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Congress Enacts New
Business Immigration Provisions
The Emergency Supplemental Appropriations Act for Defense,
the Global War on Terror, and Tsunami Relief of 2005 (H.R.
1268) became Public Law Number 109-13. President Bush signed
the legislation on May 11, 2005. Attached to this legislation
were a variety of immigration provisions. Drawing the most
attention was the REAL ID Act which contains a number of heinous
restrictions on judical review of agency decisions, new restrictions
on asylum seekers, and a massive unfunded mandate on states
to alter the way in which drivers licenses are issued.
Receiving far less attention were some technical, but positive
amendments on business immigration issues.
New E-3 Visa Category reserved for Australians
A new E-3 visa category allocates 10,500 visas annually for
Australians who would otherwise qualify for H-1B specialty
occupation status. A streamlined process requires the filing
of a labor condition application (LCA) with the Department
of Labor followed by a visa application submiitted to a U.S.Consulate
in Australia. Under this scenario, Australians and their U.S.employers
can bypass the problems of the H-1B cap as well as the time
and expense of filing H-1B petitions with USCIS.
Immigrant Visa Backlog Relief for Nurses, Physical Therapists
and Performing Artists
Many employment-based immigrant visa numbers were unsused
between FY2001-2004 due to backlogs in processing green card
applications at USCIS. A total of 50,000 unused numbers have
been recaptured and placed in a special "bank" for
use by nurses, physical therapists and performing artists
of exceptional ability when the demand for these numbers exceeds
the annual quota. The immediate practical effect of this provision
is to reduce the green card waiting times for nurses and physical
therapists from the Philippines.
Temporary Fix For Employers of H-2B Workers
Demand for H-2B seasonal workers by the business community
significantly exceed the annual cap of 66,000, resulting in
thousands of these seasonal jobs going unfilled. The "Save
Our Small and Seasonal Business Act of 2005" exempts
from the numerical cap any alien who has already been counted
toward the cap during any one of the previous 3 fiscal years.
Such an alien is considered a "returning worker."
This exemption expires October 1, 2006, so it only includes
fiscal years 2005 and 2006.In addition to higher fees, the
law reallocates the 66,000 H-2B numerical limits so that no
more than 33,000 numbers can be used during the first 6 months
of the fiscal year. This has the effect of reserving numbers
for employers who need workers during the summer season.
Implementation
All of these provision will require the issuance of policy
memos and/or regulations by USCIS, the Department of State,
and the Department of Labor before employers can take advantage
of them.Please contact one of the attorneys in our firm if
you have any questions.
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