US IMMIGRATION NEWS UPDATE - MAY 2007 HEADLINES

PROPOSED US IMMIGRATION REFORM: THE STRIVE ACT OF 2007
PROPOSED LEGISLATIONS FOR TEMPORARY INCREASE TO H-1B QUOTA
H-1B MASTERS CAP STATUS FOR FY2008
J-1 EXCHANGE VISITOR VISA UPDATE

PROPOSED US IMMIGRATION REFORM: THE STRIVE ACT OF 2007

The United State Congress is currently considering comprehensive immigration reform. A proposed legislation called the STRIVE Act of 2007 (i.e., Security Through Regularized Immigration and a Vibrant Economy Act of 2007) is pending before Congress. Below are selected summaries of the STRIVE Act providing for the legalization of undocumented workers, a guest worker program called the H2C visa, and reforms to existing visa programs. IMPORTANT: Please note that the STRIVE Act is only a proposal at this time. Pending legislations are not considered law unless they are approved by Congress and signed into law by the President of the United States.

Legalization for Undocumented Foreign Workers

The STRIVE Act would create a visa program for qualified undocumented workers by providing conditional nonimmigrant status for undocumented immigrants and their spouses and children in the United States for up to six years.

Pre-Condition of the Visa Program: Before this visa program is implemented, the Secretary of US Department of Homeland Security (DHS) must certify to Congress that improvements in border surveillance technology are being implemented; that the systems and infrastructure necessary to carry out improvements to immigration document security are ready to use; and that the first phase of the Electronic Employment Verification System requiring the participation of critical infrastructure employers has been implemented.

Features of the Visa Program: The STRIVE Act provides conditional nonimmigrant visa applicants with work and travel authorization and protection from deportation. Certain immigrants in deportation proceedings, facing deportation, or ordered to depart voluntarily have an opportunity to apply for conditional nonimmigrant status. Applicants with immigration violations related to undocumented status will be waived. However, security risks and criminal grounds cannot be waived. Applicants denied this visa may appeal their cases to administrative and federal courts.

General Requirements: To qualify, the applicant must prove (1) Continuous presence in the US on or before June 1, 2006; (2) Attest to employment in the US before June 1, 2006 and employment since that date (and submit related documentation); (3) Complete criminal and security background checks; and (4) Pay a $500 fine plus necessary application fees (fine exemption for children).

Other Criteria: The applicant must not be ineligible to receive a visa pursuant to the Immigration and Nationality Act; The applicant has not been convicted of a felony or three or more misdemeanors; The applicant has not participated in the persecution of another person on account of race, religion, nationality, membership in a particular social group, or political opinion; The applicant has not been convicted by final judgment of a particularly serious crime and there are no reasonable grounds for believing that the alien has committed a particularly serious crime abroad before arriving in the US; and There is a penalty of up to five years imprisonment for anyone who willfully falsifies information in an application for conditional nonimmigrant status.

Earned Citizenship: The STRIVE Act provides qualified conditional nonimmigrants and their spouses and children with an opportunity to apply for lawful permanent resident status (i.e., green card) and eventual citizenship.

Features of the Earned Citizenship Program: Applicants go to the back of the line for permanent visas. The current immigrant backlogs must be cleared before qualified conditional nonimmigrant visa applicants (and their families) can adjust to permanent resident status. The Department of State (DOS) and DHS are required to provide any requesting law enforcement agency with information furnished on an application in connection with a criminal or national security investigation or prosecution. New penalties for making false statements in an application for earned citizenship are created. Immigrants who adjust from a conditional nonimmigrant visa (including dependents) to lawful permanent resident status shall not be counted against the worldwide immigrant visa quota. Those appealing decisions associated with the application for adjustment to permanent status have access to a defined administrative and judicial process.

Requirements for Earned Citizenship: The applicant must: (1) Meet employment requirements during the six-year period immediately preceding the application for adjustment; (2) Pay a $1,500 fine plus application fees; (3) Complete criminal and security background checks; (4) Establish registration under the selective service, if applicable; (5) Meet English and civic requirements; (6) Undergo a medical examination; (7) Pay all taxes; (8) Show admissibility to the US; and (9) Meet a “Legal Reentry” requirement during the six-year period in conditional nonimmigrant status, no later than 90 days before filing an application for adjustment to lawful permanent resident status. Paperwork processing is performed in the US. An exit and reentry through any port of entry is required. Limited exceptions are available to the legal reentry requirement.

