “open market” work authorization – not only for the principal, but also for spouses. This will permit many who wish to work to enter the labor force as soon as an Employment Authorization Document [“EAD”] is issued – some 60 – 90 days after filing. The EAD remains valid, and can be renewed in one-year increments, even after the individual’s category “retrogresses” when DOS establishes earlier Priority Dates to curtail Immigrant Visa number usage. Such AOS filing also initiates the 180-day period leading to “Portability” – permitting the principal beneficiaries to leave their current employment and move to other “similarly situated” positions.
Natives of those countries sending significant numbers of skilled workers – including India, China and the Philippines – have endured lengthy backlogs, and will find this unusual opportunity to offer major advancement for their personal and professional futures.
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The filing fees charged by Citizenship & Immigration Services [“CIS”] will undergo significant increases, effective July 30, 2007 (chart).
The base filing fee for the most commonly used non-immigrant worker form – I-129 - will go from $190 to $320. On the employment immigration side, an I-140 Petition for Immigrant Worker will rise from $195 to $475.
On the family side, an I-130 Petition for Alien Relative will rise from $190 to $320, while a Fiancee petition will rise from $170 to $455. Removal of Conditions for recently married spousal immigrants will rise from $275 to $545.
Investors immigrating under the EB-5 “Million Dollar Green Card” program will pay a total of $3,410 - $480 for the I-526 Petition getting them into the program, and $2,930 to Remove Conditions [at the two-year check-up point]. These fees previously totaled only $955. Such Investors and their family members must also pay for either Adjustment of Status or Immigrant Visas.
Adjustment of Status [plus Advance Parole and Employment Authorization Document] for a single immigrant will rise from $675 to $1,010. Total costs for a family of four [including EAD for 2 spouses and AP for all four individuals] will rise from $2,340 to $3,220.
Naturalization fees for Permanent Residents to become US citizens will more than double from $330 to $675.
The only good news on the fee front is that Premium Processing [in order to obtain a response within 2 weeks – available for most non-immigrant and immigrant petitions] will remain at $1,000.
If you have been contemplating a filing with CIS, you should do so BEFORE July 30th, if possible.
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Extensive changes in the process by which U.S. employers demonstrate a shortage of American workers have been announced by the Department of Labor [“DOL”], effective Monday, July 16th. This Labor Certification process – now known as “PERM” – is the principal path that employers follow to obtain the long-term services of foreign workers. To obtain a Labor Certification for a specific foreign worker, an employer must demonstrate through a recruitment campaign that there is no minimally qualified American worker in the geographic area who is willing and able to be hired at the prevailing wage for that position.
The Labor Certification process is expensive and time-consuming. Up until now, foreign workers have often born the cost of the process, either outright or in return for a commitment to work for the sponsoring employer for a defined period of time. Payment of these fees and costs by the foreign worker or reimbursement of the employer by the worker is now prohibited, effective Monday, July 16th.
Before this upcoming change in regulations, a Labor Certification was valid indefinitely. In response to concerns about fraud, the DOL has now ended a long-standing practice which permitted the substitution of a new worker in the place of the original worker for whom the shortage was established. To avoid being overwhelmed by what may be a deluge of substitution Petitions, CIS has cut off Premium Processing for such I-140 petitions. Additionally, DOL now requires that the employer take the next step in the process of obtaining a Green Card – the filing of an I-140 Petition for Immigrant Worker – within 180 days of the Certification.
Foreign workers who seek to become beneficiaries of a Labor Certification and who must bear the costs themselves should make such payments before July 16th. Employers who wish to substitute a new foreign worker on an approved Labor Certification should file form I-140 Petition for Immigrant Worker before that date. I-140s for the beneficiaries of existing, approved Labor Certifications must be filed before Monday, January 14, 2008.
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On Tuesday, June 26th, the Senate voted 64 / 35 to allow continued debate on a negotiated list of 24 amendments, split evenly between the two parties.
Comprehensive Immigration Reform [“CIR”] has been an important agenda item for the Bush Administration since its inception, and may be its only positive legacy. Following the approval of radically different immigration reform bills by the House and Senate in the previous Congressional term, restrictionists in the Republican-controlled House began a series of public hearings in the summer of 2006 designed to torpedo reform, rather than nominating negotiators to confer with the Senate.
