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Gilbert C. Ferrer
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December 17, 2006:  Before it passed into history, the 109th Congress
managed to pass the following immigration related measures.

Physicians for Underserved Areas Act
On December 9, 2006, the Senate passed the Physicians for Underserved
Areas Act, clearing the bill for enactment by the President. The House
approval came three days earlier. The bill extends a visa waiver program,
often referred to as Conrad 30, which allows foreign physicians who work in
underserved areas to remain in the country after completing their medical
training. They otherwise are required to return to their home countries after
completion of their training. Once it is signed into law it will reinstate the visa
waiver program for two years

Expanded Visa Access for Athletes
On the same day, the House passed the Creating Opportunities for Minor
League Professionals, Entertainers, and Teams through Legal Entry
(COMPETE) Act of 2006, following passage of the bill by the Senate on
December 6, 2006. The bill will expand P-1 nonimmigrant visa access to
allow a broader range of professional athletes or members of ice shows to
perform or compete in the U.S.

Nursing Relief for Disadvantaged Areas Reauthorization Act of 2005
On that same busy December 6th, the Senate passed the Nursing Relief for
Disadvantaged Areas Reauthorization Act of 2005.  Originally passed by the
House in June, the bill extends for three years the Nursing Relief for
Disadvantaged Areas Act of 1999, which provides for up to 500 foreign
registered nurses to come to the US annually on H-1C visas to work in
medically under-served areas.


December 20, 2005 - H-2B Update:  USCIS announced last week that it
had received enough H-2B petitions to exhaust the quota for the first six months of
Fiscal Year 2006.  The final receipt date was December 15th.  Petitions received on
that date will be subject to a random selection process.  “Returning Workers” are
exempt from the H-2B cap.  To qualify as a Returning Worker, the worker must have
counted against the H-2B cap during the period from October 1, 2002 and
September 30, 2005.

H-1B Update:  As of December 9th, there are still approximately 2500 numbers
available under the Master's degree exemption.  We're still waiting to see what form
of relief will be passed in Congress in the current session.


May 5th - Interim Regulation Published Today In the Federal
Register.

Petitions seeking the 20k additional FY 2005 H-1B numbers can be filed
commencing May 12, 2005.  See the specific filing instructions below.

May 2nd - Interim Rule for processing H-1B petitions for FY
2005 (Master's degree) and FY 2006
USCIS will publish the interim rule regarding H-1B petition filings sometime this
week.  An advanced copy was received by AILA.  The highlights of the interim rule
(the vast majority of which was not in the actual rule, but rather in the summary of
the rule USCIS, and all government agencies for that matter, attach to rules
published in the Federal Register) follow.  Please note that where I refer to FY 2005
petitions, that refers to petitions filed for the current fiscal year that began October
2004.  Where I refer to FY 2006, that is the fiscal year that begins October 2005:

Additional 20,000 H-1B visa numbers for FY 2005 will apply only to U.S.
Master's degree holders -
 USCIS states that this is the best way to give effect to
Congress's intent.  The agency points out that it was not directed by Congress to
reopen its review of H-1B petitions already received to determine how many of those
were for U.S. master's degree holders that should not have counted against the
quota.  USCIS also points out that the agency never had to collect such information
in the past, so that it would be unable to determine how many H-1B's were granted
to master's degree holders.  They are changing their process to be able to do so
going forward.

All Petitions for FY2005 H-1B's Will Be Filed at a Single Service Center - All
such petitions will be filed at the Vermont Service Center at this special address:

USCIS Vermont Service Center
1A Lemnah Drive
St. Albans, VT 05479

"Only H-1B petitions received at this specific address ... will be deemed eligible for
an FY 2005 number.  Filings may not be personally delivered and must be
submitted by U.S. mail, or other courier service."


Upgrading a FY 2006 petition to FY2005 - This can be done by filing a request
along with the approval notice or receipt notice for the FY 2006 petition, a copy of
the I-129 form and a certified Labor Condition Application for the period of
employment requested.  It must be sent to the address stated above.  There is no
filing fee for upgrading a previously filed petition.

Premium Processing is Available for FY 2005 petitions - If an already filed FY
2006 petition was filed premium processing, the upgrade request can be provided
premium processing with no extra fee.  If PP was not previously requested, then the
upgrade request will have to include the I-907 form and fee.  However, if the FY
2006 petition was already approved, then an upgrade request does not need an I-
907 form or fee, in order to be processed PP, regardless whether the employer
originally requested PP.

All Petitions Will Be Adjudicated in Order of Receipt - They will utilize a "first in
- first out" process until all 20,000 have been allocated.

For FY 2006 the Master's Degree Exemptions Will Be Assigned as Filed -
That is the exemption will be used up in the course of assigning the 65,000 basic
quota.  USCIS will not wait until the 65k is used up to begin allocating exemption
slots to petitions for US master's degree holders.  So, when USCIS announces that
the 65K is used up next year, they will have already counted the extra 20k.

