Alan Heckler, PC

IN THIS ISSUE: H-1B Cap Reached, Legislation Introduced; Immigration Reform Gets a Boost; Renewed Congressional Debate over L-1 Visa Program, Business Support Critical; USCIS Hikes Immigration Processing Fees; US-VISIT Creates New Hoops for International Personnel; H-2B Cap Hit, Legislation to Save Summer Pending.

Immigrants Action Alert- May Edition
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The newsletter to inform and activate immigrants and their families
Volume 3, No. 1 May 2004

The U.S. Department of Labor (DOL) has expanded the ability to convert traditional, or TR / non-Reduction in Recruitment, labor certifications to Reduction in Recruitment (RIR) cases. This expansion means that most traditional cases that are pending in the Backlog Processing Centers (BPCs) can be converted to RIR cases.

Question 1. Why would an employer want to convert a TR case to RIR?

Timing. RIR cases generally are processed to receive decisions more quickly, since they do not undergo the same recruitment method.

Question 2. Is there a date or deadline by which the original application had to be filed?

Yes. The applications had to be postmarked on or before March 28, 2005.

Comment : The date of March 28, 2005 appears to be a typographical error in the FAQs. The Federal Register Notice carries the cutoff date of on or before March 27, 2005. The March 27, 2005 date was the last date to file under the pre-PERM system. Anything filed on or after March 28, 2005 would have been under the PERM system.

Question 3. Who may request the conversion?

The conversion must be requested by the employer or by the designated attorney or agent. Foreign national beneficiaries may not make the request.

Question 4. Can Schedule B occupations use these procedures?

No. Under current regulations Schedule B applications cannot use the RIR process.

Comment : Schedule B should not be confused with Schedule A. Schedule A cases are pre-certified as shortage occupations and do not need labor certifications. Schedule B cases, essentially, are the opposite. They are for occupations that the DOL has recognized as generally having sufficient U.S. workers available. Typical Schedule B occupations include: bookkeepers, cashiers, service station attendants, taxi drivers, domestic household workers without a year's paid experience, clerk-typists, sales clerks, and general kitchen workers.

Question 5. Is there a deadline for making the RIR request?

No, but the case is no longer eligible for RIR conversion once the BPC has started the recruitment process. Thus, if an employer waits, the case may end up going through the supervised recruitment under the TR / regular labor process. The BPCs will not delay their start of recruitment to accommodate an employer's request for RIR conversion, which cannot be made before recruitment is begun, but only at the time of submitting the RIR conversion. The request must arrive prior to the start of supervised recruitment.

Question 6. What documents are needed to make the request?

The RIR request must be accompanied by a written request for conversion, contact information regarding the application (including an eMail address), documentation establishing a pattern of recruitment within the six months preceding the date the conversion request is received by the BPC, and proof that any U.S. workers who applied for the job were rejected for lawful, job-related reasons. There must be documentation of the recruitment process used and the results of those efforts.

Comment : Since the RIR request must be accompanied by recruitment efforts and results, it seems that it is entirely possible that an employer could begin the RIR recruitment, only to find out that the BPC started supervised recruitment and eliminated the conversion option before the conversion request could be submitted. It is likely that earlier-filed cases that have been pending with the DOL are at higher risk.

Question 7. How will these cases be processed?

The BPCs will process the requests on a first-come, first-served basis. The response time will depend upon the volume of such requests. The DOL will not be sending confirmation of receipt.

Comment : As there were many who rushed to file without time to engage in recruitment efforts immediately before PERM started, there may be many such requests. We also note that, while the DOL has stated that the labor certifications in the BPCs are processed in a first-in / first-out (FIFO) order, the approvals that we have received have had wide-ranging priority dates with no indication of the FIFO system.

Question 8. What happens if the RIR conversion request is granted?

The employer or attorney will be notified by eMail. The case will be moved from TR processing to RIR processing and then processed based on the initial filing date (priority date).

Question 9. What if the RIR conversion request is not granted?

The case will remain in the TR processing queue. The attorney or employer will be notified by eMail that the request was denied.

Question 10. What if the case was filed using RIR previously, but that request was denied? What if the employer attempted to convert the case to RIR previously, but was not successful?

These cases are still eligible to request RIR conversions. The employer will have to remedy the problems with the previous RIR request/s.