New H-2C Guest Worker Visa Program

The STRIVE Act would create a legal channel for future immigrant workers and their spouses and children by establishing the H2C visa, which is valid for three years and renewable for another three. The legislation ensures that US workers have the first shot at all jobs and that new workers will not displace or adversely affect the wages or working conditions of US workers.

Pre-Condition of Visa Program: Before the H2C visa program is implemented, the Secretary of US Department of Homeland Secuirty (DHS) must certify to Congress that border surveillance technology improvements are being implemented; that the systems and infrastructure necessary to make improvements to immigration document security are ready to use; and that the first phase of the Electronic Employment Verification System requiring the participation of critical infrastructure employers has been implemented.

Requirements to be Met by an Applicant for a New Worker (H2C) Visa: Applicants must demonstrate job qualifications and provide evidence of a job offer from US employer complete criminal- and terrorism-related background checks pay a $500 application fee undergo a medical exam show admissibility to the US. Certain immigration violations related to undocumented status may be waived. However, security risks and criminal grounds may not be waived.

Features of the H2C Program: Flexible Visa Cap: This visa program has an initial cap of 400,000, which adjusts up or down yearly based on market fluctuations.

Protections for Workers: The H2C guest workers have labor rights and protections, including (1) paying the greater of the actual wage paid to other similarly-situated workers or the prevailing wage; (2) requiring that H2C guest workers are provided the same conditions and benefits as received by US workers; (3) the ability to travel outside the United States; whistleblower protections; (4) flexibility to change employers (“portability”) so long as the new employer has complied with the applicable H2C recruiting requirements; (5) an opportunity to apply for permanent resident status, either through an employer or by self-petitioning (after five years of employment); and (6) a path to citizenship if desired, among other protections.

Additional Worker Protections: The H2C guest workers may not be treated as independent contractors, cannot be employed during labor disputes, and cannot be denied a right or remedy available under federal, state, or local labor and employment laws. H2C guest workers also have rights against non-discrimination.

Increased Labor Law Enforcement: The bill adds 2,000 US Department of Labor (DOL) investigators dedicated to enforcing the labor requirements under the visa worker program. The DOL is required to create regulations for processing complaints relating to violations of the H2C program by an aggrieved worker. The DOL may impose administrative remedies and penalties upon finding a violation relating to H2C employers or contractors.

Employer Obligations: Employers must attempt to hire US workers by first offering the job to any eligible US worker who applies and is qualified and able. Employers can only hire H2C guest workers where no US workers are able, willing, or qualified to perform the job. Employers are barred from hiring new immigrant workers if they are located in an area with an unemployment rate higher than 9 percent for workers whose education level is at or below a high school diploma. The bill spells out procedures for recruiting US workers.

Unemployment Rule: H2C guest workers who are unemployed for more than 60 days are required to leave the United States and reapply for a new visa. Exceptions apply for disability, authorized leave, or because of major disaster or emergency.

Fraud-Proof Documents: H2C guest workers will be issued a machine-readable, tamper-resistant document that will allow for biometric authentication. This document will serve as a valid travel, identity, and work authorization document.

Penalties for Unlawful Entry: Workers who enter the United States unlawfully may be barred from receiving many immigration benefits, including participation in the H2C program for 10 years.

Alien Employment Management System: DHS in consultation with the Department of State must develop and implement a system to manage and track the employment of H2C guest workers.

Earned Citizenship: New workers and their spouses and children have an opportunity to apply for conditional permanent residency and eventual citizenship. The immigrant may apply through an employer or by self-petition after working in H2C status for 5 years and paying an additional fee of $500.

Requirements for Earned Citizenship: (1) Applicants must show physical presence in the US and evidence of employment; (2) complete criminal and security background checks; (3) pay $500 application fee; (4) meet English and civic requirements; and
(5) show admissibility to the US. Certain bars to admission related to undocumented status are waived; security risks and criminal grounds may not be waived.

