• H-1B VISAS – USCIS REACHED THE FY 2008 H-1B CAP FOR FISCAL YEAR (FY) 2008 ON APRIL 2, 2007 
• 133,000 PETITIONS RECEIVED IN TWO DAYS FOR A CAP OF 65,000 FOR H-1B PETITIONS.  WHAT ARE THE IMPLICATIONS FOR IMMIGRATION REFORM?   
• STRIVE ACT – HOPE TO MAKE UNDOCUMENTED IMMIGRANTS WHO WERE IN THE U.S. BEFORE JUNE 1, 2006 ELIGIBLE FOR LEGALIZATION 
• CITIZENSHIP PROMOTION ACT OF 2007:  POSSIBLE SOLUTION TO DRAMATIC FEE INCREASES PROPOSED BY USCIS 
• USCIS CREATES NEW OFFICE OF SECURITY AND INTEGRITY

CASE STATUS SERVICE ONLINE – Use Internet to check the status of your case.

NEWSBRIEFSH-1B VISAS –  USCIS  REACHED THE FY 2008 H-1B CAP on April 2, 2007.

In the world of immigration law, the H-1B cap is this month’s leading headline.  Reaching the cap is not good news for U.S. businesses that use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in fields, such as scientists, engineers or computer programmers.

As predicted, the cap was reached early this year for H-1B Visa applications for fiscal year 2008.  USCIS received enough H-1B petitions to meet the congressionally mandated cap.  Congress has established an annual fiscal year limitation of 65,000 H-1B visas. This is commonly referred to as the “H-1B Cap”.

USCIS will use a random selection for all cap-subject filings received on April 2, 2007 and April 3, 2007.  USCIS will reject and return along with filing fees all petitions received on those days that are not randomly selected.  Also, USCIS will reject and return along with filing fees all cap-subject H-1B petitions that are not randomly selected.

133,000 petitions unique pieces of mail were received by the USCIS on April 2, 2007 and April 3, 2007.  It will take USCIS a substantial amount of time to open and sort through that volume of mail.

What is the status of cap-exempt petitions?

As directed by the H-1B Visa Reform Act of 2004, the first 20,000 H-1B petitions filed on behalf of clients with U.S.-earned masters’ or higher degrees are exempt from any fiscal year cap on available H-1B visas. 

As of Wednesday, April 3, 2007, 28,052 of the cases sorted are H-1B petitions subject to FY 2008 congressionally mandated cap.  Four thousand, seven hundred three cases are exempt from the FY 2008 H-1B cap as employers filed those petitions for aliens holding a master’s degree or high from a U.S. institution.  USCIS will make a future announcement regarding the “final receipt date” for these petitions.

What are my options if my cap-subject H-1B petition for FY 2008 is rejected?

Petitions may re-submit petitions on April 1, 2009 when H-1B visas become available for FY 2009.  This is the earliest date for which an employer may file a petition requesting FY 2009 H-1B employment with a start date of October 1, 2008. 

For legal information on your specific case, make an appointment with attorney Curtis Pierce. 

As referenced above, Congress has established an annual fiscal year limitation of 65,000 H-1B visas. The quota was exceeded in record time.  Last year, the cap was met on May 26, and in the previous year, it was met in August.   If numbers don’t lie, there is a problem when the USCIS receives 133,000 petitions in two days for 65,000 slots, and the number of applications increases yearly.  Clearly, the system is crying out for reform.

If changes to the politically controversial foreign worker program happen this year, they may be tied to increases in the visa cap.  H-1B visa supporters see the overflow as reason to raise the cap so businesses can get the talent they need form abroad. 

In 2004, in the midst of a U.S. recession, Congress lowered the visa cap to 65,000 after three years at 195,000.  In 2005, it added 20,000 visas for foreign nationals who graduated from U.S. universities.  The high tech industry, which takes the majority of the visas, has been pushing to raise the ceiling at to least 115,000.  However, the policy debate in Washington this year could move beyond the cap number to more serious reform, starting with a bill introduced last week by Senators Chuck Grassley, R- Iowa and Dick Durbin, D-Ill.