Question 11. In order to establish a "pattern of recruitment," which date is used as the reference point?

The reference point for the pattern of recruitment within six months is based on the date the RIR conversion request is received by the BPC. Thus, any advertisements must have been placed within six months of the request to convert to RIR. Earlier recruitment will not be considered.

Question 12. Can the priority date be lost in trying to convert? Is the application withdrawn?

No. Whether or not the request to convert is accepted, the priority date does not change. The original application is not deemed or otherwise withdrawn.

Question 13. Does the prevailing wage used in the recruitment have to meet the 100 percent level?

Yes. The current regulations require that recruitment be at 100 percent of the prevailing wage.

DOS Issues Notice on Registration for the 2008 Diversity Immigrant Visa Program

The NSC Accepts Concurrent I-485 Filings for Premium Processing Eligible I-140s

The recent debate over immigration policy commonly depicts immigrants as undocumented, uneducated people who flood our borders without inspection. Although many immigrants who enter this country are unskilled laborers who provide essential services in many sectors of our economy, of equal importance to the immigration debate are the highly educated foreign professionals whose skills play a vital role in the enrichment of our economy. These foreign born workers bring unique perspectives and expertise that are essential to maintaining America's competitive edge as the leader of the global marketplace.

The United States economy has shifted significantly over the past fifty years. We are no longer the blue collar nation that we once were. The transformation of our economy from a manufacturing economy to a knowledge-based economy has created a growing demand for highly skilled technical workers. This demand has been accompanied by a decline in the number of native-born students seeking degrees in the fields of science, engineering and technology. Our prestigious graduate institutions currently train more foreign nationals than U.S. citizens in these important fields. These U.S trained specialists, both native and foreign-born, cannot fill the demand for highly-skilled workers in key occupations. U.S. businesses must be able to recruit and hire additional foreign-born professionals to alleviate temporary labor shortages in specific occupations.

To keep America competitive, we must increase the number of specialized worker visas awarded. H-1B visas, or temporary skilled worker visas, are currently capped at only 65,000 annually. Yet in recent years, this "cap" is reached in a couple of months and U.S. businesses are barred from hiring foreign-born professionals for the remainder of the fiscal year. In order to increase the number of highly skilled professionals in this country, we must reform the employment based immigration system and provide a sufficient amount of avenues through which U.S. businesses can legally employ specialized workers.

At the same time, we must increase recruitment and training of U.S. students as well - in order to accelerate this process, a hefty portion of the processing fees for the H visas are directed to the education and training of U.S. students in science and technology.

It is important that skilled workers are not overlooked in the current debate regarding comprehensive immigration reform. Raising the H-1B visa cap is vital to maintaining our leadership in the world market. We must retain the educated professionals whom we have trained internally in order to benefit from the unique skills that they possess. By sending the best and the brightest workers back to their respective countries, we only create competition for ourselves, thereby diminishing America's economic clout. By retaining foreign nationals, we may ensure that U.S. businesses have the most highly qualified workers in their fields, helping America maintain its edge in an increasingly competitive global economy. the most highly qualified workers in their fields, guaranteeing maximum success and economic prosperity.

USCIS announced that on August 28, 2006 it will begin accepting Premium Processing requests for EB-3 Professionals and EB-3 Skilled Workers. In addition, USCIS will release a new Form I-907 to include the newly designated classifications.

Washington, D.C. - On July 28th, the U.S. Citizenship and Immigration Services (USCIS) announced that, as of July 26th, it had received enough H-1B petitions for "foreign workers who have earned a master's degree or higher from a U.S. institution of higher education" to meet the exemption limit of 20,000 established by Congress for fiscal year (FY) 2007. This is on top of having reached the overall H-1B cap of 65,000 on May 6, more than four months before the start of the fiscal year.

Cap Treatment of H-1B Petitions Delivered to VSC Prior to Cap Cut-Off But Not Yet Receipted

USCIS has confirmed to AILA that any cap-subject H-1B received at the VSC mailroom prior to the cut-off day will be considered under the cap regardless of whether it was data entered. Any cap-subject H1-B petition received on the cut-off day will be eligible for random selection. USCIS also advised that as of close-of-business yesterday VSC had data entered through 5/25.

