Immigration at the Forefront of Debates in the Senate: No Final Bill Yet

The last week has seen a series of heated debates in the U.S. Senate regarding major changes to the U.S. immigration system. These changes may make lasting changes to current U.S. policy that would enable numerous individuals to seek gainful employment in the U.S. In addition, proposed changes would effect the enforcement of immigration law in the U.S. These debates surround the Kennedy/McCain Bill, that was proposed by the U.S. Senate Judiciary Committee in late March of this year which contains numerous measures that are favorable to immigration and immigrants.

It is important to note, however, that these proposed measures are still at an early stage in the legislative process. The amendments will first go through a series of discussions on the Senate floor, in which the Senate as a whole will decide which (if any) of these amendments will be included in the final version of the Kennedy/McCain Bill. If the bill then passes the Senate, it will need to be processed through the House of Representatives. The House has already passed an immigration bill that was focused only on enforcement of issues (and was quite anti-immigrant in content). A House Conference Committee will have to be convened to discuss the Senate’s Bill. The House and the Senate will then need to approve the finalized bill before it can be sent to the President to be signed into law.

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USCIS ISSUES H-1B FILING GUIDANCE

Employers may begin filing petitions for FY 2007 on April 1st

Washington, D.C.– USCIS will begin accepting filings for the FY2007 H-1B cap on April 1, 2006. In anticipation of this event, USCIS is reminding the public of important regulatory requirements. H-1B petitioners should keep this emphasis in mind as they prepare petitions in order to avoid delays in processing and possible Requests For Evidence (RFE).

8 CFR 214.2(h)(2)(B) requires that petitioners provide a detailed itinerary of the dates and places where work will be performed if those services will be provided in more than one location. For example, a labor contractor or consultant who hires H-1B workers to work at client sites must provide in advance an itinerary with dates and places where the worker will perform that work.

In addition, 8 CFR 214.1(c)(4) requires that an applicant for extension of status have maintained his or her nonimmigrant status. In situations in which an H-1B worker is changing to an employer other than the one for which the initial H-1B petition was approved, USCIS will require that the worker changing employers demonstrate that he or she actually did perform work for the original petitioning employer for a significant length of time. In situations in which the H-1B worker is processing abroad, USCIS will work closely with the Department of State to ensure that this same level of integrity is applied to consular processed H-1Bs.

Newly Proposed Immigration Bill Would Provide for 115,000 H-1B Visas Per Year

Buried within a massive immigration bill proposed by the Senate are a few provisions that would double the number of visas available for H-1B skilled temporary workers to 115,000 per year. In addition, the provisions would raise that cap an additional 20 percent each year.

These provisions, supported strongly by immigration lawyers, Silicon Valley tech companies and numerous senators, both Republican and Democrat, are especially relevant in a global economy where the U.S. is competing against numerous nations. Many are concerned that this country may lose its lead in technology and re-opening the doors to these skilled experts in science, math, technology and engineering would strengthen the Americans’ position in the global economy.

In the heyday of the dot com boom, H-1B visas were essential components of the growing IT economy and maxed out at nearly 200,000 visas per year. However, the combination of the bust and post-September 11 changes in U.S. perceptions of internationals led to a massive decrease in proffered H-1B visas; the current yearly cap is 65,000.

The newly proposed provisions are part of a highly controversial 300 page bill proposed by Arlen Specter (R-PA), the chairman of the Senate Judiciary Committee. The bill is currently being rewritten by the committee; committee members hope it will be put to a Senate vote by the end of this month.

Other relevant provisions in the bill include a new F-4 visa category for students engaged in advanced degrees in science, math, technology or engineering. These F-4 students would be able to receive permanent residence if they find a job in their specialty and pay a $1,000 fee that would support scholarships and training for U.S. workers.

Senate Deeply Divided Over Immigration Issues

The Senate began its debate on recently proposed overhauls of immigration laws yesterday and, from the start, senators were deeply divided on the core issues.

Members of the Senate Judiciary Committee voiced widely disparate views on issues such as the guest worker program, enforcement of border security management of the roughly 11 million illegal immigrants currently in the U.S.

Senator Arlen Specter (R-PA), the lead representative on the committee stated that he saw “virtually no agreement on anything. Specter’s bill, which provides for heavy enforcement of the borders is considered controversial on both sides of the spectrum. In Specter’s proposal, workers would be allowed to come to the U.S. for up to six years, but would not be able to apply for citizenship.

A competing bill, introduced by Senators John McCain (R-AZ) and Edward Kennedy (D-MA) would provide for a guest worker program that, alternatively, would allow such workers to eventually gain citizenship. In addition the McCain-Kennedy bill would create a path by which the 11 million undocumented workers currently in the U.S. could obtain citizenship as long as they met particular requirements and paid all fines and back taxes.

“The choice is to legalize them or leave them in the shadows,” said Kennedy of the illegal immigrants. Without a possibility of citizenship, Kennedy said, there would be no incentive for illegal immigrants to come out of the shadows. “Only legalizing them will work,” said Kennedy.

But Senator Charles Grassley (R-IA) disagreed with Kennedy’s theory. “If we go forward with a guest worker program, we’ll have a much worse problem,” said Grassley. Such a program, according to Grassley, would only provide incentive for more undocumented immigrants to enter the U.S. and add to the burden of already struggling government agencies and programs.

Diane Feinstein (D-CA) proposed a more simple and modified version of the guest worker program, which would provide 300,000 jobs a year for three years for the agriculture industry. However, many other Senators voiced their opinion that even a limited program would be unwanted and, instead, stated that they were interested in first securing the nation’s borders.

Clearly, this debate will be heated and long-lasting. Hopefully, the citizens of this nation will share their opinions with their Senators so that the national representatives can truly represent the desires of their populace. And hopefully, the Senate will find a reasonable and supportive compromise to this essential issue.

Suggested Method to Request Duplicate Approved Labor Certification

The American Immigration Lawyers’ Association (AILA) recently released suggestions for requesting duplicate approved labor certifications for I-140 filings. Applicants and their representatives should, when requesting these duplicates, include on the top of the I-140 document a cover sheet (ideally on colored paper) that provides the following information:

1. Attorney name;
2. Petitioner’s name;
3. Beneficiary’s name;
4. ETA case number;
5. Priority Date;
6. Which form the case was filed on (ETA-750 or ETA-9089);
7. A print screen showing that the case has been certified.
8. The reason for requesting a duplicate certificate

Please note that the USCIS is not able to establish a specific priority date until they receive the duplicate approved labor certification from the Department of Labor. Because of this, concurrent filing is not permitted in these instances. Individuals who do file concurrently will have both the I-140 petition and the I-485 application rejected.