Current Developments in Immigration Law
Debra R. Shpigler Co., LPA
It is now taking employers more than two years to
obtain a permanent visa ("green card") for a
prospective employee in many parts of the country.
This long wait is primarily due to the delays which
occur during the first step in the typical green card
process: obtaining labor certification. Labor certification
is the name of the process that employers must use
to prove that their hiring needs cannot be met by U.S. workers. This
process has always been slow and cumbersome, but
recent budget cuts at the Department of Labor have slowed
the process even more. Consequently, many employers are evaluating
new (and not so new) ways of expediting the process.
Reduction In Recruitment
In October of 1996, the Department of Labor
introduced the Reduction in Recruitment (RIR) program. To qualify for RIR,
an application must show (1) little or no U.S.
worker availability for the occupation; (2) no restrictive
requirements; (3) the job is offered at the prevailing
wage; and (4) "adequate recruitment" has been
conducted, through "sources normal to the
industry," within the last six months. Applications which
meet these criteria will be handled on a
fast-track basis, avoiding the long delays that have
become part of the normal labor certification process.
Avoiding Labor Certification Altogether
Employers can avoid the labor certification
process altogether for certain categories of immigrants.
Individuals of "extraordinary ability," outstanding professors
and researchers and certain
multinational executives and managers are exempt from the
process. In addition, individuals whose work is in
the national interest of the United States
(typically medical researchers, scientists, and the like) are
exempt from the requirements as well.
The standards that a prospective employee
must meet to fit into these special categories are
extremely rigorous. If they can be met, however,
the employer can cut his or her processing time in half.
On May 11, 1998, the 65,000 cap for H-1B
petitions was reached for the current fiscal year.
Consequently, the INS has instructed its Service
Centers to place a hold on further processing of
H-1B petitions that are subject to the cap. Cases not
subject to the cap (extensions, sequential
employment situations, etc.) will continue to be
processed. New H-1B petitions will only be processed if
the petitions request an October 1 start date
(October 1 is the start of the new fiscal year).
Congress is continuing to debate two major pieces
of legislation that aim to reform the H-1B
program. The Senate passed Senator Abraham's
(R-MI) "American Competitiveness Act of 1998" on
May 18, 1998. This bill raises the H-1B cap to 95,000
in 1998. The cap would then drop to 85,000 the
next year, but there is a safety valve provision that
would allow for an increase to 115,000.
The House Judiciary Committee recently marked up "The Workforce
Improvement and Protection Act of 1998," sponsored by
Rep. Lamar Smith (R-TX). This bill also raises the
H-1B cap, but it places several new burdens on
employers who want to hire H-1B workers. Among these
are new attestations that the employer cannot lay off
an American worker and replace him/her with an H-1B worker and that
the employer has taken good faith, timely and
significant steps to recruit and retain American workers.
As many of our readers know, individuals
working in "specialty" (that is, professional) occupations
as well as fashion models are eligible for H-1B visas.
Beneficiaries of H-1B visas are initially
admitted to the U.S. for a maximum of three years, with
an extension of up to another three years possible.
Lottery Results Announced
The National Visa Center announced in May that
it has registered and notified the winners of the
DV-99 diversity lottery. The diversity lottery is a
program that makes available 50,000 immigrant visas
to persons from countries with low rates of
immigration to the United States. Consistent with past
practice, the NVC selected almost 90,000
applicants. These individuals may now apply for an
immigrant visa. Since many of these applicants will not
pursue their cases, the NVC initially selects a larger
number of people to ensure that all 50,000 spaces will
The dates for the next diversity visa lottery
(DV-2000) will be noon on October 1, 1998 until noon
of October 31, 1998. The State Department will publicize instructions on
entering the lottery some time in August of 1998.
Did you know?
The Immigration & Naturalization
Service estimates that, as of April 1996, South Carolina
had approximately 24,000 legal permanent
residents. The INS also estimates that approximately 13,400
of those LPRs (excluding children) were eligible
for naturalization as of that date.