Final PERM Rule Publication

The Office of Management and Budget (OMB) completed its review of the final PERM rule on Friday, December 10, 2004. This rule had been pending at the OMB since February 23, 2004. After review, the rule is forwarded for publication in the Federal Register and is expected to be published soon. The effective date of the final PERM rule has not yet been confirmed, though the Department of Labor previously indicated in a memo to the SWAs that the effective date will be 60 days from the date of publication. As we have urged in previous newsletters, it is vital for certain case types to be filed before PERM takes effect. If you have been considering filing a labor certification, and your case depends on experience obtained at a parent, subsidiary, or affiliate abroad, or in a dissimilar position in the US, it is particularly urgent that you speak with your Flynn & Clark attorney without delay.

Holiday Travel

We talked about this in last month's issue. This is another reminder that Holiday Travel requires advance planning. It is 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. For information on currently estimated visa wait times by city, see http://www.travel.state.gov/visa/tempvisitors_wait.php/. Some of you will be able to travel and return on advance parole documents if you were careful to apply for them well ahead of time. In case of any questions, please speak with your Flynn & Clark attorney.

Omnibus Spending Bill Signed Into Law

Includes 20,000 More H1B Visas, Closer Control of L1B's

As we indicated in the Flynn & Clark Immigration Update News Bulletin in late November, Congress has passed an Omnibus Spending bill with significant immigration impact, notably an exemption providing 20,000 more H1B visas for advanced degree graduates of US universities and also closer control of L1B's. This bill has now been signed into law.  Significant fees have been added to both visa types.  The $1500/$750 ACWIA fee for H1B's is in effect now. The $500 anti-fraud fee for both H1B's and L's will go into effect on March 8, 2005. Note that the 20,000 new H1B numbers are not yet available as this provision is not effective until March 8, 2005. However, if you have qualifying H1B candidates, you should begin discussing this with your Flynn & Clark attorney very soon. In this way your case preparations can be completed in ample time so that you can be first in line when it is time to file. For details, see your November issue of the Flynn & Clark Immigration Update News Bulletin or speak to your Flynn & Clark attorney.  The related USCIS press releases may be found at:

 http://uscis.gov/graphics/publicaffairs/newsrels/H-1B_12_9_04.pdf  and

http://uscis.gov/graphics/publicaffairs/newsrels/LVisa_12_9_2004.pdf 

Department of State Visa Bulletin for January 2005:

Retrogression in EB-3 Category affecting India, China, Philippines

The Department of State Visa Bulletin for January 2005 at http://travel.state.gov/visa/frvi_bulletincurrent.html summarizes the availability of immigrant numbers for the month of January 2005. Note that the bulletin shows a retrogression to 1/1/02 in the Employment Based Third Preference category for China, India, and the Philippines.  This means that in those cases where a date is indicated, a visa number is only available for persons with priority dates earlier than the designated date. A person with a later priority date and a pending I-485 cannot have it approved from January 2005 until the date it becomes current. A person with a later priority date who has not yet filed an I-485 by 12/31/04 (accepted by USCIS for filing) will have to wait until their priority date becomes current before filing. Some persons whose priority dates are affected are eligible for H1B extensions under AC21. Please contact your Flynn & Clark attorney if you believe you may want to file an I-485 this month or need an H1B extension.

New LCA Version Required for H1B's

On November 29, 2004 the Department of Labor published a notice in the Federal Register requiring the use of a new version of LCA form ETA 9035, effective November 30, 2004. The notice states: 

"A new version of the form ETA 9035, Labor Condition Application (LCA), will be required, to be used as of November 30, 2004 for both H-1B and H-1B1 filings. The new form incorporates the distinction between H-1B and H-1B1 Singapore and H-1B1 Chile programs, updates OMB approval information, and removes the 'Government Use Only' section. Starting on approximately November 15, 2004, H-1B and H-1B1 filings using the revised ETA Form 9035 will be accepted at the existing Application Processing Center address and fax number set forth below. The new form will be available for use on the LCA Online Web site (http://www.lca.doleta.gov). As of November 30, 2004, the new ETA Form 9035 must be used by both H-1B and H-1B1 filers, and the H-1B1 applications for Singapore and Chile will no longer be accepted at the Washington, DC, address previously included in H-1B1 program instructions. The H1-B and H-1B1 address and fax number are: ETA Application Processing Center, P.O. Box 13640, Philadelphia, PA 19101, Fax: 800- 397-0478."

Relief for Air Travelers Suffering Security Delays

When checking in for air travel, some passengers have found that they are unable to obtain a boarding pass. This can happen when the passenger is mistaken for a person on the "watch list".  Such passengers are referred to the airline ticket counter so that the agent can verify their identity and delays can often ensue. If you are required to undergo additional checkpoint screening each time you fly, now there is relief available. You can contact the Transportation Security Administration (TSA) toll-free at 1-866-289-9673 to find out more. You may also send TSA an email at TSA-ContactCenter@dhs.gov or by clicking on the "Contact Us" button at www.tsa.gov.  The TSA Contact Center (TCC) representative will want to know:

* Your full name

* Your date of birth

* Telephone number

* Mailing address and email address

TSA indicates that it could take as long as 45 days to complete this process.

Irish Peace Process Cultural & Training Program Act Amended / Extended

On December 10, 2004, the President signed legislation to amend and extend the Irish Peace Process Cultural and Training Program Act of 1998 (IPPCTPA). The program allows certain young adults who live in disadvantaged areas of Northern Ireland and designated border counties of Ireland to enter the United States to develop job skills and conflict resolution abilities so that they might return to their homes "better able to contribute toward economic regeneration and the Irish peace process." Up to 4,000 qualifying aliens (and their spouses and minor children) may be admitted each year and may remain in the U.S. for two years. (Previously participants could remain in the U.S. for up to three years). The program, initially set to sunset on October 1, 2005, and later extended until October 1, 2006 has now been extended by (Pub. L. No. 108-449, H.R. 2655) for another two years, until October 1, 2008.

The new legislation also makes a number of changes to the program. These changes include requirements that program participants not have degrees from a higher education institution, that they be at least 21 years of age (formerly, individuals were eligible to participate at age 18), that they be nationals of the United Kingdom or the Republic of Ireland, and that they have been unemployed for at least one year and resident in Northern Ireland or the designated border counties for at least 18 months. The law also requires that aliens admitted under the program return home for two years before they can apply for an immigrant visa, permanent residence, or another nonimmigrant visa. The Secretary of Homeland Security may waive the foreign residence requirement under certain circumstances.

In Next Month's Immigration Update...

In next month's issue, we discuss issues of particular concern to university faculty, students and researchers. Stay tuned for the January 2005 issue.

Who else should subscribe?

Are there other persons in your organization who should receive free copies of the Flynn & Clark Immigration Update Newsletter? Just let us know at ddinardo@flynnclark.com and we will send the person(s) an invitation. In order to be sure that only people who want to be subscribers are receiving the newsletter, we distribute it via Topica, using an invitation and confirmation approach.

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.

Flynn & Clark wishes you a Happy Holiday Season and a Happy New Year!

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 flynnclark.com or contact Darlene Dinardo.