The Durbin-Grassley bill seeks to break new ground.  It is aimed at the H-1B and L-1, which is not capped and is designed for managers of multinationals.  The Durbin-Grassley bill would bar companies from outsourcing H-1B or L-1 employees to other companies; it would require all employers with H-1B workers to pledge that they make a good faith effort to fill those jobs with American workers and it would require them to advertise jobs on a Labor Department web site for 30 days and post summaries of all H-1B applications.  It would also give the Labor Department more authority to investigate abuses. 

It is the opinion of this writer that any H-1B reform will happen this year or not at all before the 2008 presidential election.  Also, it seems likely that raising the cap numbers must be included in any H-1B legislation.  

On March 22, 2007, Reps. Luis Guiterrez (D-Ill.) and Jeff Flake (R-Ariz.) introduced the STRIVE Act to Congress.  The STRIVE Act of 2007, (Security Through Regularized Immigration and a Vibrant Economy) is a bipartisan, comprehensive immigration reform bill. 

Congress failed last year to enact a comprehensive immigration bill.  Gutierrez contends that “Rather than unfairly targeting Windex-wielding cleaning ladies, or wasting billions of dollars on failed strategies of the past, our bill offers real solution to the challenges we face.  It deals directly with the undocumented who are living, working, and contributing to a better, more dynamic America.”

Under the STRIVE Act, those hoping to gain “conditional non-immigrant status” would have to pay a $500 fine, pass security and background checks, and prove that they have been actively employed. After six years, immigrants who have learned English, have a crime-free record and pay an additional $1,500 plus application fees would be eligible to become permanent U.S. residents.

In addition to an earned legalization program, Guitierrez and Flake’s bill would create renewable visas for new immigrant workers, increase the size of the Border Patrol, and establish stricter criminal penalties for evading border inspections and ease naturalization for non-citizens who serve in the armed forces.

STRIVE also includes a provision for an H-2C worker visa program.  It creates a legal channel for future immigrant workers (and their spouses and children) by establishing the H-2C visa, which is valid for three years and renewable for another three.  Employers must attempt to hire U.S. workers by first offering the job to any eligible U.S. worker who applies and is qualified and able.  Employers are bared from hiring new immigrant workers if they are located in an area with an unemployment rate higher than 9: for workers who education level is at or below a high school diploma.

Critics complain that the STRIVE Act offers “amnesty” to undocumented immigrants.

CITIZENSHIP PROMOTION ACT of 2007: POSSIBLE SOLUTION TO DRAMATIC FEE INCREASES PROPOSED BY USCIS
Among other things, the Citizenship Promotion Action Act of 2007 S. 795/H.R. 1379 seeks avoid the increases for immigration application fees proposed by the USCIS in February 2007. To find complete information on the substantial fee increases for immigrant applications, scroll down on this page to February 1, 2007 "USCIS PROPOSES DRAMATIC FEE INCREASES FOR IMMIGRATION APPLICATIONS".

The Citizenship Promotion Act of 2007 was proposed by Senator Barak Obama (D-IL) and Representative Luis Gutierrez (D-IL) on March 7, 2007. It addresses one of the most significant barriers that could place the dream of citizenship beyond the reach of many legal residents - the proposal of the USCIS to raise the fees for starting the naturalization process from $400 to $675. The CPA would freeze those fees at their current level and authorize congressional appropriations to supplement the USCIS.

The Citizenship Promotion Act of 2007 will also make the test for U.S. citizenship fairer by providing for uniform administration of the exam throughout the nation. The legislation would require the USCIS, when administering the test, to take into account challenges because of their age, education, or other similar characteristics.

National security is also addressed. This legislation is designed to enhance national security by providing for greater accountability in the background checks that are conducted on applicants for U.S. citizenship. The CPA also would establish a national program to promote U.S. citizenship and help community organizations provide a wide range of naturalization education, outreach and assistance services to our nation's newcomers. 

