FLYNN & CLARK, P.C.
STEVEN A. CLARK

Headlines:

Ø      1. Immigration Reform Action Stalls in Congress; 'SKIL' Bill Introduced -  The Senate has failed to pass any immigration reform proposals, including legislation to establish a guestworker program.  However, as we go to press the Senate is actively debating the issue and with the President’s address of May 15, it is impossible to predict the outcome.

Ø      2. Pace of Use of H-1B Numbers for FY 2007 Uncertain So Far -  H-1B numbers are being used up more slowly so far than many expected for FY 2007. Early filing is still recommended because the data is understated

Ø 3. State Dept. Proposes to Restrict Program for J Trainees -  The State Dept. has issued a proposed rule to restrict J-1 training programs to recent graduates with foreign degrees and 3 years experience. This would curtail employer’s ability to use the J-1 as an alternative when H-1b visas are unavailable.

Ø      4. ICE Steps Up Enforcement, Arresting Managers and Over a Thousand Employees of Pallet Company - ICE agents arrested several managers of IFCO Systems North America, Inc. (IFCO), the largest pallet services company in the United States, and many unauthorized workers.

Ø      5. DHS Wants to Mine SSA Data - In an effort to identify undocumented workers and their employers, the DHS is seeking authority from Congress to mine Social Security Administration databases for information.

Ø      6. German Emergency/Temporary Passports No Longer Valid for Travel to U.S. Under VWP - As of May 1, 2006, German emergency and temporary passports will no longer be valid for travel to the U.S. under the Visa Waiver Program.

Ø      7. Temporary Protected Status Extended for Honduras, Nicaragua - The TPS designation for Honduras and Nicaragua has been extended until July 5, 2007.

Ø      8. State Dept. Reports on China, India Visa Availability, "Other Worker" Category Retrogression for May - The State Department has retrogressed the employment third preference "Other Worker" cut-off date.

Ø      9. USCIS Establishes Records Verification Directorate - USCIS has established a new National Security and Records Verification Directorate.

Ø      10. GAO Recommends Measures to Reduce Visa Wait Times at Consular Posts -   The GAO is calling for a comprehensive assessment of staffing requirements for visa operations worldwide.

Ø    11. Recent Flynn & Clark News   -- Steven A. Clark appeared at a Massachusetts Continuing Legal Education seminar held in Boston on May 12 and is also scheduled to be a panelist in the 2006 Annual Immigration Conference finale on PERM Labor Certification's in San Antonio, Texas in June

Also in this issue:

Recent Articles & News from ABIL Members

Links

Details...

1. Immigration Reform Action Stalls in Congress; 'SKIL' Bill Introduced

As of press time, the Senate failed to pass any of the sweeping immigration reform proposals we reported on last month, including legislation to establish a guestworker program, although action remains possible this session.  Any legalization program that is enacted will put demands on U.S. Citizenship and Immigration Services, generating backlogs.  If such a provision becomes law, it will be important to file for permanent residence before such backlogs develop. 

It is unclear whether further progress will be possible this session on comprehensive immigration reform, although Senate Majority Leader Bill Frist (R-Tenn.) said he wants the Senate to pass such legislation by Memorial Day.   The President also stated he wanted a bill his month in his address of May 15.  Such legislation then would have to be reconciled with the House of Representatives version in conference committee, and passed by both houses.  "It would be a tough conference, candidly, with the House, but we were able to work through the Patriot Act although there were big disagreements," Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, reportedly said on CNN's "Late Edition."

On April 24, President George W. Bush gave a speech in California on immigration reform.  Once again, he supported a guestworker program, among other measures.  Voice of America quoted President Bush as noting that: "[i]t is really hard to enforce the border with people sneaking across to take jobs.  Doesn't it make sense to have a rational temporary worker plan that says you don't need to sneak across the border?"  He said in his radio address on April 22 that "[i]n the coming weeks, I'll press Congress to pass comprehensive immigration reform that secures our border, enforces our laws, meets the needs of our economy, and upholds our highest ideals."  The Associated Press reported on April 26 that at a recent White House meeting convened to help push immigration reform action in Congress, President Bush said he believes undocumented workers should have a chance to obtain legal status without leaving the country but does not endorse such a measure publicly because of opposition from House Republicans.  "I understand that he wants to maintain latitude as he heads into negotiations with the House," said Sen. John McCain (R-Ariz.), who supports that proposal.  However, in his May 15 address, President Bush openly endorsed a legalization program. The situation remains fluid and impossible to predict.

