H-1B Exemption Cap Reached
This week, the US Citizenship and Immigration Services (USCIS) announced that it had received enough H-1B petitions that qualify for the H-1B Master's Degree exemption. The final receipt date for purposes of the cap exemption is January 17, 2006, and petitions received on that date are subject to a random selection process. For more details on that process and on the cap exemption in general, please visit:
http://postsnet.com/r.html?c=622503&r=621852&t=394862798&l=1&d=86707737&u=http%3a%2f%2fwww%2euscis%2egov%2fgraphics%2fpublicaffairs%2fnewsrels%2fH1B%5f06Cap%5f011806PR%2epdf&g=0&f=-1
All cases that were intended to be filed under this exemption should be filed on April 1, 2006 to ensure an employment start date of October 1, 2006 at the earliest. In this regard, companies should consult with their immigration services provider as soon as possible to prepare any applications for timely filing.

H-2B Cap Reached

The USCIS has announced that it has received sufficient number of petitions to reach the congressionally mandated H-2B cap of 33,000 visas for the first half of Fiscal Year 2006. Any H-2B petitions received requesting an H-2B start date before April 1, 2006 will be rejected. The USCIS will continue to accept petitions for new H-2B workers seeking employment start dates on or after April 1, 2006.
Please note, the USCIS has exempted the following types of petitions from this mandated cap:

• Extend the stay of a current H-2B worker in the US
• Change the terms of employment for current H-2B workers and extend their stay
• Allow current H-2B workers to change or add employers and extend their stay; or
• Request eligible H-2B workers that previously held this status between October 1, 2002 and September 30, 2005.
  

The H-2B visa is geared towards to non-professional persons coming to the US to engage in non-agricultural employment which is seasonal, intermittent, to meet a peak load need, or for a one-time occurrence where US workers are unavailable. All H-2B petitions will require advertising and recruitment to demonstrate that there are no qualified US workers for the position.

DHS Installs Biometric Entry Capabilities
The Department of Homeland Security (DHS) has now installed biometric entry capabilities at 104 land border ports, which are now active at all fixed ports of entry that are open to US-VISIT travelers.
The US-VISIT program is intended to enhance security through the collection of biographic and biometric information from visitors at U.S. ports of entry. By verifying the identity of all visitors and comparing information such as biometrics against terrorist watch lists and criminals, the DHS seeks, among other things, to improve security for US citizens and facilitate legitimate travel.
For more details on the procedures of the biometric program, please visit http://postsnet.com/r.html?c=622503&r=621852&t=394862798&l=1&d=86707736&u=http%3a%2f%2fwww%2edhs%2egov%2fus%2dvisit%2e&g=0&f=-1

DHS to Begin Testing of Electronic Passports
Testing of electronic passports began this week at San Francisco International Airport. Electronic passports, or e-Passports, contain biometric and biographic information located in chips within the e-Passport. The test will evaluate the impact of new technology used to read and verify the information, which includes a digital photograph in the e-Passport.
The information in the e-Passport is intended, among other things, to improve homeland security through verification of visitors' identities. Regarding the test, Jim Williams, Director of US-VISIT, stated "This test provides an important opportunity to work with our international partners to further the Department of Homeland Security's efforts to put in place an e-Passport reader solution by the fall of this year. The test is a joint effort between the United States, New Zealand, Australia and Singapore, and will be conducted through April 15, 2006.

Senate Confirms Emilio Gonzalez as Director of USCIS
The Senate has confirmed Emilio Gonzalez as the new Director of USCIS at the DHS.
Michael Chertoff, Homeland Security Secretary, stated "Securing our nation's borders and reforming our immigration process is a top priority for the Department of Homeland Security. USCIS plays a vital role in addressing those priorities, and we are pleased to have Dr. Gonzalez on the team".
Gonzalez is responsible for all federal immigration services unrelated to law enforcement. He is a former director at the National Security Council and a U.S. Army veteran of 26 years.

Proposed Anti-Terrorism Legislation
On December 16, 2005, the House of Representatives passed The Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (H.R. 4437). If this legislation is passed by the Senate, it would:

