FLYNN & CLARK, P.C.
STEVEN A. CLARK

Headlines:

Ø      1. H-1B Cap Reached Earlier Than Expected – USCIS announced that the H-1B cap for fiscal year 2007 has been reached.

Ø      2. USCIS to Expand Premium Processing Service to Most Employment-Based Green Card Petitions - USCIS will soon open the agency's premium processing service to nearly all employment-based green card applications.

Ø      3. Senate Passes Immigration Legislation, Compromise With House Remains Uncertain - The Senate has passed sweeping immigration reform legislation that includes both a guestworker program and enforcement components.

Ø      4. Many Hondurans, Nicaraguans in Danger of Losing Work Authorization; Salvadorans Face TPS Renewal Period at End of Summer - Hondurans and Nicaraguans who are re-registering for TPS after the June 1 re-registration deadline may submit their applications with a letter explaining a "good cause for failure to timely file."

Ø      5. USCIS Reminds Adjustment Applicants to Obtain Advance Parole Before Summer Travel - Persons failing to do so may have their immigration benefit applications denied.

Ø      6. Hearings Focus on Physicians for Underserved Areas, Impact of Visa Delays - The House of Representatives recently held hearings on foreign doctors who work in underserved areas and the impact of visa processing delays on the arts, education, and American innovation.

Ø      7. DHS Cracks Down on Nonimmigrant Visa Overstays, Worksite Violations - The DHS is increasing visits to nonimmigrants with expired status and stepping up enforcement actions against employers.

Ø      8. Third Preference "Other Worker" Visa Category Becomes Unavailable - The employment-based third preference “Other Worker” green card category will remain unavailable for the remainder of the fiscal year.

Ø       9. Labor Dept. to Close America's Job Bank - The Department of Labor has informed states that America's Job Bank will close by June 30, 2007.

Ø      10. DOS Amends Regulations to Require Mexican Passport for BCC/Laser Visa Application - The presentation of a Mexican federal passport is now a necessary condition for Mexican citizens applying for combined Border Crossing Cards (BCCs) and B-1/B-2 visas (laser visas).

  Ø    11. Recent Flynn & Clark News - Steven A. Clark is scheduled to be a panelist in the 2006 Annual Immigration Conference finale on PERM Labor Certification's in San Antonio, Texas in June, 24, 2006.

Also in this issue:

Recent News from ABIL Members

Links

Details...

1. H-1B Cap Reached Earlier Than Expected

U.S. Citizenship and Immigration Services (USCIS) has announced on May 28, 2006 that as of May 26, 2006, the "regular" H-1B visa numbers for start dates effective October 1, 2006, have been used up.  This came as a shock to the immigration community which was told several days earlier on May 25, that as of that date, some 12,000 visa numbers remained.  USCIS offered the explanation that 12,000 additional cases were in unopened envelopes in its mailroom, and it had neglected to inform the public that the numbers posted on its website were therefore not a true reflection of how few numbers remained.  Cases received on the final day, May 26, will be issued receipts and USCIS will randomly select cases received on that day until the final cap count is reached.  Refunds will be issued to those not selected.

Approximately 5,900 of the 20,000 additional numbers set aside for candidates with a U.S. master's degree have been spoken for.  Of these, about 1,700 have been approved and 4,200 are still pending.  Thus, if the numbers posted by USCIS can be relied upon, there is an opportunity to file for those holding a U.S. master’s degree or higher in the coming weeks or months.  Obviously such applications should be filed as soon as possible since it is impossible to forecast when the numbers for master’s degree cases will be met.

It is also still possible to obtain H-1B status with an immediate start date for "new" employees who currently maintain H-1B status with another employer, or who previously have been in H-1B status in the past six years and subsequently have been absent from the U.S. for less than one year.  So, H-1B extension are not affected by the cap

Also the following types of entities may petition for “new” H-1B employees with an immediate start date:  Institutions of higher education, related or affiliated entities, and nonprofit or governmental research organizations.  They are exempt from the cap and may continue to obtain H-1B status for new employees.

The USCIS's H-1B notice is at: http://www.uscis.gov/graphics/services/tempbenefits/cap.htm.

2. USCIS to Expand Premium Processing Service to Most Employment-Based Green Card Petitions

U.S. Citizenship and Immigration Services (USCIS) published a notice in the Federal Register on May 23, 2006, that will soon open the agency's premium processing service to nearly all Form I-140 employment-based immigrant worker petitions (also known as green card applications).  The agency also will extend premium processing to certain Form I-539 applications to change or extend nonimmigrant status, as well as to Form I-765 applications to renew employment authorization for foreign nationals with pending employment-based applications for adjustment of status.

USCIS's premium processing program allows petitioners and applicants to request expedited adjudication of certain cases.  Upon payment of a $1,000 fee, designated applications and petitions are slated for adjudication within 15 calendar days of filing.  If the agency does not act on the case within the stated period -- by issuing an approval, a denial or a request for evidence in the case -- the $1,000 fee is refunded.

USCIS will extend premium processing service to Form I-765 applications to renew employment authorization for foreign nationals who have pending Form I-485 applications to adjust status that are supported by immigrant visa petitions in the employment-based classifications (EB-1 thru EB-5).

In addition, USCIS will permit concurrent filing of Forms I-539 to extend or change nonimmigrant status and I-765 to apply for employment authorization for certain nonimmigrant classifications.  Premium processing, if requested, will apply only to Form I-539. USCIS will not guarantee 15-day processing for an I-765 filed concurrently with a premium-processed I-539.

The USCIS premium processing notice is at: http://frwebgate5.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=398853149330+2+0+0&WAISaction=retrieve.  A separate USCIS notice clarified that USCIS Service Centers will not accept filings for any of these form types under the premium processing service until a formal announcement is made on the USCIS Web site announcing the specific start dates for acceptance of the new form types.  Until that date is established and announced, USCIS Service Centers will reject any premium process filings for I-140s, I-539s or I-765s.  That USCIS clarification is at http://www.uscis.gov/graphics/publicaffairs/statements/PremProcess052406PN.pdf.

3. Senate Passes Immigration Legislation, Compromise With House Remains Uncertain

On May 25, 2006, after months of back-and-forth wrangling, the U.S. Senate passed S. 2611, a sweeping immigration reform package that includes both a guestworker program and border control and enforcement components.  The House of Representatives passed its own version of immigration reform legislation last December (H.R. 4437).  The House bill focuses on border enforcement and lacks a guestworker program.  The two bills must be reconciled before a final bill can be enacted.  In hopes of bringing the immigration reform legislation to a conclusion, Senate majority leader Bill Frist (R-Tenn.) is calling for swift negotiations with the House of Representatives. 

Finding a compromise may be difficult because the two bills are so different.  Rep. James Sensenbrenner, Jr. (R-Wis.), however, who will lead the House negotiators, signaled a general willingness to compromise: "I don't think anything is a deal-breaker. We can't have legal proceedings to deport 11 to 12 million people; that is evident."

The Senate bill contains numerous business-related provisions.  For example, the Senate bill would:

•     Raise the cap on H-1B nonimmigrant visas for highly educated temporary workers to 115,000 -- with a flexible market-based annual adjustment.

•     Raise the employment-based green card cap and exempt key categories of workers from the cap.

•     Provide exemptions for both H-1B and employment-based green card caps for certain workers who have earned an advanced degree in science, technology, engineering or mathematics.

•     Allot two-thirds of the 50,000 green cards granted annually by the diversity visa lottery to those with advanced degrees.

•     Establish a new electronic employment verification system that would replace the current paper-based I-9 system.

Meanwhile, the Bush administration said the "five clear objectives of comprehensive immigration reform" include "securing our borders, creating a temporary worker program, making it easier for employers to verify employment eligibility and continuing to hold them to account for the legal status of workers they hire, dealing with the millions of illegal immigrants who are already here, and honoring the great American tradition of the melting pot."

A White House fact sheet on comprehensive immigration reform is at: http://www.whitehouse.gov/news/releases/2006/05/20060515-7.html.

4. Many Hondurans, Nicaraguans in Danger of Losing Work Authorization; Salvadorans Face TPS Renewal Period at End of Summer

As of May 25, 2006, fewer than half of Hondurans in the U.S. under the temporary protected status (TPS) program have re-registered to meet the June 1 re-registration deadline, sources say.  Many of the 75,000 eligible Hondurans reportedly are awaiting immigration legislation they believe is imminent, and they do not want to spend several hundred dollars to renew their TPS if they may have a chance to apply for permanent resident status under new legislation.  Lawyers and advocates warn that many could lose their work authorization as a result, placing them in illegal status after their TPS expires on July 5, 2007, and thereby rendering them potentially ineligible for citizenship in the future.  "It is a serious problem.  We believe they are wasting their opportunity to continue having an employment authorization document," said Antonio Amaya, executive director of La Comunidad, Inc., an immigrant services organization in Massachusetts.

There also are about 4,000 Nicaraguans in the U.S. under TPS, with the same deadline as the Hondurans.  Only 1.700 had renewed their TPS as of May 25.  The later re-registration period for approximately 225,000 Salvadorans in the U.S. under TPS is expected at the end of this summer.  Advocates report that Salvadorans seem more aware of the risk of allowing their TPS status to lapse.  Salvadoran TPS expires on September 9, 2007.

U.S. Citizenship and Immigration Services (USCIS) instructs Hondurans and Nicaraguans who are re-registering for TPS after the June 1 re-registration deadline to submit their applications with a letter explaining a "good cause for failure to timely file" (by USPS or other carrier) to:

Vermont Service Center
Attn: TPS Good Cause Exception
75 Lower Welden Street
St. Albans, VT 05479-0001

Additional information and details on the TPS requirements and deadlines for the three groups, including information on late initial registration and links to the relevant Federal Register notices, are available at: http://www.usdoj.gov/crt/osc/htm/work_extension.html and http://www.uscis.gov/graphics/services/tps_hond.htm.

5. USCIS Reminds Adjustment Applicants to Obtain Advance Parole Before Summer Travel

Citizenship and Immigration Services issued a statement on May 24, 2006, reminding those who have: (1) been granted temporary protected status; (2) applied for adjustment of status; (3) applied for relief under the Nicaraguan Adjustment and Central American Relief Act; or (4) filed asylum applications that they must apply for and obtain advance parole (permission to re-enter the U.S.) at a USCIS Service Center before traveling abroad.  Persons failing to do so may have their immigration benefit applications denied. 

The announcement is available at: http://www.uscis.gov/graphics/publicaffairs/newsrels/TravAdvisory052406PR.pdf.  Additional information on how to apply for various travel documents is at: http://www.uscis.gov/graphics/howdoi/travdoc.htm.  The I-131 Application for Travel Document is at: http://www.uscis.gov/graphics/formsfee/forms/files/I-131.pdf.

6. Hearings Focus on Physicians for Underserved Areas, Impact of Visa Delays

The House Judiciary committee held a hearing on May 18, 2006, on H.R. 4997, the Physicians for Underserved Areas Act. 

The bill would reauthorize the J-1 visa waiver program, which provides opportunities for graduates of foreign medical schools who have trained in U.S. medical residency programs on J-1 cultural exchange visas to stay in the U.S. if they serve for three years in a designated health professional shortage area.  Such areas are located in both rural and urban areas. 

Leslie G. Aronovitz, Director of Health Care for the U.S. Government Accountability Office, (GAO) testified that the use of J-1 waivers remains a major means of placing physicians in underserved areas of the U.S., with more than 1,000 waivers requested in each of the past three years for physicians to practice in nearly every state.  About 44 percent of states' waiver requests in fiscal year 2005 were for physicians to practice exclusively in primary care, while about 41 percent were for physicians to practice in nonprimary care specialties such as anesthesiology or cardiology.  An additional seven percent were for physicians to practice psychiatry.  More than three-fourths of the states' waiver requests were for physicians to work in hospitals or private practices.  The GAO also noted that over 6,100 foreign physicians with J-1 visas took part in U.S. graduate medical education programs during academic year 2004-05, which was about 40 percent lower than was the case a decade earlier.  The reasons for the decline are not completely understood.

The GAO noted that some states filled the per-state 30-waiver limit, but others reported needing more.  Some states that had a sufficient allotment expressed their willingness under certain circumstances to share their allotment, but such redistribution would require legislation.

The GAO's testimony is at: http://www.gao.gov/new.items/d06773t.pdf   The hearing testimony on physicians in underserved areas is at: http://judiciary.house.gov/hearings.aspx?ID=142.

Also, the House Government Reform committee held a hearing recently on the impact of visa processing delays on the arts, education, and American innovation.  Committee chairman Tom Davis (R-Va.) noted that U.S. businesses need to be able to bring foreign partners and customers in on short notice; U.S. universities need to continue attracting top foreign students, many of whom will choose to stay in the U.S. and bolster the economy as a result; and "the U.S. cultural scene will continue to remain vibrant only as long as foreign artists are able to bring their work to American stages and galleries."  He also noted that trade shows and arts presenters in particular "represent a significant segment of the U.S. economy, comprised largely of small businesses that don’t always have the resources to cope with the significant additional expense of an inefficient visa process."

The hearing testimony on visa delays, which includes an eloquent statement by famed cellist Yo-Yo Ma, among others, is available at: http://reform.house.gov/GovReform/Hearings/EventSingle.aspx?EventID=41471.

7. DHS Cracks Down on Nonimmigrant Visa Overstays, Worksite Violations