Immigration News Update: Flynn & Clark Announcement on Diversity Visa Lottery

On November 5, 2004 the registration period for the DV-2006 Diversity Visa Lottery began. Nationals of only certain countries are eligible to participate. A person may qualify as eligible either by his/her own nationality or by the spouse’s country of nationality and must also meet the education or training requirements of this category. The registration period continues until noon on January 7, 2005 Each applicant is limited to only one entry during the annual registration period. Multiple entries will disqualify the applicant. We strongly advise that eligible individuals apply well in advance of the deadline. Only electronic applications will be accepted and only those which comply with the digital photograph standards.

The countries whose natives qualify this year are all countries except:

• Canada

• China [mainland-born]

• Colombia

• Dominican Republic

• El Salvador

• Great Britian (United Kingdom) including the following dependent areas:

• Anguilla,Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat,

• Pitcairn, St. Helena, Turks and Caicos Islands

• India

• Jamaica

• Mexico

• Pakistan

• Philippines

• South Korea

• Russia

• Vietnam

Exceptions: Northern Ireland, The Hong Kong S.A.R. and Taiwan and Macau S.A.R. do qualify

A detailed description of eligibility and application requirements is obtainable at http://travel.state.gov/visa/dv-06_bulletin.pdf

While the application process is relatively simple, it does involve legal implications, particularly for those not in lawful status. Also if selected, the normal immigration procedures apply and legal counsel is advised to assure that applicants complete processing in a timely fashion before the expiration date.

Plan your Holiday Travel

It’s that time of year again. With personal interviews required for the majority of visa applications, and with the cessation of the Department of State visa revalidation service, it can be expected that wait times for nonimmigrant visa appointments will be longer than usual this year, so PLAN AHEAD. If you have changed or extended status in the United States, bear in mind that this change or extension is not a visa. Consult the Flynn & Clark travel memo for the distinction between a status and a visa. Before making firm travel plans, make sure you allow sufficient time to apply for and obtain a visa at a US consulate abroad. See http://www.travel.state.gov/visa/tempvisitors_wait.php for information on currently estimated visa wait times by city.

PERM is Coming

In previous issues of immigration update, we have warned that PERM is coming and we have warned of the consequences (100% wages,severe limits on special requirements, inability to use experience with the same employer or any affiliate, parent or subsidiary, etc.). We can already see clear signs that Department of Labor is making plans for staffing and office facilities to accommodate the new post-PERM world. In October the AILA/DOL-ETA Liaison Committee attended a briefing at the new Philadelphia Backlog Reduction Center and as a result of that and the AILA Fall conference we can update you on the following points:

• The Department of Labor is working on an assumption that the PERM regulation will be published by the end of this calendar year. The implementation period contemplated, which we were previously advised would be 120 days, now appears to be much shorter. It could be only 60 days. This change may be tied to the progress made on the facilities for the two "National Processing Centers", previously referred to as PERM Processing Centers. Flynn & Clark urges clients to move ahead quickly and not to wait for publication of the rule if they want to assure filing under the existing rules.

·         The two National Processing Centers, located in Atlanta and Chicago, are ready to commence operations January 1, 2005.

·         The role of the State Offices in the permanent Labor Certification program is being phased out, regardless of what happens with the PERM regulation. It is clear that the goal is to have all applications processed at the federal level through the two National Processing Centers and for a temporary period, until January 2006, through the New York, Boston and San Francisco Regional Offices.

Delays in Issuing SSNs to Aliens

Sometimes foreign nationals experience significant delays in obtaining Social Security Numbers. Companies need to be alert to the consequences of these delays. This issue is discussed on the IRS website. In case of any uncertainty, please be sure to consult your tax counsel.

Kudos to Steve Clark

We are gratified to note that Massachusetts Super Lawyers has recognized Flynn & Clark partner Steve Clark in their November 2004 issue. Issued by the publishers of Law & Politics and Boston Magazine, the list of Massachusetts Super Lawyers is the result of a 2004 survey where ballots were sent to 37,000 attorneys across Massachusetts. The attorneys were asked to vote for the best lawyers they had personally observed in action. The survey results are published in the November 2004 issue of Massachusetts Super Lawyers, which includes listings arranged alphabetically as well as by primary area of practice. In the Immigration category, only 7 attorneys in Massachusetts made the list, including our own Steven A. Clark, head of the Flynn & Clark immigration practice. Congratulations, Steve!

How can I get more information on the topics in the newsletter?

Contact your Flynn & Clark attorney. We are staying on top of developments in these areas.

Steven A. Clark
Jane P. Devlin
Vincent W. Lau
Lynda J. Hagerty

Immigration News Bulletin: Lame Duck Congress allows 20,000 more H1B visas, keeps watch on L1B’s

On Saturday November 20, 2004, the House passed omnibus spending bill H.R. 4818 which included a section on visa reform. This provided for increases in the number of annual H1B visas and closer regulation of L1B’s. The various provisions of the bill take effect at different times. Most take effect 90 days from enactment, but others take effect at other times as noted.

The bill has now passed the House and Senate, and as of 11/22/04 was being held "at desk" in the Senate pending adoption by the house of another resolution. It is expected to go to the President for signature within the next two weeks.

20,000 more H1B visas for graduates of US universities

First the good news: technically not an increase to the cap per se, the bill exempts up to 20,000 foreign nationals from the annual cap if they have earned a master’s degree or higher from a US university. The bill also reinstates permanently the training fee for H1B’s at the higher level of $1500, effective immediately. It provides relief for the smaller employer by permitting the training fee to be cut in half (i.e.$750) for entities with 25 or fewer employees. The bill also introduces a new $500 Fraud Prevention and Detection fee for initial H1B’s as well as initial L1’s. This fee applies for initial status or for change of employer, but not for extensions, and does not affect dependents. The bill makes permanent the non-displacement / recruitment attestations which had previously sunset. The bill also requires payment of 100% of the prevailing wage, while at the same time requiring DOL to provide at least 4 levels of wages commensurate with experience, education and level of supervision, and specifies a formula to use create the additional 2 levels beyond the 2 now provided. Under the terms of the bill the DOL is able to initiate investigation of an employer when there is reasonable cause to believe the H1B terms have been violated. The bill further specifies in some detail how the government will use the fee revenue and establishes grants and scholarships.

L1B scrutiny, regulation

The bill prohibits issuance of L-1B visas to persons who will be stationed primarily at the worksite of an employer other than the petitioning employer or its affiliate, subsidiary or parent under certain circumstances. This would be if the foreign national would be controlled and supervised principally by such unaffiliated employer or if the placement of the alien at the worksite of the unaffiliated employer is part of an arrangement merely to provide labor rather than in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary. This section of the bill also changes the pre-employment requirement for blanket L’s from 6 months to 12 months. In addition, the bill asks DHS to maintain L visa statistics and asked the Inspector General to report on vulnerabilities / potential abuses of the L visa program. An Interagency Task Force (DHS, DOJ, DOS) is to be set up to implement the recommendations of the Inspector General. As with H1B’s, payment of a new $500 Fraud Prevention and Detection fee is required for initial L1’s. The L1B provisions of the bill are effective 180 days after enactment.

For more information on the bill contact your Flynn & Clark attorney.

Steven A. Clark
Jane P. Devlin
Vincent W. Lau
Lynda J. Hagerty

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 (AILA) which has over 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.