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Immigration LAW NEWSLETTER

USCIS will begin accepting H-1B petitions for new employment on and after April 1, 2006.  Remember, however, that H-1B applicants will not assume their H-1B status and cannot begin working until October 1, 2006, the start of the U.S. government’s 2007 fiscal year.  Filing an H-1B petition before Oct. 1st will therefore not extend the current visa status of an H-1B applicant.  Rather, the applicant’s current visa status must be valid until at least Oct. 1, or the applicant must depart the U.S. and reenter on an H-1B visa issued by the U.S. Embassy in their home country.

H-1B season begins April 1, 2006.  Apply early.

Reminder: H1b petitions can be filed after 4/1

March 2006

DOL proposes to limit labor cert. validity and prohibit substitutions

On Feb. 13, 2006, the DOL published a proposed rule that would, among other things, limit the validity of approved labor certifications to 45 calendar days (currently, approved certifications are valid indefinitely) and prohibit the substitution of alien beneficiaries into both pending and approved labor certification applications (which is permitted under current practice).  This proposed rule allows for public comments for 60 days (until 4/14/06), after which DOL may incorporate recommended changes and will seek to finalize this rule, possibility by sometime in the summer. 

In its current form, this rule would prohibit alien substitutions (not already approved) into labor cert. applications (Form ETA-750) pending at the time of publication of a final rule as well as into approved certifications (Form ETA-750 and Form ETA-9035) not yet filed (as part of an I-140 petition) with USCIS at the time of publication of a final rule.  Also, as is, this rule would limit the validity of labor certifications approved after publication of a final rule to 45 days and limit the validity of labor certifications approved prior to publication of a final rule and not already filed with USCIS to 45 days from publication of such rule.

In light of the above, the following is advisable:

· File requests for alien substitutions into currently pending labor cert. applications as soon as possible and request verification from the DOL that such substitutions have been processed

· If you seek to substitute into an already approved labor certification, you should file this request immediately (along with Form I-140) with CIS.

Requirements for travel in Western hemisphere will soon change

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On 3/2/06 the Senate Judiciary Committee began discussions on immigration reform. The bill currently being discussed proposes to increase the H-1B cap to 115,000, with an option to further increase this by 20% each year.  To date, there has been no opposition to this provision - increasing the H-1B cap clearly enjoys some bipartisan support.  There is, however, still a long road ahead in getting such a provision approved in Congress.

H-1B relief proposal appears again in Congress

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On 3/17/06 the Senate Judiciary Committee agreed to include in its immigration reform bill (1) a path towards permanent residency for undocumented aliens through an “earned legalization” approach and (2) a guestworker program.  While this is a positive step forward, we are a long way  from final resolution on this issue

The Western Hemisphere Travel Initiative (WHTI) will soon require all US citizens to present valid passports or other accepted documents in order to enter Canada, Mexico, the Caribbean and Bermuda (currently USCs can enter some of these countries with valid Drivers Licenses and/or birth certificates).  WHTI will also require citizens of Canada, Mexico and Bermuda to use a passport or Border Crossing Card to enter the US. WHTI is proposed to begin phasing in starting 12.31.06.  Many believe this initiative will negatively affect tourism to the US…What do you think?