Immigration Dispatch

November 2004

Summary of L-1 & H-1B Amendments Included in Fiscal 2005 Omnibus Appropriations Legislation

The 2006 Diversity Immigrant Visa Program (DV-2006)

Electronic Completion and Storage of I-9 Forms Are Coming

Limit on L-1B Visa Status and Exceptions to the Time Limit

Department of State Predicts "Cut-Off" Date for EB-3 Category

Summary of L-1 & H-1B Amendments Included in Fiscal 2005 Omnibus Appropriations Legislation

Over the November 20-21, 2004 weekend, the House and Senate passed an Omnibus Appropriations Bill (H.R. 4818) that contains some significant immigration provisions. Among the most significant changes that will become law when the President signs the legislation in early December are revisions to the L-1 Intracompany Transferee and the H-1B Specialty Worker visa categories. Some of the more significant changes to the Immigration and Nationality Act (INA) include the following:

L-1 Visa Reform

  • Modifies INA § 214(c)(2) to prevent an L-1B visa holder from being primarily stationed at the worksite of another employer in cases where:

1. The L-1B visa holder will be controlled and supervised by an unaffiliated employer, or

2. The placement of the L-1B visa holder at the third party site is part of an arrangement to provide labor for the third party rather than placement at the third party site in connection with the provision of a product or service involving specialized knowledge specific to the petitioning employer.

The above modification to the law applies to initial, extended or amended petitions filed on or after the effective date.

  • Strikes from INA § 214(c)(2)(A) the provision permitting the six-month work requirement for L-1 blanket petitions. The modification made by this section applies only to petitions for initial classification filed on or after the effective date.

All of the above changes will take effect 180 days after the date of enactment of the Act.

H-1B Visa Reform

  • Modifies INA § 214(c)(9) by removing the sunset provision on the employer fees and making the fees permanent. This section also raises the fee for each petition from $1,000 to $1,500. Employers with no more than 25 full-time employees employed in the U.S. will be responsible for half of the fee amount. This change will take effect immediately upon enactment.
  • Modifies INA §212(p) to require employers to pay 100% of the prevailing wage. However, this section also mandates that where the U.S. Department of Labor uses or makes available to employers a governmental survey to determine the prevailing wage, such survey shall provide 4 levels of wages commensurate with experience, education, and the level of supervision. If a 2 level wage survey is used, this section provides a formula for calculating the 2 additional intermediate levels. This change will take effect 90 days after the date of enactment.
  • Modifies INA §214(g)(5) to include among the classes of H-1B exempted aliens an alien who has earned a Master's or higher degree from a U.S. institution of higher education. This exemption is capped at 20,000 per fiscal year. This change will take effect 90 days after the date of enactment.

H-1B and L-1 “Fraud Free”

  • Adds to INA §214(c) a new $500 fraud fee. Such fee will be in addition to other fees and will apply to employers filing either an initial petition for an H-1B or L visa or for a change of status petition. A $500 fraud fee will also be charged for an alien filing a visa application abroad for an L blanket petition. The fee will be imposed only on principal aliens. This change will take effect immediately upon enactment.

The 2006 Diversity Immigrant Visa Program (DV-2006)by Hector A. Chichoni

The Diversity Immigrant Visa Program (“DV-2006”) – a congressionally mandated program – is administered by the U.S. Department of State. This program provides for a class of immigrants known as “diversity immigrants.” The program makes available 50,000 permanent resident visas every year to individuals from countries with historically low rates of immigration to the United States.

Visas are distributed among six geographic regions with a greater number of visas going to regions with lower rates of immigration, and with no visas going to citizens of countries sending more than 50,000 immigrants to the U.S. in the past five years. No one country within each region may receive more than 7% of the available visas in any one year.

Under the DV-2006 program, the natives of the following countries cannot apply (because they have sent a total of more than 50,000 immigrants to the U.S. in the previous five years):

  • Canada
  • China (mainland-born)
  • Colombia
  • Dominican Republic
  • El Salvador
  • Haiti
  • India
  • Jamaica
  • Mexico
  • Pakistan
  • Philippines
  • Russia
  • South Korea
  • United Kingdom (except Northern Ireland) and its dependent territories, and
  • Vietnam.

Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.

Entries for the DV-2006 program must be submitted electronically between November 5, 2004 and January 7, 2005. The electronic DV-2006 entry form can be accessed through www.dvlottery.state.gov. DV-2006 applicants are strongly encouraged to not wait until the last week of the registration period to register.