WASHINGTON, DC � May 24, 2006 - USCIS recently published a notice in the Federal Register identifying certain forms for addition to an expanded Premium Processing Service. These forms types include most immigrant worker petitions (Form I-140), selected applications to change or extend nonimmigrant status (Form I-539), and applications to renew employment authorization documents for foreign nationals with pending employment-based applications to adjust status (Form I-765).

Please note that USCIS Service Centers will not accept filings for any of these form types under the Premium Processing Service until a formal announcement is made on the USCIS web site (www.uscis.gov) announcing the specific start dates for acceptance of the new form types. Until that date is established and announced, USCIS Service Centers will reject any Premium Processing filings for I-140s, I-539s or I-765s.

DOL recently released Set 6 of its list of PERM FAQs. This list addresses a number of issues, including making corrections to filed PERM applications; re-applying after a denied application for certification; request for review pending with the BALCA; incorrect or incomplete prevailing wage determinations; and entering years of experience, education or training on ETA Form 9089.

Department of State has advised that it has seen a decrease in demand for employment-based visa numbers for USCIS adjustment of status cases. This has resulted in the rapid advancement of the established cut-off dates. DOS does not want to be in a position where there are large amounts of numbers available for use late in the fiscal year, and not enough time to make use of them. But, when/if the USCIS demand does materialize it may be necessary to hold or retrogress (at some point) those dates. Below are DOS' comments on the outlook for employment-based numbers:

"Worldwide: Based on the current level of number use in the Employment First and Second preference categories there will be no need to impose a cut-off date for the categories. While the First preference number use is relatively close to my target, the Second preference is significantly below my target which doesn't make a lot of sense.

Third: I had been concerned that the amount of 245(i) filings during March/April 2001 would result in a large concentration of demand, and limit movement of the cut-off date. So far this has not been the case, and it may be that such cases (if they exist in large numbers) are still in the DOL backlog.

China and India: The same lack of demand comments apply to these First and Second preference cut-offs. This has resulted in the rapid advancement of the China and India cut-offs, which I expect to continue for the next several months.

China Third - Should stay at the Worldwide date.

India - This cut-off should continue to move, but such movement may become more limited. "

USCIS announced yesterday that it has received enough H-1B petitions that qualify for the exemption from the H-1B numerical limitations for foreign workers with a U.S.-earned master's or higher. The "final receipt date" for these 20,000 cap-exempt H-1B petitions is January 17, 2006.

In a memorandum issued January 11, 2006, Michael Aytes, Acting Associate Director for Domestic Operations at USCIS, announced that USCIS has temporarily extended the validity of civil surgeon endorsements on Form I-693 for certain adjustment of status applicants.

Recent reports have indicated that EU nationals in J nonimmigrant status may be able to fulfill the two year home-country residence requirement in any EU country. In response to these reports, the Visa Office's J Waiver Division has provided the DOS Liaison Committee with clarification of prevailing policy: Since the INA requires two years in the individual's country of nationality or legal residence, and the EU is not a country, the option of returning to any of the EU countries is not acceptable. European nationals must fulfill the two year requirement in their country of nationality or legal residence.

The Law Office of Alan E Heckler, PC has just received its 105th PERM approval with a 100% approval record!

Department of Labor
DFLC Frequently Asked Questions and Answers (PERM)
December 21, 2005
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USCIS has provided updated figures on fiscal year 2006 usage of H-2B first-half numbers and H-1B numbers for graduates of U.S. advanced degree programs. For access to these figures, visit: http://uscis.gov/graphics/services/tempbenefits/cap.htm.

The U.S. Department of State (DOS) has released the Visa Bulletin for January 2006. Click for the most recent Visa Bulletin is always available on my site. Following is a summary of the movement in priority dates.

EB1

In the Employment-Based First Preference (EB1) category, all countries except mainland China (China) and India remain current. China's priority date moved ahead to January 1, 2002, and India's priority date moved ahead to July 1, 2003. This means that persons in the EB1 category who filed their I-140 petitions prior to these dates may, as of January 1, 2006, file the I-485 application, be approved through consular processing, or receive an approval of their previously filed I-485 applications. This represents a fairly significant forward movement in this category for both China and India, when compared to the December 2005 Visa Bulletin.

EB2

In the Employment-Based Second Preference (EB2) category, all countries except China and India also remain current. China's priority date moved ahead to June 1, 2001, which is a four month improvement over the December 2005 Visa Bulletin. India's EB2 priority date moved ahead to January 1, 2001, which is a six-month forward movement.

