PERM REGULATIONS: HERE THEY COME !!

On July 21, 2004, the Department of Labor announced a backlog reduction plan which will allow a National Certifying Officer, (NCO) to direct a State Workforce Agency (SWA) to transfer a pending labor certification application to a centralized processing facility. Two of these processing centers are being established, one of which is here in Philadelphia. It is too early to determine what the net affect of this change will be.

Many of you have heard about the new PERM regulations. You have been told that once implemented the average processing time for applications will be reduced to six weeks!!
HALLELUJAH!!!

These regulations have been coming for as long as I can remember. The proposed regulations were actually published in May 2002 and the latest word is that we will have them by years end. Do we really want them?

The answer seems to be no. We all hate the backlog and the fact that it takes so long to process an application. We all know that there are flaws in the process.

PERM is probably not the answer. The problem that we see is that the regulations do not reflect the realities in the business world. We encourage you to read the regulations at 67 Fed Reg. 30466-521 (May 6, 2002). We believe the problem lies in the fact that under PERM there appears to be a presumption that if a US worker meets the core requirements that the individual can perform the job duties of the position. There are provisions where it appears that employers would by bypass qualified foreign applicants for unqualified US workers who would receive some on the job training. There are limitations on the job descriptions and the qualifying experience.

In addition the 5% variance would be eliminated for the prevailing wages. We believe the potential problems raised by PERM are not worth the trade off of the expedited processing. Our strategy is to file as many applications as possible before PERM becomes effective in an effort to avoid these issues. Any cases that may benefit from PERM will be converted to PERM.

UNITED STATES SUPREME COURT DECLARES MANDATORY DETENTION OF CERTAIN FOREIGN NATIONALS CONSTITUTIONAL:

In what many immigration practitioners declare as an unexpected move, the United States Supreme Court has ruled that mandatory detention, without the opportunity for release on bond pending completion of removal proceedings, is constitutional as applied to foreign nationals convicted of certain criminal offenses. The decision may or may not overrule lower federal court decisions declaring the same law as unconstitutional. What actions the AICE may take in response to this decision is unclear, as well as, whether there shall be a new national policy relating to detention practices (such as detaining released individuals at their home or at their court hearings) or whether regional district offices may handle such detention practices differently. A final answer may still be months or years away.

TEMPORARY PROTECTED STATUS ISSUED FOR HONDURAS AND NICARAGUA

Effective May 05, 2003, TPS status for nationals of Nicaragua and Hondoras has been extended, the deadline for re-registration is July 07, 2003, with the expiration of this extension set for January 05, 2005. Other requirements may apply.

IMMIGRATION AND NATURALIZATION SERVICE, REORGANIZED INTO DEPARTMENT OF HOMELAND DEFENSE

As of March 1, 2003, the Immigration and Naturalization Service was transferred from the United States Department of Justice into the Department of Homeland Security under Secretary Tom Ridge. Under the Department of Homeland Security, the INS was divided into three compartments: the Bureau of Customs and Border Protection (BCBP); the Bureau of Immigration and Customs Enforcement (BICE); and, the Bureau of Citizenship and Immigration Services (BCIS). The BICE, referred to as AICE, is responsible for the investigative and enforcement functions of the former Immigration and Naturalization Service while the BCIS is responsible for the benefits granting and petition/application adjudication functions of the former Immigration and Naturalization Service. For the meantime, the public will continue using former INS forms and applications and all local and regional offices and personnel remain the same.

TO: Nationals or Citizens of Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman Qatar, Somalis, Tunisia, United Arab Emirates and Yemen (Group 1) and Armenia, Pakistan and Saudi Arabia (Group 2)

Nationals or citizens of the above referenced countries who are in non-immigrant status are required to appear before, and register with, and provide requested information to the Immigration and Naturalization Service. If you were last admitted to the United States prior to September 30, 2002 and you intend to remain in the United States after February 21, 2003 you must go to your local INS District office and register. The deadline for Group 1 is January 10, 2003. The deadline for Group 2 is February 21, 2003.

EXTENSION FOR H-1B'S BEYOND SIX YEARS

Ins has agreed that Section 106 of AC21 allows for an extension of an H-1B after six years as long as the alien is the beneficiary of any labor certification application or immigrant worker petition.

TPS EXTENDED FOR NICARAGUANS AND HONDURANS

The Department of Justice has granted a twelve-month extension of TPS for Hondurans and Nicaraguans. TPS will be in effect until July 5, 2003.

