Larry Needle Larry Needle

Lawrence J. NeedleLawrence J. Needle is with the law firm of is with the law firm of Lawrence J. Needle, P.A. in Columbia, South Lawrence J. Needle, P.A. in Columbia, South Carolina and Charleston, South Carolina. His Carolina and Charleston, South Carolina. His practice consists of business immigration, family practice consists of business immigration, family immigration, as well as employment matters. immigration, as well as employment matters. Previously, Mr. Needle practiced immigration law Previously, Mr. Needle practiced immigration law and commercial litigation in Houston, Texas. He and commercial litigation in Houston, Texas. He has represented a number of employers and has represented a number of employers and foreign nationals with regard to a wide range of foreign nationals with regard to a wide range of employment matters and business-related visas, employment matters and business-related visas, both on a temporary and permanent basis. He both on a temporary and permanent basis. He also advises employers regularly regarding also advises employers regularly regarding procedures for employment eligibility verification. procedures for employment eligibility verification.

Larry Needle, continued…Larry Needle, continued…

Mr. Needle is Treasurer of the Carolinas Mr. Needle is Treasurer of the Carolinas Chapter of the American Immigration Chapter of the American Immigration Lawyers Association, an author of Lawyers Association, an author of numerous articles on immigration issues, numerous articles on immigration issues, and a frequent speaker at seminars on and a frequent speaker at seminars on immigration and employment issues. He immigration and employment issues. He serves as Special Counsel to Malone, serves as Special Counsel to Malone, Thompson, Summers, & Ott, L.L.C. Mr. Thompson, Summers, & Ott, L.L.C. Mr. Needle is a graduate of Georgetown Needle is a graduate of Georgetown University’s School of Foreign Service and University’s School of Foreign Service and received his law degree from Georgetown received his law degree from Georgetown University Law Center. University Law Center.

H-1B Specialty WorkersH-1B Specialty Workers

A total of 65,000 visas are available A total of 65,000 visas are available annually for foreign nationals in annually for foreign nationals in "specialty occupations." A specialty "specialty occupations." A specialty occupation involves the theoretical and occupation involves the theoretical and practical applications of a body of practical applications of a body of highly specialized knowledge, and the highly specialized knowledge, and the attainment of a Bachelor’s Degree (or attainment of a Bachelor’s Degree (or its equivalent) or higher degree in the its equivalent) or higher degree in the specific specialty. A job requiring such a specific specialty. A job requiring such a Bachelor’s Degree is also essential. Bachelor’s Degree is also essential.

H-1B, continued…H-1B, continued…

An employer seeking to hire a professional An employer seeking to hire a professional from abroad must first file and obtain from abroad must first file and obtain approval of a labor condition application approval of a labor condition application filed with the Department of Labor making filed with the Department of Labor making the following attestations:the following attestations:

No strikes or lockout at the place of No strikes or lockout at the place of employment; employment;

The alien will be paid higher of the The alien will be paid higher of the actual wage or the "prevailing wage” actual wage or the "prevailing wage” for the offered position; and for the offered position; and

No U.S. workers will be adversely No U.S. workers will be adversely affected by the hiring of the alienaffected by the hiring of the alien

H-1B, continued…H-1B, continued… H-1B visas may be conferred in three-year H-1B visas may be conferred in three-year

increments. A total of six years is increments. A total of six years is permissible in H-1B status, buy may be permissible in H-1B status, buy may be extended in certain circumstances where extended in certain circumstances where (1) an employer has filed a labor (1) an employer has filed a labor certification for the employee prior to the certification for the employee prior to the end of 6 years in H-1B status seeking end of 6 years in H-1B status seeking permanent residence, or (2) where the permanent residence, or (2) where the employer filed an I-140 immigrant petition employer filed an I-140 immigrant petition which has been approved and where which has been approved and where immigrant visas are not available in a immigrant visas are not available in a respective employment based visa respective employment based visa category.category.

