PERM

H-1B QUOTA FOR FISCAL YEAR 2004 MAY BE REACHED WITHIN THE NEXT FEW WEEKS

The U.S. Citizenship and Immigration Services (USCIS) announced yesterday the results of its review of the H-1B quota for the first quarter of the government's fiscal year 2004 (October 1, 2003 through December 31, 2003). This is the first report that USCIS has issued about the status of the H-1B quota during fiscal year 2004. The H-1B quota was dramatically reduced from 195,000 in fiscal year 2003 (October 1, 2002 through September 30, 2003) to 65,000 in fiscal year 2004 (October 1, 2003 through September 30, 2004). In addition to the significant reduction of the H-1B quota to 65,000, the Bush administration has also entered into two Free Trade Agreements which set aside 6,800 numbers from the H-1B quota. The USCIS has indicated that these numbers will be set aside until the end of fiscal year 2004 and then if all of the numbers have not been used, the numbers will be returned to the general pool of numbers available under the H-1B quota. Please note that the following types of H-1B cases are not subject to the H-1B quota:

H-1B petitions filed by institutions of higher education;

H-1B petitions filed by non-profit organizations or entities related to or affiliated with an institution of higher education;

H-1B petitions filed by non-profit research organizations or governmental research organizations;

H-1B petitions filed on behalf of J-1 nonimmigrants who are foreign medical graduates and who have received waivers of the two-year foreign residency requirement; and

H-1B petitions filed on behalf of beneficiaries who were previously granted H-1B status in the past six years and have not left the United States for more than a year after attaining such status.
Based upon the USCIS' fiscal year 2004 first quarter H-1B usage tabulations, the USCIS has determined that as of December 31, 2003, it had either approved or had pending 43,500 cases that would count against the H-1B quota for fiscal year 2004. Therefore, if the 6,800 H-1B numbers that must be set aside for the Free Trade Agreements are added to the 43,500 total number of H 1B cap cases that have either been approved or are pending as of December 31, 2003, the USCIS may only be able to approve an additional 14,700 H-1B cap cases filed after December 31, 2003.

Due to the fact that it appears that the H-1B quota is rapidly approaching, our office anticipates that USCIS will discontinue the Premium Processing option for H-1B cap cases within the next few weeks. The USCIS has previously indicated that it would discontinue the Premium Processing option prior to the H-1B cap being reached in order to permit the USCIS to process the remaining pending H 1B cases chronologically based on the date of filing. Additionally, our office is also estimating that the USCIS will announce a few weeks after it discontinues the Premium Processing option for H-1B cap cases that the H-1B quota has been met for fiscal year 2004. At that time, the USCIS should indicate how it will proceed with H-1B cap cases filed prior to that date that have not been approved and also the H-1B cap cases filed after that date. After the H-1B quota is reached, the USCIS will be unable to approve H-1B cap cases requesting validity dates prior to October 1, 2004, unless legislation is enacted to raise the H-1B quota. However, the likelihood that the H-1B quota will be raised during this election year is considered to be minimal.

We are strongly encouraging employers to file H-1B cap cases as soon as possible. We are also recommending that employers review the status of their employees who are working for them pursuant to F-1 optional practical training (OPT). If the employees' Employment Authorization Document (EAD) which was issued based upon OPT expires prior to October 1, 2004, the employers may be unable to continue the employees' employment after the expiration of the card if the employees' H-1B petition is not approved prior to the H-1B quota being reached.

Additional information about the status of the H-1B quota will be included in our firm's Immigration Updates.

PRESIDENT BUSH SIGNS OMNIBUS SPENDING BILL INTO LAW"”DOL MAY NOW ADVANCE ITS PERM REGULATIONS

President Bush signed into law an $820 billion Omnibus Spending Package which provides funding to 11 cabinet departments and a variety of federal agencies for fiscal year 2004. The legislation was enacted nearly four months after the beginning of fiscal year 2004 and only after intense partisan debate over the contents of the legislation. The Omnibus bill contains funding for a number of immigration-related agencies and programs, such as the Executive Office for Immigration Review (EOIR), refugee programs within the Department of Health and Human Services (HHS), visa and consular programs within the Department of State (DOS) and labor certification work site enforcement programs within the Department of Labor (DOL).

The legislation earmarked more than $100 million for the labor certification program in order to address the extreme backlogs around the country and also to fund the introduction of PERM. Additional information about PERM is contained in the Articles Section of our Firm's website. Because the funding for PERM has now been finalized with the passage of this legislation, DOL is expected to forward its long-awaited, final PERM regulation to the Office of Management and Budget (OMB) for clearance. It is expected that OMB will take up to 90 days to review the regulation. After the regulation has been cleared by OMB, it will be sent to the Federal Register for publication. DOL has previously indicated that PERM will become effective 120 days after the final regulation is published in the Federal Register. After PERM becomes effective, employers will no longer be able to file Labor Certification Applications through the current traditional and Reduction-In-Recruitment (RIR) procedures. However, it has been indicated by DOL that employers who currently have applications pending pursuant to the current process will be able to elect to have the applications processed through the PERM procedure. Additional information about the PERM process will be contained in future weekly Immigration Updates.

RECENT DELAYS IN ADVANCE PAROLE ISSUANCE

The U.S. Citizenship and Immigration Services (USCIS) has acknowledged that processing times for advance parole travel documents has greatly increased recently. USCIS stated that the increase in processing times in many instances has been due to the fact that the USCIS did not have a sufficient source of security paper on which to print the advance parole documents. The USCIS indicated that it had ordered new security paper to reflect that USCIS was now an agency within the Department of Homeland Security (DHS). However, there has been a delay in printing this new security paper. Due to the growing backlog, the USCIS requested a supply of the old security paper with the name of the Immigration and Naturalization Service on it. The USCIS recently received this paper and is distributing it to its service centers. At least one of the service centers has indicated that it will make the processing of the advance parole documents a priority in order to reduce processing times.

USCIS CENTRALIZES THE FILING OF THE FORM I-360 WITH THE NEBRASKA SERVICE CENTER

The USCIS recently announced that it is expanding its Direct Mail Program by directing that all petitions for special immigrant classification whether submitted separately or concurrently with an adjustment of status application be mailed to the USCIS Nebraska Service Center. Additionally, applicants who apply for adjustment of status based on a previously approved petition for special immigrant classification must file their adjustment of status applications with the Nebraska Service Center. This change becomes effective on February 23, 2004. The USCIS stated that it is consolidating the adjudication of these benefits at one location to enhance the uniformity of decisions and to improve customer service. After February 23, 2004, applications filed at locations other than the Nebraska Service Center will be forwarded to the Nebraska Service Center until the instructions on the Forms I-360 and Form I-485 have been amended to include the correct filing address. Petitions filed prior to February 23, 2004 will continue to be adjudicated to their completion at the service center or district office where they were originally filed.

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