Immigration News & Analysis, Maggio & Kattar’s electronic immigration newsletter, offers up-to-date information and insightful commentary on U.S. immigration law and policy. Immigration News & Analysis is published monthly in an electronic format and is available via e-mail. Subscribe to Immigration News & Analysis.
Senate Unable to Reach Agreement on Major Immigration Legislation
After nearly two weeks of intense negotiations over sweeping immigration legislation that would clear the way for 11 million illegal immigrants to seek permanent resident status and U.S. citizenship, the U.S. Senate ultimately was unable to reach agreement - primarily on procedural issues - and recessed for two weeks. Just 24 hours earlier, a bipartisan group of Senators reached a compromise agreement on a three-tiered system that apparently rendered the bill acceptable to certain Republicans who previously opposed a Senate Judiciary Committee-passed version. The last minute compromise ultimately stalled over procedures - whether to permit amendments on the Senate floor or invoke "cloture," a procedure that limits debate. The Senate now leaves for a two-week recess, and it remains to be seen whether immigration reform will be placed back on the Senate's agenda when lawmakers return on April 24th. Senate Judiciary Committee Chairman Arlen Specter (R-PA) reportedly stated that his committee would take the issue back up shortly after the Senate's return.
The stalled Senate bill proposes some of the most sweeping immigration legislation in decades. In general, the bill is designed to strengthen enforcement of U.S. borders as well as regulate the flow into the country of "guest workers" and determine the future - and legal status - of those already here illegally. But the bill also contains a myriad of other provisions, some good, others innocuous, and many others that are awful for immigrants.
If the Senate is able to reconsider the immigration issue and pass legislation, the House of Representatives and the Senate will "conference" the legislation. This means they will negotiate their differences, and if successful, both the Senate and the House will vote on a final, identical bill that presumably will be signed into law by the President. The House has already passed a much tougher, enforcement-only immigration bill already passed by the House of Representatives (See "Draconian Legislative Proposals and A Guest Worker Program," in January 2006 Immigration News & Analysis). The battle to amend these immigration bills lies ahead, either on the Senate floor or in conference committee. Those who are concerned about immigration law and policy must make their voices heard.
Meanwhile, the past few weeks have witnessed what one commentator has called the "backlash against the backlash." A large number of angered and activated immigrants, their business allies, religious leaders, and local governments have flooded Capitol Hill and rallied on numerous city streets. Even some city councils and county supervisors from Southern California to Massachusetts passed resolutions against some of the mean spirited provisions in these bills. The business community, including the National Association of Manufacturers and the American Chamber of Commerce, has weighed in too, flying groups of employers to meet with their representatives. Christians of every stripe, Muslims, and Jews have been very active too. Their message: America's immigrant work force needs to be legalized, not deported.
Immigration reform has always engendered strange bedfellows and alliances and produced the unpredictable. Somehow stalled legislation miraculously gains traction. Sometimes the results are inspiring. On other occasions, the ride and results are terrifying. Stay tuned, get more involved, and buckle your seat belt.
USCIS Creates Bi-Specialization Filing of I-129 and I-140 Petitions
U.S. Citizenship and Immigration Services ("USCIS") announced a new "bi-specialization" filing system for I-129s and I-140s that took effect April 1, 2006. Under the new filing procedures, all I-129 forms for H, L, E, and O temporary work visas must be filed at the Vermont Service Center ("VSC"), and all I-140 employment-based immigrant visa petitions must be filed at the Nebraska Service Center ("NSC"). Arguably, these changes are designed to create uniformity of adjudications, processing times, and align related workloads. In addition, the VSC is paired with the California Service Center ("CSC") and is forwarding I-129s for adjudication in California. NSC is paired with the Texas Service Center for I-140 adjudications. All forms accompanying these petitions (such as I-539 dependent extension applications, or concurrent I-485 adjustment of status applications, advance parole and work authorization documents ("EADs")) also are now filed at these same centralized locations. USCIS advises that receipts are being issued from the adjudicating service center, even if different from the service center where the case was initially filed, and applications and petitions filed at an incorrect location will not be rejected, presumably for an initial period, but instead are being forwarded as appropriate.
While "bi-specialization" of the service centers could ultimately result in uniform processing times and perhaps more efficiency, large procedural changes such as these often are accompanied by a period of problem solving and unanticipated glitches. Whether this will result in unforeseen delays in the processing of I-129 petitions and I-140s/I-485s at least during the transition, remains a big question. Moreover, it is still an open question how this will affect concurrent filing of I-485 adjustment of status applications, advance parole, and EADs.
H-1B Filings Began on April 1, 2006
As of April 1, 2006, employers may file H-1B petitions for new employment that will commence on October 1, 2006. Last year, the H-1B visa cap was reached in August of 2005. Sources at USCIS have indicated that the initial few days of fiscal year 2007 H-1Bs are being filed at the same pace as fiscal year 2006. New hires who will require a first time H-1B visa should file as soon as practicable. It is anticipated that the H-1B cap will be reached well in advance of the start of the new fiscal year on October 1, 2006. In a recent notice, USCIS reminds the public that petitioners are required to provide a detailed itinerary of the dates and places where work will be performed if those services will be provided in more than one location. The notice also stresses that in situations where an H-1B worker is changing to an employer other than the one for which the initial H-1B was approved, USCIS will require that the worker demonstrate that he or she actually performed meaningful work for the original petitioning employer.
New FAQs on PERM
The latest FAQ issued by the U.S. Department of Labor (FAQ Set 8) provides guidance on how to secure a duplicate original certified ETA 9089 or ETA 750. It appears that concurrent I-140/I-485 filings will no longer be possible when an original, certified ETA is unavailable. According to this guidance, the I-485 should not be filed until the I-140 has been approved, as USCIS must issue a Request for Additional Evidence on the I-140 asking the employer to sign the duplicate original secured by the USCIS. (DOL will not send the duplicate original to the petitioner and will only send it to USCIS.) While this policy may appear to be consistent with the DOL's efforts to detect fraud, it is also penalizes employers who, at no fault of their own, simply never received the original certified application because the DOL never sent it.
New Look for Immigration News & Analysis
We have re-formatted our newsletter so that it is more legible when e-mailed to our clients. We trust this April issue is a vast improvement. Thank you for your patience.