H-1B Professional or Specialty Worker StatusH-1B Professional or Specialty Worker Status

Jobs requiring at least a Bachelor’s Degree or higherJobs requiring at least a Bachelor’s Degree or higher H-1B cap. However, there is an exemption to cap for H-1B cap. However, there is an exemption to cap for

universities as well as non-profit university affiliates. A non-universities as well as non-profit university affiliates. A non-profit organization or governmental research organization profit organization or governmental research organization filing an H-1B is also exempt from the H-1B quota. Once filing an H-1B is also exempt from the H-1B quota. Once counted against the H-1B quota, an individual is not counted against the H-1B quota, an individual is not counted once more against the subsequent quota;counted once more against the subsequent quota;

H-1B is good for 3 years at a time, up to a limit of 6 years; H-1B is good for 3 years at a time, up to a limit of 6 years; H-1B allows “dual intent” by which the individual may be in H-1B allows “dual intent” by which the individual may be in the United States temporarily but still have an intention of the United States temporarily but still have an intention of residing permanently in the USA;residing permanently in the USA;

Spouse and children in admitted in H- 4. However, spouse Spouse and children in admitted in H- 4. However, spouse cannot work in H- 4 statuscannot work in H- 4 status..

Specialty Occupations H-1B Specialty Occupations H-1B Qualification RequirementsQualification Requirements

Requires a U.S. bachelor’s degree in the Requires a U.S. bachelor’s degree in the respective field from an accredited school; respective field from an accredited school; a foreign degree that is determined by an a foreign degree that is determined by an expert to be equivalent to a U.S. expert to be equivalent to a U.S. bachelor’s degree or an equivalent bachelor’s degree or an equivalent combination of education training and combination of education training and experience.experience.

If the occupation to be filled requires a If the occupation to be filled requires a license at the employment location, the license at the employment location, the foreign worker must have such license, foreign worker must have such license, when the employer files the petition. when the employer files the petition.

Specialty Occupations H-1B Specialty Occupations H-1B Evidence and ProcedureEvidence and Procedure

Labor Condition Application (“LCA”) to the Labor Condition Application (“LCA”) to the Department of Labor: First, the U.S. Department of Labor: First, the U.S. employer must attest in a separate employer must attest in a separate application to the U.S. Department of application to the U.S. Department of Labor that:Labor that:

• H-1B non-immigrants will be paid wages H-1B non-immigrants will be paid wages which are at least the higher of the actual which are at least the higher of the actual wage level paid by the employer to all wage level paid by the employer to all other individuals with similar experience other individuals with similar experience and qualifications for the specific and qualifications for the specific employment in question; or employment in question; or

Specialty Occupations H-1B Specialty Occupations H-1B Evidence and Procedure (cont’d)Evidence and Procedure (cont’d)

• The prevailing wage level for the The prevailing wage level for the occupational classification in the occupational classification in the area of intended employment. area of intended employment.

Specialty Occupations H-1B Specialty Occupations H-1B Prevailing Wage DeterminationPrevailing Wage Determination

A prevailing wage determination can A prevailing wage determination can either be obtained from the OES either be obtained from the OES Statistics of the DOL, a wage Statistics of the DOL, a wage determination request from the determination request from the national office of the DOL or from national office of the DOL or from private wage surveys following the private wage surveys following the Department of Labor rules. Department of Labor rules.

Specialty Occupations H-1B Specialty Occupations H-1B Labor Condition ApplicationLabor Condition Application

The LCA must be posted at two The LCA must be posted at two conspicuous locations at the work conspicuous locations at the work sitesite

H1-B H1-B Petition to USCISPetition to USCIS

Second, a petition by the U.S. Second, a petition by the U.S. employer must be filed on Form I-employer must be filed on Form I-129 (incl. H-Supplement and I-129W) 129 (incl. H-Supplement and I-129W) with the appropriate USCIS Service with the appropriate USCIS Service CenterCenter

WITH THE PETITION the following WITH THE PETITION the following documents should be submitted:documents should be submitted:

H1-B H1-B Petition to USCISPetition to USCIS

Documents:Documents: Documentation of the credentials of the Documentation of the credentials of the

employee to be transferred showing that he/she employee to be transferred showing that he/she fulfills the job requirements and that he/she has a fulfills the job requirements and that he/she has a U.S. bachelors’ degree from an accredited school U.S. bachelors’ degree from an accredited school in the respective field;in the respective field;