DV-2006 applicants must be natives of one of the listed countries (see www.dvlottery.state.gov). In most cases “native” means the country in which the applicant was born. However, if a person was born in a country whose natives are ineligible but his/her spouse was born in a country whose natives are eligible; such a person may claim the spouse’s country of birth provided both the applicant and spouse are issued visas and enter the U.S. simultaneously. Furthermore, if a person was born in a country whose natives are ineligible, but neither of his/her parents was born there or resided there at the time of his/her birth, such a person may claim nativity in one of the parents’ countries of birth if it is a country whose natives qualify for the DV-2006 program.

Applicants must also meet either the education or training requirement of the DV-2006 program. An applicant must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education, OR two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform. The U.S. Department of Labor's O*Net online database is used to determine qualifying work experience. If the applicant cannot meet these requirements, he or she should NOT submit an entry to the DV-2006 program.

If more than one entry for the applicant is filed, all of the applicant’s entries will be disqualified. DV-2006 applicants may prepare and submit their own entries, or have someone submit the entry for them. Successfully registered entries will result in the display of a confirmation screen containing the applicant's name, date of birth, country of chargeability, and a date/time stamp. The applicant may print this confirmation for his/her records using the web browser’s print function. A digital photo (image) of each applicant, his/her spouse, and children must be submitted on-line with the electronic DV Entry Form. The image file can be produced either by taking a new digital photograph or by scanning a photographic print with a digital scanner (see www.dvlottery.state.gov for more information on photo requirements).

DV-2006 applicants are selected randomly by a computer generated lottery drawing. Every entry received during the lottery registration period has an equal random chance of being selected within its region. Those selected will be notified by mail between May and July 2005 and will be provided further instructions, including information on fees connected with immigration to the U.S. Persons not selected will NOT receive any notification. U.S. embassies and consulates do not provide a list of successful applicants. Spouses and unmarried children under age 21 of successful applicants may also apply for visas to accompany or follow to join the principal applicant. DV-2006 visas will be issued between October 1, 2005 and September 30, 2006.

In order to actually receive a visa, applicants selected in the random drawing must meet all eligibility requirements under U.S. law.

Electronic Completion and Storage of I-9 Forms Are Coming

The Immigration Reform and Control Act (IRCA), the mother of the I-9 Employment Eligibility Verification form, was enacted 18 years ago. On October 30, 2004, the President signed into law H.R. 4306 which allows employers to electronically complete and store employment eligibility verification (I-9) forms. In addition to e-storage, the law permits the use of handwritten or electronic signatures in completing I-9 forms. Until this legislation, the I-9 form was one of the only documents that employers could not store electronically.

The new law will allow employers to adopt an electronic format, but it does not require employers to make the switch. Under the law as it existed since 1986, only three forms of record retention for I-9 forms were acceptable: paper; microfilm; and microfiche. H.R. 4306 adds “electronic format” as another form of document retention. The new law also permits the use of electronic signatures on the I-9 form.

The underlying document verification requirements remain unchanged. Employers must still review original documentation to confim the identity and employment eligibility of newly hired employees, must still retain I-9 forms for three years from an employee’s hire date or one year from the date of the employee’s termination, whichever is later.

The law becomes effective 180 days after enactment (which occurred on October 30, 2004) or sooner if the Department of Homeland Security (DHS) issues final regulations implementing the law. Employers wish to delay implementing a paperless I-9 process until the DHS regulations are issued or until the 180th day approaches, if no DHS regulations are likely to be forthcoming.

Limit on L-1B Visa Status and Exceptions to the Time Limitby Mary M. (Peggy) Godar

Historically, there has been a rigid application of the length of time an individual may remain in the U.S. in L-1 Intracompany Transferee visa status. The Immigration Act of 1990 (IMMACT) established different – but equally rigid – lengths of time that L-1A executives and managers and L-1B specialized knowledge employees could remain in the United States. Under IMMACT, specialized knowledge employees were limited to five years while executive and managers were authorized to remain for seven years.

IMMACT also created an exception to the limit applicable to certain L-1 employees. Federal rules say that

“ . . . the limitations . . . shall not apply to aliens who do not reside continually in the United States and whose employment in the United States is seasonal, intermittent, or consists of an aggregate of six months or less per year. In addition, the limitations will not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment.”

