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May 31, 2005
H-1B visas for private for profit companies
The H-1B visas for private for profit companies will become available on October 1, 2005. There will be 65,000 H-1B visas for which applications are currently being accepted. Last week I applied for a client and received e-mail approval before the end of the week. My client will be able to begin work on the first of October. My client applied using premium processing to receive a response within 15 business days. My and I handled the entire application using web based processing, long distance phone calls, express packages and e-mails. The employer is located in a different state from where the prospective employee initially applied. Both are located in different states from my office physical location. Having a web based practice allows efficient web processing of cases. The traditional brick and mortar concept is not relevant to current day web transactions.
Posted by VisaLawyer at 12:05 PM | Comments (0)
May 30, 2005
Need for immigration reform
There was a good article in the LATimes yesterday about the need for workers in the U.S. The shortage has cause many employers and employees to be forced not to follow the law. Our broken immigration laws need reform to reflect economic reality. This reform would help by bringing about a set of immigration laws that make sense to employers and employees. It makes no sense to have a broken set of law. Here is the LATimes article;
Employers of Illegal Immigrants Face Little Risk of Penalty
The owners of hotels, farms, restaurants and retail stores who
hire illegal workers - never widely sanctioned to begin with - now
face a negligible risk of being penalized. By Anna Gorman.
http://email.latimes.com/cgi-bin1/DM/y/epSp0KMvyp0G2B0GeYt0EP
Posted by VisaLawyer at 10:55 AM | Comments (0)
May 29, 2005
Free Question about H-1B visas
Every day I receive questions from my website. The more detailed the question the better I am able to respond. Be sure to include your telephone number so that I may contact you. I have been receiving a lot of questions from college graduates about applying for an H-1B visa. Locate a job offer and my office can prepare your visa within 72 hours.
Posted by VisaLawyer at 10:32 PM | Comments (0)
May 28, 2005
Carmen Ceja/Ceja Enterprises, Inc. cese y se abstenga de representar indocumentados, traducción de Eliud Treviño
Bajo el sello de la Oficina Ejecutiva de Revisor de Inmigración-U.S.
Departamento de Justicia
Oficina Ejecutiva de Revisor de Inmigración
Oficina del Concilio General
Barra del Concilio
5107 Leesburg Pike, Suite 2600
Falls Church, Virginia 22041
Mayo 11, 2005
Carmen Ceja
Ceja Enterprises, Inc.
4025 Nolensville Road
Nashville, TN 37211
Estimada Ms. Ceja:
Recientemente se me ha llamado la atención en esta oficina de que ha estado haciendo representaciones en su negocio, Ceja Enterprises, Inc., y que est
Posted by VisaLawyer at 08:48 AM | Comments (0)
May 27, 2005
Obtaining Proof of Filing of Labor Certification Application
The following information was provided by DOL with respect to how to obtain documentation from a DOL Backlog Reduction Center that a labor certification application was filed more than 365 days ago:
“Procedure for requesting extension documentation: we ask that employers/attorneys provide a single request which includes: 1) the name of the employer, 2) the name of the alien, 3) the State in which the application was filed, 4) the approximate filing date, and 5) the State case number, if possible. We will obtain information regarding the priority date and then will write a letter to the employer/attorney confirming the priority date and stating that the application is still pending.”
AILA members report having more success with the Dallas Center when they make the request by fax and more success with the Philadelphia center when submitting by mail.
Contact information for the Service Centers is:
Dallas Backlog Processing Center Address: ETA/DFLC Backlog Processing Center, U.S. Department of Labor, 700 North Pearl Street, Suite 400 N, Dallas, TX 75201, Phone: 214-237-9111, Fax: 214-237-9135.
Philadelphia Backlog Processing Center Address: ETA/DFLC Backlog Processing Center, U.S. Department of Labor, 1 Belmont Avenue, Suite 200, Bala Cynwyd, PA 19004, Phone: 484-270-1500, Fax: 484-270-1600.
Posted by VisaLawyer at 03:01 PM | Comments (0)
Los Angeles Mayor-elect Antonio Villaraigosa repeatedly pledged that the team would find "the best and the brightest"
There is an interesting article in the LA Times about Mayor-elect Antonio Villarigosa where he is creating his network to help administer the city. Go to; "New Mayor Names Team
Eighty-one civic, labor and political leaders will help Villaraigosa build his administration. Bob Hertzberg, a former opponent, is chairman. By Jessica Garrison. http://email.latimes.com/cgi-bin1/DM/y/epRD0KMvyp0G2B0GeQD0Ei"
Posted by VisaLawyer at 07:41 AM | Comments (0)
May 26, 2005
Locating job offer for an H-1B visa
One question I receive every day is does my office assist to locate a job offer for an H-1B visa? No, there are too many types of jobs for my office to be involved in locating job offers. I limit my work to helping with the H-1B visa once you and the employer are ready to being. You need to locate a job offer. Do not pay money to locate an offer.
Posted by VisaLawyer at 09:07 AM | Comments (0)
H-1B you need a job sponsor
You may apply with a job offer from a private employer, university/school, non-profit or doing research. The H-1B visa allows three years of work in the U.S. and may be extended. To qualify you need either a four year university degree or equivalent work experience. Our office will work with you and your employer inside or outside the U.S. After receiving your H-1B my immigration team will help with your lawful permanent residency/green card. Look for a job related to your degree or area of work. Once you have located a job offer contact my office. Here are various U.S. job websites; http://www.job-hunt.org; http://www.monster.com; http:/www.dice.com; http://whohasjobs.com; http://www.latpro.com; http://hotjobs.yahoo.com/; http://www.ajb.dni.us/>
The local newspaper is located at; http://www.Tennessean.com/
The Nashville Chamber of Commerce; http://www.nashvillechamber.com/
Posted by VisaLawyer at 09:02 AM | Comments (0)
H-1B allowed to be filed 6 months prior to October 1, 2005 deadline
Free Question: Here is my situation, please see if you can help me by giving your opinion: I have worked in the US on H1 (from Nov, 1998 to August 11, 2004) for about 5 years 9 months. Presently, I am back in my home country can I have my paper work submitted now or have to wait until August 11, 2005 (so that I will complete one year out of the US) even though the validity of the visa would be October 1, 2005. My only concern is if I have to wait until August, 2005, it may be too late, and we may hit the cap by then and I may not be getting the H visa during this year. I sincerely appreciate your time and help.
Answer: the rule is that once an H-1B worker reaches the end of status, a new H-1B petition will not be approved unless they have resided and been physically present outside the United States for a year. So you may apply for a second H-1B visa on August 12, 2005. The cap has not been reached yet and there has been no announcement from immigration regarding the cap. This way you will meet the FY2006 deadline on October 1, 2005. My office can process an H-1B application within 72 business hours of receipt of all information.
Posted by VisaLawyer at 08:51 AM | Comments (0)
Free queston and response engineering company about H-1B visa
Can my engineering company use the H-1B visa to bring engineers to work in the U.S.?
Thanks for your e-mail regarding H-1B visas which allows your company to bring engineers to work in the U.S. H-1B visas will become available on October 1, 2005. You may apply for these visas after April 1, 2005. As the employer you have to apply for the H-1B visa for each engineer. My firm will assist you in preparing the H-1Bs. By using the method of H-1B premium processing you will have a response within 15 calendar days. The engineer must be a university graduate or have experience which qualifies for a university degree to apply for an H-1B visa. Upon approval of the H-1B the consulate schedules an appointment to pick up the H-1B approval. Their dependents receive a visa is known as an H-4 which does not allow employment authorization. H-1B visas are issued initially for a three year period and can be extended for an additional three years by re-applying. Your company may also apply for PERM/labor certification/green card for any of the engineers. My web based system is designed to handle this type of case with maximum efficiency for you and your employees.
This question came to me from;
https://www.mario-ramos.com/mario-ramos-question-free.asp
If you have a question please ask me and I will respond.
Posted by VisaLawyer at 08:31 AM | Comments (0)
H-1B Talking Points from the American Immigration Lawyers Association
The American Immigration Lawyers Association has published these talking points on H-1B visas. Contrary to many reports published in the news H-1B visas are important to the U.S. Here are the talking points;
Overall message:
The FY 2005 H1-B cap was exhausted on October 1st 2004, the first day of the fiscal year. Without a remedy, U.S. companies will not be able to hire highly-educated foreign professionals, including those graduating from our own colleges and universities, for one full year.
The ability to obtain visas for highly educated foreign nationals is crucial to U.S. competitiveness and helps keep jobs in America.
A variety of business sectors, as well as school systems and medical facilities will be adversely impacted by the inability to hire H-1B workers.
To continue our economic and technological leadership we need to ensure that we have access to the best talent in the world.
U.S. employers should always have the ability to hire foreign nationals with graduate degrees from American universities and Congress must act on this matter so that U.S. employers and the U.S. economy are not adversely impacted.
Background--The cap has been hit: The H-1B cap reverted to 65,000 at the end FY03 - down from 195,000. The FY 2004 cap was reached in February; 2004.According to the U.S. Citizenship and Immigration Service (USCIS) the FY 2005 H-1B cap was reached on October 1, 2004, the first day of the fiscal year.
While the cap has been hit before (six times since 1997), this was the earliest time ever. As a result, many companies, medical facilities and educational institutions may be unable to hire the professionals they need this year - or next.
Don't shut the door on foreign PhD and master's degree recipients from U.S. universities. The H-1B visa remains an important tool for hiring highly educated foreign nationals, particularly foreign nationals with advanced degrees from US universities. These individuals are generally ineligible for other types of visas. We support exempting from the cap Masters and PhD graduates of US universities
In many critical disciplines, particularly in math, science and engineering, 50 percent or more of the advanced degrees at U.S. universities are awarded to foreign nationals.
America should reap the return on its own investment. U.S. taxpayers and companies directly fund much of the cutting edge research at American universities. Most of this work is done by graduate students. It is counterproductive for U.S. policy to encourage these individual to return home and compete against us.
H-1B visas are critical to creating and supporting U.S. jobs. Our ability to have access to top talent is critical to the nation's economic growth and national security. We need top talent to compete and win. While American companies prefer to hire domestic employees - it's actually cheaper, and there is less red tape - in many highly skilled professions it's vital to hire the best talent available. This keeps us competitive, builds our economy and drives job growth at home.
H-1Bs are needed in many professions. According to the Dept. of Homeland Security, in 2002, the number of H-1B petitions approved for workers in education, medicine, and health and life sciences increased by 19, 14, and 7 percent, respectively. DHS also reports that H-1Bs for computer-related occupations fell precipitously by 61 percent from 191,400 in 2001 to 75,100 in 2002. The NEA reports that there was approximately 50,000 H-1B visa holders in education-related jobs during the 2002-2003 school years, of which about 29 percent were teaching in grades K-12.
International competition for the best talent poses a real threat to the American economy and national security. Researchers from Carnegie Mellon recently concluded that the United States, which has for years enjoyed an undisputed preeminence in attracting the best and brightest from Europe, Asia, Africa, India and all countries of the world, seems poised to surrender its lead. Their studies indicate that the United States' advantage seems to be shifting, in part due to the liberalized immigration polices of many European countries, Canada and Australia, which allow those countries to effectively attract and retain global talent.
Fewer Foreign Students are coming to the U.S. A recent survey from the Chronicle of Higher Education, which focuses on graduate students only, found there is a large drop in the number of foreign students applying to US schools from countries that usually send the most applications. Applications from students in China declined by 76 %, those from India were down 58%; even Western Europe had a 30% decline. The drop crossed all fields of study as well, with an 80-percent plunge in applications to engineering programs and a 65-percent reduction in those to physical-sciences programs. This suggests that our near term-needs are going to be even more critical. Telling Masters and PhD's graduates from U.S. schools that they are not welcome to work here will ultimately mean that will choose not to study here, an already growing concern.