Detailed resume, educational degrees and/or Detailed resume, educational degrees and/or diplomas and transcripts; a foreign degree that is diplomas and transcripts; a foreign degree that is determined by an expert to be equivalent to a determined by an expert to be equivalent to a U.S. bachelor’s degree or an equivalent U.S. bachelor’s degree or an equivalent combination of education training and combination of education training and experience;experience;

Professional License;Professional License;

H1-B H1-B Petition to USCISPetition to USCIS

Description of the position to be filled in Description of the position to be filled in U.S. showing that the position qualifies as U.S. showing that the position qualifies as specialty occupation;specialty occupation;

Documentation of employee’s prior stay in Documentation of employee’s prior stay in the U.S. (e.g. copies of I-94’s,stamps in the U.S. (e.g. copies of I-94’s,stamps in passport etc.);passport etc.);

If employee is already in U.S. in different If employee is already in U.S. in different status or for different employer, copy of status or for different employer, copy of such USCIS approval notice, visa, and I-94, such USCIS approval notice, visa, and I-94, copy of passport;copy of passport;

H1-B H1-B Petition to USCISPetition to USCIS

Documentation that the U.S. employer has Documentation that the U.S. employer has the ability to pay transferee’s salary (e.g. the ability to pay transferee’s salary (e.g. recent financial statements);recent financial statements);

Confirmation of obligation to assist Confirmation of obligation to assist employee to travel back abroad after end employee to travel back abroad after end of employment; andof employment; and

Certified Labor Condition ApplicationCertified Labor Condition Application I-539 for spouse and children filed I-539 for spouse and children filed

simultaneouslysimultaneously CAP GAP Rules for F-1CAP GAP Rules for F-1• Stem OccupationsStem Occupations

Processing Time Processing Time For Petitions to USCIS For Petitions to USCIS

Normal Processing usually takes 2 to Normal Processing usually takes 2 to 4 months, but “premium processing” 4 months, but “premium processing” within 15 days is available for this within 15 days is available for this classification for an extra filing fee of classification for an extra filing fee of $1,000. Currently only 65,000 new H-$1,000. Currently only 65,000 new H-1B petitions are approved per federal 1B petitions are approved per federal fiscal year (October 1 –Sept 30) fiscal year (October 1 –Sept 30) Additional 20,000 for those obtaining Additional 20,000 for those obtaining masters degree in USA;masters degree in USA;

Filing Time Filing Time For Petitions to USCIS For Petitions to USCIS

As the maximum time allowed for As the maximum time allowed for filing early is 6 months – new filing early is 6 months – new petitions should be filed on April 1 (or petitions should be filed on April 1 (or within 5 business days thereafter) for within 5 business days thereafter) for a clearly indicated start date on a clearly indicated start date on October 1 of the same year to October 1 of the same year to maximize chances. maximize chances.

Terms of Petition Approval, Visa Terms of Petition Approval, Visa and Admissionand Admission

After admission, the employee is only After admission, the employee is only allowed to work for the entity and in the allowed to work for the entity and in the capacity indicated in the petition;capacity indicated in the petition;

EXCEPTIONSEXCEPTIONS He/she He/she cancan workwork for additional employers for additional employers

if additional H-1B petitions are if additional H-1B petitions are approvedapproved..

Porting form one employer to another Porting form one employer to another once the new employer files the H-1B once the new employer files the H-1B Petition.Petition.

