This is part 3 of a 7 part document. This newsletter is never sent out unsolicited and is only sent to people who have subscribed. UNSUBSCRIBE instructions can be found at http://www.visalaw.com/subscribe2.html. The complete newsletter will also be posted shortly at http://www.visalaw.com/bulletin/ if you do not receive each part. Please do not send requests to resend individual parts. 13. HEARD ON THE STREET - H-1B, LABOR CERTIFICATION DEVELOPMENTS The INS reports that the pace of H-1B usage for the current fiscal year is moving at a fast pace and it is extremely likely that, like the last two years, there will be a period of time when visas are not available. As of January 31, 1999, 70,471 H-1B petitions had been approved for fiscal year 1999. The FY99 cap is 115,000. This total includes the 19,431 petitions counted toward 1999 that were approved between May 11,1998 (when last year's cap was reached) and October 1, 1999 (when the new fiscal year began). Thus far, the INS has not reported on the effect of the new $500 fee on the number of filings. Because the INS expects filings to at least temporarily decrease after the DOL issues interim final regulations implementing the H-1B program, the agency cannot now make an accurate prediction about whether or when this year's cap may be reached. Congress enacted the American Competitiveness and Workforce Improvement Act (ACWIA) last year to increase the H-1B cap for the next three fiscal years; in FY99 and FY00 the cap is 115,000, in FY01 the cap is 107,500, after which time the annual cap will return to 65,000. In passing the law Congress did not consider the predicted use of the program, and it is entirely possible that this years cap of 115,000 may be reached within the next few months. Siskind, Susser, Haas & Devine has received reports, however, from reliable sources that there has been a recent and massive surge in the number of H-1B visas filed largely as a result of mass filings for Indian technology workers by recruiting and consulting firms. While concrete numbers are not available, if these reports are true, it is entirely conceivable that all numbers will be used up possibly as early as the beginning of May - earlier than in 1998 when only 65,000 visa were available. **** Major changes may be coming in the way labor certification cases are handled. Two seismic developments are in the works. First, the DOL is planning on a massive effort to clear the huge backlog of cases nationally and is expecting to approve half of the pending cases in the next several months. Second, the DOL is expected to gut a major aspect of GAL-97 largely in response to a lawsuit the agency is fighting which challenges the process by which GAL-97 was adopted. One key process that is expected to go is the requirement that in normal labor certification cases, if special requirements are listed in Box 15, then the case is automatically referred to the regional DOL office for clearance before advertising instructions may be granted. DOL places the lowest priority on these referrals and someone can find themselves waiting for a year or more just to clear up this question. The DOL now plans to change this and allow applicants to advertise without the prior clearance from the regional DOL or the State Employment Security Agency. **** While the DOL is getting ready to roll out automated "one minute" labor condition application processing in H-1B cases, one of the busiest Regional DOL offices in the country - San Francisco - has not been processing LCAs in several weeks. A computer glitch is to blame and a restart date is not yet known. _______________________________________ 14. INS SCRAPS PLAN TO BEGIN RELEASING NONVIOLENT CRIMINAL ALIENS Last fall, the INS was mandated by Congress to detain aliens with convictions for aggravated felonies. The INS vocally complained at the time that it did not have the resources to meet this requirement, but the agency indicated it would comply. In early February, the INS announced that it was planning to release certain detained aliens. The INS announcement came under fire from immigration hardliners in Congress and on February 17th, the agency announced it had set aside the planned releases. Elton Gallegly (R-CA) and Lamar Smith (R-TX) led the charge, holding a press conference condemning the INS' initial plans claiming the failure to detain the aliens would pose a threat to communities. The American Immigration Lawyers Association in turn offered harsh criticism of Gallegly and Smith: "By demagaguing the issue and raising fears about public safety, Representatives Smith and Gallegly conveniently sidestep the fact that it was Congress that failed to enact a rational detention policy that would allow the INS to detain the most serious criminal offenders. It was Congress that took away INS' discretion to release to families and communities persons who pose no threat whatsoever-refugees awaiting their asylum hearings and persons with minor, nonviolent, victimless convictions who are awaiting their day in court to have their deportation cases heard. Thus, it is Congress that has disabled the INS by taking away from the agency its ability to detain and remove those persons who pose the greatest risk to our communities. "Congress, by imposing a wildly irrational mandatory detention order as part of its 1996 immigration law, guaranteed that INS would be set up for failure. The persons who currently fill the vast majority of