DOL Drafts New Rule Regarding Processing of Permanent Labor Certification Applications

A final rule – the PERM regulation — to change the process for filing and processing labor certification applications for permanent employment-based visas has been written. The rule is awaiting publication following clearance by the Office of Management and Budget (OMB).

If the PERM regulation is published as it is currently written, State Workforce Agencies (SWAs) will no longer accept labor certification applications. All other processes related to SWAs, however, will remain the same during FY 2005.

The Department of Labor (DOL) believes this rule will be published prior to the end of 2004 and that the program will be in operation within 60 days of publication. Until this point, SWAs will continue to accept labor certification applications from employers.

If, for some reason, the PERM regulation is not published, the DOL has developed a contingency plan. In this contingency plan, the role of SWAs will nevertheless change in FY 2005. Processing of permanent labor certification applications will still be shifted on January 1, 2005 from SWAs to one of two centralized, federal locations. While SWAs would accept applications from employers, the processing of these applications would take place elsewhere.

In order to deal with the backlog of cases, the Employment and Training Administration (ETA) has created two backlog elimination centers (Philadelphia and Dallas) and certain federal staff members have been moved from regional offices to these two central offices. Addresses and additional information about these two offices will be published by the ETA in the near future. ETA believes these two offices will most likely deal with the backlog issue within two years; after that point, the two offices will be closed.

By the end of 2004, two national processing centers should be opened and fully operational. These centers, in Atlanta and Chicago, will process all permanent labor certification applications, with the exception of those backlogged cases forwarded to Philadelphia and Dallas.

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US-VISIT to be Pilot Tested in Three Land Ports of Entry

The Department of Homeland Security (DHS) will start testing its US-VISIT program at a series of land ports of entry this November. This testing will initially begin at land ports of entry in Douglas, Arizona, Port Huron, Michigan and Laredo, Texas. By December 31, 2004 the US-VISIT program will be deployed in the 50 busiest land ports of entry in the U.S.

At these land ports of entry, two index fingerscans and a digital photograph will be taken of visitors referred to secondary inspection because they are traveling to the U.S. using a passport or visa. This program will also expedite the I-94 submission process. Visitors referred to secondary inspection will not be required to manually complete this form. The form will be electronically filled out when the visitor’s travel documents are scanned by the inspector(s).

“US-VISIT has met every single one of its commitments and deadlines successfully to date. US-VISIT has proved itself at our airports and seaports, and I can assure you that as we move into the next phase with land borders, our entire team is focused intensely on maintaining that high standard of performance. US-VISIT will not deploy an untested system,” said Under Secretary for Border and Transportation Security Asa Hutchinson.

According to the DHS, the goals of the US-VISIT program are to enhance the security of the U.S.’s citizens and visitors; facilitate legitimate travel and trade; ensure the integrity of the U.S. immigration system; and protect the privacy of visitors to the U.S.

House Passes Anti-Immigration Legislation

Last week the House of Representatives debated and voted to pass H.R. 10, a bill that includes many anti-immigration amendments. The bill, which passed by a broad margin contains provisions that will make immigration more difficult.

These provisions include the following:

A major expansion of expedited removal;
More limitations for asylum eligibility;
A ban on accepting consular identification cards;
Limitations on issuing driver’s licenses to noncitizens;
Removal of habeas review for many final removal orders;
New mandatory detention provisions;
Elimination of temporary stays prior to judicial review of removal orders; and
Giving the USCIS the authorization to remove people to countries without functioning governments.

The differences between this bill and a bi-partisan Senate bill will next need to be resolved prior to further action.

USCIS ANNOUNCES NEW H-1B PROCEDURES – REACHES CAP

Washington, D.C.– U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions to meet the congressionally-mandated cap for fiscal year 2005. Congress has set an annual H-1B cap of 65,000 of which 6,800 are set aside for the H-1B1 program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements. The total H-1B cap number available for FY 2005 is therefore 58,200. USCIS has factored into its count of petitions subject to the FY05 cap the number of Chile/Singapore set-asides that were unused in FY2004 and any other cases that can be counted against the previous fiscal year’s H-1B cap rather than the FY 2005 cap. USCIS has received enough petitions to reach the limit for FY 2005.

After today, USCIS will not accept any new H-1B petitions that are subject to the FY 2005 annual cap.

For the remainder of FY 2005, USCIS will follow the procedures set forth in the notice published on February 25, 2004 in the Federal Register at 69 FR 8675 to address the cap reached during FY 2004. Those procedures include:

· USCIS will process all petitions filed for first-time employment received by the end of business today.
· USCIS will return all petitions for first-time employment subject to the annual cap received after the end of business today.
· Returned petitions will be accompanied by the filing fee.
· Petitioners may re-submit their petitions when H-1B visas become available for FY 2006.
· The earliest date a petitioner may file a petition requesting FY 2006 H-1B employment with an employment start date of October 1, 2005, would be April 1, 2005.

USCIS plans to provide further details on these procedures in a new notice that will be published in the Federal Register shortly.
Petitions for current H-1B workers do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

· Extend the amount of time a current H-1B worker may remain in the United States
· Change the terms of employment for current H-1B workers
· Allow current H-1B workers to change employers
· Allow current H-1B workers to work concurrently in a second H-1B position

USCIS also notes that petitions for new H-1B employment are not subject to the annual cap if the alien will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization.

DOS Will Soon Accept Applications for the 2006 Visa Lottery

The Department of State has announced it will accept applications for the 2006 Diversity Visa (DV) Lottery between November 5, 2004 and January 7, 2005. Individuals who wish to apply for the DV Lottery are required to register electronically through the following web address: http://www.dvlottery.state.gov during this apportioned registration period. Paper applications will not be accepted.

The annual DV program provides permanent residence visas to individuals who meet a few general requirements. The visas are chosen by a computer-generated random lottery drawing. These visas are distributed among six geographic regions; the majority of DV visas go to areas with lower rates of immigration to the U.S. No visas are allotted to nations that have sent more than 50,000 immigrants to the U.S. over the past five years.

For the 2006 DV program, individuals from the following nations are NOT eligible to apply, because their nations have sent more than 50,000 immigrants to the U.S. over the past five years:

Canada, China (Mainland-Born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Russia, South Korea, United Kingdom (Except Northern Ireland) And Its Dependent Territories, And Vietnam. Persons Born In Hong Kong Sar, Macau Sar And Taiwan Are Eligible.