Petitions Will Be Accepted Commencing 5 Business Days After Publication -
According to current publication schedule this will mean May 12 for start of filing.  
Any petitions received before that will be rejected.  


April 18th - USCIS Starting to Pre Screen H-1B Applications
but the regulation is being further delayed.

The American Immigration Lawyers National office advised its membership on Friday
that the USCIS Service Centers have received instructions to separate out all U.S.
advanced degree H-1Bs filed for October 1st start dates.  The USCIS will give an
immediate start date to those such cases requesting and eligible for a FY05 start
date, as soon as they are authorized to do so.

However, a new bit of news reported today Monday the 18th, states that the
regulation implementing the 20,000 H-1Bs has encountered additional delays during
the OMB review process. It is still unclear when when the rule will be published, and
whether it will allow filing for all H-1B-eligible beneficiaries or only those with a U.S.
masters degree or higher.

So, we're still waiting.

April 6, 2005 - Conversion from an October 1st H-1B filing to
a 2005 (extra 20k Master's degree quota) to be allowed.

A USCIS representative stated that the rule currently under review with respect to
the 20,000 fiscal 2005 numbers will also have instructions for H-1Bs filed for fiscal
year 2006 (start date of 10/1/05).  The rule will have a provision to convert the fiscal
2006 cases to 2005.  Apparently a 2006 filer would face no 'advantage or
disadvantage' by virtue of the 2006 filing if a change to the earlier 20k quota were
requested.   There will be instructions for pending cases with receipts as well as
those which haven't yet received receipts and those that were already approved.
No clarification on whether the 20k numbers will be available only to U.S. Masters
degree holders or whether the numbers will be available to all qualified applicants.

Also, still no info on when the rule will be published, or when USCIS will begin
accepting filings for the 20k.


April 4, 2005 - What to do while waiting for the 20K H-1B's?  

Some ideas in the Web Journal.

March 30, 2005 - Latest Word on H-1B's from AILA

A USCIS official advises that USCIS does not yet know when the announcement
about acceptance of H-1B petitions for fiscal 2005 will be published. The
announcement, which will be in the form of a rulemaking in the Federal Register, is
currently awaiting OMB clearance.

The official was not able to say whether USCIS will hold to the March 8, 2005, press
release that indicated that the fiscal 2005 number would be open to all eligible H-
1Bs, or if the agency will go back to declaring that only individuals holding a
master's degree or higher from a U.S. university will be eligible for the numbers.

In the meantime, USCIS will start accepting H-1B filings for fiscal 2006 on Friday,
April 1, 2005. (There had been a rumor that USCIS would delay acceptance of
these filings, but that rumor is not true.)

The question that arises is what to do with those who wish to take advantage of a
fiscal 2005 number if possible, but also wish to file as soon as possible for a fiscal
2006 number. USCIS was unable to address this, other than to say that "no one will
be advantaged or disadvantaged for a fiscal 2005 number because they filed for a
2006 number." It was indicated that the Federal Register notice would address this
situation, but USCIS is unable to disclose the content until it is cleared by OMB.
USCIS is aware of the concern about the expense and other issues involved if one
would have to double-file for fiscal 2006 and 2005 numbers.

March 21, 2005 - AILA Spring Conference Non-Immigrant
News.

At the American Immigration Lawyers Association Spring Conference,
representatives of USCIS and BCP observed as follows:

H-1B - The day for filing new H-1B petitions to take advantage of the additional
20,000 quota is still not set.  The CIS made the determination that the quota will not
be limited just to master's degree holders, but would rather be open to all qualified
H-1B candidates.  Their rationale is that the first 20,000 H-1B's that were granted to
Master's degree holders in 2005 should not have been counted against the cap.
Therefore, that releases 20,000 visas from the general 65,000 quota.  The CIS
legal counsel fully admits that that is probably not what Congress was thinking when
they passed the law.  Legal counsel for the Senate Judiciary Committee was also at
the conference and said that the Committee was going to be looking at the CIS
interpretation later this week.  Hence, further delay in implementation.  

In the meantime, a new I-129 form has been posted by CIS.  The old form can be
used until the end of April.


US Visit - The representative from Homeland Security noted that it is important for
people to "check out" of the US at a US Visit booth at the airport before exiting the
US.  Failure to do so could result in an overstay finding the next time the person
tries to reenter the US or apply for a visa.  Also, it was noted that passport
expirations will be taken into account when issuing I-94 cards.  If the passport is due
to expire with a few months, the stay will be limited to that time, regardless of how
long the visa or status is valid for.    
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This Web Site is intended for general information purposes only. It is not intended to constitute a legal opinion
and must not be relied upon for any specific application. Be advised that immigration laws and policies change
frequently. In light of the complexities and changes in both the substance and interpretation of U.S.
Immigration Law, it is necessary to seek competent legal advice concerning the application of U.S. immigration
law to any particular individual.

© 2004-2005 Gilbert C. Ferrer, Attorney at Law / All Rights Reserved.