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.
H-1B Cap Reached for Fiscal Year 2007
Breaking News
The U.S. Citizenship and Immigration Service (CIS) announced on June 1, 2006 that the H-1B cap for fiscal year 2007 has been reached, which means that, absent legislative action, and with few exceptions, new H-1B visas will be unavailable until October 1, 2007. As in prior years, CIS announced that the cap had been met well after the fact and despite recent CIS indications that such numbers would likely remain available until at least early June.
In its notice, CIS advises that May 26, 2006 is the "final receipt date" for new H-1B petitions for fiscal year 2007. Any petitions filed after May 26, 2006 will be rejected and returned. Also, H-1B petitions received on the "final receipt date" – May 26, 2006 – will be subject to a computer-generated random selection process (effectively a lottery) to enable CIS to apply the remaining numbers of available H-1Bs to petitions received on that day. Those H-1B petitions not selected will be rejected and returned.
Who is Not Impacted by this News
It is important to be clear as to who is not impacted by this news. First, new H-1B petitions filed before May 26, 2006 have been included into the FY2007 H- 1B count and will not be rejected. Second, foreign nationals who currently hold H-1B status, or previously held H-1B status and have not left the U.S. for more than one year since last holding said status, are not affected by the cap. Third, extensions and amendments of H-1B status are not subject to the H-1B cap and are not affected. Fourth, H-1B petitions filed by institutions of higher education or related or affiliated non-profit entities, nonprofit research organizations, and governmental research organizations are, likewise, unaffected. Fifth, new H-1B visas continue to be available for nationals of Chile and Singapore under the H-1B1 program.
Lastly, new H-1B visa numbers continue to be available for foreign nationals who hold advanced degrees from U.S. institutions. While additional numbers under this "advanced degree exception" are expected to continue to be available for a few more weeks, it is too early to predict an estimated time frame when these numbers will be exhausted. Therefore, it is essential that all eligible cases be identified and filed as soon as possible.
We encourage you to consult with us if you believe you may be affected by this news so we may advise you regarding potential alternative visa options. Some possible alternatives include the H-1B1 visa category for citizens of Chile and Singapore , the E-3 visa for Australians, TN status for Mexicans and Canadians, O-1 visa status for aliens of extraordinary ability, and L-1 visas for intracompany transferees.
Will There Be Comprehensive Immigration Legislation?
The prospect of comprehensive immigration law reform, and arguments for and against more legal immigrants and tougher immigration enforcement, dominate the news and Washington's political agenda. What has happened so far? What must happen next for proposed legislation to become law? Is immigration reform likely? Will the current inadequate system remain unchanged for now?
Very significantly and somewhat surprisingly, on May 25th, the U.S. Senate passed by a vote of 62-36 a comprehensive immigration bill that would strengthen border security, establish a guest worker program, and provide the means for some eight million undocumented immigrants to be put on a path to permanent residence. Although far from ideal, the Senate bill fundamentally shifts the nature of the immigration debate towards a comprehensive approach to immigration reform that reflects America's time honored principles of uniting families, regularizing the status of those living in the shadows, and securing the integrity of our borders. In sharp contrast, the bill passed by the House of Representatives in December of 2005 addresses enforcement and border security only, and it does so in a draconian way. (See January 2006 Immigration News & Analysis.) The Senate and the House now must work out their differences in order for there to be a new law. Whether that is possible, given the extreme differences ideologically and legislatively, is the most frequently asked question by those who are closely monitoring this issue.
The bill passed by the Senate includes the positive reforms as discussed in our May 2006 newsletter (See May 2006 Immigration News & Analysis):
- a new temporary worker program;
- a legalization program for undocumented immigrants;
- the "DREAM Act" to put undocumented students on a path to citizenship and to continue on to college;
- significant increases in family-based immigrant visas with a projection that the backlog for family unification would be cleared in six years; and
- significant increases in employment-based immigrant visas (more than double).
The bill also raises the H-1B cap from 65,000 to 115,000. But, the bill also retains a number of due process-related concerns:
- the potential that relatively minor crimes such as DUIs would lead to near automatic deportation;
- indefinite detention of certain immigrants;
- new criminal and immigration penalties for passport and other document-related offenses;
- mandatory detention and expedited removal of nearly all undocumented immigrants caught at or between ports of entry;
- reduction in access to justice for many immigrants;
- new penalties for failure to file a change of address;
- other mandatory waiver of rights for certain undocumented immigrants;
- ineligibility for legalization of an estimated 2-3 million undocumented immigrants because of the bill's cut-off date or because certain provisions in the law will make it too risky for them to come forward.
