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.
Immigration Law and Policy 2006 - Be Prepared
Immigration law and policy are moving toward Washington's center stage. While familiar, this year's major immigration issues will be more pronounced and consequential than in the past, both for foreign nationals and those who employ them. What's in the floodlights? The paucity of employment-based nonimmigrant and immigrant visas, delays throughout the immigration system, the potential elimination of Temporary Protected Status for Central Americans, President Bush's long awaited guest worker program, and draconian legislation and enforcements efforts aimed at undocumented workers and their employers. These are the significant issues, and they all have far-reaching financial and human costs. Moreover, how they are addressed will speak oceans about the present and future state of American society. Therefore, it is essential that all concerned be informed and involved in advancing pro-immigrant, pro-business immigration laws and policies. At the same time, employers and foreign nationals must plan extensively and be very proactive in order to meet institutional and individual immigration needs.
H-1B Specialty Worker Visas - April 1st is Key Date
Will Congress keep America competitive by making more H-1B specialty worker visas available for the next fiscal year, which starts on October 1, 2006? Remarkably, there were approximately 115,000 more H-1B visas available to employers five years ago than there are today. Nevertheless, legislative efforts to increase the H-1B quota last year were unsuccessful after the law that temporarily increased available H-1B numbers sunset. While renewed Congressional efforts are inevitable again this year given the current demand by business, it is best to assume additional visas will remain unavailable. (Please see our analysis and advisories in the October 2004, May 2005, and December 2005 issues of Immigration News and Analysis for more information on H-1B availability and the H-1B Specialty Worker Requirements and Procedures document on our website.)
Thus, employers must now begin to identify those new hires who will require a first time H-1B visa so a petition may be filed as soon as practicable. Significantly, H-1B petitions may be filed six months in advance of an employee's start date. Consequently, as of April 1, 2006, petitions may be filed for new H-1B employment. Equally important, it is expected that again this year all H-1B visa numbers - with the exception of H-1B visas for Chileans and Singaporeans, and for foreign nationals with a Master's Degree or better from a U.S. university or college - will be taken well before the beginning of the new fiscal year and much sooner than August, the date by which the quota was reached in 2005.
In summary, file new H-1B petitions as soon as possible after April 1st, and tell your representatives in Congress to pass legislation increasing H-1B numbers immediately and substantially.
The Employment-based Immigrant Crisis
Sixteen years ago in 1990 Congress revamped the entire employment-based immigrant visa system. Most significantly, it substantially increased the number of employment-based immigrant visas available each year. Concerned, in part, that highly skilled and educated foreign nationals were emigrating to Canada and Europe due to long waits and immigrant visa unavailability in the United States, Congress sought to attract this new wave of the best and the brightest. At the time, it took approximately two years to obtain an employment-based immigrant visa.
Contrast those waiting periods with today's reality. The dearth of employment-based immigrant visas today is far more pronounced. Indeed, absent legislative relief, highly-skilled and educated foreign nationals from around the world, especially from India and China, must wait at least four and perhaps six or even ten years to complete the processing of their "green card" application. As with H-1B visas, this issue adversely impacts the country's economy, as well as countless foreign nationals and their employers. And, this serious problem is expected to get worse in 2006.
Ironically, now that the Department of Labor's (DOL) fast track PERM labor certification program is up and running with relative efficiency, more foreign nationals are in queue to receive employment-based immigrant visas. Likewise, processing improvements at the DOL's Backlog Elimination Centers - where more than 200,000 labor certification applications remain pending - also will increase the demand for green cards.
Common sense dictates that it is detrimental to the U.S. economy as well as to employers and foreign national employees for it to take five or ten years to accord the world's most valued and needed workers the right to live permanently in the United States. This is an important, ever looming aspect of immigration law and policy that demands legislative action now.
Processing Delays
There were marked improvements last year in addressing processing delays in parts of the immigration system. It is hoped and anticipated that improvements will continue this year. Department of Homeland Security Secretary Michael Chertoff and Secretary of State Condoleezza Rice recently announced a joint initiative to facilitate faster and more consumer-friendly visa issuance, especially to foreign students and tourists. Their initiative is in response to the significant drop in the issuance of student visas and tourist visas for visits post-September 11th. Coupled with progress at the Department of Labor in its new PERM program and at its Backlog Elimination Centers, successful efforts to reduce waiting time for appointments at U.S. consulates are expected to continue this year. This is the good news in a rather dismal report.
Temporary Protected Status for Central Americans
It is not a secret. Despite the huffing and puffing about "too many aliens" on talk radio, television shows, and in the House of Representatives, its common knowledge that there's an acute labor market shortage for countless jobs performed by "aliens", legal and "illegal." Many of these jobs are filled by Salvadorans, Nicaraguans, and Hondurans. And, many Central Americans are working in the United States legally, at least for the time being, in what is known as Temporary Protected Status (TPS). This special immigration status allows some 300,000 otherwise undocumented Central American migrants to remain in this country and to work. TPS, which bars the deportation of out of status migrants from these countries, has been in place since 1998 for Nicaraguans and Hondurans after Hurricane Mitch struck, and since 2001 for Salvadorans since earthquakes killed more than 1,000 people. TPS has been renewed in 18-month increments ever since. The law requires that the President make a formal announcement on TPS extensions 60 days before its expiration – that means July for Nicaragua and Honduras, and September for El Salvador. Reports are now circulating that the decision to eliminate or extend TPS for Central Americans could come before spring.
