While hitting the cap is not good news indeed, please take note that H-1B petitions may continue to be filed to extend the time for those already in H-1B status, for current H-1B workers to change employers, and for current H-1B workers to work concurrently in a second H-1B position. Premium processing continues to be available. And applications with an October 1 start date can be filed beginning April 1.

Questions remain as to whether those applying for petitions to begin October 1, 2004 will be able to remain in the U.S. until then. Clearly those in visitor status will not be able to do so if they are unable to obtain an extension beyond April 1, 2004. Students in F-1 status including Optional Practical Training and Exchange Visitors in J-1 status may be able to remain regardless of when their program ends if they receive a blanket extension of stay as was used when the cap was last reached in 2000 (since that time we have enjoyed additional H-1B numbers which sunset at the end of last fiscal year, so we have not reached the cap since 2000). However, in the post 9-11 atmosphere the same generous position is by no means assured. The determination is left to U.S. Immigration and Customs Enforcement, which has not been known for extending favors to foreign students in the post 9-11 atmosphere.

Those who are ineligible for H-1B visas may apply for visitor or student visas, and have a number of work visa options if they qualify: (1) E visas, if they are from a treaty country and can invest in a U.S. business or engage in trade with their home country (this has more flexibility than would appear); (2) O visa, for those of extraordinary ability; or (3)an R visa, for religious workers. In some instances there will be no option but to wait outside the U.S. We will work with our clients to find an appropriate visa category. Companies with overseas operations can transfer employees to an overseas office, then bring them back in as business visitors if there is a legitimate need for training in the new position. One other option that has a broader application is the J-1 visa available for practical training for a period of up to 18 months, which is certainly sufficient to bridge the gap to next year. However, care must be exercised to assure that the worker’s home country does not identify his field on the “skills list” which would trigger a bar on permanent residence or an H or L visa until they have resided in their home country for a two year period. We work with a number of programs that can provide sponsorship for J-1s in appropriate cases.

H-2B Cap Imminent for Temporary and Seasonal Employees

Sources from within the government have provided information that the 66,000 annual limit on H-2B visas could be reached for the first time ever early in March. H-2B visas are available for workers in temporary employment of a seasonal or peak load nature. We provide H-2B visas for a number of seasonal employers. The requirement of a temporary position is quite restrictive for non-seasonal jobs, so it is surprising to find that the cap is being approached.

Immigration Attack on Multinational Corporations: Twin Punch of PERM and Attack on L-1’s

The PERM program which would offer a mechanism to approve Labor Certifications on a timely basis could become a reality in September. The proposed rules have just been sent to the Office of Management and Budget for review, and if approved within the 90 days allowed for their comment, will become effective 120 days later or sometime at the end of September. The controversial proposed rules would increase the prevailing wage requirement by 5% in most instances and make it all but impossible for multinational companies to obtain permanent residence for most L-1s who are not already exempt from the labor certification requirement. L-1s who were managers abroad (in the sense that the managed professional or supervisory staff or a key function of the company) and who continue to do so in the US will continue to be exempt from the labor certification requirement. But given the restrictive interpretation of “manager,” most L-1s and in particular most all L-1B’s would have to seek a labor certification. Under the PERM proposal the employer would not be able to consider experience obtained within the company, including that obtained at a parent, subsidiary, or affiliate. Thus the position description would be unable to require levels of experience which the company needs and the L-1 employee in fact has, but which cannot be considered for purposes of PERM. This means that during recruitment, the employer would be inundated with unqualified US workers who would have to be hired in place of the experienced L-1 specialists. Experience could only be specified if the L-1 had such experience with a competitor overseas, and no experience could be specified where the L-1’s experience was solely with the company or within the corporate group.

For this reason we urge our multinational clients promptly to assess whether any of their employees will be needed beyond the period of their existing visas and to file for labor certification under the existing program if they wish to do so. The same message applies to other employers as well since they will face problems under PERM with the wage requirements and restrictions on most job requirements which have been accepted under the existing program.

And Now the Attack on L-1’s . . .

Multinational companies face immigration problems on another front: the L-1 program which allows them to bring in managers and specialized knowledge workers without an annual limit, and without being subject to DOL scrutiny of wages and working conditions, is under attack in Congress. Hearings held by the House International Relations Committee on February 3 invited a number of advocates of efforts to eliminate the program which has been the staple visa for international companies for over 35 years. Other proposals would impose an annual cap. While most L-1 employers already pay more than the prevailing wage, attempts to regulate this would just create a nightmare of red tape without affording workers any additional protections.

