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Backlog News-Breaking News
For those of you who have been anxious to know (and you know who you are) the Department of Labor PERM website at www.plc.doleta.gov now indicates that the Backlog will be eliminated by September 30, 2007.

Welcome to the first edition of the S&K Immigration Newsletter. This will give us the opportunity to provide you with monthly happenings which may be of interest to you. The subject matter of this monthly newsletter will vary depending upon what is of interest to us. Much of the content may be opinion. Therefore, do not take any action based upon what you read. Consult a qualified immigration attorney.

We begin the New Year eagerly anticipating comprehensive immigration reform legislation. Many of you listened to the President and were hoping for some sign, some clue of what lies ahead. As you know it is our belief that the entire system needs reform. Whatever the Congress does it must address both legal and illegal immigration.

The problems that we see as critical components are border security, the large number of illegal aliens currently in the United States contributing in a positive way to this country, families who are separated for years as a result of the numerical quota, the brain drain-highly qualified foreign nationals seeking jobs in other countries as a result of the cumbersome immigration system currently in place, H-1B quotas, immigrant visa quotas and a whole host of other issues.

It is expected that the legislative debate will begin sometime in February. We hope to keep you updated in the next several months as to the progress being made in this matter.

H-1B NEWS-YOU SNOOZE YOU LOSE

On August 12, 2005, the United States Citizenship and Immigration Services (USCIS) announced that it had reached the 65,000 H-1B cap for the 2006 fiscal year. Cap exemptions remained for individuals with a U.S. earned Master's Degree or higher until January 18, 2006, when the USCIS announced that the 20,000 cap-exempt slots had been filled.

At this time, individuals who wish to file for new H-1B classification may do so beginning April 1, 2006. The requested start date for employment in H-1B status must be October 1, 2006, the beginning of the 2007 fiscal year when 65,000 H-1B slots will become available.

Students who are currently employed using Optional Practical Training (OPT) and apply to change their F-1 status to H-1B on April 1 may continue to work until their OPT expires. In the past, USCIS has allowed students who's OPT expires more than 60 days prior to the October 1 start date to remain in the U.S. until their H-1B status begins. USCIS has given no indication that it will issue this extension for students this year. Students who's OPT expires before August 1, 2006 should plan accordingly when facing the possibility that they may have to return to their country and re-enter the U.S. in H-1B status October 1 due to the cap gap.

Individuals who will work for universities, nonprofit organizations related to universities, nonprofit research organizations, and H-1B transfers are not subject to the cap and may apply for or extend their H-1 status. However, H-1 transfers that are employed or were previously employed by a cap exempt employer and seek employment with a non-exempt employer may be subject to the cap.

PERM -A BLESSING AND A CURSE

Our experience has been that when it works, it works great. When it does not work it is a nightmare. Initially we have been receiving approvals in as little as nine days. Lately we have been receiving approvals for cases filed 120 days ago.

There have been a large number of denials reported for inconsequential items such as failure to have a complete address. The Department of Labor is apparently accepting Motions to Re-Open. However, there is no time frame for adjudication.

Some employers have never received e-mails from the Department of Labor after filing or the follow up phone calls and they report receiving denials for failure to respond.

There are reports of employers not requiring experience in the job offered and only requiring experience in an alternate occupation and receiving denials. The Department of Labor reportedly wants the magic language in the application that the employer will accept any applicant with any suitable combination of education, training and/ or experience.

There have been denials reported because the application indicates that the foreign national has experience in the job offered. However a denial is issued because the job title of the experience is not the same as the job title of the filing employer even when the duties are substantially the same.

The Department of Labor has been working to correct many of these items. However, some employers have been forced to recruit two times for the same position. Query, what happens when you are relying on the priority date for a potential seventh year extension?

Even if you receive a PERM approval, you still need to deal with the retrogression issue.

VISA RETROGRESSION- A NIGHTMARE

Employment bases visa retrogression occurred on January 1, 2005 . Some estimate it may now take 4-12 years to complete the green card process. This results in difficulty in changing jobs, no portability until I-485 filed, spouses cannot obtain employment authorization and children age out. Because of the cap on H-1B visas and the length of time it takes to now get your green card, many scientists, mathematicians, engineers and other highly skilled workers are opting for other countries. According to some estimates 90 of all the high tech workers will be living in Asia as soon as five years from now.

There are currently some proposals for a legislative fix. This must be a part of the immigration reform bill.

COURT CASES OF INTEREST

In re Minor Humberto PEREZ VARGAS, 23 I & N Dec 829 (BIA 2005) was a Board of Immigration Appeal case decided on October 28, 2005 . The issue in the case was whether an Immigration Judge has jurisdiction to apply 204(j) of the INA in a case. 204(j) is the section that allows portability after an I-485 has been pending for 180 days.

The Board held that original jurisdiction over employment based visa petitions lies with DHS following the issuance of the labor certification. Therefore the real determination according to the Court is the determination of whether the validity of the alien's employment based visa Petition is preserved under 204(j) after the alien changes employers.

S & K Happenings

We recently hired Mathew Archeambault, an experienced attorney from the Miami area. One of Matt's claim to fame is that he is a member of the legal team representing Luis Posada Carriles. Luis Posada Carriles is an anti-Castro Cuban émigré and former CIA backed operative who is alleged to been involved in numerous shall we say bad things.

Matt enjoys the tough cases. He speaks Spanish and he and his wife are expecting their first child in May. Matt will be writing some articles in our newsletter.

We will be back to you again in March.

The information contained in our newsletter is not meant as legal advice. The information is of a general nature and does not create an attorney client relationship. Please consult a qualified attorney and discuss the specific facts of your case before taking any action.