• Expand the definition of aggravated felony to include all smuggling offenses, illegal entry and reentry crimes with a sentence of one year or more.
• Expand the definition of alien smuggling, resulting in possible fines and imprisonment for family members and employers that harbor, shield, or transport undocumented family members and employees.
• Create a new federal crime of unlawful presence. According to the American Immigration Lawyers Association: Such violations would include lawful permanent residents who fail to report a change of address to the Department of Homeland Security within ten days…as well as university students on an F-1 visa who drop below a full course load or H-1B workers who get laid off and do not find new sponsorship within a small window of opportunity…In conjunction with Section 201 of this bill, such "crimes" could trigger "aggravated felony" liability, subjecting the individual to mandatory detention and virtually no relief from deportation.
• Require the Department of Homeland Security to take into custody any alien who is deportable and apprehended for driving while intoxicated, driving under the influence or similar violation of State law. Illegal aliens could then be deported and legal aliens would be held in custody until the Secretary of Homeland Security determines what action to take against the alien.
• Create a system for telephonic or electronic verification of an individual's employment authorization, which would require verification or non-verification of an individual's identity and employment eligibility within 3 days.
• Increase the civil penalties for hiring, recruiting, and referral violations.
• Require any person who wishes to enter the United States as a nonimmigrant to give up the right to a hearing before an immigration judge should that person be accused of the violation of any immigration law.
  One part of this legislation to note is a proposal to expedite the processing time for immigration processing. Specifically, the bill will seek to reduce the immigration application processing backlog to 6 months within a period of 1 year:
• Require the USCIS to reduce the immigration application processing backlog to 6 months within a period of 1 year. It would authorize the Director of USCIS to implement innovative pilot initiatives to eliminate the backlog and prevent further backlog from recurring. It also would encourage initiatives such as increasing or transferring personnel to areas with the greatest backlog, streamlining regulations and paperwork filing processes, upgrading information technology, and increasing the number of immigration service centers."

The Basics of Retrogression
Retrogression has been a hot issue for skilled and professional workers since December 2004, when the U.S. Department of State instituted January 1, 2002 as the cut-off date for applicants from mainland China, India and the Philippines. This change meant that nationals of those countries could not attain green cards via status adjustments with the USCIS, or from abroad, unless their priority dates were before January 1, 2002.
Retrogression and its inception has been a product of several factors. There are limits on how many employment-based green cards the USCIS can issue each year. These limits are not new, and are allotted between several status levels, such as EB-2 (Positions that require a Master's Degree or higher, or Bachelor's Degree and 5 years' experience) and EB-3 (Positions requiring a Bachelor's Degree and less then 5 years' experience). They are also imposed by the country of birth of the applicant. Employees are given a priority date whenever a labor certification application is filed for them. Also, a priority date can be given whenever an I-140 is filed for certain applicants that don't require the Labor Certification. Historically, the backlogs in processing at both the Labor Certification and I-140 levels have been so substantial, that by the time these filings were adjudicated, the limits were never met. In other words, immigrant visa processing was so slow that the annual limits were irrelevant. As the USCIS became more efficient, the cases processed annually rose to the point where green card limits for individual countries and status levels began to find effect. As efficiency increased, annual limits were filled more quickly. The priority dates now act as the primary factor in determining when employees can file the I-485 Application to Register Permanent Residence or Adjust Status, as cases with earlier priority dates are first in line for each wave of processing.

Of course, prospective green card holders, specifically those in H-1B status, are not without rights while waiting for the retrogressed figures to advance to the points necessary to allow for their I-485 filings. Several options exist for these individuals to maintain their nonimmigrant status beyond the six-year limit while waiting for their dates to advance. Maintaining nonimmigrant status, such as H-1B, allows an employee to continue with full work and travel privileges. Employees can attain extensions beyond their 6th year where they have filed a Labor Certification application or I-140 and have had these applications pending for more than one year. Such H-1B extensions are for one year. Additionally, if an employee's I-140 has been approved, but he/she is waiting for his or her priority date to come due, such an extensions will be granted in three-year increments.
Currently, the DOL is processing over 300,000 EB-2 and EB-3 cases. The USCIS is limited to 40,000 EB-2 and 40,000 EB-3 green cards per year. Using these figures and an understanding of retrogression, it becomes apparent that both processing speed and the green card numerical limits are factors in immigrant visa issuance. As processing speed increases, the annual numerical limits are met more quickly, and the priority dates being processed will move slowly. If the processing speed were to decrease, the limits would be met more slowly and the processing dates would advance more quickly. As the USCIS continues to process cases with greater efficiency, and as the two Backlog Elimination Centers continue to process cases, most experts agree that these dates will progress slowly in the coming months. However, the time spent waiting for priority dates to come due is simply the product of greater efficiency in case processing. Where processing was previously so slow as to render annual limits irrelevant, we now see those limits met every year, creating retrogression.

The U.S. Department of State provides monthly updates on the evolving state of the ongoing retrogression. These can be viewed at
http://postsnet.com/r.html?c=622503&r=621852&t=394862798&l=1&d=86707736&u=http%3a%2f%2fwww%2edhs%2egov%2fus%2dvisit%2e&g=0&f=-1

The Department of State updates these figures on a monthly basis, so be sure to check back for current information.