Make no mistake about it. The elimination of TPS for Central Americans would be cataclysmic for affected families here and in Central America, and for thousands of their U.S. employers. For example, it is estimated that Salvadorans in the U.S. send approximately $2.5 billion annually back home in remittances. Hundreds of thousands of hardworking, settled Central Americans, many of whom are the parents of U.S. citizens and themselves completed integrated into our society, will face deportation if TPS is terminated. If this happens, not only would certain sectors of our economy potentially come to a screeching halt, but the already clogged immigration court system would mimic the employment-based green card system: it potentially would take years for the deportation process to be completed just like it takes many years to secure a green card. In the meantime, thousands of foreigners would lose their employment authorization. Hotels, restaurants, construction, maintenance, and other service sector employers would face a Hobson choice: fire often irreplaceable workers or risk fines and potential criminal prosecution for employing unauthorized workers.
TPS for Central Americans - whether to extend or eliminate - is squarely on the front burner - and we will be following this issue closely.
Draconian Legislative Proposals and A Guest Worker Program
The President's long-standing efforts to convince Congress to implement a guest worker program, and efforts by anti-immigrant forces in the Republican-controlled House of Representatives to enact draconian legislation aimed at employers, legal immigrants, and undocumented workers, go hand-in-hand. Stated differently, it is unlikely there will be a guest worker program without significant concessions to the anti-immigration, "enforcement-only" sector of the Republican Party.
As seen during the waning days of 2005, the border security and enforcement provisions in any new immigration law are likely to be extreme. Just before Congress adjourned for the holidays, the House of Representatives passed a hateful and draconian enforcement proposal that would reverse long-standing court decisions and established principles, stripping many foreign nationals of their rights and subjecting them to deportation. Instead of an immigration "agreement," the proposal that passed the House applies penalties retroactively, expands the employer sanctions provisions and potentially increases fines levied on employers who are found in violation of these laws, and criminalizes certain immigration offenses that are now civil in nature. Singling out the worst from so much that is awful is difficult; top candidates, however, are provisions that make nonimmigrants - including Hs, Ls, and Es - subject to arrest, detention, and removal with a no right to a hearing before an immigration judge, and another that makes it much harder for permanent residents to naturalize. Although the bill was not enacted into law, it did pass the House, and its provisions have limited support in the Senate.
At the same time, the Department of Homeland Security has greatly increased the number of agents dedicated to apprehending and deporting out of status individuals, targeting those already ordered deported and those with criminal records.
Where TPS for Central Americans fits into the "guest worker-tougher laws" debate remains to be seen. After all, some argue that Central Americans can't last forever, that those on TPS should lose that status and become guest workers instead and "earn" their way to permanent resident status like everyone else. Others argue why renew TPS for El Salvador while denying it to Colombia where approximately 3,000 die annually from a never-ending civil war? And, what about TPS for Pakistan, where an earthquake killed 80,000 just last year?
Of course, the biggest beneficiaries of any guest worker program will be undocumented Mexicans and Mexico, itself. As such, this continues to be a major bilateral issue between our two countries. Historically, however, legislative changes that have benefited immigrants have gone hand-in-hand with "get tough" legislative action against immigration law violators. The same formula is likely to continue as Congress and the Administration grapple with these issues.
The immigration law debate will continue in 2006, both within Congress and the Administration. Legislatively, it is hoped that bi-partisan proposals will emerge that include border security and enforcement but balanced against meaningful and comprehensive reform measures. Those measures must provide real solutions that are workable in today’s economy.
What's New at Maggio & Kattar
2005 was a great year at Maggio & Kattar, and we are off to a promising 2006! In addition to a sizeable, healthy growth rate for the last two years, we are expanding our office space, adding new professional staff, reorganizing our legal teams, and implementing state of the art technologies and procedures all designed to better serve our clients. We expect all of these changes to bear fruit in our second quarter.
The substantial growth that we saw in 2005 in particular enabled us to expand our capacity to successfully represent clients across the nation and around the world on both complex and routine immigration matters while maintaining the highest levels of client satisfaction. To this end, three new Senior Attorneys have joined the firm as shareholders. Most recently, Amy Novick, who served for 19 years as the Educational Director at the American Immigration Lawyers Association (AILA), brings to the firm her broad knowledge of immigration law and policy as well as her experience in immigration law education, organizational management, and strategic planning. Amy will assist the firm with management and operations to ensure that our expansion is well-integrated into our established procedures. As announced in our September 2005 and July 2005 newsletters, John Nahajzer, former Assistant General Counsel at MicroStrategy, joined Maggio & Kattar in September of 2005 and specializes in business immigration issues. John has extensive expertise in worldwide immigration and employment matters, having represented Fortune 500 companies as well as smaller enterprises. Cora Tekach, another exceptionally talented and experienced business immigration lawyer, came to the firm in July of 2005. Cora has extensive business immigration as well as deportation defense experience. Immediately before joining Maggio & Kattar, Cora gained invaluable experience in government relations having served as Associate Director in the Information and Liaison Department at the American Immigration Lawyers Association.
In addition to new attorneys, we also are in the process of reorganizing and better rationalizing our practice groups. Our goal is to ensure that each of our legal teams has the breadth and depth to effectively represent each and every client. We also want to ensure that each team has appropriate back up and support.
Additionally, we recently installed and have started to implement a new and vastly improved case management system. This exciting new system will facilitate more efficient and seamless case processing, as well as improved turnaround time on document preparation. Equally important for our clients, this new system will greatly improve our online case status reports for both employers and foreign nationals. This means clients can monitor their case 24/7 as it proceeds through the immigration pipeline. We expect this state of the art system to support other technological advances and embellishments as they become commonplace in the workplace.
Finally, on March 1, 2006, we will acquire additional office space at our current location. Our new space will go a long way to support our new staff, our new legal teams as well as anticipated growth in the coming years. We are excited about these new developments at Maggio & Kattar and our ability to provide top-notch support to our growing team of immigration professionals and to the clients whom they serve.