Immigration News
January 7, 2005: Deadline for DV-2006 Green Card Lottery
Once again, the State Department's DV-2006 Visa lottery program is on-going. The official State Department instructions and free, online application form can be found at www.dvlottery.state.gov.
The lottery will be conducted online only.
Asylum Becoming More Challenging
Asylum cases are becoming more difficut to win, either before the Asylum Office in Chicago, the Immigration Court in Bloomington, MN or before the Board of Immigration Appeals.
Now more than ever, any applicant for asylum needs the assistance of experienced counsel who will aid with thorough preparation of applicant for interview or hearing before a Judge, as well as making sure the proper documentation is submitted and deadlines are met.
At Paschal Nwokocha Law Offices, we have handled all manners of asylum cases from all parts of the world. Put our experience to work for you, your colleagues and friends.
Major Changes to H-1B and L Visas.
On December 8, President Bush signed the Omnibus Appropriations bill (H.R.4818) into law. This law contains many significant changes to both the H-1B and the L nonimmigrant categories.
Most significantly, the new law will allow, as of March 8, 2005, U.S. employers to submit H-1B petitions for an additional 20,000 workers exempt from the general 65,000 numerical cap who are in possession of either masters or doctorate degrees from universities in the U.S.
The changes in the L category are more modest, and become effective on June 8, 2005. An additional $1,500 filing fee for H-1B petitions became effective on December 8, 2004. In addition, the law imposes a $500 anti-fraud fee for both H-1B and L petitions (and some visas) that becomes effective on March 8, 2005.
At Paschal Nwokocha Law Offices, we are encouraging clients who may benefit from thisi provision to start preparing the necessary documents for filing the H-1B petition. The number of available visas are quite low (20,000) that they, most likely will be exhausted as soon as the door opens for applicant. We can recall that on October 1, 2004, the 65,000 H-1B visas were exhausted on the first day of the fiscal year.
Another Major Change — PERM: New Rules for Immigrating through Employment
On December 27, the U.S. Department of Labor (DOL) published regulations in the Federal Register which will introduce a new expedited form of alien labor certification entitled PERM. PERM is the "Program Electronic Review Management" system. These regulations will become effective on March 28, 2005.
In the meantime, employers may continue to submit regular and RIR labor certifications. If an employer with a pending labor certification wishes to submit a labor certification for this same job under PERM, it must first withdraw its regular or RIR labor certification, and resubmit the application under PERM.
What if you are an employer who has filed one or more of the 300,000+ applications for labor certification which are currently pending? Can these pending applications be changed to PERM without losing their priority dates? Yes, if you do so within 210 days after withdrawing your labor certification application, and you meet the following three conditions:
(1) no job order has been placed with the SWA; (2) the job offer is identical; and (3) you meet all PERM-related recruitment and advertising requirements.
PERM will allow employers to submit an Application for Permanent Employment Certification (ETA-9089) directly with DOL, online if they wish, and receive an approval within 45 to 60 days if there is no DOL audit.
The ETA-9089 is essentially an attestation which requires the employer to check "Yes" or "No" to a series of questions, and to describe the job and specific skills or other requirements. The PERM page on the DOL web site will include detailed instructions to assist employers in completing the form. Employers will be able to enter the PERM web page by using a password. The online system will remember the employer's information (e.g., name, address, etc.) so that on future applications, this information will be entered automatically, and the employer will only have to enter information specific to a particular application.
The employer need not submit any supporting documentation with the form, but must maintain and supply such documentation if required by the Certifying Officer. The standards for reviewing such applications remain the same as under the current labor certification process: (1) Has the employer met the procedural requirements of the regulations?; (2) Are there insufficient U.S. workers who are able, willing, qualified and available?; and (3) Will the employment of the alien have an adverse effect on the wages and working conditions of U.S. workers similarly employed?
DOL will audit certain PERM applications according to criteria developed to identify problematic applications. As a quality control measure, DOL will also conduct random audits.
Once DOL certifies an ETA-9089 and returns it to the employer, the employer must immediately sign the application and submit it in support of an immigration visa petition (I-140) to the DHS. The State Workforce Agencies (SWAs) will largely be removed from the process although employers must still obtain a Prevailing Wage Determination (PWD) from the SWA before submitting form ETA-9089 to DOL. Employers will be required to pay 100% rather than 95% of the prevailing wage.
In addition, the government will offer a four-level wage system in place of the current two-level system. As is presently the case with RIR labor certifications, PERM will require employers to recruit for the job BEFORE filing their applications. They must place a job order with the SWA and run two Sunday newspaper advertisements. If the application is for a professional occupation, the employer must conduct three additional steps from a list found in the regulation.
There is no processing fee, and this regulation does not specify what the penalties will be for failure to comply with PERM. Penalties will be enumerated in a subsequent regulation. If DOL denies a labor certification, the employer may appeal the denial to BALCA. DOL may, instead of denying an application, order supervised recruitment for the job opportunity.
Ironically, the biggest advantage of PERM, which is speed in processing, comes too late to help employers obtain permanent residence for most Chinese, Indian and Filipino workers in an expedited fashion since the EB-3 category for persons born in these countries will regress three years starting on January 1, 2005. However, for workers born in other countries, and for EB-2 employees, PERM holds great promise. It remains to be seen what effect PERM will have on the Visa Bulletin and on green card processing.
It is possible that the ease with which an application for labor certification may be filed under PERM may result in DOL and CIS being inundated with a huge volume of new cases. For instance, it will make it easier to petition for foreign workers, including domestic aides.
Businesses and individuals who think that would like to take advantage of this new process, should consult a knowledgable immigration attorney.
Another Fee Increase Coming to DHS
A November 30 USCIS rule proposed raising the fee for filing appeals of, and motions to reopen or reconsider, any decision under the immigration laws in any type of proceeding other than those described at 8 CFR 1003.1(b), over which the Board of Immigration Appeals (BIA) has appellate jurisdiction. This proposed rule applies to fees for appeals and motions relating to the types of cases under the jurisdiction of the Administrative Appeals Office (AAO).
The AAO is an appellate office of USCIS. The BIA remains a component of the Justice Department, and has appellate jurisdiction over the orders of immigration judges, denials of relative immigrant visa petitions (Form I-130), and decisions involving administrative fines and penalties. Appeals from denials of all other types of applications and petitions, and any subsequently filed motions, are under the jurisdiction of the AAO.
According to the proposed rule’s preamble, the fees are being raised from $110 to $385 to recover the full costs associated with the processing of an appeal or motion to reopen or motion to reconsider.
9/11 Law
On December 17, President Bush signed the Intelligence Reform and Terrorism Prevention Act of 2004 (S.2845) into law. The law contains a number of significant immigration provisions. It authorizes the hiring of an additional 2,000 Border Patrol agents each year for the next five years, and would also increase the number of ICE agents by 800 per year and add 600 consular officers worldwide, an increase of nearly 60% over current levels.
It imposes federal standards for state drivers' licenses and ID cards and for social security cards.
It would implement the pre-inspection of persons boarding aircraft to the U.S. at 25 airports abroad. It would also accelerate the implementation of the U.S.-VISIT system and would formalize the suspension of the Transit Without Visas program. The new law also incorporates the "Homeland Security Civil Rights and Civil Liberties Protection Act of 2004" (S. 2536/H.R. 5182) which provides specific statutory support for the work of the Officer for Civil Rights and Civil Liberties, Privacy Officer, and Inspector General at DHS.
If you have any questions about these or any immigration-related issues, please contact us.
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