IMMIGRATION UPDATE Fall 2005

Transcription

1 IMMIGRATION UPDATE Fall 2005 October 12, 2005 Leslie K. L. Thiele Whiteman Osterman & Hanna Albany, New York

2 HOT TOPICS FOR THE FALL Fall 2005 the most challenging environment in 25 years H-1B cap has been reached until October 2006 Cap reached Aug. 10, 2005 for FY 2006 visas: earliest yet Ten days after projections of good availability of visas Surprise: 20,000 new H-1Bs for US graduate school diplomas still available for 2005 and 2006 PERM is here and actually works, sometimes First 3 months: 100% denial rate Shake-down cruise not over yet, but the worst may be over Immigrant visa process has absolutely stalled out Backlog reduction efforts at USCIS = use of all available immigrant visas Have used all excess visas reallocated from prior years Backlogs may spread to ALL immigrant visa categories

3 OVERVIEW OF THE VISA PROCESS Nonimmigrant Visa 1-? yrs. Immigrant Visa LPR / Green Card 3-5 yrs. Citizenship B- 1/2 Visitor for Business/Pleasure E- 1/2 Treaty Trader/Investor E- 3 Specialty worker Austr. F - 1 Student - OPT H- 1B Specialty worker H- 2 Temporary Worker H- 3 Trainee J- 1 Exchange Visitor L- 1 Intracompany Transferee O- 1 Alien of Extraordinary Ability R- 1/2 Religious Worker TN Trade NAFTA FAMILY-BASED CATEGORIES IR Immediate relatives FB- 1 Unmarried sons/daughters of USCs FB- 2 Spouses/children of LPR FB- 3 Married sons/daughters of USCs FB- 4 Brothers/sisters of USC EMPLOYMENT-BASED CATEGORIES EB- 1 Outstanding researchers Aliens of extraordinary ability Multinational managers EB- 2 Advanced degrees/niw EB- 3 Professionals 2 yrs. experience Other workers EB- 4 Special immigrants/religious EB- 5 Investors 3 yrs. if by marriage to U.S. citizen 5 yrs. for everyone else

4 H-1B VISAS: PROFESSIONALS REQUIREMENTS APPLICATION STEPS TIMETABLE DURATION 1. Job must require BA/BS degree or equiv. as minimum entry-level requirement 2. Applicant must have degree equivalent to U.S. BA/BS, or equiv. experience 3. Employer must pay at least prevailing wage for the position in geographic area NO TEST OF U.S. LABOR MARKET REQUIRED: No advertising, no recruitment 1. Determine prevailing and actual wage for position 2. File Labor Condition Application (LCA) with U.S. Dept. of Labor 3. File visa petition with INS 4. Issuance of visa to alien - If in US, change status with visa petition - If overseas, apply at US consulate overseas for entry visa - Canadians apply at US border 2-5 months Premium processing: USCIS decision in 15 days May work as soon as filed if held H-1B visa before Granted for 3 yrs Renewable for 3 yrs. May extend while green card is pending COSTS $190 USCIS filing fee $500 Antifraud fee $ ACWIA fee (limited exemptions) - prevailing wage - credentials eval n - premium processing ($1,0000)

5 THE H-1B CAP PROBLEM The problem: H-1B visas capped at 65,000 per year Cap raised to 195,000 in past; back to original level of 65,000 visas in FY 2004 Singapore & Chile Free Trade Agreements: 6800 visas reserved until end of FY Effective pool: 58,200 visas until October 1 when unused FTA visas released Cap reached in FY 2004, FY 2005 FY 2004: cap reached on February 17, 2004 (4½ months into FY) FY 2005: cap reached on October 1, 2004 (1 st day of FY) FY 2006: cap reached August 10, 2005 (7 weeks before FY begin) No more H-1B visas until October 1, Appropriations Bill Amendments: 20,000 visas for alien graduates of US graduate schools avail. 5/5/2005 As of 9/19/05: 12,926 available for FY /439 available for FY 2006 Employer fees raised to $1500 plus antifraud fee of $500 (limited exceptions)

6 MANAGING THE H-1B CAP Dim outlook for FY 2007 Advance filings likely to cause early exhaustion again FY 2006 exhausted in August 2005 No clear Congressional consensus on action Strategies Use other nonimmigrant visas if possible (O-1, TN, F-1 OPT, L-1, E-3) Time expiration of EAD on F-1 OPT to new government fiscal year File as early as possible with a deferred start date Hire H-1Bs from Singapore and Chile Hire H-1B transfers who already have H visas for commercial employers Exceptions: numerical limitations do not apply to persons employed by Institutions of higher education or a related/affiliated nonprofit entities Nonprofit research organizations or governmental research organizations Persons hired from such employers with H visas SUBJECT TO CAP

7 F-1 STUDENTS: PRACTICAL TRAINING REQUIREMENTS APPLICATION STEPS TIMETABLE DURATION Curricular Practical Training (CPT) during school if work ties into curriculum Optional Practical Training (OPT) before or after graduation: 1. Student has completed 12 months full-time study at U.S. university 2. No restrictions on employer: no employer petition to INS 1. Designated School Official must endorse student paperwork 2. OPT: Student must apply for Employment Authorization Document (EAD) days in advance of working Student may start work when EAD is issued 3. CPT: Student may start work after endorsement CPT: no wait OPT: days for EAD CPT: no limit, but no OPT available if student has worked 12+ months on CPT OPT: up to 12 months total before and after graduation COSTS USCIS filing fee: $180 for EAD (new fee as of 10/26/2005)

8 TN VISAS : TRADE NAFTA REQUIREMENTS APPLICATION STEPS TIMETABLE DURATION Canadian or Mexican citizen Job on list of TN professions, e.g.: Teacher (high school & univ.) Mgmt. consultants Science/engineering Systems analysts Medical professionals Must have req d education or training: usually BA/BS and/or license. Exceptions include: Mgmt. consultants Technical assistants Systems analysts (2 yr. degree min.) Canadians Apply at U.S. border or airport port of entry: processed on the spot No visa petition or INS preprocessing required Mexicans Apply at U.S. consulate in Mexico; fast processing Old petition & PW requirements expired in week Avoid processing at high-traffic or holiday weekends 2-3 weeks Must make appt. at consulate Granted for one year Renewable without set limitation Mgmt. consultants may be limited to 2-3 years COSTS USCIS Filing Fees: $ 56 + $6 per I-94

9 E-3 VISAS: AUSTRALIAN PROFESSIONALS REQUIREMENTS APPLICATION STEPS TIMETABLE DURATION 1. Job must require BA/BS degree or equiv. as minimum entry-level requirement 2. Applicant must have degree equivalent to U.S. BA/BS, or equiv. experience 3. Employer must pay at least prevailing wage for the position in geographic area NO TEST OF U.S. LABOR MARKET REQUIRED 1. File Labor Condition Application (LCA) with U.S. Dept. of Labor BY MAIL 2. Application directly at US consulate in Australia w/ - MAILED LCA - evidence of diploma - employer letter confirming job duties 3. US consulate Toronto will also accept applications 2-4 weeks for application at consulate Granted for 3 yrs. NOTE: SPOUSE CAN GET EMPLOYMENT AUTHORIZATION COSTS - prevailing wage - credentials eval n

10 L-1 VISAS: INTRACOMPANY TRANSFERS REQUIREMENTS APPLICATION STEPS TIMETABLE DURATION 1. Must have worked overseas for one out of last 3 years 2. In managerial/executive or specialized knowledge capacity 3. Coming to U.S. parent, subsidiary or affiliate of overseas company 4. To work in managerial / executive (L-1A) or specialized knowledge capacity (L-1B). 1. Visa petition to INS proving - qualifying employment overseas - existence of US entity - qualifying corporate relationship 2. Issuance of visa to alien -If in US, change status with visa petition - If overseas, apply at US consulate overseas for entry visa 1-2 months for single petition 2-3 weeks for visa issuance under blanket petition Granted for 3 years, 1 yr. for new office Renewable for total of 5-7 years NOTE: SPOUSE CAN GET EMPLOYMENT AUTHORIZATION COSTS USCIS filing fees: $190 Other costs: $

11 J-1 VISAS: EXCHANGE VISITORS REQUIREMENTS APPLICATION STEPS TIMETABLE DURATION 1. Must be sponsored by organization with approved J-1 program 2. Must fall within sponsor s defined program: e.g. research scholars, trainees, professors, specialists, etc. 3. Some participants are subject to mandatory twoyear home residency requirement. Waiver of requirement can be difficult or impossible. 1. Approved J-1 sponsor organization issues IAP-66 to applicant 2. Issuance of J visa: - If in US, change status via USCIS - If overseas, apply for J-1 entry visa stamp at US consulate overseas 3. Applicant may start work when has I-94 with J-1 stamp in hand. 30 days for IAP-66 2 weeks - 3 mos. for consular processing OR 4-6 months for change of status Depends on category: 1 month to six years Research scholars - 3 years Trainees -18 months Specialists - 1 year COSTS IAP-66: none Visa application fees at consulate or $200 for change of status

12 EMPLOYMENT-BASED PROCESS EB-1, NIW cases start here LABOR CERTIFICATION Form ETA 750 / 9089 VISA PETITION Form I- 140 ADJUSTMENT OF STATUS Form I- 485 GC ISSUED Form I- 551 Reduction in Recruitment months PERM 4 months??? 5-24 mos. Concurrent filing w/ visa petition if visa number current 5-36 mos. CONSULAR PROCESSING Initiated when visa number current 5 12 mos.

13 PERM: ATTEMPTING A NEW MODEL Ancient History Old system of DOL-supervised recruitment: micro-management of recruitment process, separated from employer s reality, and terminal delays 1998: RIR system based on real world recruitment. Descended into 50+ conflicting systems, micromanagement & huge backlogs Transition: Backlog Reduction Centers All old RIR and Supervised cases transferred to BRCs in Philadelphia & Dallas Goal: all completed by September 2006 PERM: March 28, 2005 Technology-driven procedures: electronic filing, audit-based enforcement Target: approval of labor cert. within days from filing System neither ready nor robust on 3/28/2005: improving, but still frail ETA 9089: complex, long, challenging form 10% of cases are audited; audits ARE taking place

14 PERM: IMPLEMENTING THE NEW MODEL Procedures Define job and skills on DOL forms in compliance with DOL requirements Obtain DOL prevailing wage determination Advertise two Sundays in paper of general circulation Professional positions: 3 additional recruitment steps (job fairs, web ads, etc.) Interview and evaluate applicants; prepare recruitment report Submit ETA 9089 to DOL with recruitment results DOL reviews & approves allegedly within 60 days Audits in 10% of cases: already taking place Problems: 100% denial rate in first 3 months Strong disincentive against re-filing old RIR cases Still a work in progress : don t know ultimate outcome Advantages Recruitment standards clearly defined Interference of 50 state Depts. of Labor largely eliminated (PW only) Implementation delays, but still faster than old system

15 RETROGRESSION OF IMMIGRANT VISAS The basics Immigration to the US limited by statute, with complex interrelated formulas: Family-sponsored preferences: minimum of 226,000 visas in 2005 Employment-sponsored preferences: minimum of 140,000 visas in 2005 Each preference group limited by number plus spillover from other groups Each country limited to a maximum number of visas: 7% of EB & FB limit 25,620 in 2005 When demand exceeds supply When any preference group or country quotas are met, waiting lists build When waiting lists build, cases are processed in priority date order Priority date is based on the first official filing date of the applicant s paperwork, e.g., the filing date of the labor certification, the filing date of the I-130. Core Issue: Cannot file adjustment of status until priority date is current

16 RETROGRESSION CONT D Worldwide vs. country waiting lists A country which hits country ceiling taken out of the worldwide visa pool and given its own separate pool of visas Leads to longer waits in many categories. Current separate listings: China, India, Mexico, Philippines The Visa Bulletin: Gives the priority dates through which cases will be processed the next month Published early each month listing cutoff dates for the next month Visas are prorated across the year: may not move a month per month Retrogression When too many cases become eligible, priority dates may RETROGRESS, i.e., move backward, to keep from issuing too many visas in a fiscal year Have accelerated labor certification and I-140 processing, only to stall out in the final stages

17 WHY IS RETROGRESSION A PROBLEM? Core Issue: Cannot file adjustment of status until priority date is current Labor certification and I-140 can be filed without regard to priority date Cannot file adjustment of status nor consular process an immigrant visa unless a priority date is current. Deprives applicants of AOS-related benefits 2003: USCIS began to allow concurrent filing of I-140 AND AOS Allowed dependents to obtain EADs earlier in process AOS portability: may move to new employer in same job classification if AOS pending 180 days Eliminated need for H-1B visa renewals; visa stamp processing, etc. Minor children can age out, i.e., turn 21 & fall off parents applications

18 COPING WITH THE WAIT Long-term prospects miserable without legislative intervention Backlog reduction efforts at USCIS and DOL have increased the number of cases reaching final processing Visas available are declining: impact of legislative changes runout FY 2005: 249,000 (AC-21 & family spillover ) FY 2006: 156,000 (estimated: may be 6,000 lower) FY 2007: 148,000 Can renew H-1B visa in 3-year increments due to unavailability of AOS American Competitiveness in the 21st Century Act (AC-21): can extend H visa beyond 6-year limit in one and three-year increments Doesn t help holders of OTHER visas with time limits: L visas Implications for employers Locks applicants into employer and position for years Export control/licensing problems remain a long-term issue Foreign employees will push for early start on GC processing

19 Additional information on immigration issues, as well as updates on new developments, can be found on our web site at Go to Practice Groups and select Corporate and Professional Immigration. At the bottom of our practice description is a link to other information and articles. International Practice Group Leslie K. L. Thiele Scott T. Decker Whiteman Osterman & Hanna lthiele@woh.com sdecker@woh.com One Commerce Plaza Albany, New York Seth R. Leech Tel: (518) sleech@woh.com Fax: (518) The information in this presentation is intended as general background information on immigration law and visa categories. It is not to be considered as legal advice with regard to any current or future immigration application. Immigration law changes often and processing information becomes rapidly outdated. Please consult your immigration counsel before taking action on immigration matters.