Thursday, April 21, 2005
Legislative Roundup - Immigration Bills
Real ID: This bill was passed by the House and is under consideration by the Senate. It was passed as part of the Emergency Supplemental Appropriations bill for the Iraqi war effort and Tsunami relief. Since it was "tacked on" to that bill, there was little or no debate on its substantive provisions. This bill is ill advised. It is billed as an "anti-terrorist" bill, but is more an anti-immigration bill and not only impacts the ability of undocumented workers to get drivers licenses, it grants extraordinary powers to the Secretary of DHS with respect to the building of a border barrier and also renders the standard of proof for asylum claims extremely difficult to meet. If the Senate passes this bill, it will become part of law, since the house has already passed it.
AgJobs: This is a program that provides temporary status for agricultural workers and a method for obtaining permanent residency. Because the Real ID bill was attached to the Supplemental Appropriations bill by the House, the Senate ruled that all immigration related amendments to the bill could be considered by the Senate. AgJobs is one of them. The majority used a process called cloture to limit the debate. Essentially, a vote of 60 in the Senate was required to stop debate on a bill and pass it on for a substantive vote by the Senate. The supporters of AgJobs lost that cloture vote, receiving only 53 out of the necessary 60. The opponents of AgJobs consider this a resounding victory and are patting themselves on the back. The supporters of AgJobs see the vote as an encouraging sign, since it signals that the Senate would be receptive to having it attached to some future bill (just not this one) and when it does come to a vote it would have the votes necessary to pass.
H-2B bill: This category is for temporary and seasonal workers. The quota for this year was gone in January. This bill provides for short term emergency relief. This passed cloture by a large majority (83 votes of the 60 needed) and will be part of the Senate version of the Emergency Appropriations bill.
EB-3 Quota: A bill sponsored by Senators Schumer (NY), Hutchinson (TX) and Kennedy (MA) would recapture EB-3 numbers from the fiscal years 2001-2004 that wee not used because of processing delays. This would provide some relief for individuals from India and China, in the third employment based category and are stuck in the backlog for visa numbers and unable to process for an immigrant visa or adjustment of status. This bill also passed cloture and will also be part of the Senate version.
To the extent that the Senate and House versions differ, discussion will shift to conference between the two houses to negotiate the final version.
If you understood all this the first time you read this, you are either a quick study or my powers of simplification and clarity are unsurpassed. The manuvering that takes place in the Congress as a bill goes through the legislative process is complex and not particularly intuitive. The analysis is based in part on the current Washington Update of the American Immigration Lawyers Association. If you would like a copy, let me know.
Friday, April 08, 2005
As Government Cap on Work Visas Rises, So Does Confusion (washingtonpost.com)
The Washington Post reports today that as of Thursday, the USCIS was still trying to get criteria together for who will qualify for the 20,000 visas. Previously there was indication that the rule implementing process for the 20k additional visas was at OMB under review. Which raises the question: How can a rule be under review at OMB if the USCIS still isn't sure what it should say?
Monday, April 04, 2005
What To Do While Waiting for 20,000 H-1Bs
The 20,000 additional H-1B numbers would save their situation, but there is still no news on when they will be available. What to do?
Here are a few general possibilities, some or all may not apply to specific situations. If you are in this situation, get specific counsel from a knowledgeable immigration professional. Don't relay on "friends" experiences.
1. File now for a spot in the October 1 quota - The candidate will not be able to work after the OPT expires, but might be able to stay in the US pending the application. In the past the USCIS has cut some people in this type a situation a break (allow them to stay in the us while waiting the start of the H-1B period.) They may do it again, but if they don't, or if the specific situation does not allow it, the candidate would have to leave the US anyway to get the actual visa stamp in October before receiving H-1B work authorization.
2. Get an extension of the I-20 in F-1 status for a new educational program. Again, work is not authorized (unless CPT is available,) but the person would be able to stay in the US and continue their education.
3. Change to B-1 in the meantime. This is only a temporary measure and there would have to be a good qualifying reason to make the change. There will have to be a subsequent change to H-1B from B-1 if the change is granted. B-1's cannot work, but could stay in the US.
4. Enter a J-1 program. If a program that allows the worker to continue training for their profession and allows work authorization, this could allow them to continue working for 18 months after the change to J-1. The candidate should check with their employer, employer's professional organization and school for this. However, care should be taken that the program does not entail the two year home residency requirement. If it is not clear, inquiry should be made from as many sources(immigration lawyers, student advisors, etc.) who are knowledgeable in this as possible, it is worth investigating exhaustively.)
5. If married and the spouse is on a J-1 visa, the candidate, as J-2 can get work authorization.
In any event, to get an H-1B from the 20,000 quota, regardless of what else is done, the sponsoring employer will have to be ready to file at a moment's notice.