Copland and Brenner

Table of Contents

1. 2005 Poverty Guidelines Issued
2. Retrogression of Employment-Based Third Preference Visa Numbers
3. Restrictionist Legislation Advances in House
4. PERM Regulations to Take Effect March 28

1. 2005 Poverty Guidelines Issued

   On February 18, 2005, updated “poverty guidelines” of the U.S. Department of Health and Human Services (“HHS”) were published in the Federal Register. As is typical, the poverty guidelines increased to account for cost of living adjustments for the last calendar year as measured by the Consumer Price Index. For most purposes, the new guidelines became effective on the date of publication. While the agencies have not yet issued any notice as to implementation date, we expect U.S. Citizenship and Immigration Services and the Department of State to announce that the increases will go into effect on or around April 1, 2005 for immigration purposes.

   Section 212(a)(4) of the Immigration and Nationality Act (“INA”) makes inadmissible to the U.S.A. “any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” In determining whether a prospective immigrant is likely to become a public charge, the INA specifies that certain factors – including age, health, family status, assets, education and skills – are to be assessed. In order to make a so-called “public charge” determination, a consular or immigration officer refers to the poverty guidelines established by HHS.

   For immigrant visa and adjustment of status applicants subject to the I-864 contractual affidavit of support requirement, the financial sponsor(s) must document ability to maintain an annual income equal to at least 125 percent of the federal poverty line applicable to the size of the sponsor’s household. Under the 2005 poverty guidelines, a household of two within the 48 contiguous states will require documentation verifying $16,038 in income (an increase of $425 over last year). For a household of three, the new amount is $20,113. Specific amounts are provided for households of up to eight people (for which the required amount is $40,488). For each additional household member beyond eight people, the sponsor must add $4,075 (an increase of $100 over last year). Higher figures apply to residents of Alaska and Hawaii.
   

2. Retrogression of Employment-Based Third Preference Visa Numbers

   For those affected and caught unaware, recent editions of the U.S. Department of State’s Visa Bulletin deliver harsh news. For a few years, all employment-based immigrant visa preference categories had been “current” for all countries – even those using the most numbers (recently, China (PRC), India and the Philippines). In January 2005, however, the third employment-based preference category for those three countries retrogressed and now stands at March 1, 2002. In addition, since only last month, the “other workers” subcategory has retrogressed nearly four years, to July 1, 2001. All this spells bad news not only to affected aliens, but to the U.S. employers relying upon them to deliver goods and services in America.

   As background, U.S. immigration laws establish certain annual limits on the number of persons permitted to immigrate to the U.S.A. (i.e., those who become lawful permanent residents or “green card” holders). Only immediate relatives of U.S. citizens ( i.e. , the spouse or minor child of a U.S. citizen, or the parent of a U.S. citizen at least 21 years of age) are exempt from those limits. For all others, whether there is an immigrant visa available depends in part upon where they fall in the “preference” system that defines the relationship between the U.S. petitioner and the alien beneficiary.

   Section 201 of the Immigration and Nationality Act establishes an annual minimum family-sponsored limit of 226,000 worldwide. For employment-based immigrants, the worldwide annual level is at least 140,000. Within the total number authorized by law, visas are allocated among four family-based categories and five employment-based categories, known as preference categories.

   In the employment-based group, the preference categories include the following:

   - first preference: priority workers, including persons of extraordinary ability, outstanding professors and researchers, and multinational executives and managers
   - second preference: members of the professions holding advanced degrees and aliens of exceptional ability
   - third preference: skilled workers, professionals and other workers
   - fourth preference: special immigrants, including returning residents and religious workers
   - fifth preference: employment creation (investors of $1,000,000 in a new commercial enterprise; in limited cases the threshold investment is $500,000)

   For the combined family and employment-based preference categories, there is also a per-country limit such that any one country is restricted to seven percent of the total annual number of immigrant visas; i.e. , 25,620. It is this per-country limit of seven percent that most frequently becomes a concern to petitioning employers, family members and the alien beneficiaries. Sometimes, however, a backlog exists worldwide.

   It is the filing date of a labor certification application or immigrant visa qualifying petition that establishes the all-important “priority date” of a particular beneficiary. In the Visa Bulletin , the cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only beneficiaries who demonstrate immigrant visa eligibility and have a priority date earlier than the cut-off date may be allocated an immigrant visa number. When it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date.

