Visa Bulletin for March 2005: Cut-Off for All Countries in EB-3 Other Worker Category at July 1, 2001

The March Visa Bulletin includes the appearance of a cut-off date of July 1, 2001 across the board in the Employment Based Third Preference Other Worker category, for workers in jobs requiring less than 2 years of education and training. The bulletin advises that the numbers in this category could be exhausted prior to this fiscal year's end. Other Employment Based Third Preference categories are not affected at this time.

Some Visa Mantis Clearances Extended

The Department of State announced that it has extended the validity of “Visas Mantis clearances” for F, J, H, L, and B visas for extensions of stay after specified time periods. Visa applications for persons to study or work in certain sensitive scientific and technical fields are subject to an interagency clearance in Washington, DC, called Visas Mantis. Since 1998, the Visas Mantis clearance process has been used to screen against the illegal transfer of technology. Once the clearance process is complete and a visa is issued, the individual may apply for admission at a U.S. port of entry. Visas Mantis clearance and visa validity are different than the period of admission determined by a Department of Homeland Security officer at the port of entry.  The U.S. Department of State, in consultation with the U.S. Department of Homeland Security, has extended the validity of Visas Mantis clearances for the F (student), J (exchange visitors), H (temporary workers), L (intracompany transferees) and B (tourist and business) categories of visas. This means that if the original visa has expired and a new visa application is filed to return to the previous study or work program in the United States, another Visas Mantis clearance may not be required. Consular officers have the discretion, if warranted, to request a Visas Mantis clearance during any visa adjudication.

More on PERM Rule

As mentioned in last month’s issue, the final rule on PERM was published in late December 2004.  We published some highlights in our January issue. Our fuller treatment of the provisions in the rule runs to some 35+ pages, and we don’t plan to inflict that on our readers in this newsletter. Still, it may be helpful for readers to be aware of some additional PERM provisions which may change the way we look at labor certification. Among the concerns employers may have are the provisions related to record keeping, audits and revocation. The final rule specifies that the employer need not file all the evidence at the time of filing the application, but must maintain it in its files in the event the DOL asks to see it. The employer is required to maintain records of the application and all supporting documents for five years from the date of filing. DOL has the right to send the employer an audit letter asking for more detailed documentation about the case and the employer must respond. Failure to respond to an audit letter in a timely adequate way will not only result in a denial; it could subject the employer to supervised recruitment for up to 2 years. The final rule also specifies that the labor certification may be revoked at any time if the certification was “not justified.” These and other provisions of the final rule make it clear that the employer must be more careful than ever to document its case thoroughly and keep good records. Different case types require different types of documentation. Your Flynn & Clark attorney will guide you in the proper documentation needed for your case.

If I already have a pending labor certification case, do I have to re-file under PERM?

No. Pending cases will continue to be processed. Some cases will be processed by the SWA or regional DOL offices, if the SWA has begun processing them. If not, the SWA will box these pending cases and send them to one of the two ETA Backlog Processing Centers (BPCs) established by the DOL. The centers will issue a "45-day letter" to the employer or attorney representative. The letter will ask the employer if it wishes to continue with the processing of the application. Additionally, the letter will inform the employer if any information from the application is missing. The employer will be given 45 days from the date of the letter to respond. If the employer fails to respond, the application will be closed. For this reason we are advising our client employers to be on the lookout for these 45-day letters.  

Schedules for shipping cases to the BPC’s are as follows, based on the date the local office received the case: If the local office received the case prior to January 2003, the case was shipped to the BPC by 12-31-04. Cases received by the local office from 2003- 2004 are to be shipped to the BPC’s no later than 03-31-05, and those received in 2005 are to be shipped no later than 4-22-05.

There may be a few situations where it would be advantageous for you to file a second case under PERM. This could be true particularly if all the sponsored person’s qualifying experience was obtained prior to beginning employment with the petitioning company in the US and the prerequisites for the job are very standard and in a few other special situations. These should be examined on a case by case basis and discussed carefully with your attorney.