2. Pace of Use of H-1B Numbers for FY 2007 Uncertain So Far

As noted in last month's issue, U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B filings under the fiscal year 2007 cap beginning on April 1, 2006.  H-1B numbers are being used up more slowly so far than many expected, although filing as early as possible is still recommended.  As of May 12, 2006, USCIS reported that only 12,713 standard H-1B numbers and only 4,638 advanced degree H-1Bs have been allocated   This reflects an increase over the usage rate last month (the annual limits are 98,200 and 20,000 respectively).  However, USCIS has had mailroom delays so a potentially large number of H-1B cases have been received but not opened and recorded. The figures do not reflect how many cases are in this part of the pipleline. It could be vast. For that reason we urge our clients to press forward with recruitment and filing to avoid an unpleasant surprise should USCIS announce the close of H-1B filings for the fiscal year much earlier than anyone could predict.

For more on proposed H-1B legislation, see the preceding article in this issue.

To monitor the count, see http://www.uscis.gov/graphics/services/tempbenefits/cap.htm.

3. State Dept. Proposes to Restrict Program for J Trainees

The Department of State is proposing to revise its training program regulations under the J nonimmigrant exchange visitor program to bar use of the program to those without foreign degrees related to the occupation, without three years experience in the occupation, who work less than 32 hours per week or perform 20% or more clerical duties.  They would also be required to demonstrate English language proficiency with a TOEFL score of 550 or higher. The sponsor would have to provide a detailed structured training plan before the trainee applies for a visa at the consular office abroad. The plan would be expected to distinguish between on-the-job training and employment and balance the contribution to the organization with learning beyond what is normally acquired in the workplace. The training can not duplicate any prior experience. The training is to include structured activity, classroom training, seminars, rotation through various departments, on-the-job training and attendance at conferences as appropriate. Instead of the standard 18 month maximum duration, trainees in agriculture, hospitality and tourism industries would be limited to 12 months.  The program must not involve child care or elder care or clinical or other kind of work that involves patient care or contact including providing therapy, medication or other clinical or medical care (e.g., sports or physical therapy, psychological counseling, nursing, dentistry, social work, speech therapy or early childhood education.) 

While some of these restrictions have already been in place, clearly the requirement to start within 12 months of graduation, yet have three years experience in the field will significantly curtail the opportunities for use of J trainees and program sponsors will face administrative hurdles including the need to have an interview abroad.

A new 12-month "intern" program is proposed to permit recent foreign graduates of degree-granting post-secondary accredited educational institutions to come to the United States to pursue work-based learning experiences in the fields in which they received their degrees.  This would help some of those impacted by the requirement of three year’s experience for J Trainees, but only a few of them.   They have to begin the program within twelve months of graduation.  The foreign degree requirement would place even this intern program off limits to those with only US degrees.

The Department will accept comments on the proposed regulation from the public until June 6, 2006.  Comments should be sent to the office designated in the supplementary information to the proposed rule, which is available at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-4946.pdf

4. ICE Steps Up Enforcement, Arresting Managers and Over a Thousand Employees of Pallet Company

U.S. Immigration and Customs Enforcement (ICE) agents arrested seven current and former managers of IFCO Systems North America, Inc. (IFCO), the largest pallet services company in the United States headquartered in Houston, Texas, pursuant to criminal complaints issued on April 19, 2006. The managers were charged with conspiring to transport, harbor, and encourage and induce unauthorized workers to reside in the United States for commercial advantage and private financial gain. The conspiracy charge carries a penalty of up to 10 years in prison and a fine of up to $250,000 for each worker with respect to whom the violation takes place, ICE explained. Two other IFCO employees were arrested on criminal charges relating to fraudulent documents.

In addition to the criminal arrests, ICE agents conducted “consent” searches or executed criminal search warrants at more than 40 IFCO plants and related locations in 26 states that resulted in the apprehension of approximately 1,187 undocumented IFCO employees. 

According to a government affidavit filed in the Northern District of New York, the investigation began in February 2005 when ICE agents received information that IFCO workers in Guilderland, New York, were witnessed ripping up their W-2 tax forms and that an IFCO assistant general manager had explained that these workers were undocumented, had fake Social Security cards, and did not intend to file tax returns.