limited INS detention beds are people with American families and part of American communities. They have every reason to appear in court and seek resolution of their immigration cases. They pose no threat to society, nor do they have any reason to abscond. "Congress should cease pointing the finger at a beleaguered agency and take responsibility. Congress should enact a reasonable set of guidelines so that those who do not need to be detained are not incarcerated at the taxpayers expense, and so the public is truly protected." The INS' concerns about overcrowding certainly have factual support. Overcrowding at some INS detention facilities in the Eastern Region has become so bad that the agency is preparing to release 1,500 nonviolent criminals in an attempt to ease the situation. Detainees will be chosen for release on a case by case basis. Under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, the INS is supposed to detain and deport all immigrants convicted of crimes in the U.S. The Eastern Region has funding and space to detain only 5,434 people, yet there are currently over 6,500 detainees in Eastern Region facilities. The Krome Detention Center in Miami is typical of the overcrowding. Although the facility was designed for 400 detainees, it regularly houses over 500 people. Nationwide the number of immigrants in detention is over 16,000, triple the number in detention prior to the 1996 law. Most of these people are awaiting deportation. Some of them are Cubans, who, because of the lack of relations between the U.S. and Cuba, cannot be deported. Under the current law, these people are subject to indefinite detention. As Representative Lincoln Diaz-Balart (R-Florida) said, the 1996 law has failed to consider the "reality of the Cuban situation," and that the current practice of indefinite detention "is a violation of elemental human rights." The Service had hoped that the proposed release would ease the situation until they can obtain additional funding. Despite the increases in funding for each of the past five years, with a record high of $3.95 billion in 1999, the new mandatory detention and deportation of all immigrants who are convicted of criminal offenses enacted by IIRAIRA have put unforeseen pressures on the Service. _______________________________________ 15. GOVERNMENT PROCESSING TIMES Source: American Immigration Lawyers Association Note: We publish all the processing times made available to us. Please do not send requests for times not stated below. Nebraska Service Center Processing Times The following is the Nebraska Service Center Processing Time Report for the period ending January 29, 1998. Receipt Notice Processing Processing Time for Initial in Days Application/Petition Type Receipt Date From To I-90 Replacement Card 04/14/98 285 315 I-90A SAW None Pending30 60 I-102 Replacement of Arrival Document 04/02/98 297 327 I-129/S New Amended NI Worker 01/08/99; 30 45 I-129/F Fiance(e) 11/30/98 59 89 I-130 Spouse US 12/29/98 30 60 I-130 Spouse 01/27/98 360 380 I-130 Other Relatives 07/30/98 180 210 I-131 Reentry Permit/Ref Travel Doc 10/23/98 60 90 I-131 Advance Parole 12/29/98 30 60 I-140 Immigrant Worker 09/18/98 131 161 I-360 Pet for Widow/Spec. Imm. 11/16/98 70 100 I-485 Employment 05/26/98 243 273 I-485 Asylee 07/02/98 300 360 I-485 Refugee 07/02/98 300 360 I-526 Investor 11/06/98 40 70 I-539 Change/Extend NI Status 09/07/98 140 170 I-589 Asylum Not adjudicated 15 30 I-698 Legalization-Adj to LPR None pending 15 45 I-730 Refugee/Asylee Relative Pet. 09/07/98 140 170 I-751 Remove Conditions 12/14/98 45 75 I-765 Employment Authorization-A5 01/05/99 25 35 I-765 Employment Authorization-Other12/07/98 75 90 I-817 Family Unity 06/30/98 210 240 I-824 Actions of Approved Petitions 07/03/98 206 236 I-829 Removal Conditions (Investors)None Pending 15 30 N-400 Naturalization Not Adjudicated 540 600 N-600 Application for Citizenship Not Adjudicated 15 120 I-724 All Waivers 11/03/98 86 116 Total Pending Applications (All types, pending first time adj.) 89,336 California Service Center Processing Time The following is the California Service Center Processing Times Report for the period ending December 31, 1998. Receipt Notice Processing Processing Time for Initial in Days Application/Petition Type Receipt Date From To I-90 Replacement Card 07/13/98 155 160 I-90A Saw 07/13/98 155 160 I-102 Replacement Arrival Document 05/27/98 205 210 I-129/S New/Amended NI Worker Pet. 06/26/98 160 175 I-129/F Fiance(e) 12/01/98 29 30 I-130 Spouse 03/09/98 260 270 I-130 Other Relatives 02/09/98 285 295 I-131 Reentry Permit/Ref Travel Doc Not Processed at CSC I-131 Advance Parole 12/01/98 29 30 I-140 Immigrant Worker Petition 06/29/98 165 175 I-360 Pet. For Widow/Special Imm. 02/09/98 260 280 I-485 Adjustment 03/19/98 220 225 I-526 Investor 05/08/98 180 360 I-539 Change/Extend NI Status- Employment Authorization 06/29/98 240 260 I-539 Change/Extend NI Status -Other 06/29/98 240 260 I-698 Legalization-Adjustments to LPR 12/01/98 29 30 I-724 All Waivers 11/15/98 240 360 I-751 Remove Conditions 11/05/98 55 65 I-765 Employment Authorization- Asylum Based 10/10/98 30 45 I-765 Employment Authorization -Other 06/30/98 135 145 I-817 Family Unity 07/02/98 160 360 I-824 Actions of Approved Petitions 03/14/98 240 250 I-829 Remove Conditions -Investor 06/03/98 150 180
SISKIND'S IMMIGRATION BULLETIN - 02/99 (3/7) - Articles 13-15
Gregory Siskind, Attorney at Law Fri, 26 Feb 1999 20:25:25 -0500
