United States: Immigration Advisory - Fall 2005

The United States Citizenship and Immigration Service (USCIS) announced in early August that it has received enough applications for H-1B status for Fiscal Year 2006 to fill the entire quota of 65,000, and no new applications will be considered. FY 2006 does not start until October 1, 2005 and ends September 30, 2006. April 1, 2006 will be the earliest date on which USCIS will accept filings for October 1, 2006 H-1B start dates.

There are important exceptions to the "H-1B cap." First, not every H-1B applicant is subject to the cap. If an applicant was granted H-1B status in the past six years and has not left the U.S. for more than a year after obtaining such status, and if the applicant has already been counted against a prior cap in the past six years, then this worker is not subject to the cap. The applicant would likely not have been counted against a prior cap if he/she was sponsored by either an institution of higher education or a non-profit organization or entity related to of affiliated with an institution of higher education, or a non-profit research organization or governmental research organization. Likewise, an applicant is not subject to the cap if the new employer now sponsoring the H-1B is an institution of higher education or a non-profit organization or entity related to of affiliated with an institution of higher education, or a non-profit research organization or governmental research organization. Second, there are an additional 20,000 H-1Bs available each year for holders of U.S.-earned Master’s or higher degrees. These continue to be available for both FY 2005 and FY 2006, though the exact number remaining is not clear. Third, nationals of Chile and Singapore have part of the 65,000 total H-1Bs reserved specially for them under treaties between the U.S. and those countries, and can continue to seek H-1B status until the reserved allotment runs out. Note: it is possible that after October 1, USCIS will add any remaining unused H-1Bs from the FY 2005 allotment to Chile and Singapore to those available to the rest of the applicants, but USCIS has not made any comment on whether this will happen and how they intend to dole out these prized visa numbers.

While various groups are lobbying Congress to address the staffing problems caused by the quota being depleted so quickly, there may be other options available to employers seeking to utilize the skills of foreign nationals:

The foreign national must be 20-38 years old, and possess education or training relevant to the traineeship proposed in the U.S. Generally J-1 Traineeships are obtained through J-1 Umbrella Agencies, and are granted for a maximum period of 18 months. Nationals of some countries gaining skills in certain specific areas may be subject to a two-year home country residence requirement prior to being able to return to the U.S. in H-1B or permanent residency status.

Citizens of Canada and Mexico working in certain specific professions on NAFTA’s Schedule 2 may be eligible for TN classification. No prior approval by USCIS is required so eligible TN applicants may apply in their home country. As Canadians do not require visas, they may apply directly at border posts or pre-flight inspection. Mexican nationals must apply for TN visas at the appropriate U.S. consulate in Mexico. TN status is issued for one year at a time, but may be extended on a yearly basis as long as the applicant can continue to prove he/she has strong ties abroad. Canadians may extend their status while in the U.S. either by filing an application with the USCIS Nebraska Service Center, or by applying at the border or pre-flight inspection. Mexicans may extend TN status either by applying for an extension through the USCIS Nebraska Service Center, or by applying for a new TN visa at a consulate.

A foreign national who has worked for at least one year in the last three years in an overseas office that is related to the U.S. sponsor as a Parent, Subsidiary, Branch, or Affiliate, may be eligible for an L-1 Intracompany Transferee visa. In order to qualify, the employee must be working in a capacity as a "manager" or "executive" or have "specialized knowledge" as defined by the USCIS regulations. Managers (L-1A Status) are eligible for 7 years in L-1A status, and Specialized Knowledge employees (L-1B Status) are eligible for 5 years.

"Visitor for Business" status may be appropriate in some instances, if the foreign national is paid outside of the U.S., and does not engage in hands-on "productive work." This would be most useful in a situation where the employee is put on a foreign payroll, but needs to visit the U.S. to attend meetings, and confer with colleagues. Some countries are covered by the Visa Waiver program, and nationals of these countries can enter the U.S. for B-1 purposes for a non-extendable period of 90 days per entry. Nationals of other countries must obtain a B-1 visa prior to entry, and are allowed into the U.S. for periods ranging from 90 days to 180 days. The B-1 may be extended for a total period of one year, in some cases.

