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June 17, 2005

REAL ID, Business Immigration Provisions Enacted as Part of Emergency Appropriations Bill

I just received from the American Immigration Lawyers Association, the WASHINGTON UPDATE, Volume 9, Number 4, June 2005. To make it easier to read I am going to break it up into several parts to post on the blog. The first entry is about REAL ID, Business Immigration Provisions Enacted as Part of Emergency Appropriations Bill;

President Bush signed into law the “Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005” (Pub. L. No. 109-13, H.R. 1268) on May 11. This Act includes several immigration-related provisions, including the so-called REAL ID Act. This ill-conceived measure was incorporated into the Act as a result of promises secured by Representative Sensenbrenner from the Administration and House Republican leadership. This misguided legislation contains a treasure trove of anti-immigrant provisions, none of which will make this nation more secure, including provisions that:

• Prevent people fleeing persecution from obtaining relief;
• Make our highways more dangerous and undermine our security;
• Impose guilt by association
• Restrict judicial review for the first time since the Civil War, barring the court doors to immigrants;
• Waive all laws related to construction of fences at our borders, thereby granting unprecedented authority to a federal agency;

The new law also eliminates the annual cap on the number of asylees who are eligible to adjust their status to permanent residence and eliminates the annual cap on the number of persons who can be granted asylum because they were subjected to coercive population controls. While this is obviously welcome and long overdue, it is little consolation against a backdrop of provisions that will make it nearly impossible for many asylum seekers to find relief here in the future.

Click here to view a section-by-section summary and analysis of the bill:

To learn more about the judicial review provisions, please click here:

To view a chart of the driver’s license provisions prepared by the National Immigration Law Center, please click here: http://www.aila.org/fileViewer.aspx?docID=18701

In addition to the REAL ID provisions, the new law contains several business immigration provisions, including:

H-2B Emergency Relief: By voting overwhelmingly (94–6) to add the “Save Our Small and Seasonal Businesses Act of 2005” to its version of the supplemental bill, the Senate helped ensure the passage of this important short-tem fix critically needed by American employers of H-2B workers. Now that the measure has been signed into law, the Act will provide needed, albeit limited, relief for this fiscal and next by exempting from the cap those H-2B workers who have successfully used the program during one of the past three years. Because provisions in the Act required DHS to implement this exemption within 14 days of enactment, the agency worked diligently to issue guidance and begin petition processing on schedule. In order to help reduce implementation-related delays, Congress also exempted certain provisions of the new law from the Administrative Procedures Act requirements and other rulemaking processes. Such a speedy implementation is essential to help provide relief to the many small and seasonal employers who were previously unable to hire the workers they needed for this upcoming summer and fall seasons.

In exchange for the temporary relief from the cap, the Act also makes some permanent changes to the H-2B program. These changes include: creating a $150 anti-fraud fee; reallocating the 66,000 H-2B cap so that no more than 33,000 numbers can be used during the first 6 months of the fiscal year; increasing sanctions for employers who misuse the program; and requiring DHS to submit to Congress reports on H-2B program usage as well as statistics regarding the countries of origin of, occupations of, and compensation paid to aliens working pursuant to the H-2B program.

New Temporary Visa: The Senate passed without a recorded vote a measure offered by Senate Majority leader Bill Frist (R-TN) that creates a new temporary E-3 program for Australian nationals who will perform services in a specialty occupation. Unlike other E visa programs, the E-3 category will require a labor attestation and will be capped annually at 10,500, not including spouses and children. The language did not specify an effective date and DHS has yet to issue information on when this program will become operational.

Recapture of Unused Employment-Based Visa Numbers: As modified and passed behind the closed doors of the Senate and House conference committee, this provision provides for the recapture of unused employment-based immigrant visas by placing visa numbers unused from fiscal years 2001-2004 in a “bank” for use in future fiscal years when the demand for employment-based immigrant visas in the EB-1, 2, and 3 categories exceeds the annual quota. This measure places a limit of 50,000 on the total number of visas that may be used from the “bank” and reserves these visas for immigrant worker petitions based on Schedule A immigrants (Nurses, Physical Therapists, and Performing Artists of Exceptional Ability) and their family members accompanying or following to join them.

The original language of this amendment, offered in the Senate by Senators Schumer (D-NY), Hutchison (R-TX) and Kennedy (D-MA), would have made available all the unused numbers from 2001-2004 and would have allocated 50% of the available numbers to Schedule A occupations.


Judith Golub, Senior Director of Advocacy and Public Affairs
Marshall Fitz, Associate Director of Advocacy
Danielle Polen, Legislative Counsel
Joanna Hedvall, Business Immigration Associate
John Estrella, Senior Policy Associate
Julia Hendrix, Media Relations Associate
Michelle Mendez, Advocacy Assistant

American Immigration Lawyers Association
918 F Street, N.W.
Washington, D.C. 20004


Posted by VisaLawyer at June 17, 2005 07:03 AM


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