Copland and Brenner

Table of Contents

1. DOL Advises AILA on PERM Logic
2. H-1B Seventh Year Extensions
3. Third Preference Retrogression; Good News for Nurses?
4. Scare Closes 26 Federal Plaza...
5. Manlin Chee: Hero or Villain?

1. DOL Advises AILA on PERM Logic

   As we reported last month, denials of some labor certification applications filed under PERM are acknowledged by the Department of Labor (“DOL”) to have been in error, and a fix was promised. As of July 1, the American Immigration Lawyers Association (“AILA”) informed members that the problem, a result of the “decision logic” of the agency’s automated system, is continuing.

   While some AILA members report that earlier inappropriate denials now indicate their cases are again pending in some capacity, others have not seen any change. Meanwhile, additional AILA members are reporting more recent inappropriate denials. The DOL advised AILA that, “[u]nfortunately, we have not had all issues fixed on the technology side, but we are in the process of doing so now. We will notify you when the changes are implemented. Please advise your members to be patient and not re-submit their applications.” (AILA InfoNet Doc. No. 05070141, July 1, 2005)

2. H-1B Seventh Year Extensions

   For some employers, the DOL advice to “be patient and not re-submit” a labor certification applications may be off the mark, particularly where an H-1B extension will be required beyond the general six year maximum. This need may arise due to agency processing time frames or because retrogression in an immigrant visa preference category affects eligibility for lawful permanent residence. In such cases, patience may not be a virtue, and refiling the better approach to preserve uninterrupted employment permission.

   In recent years, the need for seventh year (and beyond) H-1B extensions have generally been necessary due to significant DOL processing delays for pre-PERM labor certification applications, and resulting agency backlogs. To accommodate employer needs for uninterrupted employee services in such circumstances, a provision of the American Competitiveness in the 21st Century Act (“AC21”) (October 17, 2000) allows for an alien holding H-1B status to extend that status beyond the six year limitation if at least 365 days have passed since the filing of a labor certification application. If the alien’s immigrant visa category does not require a labor certification application, then the same principle applies to the filing of an employment-based immigrant visa petition that has been pending for at least 365 days.

   For pre-PERM labor certification applications, now pending at the two DOL “Backlog Reduction Centers,” the agency advised AILA that confirmation of filing to extend an H-1B alien beyond the sixth year will be provided upon request. For the Center in Philadelphia, an inquiry should be emailed to h1b7yr@phi.dflc.us. For the Center in Dallas, an inquiry should be emailed to h1b7yr@dal.dflc.us. According to AILA, DOL advises that it will return a screen shot and that U.S. Citizenship and Immigration Services (“USCIS”) will accept a screen shot as the required evidence of filing. (AILA InfoNet Doc. No. 05070141, supra )

   Another provision under AC21 applies to H-1B aliens who are the beneficiary of a first, second or third preference employment-based immigrant visa petition. If, due to oversubscribed per-country limits, an H-1B alien is not eligible for a pending application for permanent residence, he or she may obtain extensions of H-1B status beyond the sixth year. This is particularly relevant this month, for reasons explained below.

3. Third Preference Retrogression; Good News for Nurses?

   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. There are five employment-based categories, for which the worldwide annual level is at least 140,000.

   Within the total number of visas authorized by law worldwide, there is a percentage limitation that applies in each preference category. Within the overall limit within each preference category, there is also a per-country limit that prevents any one nation from exceeding seven percent of the total annual family- and employment-based limit. The bottom line is that no country can send more than 25,620 preference immigrants annually. Obviously, therefore, countries with higher U.S. immigration rates will reach their per-country limit more quickly than others. For this reason, China, India, the Philippines and Mexico are commonly subject to separate cutoff dates than that which applies worldwide.

   As we discussed in our March edition, the third employment-based preference category (for skilled workers, professionals and other workers) for China, India and the Philippines retrogressed in January 2005. At this writing, the third preference employment-based category is oversubscribed for all countries worldwide. The U.S. Department of State, in its July Visa Bulletin , advises that “[t]he Employment Third and Third Other Worker categories have reached their annual limits and no further FY-2005 allocations are possible for the period July through September. With the start of the new fiscal year in October, numbers will once again become available in these categories. It is not possible to make any estimates regarding potential cut-off dates at this time.”
   
   In the meantime, however, a provision of The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief Act of 2005, which contained significant anti-immigrant provisions, will come to the rescue of certain so-called “Schedule A” qualifying immigrants. Schedule A is the DOL appellation that applies when there are insufficient U.S. workers who are able, willing, qualified, and available to perform an occupation. Currently (and for some time now), such occupations include (a) physical therapists and nurses, and (b) aliens of exceptional ability in the sciences or arts.

