Last Chance to File Labor Certifications Before New PERM Regulations

We previously discussed the proposed rules for the new PERM program that will attempt to streamline labor certification processing (See August 2002 Update for details). We expect that this will go into effect by the end of the year, and replace the existing system except for cases filed before this implementation date. Employers are advised to review labor certification options under the existing labor certification program immediately before the new rules go into effect. Although the new rules are not expected for several months, given the extensive preparation needed to file an application, action should be taken now to avoid the impact of the new PERM rules. The restrictions and problems resulting from the proposed PERM rules include:

1. The employer cannot require experience that the applicant gained with the employer or its affiliate or contractor (companies who wish to sponsor employees now in L1B status should pay particular attention to this point and this also effectively means that Job A / Job B scenarios can no longer be successful);

2. The advertisements must be more extensive and will not permit use of existing “real world” advertisements;

3. The rules require 100% compliance with DOL’s inflated wage guidelines because the current 5% prevailing wage leeway will no longer be allowed (so wage rates will in effect rise 5%);

4. It will be more difficult to specify requirements other than experience and education. Thus, requirements of computer languages or other areas of expertise will be scrutinized;

5. It will be impossible to require experience in a different or related occupation (i.e., for a software engineer, it may not be possible to specify experience as a programmer);

6. Real world levels of experience and education will not be permitted - only levels that DOL deems acceptable will be allowed, unless the employer can show a history of hiring a US worker with the requirements within two years prior to filing.

We will be happy to arrange meetings with our corporate clients to develop a plan to file applications under the existing rules before PERM goes into effect.


INS is Gone

Effective March 1, 2003 the INS was abolished and its functions placed under the new Department of Homeland Security (DHS). Most functions for business and family immigration applications fall under the jurisdiction of the Bureau of Citizenship and Immigrant Services (BCIS, or CIS). While we feel that there are structural flaws with the legislation that do not assure adequate funding or coordination of functions, we are heartened by the new leadership and their commitment to deal with these issues. Most importantly, our ally William Yates, who was Director of the Vermont Service Center until 1996 when he became Director of Service Center Operations at Headquarters, has become Associate Commissioner, Operations for the BCIS. As such he is only 3 steps removed from Tom Ridge, Secretary of the DHS. Mr. Yates' goal is to restore the level of service and turnaround times we had before the Attorney General imposed security checks without consultation of the INS. At Tom Ridge’s inauguration, he expressed his concern with mounting case backlogs to Mr. Yates. While these good intentions are refreshing, of course we have to wait to see the outcome. BCIS/INS planning has constantly been beset by new unfunded mandates by Congress in response to the crisis of the day.
 

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Service Center Phones Shutting Down

BCIS has made known that the 800 number customer service phone lines will begin accepting inquiries for all the service centers, starting May 12 or 13. On June 1, it plans to cut off all service center information numbers, other than premium processing, and require that all calls go to the 800-375-5283 number. Inquiries that require service center response will be forwarded to the applicable service center by the 800 number officer, and it is anticipated that the service center will reply to the inquirer by mail. We are deeply concerned about this move because it will severely limit our direct communication with the service centers. We will post more information as it develops.


Closing of Consulates

A number of Consuls, including several in Western Europe, report closing of their offices to the public due to security issues raised by the war in Iraq. Although the war is over, those concerns persist. Closings fluctuate from week to week, but a recent list of closed Consuls includes Almaty, Kazakhstan; Amman, Jordan; Australia - all posts; Bucharest, Romania; Buenos Aires, Argentina; Cairo, Egypt; Caracas, Venezuela; Damascus, Syria; Istanbul, Turkey; Kabul, Afghanistan; Lagos, Nigeria; Paris, France; Nairobi, Kenya; Oslo, Norway; Pakistan - all posts; Riyadh, Saudi Arabia; Savanna, Yemen; Skopje, Macedonia; South Africa - all posts; Surabaya, Indonesia; Tel Aviv and Jerusalem, Israel. Since interviews are now required for most visas, if the Consulate is temporarily closed, visas are unavailable in those countries. We have subsequently heard that some, but not all, of these posts are open at least on a limited schedule. We continue to strongly recommend that clients contact us prior to leaving to the US to apply for a nonimmigrant visa stamp abroad.


H-1B Report

The BCIS announced that last fiscal year (October 2001 through September 2002) INS approved 197,537 H-1B petitions. Of these, 79,100 were subject to the Congressionally-mandated cap, which in FY 2002 totaled 195,000. While we enjoy the same cap this year, it will revert to 65,000 per year beginning October 2003. Assuming the rate of usage continues, and the law remains unchanged, we should anticipate delays in H-1B filings made next spring, possibly even late winter. We can better estimate this once we get more recent filing data reflecting the current economy and rate of usage.

As national President of the American Immigration Lawyer’s Association (AILA) when AILA led the charge to increase the cap in 2000, I can say the climate is totally different today. Laid off IT workers are scapegoating H-1B workers for their plight, and this is resonating in Congress to the extent that our industry allies and friends on Capitol Hill find little traction for action to increase the H-1B cap. Even the L-1 program for multinational workers is under attack and may face regressive changes. We may, however, be able to carve out sufficient exceptions to the H-1B cap to assure continued availability of H-1B numbers to meet anticipated demand.

Meanwhile, BCIS is sensitive to political pressures and is scrutinizing both H-1B and L-1B petitions ever more closely issuing requests for evidence on cases which have been routinely approved in the past. Cases where the academic degree is not directly related to the occupational field such as mechanical engineers for IT occupations, and cases where the need of a specific degree is not obvious such as public relations or even business occupations are facing these challenges. Consequently, we cannot always assume smooth processing even in the best documented of cases. But we are finding that our traditional high standards of care, documentation and presentation are resulting in significantly fewer of these glitches than faced by our colleagues in the field.

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Special Registration

Although Special Registration deadlines have passed, it is not time to relax our vigilance. It is not enough that affected foreign nationals register. They must also take particular care to follow correct procedures for reporting when leaving the US, and of course only to leave the US from a port designated for Special Registrants. There will also be an obligation to annually renew the registration and this cannot be forgotten or overlooked. Attention to these requirements is extremely important. Review the main points of Special Registration at:

FLYNN & CLARK, P.C.
STEVEN A. CLARK

FLYNN & CLARK, P.C. provides a full range of inbound as well as outbound immigration legal services for United States and foreign companies under the leadership of Steven Clark, Past President of the American Immigration Lawyers’ Association, which has 8000 members worldwide.

The Immigration Update provides periodic alerts about noteworthy developments in immigration affecting the business community. It is provided as a service of the Firm regarding legal developments; it is not a substitute for legal counseling and may constitute advertising material in some jurisdictions. If you have questions about the information contained in the Immigration Update or would like to know more about our Immigration services and nationwide visa processing capabilities, please visit our website, or contact Darlene Dinardo in Cambridge at ddinardo@flynnclark.com

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