Thursday, December 28, 2006

USCIS Memo on H and L Timing & H1B/H-4 Decoupling

From MurtyDotCom:
The USCIS has just released a memo dated December 5, 2006, that makes significant positive changes to the counting of time for H1Bs, H-4s, L-1s, and L-2s. This Memo addresses three separate issues. It decouples time spent in H-4 or L-2 status from the time limits spent in H1B or L-1 status, respectively. It permits extensions beyond the six-year H1B limit even when an individual has not been maintaining H1B status. Finally, it permits a person who departs the U.S. for more than a year prior to completion of the six years in H1B status to return for the time remaining of that six-year H1B period without again being subject to the H1B cap.

Ours To Lose

It is a fallacy to believe that in the incoming 110th Congress, there will be many newly-elected moderates/conservatives in the Democratic caucus. Writing in Roll Call on November 16, 2006, noted political analyst Stuart Rothenberg said "... I met dozens of Democrats running in 2006 - no, not everyone, but most of them - and I can’t find much more than a couple who merit the label "conservative." That’s not meant to be either criticism or praise. It’s merely a statement of fact ... Virtually all of the Democrats I interviewed were pro-choice, favored rolling back President Bush’s tax cuts and sounded traditional Democratic themes on education, the environment and foreign policy ... Now let me be very clear about my point. I’m not saying that it’s good or bad that most of these Democrats are likely to be pretty typical members of their party. I’m only saying that’s where they fit. A bunch of conservative Democrats didn’t win election last week."

The idea that immigration reform prospects early in 2007 must be limited because the Democratic caucus may have too many moderate/conservative Democrats who will resist liberal immigration laws is hogwash. However, there have been numerous press reports since the election which paint a grim picture for rapid progress on significant immigration benefits legislation in the early weeks and months of 2007. Here's why we have had this mis-information campaign.

Immigration lobbyists closely allied with liberal Democrats realize full well that they are now, for the first time since 9/11, on the offense, not defense. They realize full well that they are now on the cusp of enactment of major immigration benefits bills. However, with this new perspective has come hubris. Many of them now think that S. 2611 (the amended McCain-Kennedy bill) which would have granted legalization to 5 million, established significant quota relief for both employment and family immigration, established a modest guest worker program, etc does not go far enough, and is too punitive in its other provisions. In order to increase the reach of legalization, reduce punitive provisions, etc, they are pursuing what is essentially an all-or-nothing strategy. The immigration lobbyists' attitude appears to be that unless they get the original un-amended McCain-Kennedy or better, they would rather have no relief at all for the next several years.

We believe that the window of opportunity on immigration benefits is much smaller than most people think. We need not just a bill, but a conference report, in weeks, not months. Perhaps the memories of divided government have faded inside the Beltway. The last time we had a different party in charge at either end of Pennsylvania Ave (in the Clinton years), we had an ugly political climate, and legislative grid lock. There is every reason to believe that the same might happen again in a few months. Once the new Democratic staff are hired, and once the subpoenas from the new Democratic Chairs start to flow, Washington DC will be all-ugliness all-the-time. Furthermore, when last in the opposition pre-1994, the Republicans proved that they were masters of obstruction (does any immigration lobbyist relish the idea of crossing swords with the master-parliamentarian Mr. Lamar Smith, who will do everything in his power to destroy immigration benefit hopes from his new perch as ranking member of the House Judiciary committee?).The window of opportunity is only a few months (not the many months till the start of the 2008 Presidential season).

We believe it would be more prudent to pursue a limited strategy in early 2007 of obtaining a "down-payment" on comprehensive immigration reform. Perhaps we could just get DREAM, or just move the registry date from 1971 to IRCA's date, or perhaps, Congress could return to the business left unfinished on the morning of 9/11/01, when the House was to have voted on a Senate-passed extension of 245(i). We do not believe that the prospects of comprehensive immigration reform would be in any way damaged by getting a down-payment in hand first (a bird in hand is worth two in the bush). If later, we can get more reform, the immigration champions on the Hill will be heroes. If not, immigration champions will then be able to hold their head up high and say that at least they got something concrete in hand from this historic opportunity now before us.

We welcome readers to share their opinion and ideas with us by writing to editor@ilw.com.

Wednesday, December 27, 2006

Here We Go Again, Another Cycle of CIR Circus Soon?!

