In This Issue:

•	Introduction of 800# Service and Epidemic of RFE’s
•	H1B REPORT: Numbers, Filing Fees, and Recommendations
•	PERM Program Will Affect Permanent Residence Applications
•	L-1 Visas Under Attack
•	Visa Delays at Consular Offices
•	Diversity Visa Lottery Registration November 1 through December 30, 2003
•	Employment Authorization No Longer Assured Upon Filing PR Applications
•	Marriage Cases Receive Closer Scrutiny

•	FLYNN & CLARK, P.C.
•	APRIL/MAY 2003 IMMIGRATION UPDATE

Introduction of 800# Service and Epidemic of RFE’s
There has been an accelerating pace of developments in the past few months, and I am afraid for the most part, the news is not good. On a brighter note, I met with Eduardo Aguirre, the new Director of the U.S. Citizenship and Immigration Service (USCIS formerly INS) at the JFK Library just before Labor Day, and he outlined his plans to eliminate processing delays and to introduce advanced technology to process immigration applications. However, his first step toward this goal was to eliminate telephone contact with the Service Centers, requiring us to use the same 800 number service that the public uses, to resolve issues where cases are delayed or subject to obvious processing errors. The representatives servicing these lines are so ill-trained and ill-equipped that it has become impossible to redress routine and obvious errors. At the same time, we are finding that in the post 9-11 environment, even simple and well documented applications are subject to lengthy and onerous Requests for Evidence (RFE) that are complicating even the simplest of applications. That being said, let me introduce the “real” news.

H1B REPORT: Numbers, Filing Fees, and Recommendations

NUMBERS REDUCED AND FILING FEES DECLINE

Several years ago, as President of the American Immigration Lawyers Association (AILA), I worked with then Chair of the Senate Immigration Subcommittee, Spencer Abraham, to increase the allocation of H-1B visa numbers to 195,000 per year. This provision has sunset, effective October 1, reducing the allocation to only 65,000.

H-1B FILING FEES DECLINE

At the same time as the allocation of H-1Bs declines, the $1,000 training fee for H-1B petitions also has sunset. So the few visas that remain will not be subject to the $1,000 training fee, at least for now. Congress is expected to take action, and some are pressing for elimination of H-1B visas entirely. While we had hoped to lobby for an increase in numbers, it will be an uphill battle to even maintain the status quo.

RECOMMENDATIONS FOR H-1B EMPLOYERS

Until Congress Acts we are advising our clients to accelerate their filing of H-1B visa applications. There are some 32,000 applications in the pipeline from last fiscal year (10-1-02 to 9-30-03) that will in effect reduce the allocation for this fiscal year, which began 10-1-03, to only 33,000. In the past these had been awarded on a first come-first-serve basis by the date of approval, and not the date of filing, so it is necessary to get the cases approved before the allocations run out. We recommend premium processing, which requires a $1,000 surcharge filing fee, to assure the cases will be processed as soon as possible (within 3 weeks instead of 3 months under normal processing). Please bear in mind, this does not affect those who are already in H-1B status and are extending their stay or changing employers. Also, the cap does not apply to employees of institutions of higher education, government and non-profit research organizations (but it does apply to non-profits who are not primarily research organizations). Also, physicians previously in J-1 status who have agreed through a state health department to work in medically underserved areas (HPSAs or MUAs) in exchange for waiver of the J home residence requirement are not subject to the cap on H visas. Please be aware that if you employ an F-1 or J-1 worker whose period of practical or academic training expires before the USCIS approves his or her petition for H-1B status, the worker must stop working immediately and be placed on a leave of absence without pay until the approval is received. This could cause serious delays, so wherever possible, accelerate filing for these workers.

PERM Program Will Affect Permanent Residence Applications
The Department of Labor’s overhaul of the permanent labor certification program is expected to be effective within the first months of next calendar year. This leaves precious little time to do the recruitment required to file an application under the existing program. We recommend that clients with valued workers who have not already filed for permanent residence seriously consider filing immediately before the new “PERM” program becomes effective because it will make processing more difficult in a number of ways. This is particularly true for employees whose level of compensation and experience at the time of hire is not top level. Wage requirements will increase, and it will become impossible to require experience unless it was gained with a company that has no affiliation whatsoever with the petitioning employer. Workers transferred from affiliates abroad will have a particularly difficult time, but so will most all workers, assuming the rules look anything like the ones the Department of Labor previously proposed.

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L-1 Visas Under Attack
Not only will companies have a difficult time sponsoring workers transferred from affiliates abroad for permanent residence, but also they may encounter more restrictive and inflexible conditions for all their L-1 transferees. Because of abuse of L-1 visas by a very small minority of employers, and inflammatory articles in major news magazines, several pieces of anti-L-1 legislation have been introduced. Some of these pieces of legislation restrict the use of the L-1 and hamper the conduct of international business in ways that are unrelated to combating the abuses that have occurred. It remains to be seen what if any final version of L-1 legislation may come into effect, but other proposals have been made that would add a cap to the number of L-1’s issued, subject L-1’s to DOL wage oversight in a manner similar to H1B’s, and restrict the time an L-1 can remain in the US to a total of 3 years. Among the bills introduced to date, perhaps the least restrictive and most relevant is S. 1635 which limits itself to combating third party employer abuses and restores the one year period for blanket L’s. We will keep you informed. Now may be a particularly good time for multinational corporations to express to Congress their support for the L-1 visa.

