Montag & Nadalin LLP Immigration
Newsletter
This newsletter has been prepared on behalf of clients and friends of the
firm. It provides general information on recent
changes in immigration and emigration related
laws and should not be considered as a substitute
for specific legal advice. For case specific advice,
we recommend that the employer retain legal counsel.
To add or remove an e-mail address from our system,
or for any other questions or comments regarding
this newsletter, please e-mail a partner at: [email protected]
or [email protected].
PERM
The new PERM system for obtaining
labor certifications continues to confound employers.
More than one month into the program, the Department
of Labor (DOL) has not approved a single case.
Thousands, however, have been summarily denied
by the on-line filing system. When a case is denied,
the on-line system does not respond to the applicant
with a reason why. Instead, the case is routed
to an analyst who will then prepare and forward
the employer a written summary of the reason or
reasons for the denial. It has only been in the
last few days that employers have begun to receive
written denial letters.
While many practitioners to date have been concerned about the audit system,
it appears that the real issue to focus on will
be avoiding a summary denial. Fortunately, unlike
the old system, the PERM system does not require an applicant to wait any period of time
to re-file a denied case.
Further, and more encouragingly, the on-line system is not denying all
of the submitted cases. Many cases are now �Pending
Sponsorship,� which is the DOL�s new term assigned
to PERM cases awaiting adjudication. The DOL is
making progress, albeit slowly, in getting the
PERM system up and running. The world of labor certification did not
end on March 28, 2005. Certainly, obtaining an
approved labor certification through the new system
will likely be much more difficult than under
the previous RIR and traditional tracks. Nonetheless,
it will not be impossible and labor certification
should remain a viable immigration option for
employers willing to work through the challenges
of the new process.
Pending Traditional and RIR Labor
Certs
The DOL Backlog Reduction Centers (BRC), where the traditional and RIR
cases filed under the pre-PERM system now await
adjudication, continue to be an enigma. Although
the BRC only have funding through the end of 2006,
they have not begun to approve any of the cases
they now hold. To date, the BRC have been proceeding
at a snail�s pace in verifying that the cases
they now hold are in fact still pending on behalf
of an employer who has not yet gone out of business.
The BRC have been confirming the continued existence of employers by sending
continuation letters to companies and their attorneys
to confirm that the case should continue to be
processed. While this has helped them to streamline
the queue of cases awaiting adjudication, it has
also resulted in the BRC denying a limited number
of cases for which no continuation letter was
received by the employer or their attorney. Since
there is currently no direct BRC liaison with
the immigration bar, the BRCs procedures for correcting
such mistakes have not yet been made clear.
The two BRC centers in Dallas and Philadelphia are clearly a mess. Most of the persons
who were previously processing labor certifications
at the state and regional level through March
of 2005 have now lost their job. This was not
a surprise to them. In their final days at work,
they were asked to box whatever files remained
in their offices and forward these to the BRC.
In their zeal to attach the importance to this
task that the sacked employees deemed it to deserve,
the state and federal labor certification teams
sent the BRC 330,000 boxes, many of them unmarked.
Some of the boxes were found to contain files
and others were found to contain old coffee cups,
candy wrappers, and half-eaten bags of snacks.
Although they are not yet fully staffed, each BRC is authorized to hire
and train up to 200 adjudicators. 330,000 boxes
divided among 400 adjudicators would leave 825
boxes of cases for each adjudicator to process
in the next year and a half.
At some point, the DOL will sort out its problems at the BRC on its own
or under pressure from Congress or from the Federal
Courts. In the interim, the problems are obvious.
It will be impossible for the DOL to process cases
in the order in which they were originally filed
at the state level. Instead, they appear to be
trying to process cases in the order in which
they were filed at the state level AFTER having
been sorted by the continuation letter process.
Also, it will be impossible for the DOL to quickly
locate a traditional or RIR file to verify if
an employer seeking to convert to the PERM system has filed an identical case. Nonetheless, it will be impossible
for the DOL to stall forever. At some point in
the next year and half, they must begin actively
adjudicating cases. A failure to do so would lead
not only to agency embarrassment but also would
increase the likelihood that the DOL�s role in
the immigration process will be reduced in the
future.
H-1B and the New E-3
Citizenship and Immigration Services (CIS) has clarified its policy in
allocating the 20,000 additional FY 2005 H-1B
visas authorized under the L-1 Visa and H-1B Visa
Reform Act. An additional 20,000 visas are immediately
available in the current fiscal year to employees
who have earned a masters degree or higher from
a U.S.
university. These visas can only be requested
through the Vermont Service Center.
The CIS has also implemented a procedure to convert
a case already filed with a FY 2006 start date
request to a case eligible for immediate H-1B
employment.
Employees holding only a bachelor�s or a foreign degree who are requesting
H-1B status for the first time will not be eligible
to begin lawful employment prior to October 1,
2005, which is the start of the 2006 fiscal year.
An additional development which may relieve some of the pressure on the
H-1B cap in going forward is the creation of the
new E-3 category for nationals of Australia
under the REAL ID act. Under this category, up
to 10,500 Australians may enter the U.S.
to work in occupations similar to those allowed
under the current H-1B program.
Real ID
The
REAL ID act is now law. The biggest impact on
most people of the legislation is that it will
cause state departments of motor vehicles to change
the way they do business in issuing drivers licenses.
These changes will not occur immediately, but
eventually the processes will become more complicated,
requiring more forms of identification, requiring
more detailed information be provided from immigration
authorities to DMV offices before a license is
issued, and resulting in non-citizens receiving
licenses for only as long as authorization to
be in the United States is granted. The Act also
makes it harder for asylum seekers to be granted
asylum, makes it easier for the government to
deport persons it believes are terrorists or sympathetic
to terrorists, and makes it more difficult for
people wronged by the immigration system, particularly
aliens who have committed crimes, to sue the government
to right wrongs committed against them.
Tchoukrova v. Gonzales, No. 03-71129 (9th Cir.
April 21, 2005).
The
Ninth Circuit Court of Appeals granted asylum
to a child with cerebral palsy and his parents
who care for him based on the child�s fear of
persecution if he had to return to Russia.
The court held that the parents could derive asylum
from the child�s claim because his suffering is
properly imputed to the parents because preserving
families is an important component of the country�s
immigration laws. This case has created a legal
precedent as parents could not previously obtain
asylum through a claim of their child. Jonathan
D. Montag of Montag & Nadalin LLP represented
the Tchoukhrovas in this case. The decision can
be found at:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F6D19B57DA7B0ADC88256FEA000AC773/$file/0371129.pdf?openelement
Outbound Emigration
In addition to representing employers in the area of U.S. immigration related matters, Montag &
Nadalin LLP is also able to provide representation
in outbound emigration matters for expatriate
employees transferred abroad. For additional information,
please contact Robert Nadalin at: [email protected]
