Copland and Brenner

Table of Contents

1. H-1B Advisory Regarding Non-Cap Cases
2. H-2B Filings Reach FY 2004 Limit
3. Processing Changes with USCIS
4. News from the Courts: the U.S.A. and the International Community

1. H-1B Advisory Regarding Non-Cap Cases

   As we advised last month, the H-1B cap for fiscal year 2004 was reached on February 17. On March 22, the American Immigration Lawyers Association (“AILA”) informed members that U.S. Citizenship and Immigration Services (“USCIS”) is relying on information provided in Form I-129W to determine whether a case is subject to the cap. Therefore, as AILA advised, “careful completion of that form is important.”

   With no H-1B numbers subject to the cap available until October 1, it is critical that a petitioning employer understand the details of the beneficiary’s H-1B employment history in an effort to identify any means of avoiding the cap. In this context, Part C of Form I-129W (“Numerical Limitation Exemption Information”) requires the petitioning employer to check whether any of six criteria apply to the case at hand:

   - is the petitioner a qualifying institution of higher education?
   - is the petitioner a nonprofit organization or entity affiliated with a qualifying institution of higher education?
   - is the petitioner a qualifying nonprofit or governmental research organization?
   - is the beneficiary a qualifying J-1 nonimmigrant who received a waiver of the two-year foreign residence requirement pursuant to a request from an interested state department of public health or its equivalent?
   - was the beneficiary of the petition previously granted H-1B status within the prior six years and not left the U.S.A. for a period of more than one year after attaining such status?
   - if the petition requests a change of employer, did the beneficiary previously work for a qualifying institution of higher education, a nonprofit organization or entity affiliated with a qualifying institution of higher education, or a qualifying nonprofit or governmental research organization?
   For those employers whose cases are subject to the cap, we remind them that H-1B petitions may be filed six months in advance of the proposed start date. Accordingly, since H-1B visas will become available for FY2005 on October 1, 2004, an H-1B petition for new employment may be filed as early as April 1.

2. H-2B Filings Reach FY 2004 Limit

   On March 10, 2004, the Department of Homeland Security issued a press release announcing that the H-2B cap of 66,000 had been reached for fiscal year 2004. Accordingly, the release advised that “[a]fter March 9, 2004, USCIS will not accept any new H-2B petitions subject to the FY 2004 annual cap.” Petitions filed after the close of business on March 9 would be returned along with the filing fees (including any premium processing fee).
   
   As in the H-1B category, there are certain H-2B petitions that may be exempt from the annual cap. As the USCIS press release states, in the H-2B context these exemptions include petitions that will:

   - extend the stay of a current H-2B worker
   - change the terms of employment for current H-2B workers
   - allow current H-2B workers to change or add employers

   In addition, new H-2B petitions for employment to commence on or after October 1, 2004 (the first day of the federal government’s FY 2005) are not affected by this development. Such cases will be counted against the cap for FY 2005.

   The H-2B category, for temporary workers performing temporary services or labor, is available to employers for a one-time occurrence, a seasonal need, a peak load need or an intermittent need. Because of the nature of the employment, many H-2B workers are needed during warm-weather months. The prospect of large numbers of jobs going unfilled during critical summer months – when agricultural and tourist activities are in full swing - galvanized Congress to take quick action. On March 29 bipartisan legislation, the “Save Summer Act of 2004,” was introduced in the Senate (S 2252 IS) and House of Representatives (H.R. 4052 IH). That same day, the bills were referred to the Senate and House Committees on the Judiciary.

   The bills would increase the number of H-2B visas to 106,000 for FY 2004 but do nothing to increase the numbers for any subsequent year. In addition, the bills would require quarterly notification of the numbers of nonimmigrants granted H-2B status or had such status terminated in any way, beginning December 1, 2005. As of October 1, 2006 annual reports would be required to identify the countries of origin, occupations and compensation paid to H-2B nonimmigrants, the number of aliens who had such status terminated in any way, and the number of H-2B nonimmigrants during the current and preceding fiscal year.

   Meanwhile, the “Immigration Reform Act of 2004,” proposed by Senators Chuck Hagel (R-NE) and Tom Daschle (D-SD) (which would make a number of favorable changes to the H-2B program, among other changes) is still pending before the Senate Committee on the Judiciary, where it was sent on January 21, 2004. There is no counterpart currently under consideration by the House of Representatives.

3. Processing Changes with USCIS

   AILA’s Senior Director of Liaison & Information advised members last month that all USCIS District Offices in the Eastern Region (including Latham) are now subject to “remote filing.” AILA members were informed in October 2003 that such a change would take place nationwide, so this development was not unexpected. Rather, it was a question as to which district offices would be affected at what time.
   The new procedures affect family-based immediate relative cases, in which an immigrant visa petition is filed by the immediate relative U.S. citizen along with the beneficiary’s applications for adjustment of status, employment authorization and advance parole. This represents a sharp contrast from the past, when such petitions and applications were processed entirely by local offices. With this change, the National Benefits Center (“NBC”) in Missouri will handle initial review of such cases, and is to adjudicate employment authorization and advance parole applications.

   Among the reasons for the change are the issuance of more secure advance parole and employment documents and establishing uniform processing procedures, policies, and time frames. For larger USCIS district offices the change may be a welcome one, with the potential (not yet achieved) of significantly reducing processing time frames. For smaller offices, however – such as the one in Latham – the change is a negative one for the individuals seeking immigration benefits. We have been fortunate for many years in terms of timely adjudication of employment authorization applications (generally within one week, at most), advance parole (same or next day in emergent circumstances) and adjustment of status applications (as little as three and one-half months). Now, with the new and (thus far) unimproved procedure involving the NBC, processing time frames are likely to be significantly longer for cases within the jurisdiction of the Latham USCIS office.

   Ultimately, all such cases must be filed directly with the NBC. For now, however, they may still be taken to district offices - but they will not be reviewed for prima facie sufficiency there. Instead, the entire package will be routed to a “lockbox” in Chicago and forwarded from there to the NBC. This means that a case that should have been rejected for some insufficiency at the local district office will instead spend an indeterminate time in transit and at the NBC before any rejection notice is generated and the entire package returned. Needless to say, a number of issues may arise as a result of rejection, including status violations.

   In addition, as AILA’s Senior Director of Liaison & Information recently pointed out, the NBC is taking more than 90 days to adjudicate employment authorization applications. NBC adjudications information posted by USCIS on March 24, 2004 states that employment authorization applications filed on November 30, 2003 were currently being processed. Because regulations authorize applicants to seek an interim EAD at the district office when an employment application has been pending at a Service Center for more than 90 days, employment authorization cases end up at the district offices anyway. The result is issuance of the less secure document that the agency supposes to avoid by remote NBC processing.

   In addition to the foregoing, problems involving remote processing have included:

   - delays in issuance of filing receipts
   - delays in processing of advance parole applications
   - delays in scheduling fingerprinting appointments (USCIS advises that this problem has been resolved)
   - information regarding the remote filing process does not yet appear on the USCIS web site (www.uscis.gov) or form instructions, so the vast majority of applicants without competent representation will be entirely unaware of this change

4. News from the Courts: the U.S.A. and the International Community

   On March 31, The New York Times reported on a decision by the International Court of Justice in Mexico v. United States of America . The case was brought to the world court by Mexico on January 9, 2003 to challenge the treatment of Mexican nationals who were tried, convicted and sentenced to death in nine U.S. states (Mexican law does not permit punishment by the death penalty).

   The Court ruled that the U.S.A. had breached its obligations to 51 Mexican nationals, and to Mexico, under the 1963 Vienna Convention on Consular Relations. Specifically, the Court decided by votes of 14 - 1 that the U.S.A. was in breach:

   - “by not informing, without delay upon their detention, [ ] 51 nationals of their rights” to consular assistance
   - “by not notifying the appropriate Mexican consular post without delay of the detention of [ ] 49 Mexican nationals … and thereby depriving the United Mexican States of the right, in a timely fashion, to render the assistance provided for by the Vienna Convention”
   - by depriving Mexico “of the right, in a timely fashion, to communicate with and have access to those [49] nationals and to visit them in detention”
   - by depriving Mexico “of the right, in a timely fashion, to arrange for legal representation of those nationals”

   The Judgment of the Court finds that “the appropriate reparation in this case consists in the obligation of the [U.S.A.] to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals.” The Court stated further that: “the fact that in this case the Court’s ruling has concerned only Mexican nationals cannot be taken to imply that the conclusions reached by it in the present Judgment do not apply to other foreign nationals finding themselves in similar situations in the United States.”

   That same day, The New York Times reports, the U.S. Supreme Court was hearing arguments regarding the Alien Tort Statute ( Sosa v. Alvarez-Machain , No 03-339). The case involves an appeal by the U.S.A. and a Mexican citizen “who was recruited by federal drug enforcement agents to kidnap a Mexican doctor in his Guadalajara office and bring him across the border” after being “indicted on charges of participating in the torture and murder of a federal agent.” The doctor was acquitted and returned to Mexico, and subsequently sued the U.S.A. and the Mexican recruit for false arrest in violation of international law.

   The Alien Tort Statute allows lawsuits “for a tort only committed in violation of the law of nations or a treaty of the United States.” The article reports that “[t]he growing use of the law…has alarmed the international business community, which has seen several lawsuits brought against multinationals for their labor practices or collaboration with repressive regimes,” and that the Bush administration has repudiated the broad interpretation of the law once supported by the federal government.