It is a good sign for China that they have moved past April 30, 2001, which was the 245(i) cutoff date. There are many cases filed around that time. It is unknown how long it will take for the numbers for Indian nationals to reach that point.

Persons who are beneficiaries of an approved labor certification that qualifies under EB2, and for which the priority date is before the cutoff date, may now move forward with their cases. If they already have an I-485 filed, it would be eligible for approval as of January 1, 2006. If the employer has filed or is ready to file the I-140, then the I-485 application could also be filed. If the I-140 selected consular processing, the case would then be eligible to be approved through consular processing as of January 1, 2006. The same is true for individuals with National Interest Waiver petitions who have priority dates prior to the newly established cutoff dates.

EB3

In the Employment-Based Third Preference (EB3) category, all countries are affected by retrogression. China's priority date moved ahead to April 1, 2001; the Philippines' priority date also moved ahead to April 1, 2001.

India's priority date moved ahead by five months to June 1, 1999 and Mexico's priority date moved ahead to March 1, 2001. Individuals who are beneficiaries of labor certifications filed before these dates, who either have I-140 petitions pending, approved, or eligible for filing, may now file the I-485 application. Those who have approved I-140s with priority dates prior to the cutoff dates, may, as of January 1, 2006, be approved through consular processing or receive an approval of their already pending I-485 applications.

Dates still remain substantially retrogressed. It is likely that, absent legislation that would change the system and/or allocate more numbers, most of the dates that have reached April 2001 will now move ahead slowly. These dates will likely not change until the great number of qualifying cases filed prior to the April 30, 2001 deadline completes the green card process.

The U.S. Citizenship and Immigration Services (USCIS) issued a memorandum on October 21, 2005 setting forth the procedures for calculating the maximum period of stay allowed for H1B and L-1 nonimmigrants. This Memo addresses only issues pertaining to the recapture of time spent abroad. It in no way addresses or alters the H1B extensions beyond the six-year limitation that are commonly referred to as seventh-year extensions. The Memo, in simple terms, allows for persons in H1B and L-1 to recapture each day that they spend abroad during the standard H1B and L-1 duration.

The U.S. Department of Labor (DOL) confirmed on October 17, 2005 that it does not have an official policy to withdraw a pending labor certification that is being processed at a Backlog Processing Center (BPC) solely because the beneficiary obtained a PERM approval. This is an important clarification, due to a virtual panic created by a policy announced a few months ago, and then almost immediately retracted, regarding an employer's ability to have multiple labor certifications filed for the same person.

The October 2005 Visa Bulletin shows severe retrogressions in India and China employment-based first and second preferences, and early cutoff dates in worldwide third preference. The Bulletin indicates that future forward movement in these dates is likely to be limited. EB2 for India will be rolled back to November 1, 1999. See http://travel.state.gov/visa/frvi/bulletin/bulletin_2631.html

This means that after October 1, 2005, form I-485 cannot be filed unless the cutoff date has reached your priority date. However, form I-140 may still be filed but without the I-485.

Forms I-485, along with I-765and I-131 can still be filed up until September 30th and EADs and advance parole will be issued. However, even though filed, after October 1st, the I-485 will not be processed until the cut-off date catches up to your priority date. For those lucky enough to have filed prior to October 1st, work authorization and advance parole will be issued while they are waiting for their I-485 processing to resume.

For those who are unable to file prior to October 1st, it is very important that they maintain their current status such as H-1B.

In place of the prohibition on multiple filings in the Labor Department's August 8, 2005 FAQ on PERM, the FAQ now states that the "Department is considering questions and information stakeholders have submitted in response to this FAQ posting, and will be developing and posting a clarified response in the near future." AILA had raised several serious concerns about the FAQ with DOL.

USCIS headquarters has confirmed to AILA that, despite rumors to the contrary, H-1B numbers remain for both fiscal 2005 and 2006 for graduates of U.S. masters or above programs.

