Monday, January 31, 2005


Sensenbrenner bill limits driver's licenses issued to visa holders as well.

On Jan 26th Rep Sensenbrenner reintroduced in the House of Representatives, immigration related provisions that he has agreed to withdraw from the Intelligence Reform bill in order to get that legislation passed quickly. As noted in the news, it imposes requirements that effectively preclude states from issuing driver's licenses to undocumented immigrants and tightens the requirements for asylum further.

It also, however, limits the issuance of driver's licenses to visa holders and certain other applicants for immigration benefits. Under the bill (HR. 418, the REAL ID Act of 2005) holders of "a valid, unexpired non-immigrant visa or nonimmigrant visa status for entry into the United States," may be issued a temporary driver's license that will be "valid only during the period of time of the applicant's authorized stay in the U.S. or if there is no expiration date a period of one year. The license issued to visa holders will clearly show that it is TEMPORARY, and have a clear expiration date linked to the person's validity period.

This ignores the fact that all driver's licenses are "temporary" and that it seems unnecessary to emphasize that some are more "temporary" than others. However, more problematic, it is unclear what period of stay governs. The bill appears to be referring to the expiration date of the actual visa in the passport. As we all are aware, many times a person who does not need to travel will not have a current visa in their passport, even though they've extended their stay and have a valid I-94. In addition, it is not unusual for a consulate to issue a visa with an expiration that does not coincide with either the I-94 or the original approval notice.

If my interpretation is correct, visa holders will be required to get a new visa, at a U.S. consulate outside the U.S., before they can get their driver's license renewed. (It is not really a matter of my interpretation but rather how the States will choose to interprete it. Depending on the political climate in the particular state it would be either stricter or more liberal, but not necessarily consistent.) Also, the law provides that in order to get it renewed the visa holder will have to show that the status "by which the applicant qualified" for the temporary license has been extended.

What happens if:

H-1B visa holder is employed in liberal state where proof of I-94 validity is enought and is of a nationality where getting a visa is a major hassle, so does not have current visa. Get's a job offer in a not so liberal state, where he commences work based on the filing of the I-129 application to transfer employment. Tries to get a driver's license in new state. Cannot get one until the H-1B is approved (may be months later) but also must leave the country to get a visa first. In some cases (admittedly worst case, but not uncommon) they will have to go back to their home country and wait out a three to four month process. Morever, since the "status by which the applicant qualified" for the license was based on terminated employment, arguably the temporary license the visa holder has is now invalid in any case.

Slightly differenct scenario, an L-1 holder joins a new company in the same state. The L-1 is not valid for the new employment and so the worker must change to H-1B. However, it is not "the status by which the applicant qualified", so the former L-1 would not be able to get a license renewed but would have to apply for a new license based on a new H-1B visa obtained outside the country.

Also, what about F-1's on OPT? Optional Practical Training is not a visa nor a status for "entry", but the underlying visa may be long expired. They would be in status and authorized to work, yet not able to get a driver's license beyond the expiration of the F-1 visa until they changed status and obtained a new visa.

These are not overly speculative situations based on the way the legislation is worded now. There is no doubt there will be much discussion and negotiation back and forth in the Congress and with the Administration, particularly as negotiation over the President's immigration reform proposals starts heating up.

However, it is important to note how immigration legislation such as this can have an effect (possibly on you) beyond what the media focuses on.


Sunday, January 30, 2005


Visa Reform Act changes to L-1 and H-1B

The changes signed into law on December 8th made changes to both the L-1 and the H-1B. The changes made to the programs signal a compromise in the Congress and administration between the camp made up of those who see the programs as undermining the U.S. worker's position and who are against immigration generally on who side and those who favor liberalizing the process (for a wide variety of reasons) on the other.

A couple of years ago a harsh spotlight was put on the L-1 (before this, a politically ignored category) by reports that companies that had sponsored many of its foreign employees for that status were outsourcing them per contract and therefore should have been H-1B (which carries a lot of regulatory requirements regarding prevailing wage, notice and record keeping, etc.)

This was clearly not a valid use of the L-1 according to its intent (allow companies to bring exectutives, managers and people with company expertise) to the US. But is was not precluded by the law. Now it is. The L-1 has to work for the sponsoring petitioner in the US.

Also, the provision allowing for use of the blanket L after six months of employment for a foreign sub was rescinded. L-1's now must work for one year for the foreign company unit. Compared to some of the proposals that came out at the time of L-1 scrutiny, these changes are fairly mild.

More under attack is the H-1B. The quota limit reverted back to 65,000 two years ago and will not be raised again soon. This legislation signaled more compromise by making it much more expensive to file an H-1B, but exempting from the quota the first 20,000 master's degree holders that apply for visas in the fiscal year. This takes effect on March 8th.

Questions: How does this exemption work? If I file at the earliest possible moment for an H-1B for the beginning of the new fiscal year, have a master's degree, but there are still plenty of H-1B visas to be allocated, does my petition still affect the quota exemption pool, decreasing it by one? Or does the exemption only start being counted once the 65,000 are exhausted? Also, everyone is assuming, including myself, that the 20,000 will be available this March 8th, and not starting with the next fiscal year. I think this is the intent and this March 8th is the start date, but many people are asking the question.

Also, when can I start filing for the exemption pool H-1B? Clearly not yet, but do I have to wait until March 8th, in order to file? Lots of clarification is needed.

The spirit of compromise was at work in this legislation, lets see if it holds in the more problematic debate: Immigration Reform and the status of undocument workers.


Thursday, January 27, 2005


New weblog

This blog is up and running as of January 27, 2005. I'll start posting news and my comments on the site beginning February 1st. If anyone wishes to post a question, answers or make comments on immigration issues, please feel free.


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