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June 2005 Newsletter
In my twenty years of immigration law practice, I have never witnessed a more active contradictory period in immigration law. Rationally, immigration unquestionably is vital to continued U.S. economic and business development, particularly within an increasingly globalized world. But parallel to this, we as a nation continue to struggle with grave concerns that our immigration system has become broken down, thereby leading to porous borders, a burgeoning illegal immigration population, an imperilment of our national security, and a distortion of our national identity. As a consequence of this tension, both the Legislative and the Executive Branches have become increasingly active in developing immigration law and policy initiatives, and the subject has become of greater concern even at the state, local, and individual levels. We are firmly committed at this firm not only to remaining effective advocates and resources on emerging immigration developments, but also to impacting the broader debate on appropriate immigration policy, particularly as affecting the business and healthcare communities. Through this series of Newsletters as well as other advocacy and outreach efforts, we try to analyze emerging matters of immigration importance in order to create a sense of shared commitment in pursuing immigration objectives for those whom we serve. It is in this vein that I am writing this Newsletter so as to orient our community of clients and friends to four (4) selected issues of importance to the lives of foreign nationals and the employers for whom they work. I. PERM PROGRAM AND LABOR CERTIFICATION APPLICATION PROCESSING The filing of a Labor Certification Application is the first required step in many employment-based cases for permanent residence. Through this process, an employer is required to conduct a good faith recruitment/advertising effort so as to establish to the Department of Labor that its employment of a foreign national will not harm the U.S. labor market either by taking a job away from a fully qualified U.S. applicant or by depressing the local wage rates of similarly employed workers. Effective March 28, 2005, the U.S. Department of Labor implemented its new PERM (standing for Program Electronic Review Management) Program, which represents a substantial reengineering of the Labor Certification Application process. Under PERM, an employer has the option to file Labor Certifications electronically to the Department of Labor, which will then process the submissions using computer-based models. The objective here is to process palpably approvable Labor Certification Applications in a short period of time (targeted processing time of 45-60 days) but to flag for audit problematic or nonconforming cases. In a sense, then, the PERM Program resembles the model utilized by the Internal Revenue Service (IRS) in which that federal agency quickly processes huge volumes of income tax returns while flagging selected returns for investigation and audit. As of this current date, the U.S. Department of Labor has just begun to issue final decisions of cases filed under its new PERM Program. But there have been a number of reported problems in this implementation phase of the PERM Program, including:
We have been actively collaborating with our employer clients in preparing and filing PERM applications. We have developed a detailed series of materials intended to guide our clients through the entire PERM process and, equally importantly, to ensure that our clients remain in legal compliance following the submission of a PERM application so as to be able to deal effectively with any subsequent investigations or audits. Here are some of our initial conclusions on how best to develop an application under PERM:
We certainly anticipate gaining greater insights into the PERM Program as time goes by. We are particularly concerned that this program will not be flexible enough to recognize an employer’s unique or special needs, but rather that the Department of Labor will unduly rely upon general, nonspecific labor market survey data so as to penalize employers seeking to fill positions in professional areas having an apparent oversupply of U.S. workers. Should this situation indeed prevail, we anticipate that technology professionals will face major challenges under the PERM Program, whereas physicians, allied healthcare workers, and academic researchers will face a relatively more benign environment, given growing evidence of substantial shortages in these professions within the U.S. labor market. As one final word, while PERM has garnered a great deal of attention, the fact remains that there are hundreds of thousands of pending Labor Certification Applications filed under the previous system. The Department of Labor has created two Backlog Reduction Centers to process Labor Certification Applications filed prior to the implementation of PERM. Again, we are dealing at present in a void of information on the actual operation of these Backlog Reduction Centers, which are still in the process of becoming fully operational. In fact, thousands of Labor Certification Applications have not even been logged into the processing schedules of these new Centers. What we do know about these new Centers are the following:
II. H-1B DEVELOPMENTS The H-1B Temporary Worker classification is the most widely utilized temporary, nonimmigrant visa classification covering the employment of foreign professionals. The annual H-1B numerical quota is 65,000, which is clearly insufficient to cover the needs of U.S. employers based on past experience. This quota allotment becomes available on October 1 (which is the first day of the federal fiscal year) although the application period for new petitions opens six months in advance (i.e., April 1). To date, U.S. Citizenship and Immigration Services (CIS) has not released any information regarding H-1B visa utilization against next year’s 65,000 numerical cap, so we cannot make any specific estimates as to when the H-1B visa numbers will be exhausted. We expect to get the first reports on H-1B drawdown toward the end of June. Last year, the H-1B quota cap was reached on October 1, and this certainly provides at least an initial orientation on expected H-1B visa number availability for this forthcoming fiscal year. In one slight respite from the pressures on the H-1B numbers, the Congress passed the H-1B Visa Reform Act of 2004, which made available an additional 20,000 new H-1B