   The Emergency Supplemental Act provided for recapturing up to 50,000 employment-based immigrant visa numbers that went unused during fiscal years 2002 – 2004. The numbers were not used because of insufficient demand in certain preference categories. Recently, the Department of State advised AILA that “The additional 50,000 Schedule A visas will help, but there is no way of telling how much of the current Employment Third preference demand will be covered by these additional numbers. It is possible that most of the Philippines demand is covered, but it’s not clear how many of the 2,800 pending China/India [ ] applicants will qualify for Schedule A classification.” (AILA InfoNet Doc. No. 05061060, June 10, 2005)

   The July Visa Bulletin advises that “[t]he immigrant classification for these 50,000 visa numbers has been designated as Schedule A Worker with the category symbol being ‘EX,’” and that EX visa numbers may immediately be allocated to Schedule A immigrants and their dependents. Further, “‘EX’ visa numbers may be allocated to all Third preference Schedule A applicants from all countries, including China, India, and Philippines, only if their priority date is beyond the established Third preference cut-off date or if the Third preference category is ‘Unavailable’. [sic] The ‘EX’ category is CURRENT, and will remain Current for the foreseeable future.” (emphasis in original)

4. Scare Closes 26 Federal Plaza...

   On June 29, various news media alerted readers to a sudden, chaotic closing of 26 Federal Plaza, the New York City building that has long housed the district USCIS office (and legacy INS), along with a host of other federal agencies. The following day, there was an explanation: Tahir Taravari, reportedly a 55-year-old Macedonian seeking asylum after illegally entering the U.S.A., was behind the chaos that ensued. As reported by The New York Times on June 30, Mr. Taravari had folded a large amount of white powder into a paper napkin, which he then placed in his sock. When he walked through the building’s metal detector on his way to a proceeding before the Immigration Court, the detector was set off.
   
   While Mr. Taravari’s reported explanation is that he used the baking soda to calm his ulcer, the perception he created was that he was smuggling a dangerous substance, perhaps anthrax, into a federal building. As a result, the building was largely evacuated, the air conditioning system shut down, and Mr. Taravari taken into custody.

   The good news for Mr. Taravari is that, assuming he missed his scheduled hearing, he may be able to convince the Immigration Judge that “exceptional circumstances” prevented him from appearing. Thus, he stands some likelihood of avoiding an in absentia deportation order. Others scheduled for hearings or immigration on June 29 may not be so fortunate.
   
   ...Subjecting some Cases to Retrogress?

   As of June 14, the New York City USCIS office was processing adjustment of status cases filed on December 16, 2002 . As discussed above, the third preference employment-based category is now backlogged worldwide as of July 1, except for the special Schedule A visa allocation. Thus, when Mr. Tamavari set off the metal detector, he set in motion a series of events that could negatively impact a large number of others scheduled for immigration appointments or proceedings on that day.

   The New York City AILA Chapter has advised members that many interviews were not completed on June 29, and that some applicants who appeared on June 30 were accommodated. For third preference applicants who were scheduled for June 29 interviews in New York City, and unable to complete third preference employment-based adjustment of status interviews by June 30, the scare means they now fall subject to the worldwide backlogs that took effect July 1.

   This unfortunate consequence can negatively impact an alien’s life for years. A delay in the date of adjustment of status may cause hardships for the alien as well as dependent family members, and will delay the eventual date of eligibility for naturalization. There is no way to measure the ripple effects on potentially many lives.

5. Manlin Chee: Hero or Villain?

   Many immigration-related media, and some in the mainstream, have repeated the unfortunate story of Manlin Chee, a naturalized U.S. citizen who has been praised for more than three decades of legal service to the immigrant community. The tale, apparently originally published in an Asian Week article by Yu-Yee Wu (June 29, 2005), goes like this: after Chee began passionately and publicly denouncing the PATRIOT Act, the FBI began an investigation that culminated in two “sting” operations. One poseur wanted to pretend he was gay to seek asylum; the other sought a sham marriage to pursue a green card. Chee, for reasons only she can understand, eventually filed papers on their behalf.

   Chee’s defenders allege that she was targeted for her views and suffered from an anxiety disorder that affected her judgment; state she would “feel worse if she didn’t try” and “would go the extra mile to help;” and capitulated only after repeated entreaties, some intimidating, by the informants.

   Whatever her political views, any attorney practicing in any field is bound by ethical obligations to represent the truth to the tribunal. In knowingly failing to do so, an attorney risks his or her license to practice law. Chee was indicted for immigration fraud on June 26, 2004, pleaded guilty, and was sentenced to a year and a day in prison. She has been expelled from practice before immigration tribunals by the Executive Office for Immigration Review.