From Immigration Law:
A news report indicates that the Congress may introduce another form of Comprehensive Immigration Reform bills soon after the new Congress (110th) opens next year. The Congress keeps coming back to the immigration bills early each year without fruits at the end of the year. People are more or less exhausted of the circus. Let's see what kind of drama will unfold next couple of months.

January 2007 Visa Bulletin

Every month around the 15th day, the U.S. Dept. of State, releases the visa bulletin which lists who can avail of a visa number next month to adjust status to permanent residency. This bulletin breaks down the numbers based on the category and also separates out over-subscribed countries from the rest of the world. When you apply for permanent residency you get a case number and a priority date. If your priority date is earlier than the date listed in the visa bulletin for your application category, USCIS will proceed with your case and in most cases you will get your permanent resident card in a few months. Here are the cut-off dates for employment-based permanent residency categories from the January 2007 visa bulletin:

For persons born in India:
CategoryCut-off DateMovement from previous month
EB1CurrentNo change
EB208 Jan 2003No change
EB308 May 2001Moved ahead by 16 days

For persons born in China:

CategoryCut-off DateMovement from previous month
EB1CurrentNo change
EB222 Apr 2005No change
EB301 Aug 2002No change

For persons born in Philippines:
CategoryCut-off DateMovement from previous month
EB1CurrentNo change
EB2CurrentNo change
EB301 Aug 2002No change

For persons born in Mexico:
CategoryCut-off DateMovement from previous month
EB1CurrentNo change
EB2CurrentNo change
EB315 May 2001Moved ahead by 7 days

For rest of the world:
CategoryCut-off DateMovement from previous month
EB1CurrentNo change
EB2CurrentNo change
EB301 Aug 2002No change

Schedule A visa numbers which are used by Nurses and Physical Therapists are now retrogressed to 15-Jun-2004 for all countries. They have been current since Jan 2005 when the current retrogression started.

Last minute effort fails once again

Sen. Cornyn attempted to push passage of the SKILL bill in the Senate during the Lame Duck Session in the earlier half of December. However, within the Republican court of the Senate, there are some Republican Senators that oppose this bill. Besides, considering the fact that the Lame Duck Congress went out of session at the end of the week, unless a miracle happened, passage of this bill both in the House and the Senate would not have materialized.

Friday, December 01, 2006

Retrogression Math for Dummies - EB3 India Edition

For the seventh month in a row, the Employment based third preference category (EB3) visa cut-off date for persons born in India remains in April 2001. During the same period, EB3 worldwide has advanced by 13 months to August, 2002. Before reaching the April 2001 brick wall the cut-off date had moved steadily by 3 months during the previous 3 months.

So what could be possible reasons for this stalling? Some think that since Schedule A numbers are now used up, they're allocating EB3 numbers to the them and since a majority of the Schedule A numbers went to nurses and the likes from India, EB3 India is now at a stand still.

Others think its because of the amnesty given to illegal immigrants under section 245(i) which had a cut-off date of April 2001 and many illegal Indian immigrants may have taken advantage of this provision. This still wouldn't explain why countries like Mexico with traditionally higher number of illegal immigrants have better cut-off dates than India.

Finally that's when you switch on your calculator and start working with the numbers. There are 140,000 visa numbers available under all the employment based categories, with 7% per country limit and 28.6% allocated for EB3 and dependents counted into the numbers, there are only about 115 EB3 primary applicants allowed from India per month. Throw in a few thousand illegals into the mix and now you have the royal screw-up as is happening now. The law allows visa numbers from unused countries to be transferred to the oversubscribed countries but with nearly every category retrogressed this law won't apply for a while.

So there you have it, unless there is a change in law to at least temporarily accommodate the thousands of applicants whose lives are in limbo there is no chance that we'll see the numbers move anytime soon.

Here's a solution that would appeal to all those of you who say "well, if you don't like it then you can leave!". To them I would say, since a majority of the EB3 applicants were once on H1-B visas, why don't we put a 7% per country limit on the on H1-B visa numbers. That way only an equal number of people from India or China would come in as would from Kazakhstan and you wouldn't have this problem. You know that's never gonna happen. Why? Because the U.S. needs the Indian and Chinese skilled professionals in thousands to keep themselves globally competitive. The visas expire but there's always a new pool of foreign workers eager to come in (with the hope of green cards) every year. When its time to give them back something in return, they whimper. Grow some hair!