2004 Highlights

Business Based Green Cards

The majority of business based green cards are based on first obtaining a Labor Certification (LC), required to prove that hiring the foreign national will not displace a U.S. worker. The Department of Labor (DOL) must certify that there are no U.S. workers with the minimally required skills who are ready, willing or able to accept the job offered. The LC process which has always been slow was nearly paralyzed by an estimated 236,000 filings on or immediately before April 30, 2001, the final day to secure benefits under the old INS Section 245(i). (Previously, filings averaged 100,000 per year.) Since then, the DOL has been working to implement a "radical" new system to reduce the backlogs: Program Electronic Review Management, (PERM). While the government still has not released a final "official" version of PERM, we have received information that raises substantial concerns.

The government has just filed an interim final rule that will take effect August 20, 2004 that will allow a centralized National Certifying Officer to both accept new cases as well as to transfer pending cases to a centralized processing facility. This centralized processing is doubtless the first step in implementing PERM. The promise of expedited processing may sound like a godsend to the many people who have suffered literally years of delay under the current system. However, many others have grave reservations as to exactly how the government will achieve their stated goal of reducing the audited backlog of over 330,000 pending cases.

A centralized national service has the potential to achieve significant efficiencies through economies of scale. However one predicted change will be the elimination of "special requirements." Applicants must list the minimum skills / education / training required for someone to do that job. The government has developed "standard" guidelines that are often too simplistic to adequately meet an employer's needs. Eliminating any opportunity whatsoever to demonstrate a critical skill needed to do the job risks having the application denied when in fact the U.S. applicant is not properly qualified and cannot do the job. Current law allows us to demonstrate an employer's "special" needs, that justify requiring the beneficiary's special skills, allowing us to lawfully reject an unqualified U.S. applicant. Restricting minimum requirements to only the (limited) guidelines developed by the government will undoubtedly expedite processing times, but it will also mean that truly qualified individuals will have their applications denied without any opportunity to justify why the skills they have are legitimately required.

Another change that I believe will be devastating is one that will allow the Certifying Officer to deny an application if, in the opinion of the officer a U.S. applicant "could be trained" to do the job in a "reasonable" amount of time!!!! I have not seen anything more potentially damaging to employment based cases in nearly 30 years of practice. I remember the frustration of explaining a company's need for computer programmers when the government's primary reference was a thick book called the Dictionary of Occupational Titles that was last revised before the computer chip had been invented! How much more difficult will it now be when the legal standard is simply the "opinion" of a government official that a U.S. worker can be trained to do the job in question in a "reasonable" amount of time? I welcome faster more efficient processing, (even though this may not always be in the best interest of my employer / petitioner clients,) but at what cost? I fear that many qualified applicants will be wrongfully denied green cards. One way to avoid these new rules will be to quickly file now for LC. We are assured that cases filed under the old law will be processed under the old law, unless they request processing under the new law.

H-1B VISA CAP

The H-1B visa is the most frequently used employment based non-immigrant visa to allow one to live and work in the U.S. during the time required to process a green card. This is the only non-immigrant visa with a numerical cap. The cap is currently set at 65,000 new H-1B visas (it does not apply to extensions) per year, beginning on October 1 of each year. As most people know, Citizenship and Immigration Services (CIS) claimed that the cap was reached this year on February 18, 2004. While there are still questions as to the accuracy of the count, the fact remains that no new applications were approved beyond that date. CIS began accepting new applications for 2004 - 2005 on April 1, 2004, six months prior to the start date. In spite of dire predictions that all 65,000 visas would be assigned before October 1, CIS advises us that they have only received a little over 16,000 applications thus far. While we will certainly reach October 1, 2004, it would be prudent to file sooner rather than later as it is almost a certainty that we will again run out of H-1B visas.

U.S. EMBASSY In New Delhi Announces Changes

Two significant changes have been announced by the U.S. Embassy in New Delhi. The first is the discontinuance the use of "drop boxes" for all posts in India by July 20, 2004. This means that all applicants for non-immigrant visas must appear in person to provide fingerprints. The only exceptions will be for those persons seeking diplomatic visas and applicants who are under the age of 14 or over the age of 79. This is being done in anticipation of the October 26, 2004 deadline for all consular posts to collect biometric identifiers.

The second major change, while not strictly business based is noted because of the potential for disruptive hardship it will impose. U.S. citizens seeking to directly petition for a spouse must now prove that they have been physically present in India for at least 60 days prior to filing. If they are unable to do this, then the petition will have to be filed with the appropriate processing center in the U.S., which will likely add more than one year to the processing time. The alternative will be to file for a (recently enacted) K-3 visa that allows a spouse to enter the U.S. while the application is being processed.