Posted by VisaLawyer at 08:19 AM | Comments (0)
USCIS filing fees for H-1B visas to any non-exempt petitions filed with USCIS after December 8, 2004
December 15, 2004, NSC Flash #5-2005, Changes in Certain USCIS Fees as a result of the approval of the FY05 Omnibus Appropriations Act, NSC Provides Information on Filing under H/L Amendments
The H-1B and L non-immigrant provisions of the Omnibus Appropriations Act reinstate the American Competitiveness and Workforce Improvement Act (ACWIA) fees first put in place after the approval of the ACWIA in 1998; the requirements under the original ACWIA sunset on October 1, 2003.
For H-1B petitioners; the new fee for petitioners who employ 25 or more Full Time Equivalent (FTE) employees is $1,500. Petitioners who employ no more than 25 FTE employees (including any affiliate or subsidiary) may submit a reduced fee of $750. The new $1,500 and $750 fees apply to any non-exempt petitions filed with USCIS after December 8, 2004. Certain types of petitions that were previously exempt from the fees remain exempt from the new $1,500 and $750 fees.
Furthermore, The Act creates a new Fraud Prevention and Detection Fee of $500 which must be paid by petitioners seeking a beneficiary's initial grant of H-1B or L nonimmigrant classification or those petitioners seeking to change a beneficiary's employer within those classifications. The only petitions exempt from paying this fee are those that seek to amend or extend the stay of the beneficiary. This new $500 fee applies to petitions filed with the USCIS on or after March 8, 2005.
Each of these fees is in addition to the base processing fee of $185 to file a Petition for a Nonimmigrant Worker (Form I-129) and any premium processing fees, if applicable. Finally, although implementing regulations have not yet been promulgated, it is expected that the USCIS will require that all petitions for the additional 20,000 H-1B visas established by the Omnibus Act be filed at the Vermont Service Center.
Posted by VisaLawyer at 08:13 AM | Comments (0)
May 25, 2005
FAQ; USCIS Publishes Regulations on Allocation of Additional 20,000 H-1B Visas Created by the H-1B Visa Reform Act of 2004
I have decided to print this from the Federal Register"May 5, 2005 (Volume 70, Number 86)] [Rules and Regulations] [Page 23775-23783]
From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr05my05-1]Rules and Regulations Federal Register
This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each week. [[Page 23775]]
DEPARTMENT OF HOMELAND SECURITY U.S. Citizenship and Immigration Services 8 CFR Part 214 [CIS No. 2347-05] [DHS Docket No. DHS-2005-0014] RIN 1615-AB32
Allocation of Additional H-1B Visas Created by the H-1B Visa Reform Act of 2004
AGENCY: U.S. Citizenship and Immigration Services, Department of Homeland Security.
ACTION: Interim rule with request for comments.
SUMMARY: This interim rule implements certain changes made by the Omnibus Appropriations Act for Fiscal Year 2005 to the numerical limits of the H-1B nonimmigrant visa category and the fees for filing of H-1B petitions. This interim rule also notifies the public of the procedures U.S. Citizenship and Immigration Services will use to allocate, in fiscal year 2005 and in future fiscal years starting with fiscal year 2006, the additional 20,000 H-1B numbers made available by the exemption created pursuant to that Act. This interim rule amends and clarifies the process by which U.S. Citizenship and Immigration Services, in the future, will allocate all petitions subject to numerical limitations under the Immigration and Nationality Act. This interim rule also notifies the public of additional fees that must be filed with certain H-1B petitions.
DATES: This rule is effective May 5, 2005. Written comments must be submitted by July 5, 2005.
ADDRESSES: You may submit comments, identified by DHS Docket No. DHS-2005-0014, by one of the following methods: EPA Federal Partner EDOCKET Web site: Follow instructions for submitting comments on the Web site.
Federal eRulemaking Portal:.
Follow the instructions for submitting comments.
Mail: The Director, Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529. To ensure proper handling, please reference DHS Docket No. DHS-2005-0014 on your correspondence. This mailing address may also be used for paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, N.W., 2nd Floor, Washington, DC 20529. Contact Telephone Number (202)
272-8377.
Instructions: All submissions received must include the agency name and DHS Docket No. DHS-2005-0014. All comments received will be posted without change to information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the ``Public Participation'' heading of the SUPPLEMENTARY INFORMATION section of this document. Docket: For access to the docket to read background documents or comments received. You may also access the Federal eRulemaking Portal.
Submitted comments may also be inspected at the Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, N.W., 2nd Floor,
Washington, DC 20529. To make an appointment please contact the Regulatory Management Division at (202) 272-8377.
FOR FURTHER INFORMATION CONTACT: Kevin J. Cummings, Adjudications Officer, Business and Trade Services Branch/Program and Regulation Development, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529, telephone (202) 353-8177.
SUPPLEMENTARY INFORMATION: This supplementary information section is organized as follows:
I. Public Participation
II. Background and Statutory Authority
A. H-1B Nonimmigrant Classification
B. H-1B Visa Reform Act of 2004
III. Effect of the H-1B Visa Reform Act of 2004 on FY 2005 Filings
IV. General Process for FY 2005 H-1B Filings
V. General Process for FY 2006 and Subsequent Fiscal Year H-1B Filings
VI. Allocation of H-1B Numbers in FY 2005, FY 2006 and Subsequent Fiscal Years
VII. Special Filing Procedures for Additional FY 2005 H-1B Numbers
A. Date of Filing
B. Filing Location and Method of Filing
C. Required Forms
D. Availability of Premium Processing Program
E. Filing Fees
F. Requested Start Dates
VIII. Special Additional Filing Procedures for FY 2006
A. Method of Filing
B. Upgrading FY 2006 Petitions
C. Required Forms
D. Availability of Premium Processing Program
E. Filing Fees
IX. Section-by-Section Analysis
X. Regulatory Requirements
A. Administrative Procedure Act (Good Cause exception)
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Small Business Regulatory Enforcement Fairness Act of 1996
E. Executive Order 12866 (Regulatory Planning and Review)
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice Reform)
H. Paperwork Reduction Act
I. Public Participation
Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the interim rule. U.S. Citizenship and Immigration Services (USCIS) also invites comments that relate to the economic or federalism effects that might result from this interim rule. Comments that will provide the most assistance to USCIS in developing these procedures will reference a specific portion of the interim rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. See ADDRESSES above for information on how to submit comments.
II. Background and Statutory Authority
A. H-1B Nonimmigrant Classification
Under Section 101(a)(15)(H) of the Immigration and Nationality Act (INA) and 8 CFR 214.2(h)(4), an H-1B nonimmigrant is an alien employed in a specialty occupation or a fashion model of distinguished merit and ability. A specialty occupation is an occupation that requires theoretical and practical application of a body of specialized knowledge and attainment of a bachelor's degree or higher degree in the specific specialty as a minimum qualification for entry into the United States. Section 214(g) of the INA provides that the total number of nonimmigrant aliens who may be issued H-1B visas, or otherwise granted H-1B status, may not exceed 65,000 during any fiscal year. Under the INA, the 65,000 cap does not include H-1B nonimmigrant aliens who are employed by, or have received offers of employment at: (1) An institution of higher education, or a related or affiliated nonprofit entity; or (2) a nonprofit research organization or a governmental research organization.
On October 1, 2004, USCIS issued a press release announcing that USCIS had received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2005, and that beginning October 2, 2004, USCIS would not accept for adjudication any H-1B petition for new employment containing a request for a work start date prior to October 1, 2005. A Notice to this effect subsequently was published in the Federal Register on November 23, 2004 at 69 FR 68154.
B. H-1B Visa Reform Act of 2004
On December 8, 2004, the President signed the Omnibus Appropriations Act (OAA) for Fiscal Year 2005, Public Law 108-447, 118 Stat. 2809. Among the provisions of OAA is the H-1B Visa Reform Act of 2004. The H-1B Visa Reform Act of 2004 amends section 214(g)(5) of the INA by adding a third exemption, (C), to the H-1B cap: (5) ``The numerical limitations contained in paragraph (1)(a) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 1101(a)(15)(H)(i)(b) of this title who * * ** * * * *(C) has earned a masters' or higher degree from a United States institution of higher education (as defined in section 101(a) of the higher Education Act of 1965 (20 U.S.C. 1001(a)) until the number of aliens who are exempted from such numerical limitation during such year exceeds 20,000).''
This amendment became effective 90 days after enactment, March 8, 2005. Although there is no direct legislative history for this provision, it has the purpose of expanding the availability of needed professional workers for employers in the United States.
The H-1B Visa Reform Act of 2004 also imposed two additional fees that must be filed with H-1B petitions. First, section 214(c)(9) of the INA was amended to reinstitute and modify the additional fees previously imposed by the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Title IV of Div C., Public Law 105-277, which are used for scholarships for U.S. low income students and for job training for U.S. workers. (The ACWIA fees expired effective October 1, 2003). The H-1B Visa Reform Act of 2004 raised the ACWIA fee to $1,500 or $750, depending on the size of the employer. Therefore, effective December 8, 2004, employers with 26 or more U.S. full-time-equivalent employees, including all affiliated or subsidiary entities, who seek to employ an H-1B non-immigrant, must pay $1,500, in addition to the base filing fee of $185 for a Form I-129, Petition for Temporary Nonimmigrant Worker. For employers with 25 or fewer U.S. full-time-equivalent employees, including all affiliated or subsidiary entities, the fee is $750, in addition to the base filing fee of $185 for a Form I-129.
Second, the H-1B Visa Reform Act of 2004 amended section 214(c) of the INA by adding a new subsection (c) (12) which imposes a $500 fraud prevention and detection fee on certain employers filing H-1B petitions. Effective March 8, 2005, employers seeking an initial grant of H-1B nonimmigrant status or authorization for an existing H-1B (or L-1 alien seeking to become an H-1B nonimmigrant) to change employers must submit the $500 fraud prevention and detection fee. The $500 fee does not need to be submitted by: (1) Employers who seek to extend a current H-1B alien's status where such an extension does not involve a change of employers, (2) employers who are seeking H-1B1, Chile-Singapore Free Trade Act non-immigrants, or (3) dependents of H-1B principal beneficiaries.
These fees must be filed to USCIS in addition to the base filing fee (currently $185) for the Form I-129, Petition for Temporary Nonimmigrant Worker. Payment for the $185 petition filing fee and the $1,500 (or $750) additional ACWIA fee may be made in the form of a single check or money order for the total amount due or two checks or money orders. Those petitioners who must pay the $500 fraud prevention and detection fee must pay with a check or money order that is separate from the additional ACWIA application fees of $1,500 (or $750) and the $185 petition filing fees. Thus, in certain instances petitioners may have to, or elect to, file three separate checks or money orders--one for the $185 Form I-129 petition fee; one for the $1,500 or $750 additional ACWIA fee; and one for the $500 fraud prevention and detection fee.
The new ACWIA and Fraud Detection and Prevention fees are statutorily-mandated and do not require a separate rulemaking to implement the new fee provisions. However, USCIS, in a future rulemaking, will codify these new fees on H-1B petitions and the associated exemptions in the regulations to provide a place for affected petitioners to find all fee-related information in one place. USCIS specifically will amend 8 CFR 214.2(h)(19), which currently addresses the fees initially required pursuant to ACWIA, to reflect the enhanced ACWIA fees of $1,500 (or $750) and to codify the new fraud prevention and detection fees ($500) affecting all H and L petitioners.
III. Effect of H-1B Visa Reform Act of 2004 on FY 2005 Filings
To implement the H-1B Visa Reform Act of 2004, USCIS had to consider the plain language of the statute which specifically limited the new exemption to aliens who have earned a U.S. master's degree or higher. USCIS has determined that it is a reasonable interpretation of the H-1B Visa Reform Act of 2004 to make available 20,000 new H-1B numbers in FY 2005, limited to H-1B nonimmigrant aliens who possess a U.S. earned master's or higher degree.
USCIS will allocate the 20,000 new H-1B numbers authorized by the H-1B Visa Reform Act of 2004 in this manner for the following reasons. Congress left to the Secretary of Homeland Security broad discretion, through his authority under sections 103 and 214 of the INA, to prescribe regulations and procedures for the admission of nonimmigrant aliens, such as H-1B non-immigrants. Thus, USCIS has broad discretion and authority to implement the H-1B Visa Reform Act of 2004.
The H-1B Visa Reform Act of 2004 was enacted after the start of FY 2005 and after the receipt of all petitions necessary to reach the existing 65,000 H-1B cap for FY 2005. The amendment to section 214(g) of the INA, authorizing the cap exemption of 20,000 H-1B nonimmigrant aliens with U.S. masters or higher degrees, did not become effective until March 8, 2005. Congress did not specify any procedures for implementation or dictate the manner in which USCIS should allocate H-1B numbers made available pursuant to the new exemption. Congress specifically did not require USCIS to ``reopen'' its review of H-1B petitions already received and re-characterize the petitions that would have qualified for the new exemption had it been in effect at the time the petitions were received. Thus, in order to give full effect to the newly created exemption, it is reasonable to do so going forward only, applying the exemption to up to 20,000 petitions seeking work start dates during FY 2005. It also appears that Congress intended for the fees for 20,000 new petitions to be generated during FY 2005 to serve the important purposes of supporting the development of the U.S. labor market and the detection and prevention of immigration fraud.
USCIS has never previously been required to collect data concerning whether beneficiaries of H-1B petitions possess masters or higher degrees earned in the United States. While USCIS did collect information about the highest level of education of the beneficiary, it did not specifically collect information about whether the beneficiary had a U.S. masters or higher degree or whether the degree was earned from a U.S. institution. Thus, as to FY 2005, USCIS cannot accurately count the petitions already filed for FY 2005 on behalf of beneficiaries who have earned masters or higher degrees at U.S. institutions. USCIS has made amendments to its recordkeeping and data collection systems that will allow it, prospectively, to accurately capture the data needed to assess the exact number of H-1B nonimmigrant aliens who have a U.S. master's or higher degree. In light of the above reasons, for FY 2005, USCIS has determined that the only appropriate way to implement the H-1B Visa Reform Act of 2004 is to apply the 20,000 exemptions prospectively.
IV. General Process for FY 2005 H-1B Filings
USCIS will reopen the FY 2005 H-1B filing period, effective May 12, 2005, and make available 20,000 new H-1B numbers for FY 2005. These additional H-1B numbers will be limited to U.S. employers seeking an H-1B nonimmigrant alien who has earned a master's or higher degree from a U.S. institution of higher education, as the statute provides.
U.S. employers seeking an H-1B nonimmigrant alien for FY 2005 will file H-1B petitions through a special process, submitting the Form I-129 petition at a single USCIS service center--Vermont Service Center--at the address noted in section VII, paragraph A below. USCIS will accept and adjudicate properly filed H-1B petitions on a first-in, first-out basis until USCIS has allocated all 20,000 H-1B exemption numbers authorized, as provided in section VI below.
As noted below in section VII, paragraph B, USCIS will not accept FY 2005 petitions via electronic filing (``e-filing''). USCIS is precluding e-filing for FY 2005 petitions because of the need to quickly and accurately identify those petitions that will be subject to the 20,000 numerical limit. Allowing e-filing would complicate this effort due to the additional DHS administrative burden associated with matching e-filed petitions with separately filed (through paper) signed labor condition applications (LCA) and evidence of required degrees
(which in general cannot be submitted electronically).
V. General Process for FY 2006 and Subsequent Fiscal Year H-1B Filings
For FY 2006 and future fiscal years, U.S. employers seeking an H-1B nonimmigrant alien, regardless of whether the alien has a master's or higher degree, will file for an H-1B number through the normal process, submitting the Form I-129 petition at the USCIS Service Center with jurisdiction over the place of intended employment.
For FY 2006 only, U.S. employers who already have filed an FY 2006 H-1B petition which USCIS has approved or which is still pending with USCIS, will be given the option to upgrade such petitions and receive an FY 2005 H-1B, if any are available, in accordance with the procedures noted in section VIII, paragraph B below.
For FY 2006 and future fiscal years, USCIS will accept and adjudicate properly filed H-1B petitions on a first-in, first-out basis and will track those H-1B petitions that qualify for the U.S. master's or higher degree exemption under the H-1B Visa Reform Act of 2004 as cases are received and adjudicated. Petitions that are eligible for the first two exemptions, applicable to petitioners who are employed at institutions of higher learning, or in nonprofit research, will not count against the 65,000 cap or against the numerical limitation on the new exemption. Similarly, H-1B nonimmigrant aliens that are exempt under the H-1B Visa Reform Act of 2004 will not be counted towards the fiscal year numerical limit of 65,000. USCIS will continue to exempt such aliens until USCIS has allocated all 20,000 H-1B exemption numbers authorized, as provided in section VI below. Thereafter, any H-1B petition granted for an H-1B nonimmigrant alien who has earned a U.S. master's or higher degree, unless otherwise exempt, will be counted against the fiscal year numerical limitations.
As noted below in section VIII, paragraph A, USCIS is temporarily suspending electronic filing (``e-filing'') of FY 2006 petitions until USCIS has received all petitions that would apply to the FY 2005 numerical limits, including any upgraded applications. USCIS is temporarily suspending e-filing for FY 2006 petitions because of the need not only to quickly and accurately identify those petitions that will be subject to the FY 2005 numerical limits, including requests for upgrades from FY 2006 filings, but also to determine which petitions will apply against the FY 2006 U.S. master's or higher degree exemption. USCIS will provide notice, via the USCIS website, indicating when e-filing will be resumed for FY 2006.
In general, USCIS will require use of the Form I-129 (OMB 1615-0009) in the filing of H-1B petitions; however, for FY 2005 and 2006 filings, USCIS has made the additional accommodation for petitioners to utilize alternate versions of the form as noted in Sections VII and VIII below.
VI. Allocation of H-1B Numbers in FY 2005, FY 2006 and Subsequent Fiscal Years
In the past, USCIS has faced two primary challenges in actual cap counting: (1) Anticipating when the cap will be hit and (2) monitoring of the inflow of H-1B petition filings. To address the second challenge, USCIS has implemented new technology and enhanced its systems capability to allow USCIS to monitor H-1B petition receipts on a daily basis.
The first challenge however remains: Picking the number of petitions necessary for the cap to be reached. USCIS cannot wait until the petitions received have been adjudicated to make this decision, because during the time the adjudications are being completed and an exact count obtained, the cap would be exceeded by these petitions already received and unnecessarily processed. Petitioners whose petitions were received and initially processed after the point at which the cap would be found to have been reached would have gained an unrealistic expectation of having a chance at an H-1B number, and either such petitioners would lose significant filing fees without substantive adjudication or USCIS would expend unnecessary resources on initially processing such petitions and fees and then returning those petitions and refunding the fees. Therefore, estimating and projecting rates of approval of petitions is required. Through experience of several years, USCIS has gained some statistical understanding of various factors that play into the cap, including the number of petitions already approved, denied, and still pending, the period of time that un-adjudicated petitions have been pending, and the education level of the petitions that are pending. USCIS can apply different projected rates of approval (including reversal of denials on appeal) to groups of cases based on these factors. None of these factors or rates can be projected precisely, and therefore determining when the cap will be reached unavoidably involves estimation. The specific factors and rates may vary from year to year and will be applied in USCIS' discretion with assistance of the DHS Office of Statistics. The interim final rule acknowledges USCIS' unavoidable use of projection and estimation in cap management.
To ensure the fair and orderly allocation of numbers in a particular classification subject to numerical limits, USCIS will employ a random selection process. USCIS' random selection process will be computer-generated and validated by the Office of Immigration Statistics. When calculating the numerical limitations for a given fiscal year, USCIS will make numbers available to petitions in the order in which the petitions are filed. USCIS will make projections of the number of petitions necessary to achieve the numerical limit of approvals, taking into account historical data related to approvals, denials, revocations, and other relevant factors. USCIS will monitor the number of petitions received (including the number of beneficiaries when necessary) and will notify the public of the date that USCIS has received the necessary number of petitions (the ``final receipt date''). The date of publication will not control the final receipt date.
During the random selection process, USCIS will randomly select from among the petitions received on the final receipt date the remaining number of petitions deemed necessary to generate the numerical limit of approvals. Petitions not selected, and petitions received after the final receipt date, will be rejected. If the final receipt date is the same as the first date on which petitions subject to the applicable cap may be filed (i.e., if the cap is reached on the first day filings can be made), USCIS will randomly apply all of the numbers among the petitions filed on the final receipt date and the following day.
DHS seeks comment on the methodology to approve eligible H-1B petitions in circumstances where such petitions were received on the day the annual cap was forecasted to be reached.
VII. Special Filing Procedures for Additional FY 2005 H-1B Numbers
A. Date of Filing
U.S. employers seeking one of the new FY 2005 H-1B numbers made available pursuant to the H-1B Visa Reform Act of 2004 may file H-1B petitions beginning May 12, 2005. Any petition requesting new FY 2005
H-1B employment received before May 12, 2005 will be rejected and returned, along with the associated filing fees, to the petitioner or representative.
B. Filing Location and Method of Filing
Under the authority created by this interim rule, USCIS is hereby advising petitioners seeking an FY 2005 H-1B number that they must submit the H-1B petition to the following address: USCIS Vermont Service Center, 1A Lemnah Drive, St. Albans, VT 05479-7001.
Only H-1B petitions received at this specific address at the Vermont Service Center will be deemed eligible for an FY 2005 number. Filings may not be personally delivered and must be submitted by U.S. mail, express shipping services, or by other courier companies normally servicing the Vermont Service Center. Any petition seeking an FY 2005 H-1B number filed or received at another USCIS Service Center will be rejected and returned, along with the associated filing fees, to the petitioner or representative. USCIS will not accept any FY 2005 petitions by electronic filing (``e-filing'').
C. Required Forms
U.S. employers seeking one of the new FY 2005 H-1B numbers made available pursuant to the H-1B Visa Reform Act of 2004 may file the new Form I-129, Petition for Nonimmigrant Worker (edition date 3-17-05, OMB 1615-0009), which incorporates the Form I-129W, H-1B Data Collection and Filing Fee Exemption, as well as the H and H-1B Supplements. Petitioners should note that as of May 30, 2005, all H-1B submissions must be made on the new Form I-129 (edition date 3-17-05, OMB 1615-0009).
U.S. employers may also file the old Form I-129 (edition date 12-10-01, OMB 1115-0168, OMB 1615-0093) and the old Form I-129W (edition date 2-14-02, OMB 1115-0225). U.S. employers filing the old Form I-129 (edition date 12-10-01, OMB 1115-0168, OMB 1615-0093) must complete the data field in Part 5, marked ``Current number of employees''. Petitioners filing the old Form I-129W (edition date 2-14-02, OMB 1115-
0225) must complete Part A, section ``Beneficiary's Highest Level of Education'', by: (1) Checking the appropriate box indicating Master's, Professional or Doctorate degree; (2) clearly annotating next to the selection the phrase--``U.S. earned'; and (3) providing the name and location of the U.S institution of higher education.
Petitioners seeking FY 2005 H-1B numbers also may file one of a few additional versions of the Form I-129 that were posted on USCIS' Web site during March 2005 before the 3-17-05 version was finalized. Regardless of which version of the Form I-129, U.S. employers choose to file, a certified Labor Condition Application (LCA) from the Department of Labor valid for the period of requested employment must be submitted with the Form I-129.
D. Availability of Premium Processing Program
USCIS recognizes that many H-1B petitioners seeking an FY 2005 H-1B number desire the beneficiary to begin work as soon as possible. USCIS therefore will allow petitioners to file for the additional FY 2005 numbers using the Premium Processing Program.
