H-1Bs: The regulation is on the move.

The regulation implementing the 20,000 H-1B numbers for fiscal year 2005 has cleared OMB and been returned to Department of Homeland Security for signature. It is expected to move relatively quickly through the agency, and so could be published in the Federal Register as early as the beginning of next week.

It is still not known whether the 20,000 numbers will be made available to all H-1B-eligible applicants or just U.S. graduates with masters degrees or above, and what, if any, mechanism might be included to convert applications for 2006 numbers to applications for 2005 numbers. Watch for the regulation: it should contain the answers.

Finally, note that on April 20, 2005, the USCIS published a notice of a request to OMB for emergency clearance of the December 10, 2001 version of Form I-129. USCIS sought approval of this prior version of the form so that it may run concurrently with the new amended version until April 30, 2005. After April 30, 2005, only the new version will be accepted by USCIS.

As PERM Unfolds

The first PERM results are beginning to trickle in across the country. So far, there are many reports of denials, and not many reports of approvals. It seems clear that many denials are for what some might call technical reasons, not going to the substance of the case. DOL has provided a list of pointers for avoiding denials, among which are:

• Do not use OES prevailing wage determinations dated prior to March 8, 2005. DOL takes the position that the only OES determinations that can be used are those dated March 8 or after.

• The SWA job order must have been for at least 30 days. DOL points out that many job orders were opened in February, which was a 28-day month this year. Thus, for example, if a job order is listed as having run from 2/14 to 3/14, that period would have fallen short of 30 days, and would result in a denial.

• At least 30 days must have elapsed since the end of the recruitment period.

• It appears that, if a registration of an employer was made from the attorney’s computer rather than the employer’s, a denial could result. If an employer does not have internet access, DOL suggests that the paper filing, rather than the electronic filing, system be used. Note that the registration process is fraught with opportunities for error. Even though the employer must register from the employer’s computer, it is prudent to speak with your attorney and to understand the procedure thoroughly before beginning the registration process. Importantly, the employer will also need to set up a sub-account for the attorney.

• A denial will result if the answer is “no” to the question of whether the job has been offered to the foreign national listed as beneficiary on the application.

It is apparent that with this unforgiving system, attention to detail is important, now more than ever. Your Flynn & Clark attorney can advise you on proper preparation of your case so that you can avoid pitfalls such as those mentioned.  We have written a practice manual for lawyers on this and will be addressing the New York State Bar Association on the subject next week.

DOL advises that many PERM cases are still under review and that decisions can be expected on them during the month of May.

Watch out – 45-day Letters for pending labor certification cases

Keep your eyes peeled. Pending labor certifications should all have been transferred from the State Workforce Agencies (SWAs) to the DOL Backlog Reduction Centers (BRCs). The BRC can be expected to do data entry for each case and thereafter to issue a letter to the employer or attorney asking whether or not the petitioner wishes to continue with the case. The letter will give 45 days to respond, hence the term “45-day letter”.  In several cases, the letters have gone, not to the attorney, but directly to the petitioning company. It is vital to respond to these letters and to respond appropriately in a timely fashion. Failure to do so risks denial of the case at worst and delay at best. Do not assume your attorney has received a copy. If you receive such a letter, contact your attorney without delay. 

What is visa number retrogression and why/when does it hurt me?

Some readers are already facing the challenges of visa number retrogression, which had not been a problem in recent years. It began to rear its ugly head again in January 2005. Readers of our December 2004 issue were forewarned, but in conversations with some readers it is clear that not everyone knows exactly how or when this phenomenon is going to affect their cases.

So what is visa number retrogression and why/when does it hurt you? To answer this question we must first understand how immigrant visa numbers are allocated and used up. Except for immediate relatives of US citizens, there are numerical limits on the number of immigrant visas which can be issued each year. The numerically limited visas are divided into different categories, called preference categories. There are family preference categories and employment preference categories. The category a person falls into depends on family or employment eligibility. In theory a person can qualify for more than one category, although this is not typical.  Immigrant visa numbers for the different categories get used up at different rates. Some categories get used up quickly, and some don’t seem to get used up very much at all. There are also per country limitations for immigrant visas.

