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October 2003 Newsletter By Robert D. Aronson
I am writing this update on new immigration-related developments at a particularly interesting period of time given the rapid pace of new initiatives and developments in the field. The new federal fiscal year commenced on October 1, 2003, at which time a number of new immigration-related programs went into effect, including the contraction of the H-1B visa numbers (see discussion below). While economic growth seems to be on the rebound, the pace of new job-creation has been quite sluggish, which would normally encourage restrictionist immigration legislation. Yet, particularly as we enter this election year, more and more attention is being paid to certain large ethnic voting blocks, particularly the Hispanic population, with the result that we are seeing some very positive proactive immigration-related initiatives aimed disproportionately at this particular segment of our population (such as the agricultural guest-worker provisions and a limited amnesty for a certain class of foreign students). It would be nearly impossible to survey fully the wide-range of immigration-related issues currently under discussion, but I would like through this piece to review briefly several issues of general interest to the readership of this newsletter. LIMITATIONS ON H-1B VISA NUMBERS As most readers of this newsletter know, the H-1B Temporary Worker Provisions provide a relatively time-efficient method and liberal period of employment/residence authorization to foreign professionals working in the United States. In order to gain approval of an H-1B request, an employer needs initially to file a Labor Condition Application so as to establish the sufficiency of the wages and working conditions being offered to the foreign professional, and thereafter to file an H-1B Petition to the U.S. Citizenship and Immigration Services (USCIS, legacy INS) establishing the professional nature of the position and the foreign national’s responsive professional qualifications. In order for the H-1B petition to be approved, there needs to be a visa number available under the H-1B quota. Effective October 1, 2003, the H-1B visa cap was reduced substantially from an annual allotment of 195,000 numbers to 65,000. Even this figure does not represent the full picture of the situation since there are roughly 22,000 pending H-1B Petitions filed in Fiscal Year (FY) 2003, and an additional 6,800 H-1B visa numbers are reserved for use in the recently signed Free Trade Agreements with Chile and Singapore. Therefore, in reality, there are only around 36,200 H-1B visa numbers available to new Petitions filed in FY 2004. Looking forward, no one can predict the future utilization of the H-1B numbers since that will depend upon the strength of the U.S. economy and employer decisions to hire foreign professionals. To the extent there is any consensus of opinion, it is anticipated that the H-1B visa numbers could very well become exhausted by this spring without active Congressional efforts to raise the H-1B quota.To the extent possible, we believe that it would be prudent for many first-time H-1B visa applicants and their employers to accelerate the time at which the H-1B Petition is filed so as to maximize the chances that an H-1B visa number will be available at the time the Petition comes up for adjudication. You should further be aware that there are several broad classes of H-1B beneficiaries who are entirely exempt from this cap so as not to require the availability of an H-1B visa number, including:
In a perhaps temporary and unintended development, effective October 1, the $1,000 employer training fee ceased to exist. This means that until or unless the Congress adopts legislation to restore this fee, employers no longer need to pay the additional $1,000 filing fee that over the years has been earmarked to retrain U.S. workers to face the challenges of a globalized world. We will very possibly see the Congress undertake various hearings to reexamine the H-1B Program if for no other reason than to reinstate the $1,000 worker training fee. Various sectors of the U.S. economy remain fully committed to an increase in the H-1B cap, although the continuing softness in the U.S. job market undoubtedly will impede any such reform efforts. More likely, though, there will be reform initiatives intended to enlarge the exemptions in the H-1B quota system. L-1 INTRACOMPANY TRANSFER REFORMS The L-1 Intracompany Transfer Provisions provide a very effective mechanism for both large and small U.S. multi-national corporations to transfer into the United States managerial and executive personnel, as well as foreign personnel possessing specialized knowledge. Due to a series of very well publicized investigatory articles, there has been quite a bit of negative attention directed toward the L-1 Program, particularly arising from its alleged abuse by foreign-based computer companies transferring technical personnel into the United States. At