A proposed rule that would eliminate substitutions on labor certification applications, impose a 45-day deadline for filing an I-140, and add enforcement measures was cleared by OMB on August 10, 2005. The next steps are approval and signature at DOL, then publication in the Federal Register. For more information: http://www.reginfo.gov/public/do/eoViewRule?ruleID=253350

DOS last week introduced a new system whereby recent passport applicants can check the status of their applications via the Internet. Effective as of August 12, 2005, those who have recently applied for a U.S. passport and want to know the status of their application may do so online by accessing: http://travel.state.gov/passport/get/status/status_2567.html using a standard Internet browser, then entering in the appropriate fields their last name, date of birth, and the last four digits of their Social Security Number. Personal information will remain in the system only long enough to complete the inquiry, thus protecting that data, as authorized by law. This information will then be deleted from the system.

The Department of Labor (DOL) posted a new FAQ to their PERM website that announces a major new policy imposing penalties if more than one application for labor certification is filed or pending by an employer for the same individual.

PLEASE NOTE: This policy does not affect first-time PERM application where the employer has not previously filed any labor certification applications for the same individual. It also does not affect the DOL policy permitting PERM filings that are identical to a prior application (RIR or regular) for purposes of recapturing a previous priority date.

Notice from USCIS announces that sufficient H-1Bs have been received to reach the fiscal 2006 H-1B cap, and that filings are cut off for any petitions received after August 10, 2005. Click

The U.S. Department of State (DOS) has released the September 2005 Visa Bulletin. The most recent Visa Bulletin is always available here. September 2005 is the last month in fiscal year (FY) 2005. Although the DOS had earlier expressed concern that there could be retrogression in the Employment-Based Second Preference (EB2) category, it remains current for September 2005. Therefore, for the month of September 2005, there are enough visa numbers for all EB2 cases for all countries.

The backlog reduction efforts of both Citizenship and Immigration Services, and the Department of Labor continue to result in very heavy demand for Employment-based green cards. It is anticipated that the amount of such cases will be sufficient to use all available numbers in many categories. As a result cut-off dates in the Employment Third preference category will apply to the China, India, and Philippines chargeabilities beginning in October, and it is possible that Mexico may be added to this list. In addition, it is anticipated that heavy demand will require the establishment of a Third preference cut-off date on a Worldwide basis by December.

The amount of Employment demand for applicants from China and India is also likely to result in the oversubcription of the Employment First and Second preference categories for those chargeability areas. The establishment of such cut-off dates is expected to occur no later than December.

The level of demand in the Employment categories is expected to be far in excess of the annual limits, and once established, cut-off date movements are likely to be slow.

As a result of the demand created by USCIS backlog reduction efforts, the EB3 category for India, mainland China, and the Philippines is expected to start the year with a cut-off date. This means that some, but not all, persons having EB3 cases from these countries will be able to seek to complete the third stage of green card processing starting from October 2005. To date, the DOS has not indicated what this cut-off date might be.

USCIS has started updating the H-1B count on its website on a more frequent basis. After posting the count on August 1, 2005 for the period ended July 29, it updated the posting to a period ending August 4. That update showed an advance of approximately 3,000 numbers in four business days, and that the USCIS has, counting approved and pipeline cases, fewer than 6,300 numbers left for the fiscal year that starts October 1, 2005. To monitor the count, it is suggested that you bookmark and frequently check this item on USCIS' website: http://uscis.gov/graphics/services/tempbenefits/cap.htm. It

In a guidance memorandum issued July 28, 2005, USCIS Associate Director of Operations William Yates instructed the field regarding the new limitations on L-1 eligibility for certain third-party worksite situations and regarding the return to a 12-month employment abroad requirement for all L-1s. Excerpts from the Adjudicators Field Manual regarding L-1s were included in the memorandum. Click above for memo.

The Labor Department has posted on its website a new "Frequently Asked Questions" document relating to prevailing wage determinations for non-agricultural programs. Included are answers to when and where an employer can obtain prevailing wage information when filing a PERM application, how employers can get a prevailing wage if filing an H-1B, H-1B1, or E-3 Labor Condition Application, and what primary factors are considered in making the prevailing wage determination. http://www.ows.doleta.gov/foreign/wages.asp#toc

The U.S. Citizenship and Immigration Services (USCIS) advised that 47,395 new H1B petitions have already been filed against the fiscal year (FY) 2006 cap. This reflects approximately 20,000 filings in the month of July 2005. If new H1B petition filings continue at this rate, the cap is likely to be reached within weeks, at the most. The H1B cap for regular cases is 65,000 for each fiscal year (October 1 to September 30). However, 6,800 H1Bs are set aside for nationals of Chile and Singapore. Only 58,200 new H1Bs, therefore, are available for the general public; of those, just under 11,000 H1Bs remain for the coming FY2006, which begins October 1, 2005 and ends on September 30, 2006. However, the H1B filings for new H1Bs under the FY2006 quota were permitted as of April 1, 2005, six months in advance of the start date of the FY2006 quota.