Various Reforms to Current Visa Programs

Changes to Family-Based Immigration: The STRIVE Act would exempt immediate relatives of US citizens from the annual quota of 480,000 for family-sponsored immigrant visas. The 480,000 family-sponsored immigrant numbers are redistributed among existing family preference categories. Unused family-sponsored immigrant visas from previous fiscal years are recaptured and made available for family-sponsored immigrant visas for future fiscal years.

Changes to Employment-Based Immigration: The STRIVE Act would Increase employment-based immigrant visa number from 140,000 to 290,000 per fiscal year. The 290,000 ceiling for employment-based immigrant visas is redistributed among the employment-based immigrant visa categories and certain modifications are made to current categories. Unused employment-based immigrant visas from previous fiscal years are recaptured and made available for employment-based immigrant visas for future fiscal years. Visas issued to spouses and children after October 1, 2004 under the employment-based category will no longer be counted against the cap. No more than 800,000 visas may be issued to employment-based spouses and children during any fiscal year.

Increase Per Country Limit for Immigrant Visa Quotas: The STRIVE Act would make slight increases to the per-country limits for family and employment based visas.

Changes to H-1B Visa Quota: The STRIVE Act would increase the annual H-1B visa quota to 115,000, which can be increased in a subsequent year if the quota is reached during a given fiscal year, not to exceed 180,000. The bill exempts from this quota certain individuals who have earned an advanced degree in science, technology, engineering, or math in the United States.

Immigrants With Advanced Skills Exempt from Visa Cap: Several categories of highly skilled workers would be exempt from the employment-based immigrant visa cap.

Sons and daughters of Filipino World War II veterans: The sons and daughters of Filipino WWII veterans are exempt from the annual numerical limitations.

Preservation of Immigration Benefits for Victims of a Major Disaster or Emergency: The bill includes a number of benefits and protections for victims of a major disaster or emergency, including a special immigrant status for qualifying individuals; humanitarian relief for certain surviving spouses and children; age-out protection; and discretionary waivers.

Relief for Widows and Orphans: A special immigrant classification would be created for women and children deemed to have a credible fear of harm in their home country and lacking adequate protection from harm.

Relief for Minor Children and Widows: Provides relief for certain surviving spouses and children following the death of qualifying relative. For example, the bill allows certain spouses, parents, or children to continue to be classified as immediate relatives following the death of a United States citizen. It also permits an alien relative whose spouse or parent died prior to the enactment of the STRIVE Act to submit a petition within two years of the date of the bill’s enactment.

PROPOSED LEGISLATIONS FOR TEMPORARY INCREASE TO H-1B QUOTA

In recent months, US Senators have introduced three legislations aimed at reforming US visa programs for highly skilled foreign workers or providing temporary relief from the inadequate H1B annual quota. For the first time ever, the H1B quota was exhausted during the initial two days of the filing period. Specifically, over 120,000 cap-subject H1B petitions were received for a quota of 65,000 H1B visas. IMPORTANT: Please note that proposed legislations are not considered law unless they are approved by Congress and signed into law by the President of the United States.

SKIL Act (S. 1083)

On April 10, 2007, Senator John Cornyn (R-TX) introduced the Securing Knowledge, Innovation and Leadership (SKIL) Act of 2007 (S. 1083). The propose legislation addresses the restrictive H1B visa cap and alleviate the employment-based green card backlogs. Senator Cornyn authored the bill; original cosponsors include Senators Allard (R-CO), Bennett (R-UT), Hutchison (R-TX), and Lott (R-MS). To view the SKIL Act, visit the link below.

Text of SKIL Act (S. 1083)

High-Tech Worker Relief Act (S. 1092)

On April 11, 2007, Senator Chuck Hagel (R-NE) introduced the High-Tech Worker Relief Act (S. 1092). Unlike the broader provisions of the SKIL Act, this bill focuses more narrowly on providing temporary relief from the H1B cap. To view the proposed law, visit the link below.

High-Tech Worker Relief Act (S. 1092)

H1B and L1 Visa Fraud and Abuse Prevention Act (S. 1035)

On March 29, 2007, Senator Richard Durbin (D-IL) introduced the H1B and L1 Visa Fraud and Abuse Prevention Act (S. 1035). In contrast to the above legislations, this bill would create new restrictions and requirements for the H1B and L1 visa programs. To view the proposed law, visit the link below.

