Update on Immigration Law Changes

IMMIGRATION LAW IS NEVER STATIC

Immigration law is always a changing field. Some changes are rather minor and do not affect a great number of people while other changes are vast and reach an unlimited number of individuals worldwide. Normal changes to the immigration laws include an increase of the poverty guidelines for Affidavits of Support and increases in the cost of the application fees. Other, more controversial changes include creating a program that would grant legal status to aliens currently present in the U.S. without prior authorization or to those aliens whose authorized periods of stay have expired.

TEMPORARY WORKER PROGRAM

On January 7, 2004, President Bush unveiled a proposal, referred to as the Temporary Worker Program, that will grant work permits and legal status to numerous aliens currently living in the U.S. without legal status. President Bush has emphasized that his proposal is not a blanket amnesty and does not automatically lead to lawful permanent residency. Therefore, it is not a mirror image of its predecessor, Section 245(i), which expired on April 30, 2001. Rather, as President Bush’s plan was proposed, it will grant a work permit to a qualified alien for an initial period of three years, with the option of renewal for another three years.

It is important to bear in mind that this Temporary Worker Program is merely a proposal to the immigration laws. It is not yet in effect and an alien present in the U.S. currently without status cannot avail himself of this proposal.

In response to President Bush’s Temporary Worker Program, Senators Hagel and Daschle introduced their own bill into the Senate. Senate Bill 2010 (pdf) includes a section titled "Willing Worker Program" While this bill varies from the Temporary Worker Program, the main goal is the same: to assist illegal aliens who have been working hard in this country for a certain period of time and wish to attain legal status. Other bills will be introduced into the Senate and House concerning this same matter. Therefore, it is premature at this point in time to completely predict what the final law will entail.

H-1B CAP REACHED

Starting Fiscal Year 2004, the number of aliens permitted to receive an H-1B worker’s visa was dramatically reduced to 65,000. In a February 17, 2004 press release (pdf), the USCIS announced that the 65,000 cap has been reached. Therefore, the USCIS cannot adjudicate any further H-1B new applications for this year. Starting April 1, 2004, the USCIS will begin adjudicating new H-1B applications for Fiscal Year 2005. However, this means that all aliens with approved H-1B applications for Fiscal Year 2005 cannot begin to work, under their H-1B visa, until October 1, 2004.

The H-1B cap does not extend to those aliens currently in H-1B status who need to either extend their H-1B for an additional period of time or request a change in employers as long as the job is similar in nature to the previously approved employment.

POVERTY GUIDELINES

A sponsor of a family-based immigrant petition and, at times, an employment-based immigrant petition, must show that he can financially support the beneficiary of the applicant. To meet this requirement, the sponsor must make 125% above poverty based on the household size and number of dependants. The poverty guidelines have recently increased for the year 2004. For applications currently being filed, the sponsor must meet the 2004 Guidelines.