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On May 11, 2005, President Bush
signed into law H.R. 1268, the "Emergency Supplemental
Appropriations Act for Defense, the Global War on
Terror, and Tsunami Relief Act, 2005" (the "Act").
Among the provisions contained in the Act is a new
professional visa category for Australian nationals
(E-3), H-2B cap relief in the form of “Save our Small
and Seasonal Businesses Act of 2005," the recapture of
up to 50,000 immigrant visas to benefit primarily nurses
and physical therapists, and the REAL ID Act. Following
is a brief summary of the new law’s various immigration
provisions:
New Australian E-3 Nonimmigrant
Visas
The new E-3 visa is similar to the
H-1B1 visa established last year for citizens of Chile
and Singapore. It makes available 10,500 new employment
visas for Australian nationals who will work in a
professional occupation, and who possess at least a U.S.
Bachelor’s degree or its foreign equivalent. However,
unlike the H-1B1 visa, the 10,500 E-3 visas will not be
deducted from the annual H-1B visa cap of 65,000, but
will be available in addition to the H-1B visas.
Employers wishing to utilize the E-3 visa will be
required to obtain an approved Labor Condition
Application (LCA) from the U.S. Department of Labor, but
will not be required to obtain an approved petition from
U.S. Citizenship and Immigration Services (USCIS).
Instead, after obtaining an approved LCA, the E-3
candidate will be able to apply for the E-3 visa
directly at a U.S. consulate abroad, though individuals
currently in the United States in some other lawful
nonimmigrant status will likely be able to apply to
change status to E-3 while remaining in the United
States. Similar to the existing E visas for Treaty
Traders and Treaty Investors, the E-3 visa for
Australian professionals will be renewable indefinitely,
and accompanying spouses will be eligible for U.S. work
authorization. No effective date was specified for this
new visa program. We believe the USCIS or Department of
State will soon issue memoranda outlining the procedures
that individuals and employers must follow to apply for
E-3 classification. We are monitoring this situation
very closely, and will provide updates to employer
clients as soon as they come available.
H-2B Cap Relief
The enacted H-2B legislation
provides a new exemption to the 66,000 annual H-2B cap,
and ensures that employers will have access to seasonal
and short term labor. During the present fiscal year,
the annual H-2B cap was reached on January 3, 2005. The
Act provides that any foreign worker who has been
counted against the H-2B cap in one of the previous
three years will not be subject to the H-2B cap,
provided the worker returns to the same employer. This
exemption will expire on October 1, 2006. The H-2B
legislation also included an adjustment of the issuance
of H-2B visas to ensure equitable distribution of H-2B
visas throughout the entire fiscal year. Under the new
law, USCIS may approve no more than half of the annual
66,000 H-2B visas in the first six months of the fiscal
year. Effectively, this means that after USCIS approves
the first 33,000 H-2B visas for a fiscal year, there
will be moratorium on new H-2B filings until petitioners
may begin filing cases for the second half of the fiscal
year. Further, a new fraud detection fee of $150 will
apply for H-2B petitions requesting a start date in
FY2006, but will not apply to FY2005 petitions. The
H-2B provisions take effect on May 25, 2005 and apply to
filings for FY2005 and later
Recapture of Unused Visas for
Nurses
Another provision of the Act
provides for the recapture of up to 50,000 unused
employment-based immigrant visa numbers from fiscal
years 2001-2004. These visas were lost due to
processing delays at USCIS. Unfortunately, these
recaptured numbers will only be available to occupations
on the U.S. Department of Labor's Schedule A list, which
is primarily nurses and physical therapists.
REAL ID Act
Last, the Act includes the
controversial REAL ID Act, which has been the subject of
intense media scrutiny, but little debate in Congress.
REAL ID substantially raises the burden of proof for
asylum seekers and includes provisions that severely
limit judicial review of detention and removal orders as
well as other administrative decisions. Additionally,
REAL ID bars States from issuing drivers licenses to
persons who cannot prove that they are citizens,
nationals, permanent residents, or have lawful
immigration status in the U.S. Among other things, REAL
ID requires States to verify with the issuing agency the
issuance, validity, and completeness of each document
presented. Driver's licenses issued to persons who are
not U.S. citizens, nationals or permanent residents
would be temporary, and their expiration would be tied
to the person's authorized period of stay. For persons
eligible for a temporary license, but whose stay does
not have an expiration date (such as F-1 Students and
J-1 Exchange Visitors), the validity period of driver’s
licenses and identification cards shall not exceed one
year. We anticipate that these short duration drivers
licenses combined with individual State procedures will
lead to periods of time when foreign nationals will not
be able to secure drivers licenses. For a full summary
and selected analysis of the REAL ID Act by the American
Immigration Lawyers Association (AILA), click the
following link:
www.aila.org/fileViewer.aspx?docID=18433 |