Spotlight on Medical / Biotech

A bright light for the medical community comes out of PERM’s more flexible approach towards nurses. Nurses and physical therapists have long had a speedier path to permanent residence by means of the Schedule A process, which in effect permits them to skip the test of the labor market entirely and go directly to filing an I-140 with USCIS. In the past, there has sometimes been a chicken – egg problem for nurses in demonstrating that they met the necessary qualifications. The nurse needs to show that he or she  holds a full and unrestricted license to practice nursing, not in just any state, but in the state where employment is intended.  In some states nurses where unable to obtain state licensure without a Social Security number, and unable to obtain a Social Security number without work authorization. Under PERM, a nurse now has the alternative of showing that he or she has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN).

University corner

The final PERM rule has provisions which have special impact for universities, both directly and indirectly. The most obvious change which affects universities is that there will no longer be a special handling process. College teachers under PERM have an optional special labor certification process instead of the separate expedited special handing process they had under the previous rule. The items required have not substantially changed, only the elimination of special handling. The college still must have selected the foreign national for the position in a competitive recruitment process and must file within 18 months of making the selection. Universities are still permitted to use the standard where the foreign national is found more qualified than any U.S. worker applicant, which is very different from the usual labor certification standard.  If the university misses the deadline and thus is no longer eligible for the optional special process, they can still file a labor certification, but in that case they must file under the basic process with all the attendant additional recruitment and notice that implies.

A second aspect of PERM which has a less obvious but very real impact on universities and other large employers is the PERM audit procedure. The audit procedure is introduced under PERM as a deterrent to fraud in a very automated procedure. The DOL certifying officer may audit a labor certification filed under PERM, and may request the university to supply additional documentation. Failure to respond in a timely and adequate way will not only cause that single case to be denied, it may also cause the university to be subject to supervised recruitment for all its cases for up to two years. This risk obtains for all PERM labor certification audits, but it is peculiarly relevant for universities and certain large corporations. The reason for this is that in many universities there has been a practice of using university-selected immigration counsel only for the most important faculty members. Other university faculty and staff pursuing permanent residence have often been able to select and hire their own immigration counsel with relatively little quality control or oversight by the university. Under PERM, this practice carries an even greater risk that errors made in these less high profile cases could open the university to the ‘penalty’ of supervised recruitment for ALL cases for years to come. It goes without saying that when a university wants to attract and retain top faculty, they don’t want to get a name for having a clunkier-than-average permanent residence process.

DOS Publishes Final Rule Amending SEVIS Regulations

Effective February 16, 2005, the Department of State is adding the requirement that consular officers verify SEVIS-generated I-20s and DS-2019s in the Consolidated Consular Database, and verify the payment of applicable SEVIS fees. The rule also makes Border Commuter Students subject to SEVIS requirements. The interim rule became effective May 23, 2003. (70 FR 7853, 2/16/05).

Flynn & Clark attorneys in print and on the podium

This month the February 15, 2005 issue of BENDER’S IMMIGRATION BULLETIN features an article by Flynn & Clark attorneys Steven A. Clark and Jane P. Devlin, entitled New Permanent Foreign Labor Certification (PERM) System: A Summary And Initial Analysis.  Next month in conjunction with the 2005 AILA Spring CLE conference in Washington, DC, Flynn & Clark attorney Vincent W. Lau will be speaking about PERM at  “Immigration Law for Paralegals and Law Office Staff.”  Attorneys Clark, Devlin and Lau also recently gave a presentation at MIT dealing with immigration issues and opportunities after graduation.

State Department Publishes 2006 DV Lottery Information

Over 6.3 million entries for the 2006 Diversity Visa Lottery were received during the registration period, from noon on November 5, 2004, through noon January 7, 2005. Anti-fraud technology in use for the 2006 Diversity Visa Lottery detected 31,334 exact duplicates. These were eliminated from the eligible entry pool. An additional 5,221 entries were eliminated through the utilization of facial recognition and knowledge discovery software. The State Department warns people to beware of groups or individuals attempting to defraud Diversity Visa Lottery entrants. Lottery entrants selected as winners in the Diversity Visa random drawing are notified by the Department of State's Kentucky Consular Center and not by any other organization or company. Persons who do not win will not be notified. Winning entrants will be notified by mail between May and July 2005. It will continue to be important for those selected to choose the quickest path to completing the PR process because the deadline of September 30, 2006 will be a firm one.

In Next Month’s Immigration Update…

Still more on PERM … Stay tuned for the March 2005 issue.

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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 9000 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, www.flynnclark.com or contact Darlene Dinardo.