The combined effect of the PERM program and L-1 proposals on the Hill could be a sucker punch for international commerce.

We are, of course, very concerned about this situation. If your firm uses L-1’s it would be helpful if you can authorize me to summarize how they are helping this country so that the American Immigration Lawyer’s Association can use this to put a favorable face on L-1’s to Congress. Your firm’s name would not be used if you do not wish it to be used.

Fee Increases Proposed

The USCIS issued a proposed rule on February 3, 2004 that would raise the filing fees for most immigration applications by $55 and would raise the fingerprinting fee applicable to permanent residence and naturalization cases by $20. Critics are wary that the increased revenue will not result in improved service, but concede that additional revenue is needed to eliminate massive backlogs that have only gotten worse since the last fee increase two years ago.

NBC Means Delays on Paroles and EAD's

The Director of Boston USCIS office announced on February 13th effective the next business day that Boston will no longer issue Employment Authorization Documents (EAD’s) or travel permission (Advance Parole) for applicants for permanent residence filing family-based applications in Boston. Instead of receiving same day service, applicants will have their cases processed by the National Benefits Center (NBC) in Missouri by mail. Boston will send the cases to a Bank in Illinois for processing of the filing fees, and then await a receipt from Missouri. Published standards for processing of EAD's are currently 4 months and Advance Parole is currently 6 weeks after the receipt actually issues. Currently it is actually taking 4 months for Parole as well as EAD’s. The Boston CIS Director had previously assured us we would receive advance notice of this change, but he himself was not advised of it until the 13th. We advise our clients to allow ample time for processing requests for EAD’s and Advance Parole and any needed extensions.

Applicants for employment-based permanent residence will continue to process their applications for EAD's and Advance Parole at the Vermont Service Center. Published processing times on the USCIS website currently show 4 months and one week for Advance Parole and about two weeks less than that for EAD’s. Applicants for EAD's pending at service centers may continue to apply for interim EAD's at the Boston CIS office once their EAD application has been filed for 90 days, providing that the I-140 petition is approved or if pending was not subject to a Request for Evidence. If Advanced Parole based on a family immigration application is needed for a life or death matter, the NBC will entertain expedite requests.

While these changes apply to Boston, the situation is similar throughout New England and is much the same in other regions. However, Boston was one of the few offices nationally that provided same day service on EAD's and Advance Parole until recently, so the change is all the more of a shock.

US-VISIT System: Clients Advised to Maintain Travel Records

Since January 5, 2004 border inspectors have been recording the entry of nonimmigrant visitors to the U.S. and are fingerprinting and photographing them and comparing the information to security databases. While the new program has resulted in only isolated delays, privacy issues have been raised in Congressional oversight hearings. More importantly for our clients, the system requires nonimmigrants to record their exit at ports equipped to do so. Very few ports were so equipped, resulting in database records showing that someone who exits through a port without exit reporting facilities has overstayed when in fact he has. For this reason we advise clients to maintain careful travel records including boarding passes and frequent flier records to document their timely departure (many countries do not stamp passports for their returning citizens). If they attempt to enter on a visa waiver and the database shows a prior overstay and they have no documents to verify departure, they will not be admitted and will be returned on the next available flight. Eventually the system will give Immigration a means of verifying who is here and who is not. In the interim, it will screen out possible terrorists, but also snag those with criminal records. Our clients are advised that even old criminal records for seemingly minor offenses can have drastic immigration consequences and the new US-VISIT system could ensnare them. For that reason it is wise to consult your immigration attorney if there has been any criminal violation whatsoever.

Special Registration - Has it Ended?

Those required to register with the USCIS under the Special Registration program last year were required to report to the U.S. Bureau of Customs and Border Protection (BCBP) prior to exiting the U.S. and to re-register prior to the first anniversary of their registration. While the re-registration requirement has been dropped, those already registered must continue to report to BCBP prior to departing the U.S. This involves getting to the airport at least an extra hour in advance of the normal time required, and since not all airports have a reporting facility, those in some areas must travel well out of their way to an airport that does have reporting facilities. While the rules specify that waivers are available, it has been exceedingly difficult to obtain them and relatively scant information on the procedures is available. This problem will continue to be an issue for those from countries required to report as well as those who were flagged at the airport coming in as required to register. Those flagged at the airport may be from any country. Those required to report in to register include persons born in or residing in any of the following countries: