Headlines:

1. H1B’s through 9/30/06 – going, going …   —Many H1B’s for fiscal 2006 have already been filed. Between the ones already adjudicated and the ones pending, there aren’t many left. The few that are left have to last until 9/30/2006.

2. USCIS Implements New L–1 Outsourcing Provisions—U.S. Citizenship and Immigration Services has implemented new provisions for L–1 intracompany transferees that were mandated by the L–1 Visa Reform Act of 2004.

3. Foreign Students May Need to Return to Home Country to Obtain H–1B Visas—Senior immigration officials said that President Bush wishes to require foreign students to return to their home countries to obtain H–1B visas.

4. EB–3 Visas Unavailable Until October 1; Relief for Schedule A Workers—The Department of State announced that, as of July 1, 2005, EB–3 immigrant visas are unavailable for the remainder of this fiscal year, but 50,000 unused numbers may be available for Schedule A workers.

5. DHS Updates I–9 Form—DHS has updated the Employment Eligibility Verification Form (I–9) to eliminate outdated references, and the agency plans more substantive changes to the form.

6. USCIS Introduces New Welcome Guides, Fact Sheets—U.S. Citizenship and Immigration Services has introduced new practical guides and fact sheets in several languages for newcomers.

Also in this issue:

Recent Articles & News from ABIL Members

links

1. H1B’s through 9/30/06 – going, going … …

This week the U.S. Citizenship and Immigration Services (USCIS) released the latest count of H-1B cases subject to the annual allocation of H-1B numbers available.  Each year, there is an allocation of 58,200 H-1B numbers available for employers seeking to fill specialty occupations with foreign nationals.  An additional 6,800 numbers are available for individuals who are citizens of Singapore or Chile.  Pursuant to the H-1B Visa Reform Act of 2004, which took effect in May 2005, there are an additional 20,000 numbers available for foreign nationals who have received a master’s or higher level degree from a U.S. academic institution.  The availability of an H-1B visa number is pertinent when an employer desires to hire an individual who has never been issued an H-1B within the last six years.  This typically covers those individuals who have just recently graduated and are entering the workforce. It also covers those professional new hires from abroad who are ineligible for L1’s or E’s.

According to USCIS, although the new fiscal year does not start until October 1, 2005, already 21,252 cases have been approved for the new fiscal year and 27,788 cases are pending.  What this means is that if all of these (49,040) cases are approved, then n fewer than 10,000 visa numbers are available until the next fiscal year which starts October 1, 2006.  Our estimate is that these numbers could go very quickly.  Based on the above about 50,000 cases were filed within the last four months.  (The earliest an employer may file a petition for the next fiscal year is six months in advance, or April 1.)  Of the 20,000 additional fiscal year 2006 visa numbers allocated to individuals with advanced U.S. degrees, 4,035 have been approved and 3,849 are pending.  This means that there are only 12,116 advanced U.S. degree H1B visa numbers available. 

From a practical standpoint, this means that all employers must plan ahead.  In the event that you have any intention of hiring an individual who has not received H-1B status within the last six years, the prospective employee is subject to these visa number allocations.   Should you not be able to obtain a visa for your employee this fiscal year, you may have to wait until the next fiscal year which does not start until October 1, 2006.  The best thing to do is to contact your Flynn & Clark attorney to discuss your hiring needs so that we can assist you in planning accordingly.

2. USCIS Implements New L–1 Outsourcing Provisions

U.S. Citizenship and Immigration Services (USCIS) has implemented new provisions for L–1 intracompany transferees that were mandated by the L–1 Visa Reform Act of 2004. Under the new “outsourcing” provisions, L–1B temporary workers can no longer work primarily at a worksite other than that of their petitioning employer if either: (a) the work is controlled and supervised by a different employer; or (b) the offsite arrangement is essentially one to provide a non-petitioning party with local labor for hire, rather than a service related to the specialized knowledge of the petitioning employer.

USCIS said it intends to interpret the “control and supervision” provisions of the new law to require an L–1B petitioning employer “to retain ultimate authority over the worker.” The determination as to whether a Foreign National is or will be employed primarily at a worksite other than that of the petitioner will depend on the specific facts presented. In addition, the bar will not apply if the satisfactory performance of such off-site employment duties requires that the L–1B temporary worker have specialized or advanced knowledge of the petitioning employer’s product, service, or other interests. General skills or duties that relate to ordinary business or work activities would not meet the specialized knowledge test.

These new provisions apply to all L–1B petitions filed with USCIS after June 6, 2005, and include extensions and amendments involving Foreign Nationals currently in L–1 status.

The new provisions also require that all L–1 temporary workers have worked for a period of at least one year outside the U.S. for an employer with a qualifying relationship to the petitioning employer. Previously, participants in the “blanket L–1” program could participate after as little as six months of qualifying employment. This change applies to petitions for initial L–1 classification filed with USCIS after June 6, 2005; extensions of status under the blanket program are not affected.

The press release announcing implementation of the new provisions is available at http://uscis.gov/graphics/publicaffairs/newsrels/L1_VisaReformAct_062305.pdf.

3. Foreign Students May Need to Return to Home Country to Obtain H–1B Visas

Senior immigration officials who spoke late last month at the annual conference of the American Immigration Lawyers Association stated that President Bush wants tighter screening of foreign students. For that reason, the officials said, he prefers that foreign students return to their home countries to obtain H–1B visas because foreign students can be subjected to criminal and security clearances at U.S. consular interviews before they return to the U.S. Action on the President’s preference has not yet been taken.