present, the Congress has taken the initial steps toward examining L-1 reform, and the popularity for a major overhaul to the L-1 classification seems to be growing. Among the L-1 related issues undoubtedly to be reviewed during the forthcoming period of time are the following: possible attestation and even recruitment requirements by L-1 petitioners; numerical limitations similar to the H-1B quota cap; substantial limitations on the stationing of L-1 foreign nationals at third-party work sites; and restrictions to the definition of “specialized knowledge”. At present, L-1 reform is clearly in the initial discussion phase, but definitely an issue worth watching owing to its importance to the U.S. corporate community. Furthermore, any curtailment of L-1 utilization most likely would lead to increased recourse to the H-1B Temporary Worker classification, which, as noted above, is already suffering from an impending oversubscription of its limited numerical allotment. REFORMS IN FAMILY-BASED FILING PROCEDURES Traditionally, the various CIS District Offices have exercised a great deal of responsibility in providing benefits to foreign nationals living within their jurisdiction. While over the years the authority of the District Offices has been substantially narrowed, the local Districts still maintained primary authority in the area of family-based immigration, which has the residual advantage of enabling foreign beneficiaries to rather quickly process for the interim benefits of Employment Authorization and Advanced Parole. The USCIS is now in a very rapid phase-in so as to remove all family-based filings from the local offices and instead to centralize matters in the National Benefits Center, located in Missouri. While the actual physical filing of many family-based cases will continue to be made at the local District Office, the physical applications will now be forwarded to the National Benefits Center, which has exclusive jurisdiction for processing the Employment Authorization Documents (EADs) and Advanced Paroles. Thereafter, adjustment applications will be returned to the local offices for final interviews. Very possibly, the centralization of this processing will benefit many individuals now residing in large urban centers, which, unfortunately, have developed major backlogs in their processing schedules of interim benefits. What is quite concerning is that as in the case of so many other federal initiatives intended to streamline the system, all too often we have seen an ultimate increase in processing times as well as gross inefficiencies in performance. Certainly, one major advantage to local district processing lies in the fact that it is possible to speak directly to local CIS representatives whereas the Service has instituted a highly depersonalized 800 number call-in system that makes it all but impossible to speak directly with adjudicating officers and adds a time-consuming and complex additional bureaucratic layer that frustrates efforts to rectify delayed or misadjudicated cases. VISA PROCESSING DEVELOPMENTS In the aftermath of the 9/11 tragedy, we have seen a substantial overhaul of nonimmigrant visa processing policies and procedures. Under the current system, nearly all foreign nationals need to appear for personal interviews for their nonimmigrant visas at U.S. Consulates abroad and to then undergo background security checks. These new arrangements have resulted in major new uncertainties as to if and when requested visas will be granted. Perhaps in large measure as a reflection of these new sensitivities to national security considerations, we have seen roughly a 35% drop in the issuance of nonimmigrant visas over the past two-year period of time. In one further development affecting nonimmigrant visa processing and issuance policies, the Department of State (DOS) and Department of Homeland Security (DHS) have concluded a Memorandum of Understanding (MOU) that became effective on September 30, 2003. Essentially, this Memorandum is intended to establish the respective spheres of responsibility exercised by these two federal agencies – one, the Department of State, which traditionally has conducted U.S. foreign policy and therefore has a bit more sensitivity to facilitating foreign travel to the United States; and the other, the Department of Homeland Security, which above all is charged with promoting U.S. security interests from potential foreign terrorists. It is obviously too early to fully predict the ultimate effect of this MOU on nonimmigrant visa-issuance performance. In a nutshell, the DHS has been granted authority to issue or approve visa guidance and policy, whereas DOS Consular Officers will continue to actually process visa applications. In short, it seems as though DHS and, by extension, security considerations in the future will play an even larger role in determining the terms and conditions under which foreign nationals can obtain temporary, nonimmigrant visas. In the long run, perhaps the clarification of the respective authorities