USCIS CREATES NEW OFFICE OF SECURITY AND INTEGRITYThe name sounds like George Orwell himself thought of it.  On March 15, 2007 the USCIS announcement the creation of the Office of Security and Integrity whose mission is to sharpen the focus on management integrity and critical security functions,  This new office realigns internal review and management integrity functions located in the Financial Management Division’s Office of Planning, Budget and Finance with operations of the current Office of Security and Investigation. Remember, Big Brother is watching.

http://www.uscis.gov/files/pressrelease/OSI_031507.pdf

FEATURE OF THE MONTH:  “THE TAX MAN COMETH:  DO I NEED AN ITIN?”  IF YOU DON’T HAVE A SOCIAL SECURITY NUMBER AND ARE WORKING IN THE UNITED STATES, DON’T MISS THIS FEATURE.April is tax month an it is important for all person working in the United States to file an individual income tax return with the IRS.  If you don’t have a social security number, you can apply for an Individual Taxpayer Identification Number (ITIN).

What is an ITIN?
An Individual Taxpayer Identification Number (ITIN) is a tax processing number issued by the Internal Revenue Service. It is a nine-digit number that always begins with the number 9 and has a 7 or 8 in the fourth digit, example 9XX-7X-XXXX.
IRS issues ITINs to individuals who are required to have a U.S. taxpayer identification number but who do not have, and are not eligible to obtain a Social Security Number (SSN) from the Social Security Administration (SSA).
ITINs are issued regardless of immigration status because both resident and nonresident aliens may have U.S. tax return and payment responsibilities under the Internal Revenue Code.
Individuals must have a filing requirement and file a valid federal income tax return to receive an ITIN, unless they meet an exception.

What is an ITIN used for?
ITINs are for federal tax reporting only, and are not intended to serve any other purpose. An ITIN does not authorize work in the U.S. or provide eligibility for Social Security benefits or the Earned Income Tax Credit. ITINs are not valid identification outside the tax system.
IRS issues ITINs to help individuals comply with the U.S. tax laws, and to provide a means to efficiently process and account for tax returns and payments for those not eligible for Social Security Numbers.

Who needs an ITIN?
IRS issues ITINs to foreign nationals and others who have federal tax reporting or filing requirements and do not qualify for SSNs. A non-resident alien individual not eligible for an SSN, who is required to file a U.S. tax return only to claim a refund of tax under the provisions of a U.S. tax treaty, needs an ITIN.
Examples of individuals who need ITINs include:

• Non-resident alien filing a U.S. tax return and not eligible for an SSN
• U.S. resident alien (based on days present in the United States) filing a U.S. tax return and not eligible for an SSN
• Dependent or spouse of a U.S. citizen/resident alien
• Dependent or spouse of a non-resident alien visa holder

How do I know if I need an ITIN?
If you do not have an SSN and are not eligible to obtain an SSN, but you have a requirement to furnish a federal tax identification number or file a federal income tax return, you must apply for an ITIN. By law, an alien individual cannot have both an ITIN and an SSN.
IRS processes returns showing SSNs or ITINs in the blanks where tax forms request SSNs. IRS no longer accepts, and will not process, forms showing "SSA205c," "applied for," "NRA," blanks, etc.

Are ITINs valid for identification?
No. ITINs are not valid identification outside the tax system. Since ITINs are strictly for tax processing, IRS does not apply the same standards as agencies that provide genuine identity certification.
ITIN applicants are not required to apply in person, and IRS does not further validate the authenticity of identity documents. ITINs do not prove identity outside the tax system, and should not be offered or accepted as identification for non-tax purposes.

Are ITINs valid for work purposes?
No. ITINs are for federal income tax purposes only.

REVISED APPLICATION STANDARDS FOR ITINS

What are the revised application standards for ITINs?
Effective immediately, each ITIN applicant must now:

• Apply using the revised Form W-7, Application for IRS Individual Taxpayer Identification Number ; and
• Attach a federal income tax return to the Form W-7.
  Applicants who meet an exception to the requirement to file a tax return (see the instructions for Form W-7) must provide documentation to support the exception.