   The roller coaster of immigrant visa availability has long been a hobgoblin for petitioning employers, relatives and alien beneficiaries. In the employment-based context, an overview of the past five years shows that there was a backlog for the PRC and India in the third preference category in July 1999 – then the numbers became current in August 1999. By May 2000, the numbers were backlogged again for both countries, to early 1997. In July 2001, the third preference was again current for all countries, and remained so until January of this year. At that point, the third preference category retrogressed for the PRC, India and the Philippines to January 1, 2002. The exception was for so-called “other workers,” whose priority date remained current for all countries until this month, as described above.

   We note that it is not only the employment categories that are caught up in the preference system’s vagaries of immigrant visa availability. Last year, from June to August 2004, the family-based third preference category (married sons and daughters of U.S. citizens) for the Philippines retrogressed from March 1, 1990 to September 1, 1988. This month, that priority date cutoff is July 1, 1990.
   
   In the employment-based context, the retrogression for the Philippines is largely attributable to the significant number of health-care workers (the vast majority of whom are nurses) sponsored in recent years. Generally stated, because Filipinos are English speaking and have high educational standards, U.S. medical facilities have found them attractive candidates to meet a critical labor shortage (the nursing profession continues to be classified as a shortage occupation by the U.S. Department of Labor). The U.S. Consulate in Manila issued 8,705 third preference visas in fiscal year 2004, a 33.8% increase over FY2003. With signing bonuses, enormous salary differentials and significant historical and familial ties to the U.S., the choice for many Filipinos is an easy one, and a good one. In the Philippines, however, the view of this particular brain-drain is somewhat different. There, various reports express concern over the number and quality of nurses being recruited for employment overseas.

   INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. While fair in many respects, the problem with this statutory mandate is that each consular post and each USCIS office might have vastly differing processing time frames. Centralized processing of family-based adjustment of status cases in the U.S.A. might alleviate this to some extent, though a large number of those cases are likely to be immediate relative cases not subject to the annual limits of the preference system. It also means that those who fail to act quickly once notified that their priority date is current, and those who fail to properly document immigrant visa eligibility, are more likely to be swept up in a backlog than those who act quickly and do properly document their cases.

   For now, the one thing that appears clear is that there will be many questions regarding procedures. For each situation, there may be a host of distinct factors that make a case-specific analysis essential. Those already in the U.S.A. and whose adjustment of status applications are pending are the lucky ones. Although they will remain in limbo, unable to complete processing for permanent residence, they will be able to apply for work permission (and in certain cases, travel permission via advance parole). However, those who must immigrant visa process overseas will remain ineligible for visas until their priority dates become current.

   Those who are in the U.S.A., in their sixth year of H-1B status, but are not the beneficiary of a labor certification application or immigrant visa petition filed at least one year ago may be the biggest losers. In such cases, they are now ineligible to apply for adjustment of status because of the retrogression, and are ineligible for extensions of H-1B status beyond the sixth year. It is unclear how many aliens (and U.S. employers) might be affected by this situation, but the impact may be severe. For its part, a recent communiqué concerning a liaison meeting between the local AILA chapter and the Buffalo District USCIS office indicates that “there have been no changes in CIS policy to address this issue. If the person is not eligible for adjustment of status or extension of non-immigrant visa status, it is possible that an individual subject to EB3 retrogression will have to depart the U.S.” It is a waiting game with, in many cases, much at stake.
   

3. Restrictionist Legislation Advances in House

   On February 10, the House of Representatives passed H.R. 418 (the “REAL ID” Act). The bill, sponsored by James Sensenbrenner (R-WI), contains an array of provisions that will severely, negatively impact asylum claimants, those in removal proceedings, and those seeking judicial review. The bill also resuscitates Rep. Sensenbrenner’s earlier proposals to restrict state driver license issuance in an array of circumstances. The bill appears to face opposition, at least on certain issues, from key factions including the White House and the Senate. Nonetheless, passage by the House reflects the ongoing potential for ugly changes that may hurt most those in greatest need of protection.

4. PERM Regulations to Take Effect March 28We remind readers that regulations radically altering the labor certification application process will take effect on March 28, 2005. The new rules will apply to labor certification applications filed on or after that date, which falls on a Monday. Accordingly, any sponsor seeking to file under the current rules must be sure that the application is received by the appropriate Department of Labor office no later than Friday, March 25, 2005. In the coming months we will update readers regarding implementation of the new rule and offer our “report card” as to whether its promise is being fulfilled.