To appreciate how your category and country affects you, take a look at the visa bulletin. This is published monthly by the Department of State. You will find links to the current and previous bulletins at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html 

The bulletin shows in table format which preference categories are ready for immigrant visa processing now.  Where it shows a “C” the category is considered “current” and it is possible to apply for and be issued an immigrant visa now. In principle, the visa may be issued now, with no delay, other than delays in administrative processing, (which may be significant). Where it shows a cutoff date, you can only apply for adjustment of status if your priority date is current, that is to say, when the priority date is earlier than the specified cutoff date. 

So, what is a priority date and how do you get one? A priority date is a lot like taking a ticket at the deli counter in the supermarket. You need one to establish your place in line in order to be served. You acquired a priority date when your labor certification was filed. If your case is of a type that does not have a labor certification requirement, you acquired a priority date when your I-140 or I-130 was filed.

How do immigrant visa numbers get used up? One immigrant visa number is used up each time a person becomes a permanent resident of the United States, whether this takes place by adjusting their status or by entering the US after processing at a US consulate abroad. So, if there is a single principal beneficiary of an employment based petition, and he/she adjusts status to permanent resident, one immigrant visa number is used up. If this principal beneficiary also has a spouse and 2 minor children, and all 4 family members adjust status, that uses up a total of 4 immigrant visa numbers. When all the authorized numbers for a particular category are used up, the category is no longer current. It starts to be backlogged.

For this reason, when approval of permanent residence cases speeds up, more immigrant visa numbers are issued, and preference categories start to slow down. So, while it may be good news that USCIS is clearing out some of their processing backlogs, it also means that they are using up more visa numbers than they used to. When they use up so many visa numbers that a category is no longer current, the currency of that category moves backwards, rather than forward. Thus, the visa numbers “retrogress”. As a practical matter that means that some people from the EB3 category from China and India who could easily have filed I-485’s on December 30, 2004 when they were current, suddenly could no longer file them the following Monday, in January of 2005 when they had retrogressed.  As of January 2005, EB3’s from China, India and the Philippines could only file I-485’s if their priority date was earlier than January 1, 2002.  For those people, in the space of 3 days immigrant visa numbers had retrogressed by almost 3 years. If those persons had had a pending I-485, it could be approved in December 2004, but if it missed approval for any reason, it could no longer be approved in January 2005, and went back into the pending queue.

At present, immigrant visas numbers in these categories have improved to a cutoff date of June 1, 2002. DOS has stated that it expects EB3’s to stay about the same for the rest of the fiscal year (until 9/30/05) and does not expect retrogression to occur in the EB1 or  EB2 category during this time. In FY2006 DOS expects EB2 for China and India to retrogress.

All this retrogression puts one in mind of Lewis Carroll’s “Through the Looking Glass”:

 “               'Well, in our country, said Alice, still panting a little, 'you'd generally get to somewhere else - if you ran very fast for a long time as we've been doing.'

 'A slow sort of country!' said the Queen. 'Now, here, I see it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!'        ” 

In light of visa retrogression, and the delay it will mean for filing I-485’s, many H1B’s will need to be extended beyond the 6 years using a provision of AC21 which permits this in case of visa retrogression due to per country limitations. Your attorney at Flynn & Clark can advise you about this. In the meantime, in order to get the most favorable possible priority date, it behooves employers to make decisions about permanent residence sponsorship as early as possible in the employment relationship.

If you are interested in seeing how many immigrant visa numbers are issued in various categories, see the website of the DHS Office of Immigration statistics which publishes  the breakdown of immigrant visa numbers: http://uscis.gov/graphics/shared/statistics/yearbook/index.htm.  For Fiscal 2003, for example, their website shows that 705,827 immigrant visa numbers were issued, of which 158,894 were issued to family preference categories, only 82,137 for employment preference categories and 332,657 for immediate relatives of US citizens. Refugee/asylee adjustments numbered 44,927, diversity visas 46,347 and immigration court and other adjustments 29,109 and 11,756 respectively.

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.

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, http://www.flynnclark.com/ or contact Darlene Dinardo.