E. Filing Fees
Petitioners are reminded that the Form I-129 must be filed with the base filing fee of $185, the ACWIA fees of $1,500 (for employers with 26 or more U.S. full-time-equivalent employees) or $750 (for employers with 25 or less U.S. full-time-equivalent employees, including all affiliated or subsidiary entities), the $500 fraud revention and detection fee (as applicable), as well as the Form I-907 and premium processing fee of $1,000. Payment for the $185 petition filing fee and the $1,500 (or $750) additional ACWIA fee may be made in the form of a single check or money order for the total amount due or two checks or money orders to the Department of Homeland Security, in accordance with the instructions on the revised Form I-129. Those petitioners who must pay the $500 fraud prevention and detection fee must pay with a check or money order that is separate from the additional ACWIA application fees of $1,500 (or $750) and the $185 petition filing fees. Similarly, any premium processing fee of $1,000 must be paid by separate check. Thus, in certain instances petitioners may need to file up to four separate checks or money orders: One for the $185 Form I-129 petition fee; one for the $1,500 or $750 additional ACWIA fee (which may be combined with the $185 fee); one for the $500 fraud prevention and detection fee; and one for the $1,000 premium processing fee (if applicable).
F. Requested Start Dates
USCIS anticipates that it will receive a large volume of petitions from U.S. employers seeking an FY 2005 number for an H-1B nonimmigrant who has earned a U.S. master's degree or higher and that there will likely be more petitions filed than there are numbers available. USCIS anticipates that many U.S. employers will have already filed H-1B petitions seeking an FY 2006 number or will be filing an H-1B petition seeking an FY 2006 number. USCIS also anticipates that petitioners who do not receive an FY 2005 number likely will seek an FY 2006 number or be willing to accept an FY 2006 number if available.
To facilitate processing of FY 2005 numbers, to avoid the filing of multiple petitions on behalf of the same alien for the same employment starting on different possible dates, and to properly segregate FY 2005 petitions, USCIS will assume that petitioners who are filing for a FY 2005 number are willing to receive an FY 2006 number and start date (October 1, 2005) if an FY 2005 number is unavailable and if the petitioner still seeks an alien for employment in FY 2006. Petitioners who seek an FY 2005 number only must, in addition to indicating a start date for employment prior to October 1, 2005, clearly annotate the top of the first page of the Form I-129 with the phrase ``FY 2005 only.'' Such petitions that are found to exceed the numerical limit will be returned to the petitioner, and any associated filing fees will be returned or refunded.
VIII. Special Additional Filing Procedures for FY 2006
A. Method of Filing
Until further notice, USCIS has temporarily suspended electronic filing (``e-filing'') of FY 2006 H-1B petitions. U.S. employers seeking an FY 2006 number, however, may file H-1B petitions for an FY 2006 number by U.S. mail, express shipping services, or by other courier companies normally servicing the USCIS Service Center with jurisdiction over the place of intended employment according to the normal procedure. Such petitions may not be personally delivered to the applicable USCIS Service Center.
B. Upgrading FY 2006 Petitions
USCIS is aware that some H-1B petitioners who have already filed H-1B petitions for FY 2006 employment may wish to convert an approved or pending petition into an FY 2005 filing to allow the alien beneficiary
to commence employment at an earlier date. USCIS will permit petitioners to ``upgrade'' a pending or approved FY 2006 H-1B petition if the beneficiary has a U.S. master's degree or higher degree from a U.S. institution and the petition is otherwise approvable. Such a petition will be treated as a request for an FY 2005 number and start date and, in the event that an FY 2005 number is not available, as an alternative request for an FY 2006 number with an October 1, 2005 start date for employment.
In order to upgrade an FY 2006 H-1B petition, the petitioner must submit to USCIS: (1) A letter requesting the upgrade; (2) either (a) a copy of the approval notice for the FY 2006 petition, (b) a copy of the receipt notice for the FY 2006 petition, (c) a copy of the first two pages of the related Form I-129 if a receipt notice has not yet been received, or (d) a new Form I-129; and (3) a certified Labor Condition Application (LCA) from the Department of Labor valid for the period of requested employment (or copy thereof if not already provided with the FY 2006 petition).
Petitioners seeking an upgrade must submit the required documentation to the following address: USCIS Vermont Service Center, 1A Lemnah Drive, St. Albans, VT 05479-7001. There is no fee to upgrade a previously filed or approved FY 2006 petition. Upgrade filings may not be personally delivered and must be submitted by U.S. mail, express shipping services, or by other courier companies normally servicing the
Vermont Service Center.
Any request to upgrade a FY 2006 for purposes of a FY 2005 filing will be treated as having been filed on the date of receipt at the Vermont Service Center address and is subject to the same timing rules for full petitions submitted for FY 2005 as set forth in Section VII, paragraph A above. In the event that a FY 2005 number is not available for an upgrade request, the original petition will be deemed as having been filed for an FY 2006 number on the date the petition was initially filed at one of the four service centers.
C. Required Forms
U.S. employers seeking FY 2006 H-1B numbers may file the new Form I-129, Petition for Nonimmigrant Worker (edition date 3-17-05, OMB 1615-0009), which incorporates the Form I-129W, H-1B Data Collection and Filing Fee Exemption, as well as the H and H-1B Supplements. Petitioners should note that as of May 30, 2005, all H-1B submissions must be made on the new Form I-129 (edition date 3-17-05, OMB 1615-
0009).
U.S. employers may also file the old Form I-129 (edition date 12-10-01, OMB 1115-0168, OMB 1615-0093) and the old Form I-129W (edition date 2-14-02, OMB 1115-0225). U.S. employers filing the old Form I-129 (edition date 12-10-01, OMB 1115-0168, OMB 1615-0093) must complete the data field in Part 5, marked ``Current number of employees''. Petitioners filing the old Form I-129W (edition date 2-14-02, OMB 1115-
0225) must complete Part A, section ``Beneficiary's Highest Level of Education'', by: (1) Checking the appropriate box indicating Master's, Professional or Doctorate degree; (2) clearly annotating next to the selection the phrase--``U.S. earned''; and (3) providing the name and location of the U.S institution of higher education.
Petitioners may file also one of a few additional versions of the Form I-129 that were posted on USCIS' Web site during March 2005 before the 3-17-05 version was finalized. Regardless of which version of the Form I-129, U.S. employers chose to file, a certified Labor Condition Application (LCA) from the Department of Labor valid for the period of requested employment must be submitted with the Form I-129.
D. Availability of Premium Processing Program
FY 2006 petitions may be filed via the Premium Processing Program and should include the required Form I-907, Request for Premium Processing, along with the $1,000 premium processing fee.
U.S. employers who: (1) Have already filed an FY 2006 H-1B petition with premium processing, (2) whose FY 2006 H-1B petition is still pending adjudication, and (3) who now seek an upgrade for an FY 2005 number, do not need to submit a new Form I-907 or new premium processing fee. U.S. employers who: (1) Have already filed an FY 2006 H-1B petition without using premium processing, (2) whose FY 2006 H-1B petition is still pending adjudication, and (3) who now seek an upgrade for an FY 2005 number, must include with the upgrade request a Form I-907, Request for Premium Processing, along with the premium processing fee.
U.S. employers who: (1) Have already filed an FY 2006 H-1B petition that has been approved, regardless of whether premium processing was requested, and (2) who now seek an upgrade for an FY 2005 number, do not need to submit a new Form I-907 or new premium processing fee.
E. Filing Fees
Petitioners are reminded that the Form I-129 must be filed with the base filing fee of $185, the ACWIA fees of $1,500 (for employers with 26 or more U.S. full-time-equivalent employees) or $750 (for employers with 25 or less U.S. full-time-equivalent employees, including all affiliated or subsidiary entities), the $500 fraud revention and detection fee (as applicable), as well as the Form I-907 and premium processing fee of $1,000, if applicable. Payment for the $185 petition filing fee and the $1,500 (or $750) additional ACWIA fee may be made in the form of a single check or money order for the total amount due or two checks or money orders. Those petitioners who must pay the $500 fraud prevention and detection fee must pay with a check or money order that is separate from the additional ACWIA application fees of $1,500 (or $750) and the $185 petition filing fees. Similarly, any premium processing fee of $1,000 must be paid by separate check. Thus, in certain instances petitioners may need to file up to four separate checks or money orders: One for the $185 Form I-129 petition fee; one for the $1,500 or $750 additional ACWIA fee (which may be combined with the $185 fee); one for the $500 fraud prevention and detection fee; and one for the $1,000 premium processing fee (if applicable).
IX. Section-by-Section Analysis
USCIS is revising 8 CFR 214.2(h)(2)(i)(A) to provide that USCIS may set alternate filing locations via notice in the Federal Register.
USCIS is revising 8 CFR 214.2(h)(8)(ii) in its entirety to properly reflect that USCIS tracks petitions or applications subject to numerical limits, not by individual petition receipt numbers, but by monitoring the total number of petitions (including the number of beneficiaries when necessary) filed within a given fiscal year. This revision applies to all H nonimmigrant classifications subject to numerical limits. In calculating when the numerical limits have been or will likely be reached, USCIS will make projections of the number of petitions necessary to achieve the numerical limit of approvals, taking into account historical data related to approvals, denials, revocations, and other relevant factors. USCIS will continue to count H-1B petitions on a first-in, first-out basis and monitor the number of petitions received, approved, and pending adjudication to determine when USCIS is likely to reach or exceed the numerical limits in a given fiscal year.
As discussed above in Section VI, USCIS also is amending 8 CFR 214.2(h)(8)(ii)(B) to authorize random selection of H-1B numbers in FY 2005, FY 2006 and future fiscal years when USCIS determines that the numerical limits in a particular category will be reached.
USCIS recognizes that, given the period of time that has passed since cap-subject H-1B filings last were received, the anticipated high demand for immediate validity dates is substantial and may even exceed the 20,000 newly available numbers for FY 2005 on the first day. Therefore, any petitioner who desires an FY 2005 number must consider the importance of having the petition (or ``upgrade'' of an already filed FY 2006 petition) delivered on the first day on which filings will be accepted. Petitioners likely will send the petition or upgrade on the day before that date by overnight delivery to ensure arrival at the Vermont Service Center on the first day.
In order to reduce petitioners' concern that even an overnight delivery service from a remote location might not actually deliver the package on the first day, USCIS has decided that, in the event that the final receipt date is he same as the first date on which petitions may be filed (i.e. if the cap is reached on the first day filings can be made for FY 2005), USCIS will randomly apply all of the numbers among the petitions filed on the final receipt date and the following day. In such cases, no advantage will be gained by the particular time of day a filing is received. USCIS has concluded that such a commitment best ensures general fairness and orderly procedures for allocations of petitions subject to numerical limits.
X. Regulatory Requirements
A. Administrative Procedure Act (Good Cause Exception)
Implementation of this rule without notice and the opportunity for public comment is warranted under the “good cause” exception found under the Administrative Procedure Act (APA) at 5 U.S.C. 553(b). USCIS has determined that delaying implementation of this rule to await public notice and comment is impracticable and contrary to the public interest. The H-1B Visa Reform Act of 2004 was enacted on December 8, 2004. The provisions related to the H-1B numerical limitations and new fraud prevention and detection fees became effective March 8, 2005.
Immediate implementation of this rule is in the public interest, specifically that of U.S. employers, students and workers. While processing for the FY 2006 H-1B cap began on April 1, 2005, U.S. employers have been unable to hire new H-1B workers since October 1, 2004. A worker with an FY 2006 cap number cannot begin work until October 1, 2005, the date on which FY 2006 begins. In order to provide U.S. employers with the ability to address their employment needs as soon as possible and to alleviate the burdens imposed on their ability to hire H-1B workers since October 1, 2004, USCIS must issue this interim rule to implement immediately these provisions and notify the public of the process by which the remaining H-1B numbers for FY 2005 will be made available. This interim rule is necessary to allocate fairly and equitably the new FY 2005 H-1B numbers in an expeditious manner. In addition, the new fees to be generated by the FY 2005 filings will be allocated to public purposes of low-income student education, job training, and fraud prevention and detection, and further delay of the FY 2005 filings would delay the funding of those purposes. It is therefore impracticable and contrary to the public interest to adopt this rule with the prior notice and comment period normally required under 5 U.S.C. 553(b).
USCIS also finds that good cause exists under the Congressional Review Act, 5 U.S.C. 808, to implement this interim rule immediately upon publication in the Federal Register.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 605(b)), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996 (SBREFA), requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). Because good cause exists for issuing this regulation as an interim rule, no regulatory flexibility analysis is required under the RFA.
C. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, requires Federal agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector of more than $100 million in any one year (adjusted for inflation with 1995 base year). Before promulgating a rule for which a written statement is needed, section 205 of UMRA requires an agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome option that achieves the objective of the rule. Section 205 allows an agency to adopt an alternative, other than the least costly, most cost-effective, or least burdensome option if DHS publishes an explanation with the final rule.
As discussed below under Executive Order 12866, this action will result in the expenditure by the private sector of $100 million or more in any one year, but these fees are mandated by statute and USCIS is obligated to implement the law as enacted by the OAA. Further, these costs do not accrue to the general public, but only those who choose to participate in the H-1B program, nor will they result in expenditures in excess of $100 million a year by State, local, or tribal governments.
D. Small Business Regulatory Enforcement Fairness Act of 1996
This interim rule is a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This interim rule will result in an annual effect on the economy of more than $100 million.
E. Executive Order 12866
This interim final rule is considered by DHS to be an economically ``significant regulatory action'' under Executive Order 12866, section 3(f), Regulatory Planning and Review. The implementation of this interim rule will provide USCIS with an additional $36,200,000 in FY 2005 in annual fee revenue over the fee revenue that would be collected under the current fee structure, based on a projected annual fee-paying volume of 20,000 approved petitions. This interim rule would provide USCIS with $138,425,000 in FY 2006 annual fee revenue, based on a projected annual fee-paying volume of 85,000 approved petitions (20,000 new exemptions and 65,000 petitions). This increase in revenue pursuant to the OAA (and ACWIA as amended), will be used to fund grants for training in high-growth industries, job training services and related activities, and programs and activities to prevent and detect fraud with respect to H and L petitions. Accordingly, this rule has been submitted to the Office of Management and Budget (OMB) for clearance.
USCIS is issuing this rule in order to provide for a fair and equitable allocation of additional H-1B numbers made available for FY 2005 by Congress.
USCIS has assessed both the costs and benefits of this rule as required by Executive Order 12866, section 1(b) (6), and has made a reasoned determination that this rule will result in additional costs to petitioning employers. The additional costs to employers are due to the new statutory requirement that H-1B petitioners must now pay an additional fee of either $1,500 or $750 per petition, depending upon the size of the business, unless otherwise exempt. In addition to the $1,500 or $750 fee, as of March 8, 2005, H-1B petitioners must also pay a separate fee of $500 per petition to assist federal agencies in fraud prevention and detection.
USCIS estimates that for FY 2005, all of the aforementioned new fees will cost H-1B petitioning employers an additional $36,200,000. DHS reached this conclusion by estimating that approximately half of the 20,000 new H-1B petitions that will be approved for FY 2005 employment will be for businesses with 25 or less full-time equivalent employees ($750 x 10,000 = $7,500,000), while the other half will be for businesses with 26 or more full-time equivalent employees ($1,500 x 10,000 = $15,000,000). USCIS has also included in this estimate the new $500 Fraud Prevention and Detection Fee applicable to the forthcoming 20,000 new H-1B petition approvals for FY 2005 employment ($500 x 20,000 = $10,000,000).
There will also be an additional 20,000 I-129 petitions approved for new H-1B employment in FY 2005 at a base filing fee cost of $185 per Form I-129, which adds an additional cost to H-1B petitioners ($185 x 20,000 = $3,700,000). Therefore, the total additional cost to the public during FY 2005 is $36,200,000.
In future fiscal years, the additional cost to H-1B petitioners is estimated to be $138,425,000 each fiscal year. USCIS reached this conclusion by estimating that approximately half of the 85,000 H-1B petitions approved per fiscal year will be for businesses with 25 or less full-time equivalent employees ($750 x 42,500 = $31,875,000), while the other half will be for businesses with 26 or more full-time equivalent employees ($1,500 x 42,500 = $63,750,000). USCIS includes in this estimate the fact that an additional 20,000 petitions for H-1B classification will be filed each fiscal year at a base filing fee cost of $185 per I-129 petition ($185 x 20,000 = $3,700,000). USCIS has also included in this estimate the new $500 Fraud Prevention and Detection Fee applicable to 78,200 new H-1B petitions approved per fiscal year ($500 x 78,200 = $39,100,000). USCIS notes that the $500 Fraud Prevention and Detection Fee is not required for Chileans and Singaporeans entering the United States under the Free Trade Agreements. Therefore, USCIS estimates that the total additional cost to the public in the future each fiscal year will be $138,425,000.
Although this interim rule will result in additional costs to H-1B petitioners that may deter some employers from seeking H-1B nonimmigrant workers, USCIS notes that these fees and the specific amounts of these fees are mandated by statute. USCIS is obligated to implement the law as enacted by the OAA.
The benefit of this interim rule is that affected employers will be able to address inconveniences and difficulties caused by the reaching of the FY 2005 H-1B, and USCIS will be able to facilitate that process in a manner that is fair to all employers. This interim rule will also facilitate the hiring of H-1B nonimmigrant aliens by U.S. employers who have not been able to fill jobs due to the H-1B cap being reached early in recent fiscal years and who demonstrate that they are willing to offer the same prevailing wage and working conditions as those of U.S. workers. The fees imposed will benefit congressional purposes of education for low-income students, job training for U.S. workers, and fraud detection and prevention in immigration programs. USCIS will receive a larger number of filings subject to the increased filing fees than the number of petitions that ultimately will be approved. Almost all of such filings, however, will be those received in excess of the applicable numerical limits, and USCIS will be rejecting or refunding fee payments for such petitions. Petitions that are exempt from the cap, because they are for beneficiaries who are already in H-1B status and were previously been counted against the cap, are also exempt from the ACWIA fees. Such petitions, the number of which is unpredictable, are not exempt from the $500 fraud prevention and detection fee. Also a somewhat unpredictable number of petitions subject to the new ACWIA and fraud detection and prevention fees will be filed for initial petitions that will be denied or withdrawn, and those will be in excess of the 85,000 set forth above. These petitions will impose costs on the employers that result from the OAA and this interim final rule, but funds will be applied to the congressionally required, publicly beneficial purposes of low-income student education, job training, and fraud detection and prevention. During fiscal years 2001, 2002 and 2003, an average of less than 2.5 percent of initial petitions were denied; thus, this cost factor is relatively insignificant.
The additional fees mandated by the OAA are not being codified by USCIS within the context of this rulemaking. However, USCIS, in a future rulemaking, will amend 8 CFR 214.2(h) (19), which currently
addresses the fees initially required pursuant to ACWIA, to reflect the enhanced ACWIA fees of $1,500 (or $750) and to codify the new fraud prevention and detection fees ($500) affecting all H and L petitioners.
USCIS notes, however, that the Form I-129 has recently been revised to comport with the provisions of the OAA by adding a supplement titled H-1B Data Collection and Filing Fee Exemption. The inclusion of the H-1B
Data Collection and Filing Fee Exemption supplement within the revised Form I-129 has rendered the previous Form I-129W moot, as it captures the required information previously obtained via the Form I-129W.
Therefore, the Form I-129W has been removed from the USCIS forms inventory. OMB has approved the revised Form I-129 for official use by the public and USCIS has released the revised Form I-129 for official use as of March 11, 2005. Petitioners are urged to consult and comply with the instructions on the revised I-129 and the H-1B Data Collection and Filing Fee Exemption supplement when filing their petitions for H-1B nonimmigrant workers.
Accounting Statement
As required by OMB Circular A-4 (available at ), in Table 1, USCIS has prepared an accounting statement showing the classification of the expenditures associated with the Allocation of Additional H-1B Visas created by the H-1B Visa Reform Act of 2004. The table provides our best estimate of the dollar amount of these costs and benefits, expressed in 2005 dollars, at three percent and seven percent discount rates. We estimate that the cost of this interim rule will be approximately $125 million annualized (7 percent discount rate) and approximately $127 million annualized (3 percent discount rate). The non-quantified benefit is compliance with the OAA.
Table 1.--Accounting Statement: Classification of Expenditures, FY 2005 Through FY 2014[2005 dollars]
Three Percent Annual Discount Rate
BENEFITS
Annualized monetized benefits (Un-quantified) benefits: compliance with the law; funding of congressionally mandated programs; acquisition of needed professional workers
COSTS
Annualized monetized costs: $127 million Annualized quantified, but un-monetized costs Qualitative (un-quantified) costs Seven Percent Annual Discount Rate
BENEFITS
Annualized monetized benefits (Un-quantified) benefits: compliance with the law; funding of congressionally mandated programs; acquisition of needed professional workers
COSTS
Annualized monetized costs: $125 million Annualized quantified, but un-monetized costs Qualitative (un-quantified) costs
In accordance with the provisions of E.O. 12866, this regulation was reviewed by the Office of Management and Budget.
F. Executive Order 13132
This interim rule will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this interim rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
G. Executive Order 12988 Civil Justice Reform
This interim rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all Departments are required to submit to OMB, for review and approval, any reporting and recordkeeping requirements inherent in a rule. This interim rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act. As previously stated under Executive Order 12866, the Form I-129, Petition for Nonimmigrant Worker (OMB 1615-0009), has recently been revised to include the H-1B Data Collection and Filing Fee Exemption supplement to comport with the provisions of the OAA. These revisions include amendments to the H-1B
Data Collection and Filing Fee Exemption Supplement to capture information about the beneficiary's level of education and whether the degrees were earned from a U.S. institution of higher education; to assist U.S. employers in assessing whether they are subject to the new $1,500 (or $750) ACWIA and $500 Fraud Detection and Prevention fees; and to assist U.S. employers in assessing whether they are eligible for the numerical limit exemptions provided under section 214(g)(5) of the INA. OMB has approved the revised Form I-129 for official use by the public (OMB Control Number 1615-0009); however, USCIS will continue to accept the prior paper editions of Form I-129 until May 30, 2005. In addition, by increasing the number of Forms I-129 and Forms I-907 being submitted as a result of the OAA, USCIS has submitted to OMB for emergency clearance the Paperwork Reduction Change Worksheet (OMB-83C) increasing the total annual burden hours. Further, USCIS has submitted to OMB for emergency clearance Paperwork Reduction Act Submission (OMB 83-I) to permit USCIS to concurrent use of the Form I-129 (edition date 3-17-05, OMB 1615-0009 and the old Form I-129 (edition date 12-10-01, OMB 1115-0168, OMB 1615-0093) until May 30, 2005. Due to this temporary information collection, USCIS submitted the OMB 83-I to formally request that OMB adjust the burden hours for the use of the 12-10-01 version of the Form I-129. The public should reference the Federal Register notice contained at 70 FR 20590 (Apr. 20, 2005) for information about this collection. Please note however that USCIS hereby extends the deadline for comments solicited in that notice until May 30, 2005.
List of Subjects in 8 CFR Part 214
Administrative practice and procedure, Aliens, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students.
Accordingly, chapter I of title 8 of the Code of Federal Regulations is amended as follows:
PART 214--NONIMMIGRANT CLASSES
1. The authority citation for part 214 is revised to read as follows: Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant to E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1372, 1379, 1731-32; section 643, Pub. L. 104-208, 110 Stat. 3009-708; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, respectively, 8 CFR part 2.
2. Section 214.2 is amended by (a) Revising (h)(2)(i)(A); (b) Revising (h)(8)(ii)(B); (c) Removing (h)(8)(ii)(C) and redesignating (h)(8)(ii)(D) through (F) respectively as (h)(8)(ii)(C) through (E); (d) Revising the last sentence of newly designated (h)(8)(ii)(C) to read as follows: Sec. 214.2 Special requirements for admission, extension, and maintenance of status.
* * * * *(h) * * * (2) * * *(i) * * *
(A) General. A United States employer seeking to classify an alien as an H-1B, H-2A, H-2B, or H-3, temporary employee shall file a petition on Form I-129, Petition for Nonimmigrant Worker, only with the USCIS Service Center which has jurisdiction in the area where the alien will perform services, or receive training, even in emergent situations, except as provided in this section or as specifically designated by USCIS via notice in the Federal Register.
* * * * *(8) * * *(ii) * * *
(B) When calculating the numerical limitations for a given fiscal year, USCIS will make numbers available to petitions in the order in which the petitions are filed. USCIS will make projections of the number of petitions necessary to achieve the numerical limit of approvals, taking into account historical data related to approvals, denials, revocations, and other relevant factors. USCIS will monitor the number of petitions (including the number of beneficiaries requested when necessary) received and will notify the public of the date that USCIS has received the necessary number of petitions (the ``final receipt date''). The date of publication will not control the final receipt date. When necessary to ensure the fair and orderly allocation of numbers in a particular classification subject to numerical limits, USCIS may randomly select from among the petitions received on the final receipt date the remaining number of petitions deemed necessary to generate the numerical limit of approvals. This random selection will be made via computer-generated selection as validated by the Office of Immigration Statistics. Petitions not randomly selected, and petitions received after the final receipt date, will be rejected. If the final receipt date is the same as the first date on which petitions subject to the applicable cap may be filed (i.e., if the cap is reached on the first day filings can be made), USCIS will randomly apply all of the numbers among the petitions filed on the final receipt date and the following day. (C) * * * The petition shall be revoked pursuant to paragraph (h) (11)(ii) of this section and USCIS will take into account the unused number during the appropriate fiscal year.
Dated: May 2, 2005.
Michael Chertoff, Secretary.
[FR Doc. 05-8992 Filed 5-2-05; 3:58 pm]
BILLING CODE 4410-10-P".
Posted by VisaLawyer at 02:55 PM | Comments (0)
USCIS public notice that as of May 20, 2005, 6,393 of the 20,000 H-1B exemption numbers for fiscal year 2005 had been used
So for example if you are a U.S. masters program or higher graduate there is still time to apply for one of these H-1B visa. My office can process an H-1B within 72 business hours of receipt of all your information. Then by submitting your H-1B to immigration using premium processing you will have a response within 15 calendar days. In the past I have submitted cases a Monday and had approval by Wednesday. Contact me right away to secure you spot in this visa category.
Posted by VisaLawyer at 02:40 PM | Comments (0)
May 24, 2005
USCIS Advises on Where to Send RFE Responses on H-1B "Upgrade" Cases
USCIS Advises on Where to Send RFE Responses on H-1B "Upgrade" Cases
If you have filed a FY06 H-1B petition and received a Request for Evidence, the requested evidence must be sent back to the Service Center that issued the RFE. This is true even if you will submit a request to the Vermont Service Center's special address to upgrade the pending H-1B case to a FY05 (20,000) case. In such a situation, the response to the RFE goes back to the Service Center that issued it; the H-1B upgrade request goes to the VSC's special address for upgrades.
Posted by VisaLawyer at 09:21 AM | Comments (0)
May 23, 2005
FAQ; New H-1B1 visa for nationals of Chile (1,400) and Singapore (5,400)
Congress created a new visa category as part of its approval of the United States-Chile Free Trade Agreement and the United States-Singapore Free Trade Agreement. By statute the new H-1B1 visa is available only to nationals of Chile and Singapore; 1,400 from Chile and 5,400 from Singapore. To qualify as a professional for purposes of the H-1B1 program, a person must be engaged in a specialty occupation requiring theoretical and practical application of a body of specialized knowledge, and attainment of a bachelor's degree or higher as a minimum for entry into the occupation in the United States. See INA section 214(i)(3) [8 U.S.C. 1184(i)(3)]. Both the Chile FTA and Singapore FTA state that they cover a business person seeking to engage in a business activity as a professional, or to perform training functions related to a particular profession, including conducting seminars, if the business person otherwise complies with immigration measures applicable to temporary entry.
Posted by VisaLawyer at 07:43 AM | Comments (0)
Newspapers versus blogs
There is an excellent article in the LATimes titled "Paper's aim: building blog for success" It features "The daily newspaper in Greensboro, N.C., has embarked on a journalistic experiment that could change the way readers approach and digest the news. The "Town Square" project aims to build an online community for its readers, attracted as much to the website for its staff-written articles as for pieces by citizen correspondents. Bloggers will be a vital voice in the square. By Martin Miller. http://email.latimes.com/cgi-bin1/DM/y/epFx0KMvyp0G2B0Gdcp0EP"
Here is a good quote from the article; "And most troubling for papers is that the average age now of their readers is about 53. Fewer than 30% of people in their 30s read papers and fewer than 20% in their 20s bother at all."
Posted by VisaLawyer at 07:11 AM | Comments (0)
May 22, 2005
10,500 E-3 visas for Australians
There is now a special E-3 visa category just for Australians. The Real Id Act amend section 101(a)(15)(E) by adding a new section (iii) which adds 10,500 E-3 visas for Australians. The 10,500 are counted only towards the applicant and not their spouses and children. The spouses will be allowed to work in the U.S. The visa will be valid for two years and may be renewed.
Posted by VisaLawyer at 06:58 AM | Comments (0)
May 21, 2005
Carmen Ceja/Ceja Enterprises; cease and desist letter (typed copy)
(Seal of the Executive Office for Immigration Review) U.S.
Department of Justice
Executive Office for Immigration Review
Office of the General Counsel
Bar Counsel
5107 Leesburg Pike, Suite 2600
Fall Church Virginia 22041
May 11, 2005
Carmen Ceja
Ceja Enterprises, Inc.
4025 Nolensville Road
Nashville TN 37211
Dear Ms. Ceja:
It has recently come to the attention of this office that you are making representations that your business, Ceja Enterprises, Inc. is authorized to represent aliens before the Immigration and Naturalization Service.
However, after a through review of our records, including our database, we have ascertained that Ceja Enterprises, Inc. is not a recognized organization pursuant to 8 C.F.R. § 292.2(a). An organization recognized by the Board of Immigration Appeals must be a non-profit, religious, charitable, social service, or similar organization established in the United States which charges only nominal fees and has adequate knowledge, information, and experience in the area of immigration and nationality law. Ceja Enterprises has never been a recognized organization and, therefore, is not authorized to represent individuals before the Executive Office for Immigration Review (“EOIR”), including the Immigration Courts or the Board of Immigration Appeals, or any agency within the Department of Homeland Security (“DHS”), including the Immigration and Customs Enforcement and U.S. Citizenship and Immigration Services.
Therefore, we conclude that your organization is not authorized to represent aliens before EOIR or DHS; any further attempts to represent individuals before these agencies will be a violation of federal regulations. We require that your organization cease and desist from representing aliens in the future unless and until your business become qualified to do so pursuant to the regulations.
Sincerely,
(Signature of Jennifer J. Barnes) Jennifer. J. Barnes
Bar Counsel
cc; Tom Davis, Memphis Immigration Court Administrator
Attorney Sean Lewis
Rachel McCarthy, US Citizenship and Immigration Services
Department of Homeland Services
Posted by VisaLawyer at 06:56 AM | Comments (0)
May 20, 2005
NY Times Editorial Major Immigration Surgery 5/20/05
There is an editorial in the New York Times about the need for immigration reform. This issue needs to be address to help fix our broken immigration system. The editorial refers to "major immigration surgery". This action need to be taken to help the U.S. remain a "nation of immigrant"s. The fabric of the nation is re-woven with every new wave of immigration. You can find the article at
http://www.nytimes.com/2005/05/20/opinion
Here is a quote from the article "The bipartisan immigration proposal in Congress deserves the support of President Bush, who has been promising action on immigration for years".
Posted by VisaLawyer at 09:00 AM | Comments (0)
May 19, 2005
cease and desist letter; Carmen Ceja/Ceja Enterprises, Inc.
On Wednesday I receive an e-mail from the AILA mid-south listserve from attorney Sean Lewis which read "I have a client that went to a "notario" who completely botched her case. Bar Counsel at EOIR has issued a cease and desist against Carmen Ceja, CEJA Enterprises, Inc. from representing aliens before the EOIR/DHS. If anyone has any information regarding further action by this outfit, please contact me as soon as possible. Thanks, Sean Lewis". So I called Sean to obtain a copy of the cease and desist letter. According to Jennifer J. Barnes, Bar Counsel of the EOIR Carmen Ceja/Ceja Enterprises, Inc. has never been recognized as an organization pursuant to 8 C.F.R. § 292.(a); to be recognized an organization must be "non-profit". So I went to the website for the Tennessee Secretary of State at www.tennesseeanytime.org. Under department I selected Secretary of State and submitted Ceja, Enterprises, Inc. for a search. The details revealed; TYPE* CORPORATION, FOR PROFIT. So Ceja Enterprises, Inc. could not be recognized by the EOIR as Ceja is a for profit entity. If you have suffered in your immigration case at the hands of non-registered person or business send me a comment.
Posted by VisaLawyer at 06:34 AM | Comments (0)
May 18, 2005
House of Representatives Expands Aggravated Felony Definition
This was just received from the American Immigration Lawywer Association;
The House of Representatives passed The Gang Deterrence and Community Protection Act of 2005" (H.R. 1279) on May 11 by a vote of 279-144. Among other troubling provisions, this bill would expand the definition of the federal "crime of violence" and, by extension, the aggravated felony definition for immigration law purposes. Because Representative Sensenbrenner (R-WI) added this provision to the bill in the manager's amendment, there was no opportunity either for debate or to strike it during House floor consideration.
Current law defines a crime of violence as one that involves a substantial risk that physical force will be used against person or property. The Supreme Court recently interpreted this statute (see Leocal v. Ashcroft (11/94)) and held that driving under the influence offenses requiring a mens rea of negligence do not constitute crimes of violence and therefore do not qualify as aggravated felonies under the Immigration and Nationality Act.
Representative Sensenbrenner's provision seeks to expand the crime of violence definition to include nonviolent, negligent acts or omissions - such as driving under the influence - that place another person or property at risk of injury, even if no injury actually occurs. Expanding this definition simultaneously expands the class of crimes treated as aggravated felonies for immigration purposes. Crimes so classified carry incredibly harsh immigration-related consequences, including mandatory detention and removal - even for longtime lawful permanent residents.
The bill now moves to the Senate, where Senators Feinstein (D-CA) and Hatch (R-UT) are pushing their own version of the bill (S. 155). While the Senate version does not currently include this expanded definition, proponents of this measure may try to amend it to S. 155 when the Senate Judiciary Committee considers the bill. No timetable for Senate action on S. 155 has been set at this time.
An Action Alert with guidance on
Cite as "Posted on AILA InfoNet at Doc. No. 05051863 (May 18, 2005) ."
Posted by VisaLawyer at 02:44 PM | Comments (0)
Update on House Floor Action today including CLEAR-like Amendments. Please contact your Representatives
I just received this from Victor Nieblas;
Today the House of Representatives will vote on several amendments to the Department of Homeland Security Authorization bill. We shortly will be posting an alert on InfoNet. Chapter Chairs, please send this out to your members and urge them to call their Representatives. The Congressional Switchboard number is 202-224-3121. Because time is so short, it is best to phone your Representatives rather than email them.
These amendments are:
Cox-Sensenbrenner Amendment to Fund Local Immigration Enforcement Training: This amendment to the Department of Homeland Security Authorization bill would authorize $40 million in federal funding for state and local police agencies who enter into MOUs with ICE to enforce immigration laws. Only training costs would be reimbursed; ongoing personnel and administrative costs incurred by law enforcement agencies that enter into MOUs would not. We were alerted to this amendment only this morning -- Representative Sensenbrenner's cosponsoring of this amendment and support for it violates an agreement he had reached with Representative Conyers which included stripping this measure from the bill in Committee. URGE A "NO" VOTE!
Norwood Amendment Affirming Inherent Authority of States and Localities to Enforce Civil Immigration Laws: This amendment seeks to declare that state and local law enforcement officers have inherent authority to enforce federal immigration laws, including the apprehension, detention, and removal of aliens in the United States. Although it would require DHS to develop a manual within 180 days to help train state and local law enforcement in the investigation, identification, apprehension, arrest, and detention of aliens in the United States, it does not make training a prerequisite to the enforcement of the immigration laws. It also would require DHS to develop an immigration enforcement "pocket guide" for law enforcement personnel to utilize while on duty. URGE A "NO" VOTE!