However, neither the regulations nor the legislative history define what Congress intended by “seasonal or intermittent.” The Department of State’s Foreign Affairs Manual (FAM) suggests that to establish eligibility under the exception to the limit the L-1 nonimmigrant must provide clear and convincing proof that he or she qualifies for the exception. In addition, the FAM indicates that documentary evidence can include arrival/departure records, copies of tax returns, records of employment abroad, etc.

If a specialized knowledge employee will continue to work in the U.S. beyond five years, it is helpful to determine whether he or she may take advantage of any of the exceptions from the 5 year limit. The employer and employee will need to determine if clear and convincing evidence can be submitted (1) that the specialized knowledge employee’s work has been seasonal, or (2) that he/she worked less than an aggregate of six months or less per year, or (3) that the work is intermittent, or (4) that he or she has resided abroad and commuted to engage in part time employment in the U.S.

The most important piece of information that will assist in determining eligibility for an exception is a travel log completed by the employee. To prove eligibility for this exception it is important to determine when the employee has been present in the U.S., the duration of each stay in the U.S., and the total time spent within the U.S. since the employee initially entered in L-1B visa status. A travel log may offer a concise record for determining eligibility for the exception.

The employee should create and maintain a travel log beginning with his or her first trip to the United States in L-1B status. In addition, the employee should collect and retain evidence of U.S. trips going forward, particularly saving such items as plane ticket receipts, boarding passes, detailed frequent flyer mile records, and so on. A detailed travel log and supporting documents regarding the entries and departures will help to provide clear and convincing evidence either that the U.S. work was seasonal or intermittent, or that the employee worked less than an aggregate of six months or less per year in the U.S., or that the employee commuted to the U.S. to engage in part-time employment.

Other documents that might assist in proving that an exception to the time limit is warranted include evidence of the employee’s employment abroad and residence abroad. Examples of such evidence may include employment and payroll records, projects lists, tax documentation, home mortgage or rent payments, property taxes, bank statements, and so on. This list of possible evidence is not exhaustive and would vary based on the particular circumstances of the employee.

In conclusion, it is important to identify those specialized knowledge employees who will continue to be needed for temporary employment in the U.S. beyond the 5 year limit and determine if they are eligible for an exception. It is also important to be proactive in gathering information that would establish that a specialized knowledge employee meets one of the exceptions to the five year time limit. A travel log, evidence of exits and entries, and documentation concerning employment and residence abroad can help.

Department of State Predicts "Cut-Off" Date for EB-3 Category

Each month, the U.S. Department of State (DOS) publishes its monthly "Visa Bulletin." The monthly Visa Bulletin primarily serves to publicize the "cut-off" dates that exist in the family-sponsored and employment-based preference Immigrant Visa categories as well as the cut-off dates in the Diversity Visa (DV) category. From time to time, the DOS offers predictions about anticipated cut-off date changes. In the current monthly Visa Bulletin available both at FBT’s client extranet site (https://www.fbtimmigration.com) and at the DOS website (http://travel.state.gov/visa/frvi_bulletincurrent.html) the DOS predicts the return of cut-off dates in the Employment-Based Third (EB-3) preference category. In announcing the likely resumption of cut-off dates, DOS writes:

In recent months we have been experiencing very heavy applicant demand in the Employment categories as the Citizenship and Immigration Service has begun to address their backlog of cases. Section 201(a)(2) of the Immigration and Nationality Act states that not more than twenty-seven percent of the Employment annual limit may be used in each of the first three quarters of a fiscal year. Based on the current rate of demand it is likely that we will exceed twenty-seven percent of annual limit during the first quarter of FY-2005. Therefore, it may be necessary to impose an Employment Third preference cut-off date for January, to limit number use during the second quarter. At this time it is not possible to offer any estimate regarding what that cut-off date might be, but it is likely to apply only to the following chargeability areas: China-mainland born, India, and the Philippines.

The effect of the imposition of cut-off dates in some cases will be to slow one’s ability to complete the employment-sponsored permanent resident application process by metering the rate at which I-485 Applications to Adjust Status to Permanent Resident may be filed. Cut-off dates do not impact an employer’s ability to file applications for labor certification or I-140 petitions for immigrant workers. But cut-off dates do have the potential to preclude the filing of I-485 adjustment applications and the scheduling of immigrant visa consular processing appointments until the applicant’s “priority date” becomes current (or reaches the front of the queue).

Additional Documents: