Dear Readers: 

This week the US Senate passed two amendments to the tsunami/Iraq spending bill that could have very important long term implications for the country.  

The first provision, sponsored by Senators Mikulski (D-MD) and Gregg (R-NH), will change the H-2B visa program along the lines of the previously introduced “Save Our Small and Seasonal Businesses Act of 2005.” That bill sought to address the problem of western ski resorts using up most of the H-2B visas in the first half of the fiscal year before east coast summer resorts and other employers had a chance to file applications. Under the provision passed in the Senate, half of the available H-2Bs would be reserved for the second half of the fiscal year.  

The second key change in the H-2B program will be the exemption from the H-2B cap of people who have been counted in the prior three fiscal years. Right now, employees count against the cap each year so the new provision will have the effect of expanding the number of workers employers can bring in under this popular visa program. Because the jobs covered under the H-2B program are short term or seasonal and employers need to show an inability to find American workers, there has been less controversy with the H-2B program than other work visa categories.  

The other immigration-related amendment to the spending bill is one that I have personally worked on for the last several months. It would amend the AC21 immigration law to allow unused employment-based green card numbers to be claimed now in order to reverse the visa retrogression that has caused multiyear delays for Filipino, Indian and Chinese nationals in the EB-3 green card category. The impact of the retrogression which started in January of this year has been disproportionately felt by nurses. Most of the foreign nurses being recruited to the US come from the Philippines and India. Unlike other professions, nurses lack access to a non-immigrant visa that would allow someone to work in the US while they wait on their case to come up in the queue.  

Under a last minute compromise, half of the reclaimed EB-3 visas will be available to nurses and physical therapists. The other half will be open to all other occupations. One previous versions of the bill would have made no distinctions between occupations while another would have only allowed nurses and physical therapists to claim the numbers.  

The draft language was sponsored by Senators Hutchison R-TX, Domenici (R-TX), and Schumer (D-NY) reads as follows: 

"Recapture of Visas 

Sec.6047. section 106(d)(2)(a) of the American competitiveness in the twenty-first century act of 2000 (PL106-313; 8 USC 1153 note) is amended- 

(1)in paragraph (1), by inserting before the period at the end of the second sentence "and any such visa that is made available due to the difference between the number of employment-based visas that were made available in fiscal year 2001,2002,2003 or 2004 and the number of such visas that were actually used in such fiscal year shall be made available only to employment-based immigrants and the dependants of such immigrants, and 50% of such visas shall be made available to those whose immigrant worker petitions were approved based on schedule A, as defined in section 656.5 of title 20, Code of Federal Regulations, as promulgated by the Secretary of Labor"; and  

(2) in paragraph(2)(A) by striking "and 2000" and inserting "through 2004"" 

The bill still faces a significant test in the House-Senate conference committee. The REAL ID Act is still a controversial item that could threaten the EB-3 fix. And while we received encouraging words from various key members of the House, the body as a whole is not nearly as pro-immigration as the Senate.  

So our effort will now turn to the House to try and shore up support with key members there. Stay tuned and thank you to the many people who have worked on this effort.  

One final development that is tied to the spending bill is worth noting. While Senator Craig (R-ID) failed to get the AgJobs bill included in the spending bill because he could not garner the special 60 vote requirement necessary to pass the bill, he did get 53 votes. This signals that there is enough support for that farm worker legalization bill to pass when the bill comes up for a vote in a standalone bill. Furthermore, the solid support for the Craig bill has apparently encouraged Senators Kennedy (D-MA) and McCain (R-AZ) to state that they intend introduce a major immigration reform bill next week. The bill is expected to be consistent with the immigration reform plan outlined by President Bush last year. Senator Cornyn (R-TX), the Senate’s Immigration Subcommittee chair also announced that he intends to begin holding hearings on this subject this year.

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Many of you are closely following developments relating to the issuance of the 20,000 bonus H-1Bs available for this fiscal year under legislation signed by President Bush in December. Congress mandated that the USCIS start issuing these visas in early March, but the agency has yet to begin accepting applications. There is little news to report this week except that AILA issued a notice to members stating that the regulation to issue the visas has been stalled at the Office of Management and Budget. We’ll continue to update readers as we learn what is happening on this issue. 

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Finally, as always, we remind readers that we're lawyers who make our living representing immigration clients and employers seeking to comply with immigration laws. We would love to discuss becoming your law firm. Just go to http://www.visalaw.com/intake.html to request an appointment or call us at 800-748-3819 or 901-682-6455. 

Regards, 

Greg Siskind