Moreover, the bill calls for 370 miles of triple-layered fencing and 500 miles of other barriers along the southwest border. It also retains a mandatory electronic employment verification system to check the eligibility of each new hire. Finally, the bill declares English the country's "common and unifying" language, a gesture that insulted many but was accepted as part of the compromise.
While it is possible that the Senate-House conference committee will meet before the July 4th recess, where, it has been suggested by opponents to the Senate bill, comprehensive immigration reform would be completely rewritten, there has been little forward movement - at least not publicly - on comprehensive immigration reform since the Senate bill was passed. In any event, these two very divergent bills must be reconciled before immigration reform can become law. Not a short order. The challenge ahead for Congress is to reshape these proposals to reflect our nation's immigration traditions and needs. A formidable task, not only because of the varying political dynamics within each party but even more so because all of the House and a third of the Senate is facing elections this November.
What's our take? Comprehensive immigration reform probably will not happen until after the election, if at all in 2006. The disparity between the House and Senate bills is too fundamental, and even those few concepts that are similar have been drafted in such a way to make their meanings quite different. Moreover, many Republicans fear that compromising will anger their political base, while many Democrats do not want to give the President any legislation for which he could claim credit or victory. In addition, Democrats and most pollsters believe that the Democrats will make substantial gains in November; if so, a better immigration bill may be born. Lastly, but not insignificantly, the President lacks the political capital and muscle he needs to successfully push for compromise - the kind of wholesale compromise essential for today's proposals to become tomorrow's law.
At the same time, we believe legislation to increase H-1B and employment-based immigrant visa numbers is more likely to happen simply because of business's political prowess: legal immigration is far less contentious than guest workers and earned legalization for the undocumented.
H-1B Cap Reached Earlier Than Expected
Employers and foreign nationals were astonished when the 65,000 H-1B congressionally mandated cap for fiscal year 2007 was reached on May 26, 2006, thus making unavailable until October 2007 new H-1B visas for professional workers whose jobs require at least a bachelor's degree or its equivalent. (See Maggio & Kattar's Breaking News on this site.) In its June 1st press release, U.S. Citizenship and Immigration Services (CIS) advised that the "final receipt date" for H-1B petitions was May 26, 2006 for foreign nationals subject to the cap. Petitions received after May 26, 2006 would be rejected and returned; those received on May 26th would be subject to essentially a lottery for whatever H-1B visas that remained. H-1B visas, however, continue to be available to those with a master's degree or higher from a U.S. university, as well as for those who will work for a cap exempt employer. If an alternative work visa is not available to those barred from H-1B status by the cap, employment in H-1B status will not be available to them until October 1, 2007!
Those who had been closely tracking the usage of H-1B visas already had predicted that visa availability would expire some time in June. In fact, on May 25th - the day before the "final receipt date" and effective cut off - CIS indicated that there were as many as 12,000 H-1B numbers still available. This meant thousands of employers, individuals, and their attorneys continued to prepare for seven days what were believed to be last minute submissions only to be told that the cap already had been met a week earlier. The whole process left employers, foreign nationals, and their lawyers perplexed. CIS quickly admitted that it failed to disclose that it had been behind in inputting data. Apparently, the CIS Vermont Service Center had been unable to handle the volume of cases it received since the inception of "bi-specialization" on April 1, 2006. (See April 2006 Immigration News & Analysis.)
Maggio & Kattar's Breaking News on this issue reported, but it warrants repeating, that new H-1B visa numbers are still available to foreign nationals who hold advanced degrees from U.S. institutions, under the "advanced degree exception". Moreover, H-1B petitions still may be filed by institutions of higher education or related or affiliated non-profit entities, nonprofit research organizations, and governmental research organizations, as they are cap exempt. And, new H-1B petitions can be filed for nationals of Chile and Singapore under the H-1B1 program. Further, foreign nationals who previously held H-1B status for less than six years and have not left the U.S. for more than one year since last holding said status are eligible for the remaining portion of the six years of H-1B status that they did not use.
If you believe you may be affected by this development, we invite you to contact us. Possible alternatives include H-1B1 visas for citizens of Chile and Singapore, E-3s for Australians, TN status for Mexicans and Canadians, O-1 visa status for aliens of extraordinary ability, L-1s for intracompany transferees, and J-1 visas for exchange visitor status.
