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March Madness: Immigration, Not Basketball

by Sherry L. Neal

It's that time of the year that is commonly called "March Madness" throughout the U.S. It's a month of excitement, strategy and some disappointment in the game of basketball. But imagine if the NCAA league leaders decided - just days before the tournament - to delay the tournament while they went back and recounted the records of the teams. Or imagine that the league decided to change a two-half game into a four-quarter game only to then decide that they would skip the first quarter. Sounds crazy, doesn't it? Well perhaps so in the game of basketball but in the area of immigration that's been the rule of the game during this last month. Indeed, the last month in immigration can be appropriately called "March Madness".

The President of the United States signed the H-1B Visa Reform Act of 2004 on December 8, 2004 which was supposed to take effect on March 8, 2005. That Act provides, among other things, an additional 20,000 H-1b visas for graduates of U.S. Master's degree or higher programs. However, the CIS delayed the effective date of the law when it announced by Press Release on March 8, 2005 that it was currently preparing regulations implementing the act and that the available petitions for fiscal year 2005 would be applied to all qualified H-1b nonimmigrant aliens and not limited to those individuals holding a master's degree or higher degree from a U.S. institution of higher learning. In the press release, the CIS advised employers to not file H-1b petitions seeking the benefit of the law until USCIS publishes a rule concerning the Visa Reform Act.

Just days later the USCIS announced that it was revising the I-129 form used for filing H-1b petitions to accommodate recordkeeping requirements under the new law. The USCIS announced that new petitions needed to be filed with the new form. Immediately thereafter, the USCIS announced in a Public Notice that the old I-129 form could still be used until May 1, 2005, after which time the new form would need to be used.

In a March 25, 2005 news report, the Associated Press reported that for fiscal year 2005 the USCIS had approved 10,000 more H-1b applications than the 65,000 allotted cap. Then in a Press Release dated March 30, 2005, the USCIS advised that it still did not know when it would begin accepting H-1b petitions for fiscal year 2005 but that employers could begin filing on April 1, 2005 toward the fiscal year 2006 cap.

The madness during the month of March has generally been reserved for the USCIS. However, the Department of Labor's new labor certification process has created some delays and confusion also. The new labor certification program - PERM - went into effect on March 28, 2005. Despite some minor technical problems, the program is running reasonably smooth - except there hasn't exactly been a flood of cases. The delays in getting prevailing wage determinations from some states and posting the job orders with the various states have made the system less than ideal. Interestingly, while the PERM regulations provide for a four level wage system, the recent guidance from the Department of Labor said that "employer requests for foreign workers are frequently for fully qualified workers who possess special skills. Wage Level 1 would not be assigned in those situations." Depending upon the interpretation of this statement, it may be that the Department of Labor will rarely issue level 1 wages in prevailing wage determination requests for labor certification. If such is the case, the Department of Labor is essentially nullifying the level 1 wage. It's analogous to a basketball game with four quarters where the league decides to skip the first quarter.

With the beginning of a new month, there's hope that the madness of March will be behind us and things will run more smoothly in immigration. As they say, hope springs eternal.

About The Author

Sherry L. Neal is a Partner in the Cincinnati, Ohio office of Hammond Law Group. Sherry practices employment-based immigration law, representing employers and employees on temporary and permanent immigration issues. She can be reached at

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.