Why is IRS revising the ITIN application process?
The revisions to the ITIN application process will help ensure ITINs are used for their intended tax administration purposes.

What documents are acceptable as proof of identity and foreign status?
IRS has streamlined the number of documents the agency will accept as proof of identity to obtain an ITIN. There are now 13 acceptable documents.An original, or a certified or notarized copy, of an UNEXPIRED passport is the only document that is accepted for both identity and foreign status. If you do not have a passport, you must provide a combination of current documents that contain expiration dates - we accept docs issued within 12 months of the application if no expiration date is normally available. The documents must also show your name and photograph, and support your claim of foreign status.IRS will accept certified or notarized copies of a combination (two or more) of the following documents, in lieu of a passport:

• National identification card (must show photo, name, current address, date of birth, and expiration date)
• U.S. driver's license
• Civil birth certificate
• Foreign driver's license
• U.S. state identification card
• Foreign voter's registration card
• U.S. military identification card
• Foreign military identification card
• Visa
• U.S. Citizenship and Immigration Services (USCIS) photo identification
• Medical records (dependents - under 14 years old - only)
• School records (dependents and/or students - under 25 years old - only)

How do I apply for an ITIN?
Use the January 2007 revision of Form W-7, Application for IRS Individual Taxpayer Identification Number to apply. Attach a valid federal income tax return unless you qualify for an exception, and include your original or certified proof of identity documents.
Because you are filing your tax return as an attachment to your ITIN application, you should not mail your return to the address listed in the Form 1040, 1040A or 1040EZ instructions. Instead, send your return, Form W-7 and proof of identity documents to:Internal Revenue Service
Austin Service Center
ITIN Operation
P.O. Box 149342
Austin, TX 78714-9342

You may also apply using the services of an IRS-authorized Acceptance Agent or visit an IRS Taxpayer Assistance Center in lieu of mailing your information to the IRS in Austin. TACs in the United States provide in-person help with ITIN applications on a walk-in or appointment basis. Applicants outside the United States should contact an overseas IRS office to find out if that office accepts Form W-7 applications. The IRS's ITIN Unit in Austin issues all numbers by mail. 

Quotes from the Candidates:  Presidential Candidates Speak on Immigration

Mitt Romney – Republican; former governor of Massachusetts

The purpose of this feature is to acquaint the reader with the positions on immigration taken by the presidential candidates.  About an issue others have written volumes, Mitt Romney’s official website has a drop down menu of political issues.  Surprisingly it has little to say about the immigration. 

The following are quotes from Mitt Romeny’s website lead one to wonder how any presidential candidate can post so little on his official website about an issue as hotly debated as immigration.  

What is Mitt Romney’s gubernatorial record on immigration?

Romney vetoed a bill in 2004 that would have allowed illegal immigrants to obtain in-state tuition rates at state colleges if they graduated from a Massachusetts high school after attending it for at least three years and signed an affidavit affirming that they intended to seek citizenship. Romney vowed to veto the bill again if it ever made it to his desk, arguing that the bill would cost the state government $15 million and that the state should not reward illegal immigration. In 2005, the bill was reintroduced to the House, backed by Representative Marie St. Fleur. The in-state immigrant tuition bill was brought to another vote on January 11, 2006 and was overwhelmingly defeated by a total of 96-57.  Romney supported the decision.

UPCOMING SPEAKING ENGAGEMENTS:  CURTIS PIERCE TO SPEAK IN PARIS, FRANCE. 

Attorney Curtis Pierce will speak at the AMERICAN BUSINESS SCHOOL PARIS on May 29, 2007 on issues of business immigration.  The program will include information on several topics, including E-2 investor visas and J-1 exchange visas for Europeans seeking to reside in the United States.   

If you have an application receipt number, you can use the Internet to check the status of your case with the USCIS.

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Editor-In-Chief
Marsha Mihok

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