Meanwhile, U.S. Citizenship and Immigration Services recently announced that approximately 27,300 H–1B petitions are approved or in the pipeline that will be counted against the fiscal year 2006 H–1B cap of 65,000. About 8,300 H–1B petitions that are approved or are in the pipeline will count against the 20,000 exemptions for applicants holding advanced degrees from U.S. institutions for fiscal year 2005.

4. EB–3 Visas Unavailable Until October 1; Relief for Schedule A Workers

The Department of State announced that, as of July 1, 2005, EB–3 immigrant visas are unavailable for the remainder of this fiscal year, until September 30, 2005. 50,000 Schedule A visa numbers unused in previous fiscal years, however, are available for professional nurses, physical therapists, and persons “of exceptional ability in the sciences or arts,” and their accompanying spouses and children. Nurses are expected to benefit particularly from the Schedule A numbers, which are being made available under the REAL ID Act.

The announcement was made in the Department of State’s Visa Bulletin for July 2005, available at http://travel.state.gov/visa/frvi/bulletin/bulletin_2539.html.

5. DHS Updates I–9 Form

U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (ICE) have updated the Employment Eligibility Verification Form (I–9) to eliminate outdated references to the former Immigration and Naturalization Service (INS) and the Department of Justice. USCIS maintains many of the immigration forms that USCIS and ICE inherited from the former INS when the INS’s functions were transferred from the Department of Justice to the Department of Homeland Security (DHS) in March 2003.

The edition date on the updated I–9 reads “(Rev. 05/31/05)Y.”  Employers may meet the requirements by completing an I–9 that has an edition date of either “(Rev. 5/31/05)Y,” “(Rev. 05/31/05)N,” or “(Rev. 11/21/91)N” in the lower right corner.

The DHS is making more substantive changes to the I–9 pursuant to previous rulemakings and plans to introduce a new I–9 at the end of this process.

6. USCIS Introduces New Welcome Guides, Fact Sheets

U.S. Citizenship and Immigration Services (USCIS) has published Welcome to the United States: A Guide for New Immigrants, which includes “how-to” information on a variety of practical topics, such as maintaining status, obtaining a driver’s license or social security number, U.S. history and government, civic rights and responsibilities, obtaining medical care, and becoming a citizen. The guide is available in English, Spanish, Chinese, and Vietnamese; future editions are planned in Korean, Russian, Arabic, Tagalog, Portuguese, French, and Haitian Creole. The free guide, and ordering information for the print editions, are available from USCIS’s website at http://uscis.gov/graphics/citizenship/welcomeguide/index.htm.

USCIS also has released a new series of “How Do I” fact sheets, including series on services for U.S. citizens and for permanent residents. Upcoming fact sheets will include information for nonimmigrants, refugees, asylees, and employers. The fact sheets are available in English and Spanish from USCIS’s website at http://uscis.gov/graphics/services/factsheet/index.htm. 

"Flynn & Clark partner Steve Clark is a Member of Immlaw and a Founding Fellow of the Academy of Business Immigration Lawyers (ABIL). See Recent Articles & News received from ABIL Members:"

• Section 214(b) of the Immigration and Nationality Act (Act) is dreaded by all who apply for a nonimmigrant visa at a U.S. consulate. Consular officers use Section 214(b) as a catch-all provision to deny visas to prospective applicants. This provision allows a consul to presume that every visa applicant is an intending immigrant unless he or she can prove otherwise. Unfortunately, Cyrus D. Mehta points out, Section 214(b) has been broadly applied by U.S. consuls all over the world to deny visas without articulating a reason despite the fact that some nonimmigrant visa categories do not require the applicant to demonstrate that he or she does not have an immigrant intent. In his July 8 article, “Consuls Advised Not to Equate Immigrant Intent with Inadmissibility,” available at http://www.cyrusmehta.com/ (News Articles), Cyrus discusses this phenomenon and a recent Department of State cable, http://travel.state.gov/visa/laws/telegrams/telegrams_2173.html, which advises consular officers to exercise care in making such decisions.

An applicant who has been denied a visa under Section 214(b) without any reason can attempt to take this matter up to the supervising consular official. Under the cable, Cyrus notes, an unsuccessful applicant at least deserves an explanation for the denial under Section 214(b). If no explanation is forthcoming from the U.S. consulate, an advisory opinion with the Visa Office in Washington, DC, can be sought by writing to: legalnet@state.gov.

• Sens. John Cornyn (R-TX) and Jon Kyl (R-AZ) have introduced a bill that seeks to fix a broken immigration system and provide a temporary worker program. Unfortunately, Cyrus notes in his July 23 article, “Cornyn-Kyl Introduce Comprehensive Enforcement and Immigration Reform Act,” available at http://www.cyrusmehta.com/ (News Articles), their proposed legislation is far more restrictive than the previously proposed Secure America and Orderly Immigration Act of 2005, sponsored by Sens. McCain and Kennedy and Reps. Kolbe, Flake, and Gutierrez. If there is a serious impetus toward comprehensive immigration reform in the 109th Congress, Cyrus says, it is likely that pieces from the McCain-Kennedy bill, Cornyn-Kyl bill and other bills yet to be proposed will be adopted in a final legislative package.

• The EB–5 category is becoming more popular. Steve Yale-Loehr has written his annual update for the EB–5 investor green card category, available at http://www.twmlaw.com/resources/immigrant/eb5.html. It was also published in the annual conference handbook of the American Immigration Lawyers Association. See http://www.twmlaw.com/EB5NYLJ0405.html for an overview of recent changes to the category. Steve has set up a new Immigrant Investor Association to promote the interests of EB–5 investors, developers, and promoters. For more information, e-mail Steve at syl@twmlaw.com. 

Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Centers: https://egov.immigration.gov/cris/jsps/index.jsp

Department of Labor: http://www.ows.doleta.gov/foreign/times.asp

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

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

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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.