In the aftermath of the slow death of that reform effort, and in light of the change in control of both houses, the Bush Administration sought to obtain consensus among Republicans behind closed doors. Negotiators then worked with the new Democrat-controlled Senate to introduce S. 1348 - the “Grand Bargain” - directly on the Senate floor on May 21st, bypassing the normal committee process. After 3 weeks of debate, including “killer” amendments that were defeated and “positive” amendments that were accepted, a vote on “cloture” – to end debate and any further consideration of additional amendments – failed twice on Thursday June 7th. Senate Majority Leader Harry Reid then pulled the bill from the floor pending retooling.
The major sticking point in CIR revolves around how to deal with the estimated 12 million aliens who are already present in the country without authorization, and how to prevent such a situation from recurring. Held hostage to this “amnesty” and “guest worker” debate are less controversial issues such as additional immigrant visas for Registered Nurses, relief for young adults [DREAM Act], and greater access to skilled professionals [H-1B cap increase]. Those in favor of some form of “amnesty” appear willing to scrap the current immigration system – including the employer-sponsored, worker-specific process described above – in order to achieve their goals. The “merit-based” point system which is a centerpiece of the “Grand Bargain” would result in the immigration of a meritorious pool of self-selected individuals who may or may not meet U.S. workforce needs. Upcoming CIR amendments will seek to restore and expand our existing employer-sponsored system.
Should the Senate manage to pass a bill, the fight will move to the House, which has its own CIR process underway through the normal committee process. While CIR is likely to be declared “dead” repeatedly, there may be enough momentum to achieve a historic compromise before the fall election cycle begins.
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After years of declining arrests and the virtual disappearance of employer sanctions investigations, the Bush Administration has ramped up enforcement efforts across the country. A strategic plan called “Endgame” was launched in June of 2003, designed to remove all removable aliens by 2012. Congress has appropriated $205 million dollars to fund these efforts.
“Catch and release” policies at the border have been abandoned as part of the Secure Border Initiative, announced in November of 2005. The Interior Enforcement Strategy was unveiled in April of 2006, targeting criminal aliens, absconders, and immigration violators. It plans to have 75 Fugitive Operations Teams functional by the end of this fiscal year, up from 35 in April of 2006 and 52 in April of 2007.
These highly publicized changes help to satisfy the demands of restrictionists, who argue that no new laws are needed – just more enforcement of the laws already on the books. In addition to giving the Administration much-needed credibility on immigration issues, increased enforcement also spotlights the inadequacies of the current system and highlights the need for reform.
In the first three months of 2006, ICE's fugitive operations program arrested 3,222 people nationwide, compared to the 2,174 people arrested in the same period of 2005. Yet the total number of “absconders” – those who have already been given their “due process” and “day in court,” but later disappeared - has risen to over 600,000. ICE has done a poor job of communicating its role in insuring the integrity of our immigration system, arresting many unwary individuals who are not absconders, instilling fear in immigrant neighborhoods and arousing the wrath of local communities with its “Return to Sender” campaign.
Meanwhile, worksite investigations doubled from 500 to over 1,000 between fiscal year 2005 and fiscal year 2006, while related arrests jumped more than threefold, from 1,292 to 4,383. Due to the prevalence of false documents, ICE has given up on civil sanctions against employers, 99.9% of whom are in nominal compliance. The Immigration Reform and Control Act of 1986 [IRCA] - which legalized about 4 million individuals - introduced employer sanctions as a method of eliminating the “magnet” of American jobs. But since there is no reliable database against which employers are required to check documents, the employment authorization verification program has failed.
In response, ICE has targeted those employers against whom it can bring criminal charges for a “pattern and practice” of encouraging the import of illegal workers or for “harboring” them following arrival. A key sticking point in Comprehensive Immigration Reform revolves around the creation of a secure mechanism to effectively verify the work authorization status of every American worker. Without such an improved system as part of any CIR, we risk repeating the failures of IRCA.
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