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January 2005
Immigration News

Retrogression in Employment Based Visa Numbers

The expected retrogression in visa numbers for the Employment Based Third Preference Category is in place for January 2005. The visa bulletin shows a retrogression to 1/1/02 in the category for China, India, and the Philippines. As a result, anyone who is the beneficiary of a labor certification (or I-140 if a labor certification was not required) in the EB3 category filed on or after January 1, 2002, will not be permitted to file the I-485 or have a consular interview for an immigrant visa until the numbers move beyond this date. This does not affect cases that have already been filed, even if they have not yet been decided, nor does it affect individuals from countries other than the 3 listed.

President Signs Law Amending J-1 Waiver Program for Physicians

On December 3rd, President Bush signed legislation that extends and modifies the "Conrad 30" J waiver program for foreign-born physicians. Under the program, aliens who participate in medical residencies in the United States on exchange program (J) visas are exempted from the two-year foreign residence requirement if they agree to practice medicine for three years in an area designated by the Secretary of Health and Human Services (HHS) as having a shortage of health care professionals. The program has been extended several times, most recently via the 21st Century Department of Justice Appropriations Authorization Act, which extended the program until June 1, 2004. S. 2302 extends it for another two years, until June 1, 2006.

The new law makes several important changes to the J waiver program. First, it specifies that physicians who are sponsored for a waiver by either a federal or state agency will be exempt from the H-1B cap. In addition, the bill allows five of each state's 30 waivers to go to doctors that practice medicine in areas not designated by the Secretary of HHS as having a shortage of health care professionals, if the doctors receiving the waivers practice in facilities that serve patients who reside in areas designated by the Secretary as having a shortage of health care professionals. Finally, the measure permits foreign doctors receiving a waiver to work in medically-underserved areas in either primary care or specialty medicine. Under current law, only state agencies and the Veteran's Administration are permitted to sponsor specialists. To request a waiver for a specialist, however, the interested agency would be required to demonstrate a shortage of doctors able to provide the appropriate medical specialty in the designated geographical area.

PERM Update

The immigration law community has closely been following developments in PERM, the procedure by which the labor certification process will be greatly expedited. Past articles have discussed possible consequences of PERM, which includes cases being certified within weeks of the filing with the Department of Labor. Although the final regulations are not yet known, the Office of Management and Budget (OMB), which oversees regulatory policies for the Executive Branch, completed its review of the final PERM rule on Friday, December 10, 2004. This rule had been pending at the OMB since February 23, 2004. Upon completion of the final rule, the rule is forwarded for publication in the Federal Register, a process which can be as quick as a day, or can take several weeks. In light of the lengthy period during which the rule was pending at OMB, it is anticipated that publication in the Federal Register will be prompt.

The effective date of the final PERM rule has not yet been confirmed, though the Department of Labor previously indicated that the effective date will be 60 days from the date of publication. Subhani & Subhani LLC will post a copy of the final PERM rule on our website at www.subhani-law.com as soon as it is released, along with an explanation of the details of the final regulation.


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