of these two agencies will benefit nonimmigrant visa processing if for no other reason than to coordinate national security databases that are utilized to conduct the background security checks. We have, in fact, seen some improvements in obtaining security clearances for foreign nationals, including those from countries of the Middle East. Unquestionably, though, there is major room not only for improvement, but for eliminating mistakes, delays, and bogus name-check hits that have plagued the system since its inception. Again, only time will tell as to the efficacy of this new arrangement, but what is quite clear is that this sensitivity toward security is becoming more and more firmly engrafted into U.S. Consular practice. SOME PERSONAL/PROFESSIONAL ACTIVITY I continue to play an active role within my professional association, the American Immigration Lawyers Association (AILA), in advocating for liberalized policies and programs in immigration law. I was again designated to serve on my Association’s liaison committee with the U.S. Department of State, and have again been named as the authorized representative to resolve overdue J-1 Waiver applications. I also hold a Chair on my Association’s Foreign Physicians Task Force, which is charged with advocacy efforts for enhanced immigration policy for International Medical Graduates. Last month, I was asked to serve on the Nominating Committee of AILA, which is charged with vetting and recommending slates of candidates for leadership positions in the organization. In terms of outside activity for the physician community, I have been within the last month a featured speaker on physician-related immigration subjects at immigration conferences held in San Antonio, Texas and Boston, Massachusetts. My overview article on J-1 Waiver practice and theory entitled “Vertigo: The Dizzying Rules Governing Waivers for J-1 Physicians” has been republished in several professional publications. I am also participating in a select five-member group that has been asked to provide suggestions on reengineering the existing adjudication standards and practices on O-1 Petitions for “aliens of extraordinary ability”. Whereas this particular nonimmigrant visa classification should be a welcomed and proactive vehicle for attracting some of the best and most creative talents to this country, in its implementation the USCIS has taken a highly adversarial and restrictive attitude. I am very much looking forward to engaging in a productive dialogue with the USCIS in Washington along with representatives of academic medical centers who are interested in O-1 reform measures. As one final matter of possible interest, I serve as the Vice-Chair and the Head of the Public Policy Committee of the Hebrew Immigrant Aid Society (HIAS), which for over 120 years has been a leading voluntary agency in the areas of migration, resettlement, refugee rights, and immigration policy. In September, at the Board’s Annual Mission in Washington, D.C., I was gratified to have met in the White House compound with various ranking Administration officials dealing with immigration, including Eduardo Aguirre, the Director of the CIS, Jim Towey, the Director of the President’s Faith-Based Initiative, and Gene Dewey, the Assistant Secretary of State for the U.S. refugee program. In addition, we had a very stimulating lunch with Rep. Chris Cannon (R-UT) who is not only one of the most impassioned and knowledgeable legislators dealing on immigration, but is the chief House sponsor of a major Agricultural Guest Worker Provision that would provide benefits, normalcy, and dignity to many agricultural migrant workers. In all of these meetings, the message advocated by HIAS was firm and consistent – i.e., increased refugee admissions and appropriate funding support of the U.S. refugee program and the consideration of widespread immigration reform measures intended to acknowledge the contributions of immigrants to this country. Within the current environment, we are gratified at our role in providing quality professional legal services to our clients – both employers and foreign nationals. We continue to receive strong demand for our services, particularly in this period of uncertainty, complexity, and change, and our practice continues to expand both locally and nationally. We can only attribute this to a strong commitment amongst the members of this firm to meet client needs and a dedication to serving as forceful and respected advocates for immigration benefits for our clients. Above all, we at this firm desire to maintain our commitment to immigration law in these unsettled times and to serve the needs of our clients in an effective, professional manner. As always, I would appreciate receiving your comments and thoughts on the utility of this type of informational piece. Also, please inform me of any additional individuals who might wish to receive this type of commentary. Cordially,
ROBERT D. ARONSON
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Aronson & Associates, P.A. |