Copland and Brenner

Table of Contents

1. "REAL ID" Legislation Real Likely Law
2. FY2005 H-1B Numbers Available to Certain U.S. Degree Holders

1. "REAL ID" Legislation Real Likely Law

   Despite intensive lobbying efforts by the American Immigration Lawyers Association and many other organizations, Congressional leaders have agreed upon an Emergency Supplemental Appropriations Bill, H.R. 1268, that includes harsh provisions restricting asylum, further limiting judicial review, eliminating habeas corpus , and mandating state compliance with new federal standards for driver license and identification documents. Those provisions were previously proposed in the so-called REAL ID Act (H.R. 418) sponsored by Representative James Sensenbrenner (R-WI).

   As AILA noted in a release on May 3, “this bill gives Congress a black mark procedurally. Because Congress held no hearings or meaningful debate on the legislation and amended it to a must-pass spending bill, the REAL ID Act did not receive the scrutiny necessary for most measures, and most certainly not the level required for a measure of this importance and impact. Consistent with the lack of debate and discussion, conference negotiations also were held behind closed doors, with Democrats prevented from participating.”

   AILA's press release assumes easy passage of the legislation by both full houses of Congress and predicts that, “[o]nce enacted, the REAL ID act will have numerous negative consequences, including: making it extremely difficult for people fleeing persecution to obtain refuge in the United States; suspending the Great Writ of habeas corpus for the first time since the Civil War; increasing the number of uninsured, unlicensed drivers on our roadways; imposing impossible and unfunded mandates on the states; undermining our fundamental commitment to free speech and association; and waiving all laws related to construction of fences at our borders, thereby granting unprecedented, and unnecessary, authority to the Department of Homeland Security.”

   The Senate approved its appropriations bill on April 21 by a vote of 99 in favor (one senator did not vote). By that time, the REAL ID Act was already attached to the House version of the appropriations bill. Senator Durbin (D-IL), in a statement posted by AILA (Doc. No. 05042162, April 21, 2005), stated that House Republicans chose the appropriations bill to attach the REAL ID Act “because they know we need this bill. It needs to be signed by the President. So they are hoping to push through this change in immigration law on a bill that is a must-pass bill. We have had no hearings, no debate, no votes in the Senate on this so-called REAL ID Act. The Senate Republican leadership has stated it is opposed to including this act in the appropriations bill. I hope they mean it. The test will come when this bill returns from the conference committee.”

   Days later, on April 26, the House passed its version of the spending bill, with 417 yeas, 4 nays and 13 Representatives not voting. Because the Senate and the House versions of the bill were different, the bill went to a conference committee as expected. The White House (by letter dated April 25, 2005, AILA Doc. No. 05042760) “strongly urge[d] the conferees to include the Real ID Act of 2005 in the final version of the bill,” on grounds that it “will strengthen the ability of the United States to protect against terrorist entry into and activities within the United States. And so the conferees did.

   With the Senate reconvening in Washington on May 9 after a one-week recess, a vote on the appropriations bill could happen at any time thereafter. With the conference bill widely expected to be passed by both Houses of Congress and signed by the President, the following immigration-related provisions will soon become law:

   Asylum: Applicants must show that race, religion, nationality, membership in a particular social group or political opinion was or will be at least one central reason for persecuting the applicant
   - Adjudicators will be authorized to apply new standards in making “credibility determinations”
   - If the adjudicator requires that an applicant provide evidence that corroborates otherwise credible testimony, the evidence must be provided unless the applicant does not have and cannot reasonably obtain it

   Removal: In Immigration Court proceedings, an alien seeking relief from removal must satisfy applicable eligibility requirements and, if the relief is discretionary, demonstrate that he or she merits a favorable exercise of discretion
   - A “credibility standard” that mimics the asylum standard and the corroborating evidence determination above will apply, with the immigration judge making the necessary determination

   Limits on court review: “No court shall reverse a determination” regarding the availability of corroborating evidence on credibility made by a trier of fact, unless the court finds after an order of removal that the corroborating evidence is unavailable
   - Clarification of “discretion” – language is added to clarify that no court shall have jurisdiction to review any judgment regarding relief under INA 212(h) (waivers for crimes of moral turpitude, controlled substance violations, multiple criminal convictions, prostitution and certain aliens granted immunity from prosecution); 212(i) (waivers for fraud or willful misrepresentation of a material fact); 240A (cancellation of removal); 240B (voluntary departure); or 245 (adjustment of status), “regardless of whether the judgment, decision, or action is made in removal proceedings”
   - As to judicial review of orders of removal, the conference bill clarifies that no habeas corpus review is available, whether statutory or non-statutory
   - Judicial review will be available only for constitutional claims or questions of law (not fact), and then only before the U.S. Circuit Courts of Appeals (not federal district courts)
   - Case already pending before federal district courts will be transferred to the appropriate U.S. Court of Appeals