In addition to the 65,000 H1B cap, there are 20,000 special cap exemptions for people with U.S. masters' degrees and education beyond a U.S. master's degree. These H1B numbers still are available for both FY2005 and FY2006. About half of the 20,000 allotted for FY2005 have been used to date; while fewer of the FY2006 higher education H1Bs have been used so far, with 7,646 H1B filings either approved or pending.

The DOL Backlog Processing Center's plan to have all cases entered into their system by the end of September 2005. To meet this goal, they are not inputting complete data on some cases. The 45-day letters, however, cannot be issued for each case until it is fully entered into the system. Therefore, it is likely that some cases will not receive 45-day letters by September 2005, which was DOL's original timeline.

Although some of our clients have yet to receive 45 day letters, we have nevertheless started to receive approved Labor Certification from the Backlog Processing Center. For those clients still waiting for their 45 day letters, this is not a problem and we appreciate your continued patience and cooperation.

The U.S. Citizenship and Immigration Services (USCIS) announced on July 12, 2005 that only 8,069 petitions have been received against the Fiscal Year (FY) 2005 allotment of 20,000 additional H1Bs for foreign nationals who have U.S. masters' degrees or above. There is, therefore, plenty of these H1Bs available for those who qualify. The advantage of obtaining one of the FY2005 numbers is that the start date can be immediate, during FY2005, which ends September 30, 2005. H1B cases under the standard 65,000 quota for FY2006 cases must have a start date no earlier than October 1, 2005.

The USCIS has not provided an update on FY2006 numbers since recent count of 27,300 FY2006 cap-subject H1B filings, released in our July 1, 2005. We strongly recommend that those who wish to file for the fiscal year 2006 H1B (with a October 1, 2005 start date or later) do so as early as possible to minimize the chance that the H1B cap will be met prior to filing. As many of our regular readers are aware, H1B petitions may be filed up to six months prior to the requested start date.

The U.S. Department of State (DOS) has issued the Visa Bulletin for the month of August 2005, which continues to reflect that both EB1 and EB2 visa numbers are current and available for all nationals for the month of August 2005. However, this may not continue through the end of September - of particular concern for nationals of India and mainland China.

The DOS has indicated that it is too early to tell what will happen with respect to visa numbers in September 2005. The Visa Bulletin states that the USCIS demand for visa numbers for adjustment of status cases continues to be high. This is due largely to USCIS backlog reduction efforts. Because of this demand, the DOS has stated that it may be necessary to establish cut-off dates for EB2 cases in September 2005. The DOS suggested that these cut-off dates most likely would only be established for nationals of India or mainland China. This would be needed in order to confine the visa numbers issued to the annual legal limit.

GREAT NEWS! The Law Office Of Alan E Heckler, PC, has been receiving PERM approvals. Approvals have been taking about 6 weeks with no denials?

The U.S. Department of State (DOS) July 2005 Visa Bulletin, issued June 13, 2005, reflects unavailability of visa numbers in the Employment-Based 3^rd Preference (EB3) category for all countries. This means everyone in EB3, no matter one's country of origin or priority date, is impacted by this development. The exception, where there is availability of visa numbers, is for the subcategory of Schedule A workers, which includes nurses and physical therapists.

Those I-485 cases that are pending will remain pending until the visa numbers are available. If the numbers move from unavailable to a set cut off date (rather than becoming current), then those I-485 cases with priority dates prior to the cut off date will be able to be approved. Visa numbers are allocated each fiscal year. The government fiscal year begins on October 1 of each calendar year.

Persons who are eligible to file the I-485 in the EB3 category can still do so prior to July 1, 2005, so it is important to move quickly.

USCIS has provided to AILA an update on where it stands with respect to the H-1B cap. Despite rumors to the contrary, USCIS says it has NOT reached enough fiscal year 2006 cap-subject H-1B petitions to be nearing the cap.

In a June 15, 2005 press release, DHS reiterates that Visa Waiver Program visitors will be required to produce passports with digital photographs by October 26, 2005. However, requirements for circuit chips and other biometrics are deferred until October 26, 2006. The deadline for machine-readable passports is still June 26, 2005.