NEW LABOR CERTIFICATION REGULATIONS PROPOSED

The Department of Labor has published proposed regulations which appear to create an entirely new system for filing and processing labor certifications. These proposed regulation have been published in the Federal Register, May 6, 2002 (Volume 67, Number 87). Access the Federal Register at http://www.access.gpo.gov/nara.

SECURITY CHECKS WILL RESULT IN PROCESSING DELAYS

All files at the Vermont Service Center will now undergo a security clearance before a final decision is issued. It is anticipated that there may be at least a one-month delay in sending our approval notices.

BAD NEWS FOR STATUS VIOLATORS

According to the Vermont Service Center, the INS has begun to institute a zero tolerance policy. In the past examiners exercised discretion to consider the status violation de minimis and approved the change of status. This will apparently no longer be the case.

USE MIDDLE NAMES ON ALL INS PAPERWORK

All applications and petitions will now be screened for name checks through agency databases. This means all petitioners, applicants and beneficiaries who do not put their full names on the petitions may have significant processing delays.

WARNING FORALIENS TRAVELLING TO US CONSULATES IN CANADA OR MEXICO TO APPLY FOR A VISA

Beginning April 1, 2002, persons traveling to apply for a visa at a U.S. Consulate in Canada or Mexico will not be re-admitted to the United States by presenting an I-94 if an application is denied or delayed. The change is a result of the State Departments claimed need for more intensive screening of visa applicants. Visa re-validation by the State Department will continue to be available for H,L, O, P, E or I non-immigrants who previously had a visa stamped in their passport.

THE DEPARTMENT OF LABOR HAS PROVIDED GUIDANCE TO CERTIFYING OFFICERS REGARDING REDUCTION IN RECRUITMENTCASES

On March 20, 2002 the Chief of the Division of Foreign Labor Certification issued a Memo regarding evaluating Reduction in Recruitment Requests in an economic climate of worker layoffs. Employers should be prepared to provide information regarding whether any of the laid off workers meet the minimum requirements for the position contained in the labor certification. Click here to view memo.

INS COMMISSIONER CONSIDERING REGULATORY CHANGES TO ADMISSION PERIOD FOR VISITORS

On March 19, 2002, Commissioner James Ziegler testifying before Congress announced that INS is considering changes which would permit most visitors to be admitted for 30 days rather than the current period of 180 days.

NEW AFFIDAVIT OF SUPPORT LEGISLATION SIGNED INTO LAW

On March 13, 2002, President Bush signed the Family Sponsor Immigration Act of 2001 (HR 1892). This law allows other individuals to provide an Affidavit of Support when the original sponsor dies if the Attorney General determines for humanitarian reasons that the petition should not be revoked upon the death of the Petitioner.

INS ISSUES MEMORANDUM REGARDING ADMINISTRATIVE CLOSURE FOR TPS/DED ELIGIBLE ALIENS

On February 7, 2002, INS General Counsel issued a Memorandum which directs INS to agree to the administrative closure of removal proceedings for aliens who are prima facie eligible for temporary protection against removal. Click here for memo.

DOL ANNOUNCES H-1B TECHNICAL SKILLS TRAINING GRANTS

The Department of Labor (DOL) announces H-1B technical skills training grant awards. Over $23 million going to local communities to help with skills training. Grant recipients listed.

ADMINISTRATIVE CLOSURE FOR ALIENS ELIGIBLE FOR TPS AND/OR DED

In a February 7, 2002, memo to the field, the INS�s Deputy General Counsel instructs that the INS should agree to administratively close proceedings involving individuals who are prima facie eligible for temporary protected status (TPS) and/or deferred enforced departure (DED).

CHILD STATUS PROTECTION ACT READY FOR PRESIDENT�S SIGNATURE

On July 22, 2002 the House approved legislation which would assist certain minor children who lost eligibility for certain benefits as a result of INS processing delays. The Senate previously passed this bill. It is expected the President will sign this very soon.

INS ALLOWS FOR CONCURRENT FILING OF I-485 AND I-140

The Immigration and Naturalization Service has published an interim rule amending the regulations by allowing the Form I-485 to be filed concurrently with a Form I-140 when a visa is available. This rule was published in the Federal Register on July 31, 2002, Volume 167 No 147. Further the interim rule will allow those individuals with an I-140 pending as of the date of publication in the Federal Register to obtain the benefits of the concurrent filing.