H-1B Quota Update for Fiscal Year 2005

The immigration regulations allow H-1B petitions to be filed up to six months before H-1B employment is to commence. Beginning on April 1, 2004, therefore, petitions with employment start dates of October 1, 2004 or later may be filed; these cases will count against the numerical cap for Fiscal Year 2005, which begins on October 1, 2004. It is conceivable that, absent a legislative fix, all FY 2005 cap numbers could be exhausted before the new fiscal year even begins.

It is crucial that employers begin H-1B planning for Fiscal Year 2005 and consider filing H-1B cases as soon as possible, particularly given how quickly H-1B numbers were exhausted for FY 2004. The H-1B cases may be filed regular processing and although the case may not be adjudicated until summer, it should be safely in the queue and adjudicated before FY 2005 H-1B cap is reached.

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USCIS Reminds Adjustment Of Status Applicants Traveling Abroad To Seek Advance Parole

The U. S. Citizenship and Immigration Service (USCIS) issued a reminder to individuals either seeking an adjustment of status to lawful permanent residency, seeking an application for relief under the NACARA 203, or seeking asylum to ensure they obtain Advance Parole prior to traveling abroad. Advance Parole can be obtained by filing Form I-131, the Application for Travel Document, with the USCIS.

Advance Parole permits individuals to re-enter the United States after traveling abroad and to continue processing for adjustment of status. For individuals currently in the process of applying for an adjustment of status, leaving the U.S. without Advance Parole may lead to serious consequences, including a denial of application and/or being barred from returning to the U.S.

USCIS does note, in addition, that, according to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, certain aliens who leave the U.S. after unlawfully residing in the U.S. may be barred from applying for lawful permanent residency, even in cases where they receive prior Advance Parole. Individuals unlawfully present in the U.S. for a period greater than 180 days but less than one year will be barred from entry for a period of three years. Individuals unlawfully present in the U.S. for one year or longer will be barred from entering the U.S. for a period of ten years.

Department of State Eliminates Crew List Visas

Effective June 16, 2004, the Department of State (DOS) will eliminate crew list visas. This rule was first published December 13, 2002, and is now final on an interim basis.

The crew list visa enables crew persons to enter the U.S. on temporary bases as long as their names are listed on a crew manifest visaed by a consular officer. However, the crew list visa was originally intended to be utilized only as a temporary or emergency measure until individual visas could be issued to all crew persons.

The DOS is eliminating the crew list visa as part of its continued tightening of measures related to immigration and national security. According to the DOS: “by eliminating the crew list visa, the Department will ensure that each crewmember entering the United States will be required to complete the nonimmigrant visa application forms, submit a valid passport and undergo an interview and background checks.”

In addition, according to the Enhanced Border Security and Visa Entry Reform Act (2002), all visas issued after October 26, 2004 are required to have a biometric indicator. This requirement would in effect necessitate the elimination of the crew list visa.

USCIS ANNOUNCES H-2B PROCEDURES – REACHES CAP

Washington, D.C.– U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-2B petitions to meet this year’s congressionally mandated cap of 66,000 new workers. After March 9, 2004, USCIS will not accept any new H-2B petitions subject to the FY 2004 annual cap.

USCIS will use the following procedure for the remainder of FY 2004:

• USCIS will process all petitions received by the end of business on March 9, 2004.
• USCIS will return all petitions subject to the annual cap (along with the filing fee and, if applicable, the premium processing fee) that are filed after the end of business on March 9, 2004.
• Petitioners may re-submit or file new petitions when they have received labor certification approval for work to start on or after October 1, 2004.

Petitions for current H-2B workers do not count towards the congressionally mandated H-2B cap. Accordingly, USCIS will continue to process petitions filed to:

• Extend the stay of a current H-2B worker in the United States.
• Change the terms of employment for current H-2B workers.
• Allow current H-2B workers to change or add employers.

Source: U.S. Department of Homeland Security

ETA ANNOUNCES 2004 MINIMUM ADVERSE EFFECT WAGES

The Employment and Training Administration (ETA) of the Department of Labor (DOL) has announced the 2004 adverse effect wage rates for employers wishing to bring nonimmigrant alien workers for temporary or seasonal agricultural labor or services and logging (H-2A) in the United States. These wages may be affected or levied, based on whether the employer provides three meals a day for the employee, and whether there is a allowable travel subsistence reimbursement for the employee.

Adverse effect wages are the minimum wage rates that must be offered for positions described under the H-2A visa regulations. An employer may not receive approval for an H-2A worker to perform agricultural labor or services of a temporary or seasonal nature unless the employer has received an H-2A labor certification from the DOL. This labor certification must show that there are not enough U.S. workers able, willing and qualified to fill the proposed positions; and that the wages offered will not adversely affect the wages and working conditions of U.S. workers in the same types of positions.

These new rates are effective March 3, 2004, and are listed as follows:

State Adverse Effect Rate
   
Alabama $7.88
Arizona 7.54
Arkansas 7.38
California 8.50
Colorado 8.36
Connecticut 9.01
Delaware 8.52
Florida 8.18
Georgia 7.88
Hawaii 9.60
Idaho 7.69
Illinois 9.00
Indiana 9.00
Iowa 9.28
Kansas 8.83
Kentucky 7.63
Louisiana 7.38
Maine 9.01
Maryland 8.52
Massachusetts 9.01
Michigan 9.11
Minnesota 9.11
Mississippi 7.38
Missouri 9.28
Montana 7.69
Nebraska 8.83
Nevada 8.36
New Hampshire 9.01
New Jersey 8.52
New Mexico 7.54
New York 9.01
North Carolina 8.06
North Dakota 8.83
Ohio 9.00
Oklahoma 7.73
Oregon 8.73
Pennsylvania 8.52
Rhode Island 9.01
South Carolina 7.88
South Dakota 8.83
Tennessee 7.63
Texas 7.73
Utah 8.36
Vermont 9.01
Virginia 8.06
Washington 8.73
West Virginia 7.63
Wisconsin 9.11
Wyoming 7.69

For more information about adverse effect rates, please contact: William Carlson, Chief, Division of Foreign Labor Certification, U.S. Department of Labor, Room C-4318, 200 Constitution Avenue, NW., Washington, DC 20210. T: 202-693-3010.