Last chance to Obtain H, L, O and other Visas by Mail

This is the last chance to file a visa revalidation application with the U.S. Department of State (DOS) to renew a visa without leaving the United States. The DOS has announced that it will stop accepting applications to revalidate nonimmigrant visas (E, H, I, L, O and P visas) at its mail-in facility in St. Louis, Missouri on July 16, 2004. The reason for this is a requirement that each U.S. visa issued on or after October 26, 2004, must contain biometric identifiers (fingerprints and a digital photograph). This means that visa applicants must appear in person, which is not possible at the mail-in facility. After July 16, the DOS will not accept any new applications for visa revalidation, but it will continue to process applications received by that date. The DOS expects that all visa revalidation applications received by July 16 can be completed before October 26.

Please contact Flynn & Clark immediately if you wish to file a visa revalidation application in the U.S. by July 16, 2004. Note that because some time may be needed for preparation, and because the signed application with supporting documents and fee must be assembled, sent and received by the DOS on or before Friday July 16, 2004, there is no time to lose. After this date, the only way to renew a visa will be to file a visa application at a U.S. consulate abroad, which will require an in-person appearance in most cases. This may involve lengthy and often expensive travel to the applicant’s home country where consular officers sometimes take a harsh view of applications. We can arrange for representation at Consular offices in Canada and Mexico where we often find a more enlightened approach.

Our corporate clients are invited to join with other firms and trade organizations in requesting that the Secretary of State continue the visa revalidation program. This would allow DOS to continue extending H, L, O and other selected visas by mail without compromising the security concerns which brought this about. A copy of the proposed letter is attached . If you wish to sign on to the letter prepared for business and trade organizations to sign on to, please respond to reval@aila.org indicating exactly how you wish your company or association name to be listed, and the city and state where you are located. Questions regarding this may be addressed to Steve Clark at Flynn & Clark at 617-354-1550. If you can send a copy of your message to Steve Clark that will be helpful to us.

Last Chance to Obtain Labor Certification for Many Workers

The Department of Labor’s (DOL) PERM program will change Labor Certification as we know it. Once PERM goes into effect it will no longer be possible to pay less than the prevailing wage – under existing law it is possible to offer 95% of the prevailing wage. Also, it will no longer be possible to require the specific skills and experience that the employer normally requires – instead there will be arbitrary limits on experience and skill requirements that will have only narrow exceptions. This will dramatically affect labor certifications for hi tech positions which often require very specific skill sets. In addition, it will not be possible to require experience acquired with the same employer or its foreign affiliate, parent or subsidiary. This will preclude any experience requirement at all for workers who may have worked with the same company for a long time, even if the experience was overseas or in a junior position. Holders of L-1B visas based on specialized knowledge at a related foreign firm will be particularly affected. This, of course, is based on the proposed rulemaking which is expected to be published this summer with limited modifications. While the DOL has been saying that publication of these rules is imminent for some time now, our recent discussions with DOL Labor Certification Headquarters Chief Bill Carlson suggests a heightened sense that they will actually be published. DOL is already hiring staff and renovating offices for the new program. However, when the rules are published there will be 4 months available within which to file under the existing program. Because filing requires extensive preparation, we encourage our clients not to wait for publication of the rule if they want to assure filing under the existing rules. We have already encountered a surge in filings and hope to have an orderly transition.

In a related development, DOL will be opening backlog reduction centers which will be handling Labor Certifications under the existing rules filed before the PERM cutoff. Even if PERM does not go into effect, the backlog reduction centers will follow national policy which in some ways will be less flexible than the program currently run out of regional offices. So it may pay to file soon even if the new PERM rules are further delayed.

Update on H-1B Visa Cap

As we previously reported, the U.S. Citizenship and Immigration Services (USCIS) announced on February 17, 2004 that it had received enough H-1B visa petitions to meet this fiscal year’s cap of 65,000 new workers. The next allotment of H-1B numbers for Fiscal Year 200 will become available on October 1, 2004.

On April 1, 2004, the USCIS started to process H-1B visa petitions for employment commencing on or after October 1, 2004. This allows employers to file visa petitions now that request H-1B status effective October 1, 2004.

On June 18, 2004 the Department of Homeland Security (DHS) sent a notice for clearance to the Office of Management and Budget (OMB) that would, if cleared, allow F-1 students in the US to remain here after their stay expires and to change to H-1B without departing the U.S. provided their proposed employer has filed a timely H-1B petition for them. This is expected to clear and we are awaiting word whether it may well extend to J-1 visa holders as it did when the H-1B cap was last hit several years ago.

In order to avoid a flood of H-1B visa applications in early October, the Department of State (DOS) has announced that U.S. consulates abroad will accept H-1B visa applications now for those with approved H-1B visa petitions with an employment start date of October 1, 2004 or later. These visas will be annotated “not valid until September 20, 2004. This will allow them to avoid a last minute rush and processing delays, but will still require them to wait outside the US until September 20, and not permit them to work prior to October 1.

As of May 31, the USCIS had already received over 16,00 H-1B visa petitions for start dates on or after October 1, 2004. At this rate, the 65,000 cap for fiscal year 2005 (from October 1, 2004 to September 30, 2005) could be used up before the fiscal year even begins on October 1. (The rate has been 8,000 per month, but if in the final months panic sets in as it has in the past the rate could increase to 16,000 per month. October 1 would represent 6 months of filings – 4 months at 8,000 plus 2 at 16,000 = 64,000. And USCIS must set aside over 5,000 for citizens of Chile and Singapore meaning the effective cap is about 58,000.) We do not want to encourage panic, but we do encourage our clients to think ahead and attempt to advance hiring that will likely involve H-1B visas.

H-2B Visa Cap

The H-2B visa cap of 66,000 visas was also hit in March 2004 for the first time. This has affected hiring plans for many summer resorts hiring H-2b temporary seasonal workers who will not be able to get workers here before October 1 when the season will have ended in most instances. They are at a disadvantage relative to winter resorts because their season is toward the end of the fiscal year and they are not permitted to file more than 4 months in advance of the start of their season. By then the winter resorts have used up most if not all of the visas available. Despite bipartisan proposals in Congress to increase the cap, the legislation has not moved. Restrictionists have made immigration a third rail and everyone is afraid to take any action before the November elections. “Save the Summer” legislation will be too late then for Summer 04. We are working with our resort clients to file early and seek alternative vehicles for bringing in their summer workers. Please note that while the H-2B program is open to any occupation, the position must be one that is strictly temporary. Most non-seasonal positions will not meet the strict test of temporary. For those who do meet this test, it is a wonderful source of workers, provided there is a sufficient supply of the visas.

Employment Authorization ValidityPeriod

We do occasionally have some good news. Employment Authorization Documents (EAD’s) have been available to applicants applying to adjust status to permanent in one year increments. This worked well when the typical permanent residence case took only 6 months, but it has been taking well over two years which have forced applicants to file several extensions. Each time they file the processing time for the extension gets longer leaving them ineligible to work for up to months at a time. We currently advise our clients to file for an extension of employment authorization 6 months in advance. At the Annual Conference of the American Immigration Lawyer's Association the USCIS announced they would soon propose a rule allowing EAD’s to be issued for the expected duration of processing. As a result, if the current backlog is two years, they will issue the EAD cards for a period of 24 months plus a month or two. We anticipate that this may happen as soon as in the next few months.

USCIS has also announced a plan to reduce backlogs for all processing down to 6 months over the next two years.

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.