H1B and L1 Visa Fraud and Abuse Prevention Act

H-1B MASTERS CAP STATUS FOR FY2008

As of April 30, 2007, the US Citizenship and Immigration Services (USCIS) had received approximately 19,887 H1B petitions for aliens with H1B petition for individuals with US master's or higher degrees. Congress mandated that the first 20,000 of advanced degree H1B petitions are exempt from the 65,000 annual quota for H1B visas.

H1B visas in General: US businesses use the H1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in fields, such as scientists, engineers or computer programmers. As part of the H1B program, the Department of Homeland Security (DHS) and the Department of Labor (DOL) require US employers to meet specific labor conditions to ensure that American workers are not adversely impacted, while DOL's Wage and Hour Division safeguards the treatment and compensation of H1B workers.

J-1 EXCHANGE VISITOR VISA UPDATE

The following is a US Department of State (DOS) telegram issued in March, 2007 to all US embassies and consular posts abroad. The telegram provides updated guidance to consular officers regarding the J-1 Exchange Visitor Visa.

1. SUMMARY: The summer season will be here before we know it. In preparation, here is an update on J visa issues, to supplement guidance in Ref. A. Please remember that you should not refuse a J visa applicant under 214(b) simply because of the nature of the program itself. You should also be certain that applicants possess sufficient proficiency in the English language to be able to successfully participate in and complete the program. Posts are reminded of the twelve-month and two-year bars on repeat participation for professors and research scholars. This cable also provides additional clarification on the Summer Work Travel (SWT) program begin dates and end dates. We urge posts to continue outreach to program sponsors and potential exchange visitors to make the visa process more efficient and transparent and to reinforce the importance of applying EARLY.

J VISAS AND RESIDENCE ABROAD

2. As the SWT season kicks into gear, we wanted to remind posts of the proper application of the "residence abroad" requirement for J visas. 9 FAM 41.62 N5.2 states that "the context of the residence abroad requirement for exchange visitor visas inherently differs from the context for B visitor visas or other short-term visas. The statute clearly presupposes that the natural circumstances and conditions of being an exchange visitor do not disqualify that applicant from obtaining a J visa. It is natural that the exchange visitor proposes an extended absence from his homeland (see 9 FAM 41.11 N2). Nonetheless, the consular officer must be satisfied at the time of the application for a visa that an alien possesses the present intent to depart the US at the conclusion of his or her program." It also reminds officers that they should not assume that a J visa holder would return home just because he/she is subject to the two-year residency requirement under INA 212(e). Ref E discusses residence abroad in the context of student visas, and may be helpful, as well.

J VISAS AND LANGUAGE ABILITY

3. You should be sure that a program participant possesses sufficient proficiency in the English language to participate in the program (see 9 FAM 41.62 N6.1). The amount of English language ability needed to complete a program successfully may vary by the type of program. It is appropriate to conduct interviews in English for program participants, but remember that an applicant does not have to be fluent. N6.2 also clarifies that participants in graduate medical training programs must provide proof of English competency.

PROFESSORS AND RESEARCH SCHOLARS

4. A reminder about the twelve-month bar and the recent two-year bar for J professors and research scholars, and their dependents:

TWELVE MONTH BAR

5. An applicant under consideration for a J research scholar or professor visa does not qualify if he/she has been in the United States on a J visa for more than six of the twelve months preceding the new program's start date. A participant in the short-term scholar category is exempt from this bar. See 9 FAM 41.62 N4.6, N4.7, and N11.3.

TWO-YEAR BAR STATE

6. As of May 2005, regulations governing the Professor and Research Scholar categories were amended (22 CFR 62.20) to extend the duration of program participation for professors and research scholars from three years to five years (and beyond five years for participants in federally-funded research programs).

7. A participant is not eligible to return to the United States in the professor or research scholar category for a period of two years (24 months) immediately following completion of a five-year period. See 9 FAM 41.62 N4.6, N4.7, and N11.4.

