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| "Immigration Status" Volume 1 Number 1 |
4/1/2005 |
Welcome to Alice Yardum-Hunter’s Immigration Status. Immigration Status is a periodic newsletter that covers a few select, in-depth, timely business and family immigration law and procedural issues with each publication.
TABLE OF CONTENTS
1. “Did You Know?”
2. Business Immigration – Recent Developments - Temporary Specialty Occupations
3. Business Immigration – PERM rules for employees with permanent job offers
4. Family Immigration – Upcoming Procedure for Adjustment of Status filings
5. Family Immigration – Recent Developments for Children Over 21
6. Attorney Yardum-Hunter wins "Super Lawyer" award two years in a row
1. Did You Know? Included in each issue, we will provide a morsel, a tidbit of present immigration information, for your edification and enjoyment. This time:
Did you know that a February 2005 study entitled “The Contribution of Legal Immigration to the Social Security System” found that, over the next 75 years, new legal immigrants entering the U.S. will provide a net benefit of $611 billion in present value to America’s Social Security system, according to official Social Security Administration data? This is 100 times the current Department of Homeland Security annual budget of $6 billion dollars.
2. Business Immigration - Temporary Specialty Occupations (H-1B) – Beginning April 1, 2005, for people who hold Bachelor’s Degrees, petitions for specialty occupation workers will again be accepted for commencement of employment on October 1, 2005. There was a hiatus in acceptance of cases due to a shortage in the number of H-1s available. Only 65,000 bachelors degreed H-1s are permitted to be issued in any given fiscal year (starting annually on October 1). For planning purposes, it is advisable to file as early as possible in anticipation of a repeat of the shortage again next year. As a result of legislation on December 8, 2004, an additional 20,000 H-1s are available for U.S. Master degreed aliens. Congress passed legislation to ameliorate some of the problem that results when the demand for H-1s exceeds annual availability in a law called, the Consolidated Appropriations Act of 2005 by allowing U.S. Master Degreed aliens to be exempted from the 65,000 annual cap. Intended to begin March 9, 2005, the additional 20,000 aliens who hold Master’s or higher Degrees from U.S. universities were to be able to file under this new law. However, because apparently 20,000 H-1s were already issued to U.S. Master degreed aliens this year, those were deducted from the 65,000 total allocated, freeing up an additional 20,000 visas for all H-1 applicants, Master and Bachelor degreed alike. As a result of this unexpected happening, delay of implementation of the law has resulted. On top of this, on March 11, 2005, Citizenship and Immigration Services (CIS) came out with a whopping new 33-page form and instructions now located on its website . Certain electronic filers can continue to use the old version of the form until September 30, 2005. All other filers will be required to use the new form beginning on April 30, 2005. CIS has still not stated when these new applications can be filed, but the American Immigration Lawyers Association surmised that filing may begin on March 21, 2005 because on this date, certain additional information is required to be collected, which is included in the new form.
Also exempted from the numerical limitations are employees of institutions of higher learning and their related non-profits organizations and non-profit research and government research organizations. While the new annual increase for the H-1B category of Master’s degree holders is a great benefit, the Act also slipped in some significant costs for all H-1B applicants. There is no free lunch. The cost of the gift of higher H-1B allocation is higher filing fees for everyone. The filing fee varies depending on the size and type of employer plus whether the case is premium processed in 15 days. Suffice to say that the CIS is beginning to compete with attorney fees, as the filing fee can be potentially quite high. No one doubts the value of competent legal advice compared to administrative processing by government workers, but there’s no negotiation when it comes to government filing fees!
H-1B cases are those that involve positions that require a minimum of a bachelor’s degree to perform. The CIS determines this standard as a result of explanation in the petition by the employer. The job duties of the particular case, industry standards, where the position falls into the hierarchy of the employer and any past practices concerning others who may have held the position are relevant in determining whether a position requires a bachelor’s degree to perform.
In addition to the position requiring a bachelor’s degree, the intended foreign worker must also possess at least the relevant bachelor’s degree and/or progressive employment experience, which can substitute for the degree. When a degree is used as the basis of qualification, the degree need not be conferred from an American college or university. A reliable education evaluator can evaluate foreign education. When experience is used in lieu of education, college or university personnel who are authorized to grant college level credit, college level equivalency examination passage, registration or certification in a nationally recognized professional association, or evaluation by the CIS itself, can be used to evaluate the experience. While it is not advisable to simply leave this decision to the government, the CIS regulations provide guidance as to the standards that the CIS uses. There are formulas for the number of years experience required where the minimal bachelors or master’s (if required) degree is missing. Positions that require a doctorate do not permit experience in lieu of education. When experience is permissible in lieu of education, the CIS guidance also requires, in addition to a calculation of the number of years of experience to be used, recognition in the field, membership in an organization of his/her discipline, possession of a foreign license, published material or some achievement.
For positions that require license under state law, possession of a license can substitute for the degree. For those who do not hold a required license, H-1B status may be approved anyway so long as the person will work under the direct supervision of a licensed practitioner.
3. Business Immigration – PERM rules for employees with permanent job offers – On March 28, 2005 after a two and one half year long wait, rules finally go into affect and dramatically streamline the labor certification process for permanent residence acquired through permanent job offers. In order to obtain permanent residency (“green card”), an individual must either be a relative of a U.S. citizen or permanent resident, own a significant business (half a million or a million dollars), be an intra-company transfer, be in the national interest of the US, have extraordinary ability, or have a firm job offer in the U.S. Most aliens who secure permanent residence through their work do so with job offers than through any other means. When one has a firm job offer, a certified labor certification by the Department of Labor (DOL) is first required in order to petition the CIS for permanent residence. The labor certification demonstrates that: a valid job exists; that there are no qualified, able, willing and available U.S. workers to fill the position based on duties and requirements outlined in the application; and that the hiring of the foreign worker will not negatively affect the US labor market.
The revolutionary PERM process condenses to the goal of 45-60 days, existing six month to two-year process of the first step toward permanent residence. Recruitment requirements will no longer vary as they do, depending on where the case is filed. The regulations for the first time specify the types of advertising and other recruitment types and amounts used to attract U.S. workers. The form may now be electronically filed, and does not change most of the substance of existing labor certification behind the scenes work. But it makes the processing far more consistent and concrete. Not only shortening the processing time, recruitment of U.S. workers and case preparation can be completed in about 60 days rather than being conducted during the six months prior to filing under the old Reduction in Recruitment rule.
In general, the more extensive form consists of the details of the employer, the job offer, and minimum requirements for a qualified person to engage in the position (education, experience and any special required knowledge, skills, use of tools, etc.), the recruitment done, prevailing wage information (which is a minimal wage determined by a State Workforce Agency to be paid for a particular case), and information about the alien personally and his/her qualifications for the position offered.
Since the principle objective of the labor certification is to ensure that the alien will not displace any U.S. workers, the application requires the employer to conduct pre-filing recruitment for the position. No longer will the DOL, after much work and time, be able to say that the recruitment was insufficient, so long as the employer advertises, as rules require. The position will be advertised in two Sunday newspaper ads and a job order will be posted in your state’s employment services website. In addition to these two means, other recruitment is necessary, if the job is professional. Professional jobs will require an additional three types of recruitment such as job fair, on campus recruiting, employer website posting, ad with a trade or professional organization, job search website, employee referral program and local or ethnic newspaper.
Another great benefit of PERM allows some unskilled jobs, known as Schedule B, which were viewed as in adequate supply in the job market, to be the subject of labor certification. In the past, certain positions could not be certified absent a waiver. Now, all jobs in the U.S. are certifiable.
U.S. applicants for the position offered learn of the job through the various recruitment means. When apprised of an applicant for the job, the employer timely makes initial contact with him/her to establish that the position is open to U.S. workers. The contact may be by phone or if the employer is not able to make contact by phone, by certified mail, for further consideration when the person looks as though he qualifies, or may qualify. An employer cannot assume that a resume includes each and every qualification of a job applicant, and must inquire as to qualifications when the applicant may qualify. If a person is clearly unqualified on the basis of a resume, the employer may reject such person without attempt to interview because he is clearly not qualified. If a person may be qualified, the employer must interview or attempt to interview that person (telephonic interview is acceptable) and give a lawful, job-related reason why the person is not qualified, or prove that they made two attempts for contact. With the advent of Email, while not addressed by the Board of Labor Certification Appeals, this means of contact will likely be considered and found to be one of the two means. It might even substitute for certified mail, if a receipt of the email is submitted.
Even though the attestation type application form is the only thing submitted to the government, also prepared is a recruitment report that is retained with the employer for five years in the event of audit. This report contains evidence of the recruitment methods, applicant evaluation methods, and accounts for any persons who responded to the recruitment. It also includes documentation about the employer as well as evidence of any unusual requirements. DOL advises that approximately 20% of cases will be audited based on unknown triggers in the form and at random.
Ownership or control in the petitioning employer by the alien makes it difficult to prove that the position is open to a US worker. Small companies and employers to which the alien has a familial relationship have a more difficult time showing that the alien does not influence or control the business to the extent of the decision that the job remains his/hers, i.e., the likelihood of considering a qualified U.S. worker. This goes to the bona fide intention of the application. One of the new questions on the PERM form is whether the alien has an ownership interest or a familial relationship with the employer. This could be an audit trigger if responded to affirmatively. Therefore, if there is a choice, an alien should seek permanent employment with an entity in which s/he does not have influence over the position through familial relationship, ownership or control of the position. Specific documents, based on case law, to show no overriding ownership or control of the position by the alien is submitted in the event of an audit.
While there has been discussion of a filing fee for labor certifications, currently there is no filing fee payable to the government, nor will it be even under PERM.
There are 300,000 cases left over from the existing labor certification processes that could affect processing times of those cases. It is possible to re-file a new PERM case for an identical pending case. It is also possible to file a somewhat different, new application for the same person. Pending cases have been relegated to Backlog Reduction Centers, which, in anticipation of PERM were created to handle and bring up to speed, existing cases. With attention on PERM though, it is unclear that reduction will occur quickly on pending cases. It is currently anticipated that it will take 24 – 30 months for cases to clear through backlog reduction. Pending labor certification cases could actually take longer with PERM.
After labor certification approval, there are two more applications: the petition to CIS, and the acquisition of green card status by adjustment of status through the CIS or consular processing through the Department of State (DOS) abroad. The petition affirms the relationship between the employer and the employee: that the employer is capable of hiring the employee in a viable permanent fulltime position through financial viability to hire the alien and that the employee qualifies for the position by meeting or exceeding the requirements for the job on the labor certification. The adjustment of status in the U.S. or visa processing from abroad qualifies the alien as one who is admissible for immigration and consideration of a person’s health (communicable diseases make a person inadmissible), criminal record, likelihood to become a public charge, and such are examined.
There is a law referred to as section “245(i)” that created a bubble of labor certifications filed in April 2001 that are now beginning to oversubscribe immigrant visa availability. That means that as time goes on, over the next several years, as I predict, while a PERM labor certification part of a person’s case will go quickly, things will bog down in time at CIS. This is because there are a limited number of immigrant visas available annually. When supply is outstripped by demand, a person must wait until his/her “priority date” (filing date of the labor certification) to become available again. We have seen retrogression begin in some categories already, for unskilled workers worldwide, and skilled workers and bachelor degreed professionals from China, The Philippines, and India. Since all other employment categories are available now, there is a window to apply under PERM before categories become oversubscribed. Pending applications should be analyzed to determine whether re-filing under PERM, filing a new case, or simply allowing the old case to go forward, is advisable. If you are a good candidate under PERM, you could save years later in the process. How much time cannot be known as the problem with oversubscribed priority dates in the future is only just beginning. The problem with retrogression is that permanent residence cannot be approved until visa numbers become available. This can sometimes be a period of protracted years. Feel free to contact Ms. Yardum-Hunter for analysis of whether your labor certification strategy deserves a change.
In 25 years of experience, counsel has seen time and again, the government quickly adjudicate certain cases at the expense of others. Resources are re-directed, thus creating greater backlog for under-funded programs. It seems the government is constantly putting out fires, with the biggest blazes getting today’s firefighters. Today, PERM comes to the rescue of labor certification. Counsel is certain other fires occur before this one is entirely extinguished! Please bear in mind that overall immigration processing time is always subject to change, despite the quick required turn around on the PERM portion of the case.
4. Family Immigration – Upcoming Procedures for Adjustment of Status Filing - Beginning April 1, 2005 the CIS will complete the second-phase of its mail-in procedure for adjustment of status applications for family based, Diversity Lottery immigration, and other non-employment-based permanent resident (“green card”) immigration processing. Applicants who are resident in Alaska, California, Idaho, Iowa, Kansas, Maryland, Missouri, Montana, Nebraska, New Mexico, Oklahoma, Oregon, Texas and Washington will be coming on board. The mail-in program began on December 1, 2004, for cases in all other states than those in Phase two. As part of this procedure, Applications for Employment Authorization, as well as Advance Parole (travel permit) are submitted to a “Lock Box”. The address for mailing adjustment of status applications will be:
U.S. Citizenship and Immigration Services
P.O. Box 885807
Chicago, Illinois 60680-4120
OR (for private couriers):
U.S. Citizenship and Immigration Services
427 La Salle – 3rd Floor
Chicago, Illinois 60605-1098
The program was designed to process applications more efficiently, deposit fees and provide enhanced customer service. I’m not sure how filing cases more than a thousand miles away from nearly all applicants creates more efficiency and customer service, except maybe for consistent detection of enforcement issues. Another aspect that concerns me and other attorneys is the lack of accountability for files. We will not be issued any proof of receipt of the particular application upon filing, and the receipt of an alien registration number for all future case tracking will be left in the hands of the trusty U.S. Postal Service. Yes, the U.S. Postal Service is usually quite good, but it doesn’t hold a candle to in person case filing. Once I sent a post card from Amsterdam, The Netherlands to my parents. It took 23 years to get delivered! This extreme example hopefully is not experienced again by anyone else, ever, but we all have heard of situations where something really doesn’t turn up when it’s been mailed. Fortunately, upon deposit of a check for filing fees by the CIS, the alien registration number appears on the back of the check. So, we can trace an alien registration number that way if the receipt is not timely received. And so, we again find our way around bureaucracy.
5. Family Immigration – Recent developments for children over 21. Tragic were the days when, due to slow immigration processing, children who reached 21 years of age were no longer eligible for immigration benefits because they “aged out”. Thanks to The Child Status Protection Act (CSPA) enacted on August 6, 2002, Congress understood that certain children over 21 should still be entitled to immigration benefits that normally expire upon reaching this age. CSPA applies to children who turned 21 after August 6, 2002, with the exception of a few kinds of cases that were still pending on that date. The way CSPA works is that it locks the child’s age at a certain point in time, regardless of their actual chronological age today. To determine whether a child is protected under CSPA, you need to get out your calculator! Numbers needed to do the calculations include the age of the child at time of application, the date at which an application is filed, the date of application approval, the date when the grown child first became eligible for immigrant status, how long the visa petition was pending, and whether that person “sought to acquire” immigrant status within a year of becoming eligible for CSPA protection. There are also some variant trigger dates that only apply to selected cases, too complex to cover here. To tell you how to make the calculation isn’t possible in this newsletter because the calculations all depend on one of seven different possible types of petitions or applications filed (derivative minors of ayslees or refugees, children of US citizens, children of lawful permanent residents and derivatives of family based, employment based petitions, and diversity visa applications). I have to literally pull the rules out each time to keep things straight!
The plot thickens. So, let’s assume your now grown up child appears to qualify for CSPA based on the calculations. While there are no implementing regulations yet issued by CIS, agencies have interpreted the act through policy memoranda and court decision. On December 20, 2004 the Board of Immigration Appeals interpreted flexibly, the date on which the now over 21 year old child “sought to acquire” immigrant status. In addition to a child’s age being locked in under CSPA, the grown child has to seek to apply for immigrant status within one year of becoming eligible. So, it is possible for someone who could have benefited under CSPA’s age locking provisions to lose the benefit it they don’t apply quickly enough. A common understanding of seeking to apply, the one that the CIS used in the In Re Kim case, was the date the person applied for adjustment of status (the mechanism used to acquire permanent residence for those located inside the U.S. The mechanism used by those outside the U.S. is called consular processing). Bearing in mind the purpose of CSPA, which is to encourage family re-unification, the Board found that it is not necessary to use the limited date of filing the application for adjustment of status. Instead, it broadened the definition of “sought to apply” to include the date at which the applicant hired an attorney to begin preparing the filing, so long as the case was then filed in a reasonable period of time. Since the lawyer in this unpublished case was hired within a year of his client becoming eligible for adjustment of status, and the application was filed in a reasonable time thereafter, the Board overturned the government, and qualified the person for immigrant status under CSPA.
In another interpretation of CSPA on January 10, 2005, the Ninth Circuit Court of Appeals did away with the aging out affects of CSPA as they related to “V” visa applicants. The “V” visa classification allows beneficiary spouses and children of permanent residents who filed petitions more than three years earlier to enter the U.S. on this temporary status, or change to V status here in the U.S., and secure employment authorization even though the adjustment of status application or visa application is not yet filed or approved. The category came into existence because immigrant visa availability was backlogged (currently) 4½ years and longer (up to 13 years, depending on the country of birth). Since the waiting times are so long, Congress agreed that to wait more than three years was too long to get a family back together, so they created the temporary “V” visa category to allow temporary entry while the permanent case processed. It’s incredible that more divorces don’t occur as a result of such lengthy separations.
Under CSPA, there is no provision to protect “V” temporary visa children at all. Under the normal regulations that apply to temporary visa entrants, there was an “age out” restriction that limited the period of admission for a child under this category to expire one day before the child turned 21. In Akhtar v. Burzynski, 384 F.3d 1193 (9th Cir. 2004), the court invalidated this provision as being in conflict with Congressional intent and the CSPA statute. As a result, the regulation is now invalidated. The effect permits the holder of V visa status to extend this temporary status even if over 21. The CIS will be amending this regulation to reflect the law. With this change, the now over 21 year old can qualify as s/he normally might under the rules of CSPA as well as extend the temporary “V” status in the meantime..
6. Attorney Alice Yardum-Hunter was selected for inclusion in the inaugural and second anniversary issue of ""Southern California Super Lawyers, The Ultimate Guide to The Best Attorneys in Southern California""®, published jointly by Law & Politics and Los Angeles Magazine. Ms. Yardum-Hunter was selected by a blue-ribbon national panel of peers practicing in the field of immigration law after a preliminary survey of 65,000 lawyers in 2004 and 2005.
Disclaimer: This newsletter is not intended as legal advice or to create an attorney-client relationship. It provides general information and is not for making specific case analysis or recommendation. Improper use of the information is the reader’s responsibility.
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