On June 15, 2005, USCIS issued a revised notice advises the public of the new procedure for filing Form I-90, the application for a replacement green card.

The State Department announced yesterday that F, J and M visas for Chinese nationals will be valid for 12 months and multiple entries. These changes to the validity period take effect starting June 20, 2005.

Under the regulation published today, May 5, 2005, with an effective date five days later (May 12, 2005), only graduates of U.S. master's or higher programs will be eligible. All filings must be to a special address at the Vermont Service Center. A special selection process is delineated if USCIS receives more than 20,000 requests. A mechanism for converting petitions filed for a fiscal 2006 to a fiscal 2005 number is provided.

The Department of State has advised that it is likely that numbers in the Other Workers category will retrogress or even become unavailable after May. The May Visa Bulletin is expected to be released shortly.

In a March 18, 2005 memorandum, Michael Hrinyak of CBP advised the field on implementation of the new $500 Fraud Prevention and Detection Fee. The new fee applies only to H-1B and L-1 principal beneficiaries, and not to their spouses or children accompanying them or following to join.

Still no word on when USCIS will start accepting petitions for the 20,000 H-1Bs. In the meantime, government sources confirm that the USCIS miscounted fy2005 H-1B allocations, such that at least 10,000 more than the 65,000 quota were allocated. No word yet on how the miscount will be handled.

1. How many Applications have been shipped from the SWAs to the BRCs?
Slightly over 180,000.

2. How many applications have had data input into the new database systems? Approximately 86,000.

4. How many abandonment or withdrawals have been logged?
Almost 300 withdrawals through February 2005.

5. How many new applications have been received by the SWAs since December 2004? Has there been a significant increase in new Applications in the lead-up to PERM? If so, how is it measured?
Information not tracked by USDOL.

6. What is the number of hired/trained contractor personnel at each BRC site?
Approximately 100 at each and they are looking at supplementing as DOL-ETA is making funds available. See Item 12.

7. Will Atlanta/Chicago continue to process traditional cases after March 28, 2005?
They will keep some temporary work only. They are in the process of shipping all other cases to BRCs. There are approximately 10,000 in total.

8. Have contractors begun to review cases for substantive compliance with DOL guidelines? If not, when is this expected to happen?
Yes and DOL is training now.

9. Do you continue to believe that the backlog reduction process can be complete in two years? If not, what is the current projection?
Current projection is 24 to 30 months, if DOL has adequate resources.

10. Will the same workers at the Centers be trained on both RIR and non-RIR cases?
They expect to cross-train initially since they do not know what kind of cases are in the boxes.

11. When do they expect to complete initial data entry on all cases?
The goal at this time is to finish data entry on all cases by the end of summer 2005. Additional resources are being made available by DOL for the initial data entry. After data entry is completed on all cases, the workers would move over to processing.

12. How long will satellite offices (New York, Boston and San Francisco) continue to process cases?
These offices will process the cases they have until January 2006.

13. Will there be an on-line system available to check the status of cases?
DOL is working on getting information on their website about which cases have shipped. They are also working on an e-mail capability to enable a party to find out whether a case is located at the BRC. The contractor staff would answer the e-mails.

15. Regarding standards to be applied to RIR filings, will they apply one national standard?
No, they plan to try to apply the standard used in the region where the case was filed.

USCIS Publishes Notice on H-1B Processing in Light of the FY05 Cap Being Reached

Effective 11/23/04, the notice instructs that the H-1B cap has been reached for FY05 and that e-filing is suspended. H-1B extensions and non-cap H-1B cases must now be filed under the mail-in process. H-1B petitions with 10/1/05 start dates may be filed starting 4/1/05.

Numerous media sources are reporting that the U.S. Consulate in Mumbai (Bombay) and the Information Resource Center at the American Center were closed on 11/23/04 due to suspected terrorist threats. No information was provided regarding when the Consulate will reopen.

So far, there has been no visible movement on the PERM regulation for permanent labor certification, and it is not clear when it will move. Because of embargoes on information imposed by the Department of Labor on a pending regulation, no solid information is available as to what will be in the final regulation whenever it is issued.