SUMMER WORK AND TRAVEL (SWT) CLARIFICATIONS

PROGRAM LENGTH, END DATE, VISA EXPIRATION DATE

8. Ref C informed posts that final-year post-secondary students are now eligible for Summer Work and Travel (SWT) programs. Ref C also reminded posts of the regulations for SWT programs, i.e., that they be no longer than four months and only take place during a student's summer vacation. Please note that while the program may not be longer than four months, you are permitted to issue visas valid prior to the program start date. SWT participants may not enter the United States more than 30 days before their program starts. BOTTOM LINE: Visas must expire on the program end date.

9. Many posts have already worked with local universities and Departments of Education to set reasonable program end dates. If you have not done this yet, how should you do it? Survey the most prominent educational institutions and your local Ministry of Education. Find out when students' summer vacation ends. For some schools, this may be the orientation dates or the official start of school; for others, it may be the start of classes.

10. Once you have enough information, you may set a uniform visa expiration date for all programs and communicate it to SWT sponsors. Posts have discretion to decide whether they want to allow exceptions to these uniform dates if certain universities, or certain individual university programs, have longer vacation periods. However, posts are NOT permitted to make exceptions for individual students who have individual permission to miss classes. Such a case-by-case process is difficult to verify and cumbersome for posts. Sponsors and recruiters have been warned not to pursue such exceptions.

WHEN WE SAY SUMMER, WE MEAN SUMMER

11. SWT programs are only permitted in the summer months (whatever those may be in your country). There should be no SWT participants taking part in SWT at any other time of year. Please notify the ECA Compliance Unit (JVISAS@STATE.GOV) if you believe a program sponsor is not following these regulations.

STUDENT RETURN DATE

12. A reminder for posts who have a regular validation study or other return date check for SWT participants: all J program participants are permitted to remain in
the United States for 30 days past the end of their program. During this period, they are not permitted to work (see 9 FAM 41.62 N9.4). As a result, if you are asking students or sponsors to "report in" at the end of their program, a reasonable return date would be 30 days after the program end date. FPMs at posts wishing to check DHS exit records as part of such a validation process may consult with their FPP post liaison officers, who now have access to DHS ADIS data.

13. Embassy Bucharest (ref B) has a successful program whereby SWT coordinators report student return dates to the consular section. The Embassy performs a validation study each year to confirm that coordinators' information is accurate.

OUTREACH, OUTREACH, OUTREACH

STATE 00031754 003 OF 003

14. While most of the SWT regulations are not new, ECA and VO are more closely enforcing them and ECA is committed to following up with sponsors who are not compliant. We know that some sponsors are concerned that the rules will result in reduced SWT participation or delays in the visa process if they are required to revise their DS-2019 forms to be compliant. We encourage posts to reiterate the above guidance to local partners or agents of US sponsors and potential participants. Clear communication makes our process smoother and more transparent for all.

HELP?

15. ECA and VO appreciate your continued assistance in fulfilling the goals of the J visa program. The ECA Compliance Unit and your VO/F/P desk officer are ready to work with posts and sponsors to resolve the SWT program date issue or any other matters. FPP post liaison officers can assist in J visa validation studies. Please also remember that SEVP can answer many of your SEVIS-specific questions. You may reach them at SEVIS-SOURCE@ICE.GOV; additional contact information is posted at http://www.ice.gov/sevis/contact.htm.

OUR OFFICE PUBLISHES THIS NEWS UPDATE TO PROVIDE THE PUBLIC WITH GENERAL INFORMATION REGARDING THE LATEST DEVELOPMENTS IN US IMMIGRATION LAW. THE INFORMATION IN THIS NEWS UPDATE SHOULD NOT BE INTERPRETED AS LEGAL ADVICE. READERS ARE STRONGLY ADVISED TO CONSULT A QUALIFIED IMMIGRATION LAWYER TO RESOLVE THEIR INDIVIDUAL CIRCUMSTANCES. FOR CONSULTATION WITH AN IMMIGRATION LAWYER, PLEASE CALL US AT (626) 279-5341 OR E-MAIL US AT INFO@BCCVISALAW.COM. AN ATTORNEY IN OUR OFFICE WOULD BE HAPPY TO ASSIST YOU.