The Senate “compromise”comprehensive immigration reform proposal would radically change employment-based immigration law in the United States. A point system would replace the current approaches to permanent residence, including labor certification, national interest waiver, extraordinary ability applications, etc. In addition, the bill would strip the “dual intent”” provision regarding H-1B visa applications, which would make it much more difficult to obtain H-1B status. Also a new fee of $5,000 will be added to the H-1B application process. Furthermore, the bill does nothing to increase the availability of H-1B visas or eliminate excessive backlogs in employment-based permanent resident processing.
In the face of these changes, the business community has remained relatively silent. Our office encourages our clients, and other members of the business community, to make their voice heard by contacting their elected representatives in Washington and urging them to amend the bill to be more favorable to American employers.
The American Immigration Lawyers Association website (http://www.aila.com)/) provides an easy vehicle for contacting senators and congresspeople. Now is a critical time for employers to act in favor of employment-friendly immigration reform.
Another District Court Grants I-485 Mandamus Action
More and more District Courts are ruling in favor of plaintiffs who sue to have their long-delayed I-485 application for adjustment of status adjudicated. The U.S. District Court for the Northern District of California granted an adjustment Mandamus action on April 25, 2007. Our office has filed a number of Mandamus actions, and we have achieved some favorable results. Individuals with long-standing adjustment applications should consider the possibility of filing a Mandamus action (which is not appropriate in every case).
USCIS to Raise Fees by 66% Starting July
USCIS has announced that its proposed fee increases will take effect starting July 30. USCIS had received a number of complaints from immigration lawyers, advocates and even members of Congress. Notwithstanding these complaints, USCIS is moving forward with fee increases. An application for naturalization will increase from $405 to $675. An individual applying to become a legal permanent resident will have to pay more than $1,000, which represents a 155% increase.
DEPARTMENT OF LABOR PUBLISHES "NO SUBSTITUTION" RULE
After many years, the Department of Labor has finally published its rule regarding the substitution of beneficiaries in the labor certification process. The new rule bans substitutions as of the effective date of the new rule (July 16, 2007). Employers can file substitution requests up to this date.
The new regulation also limits the validity of labor certifications to 180 days; I-140 petitions must be filed within 180 days of the approval of the labor certification. For petitions which were approved before July 16, the 180 days starts to run July 16, 2007.
Finally, the new rule prohibits employees from paying any of the employer’s costs in the labor certification process. Therefore, employees who intend to pay all or part of the employer’s labor certification attorney’s fees should file prior to July 16, 2007. The regulation does not bar employees from paying the fees and/or costs associated with the employee. Our firm will be analyzing whether we can apportion the fees and costs we charge for the labor certification application to distinguish between fees and costs attributable to the employer and those attributable to the employee.
Employers and employees should act quickly if their labor certification application will be impacted by this new regulation.
STERN & CURRAY MOVES QUICKLY TO RESPOND TO JUNE 1, 2007 ADVANCEMENT OF PRIORITY DATES
Our law firm has moved quickly to respond to the substantial advancement in priority dates effective June 1st. Our firm has scheduled “choice appointments” with individuals whose priority dates will be current as of June 1st in order to ensure that applications for adjustment of status can be filed during the month of June in case there is a retrogression in visa numbers. Current clients of Stern & Curray who will have current priority dates in June, or other individuals who would like our assistance in preparing their applications for adjustment of status, should contact our office if they have not yet scheduled a choice appointment.
IMMIGRATION REFORM PROPOSAL ANNOUNCED
Earlier today, the President announced that Senate leaders from both parties had come to a compromise on a bill that would be a MAJOR overhaul to the immigration system. Details are still emerging, but among the highlights are:
– Enhanced border security, which must be completed before any guest worker or legalization plan is implemented
– Immediate status for undocumented people here, after payment of a large fine
– Restructuring and reduction of many family based categories
– Additional workplace verification and enforcement
– A merits-based “points” system that would allow immigration based on certain factors
THIS IS NOT A LAW, but is merely a proposal. As you will recall, last year the Senate put together a compromise bill that ultimately died when no compromise could be reached with the House of Representatives. We will see what happens with this one and how it evolves, as debate in the Senate is slated to begin next week. Please see this website for updates concerning legislative progress.
Some of these provisions are very onerous and, in our opinion, unworkable. There is still an opportunity to shape this law. Please contact your congressional representatives in the Senate and the House of Representatives to urge them to pass practical, humane immigration reform that will serve America’s needs. Click on the link below for instructions on contacting your Senators and Representative.
http://capwiz.com/aila2/callalert/index.tt?alertid=9764951
TPS Extended
On May 2, 2007, DHS Secretary, Michael Chertoff, announced that TPS for eligible nationals of Honduras, Nicaragua, and El Salvador, has been extended for an additional 18 months.
H-1B Master’s Count is Close to 20,000
USCIS reported that as of April 30, 2007, it had received 19,887 applications towards the 20,000 H-1B Master’s cap. By the time you read this posting the cap has, in all probability, been reached.
DOL Rule Against Labor Substitution Expected to be Published Soon
The Office of Management and Budget has finished its review of the DOL’s proposal to bar substitution of employees in labor certification applications and to prohibit employees from paying the employer’s attorneys’ fees. The proposed rule also set a time limit for the validity of a labor certification application.
Now that the OMB has concluded its review of this regulation it is expected that it will be published soon. The exact details of the rule have not yet been released.
Department of Homeland Security Seeks to Upgrade Employee Verification System
President Bush and the Department of Homeland Security have indicated that the system in place for verifying the status of new employees needs to be substantially revamped. “We must create a better system for employers to verify the legality of their workers” said President Bush.
It is estimated that the current system, the Basic Pilot Program, has an error rate of up to 20% and is very difficult to use. Hopefully, a more user-friendly system will be created in parallel with comprehensive immigration reform.