Tuesday, May 24, 2005
Monday, May 23, 2005
This week we present another special issue covering major developments in immigration law. A few days ago, one of the most significant immigration bills in many years was introduced with strong bipartisan support. The Secure America and Orderly Immigration Act (SAOIA) is co-sponsored by power hitter Senators McCain (R-AZ), Graham (R-SC), Brownback (R-KS), Kennedy (D-MA) and Lieberman (D-CT). An identical bill has been introduced in the House also with bipartisan sponsorship. We are likely to see at least one or two competitor bills and the President has yet to signal whether he supports SAOIA, so this legislation has a long way to go. But the chances of serious immigration legislation happening this year are much better than in years past and the competitor bills are likely to overlap in many respects with SAOIA.
So what are some of the things SAOIA does? First, it provides substantial new tools to beef up and secure the borders of the US. The idea is that the country will finally secure the borders and create legal ways to ensure that those coming to the US can do so in a manner where we can verify that they do not pose a security threat. That means creating a genuine guest worker program - an H-5A visa - that is generous and meets the President's goal of matching up willing employers with willing workers and ensuring that Americans seeking employment are not overlooked. It also creates an H-5B visa that allows those out of legal status to get back into legal status. These workers will pay substantial fines for this privilege. The bill contains provisions that will allow H-5B workers to seek permanent residency and it is this issue that is likely to be an area of disagreement in the competing bills.
SAOIA also will substantially reduce family immigration backlogs by making more green cards available across the board and will also do the same on the employer side by doubling green card numbers, allowing borrowing of unused numbers from prior years and reallocating caps in the different categories to ensure that numbers are more efficiently distributed.
The bill also cracks down on "notarios" who are non-lawyers either holding themselves as lawyers able to assist immigrants with their legal work or those who claim to simply be assisting in filling out forms and not providing legal services. The bill makes it clear that filling out forms IS legal work. Violators may face private lawsuits and substantial fines under SAIOA.
We will track SAIOA as it moves throught Congress. In the mean time, in this special issue we include a detailed summary of the bill's provisions.
We also include a summary of the just released AC21 memorandum that has been in the works for nearly five years. A number of the "grey areas" surrounding adjustment portability, H-1B portability and seventh year H-1B extensions are finally cleared up in the new memorandum. The memorandum was surprisingly worker friendly and has much good news.
1. OpenersClick here to read these and other articles.
Monday, May 16, 2005
We return this week to our regular newsletter format after catching our breath from a week of major news developments. The appropriations bill containing REAL ID, new green card numbers for nurses, reforms to the H-2B visa category and a new E-3 visa for Australians has now passed both houses of Congress and is on the way to the President for signature. If you need information on any of these items as well as the H-1B regulations that take effect tomorrow, please review last week’s newsletter which is archived on our web site, www.visalaw.com.
But just as we thought we could rest on our laurels, another major development is taking center stage. Remember last year when we reported on President Bush’s major immigration policy speech. The first bill was introduced in Congress this week that would put into law what the President outlined in his address. The bill is 150 pages long and has a lot of important provisions in it. We’re in the process of summarizing all of the bill’s key provisions and will have a separate newsletter on the new law later this week.
In other news, there is a new proposed regulation from USCIS regarding O-1 and P-1 visas. The regulation seeks to require applicants to apply at least six months ahead of time and no more than a year ahead of time. Some of my colleagues are speculating that USCIS simply made a drafting error in requiring applicants to apply six months ahead of time because they can’t believe that a policy this misguided would have deliberately been issued. I’m of the opinion that USCIS simply did not realize just how impractical requiring O-1 and P-1 employers to apply so early would be. I represent many clients that file these kinds of cases and can say confidently that this provision would impose a major hardship on employers and workers with no appreciable benefit.
I am writing this article on an airplane on the way to two back to back events%
4. Border News
7. News Bytes
Read these and other articles here.
Friday, May 13, 2005
Wednesday, May 11, 2005
Friday, May 06, 2005
Here's the table of contents for a special edition of Siskind's Immgration Bulletin.
Wednesday, May 04, 2005
Tuesday, May 03, 2005
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) isamended-
(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.
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.