   Border barriers: The Secretary of Homeland Security “shall have the authority to waive all legal requirements [which the Secretary] determines necessary to ensure expeditious construction of [ ] barriers and roads” (emphasis added)
   - a cause of action concerning any decision by the Secretary may be made only in U.S. district court, and must be filed within 60 days of the decision date

   State driver licenses and identification cards: Three years after the date of enactment, “a Federal agency may not accept, for any official purpose, a driver’s license or identification card issued by a State to any person unless the State is meeting the following requirements:”
   - By September 11, 2005, every state must enter into a memorandum of understanding with the Department of Homeland Security to use its Systematic Alien Verification for Entitlements (“SAVE”) “to verify the legal presence status [sic] of a person, other than a United States citizen” who is applying for such a state document
   - To issue such a document, a state must require a photo-identity document or a non-photo ID that contains the person’s full legal name and date of birth, documentation of the date of birth, proof of the person’s Social Security number or verification that he/she is not eligible for one, and documentation showing the person’s name and address of principal residence, and evidence of lawful status
   - The state must verify “with the issuing agency, the issuance, validity, and completeness of each document required to be presented”
   - Unless the person is a U.S. citizen, lawful permanent resident (including conditional residents), asylee or refugee, the state document shall be valid only during the person’s authorized stay in the U.S.A. If there is no definite end to the person’s stay, the state document may be valid for only one year, with extensions requiring evidence of the person’s authorized stay
   - For any document that fails to satisfy these requirements, a state must use a unique identifier (color or design) to alert federal authorities that it may not be used for federal purposes, and must clearly state this limitation on the face of the document

   The Good News (It Ain’t Much)

   The existing cap on asylee adjustment cases, currently set at 10,000 annually, is removed by the conference bill. This will mean a backlog that stretches many years should be immediately eliminated, though it remains to be seen whether DHS will insist on first issuing the regulations referenced in the bill. In addition, the annual cap of 1,000 for asylees and refugees seeking to avoid persecution for resistance to coercive population control methods (birth control, abortion, sterilization, etc.) is eliminated.

   In the temporary H-2B worker category, the annual cap of 66,000 will not apply to an alien who has already been counted toward the cap in any one of the three fiscal years prior to the fiscal year of the approved start date for the petition. Instead, the alien will be considered a “returning worker.” This provision is to be implemented no later than 14 days after the date of enactment, and expires on October 1, 2006. A new “fraud prevention and detection fee” of $150 will take effect 14 days after enactment, but will apply to filings for a fiscal year after FY2005, which ends on September 30 this year.
   

2. FY2005 H-1B Numbers Available to Certain U.S. Degree Holders

   Readers may recall that, immediately upon the start of fiscal year 2005 last October 1, the agency announced that the FY 2005 cap of 65,000 new H-1B workers had been reached. This meant that no new H-1B workers could be granted that status until October 1, 2005 - the first day of fiscal year 2006 . The H-1B Visa Reform Act of 2004, which exempts holders of U.S. masters degrees or higher from the annual H-1B cap, was enacted on December 8, 2004, with an effective date of March 8, 2005.

   In spite of the three months it had to promulgate implementing regulations for a statute that became effective during the current fiscal year, DHS failed to do so until May 5 – apparently because it had to figure out whether the law should provide benefits this year. In the interim rule, U.S. Citizenship and Immigration Services states that it “has determined it is a reasonable interpretation of the H-1B Visa Reform Act…to make available 20,000 new H-1B numbers in FY 2005.” Because Congress “specifically did not require USCIS to ‘reopen’ its review of H-1B petitions already received and re-characterize the petitions that would have qualified for the new exemption had it been in effect at the time the petitions were received….it is reasonable to do so going forward only.” The bottom line: those interested in availing themselves of the law must file a new petition, even if a previously filed petition would have satisfied the degree requirement.

   The filing period for FY2005 does not begin until May 12, 2005. Petitions under this exemption must be filed at the following address only – even for premium processing cases:

   Vermont Service Center
   1A Lemnah Drive
   St. Albans, VT 05479-7001

   Petitions that are filed prior to May 12, or are filed at any other address, will be rejected and returned to the petitioner or representative.

   We note that the old Form I-129, edition date 12-01/01, will no longer be accepted after May 29 . As of May 30, only the new I-129, edition date 3-17-05, will be accepted. It is strongly advised to use the new form for any H-1B filing going forward, as the old form requires annotations that are unnecessary with the new form. Along with Form I-129, a petitioner must file the I-129 Supplement H form, as well as Form I-129 H-1B Data Collection Supplement (both with edition date of 3-17-05). Petitions must be accompanied by the base filing fee of $185, the ACWIA fee of $750 ($1,500 for employers with 26 or more full time employees), and the $500 fraud prevention and detection fee. Premium processing cases require an additional filing fee of $1,000.