Subsequent investigation revealed that IFCO officials transported undocumented employees to and from work, paid rent for their housing, and deducted money from their monthly paychecks to cover these expenses. Former IFCO employees also said it was common practice for IFCO to hire workers who lacked Social Security cards or produced bogus identification cards.

The affidavit also alleges that IFCO officials knowingly hired an undocumented worker who was an informant for ICE. In numerous recorded conversations, IFCO officials reimbursed this person for obtaining fraudulent identity documents for other undocumented employees, used the person to recruit other unauthorized workers, and advised the person and other undocumented employees on how to avoid law enforcement detection, the affidavit alleges.

Meanwhile, DHS Assistant Secretary Julie Myers' op-ed, "Expect More Arrests," was published in USA Today on April 26, 2006.  Ms. Myers said DHS is bolstering its criminal investigations against employers who hire unauthorized workers. For many employers, she said fines had become just another cost of doing business.  "More robust criminal cases against unprincipled employers are a much more effective deterrent than fines.  The prospect of 10 years in federal prison or a federal forfeiture carries much sharper teeth. We believe this is the future of worksite enforcement," Ms. Myers said.

Additional information on the case is available at http://www.dhs.gov/dhspublic/display?content=5547.

5. DHS Wants to Mine SSA Data

The Department of Homeland Security (DHS), in an effort to identify undocumented workers and their employers, is seeking authority from Congress to mine Social Security Administration databases for information on Social Security numbers that do not match names, GovExec.com reported on April 20, 2006.  "One of the key challenges that supports illegal migration is abuse of our Social Security system and the Social Security document," DHS Secretary Michael Chertoff said at a news conference. "We've been urging Congress to pass legislation, now before the Senate, that would grant the Department of Homeland Security some carefully crafted access to Social Security no-match data so we can detect those employers who are systematically employing workers, despite the fact that there's an obvious mismatch between the names and the Social Security numbers in question."

6. German Emergency/Temporary Passports No Longer Valid for Travel to U.S. Under VWP

As of May 1, 2006, German emergency and temporary passports are no longer be valid for travel to the U.S. under the Visa Waiver Program, the U.S. Embassy in Germany reported.  Holders of these passports who intend to travel to or through the United States must either obtain a regular German passport for Visa Waiver Program travel, or obtain a visa.

Additional information is available at http://www.usembassy.de/germany/visa/vwp_faqs.html and http://germany.usembassy.gov/germany/temporary_passports.html.

7. Temporary Protected Status Extended for Honduras, Nicaragua

The temporary protected status (TPS) designation for Honduras and Nicaragua has been extended until July 5, 2007.  Given the large numbers affected, many re-registrants may not receive an extension sticker or new employment authorization document (EAD) until after their current EADs expire on July 5, 2006.  Accordingly, the validity of EADs issued under the TPS designations has been extended automatically until January 5, 2007.  The notices explain how TPS beneficiaries and their employers may determine which EADs are automatically extended.  The 60-day re-registration period began on April 1, 2006, and will remain in effect until June 1, 2006.  To facilitate processing, applicants are strongly encouraged to file as soon as possible.

The notices are available at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-4685.pdf (Honduras) and http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-4686.pdf (Nicaragua).

8. State Dept. Reports on China, India Visa Availability, "Other Worker" Category Retrogression for May

The Department of State noted in its Visa Bulletin for May 2006 that continued heavy demand for visa numbers (particularly for adjustment of status cases at U.S. Citizenship and Immigration Services offices) has brought allocations close to the 5,000 annual numerical limit for "other worker" green cards in the employment-based third preference category.  The Department said it has been necessary as a result to retrogress the employment third preference "Other Worker" cut-off date in an effort to limit future demand.  If the annual limit is reached, it will become necessary to make the category unavailable for the remaining months of the fiscal year, the Department said.

The Department also noted that there has been a significant amount of forward movement in the China-mainland born and India employment first and second preference cut-off dates during recent months.  This was done in an effort to generate demand for numbers. It cannot be assumed, the Department warned, that these cut-off dates will continue to advance at this pace during the remainder of the fiscal year.  "It remains to be seen how heavy the demand for visa numbers by applicants from those areas will be in the coming months," the Department said.

The latest Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_2868.html.

9. USCIS Establishes Records Verification Directorate

U.S. Citizenship and Immigration Services (USCIS) announced on April 10, 2006, that it has established a new National Security and Records Verification Directorate.  This new Directorate is made up of two divisions formerly embedded within the Domestic Operations Directorate, the Fraud Detection and National Security (FDNS) Division and the Records Division, along with a new Verifications Division.

