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October 2004 Newsletter October 15, 2004
Dear Clients and Friends: The federal fiscal year commences on October 1, and this date is normally greeted with a great deal of relief for immigration purposes. Under law, the commencement of the federal fiscal year signals a replenishment of both immigrant and nonimmigrant numbers and an infusion of financial resources as the various federal agencies receive their budgetary authorizations so as to initiate new immigration-related programs. This year presents a starkly different situation in that the recent commencement of the federal fiscal year has brought little relief to an overburdened system owing to the confluence of the following factors: 1) statutorily set limitations on the number of visas available within our immigration system; 2) administrative inefficiencies that have yet to be resolved; and 3) continuing uncertainties on balancing immigration opportunities with national security safeguards. We take a great deal of pride in this firm in keeping abreast of prospective developments so as to develop appropriate, responsive immigration strategies on behalf of our clients. We further try to communicate emerging matters of immigration importance so as 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 specifically focusing on the various processing delays and backlogs currently in existence in the U.S. immigration system. EXHAUSTION OF H-1B VISA NUMBERS The United States maintains a quota of 65,000 H-1B visa numbers per year, which marks a significant decline from the previous numerical allotments of this widely utilized temporary, nonimmigrant visa classification. The H-1B Temporary Worker provisions are extensively used to provide immigration status to a wide range of foreign professionals who hold offers of professional employment in this country. Since this past April, U.S. Citizenship and Immigration Services (USCIS) has been accepting H-1B Petitions for positions commencing on October 1, 2004. Ironically, on the exact same day – that is, October 1 – that the new H-1B numbers became available, USCIS announced that it had received enough H-1B Petitions to meet the Congressionally mandated cap for this coming fiscal year. As such, requests for H-1B status subject to the quota cap cannot be approved for a full year, until October 1, 2005, when the next allotment of H-1B numbers become infused into the immigration system. To be sure, the announcement of the exhaustion of the H-1B numbers for this current fiscal year does not necessarily crush all employment-based immigration cases for this forthcoming period of time. It does, though, require new, creative strategies and on-going communication with all parties involved. Specifically, here are some of the approaches now being utilized in view of the exhaustion of the H-1B numbers:
It is axiomatic in this field of law that each case needs to be analyzed separately on its own merits. The basic point, though, is that the recent announcement of the exhaustion of the H-1B numbers should not and does not bring employment-based immigration to a standstill, particularly since there are many instances in which an H-1B request will not fall within the H-1B quota restrictions or in which alternative and perhaps even more desirable immigration options exist. In terms of our own practice, we are quite fortunate to provide immigration legal services to a broad range of universities, university-related institutions, and physicians – all of whom in the main are unaffected by the H-1B quota. LABOR CERTIFICATION DEVELOPMENTS The Labor Certification Application process is in many instances the required first step toward Permanent Residence based upon employment. This process requires an employer to satisfactorily recruit and advertise in order to determine the availability of fully qualified U.S. workers for a position presumptively to be filled by the foreign national. Over the years, both the state labor offices and the various regional certifying offices of the U.S. Department of Labor have developed substantial processing backlogs that are now being remedied by some concerted palliative initiatives. At present, there are two emerging initiatives to reduce the backlog in Labor Certification Application processing: the Backlog Reduction Plan and the PERM Program. First, on July 21, 2004, the Department of Labor announced its intention to establish two centralized processing facilities in Philadelphia and Dallas to provide both state and federal offices with additional resources to clear up the backlog of roughly 310,000 pending and unadjudicated Labor Certification Applications. This Backlog Reduction Plan does not in any manner alter the substantive Labor Certification Application requirements; rather, it simply makes an additional processing resource available to both the State Workforce Agencies (SWA) and the Regional Certifying Officers of the U.S. Department of Labor. Since the announcement of this Plan, there has unfortunately been no appreciable decrease in the processing times of Labor Certification Applications. In fact, various state officials have informed us that they have yet to receive instructions on even how to avail themselves of these additional