Rules Re: CAP SUBJECT / CAP EXEMPTRules Re: CAP SUBJECT / CAP EXEMPT

Terms of Petition Approval, Visa Terms of Petition Approval, Visa and Admissionand Admission

Any preceding stays in H-1B or L-1 status are Any preceding stays in H-1B or L-1 status are counted towards this maximum period unless the counted towards this maximum period unless the foreign worker has thereafter lived at least one foreign worker has thereafter lived at least one year outside the U.S.;year outside the U.S.;

Visas are issued and admissions are granted for Visas are issued and admissions are granted for up to the maximum term of an approved petition up to the maximum term of an approved petition (plus 10 days for H-1B visa holders) and may be (plus 10 days for H-1B visa holders) and may be extended according to the petition extensions extended according to the petition extensions granted;granted;

**Extensions BASED ON PERMANENT RESIDENT **Extensions BASED ON PERMANENT RESIDENT PROCESSING PROCESSING

Terms of Petition Approval, Visa Terms of Petition Approval, Visa and Admissionand Admission

No foreign residence need be maintained as long No foreign residence need be maintained as long as the applicant intends to return to his country as the applicant intends to return to his country when his visa expires or unless in progress of when his visa expires or unless in progress of adjusting statusadjusting status

Like L-1 workers, H1-B workers may travel outside Like L-1 workers, H1-B workers may travel outside the U.S. and return to the U.S. in H-1B status the U.S. and return to the U.S. in H-1B status without negatively affecting a pending without negatively affecting a pending Adjustment of Status application or obtaining Adjustment of Status application or obtaining advance parole.advance parole.

If in process of Adjustment of Status, H-1B If in process of Adjustment of Status, H-1B workers can re-enter USA with H-1B visa or workers can re-enter USA with H-1B visa or Advance Parole.Advance Parole.

Employment -Based ImmigrationEmployment -Based Immigration(i.e. Permanent Residence)(i.e. Permanent Residence)

There are 140,000 visas available each year for There are 140,000 visas available each year for those who are eligible to immigrate to the United those who are eligible to immigrate to the United States based on employment considerations. States based on employment considerations. Before a visa will be issued to an intending, Before a visa will be issued to an intending, employment-based immigrant, however, an employment-based immigrant, however, an employer must normally first obtain a "labor employer must normally first obtain a "labor certification" from the Department of Labor certification" from the Department of Labor confirming that there is no willing and qualified confirming that there is no willing and qualified U.S. worker who meets the minimum U.S. worker who meets the minimum qualifications for the job for which the foreign qualifications for the job for which the foreign national is being hired. Labor certifications may national is being hired. Labor certifications may easily take more than one year to conclude, easily take more than one year to conclude, especially in event of audit by DOL. Employment especially in event of audit by DOL. Employment based immigration is divided among several based immigration is divided among several preferences. They are as follows: preferences. They are as follows:

EB-1EB-1 Extraordinary AbilityExtraordinary Ability

Extraordinary ability aliens are part of a Extraordinary ability aliens are part of a small percentage who has risen to the small percentage who has risen to the very top in their fields. No job offer or very top in their fields. No job offer or labor certification is required under this labor certification is required under this category. A petitioner must submit category. A petitioner must submit evidence that he or she will continue to evidence that he or she will continue to work in the United States in the area of work in the United States in the area of expertise through letters from prospective expertise through letters from prospective employers; evidence of prearranged employers; evidence of prearranged commitments for employment; and a commitments for employment; and a description of how/she will continue to description of how/she will continue to work in that field in the United States. work in that field in the United States.

Extraordinary Ability, continued..Extraordinary Ability, continued..

Criteria for demonstrating EB-1 "extraordinary Criteria for demonstrating EB-1 "extraordinary status" include at least three of the following: status" include at least three of the following: receipt of lesser nationally or internationally receipt of lesser nationally or internationally recognized prizes or awards for excellence; recognized prizes or awards for excellence; membership in associations in the field membership in associations in the field requiring outstanding achievement of their requiring outstanding achievement of their members; published material about the alien members; published material about the alien in professional publications; evidence that the in professional publications; evidence that the foreign national is a judge of the work of foreign national is a judge of the work of others in the field; evidence of the foreign others in the field; evidence of the foreign national’s original contributions of major national’s original contributions of major significance to the field; significance to the field;

Extraordinary Ability, continued..Extraordinary Ability, continued..

authorship of scholarly articles; display of authorship of scholarly articles; display of the foreign national’s work at artistic the foreign national’s work at artistic exhibitions; evidence that the foreign exhibitions; evidence that the foreign national has performed in a leading or national has performed in a leading or critical role for an organization that has critical role for an organization that has a distinguished reputation; evidence a distinguished reputation; evidence that the foreign national is highly paid; that the foreign national is highly paid; evidence of commercial success in the evidence of commercial success in the performing arts; or other comparable performing arts; or other comparable evidence of where the above standards evidence of where the above standards do not readily apply to the field. do not readily apply to the field.