Visa Delays at Consular Offices
Due to a number of considerations you will need to anticipate delays for workers traveling abroad who require a new visa. This affects employees who have already changed their status, but not traveled abroad to obtain a new visa previously. The delays are attributable to a number of changes:

INTERVIEW REQUIREMENTS

Due to post 9-11 security concerns, Consuls are now required to interview all visa candidates with only very narrow exceptions, primarily for diplomats. Already there are delays of 4 to 6 weeks to obtain an interview at many posts in Europe. We are therefore counseling clients to make travel arrangements months in advance to secure an appointment ahead of time. Also, it is often possible for us to arrange an interview in Canada or Mexico as appointments are more readily available there. Please be aware that this is not without risk. If for any reason the visa is refused in Canada or Mexico, and the person has no other valid visa with which to re-enter the US, it will be necessary to return to the home country and apply there, with all the delay which this implies. Also, if the person seeks a visa in the same category as issued previously, it may be possible to seek a visa renewal by mail, but this process may take several months to accomplish when it is available.

LIST OF 26 SECUIRTY CLEARANCES

Visa applicants from 26 countries designated as a potential security threat by Attorney General Ashcroft are facing lengthy security delays. To minimize delays we recommend that if they are applying for a visa in the same category as previously issued, they should apply stateside with the State Department 60 days prior to expiration to avoid delays. Others would also benefit from this strategy.

SECURITY CLEARANCES FOR OTHER NATIONS

New security checks can cause delays regardless of nationality. False hits are occuring with increasing regularity particularly for those with common names, e.g., John Smith, Juan Gonzales, or Mohammed Siddiqui. Even without a prior arrest, it can easily take 6-8 weeks to process a visa in these situations, and this is AFTER any delays in obtaining an interview. We may be able to assist those with common names or other visa application problems to process more quickly at Mexican posts which can clear these visas more quickly.

TECHNOLOGY ALERT LIST DELAYS

Clearances for Technology Alert List (TAL) hits for sensitive technologies, including “dual” use technologies (that have both innocent civilian and military applications) can take 3-6 months. See http://foia.state.gov/masterdocs/09fam/0940031X1.pdf. For a list of some technologies of interest. We recommend that employers familiarize themselves with the Export Control Laws, and if they are subject, or if they are even close to technologies that are subject, that they assist us in preparing additional information explaining why the particular candidate will not be involved with technology subject to military or defense use. In appropriate cases, we can also assist in obtaining an appropriate export license. This is required because if the technology is subject to export controls to the employee’s country, then involving the worker in that technology is deemed to be an export to the worker’s country. This can cause substantial fines and criminal penalties as well as visa delays.

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Diversity Visa Lottery Registration November 1 through December 30, 2003
This program allows 50,000 immigrant visas on a random basis selected from those who file during the registration period. This year there will be a two month instead of one month registration period. Applications must be filed on line with a digital photograph meeting strict format requirements. For more information on this program click: http://www.travel.state.gov/dv2005.html

Persons born in the following countries are not eligible for visas in this year’s lottery: Canada, China (Mainland Born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Russia, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR and Taiwan are eligible. As in the past, persons born in ineligible countries can file if they have a spouse from an eligible country and they so indicate on their application.


Employment Authorization No Longer Assured Upon Filing PR Applications
USCIS has clarified that those filing for employment-based adjustment of status to permanent residence will no longer automatically qualify for employment authorization within 90 days. Now that these applications may be filed concurrently with an I-140 visa petition, the I-140 must first be screened to be determined if it is approvable and if it does not contain any deficiencies or complex issues. If it does, the clock will be stopped on the 90 day processing limit until the petition is approved. Even in approvable cases, the 90 day time limit is exceeded routinely, but in problematic cases the process can take as long as a year. This causes a problem if the worker does not have a valid work visa, because the permanent residence application can be denied if the person works without authorization for 180 days or more. Also, the employer may, of course, be subject to fines for employing the person without authorization.

In the past this has not been a problem for Massachusetts residents who could get same day service for employment authorization or advance parole. This is no longer available for employment-based cases. However, employment authorization will be available at Boston for Massachusetts residents whose applications have been pending at the Vermont Service Center for longer than 90 days if Boston can determine that the I-140 has been approved or passed preliminary screening.


Marriage Cases Receive Closer Scrutiny
We have received reports that Boston USCIS is scrutinizing applications for permanent residence based on marriage to a US Citizen more closely than in the past. This has been particularly problematic for those who have entered the US after marriage or married shortly after entry. The officers have denied a number of applications on the basis that the failure to disclose the intent to remain, while presenting a nonimmigrant visa for only a temporary stay, constitutes fraud. Now, more than ever, we advise those who claim resident status through marriage to treat this as a serious legal matter and obtain representation. Otherwise, a relatively simple matter can become a tragedy.

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