It is unknown what revisions have been made to the regulation since the original draft, and speculation regarding its contents is just that-speculation. Please be cautious about following advice on possible avenues of preparation. Without knowing the actual content of the regulation, those avenues could wind up being fruitless.

l. The Backlog Reduction Centers have not yet sent out any Center Receipt Notification Letters due to an issue with their software. Mr. Carlson advised that we can expect to see these letters in about two weeks or so.

2. The DOL is now considering the move of the next set of cases to the Backlog Reduction Centers. Mr. Carlson advised that they may move some cases from the processing centers in Atlanta and Chicago. They will be looking at the SWAs from which they will be pulling cases consistent with their first-in-first-out (FIFO) policy. DOL will be issuing written guidance to the states to advise them of the FIFO policy and taking the oldest cases and giving them instructions on what to do with the cases (shipping, etc.).

3. In the next week or so, DOL should be publishing a notice in the Federal Register with the addresses and contact info for all the offices. The information should be similar to what we were given on Oct 8 at the Philadelphia Center but this would be the official notification.

The U.S. Department of State (DOS) released the December 2004 Visa Bulletin on November 15. This December Visa Bulletin will be valid from December 1 throughout the month of December 2004. The DOS issues the Visa Bulletin early, which helps people to plan. The employment-based (EB) priority dates remain current for all categories through December 2004. The Bulletin did indicate, however, that employment-based priority dates are still expected to retrogress in January 2005. At this time, they are predicting the retrogression may only impact employment-based third-preference (EB3) cases for foreign nationals from China (mainland born), India, and the Philippines.

Congress Clears for President Bill to Extend J Waiver Program for Physicians

The House, on November 17, passed legislation that extends and modifies the "Conrad 30" J waiver program for foreign-born physicians. The Senate already passed the measure (S. 2302) on October 11, so the bill now goes to President Bush, who is expected to sign it. Under the program, aliens who participate in medical residencies in the United States on exchange program (J) visas are exempted from the two-year foreign residence requirement of INA � 212(e) if they agree to practice medicine for three years in an area designated by the Secretary of Health and Human Services (HHS) as having a shortage of health care professionals. The program has been extended several times, most recently via the 21st Century Department of Justice Appropriations Authorization Act (Pub. L. No. 107-273, � 11018 (2002)), which extended the program until June 1, 2004. S. 2302 extends it for another two years, until June 1, 2006.

The bill also makes several important changes to the J waiver program. First, S. 2302 specifies that physicians who are sponsored for a waiver by either a federal or state agency will be exempt from the H-1B cap. In addition, the bill allows five of each state's 30 waivers to go to doctors that practice medicine in areas not designated by the Secretary of HHS as having a shortage of health care professionals, if the doctors receiving the waivers practice in facilities that serve patients who reside in areas designated by the Secretary as having a shortage of health care professionals. Finally, the measure permits foreign doctors receiving a waiver to work in medically-underserved areas in either primary care or specialty medicine. Under current law, only state agencies and the Veteran's Administration are permitted to sponsor specialists. To request a waiver for a specialist, however, the interested agency would be required to demonstrate a shortage of doctors able to provide the appropriate medical specialty in the designated geographical area.

Section-by-Section Summary of the L & H-1B Amendment to the Fiscal 2005 Omnibus Appropriations Bill (H.R. 4818)
PROPOSED LEGISLATION

Section 11: Short Title-"L-1 Visa (Intracompany Transferee) Reform Act of 2004"

This section modifies the INA � 214(c)(2) to prevent an L-1B visa holder from being primarily stationed at the worksite of another employer in cases where:

(1) The L-1B visa holder will be controlled and supervised by an unaffiliated employer, or
(2) The placement of the L-1B visa holder at the third party site is part of an arrangement to provide labor for the third party rather than placement at the third party site in connection with the provision of a product or service involving specialized knowledge specific to the petitioning employer.

The above modification to the law applies to initial, extended or amended petitions filed on or after the effective date.

Section 13: Requirement for prior continuous employment for certain intracompany transferees

This section strikes from INA � 214(c)(2)(A) the provision permitting the six-month work requirement for L-1 blanket petitions. The modification made by this section applies only to petitions for initial classification filed on or after the effective date of the subtitle.

Section 14: Maintenance of Statistics by the Department of Homeland Security

This section mandates that DHS maintains statistics for L-1 petitions filed on or after the effective date. Statistics will be gathered on the following: