UPDATE FROM THE AILA 2006 ANNUAL CONFERENCE ON IMMIGRATION LAW
UPDATE FROM THE AILA 2006 ANNUAL CONFERENCE ON IMMIGRATION LAW
The American Immigration Lawyers Association 2006 Annual Conference on Immigration Law was held in San Antonio, Texas in June 2006. The following provides updates on some of the most relevant topics to the South Asian community:
Comprehensive Immigration Reform: The House and the Senate immigration reform bills were sent to Conference Committee to negotiate a compromise and obtain consensus on a final bill. The Conference Committee is unlikely to meet about this any time soon. In June, House leadership announced that it will hold field hearings throughout the country to assess public opinion on immigration reform. This was a strategic move made by the House to build momentum against to the Senate bill. These hearings will likely lead to a legislative stalemate. Those supporting the Senate bill need to counter these hearings and reinvigorate the momentum that existed in March, April and May of this year.
H-1B Cap: On May 25, 2006, USCIS announced that 12,000 H-1B visas were still available, leading practitioners, employers and employees to think there were a few more days to submit H-1B petitions. On June 2, 2006, however, USCIS announced that the H-1B cap was filled on May 26, 2006. How could this happen? Did USCIS really receive 12,000 applications overnight?
According to the USCIS, this "mix-up" was the result of bi-specialization. Under bi-specialization, all I-129 petitions are filed with at the Vermont Service Center. As a result, the VSC mailroom was overwhelmed with filings. This delayed the data entry process. As such, the May 25, 2006 announcement only included the applications that had already undergone data entry. It did not include applications received in the mailroom and awaiting data entry.
Many have asked if Congress is considering an increase to the H-1B cap. The Senate bill includes the "Skill Bill," which will provide H-1B relief. Unfortunately, however, it appears as if there will be a stalemate on this bill, making it unlikely that the cap will be increased this year.
Affidavits of Support: A regulation regarding I-864, Affidavits of Support will take effect on July 21, 2006. It provides that the household income to be considered will be that which was gained in the year that the application was filed. The Adjudicating Officer will not consider the income at the time of the decision unless the application has been pending for more than one year. In that instance, discretion can be used and later income can be considered. Please note, however, this discretion will typically be used when the sponsor's income is in question. Other noteworthy changes under this regulation include the creation of an I-864 EZ form, which considers only the income of the sponsor and not other assets, and the requirement that only one year and not three years of tax returns must be submitted.
Missing 45-Day Letters: There has been a concern about labor certification cases closed by the Department of Labor for failure to receive responses to 45-day letters. After AILA wrote a demand letter threatening to sue, the DOL has indicated that it will reopen cases where the response was submitted, but has somehow been lost by the DOL. The DOL has also indicated that it reopen cases in instances where the employer and the attorney did not receive the 45-day letter.
What is happening with the K-1 Visas? Approximately 1,100 K-1 Fianc� petitions have been recalled. These cases cannot be processed due to the new requirements established by the International Marriage Brokers Act. The cases are being sent back to the Department of Homeland Security until all of the requirements (both security and documentary) are fulfilled.
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