Slaughter Amendment to Improve SENTRI, FAST, and NEXUS Pre-Enrollment Programs: This amendment would require DHS to create four remote enrollment centers for the FAST, SENTRI, and NEXUS programs. The enrollment centers would be located outside the United States in population centers where there is a demand for such programs. URGE A "YES" VOTE!
It appears that another amendment, offered by Representative Hostettler, Chair of the House Immigration Subcommittee, would have rewarded whistleblowers for turning in employers who employ undocumented aliens and would have protected these whistleblowers from retaliation. In addition to protection, the amendment would have provided a financial incentive for individuals to levy allegations against employers by offering whistleblowers 15-25% of any civil monetary penalty or criminal fine collected from violators . This amendment was defeated in the Judiciary Committee and is opposed by Representative Sensenbrenner. It is not clear at this time whether the amendment will be ruled in order and subject to a vote today. IT IT DOES COME UP, URGE A "NO" VOTE!.
Victory Yesterday: Yesterday the House voted on the DHS Appropriations bill. We were given little time to deal with amendments that were made in order. We are pleased to report that the House defeated, by a vote of 165-258, another CLEAR Act-like amendment offered by Representative Tancredo that would have denied all Homeland Security funding to states and local governments that have sanctuary laws in place. This amendment is virtually identical to an amendment defeated last year on a 148 - 259 vote
Judith Golub
Senior Director, Advocacy & Public Affairs
American Immigration Lawyers Association
(202) 216-2403
Posted by VisaLawyer at 12:52 PM | Comments (0)
The Secure America and Orderly Immigration Act (SAOIA) of 2005 (S. 1033/H.R. 2330): A Brief Overview
I just received this from Judy Golub with the American Immigration Lawyers Association;
On May 12, 2005, Senators John McCain (R-AZ) and Edward Kennedy (D-MA), and Representatives Jim Kolbe (R-AZ), Jeff Flake (R-AZ), and Luis Gutierrez (D-IL) introduced the Secure America and Orderly Immigration Act of 2005 (S. 1033/H.R. 2330). Reflecting the universal consensus that our immigration system is broken, S. 1033/H.R. 2330 would reform our immigration laws so that they enhance our national security and address the concerns of American businesses and families. The legislation contains provisions to address the problems that have long plagued our current immigration system, as briefly outlined below.
Title I of the bill would create a national strategy for border security and enhanced border intelligence by:
• mandating the development and implementation of various plans and reports dealing with information-sharing, international and federal-state-local coordination, technology, anti-smuggling, and other border security initiatives;
• authorizing the development of a Border Security Advisory Committee made up of various stakeholders in the border region to provide recommendations to the Department of Homeland Security regarding border security and enforcement issues;
• requiring the Secretary of State to provide a framework for better management, communication and coordination between the governments of North America, including the development of multilateral agreements to establish a North American security perimeter and improve border security south of Mexico.
Title II of the bill would reauthorize the State Criminal Alien Assistance Program for fiscal years 2005 through 2011 and provide that such funds may only be used for correctional purposes. In addition, Title II authorizes additional funding to states for reimbursement of the indirect costs relating to the incarceration of undocumented aliens.
Title III would establish a new essential worker visa program with the following characteristics:
• a new temporary (H-5A) visa would allow foreign workers to enter the U.S. and fill available jobs that require few or no skills;
• applicants would be required to demonstrate the availability of a job in the U.S., pay a $500 fee in addition to application fees, and clear all security, medical, and other checks;
• the H-5A visa would be valid for 3 years, and could be renewed one time for a total of 6 years; at the end of the visa period the worker would have to return home or be in the pipeline for a green card. The visa would be portable;
• the initial cap on H-5A visas would be set at 400,000, with the annual limit gradually adjusted based on demand in subsequent years;
• an employer could sponsor the H-5A visa holder for permanent residence or, after accumulating 4 years of work in H-5A status, the worker could apply to adjust status through self-petition;
• the bill sets forth various employer obligations under the program, detailed worker protections, and an enforcement scheme to deal with violations of these provisions;
• the bill sets up a task force to evaluate the H-5A program and recommend improvements, and requires updating of America’s Job Bank to ensure job opportunities are seen first by American workers.
Title IV deals with enforcement and would:
• require all new visas issued by the Secretary of State and immigration-related documents issued by the Secretary of Homeland Security to be biometric, machine-readable and tamper-resistant, within 6 months of the bill’s enactment;
• mandate the establishment of a new Employment Eligibility Confirmation System which will gradually replace the existing I-9 system, and which will contain certain safeguards to prevent the unlawful use of the system and a process by which individuals can correct false information;
• amend the IIRIRA to provide for the collection of biometric machine-readable information from an alien’s immigration-related documents upon arrival and departure from the U.S. to determine the alien’s status;
• broaden the Department of Labor’s investigative authority to conduct random audits of employers and ensure compliance with labor laws, and include new worker protections and enhanced fines for illegal employment practices.
Title V is designed to promote circular migration patterns by:
• authorizing the establishment of Independent Savings Accounts for participants in the new temporary worker program established under Title III;
• authorizing the establishment of labor migration facilitation programs with foreign governments whose citizens participate in the new temporary worker program. The programs would facilitate the flow of foreign nationals to jobs in the U.S., with an emphasis on encouraging the re-integration of foreign nationals returning to their home countries;
• encouraging the U.S. government to work with Mexico to promote economic opportunities for Mexican nationals in their home country to reduce migration pressures and costs.
Title VI would promote family unity and reduce backlogs by, among other things:
• exempting immediate relatives of U.S. citizens from the 480,000 annual cap on family-sponsored immigrant visas and reallocating the family-sponsored numbers;
• increasing the number of employment-based numbers from 140,000 to 290,000 per year, reallocating the distribution of those numbers, and providing for the recapture of unused numbers;
• increasing the per-country limits for both family- and employment-based immigrants;
• lowering the income requirements for sponsoring a family member from 125% of the federal poverty guidelines to 100%, and removing other obstacles to ensure fairness.
Title VII provides a mechanism by which eligible undocumented immigrants present in the U.S. on the date of the bill’s enactment can adjust to temporary nonimmigrant (H-5B) status with an initial period of stay of 6 years.
• applicants would be required to undergo criminal and security background checks, submit fingerprints and other data, pay a fine, and establish a previous work history in the U.S. Spouses and children would also be eligible for adjustment under this section;
• the bill provides a subsequent mechanism by which H-5B nonimmigrants could adjust to permanent residence status upon meeting a prospective work requirement, paying a fine, and fulfilling additional eligibility criteria. Children and spouses would again be eligible for such adjustment.
Title VIII seeks to protect individuals from immigration fraud by defining who is an authorized representative for purposes of representation in an immigration matter and providing eligibility for “U” nonimmigrant status for certain individuals who have suffered substantial harm at the hands of an unauthorized representative.
Title IX deals with civics integration, authorizing the establishment of the United States Citizenship Foundation, as well as a competitive grant program to fund civics and English language classes.
Title X would promote access to health care by extending the authorization of federal reimbursement for hospitals that provide emergency care to undocumented immigrants and by adding H-5A and H-5B workers to the list of persons for whom hospitals may be reimbursed.
Title XI comprises various miscellaneous provisions, including provisions that would:
• require periodic reports to Congress on the use of the worker programs established under the bill;
• provide for the distribution of fees and fines paid by H-5A and H-5B applicants;
• include H-5A and H-5B workers in the class of individuals protected under the INA’s anti-discrimination provisions;
• provide special immigrant status for certain women and children at risk of harm.
47LE5006
Posted by VisaLawyer at 09:32 AM | Comments (0)
El proyecto de ley para un País Seguro y una Inmigración Ordenada de 2005 (S. 1033/H.R. 2330): Un breve repaso
American Immigration Lawyers Association
El 12 de mayo de 2005, los senadores John McCain (R-AZ) y Edward Kennedy (D-MA), y los representantes Jim Kolbe (R-AZ), Jeff Flake (R-AZ) y Luis Gutiérrez (D-IL) introdujeron el proyecto de ley para un País Seguro y una Inmigración Ordenada (Secure America and Orderly Immigration Act) de 2005 (S. 1033/H.R. 2330). Como reflejo del consenso universal en que nuestro sistema de inmigración no funciona, S. 1033/H.R. 2330 reformaría nuestras leyes de inmigración para que mejoren nuestra seguridad nacional y aborden las preocupaciones de los negocios y las familias estadounidenses. La propuesta legislativa contiene disposiciones que abordan los problemas que llevan tiempo plagando nuestro actual sistema de inmigración, como se explica brevemente a continuación.
El Título I del proyecto de ley crearía una estrategia nacional para la seguridad fronteriza y mejoraría la inteligencia en la frontera:
• ordenando el desarrollo y la implementación de varios planes e informes que se ocupen del intercambio de información, la coordinación internacional y federal-estatal-local, la tecnología, la lucha contra el tráfico y otras iniciativas de seguridad fronteriza;
• autorizando el desarrollo de un Comité Asesor sobre Seguridad Fronteriza integrado por varios interesados en la región fronteriza que ofrezcan recomendaciones al Departamento de Seguridad del Territorio Nacional en relación con la seguridad fronteriza y los temas relacionados con la vigilancia;
• requiriendo al Secretario de Estado que ofrezca un marco para una mejor gestión, comunicación y comunicación entre los gobiernos de América del Norte, lo que incluye el desarrollo de acuerdos multilaterales para el establecimiento de un perímetro de seguridad norteamericano y la mejora de la seguridad fronteriza al sur de México.
El Título II del proyecto de ley reautorizaría el Programa Estatal de Asistencia a Delincuentes Extranjeros (State Criminal Alien Assistance Program) para los años fiscales 2005 a 2011 y dispone que dichos fondos sólo podrían emplearse para fines correccionales. Además, el Título II autoriza financiamiento adicional a los estados para el reembolso de los costos indirectos derivados del encarcelamiento de delincuentes extranjeros.
El Título III establecería un nuevo programa de visas para trabajadores esenciales con las siguientes características:
• una nueva visa temporal (H-5A) permitiría a los trabajadores extranjeros entrar en Estados Unidos y cubrir empleos disponibles que requieren escasas o ninguna calificación;
• los solicitantes tendrían que demostrar la disponibilidad de un empleo en Estados Unidos, pagar una tasa de $500 además de las tasas de solicitud, y pasar todos los controles de seguridad, médicos y de otro tipo;
• la visa H-5A sería válida durante 3 años, y podría renovarse una vez durante un total de 6 años; al final del período de visa, el trabajador tendría que regresar a su país o ponerse en la lista de espera para una tarjeta verde. La visa sería trasladable;
• el máximo inicial de visas H-5A sería de 400.000, con un ajuste gradual del tope annual en función de la demanda en años posteriores;
• un empleador podría patrocinar al titular de una visa H-5A para que obtenga la residencia permanente o, después de acumular 4 años de trabajo con una visa H-5ª, el trabajador podría solicitar la regularización por su cuenta;
• el proyecto de ley establece varias obligaciones del empleador conforme al programa, protecciones detalladas para el trabajador, y un sistema de vigilancia para contrarrestar las violaciones de estas disposiciones;
• el proyecto de ley crea un grupo de trabajo para evaluar el programa de H-5A y recomendar mejoras, y requiere la actualización del Banco de Trabajo de Estados Unidos para garantizar que los trabajadores estadounidenses son los primeros que ven las ofertas de empleo.
