NewslettersL A W L E R & L A W L E R N E W S L E T T E R [ January 2009 ]Facing the FutureWhat does the future hold for visas and green cards? No one really knows. But here are some thoughts based on conversations I had with people in Congress and at USCIS. Short term. Using a team of temporary officers, USCIS is quickly processing the backlog of naturalization cases. This project will be complete soon. The team will then be assigned to clear out the backlog of adjustment of status (green card) cases. The Department of Labor's processing of labor certifications is slowing. This agency as a whole seems to be going in reverse. It may even return to supervised recruitment which is the method used before PERM started about a decade ago. Mid term. Due to the economy and increased influence of the unions with the Democratic Congress, there is little likelihood of more temporary work visas such as H-1Bs in the short term. A recent USCIS study of H-1B visas found 21% had either technical violations of the rules or were fraudulent. Some in Congress now say there is an "H-1B problem." This bodes poorly for legislation increasing H-1B visa numbers. Long term. Congress may provide some relief to technology companies and immigrating professionals by creating a new visa to bridge the gap between filing for a green card and its issuance. This is an interesting concept which might replace the H-1B visa for many. Congress is working on a bill to recapture about 500,000 unused green card visa numbers lost due to slow processing after 9/11. If this bill passes, it will speed the processing of the EB-3 category for all and the EB-2 for China and India which are quite backlogged. Many agree that change is needed so the U.S. can more easily retain recent technology graduates as well as those with MS and Ph.D. degrees. April 1 - First Day to File H-1B PetitionsNew H-1B petitions may be filed April 1, 2009. If approved, an applicant may start work on October 1, 2009. Those working on OPT on April 1 can continue doing so until their H-1B visa becomes effective on October 1. Last April, there were about 163,000 applications for the 85,000 H-1B visa numbers. This year there may be fewer due to the slow economy and some STEM (see below) technology graduates who may opt out of the H-1B process. Thus, the chance of getting an H-1B visa may be higher than last year. We are starting work on new H-1B applications. Please note that the Labor Condition Application (wage certification) for the H-1B process may soon change and may take up to 7 days to obtain from the Department of Labor. Currently, they are issued immediately. STEM However, to qualify, the employer must be registered under the government's E-verify program. Those with STEM OPT can play the H-1B lottery and/or directly apply for a labor certification for a green card without having an H-1B. USCIS Texas Service Center is RockingThe USCIS Texas Service Center (TSC) is deciding some new green card cases in as little as three months! The TSC has recently approved three of our extraordinary ability cases in about that time. Because this may not continue, now is a good time to file EB-1 cases which include extraordinary ability, outstanding researcher and multinational company executives and managers. The TSC also announced a new system permitting attorneys to notify the TSC of older pending cases to get them on the new fast track. This system promptly crashed. It is back online and we hope older cases will be approved more quickly. L-1 VisasL-1 visas for intracompany transferees are receiving more scrutiny by USCIS. A recent case decided by the USCIS Appeals Board (AAO) severely restricted the definition of a specialized knowledge worker. Requests for additional evidence and requests for documents (in addition to the employer's explanation) verifying the employee's specialized knowledge are now common. More Countries Added to Visa Waiver ProgramThe "visa waiver" (VW) program allows nationals from certain countries to enter the United States without a visa for up to 90 days. The Department of Homeland Security recently added more countries to the program. The newly added countries are; the Czech Republic, Estonia, Hungary, the Republic of Korea, Latvia, Lithuania, Malta and Slovak Republic. These countries join: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. But there is a new wrinkle for those using VW. They need to receive an ESTA prior to travel. See the next story. Electronic System for Visa Waiver Travel AuthorizationBeginning January 12, 2009, all visitors entering the US under the visa waiver program will be required to register with US Customs and Border Patrol prior to travel through the newly-created Electronic System for Travel Authorization (ESTA). ESTA is an automated system that will determine whether a traveler is eligible to enter the US using the visa waiver program and is otherwise admissible. To register, go to: www.cbp.gov/esta and obtain pre-travel authorization. To complete the registration, the traveler must submit biographic information and answer questions. Most applicants receive an immediate decision. If an application is denied, the traveler must apply for a visitor's visa at the US Consulate. An ESTA is valid for two years. New reports say that people not aware of ESTA are being admitted with a warning to use the new system. Web Page MakeoverCheck out our new web page design www.aboutvisas.com. We hope it is helpful. Please let us know what you think. Please note our new address is:50 Francisco Street, Suite 118 Regards,
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