Many foreign countries have treaties of friendship, commerce, or investment with the U.S. that permit foreign nationals of those countries to enter the U.S. to either carry on substantial trade which is international in scope and is principally between the U.S. and the foreign country; develop and direct the operations of an enterprise in which the foreign national has invested (or is in the process of investing) a substantial amount of capital; or work as a key employees of either such trade or investment entities.

Australian Citizens have recently had a special category created for them by treaty. The E-3 visa is available to Australian nationals who enter the U.S. to work in a "specialty occupation." A "specialty occupation" is defined similarly to the definition used for H-1B professionals. The statutory definition of "specialty occupation" is "...an occupation that requires- (A) theoretical and practical application of a body of specialized knowledge; and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States." Examples include lawyers, physicians, engineers, accountants, etc.E-3 visa holders can work for any U.S. employer and the employer does not have to be majority-owned by citizens of their home country.

This visa status is available for Aliens of Extraordinary Ability in the sciences, arts, education, business, or athletics, or for those who have a demonstrated record of extraordinary achievement in the motion picture or television industry. Criteria for the O-1 consists of receipt of a major, internationally recognized award, such as the Nobel Prize; or at least three of the following forms of documentation: (1) Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor; (2) Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; (3) Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation; (4) Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought; (5) Evidence of the alien’s original scientific, scholarly, or business-related contributions of major significance in the field; (6) Evidence of the alien’s authorship of scholarly articles in the field, in professional journals, or other major media; (7) Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or (8) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence. O-1 Status is granted for 3 years, and can be extended in 1 year increments.

Important Note: When seeking out alternatives to H-1B, do not forget that spouses of L-1, E-1, E-2 and J-1 foreign nationals are permitted to have work authorization. It may be that the best strategy to have a key worker start on your payroll is to investigate what opportunities the worker’s spouse has to enter the U.S. in L, E, or J status.

The U.S. Department of Homeland Security (DHS) has created a new non-immigrant visa category for Australians who work in "specialty occupations." DHS has been quiet on the topic of why Australians are receiving special treatment. Similar to the H-1B visa, the E-3 requires the Australian national applicant to prove that he/she has the equivalent of a Bachelor’s Degree and is coming to the U.S. to work in a professional position that requires a minimum of a Bachelor’s Degree. The U.S. employer must sign an attestation confirming that U.S. workers have not been compromised by the hiring of the E-3 applicant, and that at least the prevailing wage is being paid. On September 2, 2005 the U.S. State Department announced procedures for Australian citizens to obtain E-3 visas in either Australia or in Toronto, Canada. CIS has indicated that it will soon implement procedures for qualifying applicants to obtain a change of status to E-3 here in the U.S. Spouses and children of the primary applicant do not need to be Australian to join the primary applicant.

As we previously reported, the U.S. Department of Labor (DOL) re-wrote the rules of its labor certification program, which allows a U.S. employer to sponsor a foreign national worker for permanent residency if it can prove that there are no available and qualified U.S. workers to fill a certain job. For background on this new PERM labor certification program, see the previous Mintz Levin Immigration Alert on PERM Regulations.

Over the summer, much has been learned about how the PERM program is working. We know that many, but not all, labor certification applications are being adjudicated within 60 days of filing, as promised by DOL. Most bona fide applications have been approved without any audit. While at first there were reports of many applications being denied due to technical glitches, DOL seems to have cleared up such processing problems and those applications have been re-considered and most applications have been approved. Of those cases which have been audited by DOL, the audits have mostly consisted of requests to mail to DOL the entire recruitment file documenting all recruitment efforts, all resumes received, business necessity letters to justify requirements not "normal" to the occupation, and recruitment wrap-up letters explaining why applicants were not qualified for the job. Our protocol is to have this documentation in place prior to filing with DOL.

One question that many employers and foreign national employees are asking is whether a PERM application can be filed on behalf of a foreign national who already has a labor certification pending that was filed under the RIR or Regular Recruitment process prior to the March 2005 change in rules. It is clear that two labor certification applications may not be pending at the same time IF the PERM application seeks to retain the original "priority date" (place in the queue for those foreign nationals subject to backlogs, such as Chinese and Indians). But for those who do not care if a new priority date is attached to the application, DOL has wavered on its answer. The regulations appear to permit two such filings, but in an August 8, 2005 statement, DOL said that it is not permitted to have two such applications pending at the same time, and warned employers that if they did not withdraw a prior labor certification application for the same employee when it filed a PERM application, then DOL would void the first filing on its own. But on August 24, 2005, the DOL withdrew this opinion and instead stated that it needs to give additional consideration and scrutiny to the question of whether an employer may file a PERM application for a foreign national worker and maintain a pending labor certification filed prior to the March 2005 change in rules. DOL said that a policy on multiple filings will be forthcoming. As we watch for DOL’s answer, we continue to advise clients on a case by case basis as to the proper strategy for filing a PERM application for employees who already have a pending labor certification application.

There is still much unknown about PERM and the ultimate decision of whether to file or not must be made on a case by case basis.

As the holidays fast approach it is time to review your travel documents if you plan on traveling internationally. Taking the time to consider options well in advance of travel can help make your return to the United States relatively stress-free.

Advance Parole
Advance Parole is a travel document allowing most foreign nationals who have pending applications for certain immigration benefits to re-enter the U.S. after traveling abroad. Applications for advance parole should be approved before departing the U.S. Unless you have H-1B or L-1 status, departing the U.S. without an approved advance parole document will void a pending application to adjust status to permanent residency (Form I-485).

Processing times for advance parole travel documents are running anywhere from 60 to 90 days at three of the four USCIS Service Centers, but it currently takes in excess of five months at the Nebraska Service Center (see USCIS Processing Times for current processing times). There is no rule requiring USCIS to process these applications in a set time period and USCIS will not issue advance parole at a local office unless it is an extreme emergency.

Without an advance parole document, you need to make sure you have a valid visa stamp in your passport in order to re-enter the United States. Your visa stamp must match the status in which you intend to enter, but it does not have to match your current employer in some circumstances. For example, if you obtained H-1B status with Employer A and obtained an H-1B visa with that employer’s name printed on the visa stamp, this visa remains valid until its expiration even if you now work in H-1B status for Employer B.

If you need a new visa, it must be obtained at a U.S. Consulate abroad. The first option is to make an appointment with the U.S. Consulate in your home country. We cannot stress enough the importance of making this appointment sooner rather than later. Consulates face heavy demands for visas and processing delays can be considerable due to security checks. You can check current processing times at U.S. consulates at http://travel.state.gov/visa/temp/wait/tempvisitors_wait.php.

A second option is to obtain your visa in a third country. Most consulates permit third country processing if you can prove you are in that third country for a legitimate purpose (see the web site for each consulate at www.state.gov). Canada and Mexico permit visa processing even if you entered those countries for the sole purpose of visiting the U.S. consulate to obtain a visa. To check appointment availability in Canada or Mexico, please log on to www.nvars.com to find available appointments at all U.S. consulates in Mexico or Canada. As mentioned above, please allow enough time for your trip to Canada and Mexico for the Consulate to process your application. Also, you need to check Canadian and Mexican entry requirements to see if you require a visa to enter these two countries.

For most people, travel to Canada, Mexico or a contiguous island for less than 30 days does not require a valid visa in order to return. An expired visa may be used, even if in the wrong classification. Caveat: This automatic revalidation rule will not be recognized for persons who have been to a U.S. consulate seeking a visa and were denied. In such a case, you will not be allowed to reenter the U.S. and must return to your home country to obtain the visa stamp. So plan accordingly and make sure to have all necessary documents with you. Check with your attorney prior to using automatic revalidation.

Conclusion
With enough planning, you should be able to obtain the necessary travel documents to help facilitate your return to the U.S. with minimal inconvenience. For general information on visa requirements please see www.unitedstatesvisas.gov or www.travel.state.gov.

Last year Congress passed the L-1 Visa Reform Act of 2004 amending two key provisions relating to L-1 processing. Both of those provisions have been in place for several months and we can now provide an update on processing issues.

Collection of the $500 Anti Fraud Fee for Blanket L Applicants The first change was the implementation of a new $500 anti-fraud fee for both L-1 and H-1B cases filed after March 8, 2005. For individual L-1 petitions filed with the Service Centers in the U.S., the collection of this fee has been routine. It is collected with the normal filing fees submitted with an L-1 petition. The same is true for Canadians filing L-1 applications in person at the border pursuant to NAFTA. There has been confusion regarding payment of this fee at U.S. Consulates L-1 applicants under a blanket petition. Now most U.S. Consulates have updated their web sites to clarify that applicants for a blanket L visa must pay the $500 at the time the applicant appears for the visa interview at the Consulate. Most Consulates require the $100 application fee be paid in advance to the Consulate’s account at a local bank, but the $500 anti fraud fee is not paid at this time.

The L-1 Visa Reform Act also clarified that L-1B workers with specialized knowledge cannot be stationed primarily at a worksite other than the petitioning employer’s if the L-1B worker will be principally under the control and supervision of an unaffiliated employer or if the placement at the non-affiliated worksite is a labor for hire arrangement for the unaffiliated employer. This clarification in the law was a reaction to abuses by certain employers in the U.S. outsourcing their L-1 employees to other worksites. The L-1 rules have always implicitly prohibited this activity since the very nature of an L-1 intracompany transfer is to work for a related company in the U.S. This new law, which became effective on June 6, 2005, simply made this prohibition explicit.

A memorandum from Citizenship and Immigration Service headquarters in Washington was sent to all field offices on July 28, 2005 discussing the implementation of this law and how adjudicators should handle L-1B petitions. This memo revises the Adjudicator’s Field Manual to instruct service center examiners to evaluate first whether a majority of the L-1B worker’s time will be spent at an offsite location. If so, the examiner is instructed to determine whether the L-1 worker is principally controlled by employees at the offsite location. The memo makes it clear that some control of L-1B employees by an unrelated company is still allowed so long as the primary control is exercised by the related company. A second inquiry is for the examiner to determine whether the placement at the offsite location is in connection with providing a product or service for the petitioning employer or whether the placement is merely labor for hire. The latter is not allowed in the L-1 context.

USCIS forms have been revised to require employers to attest whether a transferred L-1B worker will work primarily offsite and if so, to explain the nature of that work and how the L-1B employee will be supervised.

One year of qualifying employment for L-1 blanket applications. A provision requiring that all L-1 applicants, even those under blanket petitions, have a full year of qualifying employment with a related company outside the U.S., went into effect on June 6, 2005. For a short time, applicants under a blanket L-1 were allowed to qualify with only 6 months of qualifying employment. Now the law has reverted back to its prior state of requiring a full one-year period of employment with the overseas employer, within the three-year period preceding admission to the U.S.

A number of comprehensive immigration reform bills have been introduced in the current Congressional Session. One that offers significant hope to American businesses and family reunification is Senator John McCain’s (R-AZ) and Senator Edward Kennedy’s (D-MA) The Secure America and Orderly Immigration Act. Among its many provisions, this Act would introduce a new worker program for shortage occupations to be known as the H-5A visa. The Act’s provisions would provide a mechanism by which eligible undocumented immigrants present in the U.S. on the date of the bill’s introduction could obtain temporary nonimmigrant status and have a meaningful opportunity to become permanent residents. Horrendous waiting backlogs for family-based permanent residency will be reduced, as this is a leading cause for illegal entry into the United States. Next, The Agricultural Job Opportunities, Benefits, and Security Act of 2005 (AgJobs) (Senator Larry Craig, R-ID, and Edward Kennedy, D-MA) would provide for an earned adjustment program for undocumented farm workers who would be eligible to apply for temporary immigration status based on their past work experience, and could become permanent residents upon satisfying prospective work requirements. A bill offered by Senators John Cornyn (R-TX) and Jon Kyl (R-AZ), The Comprehensive Enforcement and Immigration Reform Act of 2005, actually is not "comprehensive" since it does nothing to help businesses or families. It focuses mainly on enforcement measures toward undocumented immigrants. While it does provide for a temporary work program, the Act would provide no method by which these workers could move into permanent resident status, nor does it reduce waiting times for family reunification.

