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Immigration Article: What did we celebrate on July 4th?

Question: I became a Lawful Permanent Resident several years ago, and am very grateful. However, there are several persons that I know that are not so lucky. They are still fighting to obtain legal residency in the U.S. Some are in deportation proceedings. Some are hiding in the shadows of America. Some are fearing everywhere they go. Are there any new leaders in Congress and should we give thanks of an elusive freedom that is so difficult to obtain?

 Answer: Recently, the President of the American Immigration Lawyers Association (AILA) wrote on this subject. I think it best to simply quote him. He states:

‘From the moment that terrorists attacked the United States last September, AILA has consistently supported measures legitimately required to guarantee our national security without eroding the fundamental rights guaranteed by the Constitution.

 AILA gratefully recognized President George W. Bush’s leadership when he reminded the nation that neither the Arabic community in the United States, nor the members of the Islamic faith throughout the world, are in any way responsible for the terrorist acts of criminals. And AILA called on leaders from both sides of the aisle to put the national interest above partisan considerations.

 Midterm Congressional elections are eminent, and the siren song of perceived political advantage has started to separate the opportunists from the statesmen. Events of the last few days have, as they say, given opportunism a bad name.

On June 20, the Dallas Morning Herald quoted Representative George Gekas, Chair of the House Subcommittee on Immigration, Border Security, and Claims (noting Census Bureau estimates that the undocumented population tops 8 million), as saying: “There are thousands among those millions, perhaps millions among those millions, who have exactly that kind of mind set . . . to become terrorists.”

Term limits resulted in Lamar Smith relinquishing the Immigration Subcommittee Chair in 2000. While never an immigration advocate, George Gekas, it was said, was no Lamar Smith. Could he possibly believe that there are millions of terrorists lurking among us? Had the Chair misspoken or had he unearthed an opportunist’s play book and thus signaled a sea change? Perhaps significantly, Mr. Gekas retained Smith’s subcommittee staff. And, to Mr. Gekas’s evident surprise, reapportionment has made his District more competitive, thus resulting in a serious challenge; he now must fight to win an 11th term.

Our answer came soon enough. On June 26, 2002, Mr. Gekas introduced the “Securing America’s Future through Enforcement Reform (SAFER) Act” (H.R. 5013).

SAFER is a cynical amalgam. It is over 200 pages long, but much of it can be categorized as: (1) piling on (in increasing penalties for offenses that may already be substantial); (2) redundant; and (3) grandstanding (taking credit for proposals that may eventually be enacted in other legislation). To be sure, SAFER contains some novel twists that are more than a little offensive and more than a little dangerous. (Mr. Gekas’s summary of SAFER was posted on the News Flash section of InfoNet and will remain available as Doc. No. 02062731; the text of the full bill will be posted as soon as it becomes available.) Legislatively, SAFER is irresponsible, but as its sponsors well know, it is also DOA. However, that is not the point. The point is that the political calculations were made and Representative Gekas cast his lot; he has bought FAIR’s agenda of Fear and Loathing wholesale.

 This week we celebrate our independence. The first July 4th after September 11, 2001 promises to be especially poignant. It is a particularly appropriate time to rejoice in America’s liberty and diversity and to remember the sacrifices of our people, who for four centuries, have come to these shores from every corner of the world to cultivate, nurture and defend our freedom and way of life. America is immigrants and the children of immigrants. This year a second day is just as important as July 4th to validate and affirm our nation’s freedom: our election day, Tuesday, November 5.

 I trust that on this July 4th we will hear and think a lot about fundamental American values. Between now and November 5 we must redouble our efforts to preserve these values. No one is better equipped to rebut anti-immigrant rhetoric than AILA attorneys. Don’t let mindless or hateful rhetoric go unchallenged. Write Opinion pieces and Letters to the Editor and be proactive in encouraging your clients to do the same. Go back to the basics–actively support candidates who have the courage to stand up for fundamental American values, immigrant rights and the rule of law. Encourage each of your eligible clients to naturalize, to register, and to vote. (A brochure, in both English and Spanish, with state-by-state voter registration information can be found on the InfoNet–go to “Advocacy Center,” then click on “Take Action” followed by “Vote Drive”). And oppose the politicians who have cynically chosen to use this moment of national crisis to undermine our heritage as a nation of immigrants, who would curtail the fundamental freedoms guaranteed by the Constitution. Write a check, support our friends and be sure that our foes pay the price. The tools you need are at your fingertips, through InfoNet.

The late North Carolina Congressman Richardson Preyer would began a campaign by telling the troops “It’s bumper sticker, door bell ringing time again.” So it is. Let us begin.’

Let us never take for granted the freedoms which we enjoy. There are people in our very backyard who will attempt to limit those freedoms and take them away from us.

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HOMELAND SECURITY. WHAT DOES IT MEAN?

Question: I have different petitions going through for my family. Other relatives are unfortunately in Removal/Deportation Proceedings. I understand that government is planning on restructuring certain departments. Will they restructure INS, and if so, what does that mean for us?

Answer: It appears as though either some or all of INS will be part of the new cabinet level division of the government. It will be known as Homeland Security. However, if it is done in a rash manner without giving the immigrants their rights, then it will hurt those immigrants trying to get her legally and to become legal in the future.

An effective, efficient, and fair immigration system is crucial to our national security and is fundamental to which we are as a people and as a nation of immigrants. Our immigration system must be reorganized. Our immigration system needs to be restructured on the basis of longstanding principles outlined by lawmakers, policy experts, and immigrant advocates.

These principles include: coordinating the separated enforcement and service functions, placing a strong leader in charge of both functions, and adequately funding enforcement and services.

If our immigration functions are included in the new Homeland Security Department, they must be reorganized within a separate division headed by a strong leader.

Question: What exactly will this new department do?

It is unclear at this time exactly what will happen and when it will happen. However, a new division, Immigration Services and Security, should be created within the Department of Homeland Security, headed by an Undersecretary who is knowledgeable about both services and enforcement. Immigration Services and Security should be made up of three sections: Immigration Services, Border Security, and Interior Security.

To enhance our security and support our border functions, a Transportation and Commercial Goods Security division also should be created. This division, along with the Immigration Services and Security division, would replace the proposed Border and Transportation Security Division.

The proposed Homeland Security Department must address concerns about civil rights, oversight, privacy, due process, and visa processing. The new agency must include an office to ensure that the constitutional and civil rights of all persons are protected as the agency carries out its national security mandates.

Policy development for visa issuance needs to remain a function of the State Department to avoid the chaos that would result from separating policy and process and to best address our foreign policy and U.S. business interests.

The Executive Office of Immigration Review (EOIR) must remain outside of the Department of Homeland Security, and be constituted as an independent agency in order to guarantee the impartiality and checks and balances of our justice system. Otherwise, it will be as though the Prosecutor is both the opposing attorney and the judge on the same case.

In order for any reform to be effective, Congress must take the time to get it right, overhaul our immigration laws, and protect both our nation and our values and traditions.

Creating a Department of Homeland Security is an enormous undertaking, and Congress must take the time to get it right. We cannot afford the mistakes and oversights of a hasty examination. There is too much at stake.

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A new way to beat Deportation

Question: I have been here in the U.S. since I was six years old. About 12 years ago, I committed a drug crime of possession for sale. I was sentenced to 4 months. Now, all these years later, I have been put into removal proceedings where INS is trying to deport me. I have been told that I am an aggravated felon and there is nothing I can do. I have further been told that I will most likely be deported away from my family including my U.S. Citizen spouse and three U.S. Citizen Children. I have never done anything else criminally and it was just a stupid mistake when I was young. I have changed, have a good job, a family with U.S. Citizens and many community ties. Is there anything I can do?

Answer: As the law stands now, there is very little you can do. This is a result of the 1996 laws which increased dramatically the laws on what was considered to be an aggravated felony. It has torn families apart for many years since 1996. People who have become long term residents in the U.S. and have their Green Cards found out it did not make any difference. They were still deported. Furthermore, they found out that they were barred from coming back into the U.S. for the rest of their lives. Congress has seen all the suffering caused by the unfair and anti-immigration laws of 1996 and just this week the House Judiciary Committee passed the 2002 Due Process Reform Bill. While it still must be passed by the Senate and signed by the President, it is an excellent step in giving back some of the due process rights lost by long term residents who were put in deportation proceedings because of various crimes.

Question: How does this particular bill help me?

Answer: Please note that the Senate might change some of the provisions, or the President might require some alternate items in the bill. However, as the bill stands now, it applies specifically to people who previously had their Green Cards. They were or are going to be placed into deportation or removal proceedings because of a crime they committed. They are considered to be an aggravated felons and do not qualify for the normal Cancellation of Removal.

Question: What is Cancellation of Removal?

Answer: Prior to this bill there was a section of the bill referred to as Cancellation of Removal for Certain Lawful Permanent Residents. Generally, you had to have your Green Card for at least five-years and be physically present in the U.S. for at least seven-years. Finally, and this is the item that disqualified numerous people, is that you cannot be convicted of an aggravated felony.

Question: What does the new bill allow?

Answer: Basically it deals with the Cancellation of Removal for people who have committed aggravated felonies. In the new bill, it expands the Cancellation of Removal so that it allows people whom have been convicted of aggravated felonies to still keep their Green Cards and stay in the U.S. It deals with three different scenarios. First, people who have been convicted of a non violent aggravated felony. Second, people who were convicted of a violent aggravated felony. Finally, people who have been convicted of an aggravated felony and came to the U.S. as a young child. Each of these provisions allows a person to remain in the U.S. and to not be deported if the Judge grants the Cancellation of Removal. Therefore, this is a very big step toward restoring some of the harsh anti-immigrant provisions of the 1996 law. Hopefully, this trend will continue so that families can be reunited and the tearing apart of immigrant families will stop. .

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Title: Will I qualify for a work permit?

Question: I entered the United States a couple of months ago as a visitor and would now like to work in the United States. I have a degree in Business with an emphasis in accounting and have a couple of firms interested in hiring me. Do I qualify for a work permit, and if so, what must I do?

Answer: First, based upon your degree, you qualify for what is known as a Specialty Occupation Work Visa. This is also known as the H-1B. It is meant for positions which require specialized knowledge and where a college degree is the norm for the industry. Therefore, your position would qualify. You would need to be hired as an accountant.

Question: How do you know that an accountant is a specialty occupation?

Answer: There are many sources that can be viewed from the Department of Labor. These sources are either on the internet, or in printed publication. It basically states what the normal duties for the particular position are and what are the normal educational requirements needed to successfully perform the job.

Question: What type of company must sponsor me?

Answer: As an accountant, any company can sponsor you. Every company can use an accountant. If you had said that you had a degree in biology, your sponsoring companies would have to be much narrower. They would specifically have to deal with biology. The H-1B can be full-time or part-time.

Question: Do I have to leave the U.S. to get the visa?

Answer: Yes, you would have to leave the U.S. to get the visa. However, should you want to stay in the U.S., you can get a change of status from B2 (Visitor), to H-1B (Specialty Occupation Work Visa) Then, you would not have to leave the United States in order to start working for the company. However, if you did leave the United States, you would have to get the Visa in order to return to the United States. It is always possible to get the Visa approved at INS, but to get it denied at the Consulate. You would want to take this into consideration if you decided to leave after successfully getting your status changed to H-1B.

Question: How long does it take to get the answer from INS on whether they will approve the H-1B Petition?

Answer: Now it is taking from 6 to 9 months depending where you live. Should you want it much faster than that, you can put it through INS via Premium Processing. This is exactly what it implies. It goes to the top of the stack and is processed by INS within 15 days of receipt. All you need to do is pay INS $1,000.00 for them to process it as a Premium Process case. If they do not get the answer back to you within 15 days, then you get your $1,000.00 back.

Thus, the H-1B is a very good visa for someone with a college education to have. If you can get a sponsor related to your college degree, then you can see if the H-1B can be done. Usually, it is issued initially for 3 years and can be extended for another 3 years. In cases whereby the person has applied for Labor Certification and has waited for a considerable period of time, they can now apply for an even further extension of the H-1B. It is one of the nicest and most popular work visas available.

Where have my dreams have gone?

Question: I was just a little child when my parents came to the United States with my family. Our visas expired and I have been out of status for many years. I have done very well in high school and now want to attend college. Eventually, I want to become a doctor. However, at every turn is my illegal status. Unfortunately, colleges do not want to take me because I am here illegally. Now I have to work menial jobs and cannot realize my dreams of becoming a doctor and helping people. What can I do?

Answer: There may be a Bill in Congress that could soon become law. It is very much made for persons in your situation. Persons that are victims of the immigration laws and are stuck with nowhere to go. It is known as the DREAM Act. Last week it was in the Senate Judiciary Committee. By marking up and passing the DREAM Act (S. 1545), the Senate Judiciary Committee took an important step to remove one of the barriers that deserving children face in their quest to attend colleges and legalize their status in the United States.

The DREAM Act would return to the states the authority to determine who qualifies for in-state tuition. The bill also would legalize the status of those young people who meet certain criteria, including having good moral character and having lived in the U.S. for at least five years preceding the Act’s passage.

America benefits when all people have the opportunity to contribute to society and the economy. The DREAM Act will facilitate that opportunity for deserving kids, by removing some of the barriers to their attending college and gaining legal status. It not only makes economic sense, but it is the right thing to do.

Question: Did this Bill pass by a wide margin?

Answer: By a 16-3 vote, the Senate Judiciary Committee passed the DREAM Act (Development, Relief, and Education for Alien Minors Act of 2003), despite the strong efforts of restrictionists on and off Capitol Hill to defeat this measure. However, the bill passed only after the Committee approved a damaging amendment.

Question: Is the DREAM Act law?

Answer: No, not yet. Now it must go to the House to act on companion legislation, the Student Adjustment Act (H.R. 1684), introduced by Representatives Chris Cannon (R-UT), Howard Berman (D-CA), and Lucille Roybal-Allard (D-CA).

However, it does seem there is momentum for this Bill. Thus, we will see if it is passed. However, if you are in a situation where you need to have this type of legislation, help may soon be on its way.

What new Bills are on the Horizon?

Question: I have heard that there are a large number of new immigration bills that are in Congress. Can you give a summary?

Answer: Yes, there are a significant number of bills. Whether they actually become law will only be determined by time. However, it does appear that there should be a significant number of changes in the coming year. Below are just a few of the bills introduced.

The Uniting American Families Act or the Permanent Partners Immigration Act: Introduced on June 21 by Senator Patrick Leahy (D-VT), S. 1278 would provide a mechanism for U.S. citizens and lawful permanent residents to sponsor their permanent partners for residence in the United States. S. 1278 defines the term “permanent partner” to mean an individual 18 years of age or older who (a) is in a committed, intimate relationship with another individual 18 years of age or older in which both parties intend a lifelong commitment; (b) is financially interdependent with that other individual; (c) is not married to or in a permanent partnership with anyone other than that other individual; (d) is unable to contract with that other individual a marriage cognizable under the INA; and (e) is not a first, second, or third degree blood relation of that other individual. The bill is companion legislation to H.R. 3006 below.

The Unaccompanied Alien Child Protection Act of 2005: Introduced on January 24, 2005, by Senator Dianne Feinstein (D-CA), S. 119 would build upon the Homeland Security Act, which transferred the care and custody of unaccompanied alien children from the former INS to the Department of Health and Human Services’ Office of Refugee Resettlement (ORR). Among other things, the bill would ensure that unaccompanied alien children have access to counsel; give ORR the authority to provide guardians to such children; establish minimum standards for the care and custody of unaccompanied alien minors; and strengthen policies for permanent protection of unaccompanied alien children. The bill is similar to legislation that Senator Feinstein introduced in the 108th Congress.

The Civil Liberties Restoration Act: Introduced on April 6 by Representative Howard Berman (D-CA), H.R. 1502 seeks to roll back some of the most egregious post-9/11 policies and strike an appropriate balance between security needs and liberty interests. Among other things, H.R. 1502 would secure due process protections and civil liberties for non-citizens in the U.S., enhance the effectiveness of our nation’s enforcement activities, restore the confidence of immigrant communities in the fairness of our government, and facilitate our efforts at promoting human rights and democracy around the world.

The Secure America and Orderly Immigration Act: Introduced on May 12 by Senators John McCain (R-AZ), Edward Kennedy (D-MA) and others, S. 1033 would comprehensively reform our immigration laws so that they enhance our national security and address the concerns of American businesses and families. Among other things, the bill would establish a break-the-mold new essential worker visa program (the H-5A visa) while also providing a mechanism by which eligible undocumented immigrants present in the U.S. on the date of the bill’s introduction could adjust to temporary nonimmigrant (H-5B) status; promote family unity and reduce backlogs; call for the creation and implementation of a national strategy for border security and enhanced border intelligence; create new enforcement regimes; and promote circular migration patterns. House companion legislation (H.R. 2330) was introduced on May 12 by Representatives Jim Kolbe (R-AZ), Jeff Flake (R-AZ), and Luis Gutierrez (D-IL).

The Agricultural Job Opportunities, Benefits, and Security (AgJobs) Act of 2005: Introduced on February 10, 2005 by Senators Larry Craig (R-ID) and Edward Kennedy (D-MA), S. 359 would create an earned adjustment program for undocumented farm workers who would be eligible to apply for temporary immigration status based on their past work experience, and could become permanent residents upon satisfying prospective work requirements. The legislation would also streamline the existing H-2A foreign agricultural worker program while preserving and enhancing key labor protections. Representatives Chris Cannon (R-UT) and Howard Berman (D-CA) introduced a companion measure in the House (H.R. 884). The bill is similar to legislation that the two Senators introduced in the 108th Congress.

The Save America Comprehensive Immigration Act of 2005: Introduced on May 4 by Representative Sheila Jackson Lee (D-TX), H.R. 2092 would, among many other things, increase the allocation of family-based immigrant visas; provide age-out protection for children; provide earned access to legalization; provide adjustment of status for certain children; update the registry provisions; and enhance border security.

We have fought long and hard to try to get reform of unfair immigration laws, and hopefully, this will be the year that much of the positive reform happens.

The New Year’s Hope for Immigration

Question: I have been fighting my case for some time and yet do not have anything. What can I do?

Answer: As the year comes to an end, you need to try to give thanks for what you do have and then start again after the New Year. I am sure that you can appreciate and understand that practically everything is getting more difficult at Immigration. Whether your case is in Immigration Court, on Appeal to the Board of Immigration Appeals or the Circuit Courts or in front of USCIS, things are taking longer. Whether you have a Labor Certification or are applying for a Religious Visa, or a multitude of other types of visas, everything has gotten harder. Whether you are applying for a particular kind of Waiver or relief in Immigration Court, the evidence needed to present is much more than it used to be.

Therefore, you must keep fighting and you must keep your hopes up high. No matter how hard it is to get what you want from Immigration, you can always make a better case than before and you can always submit more evidence. We as a people cannot let the forces at Congress, USCIS, BICE, BCBP, and DOL or any other government agency drive immigrants and nonimmigrants away. If we permit the forces against the natural flow of immigration to win, then the United States will become the opposite of a land of dreams. It will become a land that will become unwelcoming.

As an immigration attorney, I am committed to keeping the fight going. Since IIRAIRA passed in 1996, lawyers across the U.S. have fought against provisions that were hurtful and spiteful to immigrants. Slowly, bit by bit, we have had successes to show that certain parts of legislation aimed against immigrants were unfair or unconstitutional. Now, there are more cases in Circuit Courts across the U.S. that are immigration related than ever before. The Circuit Courts are inundated with immigration cases because we must keep appealing and keep fighting what are laws that are aimed to deprive the immigrant of their dreams. If we give up, then we are validating the unfair laws, the discrimination, and the laws that will keep immigrants out of the U.S.

Therefore, do not despair that it is taking a long time to resolve your visa or your status. Keep in mind that there are multitudes of people in a much worse situation than you. There are people whom did not have anyone to fight for them and have been deported; had their appeals denied; had their Labor Certifications denied or had their relief denied. However, as long as you have an immigration attorney fighting for you, keep up your hope. It is only the fighting by that immigration attorney and other immigration attorneys across the country that will eventually prevail against antiquated laws and the discrimination against immigrants that exists by some of Congress.

It is almost New Year’s. Let’s give thanks for our health and our family. Let’s give thanks that we are still in the U.S. fighting to stay and fighting to get what is deserved. Let’s look at the people who did not win and hope that someday they have a successful return to the U.S. Hope is a powerful emotion and all of us can have hope to get what we eventually want.

I would like to wish all of my readers a Happy and Prosperous New Year’s and a hope that next year will give each and everyone of you prosperity and happiness.

Brian D. Lerner is an Immigration Attorney Specialist. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling    (866) 495-0554    or    (562) 495-0554   . The Firm website is www.californiaimmigration.us.

Are H-1B’s and H-2B’s used up yet?

 Question: I have heard that H-1B’s and H-2B’s are going quickly. Are they used up yet?

Answer: The DHS recently published numbers of H-1B’s and H-2B’s currently used. The H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. The H-1B visa program is utilized by some U.S. businesses and other organizations to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. The current annual cap on the H-1B category is 65,000. It appears that for non advanced degree holders, the cap of about 58,000 has approved over 22,000 and has about 30,000 pending. This means there are only about 5,000 left. You should get your H-1B in right away.

However, if you have an advanced degree, there was an extra 20,000 H-1B’s allocated. For the rest of the 2005 fiscal year, there have been about 10,300 that have been approved. Thus, there is still a reasonable amount left. For the fiscal year of 2006, there have already been about 8,000 used up.

The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.

Of the 35,000 left until October 1, 2005, about 16,000 have been used. There have only been about 300 used up for the first half of 2006. Therefore, there seems to be quite of bit of H-2B’s left.

Question: Do you think there is any problem with filing an H-1B or an H-2B at this time?

Answer: You never know how soon all of the visas will be used up. There are people across the U.S. who are aware that there is a limit on these visas and are trying to get their visas in right away. Therefore, you should have your visa petition prepared right away to ensure you get in this years allotment. All kinds of status problems could occur if the allotment is used up and your stay in the U.S. expires afterwards.

Question: Should we file the H-1B and/or H-2B with premium processing?

Answer: Definitely. You never know if your application will be filed one after the last one. Therefore, to ensure your chances, pay the $1,000 premium processing fee and have peace of mind.

Are H-1B’s gone yet?

Question: I have a Masters Degree in Business Administration and want to obtain an H-1B. Are they all used up yet?

Answer: The U.S. Citizenship and Immigration Services (USCIS) announced on May 24, 2005, that it has received approximately 6,400 H-1B petitions that will count against the Congressionally-mandated 20,000 cap exemption for fiscal year 2005 established by the H-1B Visa Reform Act of 2004. This would be for people with advanced degrees (not the normal type of H-1B.) The USCIS published an interim final rule on May 5, 2004, implementing the new H-1B cap exemption for foreign nationals holding U.S.-earned advanced degrees, pursuant to the H-1B Visa Reform Act of 2004. The Act exempts 20,000 H-1B visa numbers from the overall H-1B cap for foreign nationals holding masters or higher degrees from U.S. universities. Petitions seeking Fiscal Year 2005 H-1B visa numbers under the exemption received on or after May 12, 2005, will be accepted for filing.

The new regulations, which took effect on May 5, 2005, changed the H-1B filing procedures for FY 2005 and for future fiscal years. The regulations make available 20,000 new H-1B visas, only for foreign workers with a minimum master’s level degree from a U.S. academic institution, in addition to the Congressionally-mandated annual cap of 65,000 H-1B visas.

Question: About how many more remain this year for the advanced degree holders?

Answer: About 13,600 slots remain available for fiscal year 2005 (which ends on September 30, 2005). Only foreign nationals holding masters or higher degrees from U.S. universities are eligible for one of these numbers. Because the 65,000 cap has already been reached, H-1B employers seeking the services of foreign nationals who do not hold such degrees are restricted to filing petitions for a FY 2006 number (i.e., for employment commencing on or after October 1, 2005) unless a different cap exemption is applicable (e.g., the employer is an institution of higher education). Note that a new 20,000 cap exemption will apply for FY 2006. The USCIS will exempt the first 20,000 petitions for H-1B workers who have a master’s degree or higher from a U.S. institution of higher learning. After those 20,000 slots are filled, the USCIS will apply petitions for H-1B workers with a master’s degree or higher against the annual cap of 65,000. As a result, once the 20,000 numbers are used, an initial petition for an advanced-degree worker will be approved only if a number is available within the general 65,000 cap or the case is not subject to the cap under a different exemption (i.e., the employer is an institution of higher education).

Question: My friend has had an H-1B for almost 6 years and has had a Labor Certification pending for over 1 year. I heard you can only have an H-1B for 6 years maximum. What is he to do?

Answer: Post-Sixth Year H-1B Extensions Based on Long-Pending Permanent Residence Papers under what is known as AC-21 § 106(a)) allows for an extension if a labor certification or employment-based petition has been filed on behalf of the alien and remains pending for 365 days. Note the following issues clarified by the 2005 memo. Combined standard and post-sixth year H-1B extensions permitted. To obtain a post-sixth year H-1B extension, there is no need for the foreign national to first request an extension of time through the completion of his or her initial six years and then request an additional extension of time beyond the six-year limit. The petitioner can request an extension that combines the remaining time in the initial six-year H-1B period and post-sixth year time. Post-sixth year time can only be granted in one-year increments, and the total period of extension cannot exceed three years.

Question: When should the extension be filed?

Answer: The post-sixth year extension request can be filed prior to the passage of 365 days from the filing of a qualifying labor certification or I-140 petition, as long as the qualifying labor certification or I-140 petition has or will have been pending for 365 days prior to the foreign national’s requested extension start date. However, the extension will not be granted if the foreign national will not be in H-1B status at the time that the 365 days have elapsed, i.e., where there is a gap in status.

Act NOW or it might be too late!

Question: I have heard that Congress will finally be passing some type of new comprehensive Intelligence Bill. But at the same time, I have heard that there are various immigration provisions that will also be passed. Are these items related?

Answer: Unfortunately, in order to get certain congresspersons to help to pass a major reform bill, there is a great deal of back door negotiating. In this bill, it is no different. The provisions that they have requested go into this bill regarding immigration are draconian and will hurt immigrants.

Question: Is it law yet? Is there anything anyone can do to stop the immigration provisions from going into the bill?

Answer: No, it is not law yet. When Congress returns to session, your Senators and Representatives may be voting on intelligence reform legislation. Whether that legislation includes anti-immigrant and anti-civil liberty measures could be up to you! Join pro-immigration groups across the country this week and contact your Senators and Representatives through the Congressional Switchboard (202-224-3121) and through Contact Congress. Congressional offices are reporting that calls and letters in support of these ill-conceived measures are coming into their offices. Now, it is up to all of us to make sure that we make our voices heard and send a letter or e-mail or simply call our congressional representative.

Along with your own Members of Congress, please contact the following Members of Congress by phone: Speaker of the House Dennis Hastert (R-IL) at 202-225-2976. Representative Hoekstra (R-MI) at 202-225-4401. Representative Harman (D-CA) at 202-225-8220. We need to thank her for her leadership and urge her to hold firm. Senator Collins (R-ME) at 202-224-2523. We need to also thank her for her leadership and urge her to hold firm. Senator Lieberman (D-CT) at 202-224-4041. We need to thank him for his leadership and urge him to hold firm.

After calling your Members of Congress, you can also write to them using Contact Congress to urge them to oppose the anti-immigrant provisions in the proposed Intelligence Reform legislation.

President Bush also needs to hear from you because he has said that he will work to get a bill passed this year. It is important that you contact him by phone and email a letter to urge him to support an intelligence reform bill that does not include these negative provisions. Contact the White House by phone at 202-456-1111.

It may seem that a single person cannot make a difference. However, if each of us tries to take this small step, it could make all the difference in the end.