resources. The prevailing theory is that the Backlog Reduction Plan will not become fully operational until the new PERM Program is introduced, which conceivably makes sense given the fact that the main impetus of the Plan is to clear out the existing backlog as a corollary to PERM’s introduction. Second, the Department of Labor has announced its new PERM Program, which represents a major reengineering of the Labor Certification Application Program. The PERM regulations are currently under final review at the Office of Management and Budget (OMB), and it is believed that the implementation of PERM will not actually occur until after the Presidential election. At present, there are many unanswered questions as to how this new Program will actually operate. The goal of the PERM Program is to reduce substantially the processing time of Labor Certification Applications through the elimination of the role of the SWAs in favor of the establishment of two National Processing Centers in Atlanta and Chicago. Under the PERM Program, an employer will need to make various attestations regarding the overall terms and conditions related to the recruitment of a foreign national, which, once done, will result in an expedited approval of the Application. However, employers will then bear certain ongoing exposure based upon a complaint-driven system in the event that they do not fully comply with these attestations. IMMIGRATION PROCESSING BACKLOGS U.S. Citizenship and Immigration Services (USCIS) has also been plagued by substantial backlogs in its processing rates. While USCIS claims that its new obligations to conduct background security checks have added major additional burdens, the plain fact is that the administrative organization, staffing levels, morale, technology, and other factors in combination with the steady escalation of immigration requests have resulted in unconscionable delays in the processing of immigration petitions and applications. On June 16, 2004, USCIS unveiled its Backlog Elimination Plan that has targeted the end of 2006 to eliminate the application backlogs and achieve an application processing time of six months or less.In addition, USCIS has announced a number of other initiatives intended to incrementally address its existing backlog of cases, including: · A pilot program to more expeditiously process concurrently filed Immigrant Visa Petitions and Adjustment of Status Applications; 9/11 COMMISSION FINAL REPORT The National Commission on Terrorist Attacks (9/11 Commission) released its final report in July, which addressed a broad range of issues and public policy initiatives aimed at enhancing the national security. Not surprisingly, the Commission Report also includes various suggestions for enhancing the security-related aspects of our immigration system, including the following recommendations: Enhanced utilization of biometric identifiers so as to apply new technologies for screening and monitoring foreign nationals at the time of visa issuance, admission to the United States, and internal movement. This in and of itself is a daunting task given that these three functions are currently discharged by three entirely separate federal agencies: the U.S. Department of State (visa issuance), U.S. Customs and Border Protection (admission process), and USCIS (internal immigration status). VISA ISSUANCE POLICY Particularly in the aftermath of the 9/11 tragedy, the U.S. Department of State instituted various new programs requiring more intensive background security checks as well as personal appearances for all applicants for nonimmigrant visas. As a direct consequence of this policy, foreign nationals oftentimes encounter delays in making appointments at U.S. Consulates abroad, and this situation may get substantially worse after October 26, 2004, at which time many foreign nationals previously utilizing the Visa Waiver Program will be forced to apply for visas owing to their need to hold Machine-Readable Passports. In addition to the recurrent difficulties in simply getting appointment dates at the Consulates, there have been major security-driven delays in actually issuing the visas. Perhaps the hardest hit cohorts of visa applicants experiencing delays have been males from the Muslim countries of the Middle East and foreign nationals engaged in either high technology or dual-use technology endeavors in the United States. As of September, the Department of State claims that 98% of all nonimmigrant visa applications are processed within 30 days or less, although this assertion conflicts with a study noting continuing delays as issued a few months ago by the Government Accounting Office. In fairness, we have noticed a marked improvement in visa-issuance processing times that we primarily attribute to four developments: Installment at all 211 overseas Consular Posts of the required equipment and technology for collecting fingerprints for biometric processing, thereby enabling the various Consular Posts to electronically obtain visa issuance clearances in a time-efficient manner. EXTENSION OF CONRAD STATE 30 PROGRAM In one very promising development pertaining specifically to the foreign physician community, the Congress at present is in the last stages of finalizing a two-year extension to the Conrad State 30 Waiver Program. This Program specifically provides to the states and federal agencies the authority to recommend waivers of the two-year home residence obligation to physicians undertaking practice commitments benefiting the indigent and medically underserved. The Conrad State 30 Program has become one of the principal initiatives to bring much needed physician resources to communities in need. As of this writing, both Houses of Congress have passed their respective versions of this legislation. While substantively quite similar, these two enactments now need to go to a Joint Committee that will recommend out a single version for consideration and signature by the President. The principal changes/enhancements appearing in this new legislation over its former version include: The states will again be limited to 30 waivers per year, but they will have the flexibility of recommending up to five (5) waivers per year for physicians treating the indigent and medically underserved, even if the actual practice site is not in a designated medically underserved community; SOME MATTERS OF PERSONAL/PROFESSIONAL INTEREST On some personal notes, I was in Washington, D.C. a few weeks ago on two distinct but related missions. First, I am a Vice Chair of the Hebrew Immigrant Aid Society (HIAS), which is one of the most highly awarded refugee and immigrant rights organizations in the world, having a remarkable record of assisting in the migration of oppressed Jewish and non-Jewish populations to lands of opportunity. The purpose of this visit was to advocate to various federal agencies on the need for a robust refugee program and the enhancement of immigrant rights. We as a Board spent over three hours in the White House complex engaged in a very meaningful and wide-ranging discussion with Administration officials. We were encouraged that the United States, undoubtedly in response to concerns raised by the refugee advocacy community, has set the refugee admissions level for this forthcoming fiscal year at 70,000, which represents roughly a 40% increase from the number admitted last fiscal year (although still a small initiative toward addressing the migration and resettlement of the world’s roughly 17 million refugees as certified by the United Nations High Commissioner of Refugees). As a second endeavor, a colleague and I also met with the Congressional leadership dealing with the extension of the Conrad State 30 Program. Roughly 25 years ago in a previous professional incarnation, I was a lobbyist and lawyer on international trade and investment issues in Washington, D.C., and would regularly visit Capitol Hill and the White House. This recent effort on the Conrad reauthorization represented one of my rare recent forays into Congressional offices, and to say the least it is highly reaffirming that individual citizens can gain access to elected representatives so as to advance and discuss legislation of perceived national benefit. In this particular case, there appears to be a direct correlation between these meetings and the passage of the extension of this legislation in both Houses of Congress. This coming week, I will again be returning to Washington, D.C., to participate in meetings with the U.S. Department of State as a member of my professional association’s liaison efforts. My main interest and area of expertise concerns the J-1 Exchange Visitor Program and waivers of the two-year home residence requirement, and my professional association maintains an active, ongoing cooperative effort with the Department on these issues. These forthcoming meetings, though, will embrace a wide-ranging agenda with the Visa Office focusing largely on visa issuance policies and procedures, and the minutes of these sessions will become a matter of public record. I also was recently invited to participate in a nationwide teleconference organized by the American Association of Medical Colleges (AAMC) on H-1B visa policies for foreign medical trainees. I always appreciate the opportunity to appear before knowledgeable and involved audiences, and along with my co-panelists on this presentation, we were able to review not only immigration legal standards, but also individual institutional attitudes toward utilizing the H-1B Temporary Worker classification as opposed to the J-1 Program for medical training purposes. Within the firm, we are gratified at our role in providing quality professional legal services to our clients – both employers and foreign nationals. We strive to serve our clientele in a prompt, efficient, dedicated and successful manner, and we appreciate greatly the relationships that we maintain not only with our individual and corporate clients, but also more broadly with the larger community of interested parties. 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 among the members of this firm to meet client needs and a proven track record of serving as effective and respected advocates for immigration benefits for our clients. Above all, we 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 and your suggestions of immigration-related issues for future discussion and analysis. Cordially,
ROBERT D. ARONSON
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Aronson & Associates, P.A. |