Other Congressional proposals introduced in the current legislative session focus on reforming specific existing visa programs. The American Competitiveness through International Openness Now (ACTION) Act of 2005 (Senator Norm Coleman, R-OR), would require the President, in consultation with universities and other organizations, to develop a strategic plan for enhancing the access of foreign students, scholars, scientists, and exchange visitors to the United States for study and exchange activities. Among the issues it targets are improvements in visa processing at U.S. Consulates, with particular attention paid to visiting foreign students. In particular, the bill would give consular officials greater discretion in waiving visa interviews, amend the presumption that prospective students are intending immigrants, reduce some SEVIS fees, and provide discretion to issue visitor rather than student visas for individuals entering for short-term English language programs. The bill would also target standards for timeliness in security reviews of pending applications.

In the House, Representatives Rosa DeLauro (D-CT) and Nancy Johnson (D-CT), have introduced their own bills targeting the H-1B and L-1 visa programs. Rep. DeLauro would place restrictive limits on the L-1 visa, including a 35,000 visa cap per year, require certain DOL attestations, and abolish the Blanket L-visa program. Rep. Johnson would provide greater monitoring and enforcement authority to the Department of Labor over the H-1B and L-1 visa programs, including L-1 attestation requirements and universally apply "H-1B dependent" provisions to all H-1B employers and not just those who employ a relatively large percentage of H-1B employees.

Senator Patrick Leahy (D-VT) is spearheading efforts on The United American Families Act or the Permanent Partners Immigration Act which would provide a mechanism by which U.S. Citizens and lawful permanent residents could sponsor their permanent partners for residence. A permanent partner would be defined as an individual 18 years of age or older who a) is in a committed, intimate relationship with another individual also 18 years of age or older in which both parties intend a lifelong commitment; b) is financially interdependent with that other individual; c) is not married to or in a permanent partnership with anyone other than that individual; d) is unable to contract with that other individual a marriage cognizable under the INA; and e) is not a first, second, or their degree blood relation. Senator Jerrold Nadler (D-NY) and 57 other co-sponsors have introduced similar legislation in the House.

Also introduced in this Congressional Session are a number of restrictive immigration bills. The following is a list of some of the more striking measures introduced: 1) The Rewarding Employers that Abide by the Law and Guaranteeing Uniform Enforcement to Stop Terrorism Act (REAL Guest), introduced by Rep. Tom Tancredo (R-CO), would make unlawful presence a felony, impose severe restrictions on the use of H nonimmigrant visas, suspend the Visa Waiver Program, authorize the use of military troops at the border, and encourage state and local enforcement of immigration laws; 2) The Emergency Immigration Workload Reduction and Homeland Security Enhancement Act, introduced by Rep. Sam Graves (R-MO) would "temporarily suspend" both immigrant and nonimmigrant visa programs, adjustment of status, visa waiver program, and temporary protected status renewals, among other measures; and 3) H.R. Bill 1325, introduced by Rep. Tancredo would repeal the H-1B program.

As of June 26, 2005, all individuals entering the U.S. under the Visa Waiver Program (VWP) must have a machine-readable passport in order to enter the U.S. without a visa. Transportation carriers will be fined $3,300 for transporting any VWP traveler into the U.S. without such a passport and those travelers should not anticipate being granted one-time entry into the country. The 27 countries participating in the VWP include: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. An example of a machine-readable passport may be found online at the US Department of State Bureau of Consular Affairs Website. (Click here)

The Department of Homeland Security’s US VISIT Program (United States Visitor and Immigrant Status Indicator Technology Program), has increased its efforts toward achieving an integrated, automated entry-exit system. Current efforts expand the program by establishing a limited testing program for automatically documenting exits and any subsequent re-entries of nonimmigrant travelers at five United States land border ports-of-entry crossings utilizing radio frequency identification (RFID) technology. Passive RFID tags will contain unique identification numbers in a tag embedded into the Forms I-94 provided to a nonimmigrant traveler. The chip will contain only a unique identifier for the Form I-94 and will not contain any information about the traveler. The initial phase of this program will test the optimal distance at which the tag can be read during the traveler’s exit and any subsequent re-entry as well as the tag’s effectiveness and accuracy. (RFID technology has been employed for several years now by the Department of Homeland Security in connection with dedicated commuter lane programs; the technology will now be improved by matching biographic and/or biometric data to the Form I-94 with an imbedded chip).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.