Alerts and Updates
Recent Developments in Immigration Law
July 11, 2005
EB-3 Visa Numbers Are Unavailable Until at Least October 1, 2005
On June 13, 2005, the U.S. Department of State (DOS) issued the July 2005 visa bulletin, indicating that visa numbers in the employment-based 3rd preference category (EB-3) are unavailable for all countries. It is expected that the visa numbers will remain unavailable for the rest of the fiscal year. As a result, it will not be possible to file an application for adjustment of status, or to apply for an immigrant visa, until further visa numbers are available. The EB-3 category includes professional workers and skilled workers.
Adjustment of status applications already pending with the U.S. Citizenship and Immigration Services (USCIS) will continue to remain pending until visa numbers become available.
Some relief is available to applicants in EB-3 Schedule A occupations, including nurses and physical therapists.
On May 11, 2005, President Bush signed into law the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, which included a provision that would "bank" unused employment-based immigrant visa numbers for fiscal years 2001 through 2004, to be used for Schedule A occupations. The July 2005 issue of the visa bulletin reflects that visa numbers remain available in this category.
It is expected that next month's visa bulletin will reflect a retrogression of visa numbers in the EB-2 category for applicants for China, India and the Philippines. The EB-2 category includes members of professions holding advanced degrees or persons of extraordinary ability.
Updated visa bulletins can be found at:
http://www.travel.state.gov/visa/frvi/bulletin/bulletin_1360.html
Labor Certification Update: PERM and Backlog Reduction Centers
The PERM labor certification program has been up and running since March 28, 2005, with mixed results. The Department of Labor (DOL) has received widespread reports of erroneous denials as a result of computer error and has reported that it hopes to fix those errors soon. When the computer glitches have been worked out, DOL plans to review those cases that were previously denied. Applications that were denied in error will be reentered into the system and will continue to be processed. For those applications properly denied, a notice will be issued confirming that the denial stands.
The Backlog Reduction Centers (BRC) report that thousands of cases still need to be entered into the computer system. If you are an employer and you need confirmation of the filing of an application for labor certification in order to extend your employee's H-1B nonimmigrant status for a 7th year, you can send an e-mail to the BRC and request a screen shot of the pending application. Send such requests to:
Philadelphia BRC: h1b7yr@phi.dflc.us
Dallas BRC: h1b7yr@dal.dflc.us
Update on H-1B Usage
USCIS officials recently announced that USCIS has received approximately 27,000 H-1B petitions that will count against the annual 65,000 cap for fiscal year 2006. In addition, USCIS has received approximately 8,000 H-1B petitions that will count against the new exemption cap of 20,000 for fiscal year 2005.
F-1 to H-1B: Update on the Last Action Rule
A letter recently released by USCIS from Efren Hernandez, Chief, Business and Trade Services Branch, Office of Adjudications, confirmed that F-1 students who travel and are readmitted to the U.S. in F-1 status when there is already an approved H-1B petition with a future start date are not required to depart the U.S. again to be readmitted in H-1B status. The change of status to H-1B with a future start date will take effect automatically on the effective date of the I-797 H-1B approval notice. According to Mr. Hernandez, the last action in this instance is the taking effect of the change of status.
In the example outlined in the letter, an F-1 student applied for a change of status from F-1 to H-1B in July 2004, and the change of status was approved in August 2004, with a start date of December 1, 2004. The F-1 student traveled abroad in September 2004 and was readmitted to the U.S. in F-1 status on September 15, 2004. Mr. Hernandez indicated that the F-1 student did not have to leave the U.S. before December 1, 2004, to activate the H-1B status and that the H-1B status would automatically take effect on that date.
Reminder: Visa Waiver Tourists Must Have Machine-Readable Passports
As outlined in our previous Immigration Alert, the Department of Homeland Security (DHS) and DOS announced that travelers to the U.S. from 27 countries eligible to enter under the Visa Waiver Program (VWP) must be in possession of machine-readable passports (MRP) after June 26, 2005. According to USCIS and DOS, substantial fines will be imposed on carriers found to be in violation. Individual applicants for admission will be denied entry and advised to return to their home country to secure a MRP or apply for a visa stamp.
Update on E-3 Visas for Australians - see our May 2005 Alert
DOS must publish a regulation implementing this new non-immigrant visa category for Australian nationals who have a job offer with a U.S. employer in a specialty occupation. In addition, DOL must publish a regulation or provide instructions advising the public how to file a Labor Condition Application for an E-3 application. Unfortunately, an E-3 application cannot be processed until both DOS and DOL have issued the implementing regulations. We will provide further Alerts as more information becomes available.
For Further Information
If you have question about this Alert or would like further information, please contact one of the immigration attorneys in our Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