FDNS functions as USCIS’s law enforcement liaison and handles the agency's intelligence work, fraud detection and, as part of the new Directorate, the national security cases previously handled in Domestic Operations.  The Records Division handles the storage and retrieval of close to 100 million immigration records, virtually all paper-based.  The new Verification Division now encompasses the Basic Pilot and SAVE (Systematic Alien Verification for Entitlements) volunteer employment and status verification programs, which allows participating employers to confirm the employment eligibility of newly hired employees.

The National Security and Records Verification Directorate will be led by Acting Associate Director Janis Sposato, a 31-year veteran of the Department of Justice and the Department of Homeland Security, and the former Deputy Associate Director of the Domestic Operations Directorate.

10. GAO Recommends Measures to Reduce Visa Wait Times at Consular Posts

The U.S. Government Accountability Office (GAO)'s new report, Border Security: Reassessment of Consular Resource Requirements Could Help Address Visa Delays, notes that applicants have faced extensive wait times at some consular posts.  New post-9/11 security requirements have increased delays.  Additional factors, the GAO said, may include a resurgence in visa demands and facility limitations at some posts, as well as a lack of needed personnel.  Although the Department of State has increased hiring of consular officers, the GAO called for a comprehensive assessment of staffing requirements for visa operations worldwide.  The report includes statistics on maximum wait times for temporary business and tourism visa interview appointments; the longest is at the post in Chennai, India, with a maximum wait time of 168 days.  The full text of the report is available at http://www.gao.gov/new.items/d06542t.pdf.

11. Recent Flynn & Clark News - Academy of Business Immigration Lawyers fellow Steven A. Clark, of Flynn & Clark, P.C. appeared at a Massachusetts Continuing Legal Education seminar held in Boston on May 12 on “Non-PERM Employment-Based Alternatives.”  Steven Clark is also scheduled to be a panelist in the 2006 Annual Immigration Conference finale on PERM Labor Certification's in San Antonio, Texas in June

Recent Articles & News from ABIL Members

ABIL co-sponsors seminar on labor certification.  The Academy of Business Immigration Lawyers co-sponsored a seminar with the Association of the Bar of the City of New York on "Labor Certification Fundamentals and Best Practice Under the New PERM System to Benefit Your Client and Your Immigration Practice," on Wednesday and Thursday, May 10-11, 2006, at the New York City Bar, 42 West 44^th Street.  Cyrus D. Mehta was program chair; moderators include H. Ronald Klasko and Stephen Yale-Loehr.  Among the faculty are ABIL fellows Charles H. Kuck, Edward R. Litwin, Angelo A. Paparelli and Steven Clark. 

Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times and case status online: https://egov.immigration.gov/cris/jsps/index.jsp

Department of Labor processing times and information on backlogs: http://www.ows.doleta.gov/foreign/times.asp

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

FLYNN & CLARK, P.C. provides a full range of inbound as well as outbound immigration legal services for United States and foreign companies under the leadership of Steven Clark, Past President of the American Immigration Lawyers’ Association (AILA) which has over 9000 members worldwide. The Immigration Update provides periodic alerts about noteworthy developments in immigration affecting the business community. It is provided as a service of the Firm regarding legal developments; it is not a substitute for legal counseling and may constitute advertising material in some jurisdictions. If you have questions about the information contained in the Immigration Update or would like to know more about our Immigration services and nationwide visa processing capabilities, please visit our website, www.flynnclark.com or contact Darlene Dinardo at ddinardo@flynnclark.com.

Steven A. Clark is a Fellow of  The Academy of Business Immigration Lawyers (ABIL). ABIL  is the think tank of premier immigration counsel. ABIL provides to human resource professionals, corporate counsel, in-house immigration managers, and other immigration decision makers access to a coalition of U.S. business immigration attorneys who have a demonstrated history of client service and a dedication to providing the best and most effective solutions to your immigration concerns. Each of ABIL's Founding Fellows is committed to the highest standards of professionalism, to maintaining the most up-to-date knowledge in the field of U.S. immigration law, and to providing the kind of accessibility you expect from the best in the field.

Disclaimer/Reminder

This email does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Copyright © 2006 Academy of Business Immigration Lawyers. All rights reserved.