numbers for foreign nationals holding at least a Master’s Degree from a U.S. academic institution. Although these additional H-1B numbers were to have become available on March 8, 2005, CIS delayed its implementation of this new program with the result that this 20,000 number add-on program was not implemented until May 12, 2005. To its credit, CIS has created a streamlined rollover program that reorients qualifying H-1B Petitions filed after April 1 into this new advanced degree program. Nevertheless, utilization of this new advanced degree H-1B program has been substantially below expectations. As of May 20, 2005, CIS announced that it has received 6,393 H-1B Petitions, thereby leaving a rather substantial quantity of H-1B numbers available for use during the balance of this current fiscal year, which ends on September 30, 2005. This advanced degree H-1B program will remain in effect throughout Fiscal Year (FY) 2006. The availability of this program should relieve some pressures on the H-1B program, thereby engendering some guarded optimism that the H-1B visa numbers will remain available during the opening months of the next fiscal year. Nevertheless, we strongly believe that given the uncertainties of H-1B visa number availability, all employers should finalize as quickly as possible job offers for qualifying foreign nationals and thereafter promptly submit their H-1B Petitions. In parallel to this, one of our own primary challenges is to determine up front whether a new H-1B Petition should fall within the H-1B quota cap, or whether it qualifies for an exemption from the numerical quota (such as university or university-affiliated entities, certain physicians, etc.). III. AC 21 MEMO In October 2000, the Congress passed the American Competitiveness in the Twenty-First Century Act (AC 21), which contains a number of important business-related immigration provisions. The Act was passed in the throes of the dot.com boom and before the 9/11 tragedy and provides greater flexibility to U.S. business concerns and their foreign employees, particularly in light of substantial immigration backlog delays. It is an open, confident, and business-friendly immigration initiative. Regrettably, in the ensuing four years, Citizenship and Immigration Services (CIS) has not issued detailed implementing regulations, so many of the benefits of the AC 21 initiatives have been eroded through uncertainty and inaction. On May 12, 2005, CIS released a Memorandum interpreting a number of important AC 21 provisions. Ultimately, the CIS will issue superceding regulations, but until that occurs, this Memorandum provides the most comprehensive guidance to all stakeholders of employment-based immigration cases on various rights and responsibilities. In brief digested form, here are the major provisions appearing in this recent Memorandum: A. Adjustment Portability. Under this doctrine, a foreign national in an employment-based immigration case who has a pending adjustment of status application has a limited, qualified right to obtain permanent resident status even after moving to a new employer. Specifically, the Adjustment Portability doctrine states that once a foreign national’s adjustment application has been pending for at least 180 days, he/she can move (or port) to a different position that is in the “same or similar occupation” without losing entitlement to permanent residence. The underlying policy here is that given substantial processing delays in the adjustment of status process (oftentimes in the 2-3 year range), foreign nationals should not become functionally indentured to the sponsoring employer while awaiting the final approval of their “green card” applications. This Memorandum establishes the following principles:
a. A substantial overlap of job duties in the initially sponsoring employer and the job duties of the new job;
B. H-1B Seventh-Year Extension Issues. The normal maximum duration of H-1B status is six years. However, AC 21 liberalizes this provision by stating that a foreign national can receive extensions over and above this six-year limit provided that the initial filing for an employment-based case for permanent residence (i.e., a Labor Certification Application or an I-140 Immigrant Visa Petition) occurred prior to the commencement date of the sixth and final year of H-1B status. Among the clarifying provisions appearing in this Memorandum are the following:
D. H-1B Portability Rules. A foreign national previously granted H-1B status has the right to commence new employment upon the filing of a new H-1B Petition rather than having to await its approval. The underlying rationale here is that once a foreign national has been granted H-1B benefits, the likelihood of subsequent H-1B approvals is so great as to obviate the need to postpone the commencement of the new employment owing to CIS processing delays. The Memorandum clarifies the following points:
IV. LEGISLATIVE DEVELOPMENTS The Congress is currently considering a number of new legislative proposals to address the perceived immigration crisis in the United States, and several state legislatures are also to varying extents considering various immigration-related immigration proposals (most notably, in the areas of driver’s license issuance and the enforcement of federal immigration laws by local law enforcement agencies). A. Comprehensive Immigration Reform: McCain-Kennedy Proposal. Roughly a year ago, President Bush raised to the attention of the nation the imperative of Comprehensive Immigration Reform – that is, a wide-ranging re-evaluation of our basic immigration laws and policies in light of modern realities. This entire movement for Comprehensive Immigration Reform is not simply an issue of liberalized vs. restrictive immigration. Rather, the underlying impetus to this movement is to create a workable, rational immigration system that will 1) best serve U.S. business and economic needs by creating predicable access to qualifying foreign nationals; 2) alleviate substantial periods of separation among family members, which (rightly or wrongly) compels many foreign nationals to break the law so as to achieve family reunification; 3) create more humanitarian immigration provisions so as to protect foreign workers from exploitation; 4) relieve pressure on our border area; and 5) most importantly, rationalize our entire immigration system so that immigration enforcement can truly be targeted on instances involving widespread abuse or national security concerns, rather than continuing to be diffused among ill defined and often contradictory objectives. In short, Comprehensive Immigration Reform is a key prerequisite to effective immigration enforcement. Senator McCain (R-AZ) and Senator Kennedy (D-MA) have introduced the Secure America and Orderly Immigration Act, which is a wide-ranging proposal for comprehensive immigration reform. While it is much too early to predict its legislative outcome, this proposal undoubtedly will serve as a major catalyst in spurring some type of legislative fix to the current immigration situation. Among this Bill’s major provisions are the following:
B. Real ID Act. On May 11, 2005, President Bush signed into law the Real ID Act that purports to enhance national security and immigration enforcement concerns. The major provisions of the Real ID Act include the following:
C. Extension of Patriot Act II. On the horizon, the Congress will soon begin considering a reauthorization of the USA Patriot Act, which, in relevant part, provides for an expansion in the power of federal enforcement agencies – particularly the FBI – in cases allegedly involving national security or certain criminal behavior. Opponents of the Patriot Act claim that these expanded enforcement authorizations constitute an impermissible incursion into personal privacy and civil liberties; proponents of the Patriot Act’s extension maintain that these enforcement provisions are necessitated by modern day realities and the need to move quickly against alleged suspects to our national welfare. V. PERSONAL ITEMS OF INTEREST Effective July 31, 2005, my partner and colleague over these past 20 years, Jerry Ingber, will enter into retirement. Jerry has been a major figure on the local and national immigration scene, and he has created a strong legacy as an immigration counselor and advocate whose services have benefited literally thousands of foreign nationals. He will continue to actively contribute to a broad range of philanthropic, social, and cultural initiatives in the Twin Cities, and together with his wife, Judith, to travel extensively and to savor years of personal growth and contentment. In anticipation of Jerry’s retirement, we have been actively working to ensure a smooth and seamless transition. The firm will continue to practice as Ingber & Aronson, focusing exclusively on immigration and nationality law with a particular focus on employment-based immigration. In many instances, our Senior Associate Attorney, Dinesh Shenoy (already known to many of Jerry’s long-time clients) will assume greater and more visible responsibility, and I will also become progressively more involved in ensuring that Jerry’s clients are well-served in the wake of his departure. Given the strong and continued demand for our services, we are now in the process of enlarging our office space and we have recruited a number of new professionals to serve our clients. Please check out our Website for not only digests and analysis of various immigration developments, but also for biographical sketches of our superb staff. We will be refurbishing and expanding our offices during the month of July, and certainly invite our clients and friends to stop by our offices should your travels take you to the Twin Cities. As to some personal developments, I recently returned from an intense three-day trip to Washington, D.C. The first two days involved a series of meetings on behalf of the Hebrew Immigrant Aid Society (HIAS), an international immigrant and refugee rights organization of the Jewish community in which I serve as its Vice Chairman and Chair of its Public Policy Committee. We met with a broad range of immigration policy makers, including Michael Chertoff, Secretary of the Department of Homeland Security, and Eduardo Aguirre, Director of Citizenship and Immigration Services, as well as officials from the Department of State, the Department of Health and Human Services, the UN High Commission for Human Rights, the President’s immigration policy advisor, the National Security Council, and other key government administration officials. Our message calling for comprehensive immigration reform, increased refugee protection, and enlarged immigrant rights was clear and consistent. In conjunction with a broad coalition of other faith-based organizations and human rights groups, HIAS has and will continue to serve as a respected advocate for immigration and refugee reform, and I am very proud to contribute in some small way to the legacy of this remarkable organization. On the final day of my trip, selected immigration attorneys and I met with the General Counsel of Citizenship and Immigration Services (CIS), specifically in order to review legal policy and procedure affecting foreign physicians. Particularly given the growing body of evidence identifying a major shortage of physicians in the United States, there is an increased sense of urgency in ensuring that our immigration laws for physicians fully implement statutory directives and adequately account for modern day realities. We had a good, productive, and highly respectful meeting that hopefully will result in some meaningful initiatives during this forthcoming period of time. On another note, two of my new articles are currently in press. The first article will be published in my professional association’s Annual Proceedings, and it presents the most extensive discussion to date on the Conrad State 30 Waiver Program. The second article is a broad review of immigration law and policy pertaining to physicians that will appear in the annual publication of the American Medical Association (AMA) entitled “State Medical Licensure Requirements and Statistics”. Please contact us should you desire reprints of these articles. I have also again been named as the Chair of my professional association’s Physician Task Force and will appear as a presenter on physician immigration issues at this year’s Annual Conference. I have been an invited presenter on physician immigration issues or closely related topics at roughly the past 17 Annual Conferences, and each time I feel that I learn as much as give from these appearances. In short, it has been an invigorating period of time on multiple levels. We continue to be highly gratified with the relationships formed with our community of clients, employers, and friends, and we are highly and justifiably optimistic on the future. As always, we would welcome your thoughts and comments on this Newsletter. Cordially, ROBERT D. ARONSON
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Aronson & Associates, P.A. |