"Premium Processing" to Be Extended to Certain Employment-Based (I-140) Immigrant Visa Petitions
U.S. Citizenship and Immigration Services ("CIS") recently announced it will, at some point in the future, process on an expedited or "premium processing" basis certain employment-based immigrant visa petitions and applications. Under premium processing, CIS guarantees that it will process those designated I-140 petitions within 15 calendar days for an additional $1,000 processing fee. This notice basically paves the way for expansion of premium processing by designating eligibility now and thereby satisfying the legal, administrative requirements under the Administrative Procedures Act for public notice and comment.
According to the notice, those petitions and applications now deemed eligible include:
- EB-1s (aliens of extraordinary ability, outstanding professors and researchers, multinational executives and managers);
- EB-2s (members of the professions with advanced degrees or exceptional ability not seeking a national interest waiver); and
- EB-3s (skilled workers, professionals, and unskilled workers).
EB-2 national interest waiver petitions, however, are specifically excluded from eligibility for premium processing.
The notice also designates premium processing for select applications to change or extend nonimmigrant status (Form I-539) and applications for employment authorization documents (Form I-765) for foreign nationals with pending employment-based adjustment of status applications.
Premium processing has been available for certain nonimmigrant visa petitions for many years now, including Es, Ls, H-1Bs, H-2Bs, H-3s, Os, Ps, Qs, Rs, and TNs. All of these petitions are filed on Form I-129. This notice does not change the rules or procedures for these petitions.
We will provide more details on which petitions and applications are affected once CIS begins to accept I-140s for premium processing.
Employment-Based Immigrant Visa Priority Dates Move Forward in June; Little Significant Movement in Family-Based Immigrant Visas
Backlogged employment-based immigrant visa categories saw some relief in June with the release of the month's new visa number priority dates. Employment-based priority dates moved forward in most categories, with significant forward movement for China and India in the EB-1 categories (one year for China and six months for India.) While this is welcome news, one should not make assumptions about trends towards greater relief from backlogs for green card applicants. And, the "other worker" category for the unskilled became unavailable in June and will remain so for the rest of the fiscal year (through September 30, 2006).
In the family-sponsored preference categories, generally there was little significant forward movement across the board and some retrogression: the F2A category (spouses and children of lawful permanent residents) retrogressed for all chargeability areas except Mexico by one year.
Department of State Proposes Revision to Exchange Visitor Program
On April 7, the Department of State ("DOS") issued proposed regulations that effectively would create a series of procedural roadblocks that would severely limit the ability of young professionals who have already graduated to come to the United States for training in J-1 status in their career fields. While the impetus behind these proposed changes is to crack down on fraudulent (perceived or real) use of the J-1 program, and perhaps to force certain employers to use the H-3 trainee program - thus increasing filing fees for the Department of Homeland Security - the end result is that many foreign students would be excluded from participation in a myriad of internships or training programs that are beneficial to U.S. companies and to our economy.
Specifically, the proposed rule would eliminate the distinction between J-1 "non-specialty" and "specialty" occupations and instead would create two new categories: (1) interns; and (2) trainees. An intern is defined in the proposed rule as a recent college graduate who comes to the U.S. to participate in a structured and guided period of work-based learning related to that his/her specific field. A trainee is defined as an individual who has at least three years of prior related work experience in his or her field who comes to the U.S. to participate in a structured and guided period of work-based learning related to that specific field. By establishing these new categories and eliminating the distinction between "non-specialty" and "specialty" occupations, DOS would create artificially prescribed eligibility criteria. And, these new eligibility criteria would adversely impact many companies that send trainees to the U.S. according to their business needs. The rule also would also limit from 18 to 12 months the duration of training permitted in the U.S. on J-1 status for interns. Trainees generally would still be able to secure 18-month stays but trainees in certain industries would also be limited to 12 months (e.g., those in the hotel industry).
The proposal also includes two additional impediments for use of the J-1 visa: (1) a stricter English foreign language requirement; and (2) an in-person interview requirement in the home country. Both of these requirements are difficult to implement and not necessary. The more rigorous English language requirement (TOEFL score of 550 or its equivalent) does not necessarily enhance the program nor the individual J-1's experience in the U.S. The in-person interview would be unwieldy for many companies and potentially prohibitively expensive.
As might be expected, the proposed regulations evoked tremendous uproar and generated hundreds of critical comments from U.S. companies and others who rely on the J visa program. It remains to be seen whether the DOS will withdraw or abandon these proposals or significantly amend the interim or final regulations based on these public comments. For now, we urge you to contact your member of Congress to share your concerns regarding the proposed training and intern regulations.