El Título IV se ocupa de la vigilancia y:
• requeriría que todas las nuevas visas emitidas por la Secretaría de Estado y los documentos relacionados con la inmigración emitidos por la Secretaría de Seguridad del Territorio Nacional sean biométricos, de lectura mecánica y resistentes a la falsificación, en un plazo de seis meses desde la entrada en vigor de la ley;
• ordenaría el establecimiento de un nuevo Sistema de Confirmación de la Elegibilidad para el Empleo que reemplazaría gradualmente al sistema I-9 existente, y que contendría ciertas salvaguardas para prevenir el uso ilegítimo del sistema, y un proceso por el que las personas particulares podrían corregir la información falsa;
• enmendaría la IIRIRA para disponer la recolección de información biométrica de lectura mecánica de los documentos migratorios de un extranjero a su llegada o salida de Estados Unidos, para determinar su condición de extranjero;
• ampliaría la autoridad investigativa del Departamento de Trabajo para que realice inspecciones al azar de empleadores y garantice el cumplimiento de las leyes laborales, e incluiría nuevas protecciones para los trabajadores y mayores sanciones para las prácticas ilegales de empleo.
El Título V está destinado a promover los patrones circulares de la migración:
• autorizando el establecimiento de Cuentas de Ahorro Independientes para los participantes en el nuevo programa de trabajadores temporales creado conforme al Título III;
• autorizando la creación de programas de facilitación de la migración de mano de obra con gobiernos extranjeros cuyos ciudadanos participen en el nuevo programa de trabajadores temporales. Los programas facilitarían el flujo de ciudadanos extranjeros a empleos en Estados Unidos, con un énfasis en el fomento de la reintegración de extranjeros que regresen a sus países de origen;
• fomentando que el gobierno de Estados Unidos colabore con México en la promoción de oportunidades para ciudadanos mexicanos en su país de origen, con el fin de reducir las presiones y los costos de la migración.
El Título VI promovería la unidad familiar y reduciría los retrasos, entre otras cosas:
• eximiendo a los familiares inmediatos de ciudadanos estadounidenses del máximo de 480.000 visas anuales por relaciones familiares y reasignando las cifras de dichas visas;
• aumentando el número de visas por empleo de 140.000 a 290.000 anuales, reasignando la distribución de estas cifras y disponiendo la recuperación de las visas no utilizadas;
• aumentando los límites por país para los inmigrantes por familia o empleo;
• reduciendo los requisitos de ingresos para el patrocinio de familiares del 125% de las directrices federales de pobreza al 100%, y eliminando otros obstáculos para garantizar la justicia.
El Título VII dispone un mecanismo por el cual los inmigrantes indocumentados elegibles, presentes en Estados Unidos en el momento de la promulgación de ley, pueden obtener la condición temporal de no inmigrante (H-5B) con un período inicial de estancia de 6 años.
• los solicitantes tendrán que someterse a controles de antecedentes penales y de seguridad, presentar huellas y otros datos, pagar una multa y establecer un historial laboral previo en Estados Unidos. Los cónyuges y los hijos también podrán regularizarse de acuerdo con esta sección;
• el proyecto de ley dispone un mecanismo subsiguiente por el que los no inmigrantes con H-5B podrían obtener la residencia permanente si cumplen el requisito de un posible empleo, pagan una multa y cumplen otros criterios de elegibilidad adicionales. Una vez más, los cónyuges y los hijos podrían obtener dicha residencia.
El Título VIII intenta proteger a las personas del fraude migratorio definiendo quién es un representante autorizado para fines de representación en una cuestión migratorio y disponiendo el derecho a obtener la condición de no inmigrante “U” para ciertas que hayan sufrido un perjuicio sustancial en manos de un representante no autorizado.
El Título IX se ocupa de la integración ciudadana, autorizando el establecimiento de una Fundación sobre la Ciudadanía de Estados Unidos, así como un programa competitivo de donaciones que para financiar clases de civismo e inglés.
El Título X promovería el acceso a la atención sanitaria extendiendo la autorización del reembolso federal a los hospitales que ofrecen atención sanitaria a inmigrantes indocumentados, y agregando a los trabajadores con visas H-5A y H-5B a la lista de personas por las que se puede rembolsar a los hospitales.
El Título XI comprende disposiciones varias, entre ellas disposiciones que:
• requerirían informes periódicos al Congreso sobre el uso de los programas de trabajadores creados conforme a la ley;
• dispondrían la distribución de las tasas y multas pagadas por los solicitantes de visas H-5A y H-5B;
• incluiría a los trabajadores con visas H-5A y H-5B en la categoría de personas protegidas por las disposiciones contra la discriminación de la INA;
• dispondría la condición de inmigrante especial a ciertas mujeres y niños que corran riesgo de daño.
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Posted by VisaLawyer at 09:31 AM | Comments (0)
May 17, 2005
Grassroots Campaigns/Immigration Works Committee, American Immigration Lawyers Association
I am pleased that for a second year I will serve on the Grassroots Campaigns/Immigration Works Committee for the American Immigration Lawyers Association. The Committee Co-Chairs are Peter L Ashman and B. John Ovink, Members are Jan H. Brown, C. Lynn Calder, Gerard M. Chapman, Jessica Domenguez, Raul E. Godinez, Jason A. Levy, Steven C. Thal, Stephen Yale-Loehr and me. This committee is one that allows for a lot of though as how to bring about grassroots involvement to immigration reform. The trick is to combined thought and action. I will focus on using the web to use web based methods combined with old fashion person to person meeting to help bring about a merge of personal and web networks.
Posted by VisaLawyer at 02:09 PM | Comments (0)
Driver's License Task Force member; American Immigration Lawyer Association
I am pleased to relate that Deborah J. Notkin, AILA (American Immmigration Lawyer Association) President Elect has selected me to serve on the Driver's License Task Force. The Chair is Howard Silverman and fellow members are Barbara Bower, Denise C. Hammond, Mary E. Kramer and Craig E. Miley. I look forward to serving on this committee. In 1995 I began the driver's license effort in Tennessee and have played role in the continuation of the availibility of driving priviledges in Tennessee for immigrants. Given the impact Real Id a misguided piece of legislation will have on immigrants I look forward to sharing my thoughts and efforts to this task force.
Posted by VisaLawyer at 02:01 PM | Comments (0)
May 16, 2005
20,000 H-1B visas for U.S. masters graduate or higher
There are now an additional 20,000 H-1B visas available for of U.S. masters programs or higher. Last week I received a question from my website as to if a job offer is necessary to apply for these visas. The answer is yes, the H-1B is offered by the employer who applies on behalf of the employee. This is a common question to my website. I understand the need of being able to process the H-1B quickly to be able to receive a job offer. Within 72 business hours of receiving all data your H-1B is ready.
Posted by VisaLawyer at 06:28 PM | Comments (0)
May 15, 2005
Argentine Embassador reception
On Friday there will be a reception by the Tennessee Hispanic Chamber of Commerce for the embassador. As a board member of the chamber I will be at the reception. Here is an e-mail that Greg Rodriguez , the President of the chamber sent regarding the event; Argentine Ambassador Luncheon
Please join the Tennessee Hispanic Chamber of Commerce in welcoming
The Honorable José Octavio Bordón
Argentine Ambassador
Date: May 20, 2005
This event will start promptly at 11AM.
RSVP required.
Please visit our website http://www.tnhispanic.com/events.html
for more information.
Posted by VisaLawyer at 07:15 PM | Comments (0)
May 14, 2005
Immigration reform (SAOIA), Secure America and Orderly Immigration Act
Last week saw the presentment of a joint petition to seek reform of the broken immigration system to bring security to our borders, allow legalization of essential workers, families to be reunited, work authorization and a road to lawful permanent residency. Without reform our immigration system will continue to leak like an old garden hose. You have to waste a lot of water to water your garden. Today I was asked what are chances for immigration reform. The answer depends on us who seek to bring about passage of immigration reform. We have to expand our network. Use our minds to bring about physical action. A grassroots campaign can be waged using the strenght of the web by creating an immigrant conversation through out America . Howard Dean's model of an American conversation bringing thought to action of meetup.com should be followed. These campaigns require decentralized tactics to have greater effect. By motivating people there is more effect.
Posted by VisaLawyer at 07:15 PM | Comments (0)
May 13, 2005
Introduction of the Secure America and Orderly Immigration Act
I just received this press release from Judith Golub, Director of Advocacy, American Immigration Lawyer Association (AILA) on the introduction of the Secure America and Orderly Immigration Act (SAOI). As a member of AILA's Grassroots campaign committee I support SAOI and will work bring about the passage of this overdue law that will fix our broken immigration system. Grassroots support will help to make this idea a reality. Here is the press release;
"Washington, DC – The American Immigration Lawyers Association (AILA) applauds Senators John McCain (R-AZ) and Edward Kennedy (D-MA), and Representatives Jim Kolbe (R-AZ), Jeff Flake (R-AZ), and Luis Gutierrez (D-IL) for their efforts to reform our immigration law and their introduction of the bipartisan Secure America and Orderly Immigration Act.
“We commend these Members of Congress for not only recognizing that our current immigration system is broken, but doing something about it by introducing comprehensive, bipartisan immigration reform,” said Jeanne Butterfield, Executive Director of the American Immigration Lawyers Association. Ms. Butterfield continued, “The Secure America and Orderly Immigration Act reflects the following important facts: the federal government must step up to the plate and reform out current immigration laws; that this nation cannot have border security unless we undertake such reform; that fixing our immigration system to make it safe, legal and orderly will make us more secure; we need a controlled immigration system that would replace an illegal flow with a legal immigration flow; and finally, we need an immigration system that is consistent with the basic American values of fairness and equal treatment under the law.”
While there is consensus that our current system is broken, there is some disagreement about the solutions. “Clearly, continuing to enforce our current dysfunctional system leads only to more dysfunction. In fact, experience tells us that an enforcement-only approach simply will not work,” said Ms. Butterfield. AILA supports reform that would enhance our security, reunite families, give a permanent status to hard-working, tax-paying people already here and allow American business to bring in needed workers. “Such reform is central to this bipartisan measure,” continued Ms. Butterfield.
AILA supports the Secure America and Orderly Immigration Act because it recognizes that change is urgently needed to enhance our national security and address the concerns of American businesses and families. The bill includes many important provisions that will help address the problems that plague our current immigration system, not the least of which is that a dysfunctional system breeds disrespect for the law. Transformation of our current unworkable and outdated system to one that promotes a controlled, legal, and orderly immigration system is long overdue.
AILA looks forward to working with Members of Congress and the Bush Administration in support of an immigration system that works and applauds the introduction of the Secure America and Orderly Immigration Act".
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Founded in 1946, AILA is a nonpartisan, nonprofit organization that provides its Members with continuing legal education, information, and professional services. AILA advocates before Congress and the Administration and provides liaison with the DHS and other government agencies. AILA is an Affiliated Organization of the American Bar Association.
Contact:(202)216-2403 Golub@aila.org or Julia Hendrix (202)216-2404
Hendrix@aila.org
American Immigration Lawyers Association
918 F Street NW, Washington, DC, 20004-1400
Phone (202) 216-2400; Fax (202) 783-7853
www.aila.org
Posted by VisaLawyer at 06:43 AM | Comments (0)
May 12, 2005
Declaración de la American Immigration Lawyers Association sobre la introducción del proyecto de ley para un País Seguro y una Inmigración Ordenada
Acabo de recibir este declaración de prensa para su publicación inmediata:
Contacto: Judith Golub (202) 216-2403 Golub@aila.org ó Julia Hendrix (202) 216-2404 Hendrix@aila.org
DECLARACIÓN AMERICAN IMMIGRATION LAWYERS ASSOCIATION
sobre la introducción del proyecto de ley para un País Seguro y una Inmigración Ordenada
Washington, DC – La American Immigration Lawyers Association (AILA) aplaude a los senadores John McCain (R-AZ) y Edward Kennedy (D-MA), y a los representantes Jim Kolbe (R-AZ), Jeff Flake (R-AZ) y Luis Gutiérrez (D-IL) por sus esfuerzos por reformar nuestras leyes de inmigración y su introducción del proyecto de ley, respaldado por ambos partidos, para un País Seguro y una Inmigración Ordenada (Secure America and Orderly Immigration Act).
“Aplaudimos a estos miembros del Congreso no sólo por reconocer que nuestro actual sistema de inmigración no funciona, sino por hacer algo al respecto con la introducción de la reforma integral de la inmigración apoyada por ambos partidos”, señaló Jeanne Butterfield, directora ejecutiva de la American Immigration Lawyers Association. Butterfield pro