Outstanding Professors and Outstanding Professors and ResearchersResearchers

A U.S. employer is required to apply A U.S. employer is required to apply for an outstanding professor or for an outstanding professor or researcher. However, there is no researcher. However, there is no labor certification requirement which labor certification requirement which must be fulfilled prior to the must be fulfilled prior to the employer’s filing the petition with the employer’s filing the petition with the DHS.DHS.

Outstanding Professors and Outstanding Professors and Researchers, continued….Researchers, continued….

The basic requirements for outstanding professors and The basic requirements for outstanding professors and researchers are as follows:researchers are as follows:

Internationally recognized as outstanding in a Internationally recognized as outstanding in a specific academic area; specific academic area;

Having a minimum of three years of experience Having a minimum of three years of experience teaching or research in particular area; and teaching or research in particular area; and

If employer is a university or institution of higher If employer is a university or institution of higher education, the foreign national must be assuming a education, the foreign national must be assuming a tenured or tenure-track position or a comparable tenured or tenure-track position or a comparable research position at the university (permanent). If research position at the university (permanent). If private employer, individual must be employed in a private employer, individual must be employed in a permanent research position, and such employer permanent research position, and such employer must employ at least three full-time researchers and must employ at least three full-time researchers and show that it has achieved documented show that it has achieved documented accomplishments in the academic field. accomplishments in the academic field.

Outstanding Professors and Outstanding Professors and Researchers, continued….Researchers, continued….

At least two of the following types of evidence must also At least two of the following types of evidence must also be submitted: be submitted:

Receipt of major prizes or awards; Receipt of major prizes or awards; Membership in associations requiring Membership in associations requiring

outstanding achievements of its members; outstanding achievements of its members; Published material in professional journals Published material in professional journals

written by others about the alien’s work; written by others about the alien’s work; Evidence that the foreign national participates Evidence that the foreign national participates

as a judge of work of others in the field; as a judge of work of others in the field; Original scientific or scholarly research Original scientific or scholarly research

contributions to the field; and contributions to the field; and Authorship of scholarly books or articles or in Authorship of scholarly books or articles or in

scholarly journals with international circulation scholarly journals with international circulation in the academic field. in the academic field.

Multinational Executives and Multinational Executives and ManagersManagers

A multinational manager or executive is A multinational manager or executive is eligible for priority worker status if he or eligible for priority worker status if he or she has been employed with the employer she has been employed with the employer for at least one year in the three years for at least one year in the three years preceding entry to the U.S. with the preceding entry to the U.S. with the parent, subsidiary or affiliate of the U.S. parent, subsidiary or affiliate of the U.S. company abroad, or, in the case of an company abroad, or, in the case of an alien already in the United States, one of alien already in the United States, one of three years prior to transfer to the USA. three years prior to transfer to the USA. The one year of required experience The one year of required experience abroad must have been in a managerial or abroad must have been in a managerial or executive capacity. executive capacity.

Second Preference (Advanced Degree Second Preference (Advanced Degree Holders / Exceptional Ability)Holders / Exceptional Ability)

The second preference or category is reserved for The second preference or category is reserved for those persons who are members of the those persons who are members of the professions holding advanced degrees or aliens of professions holding advanced degrees or aliens of exceptional ability. There are 40,000 visas exceptional ability. There are 40,000 visas available annually. Aliens who hold advanced available annually. Aliens who hold advanced degrees or their equivalent possess at least the degrees or their equivalent possess at least the equivalent of a U.S. Masters Degree for a position equivalent of a U.S. Masters Degree for a position which requires the degree. A Bachelor’s Degree which requires the degree. A Bachelor’s Degree and five years experience can qualify an alien, if and five years experience can qualify an alien, if the position ordinarily requires the Master’s the position ordinarily requires the Master’s Degree. Experience, however, cannot substitute Degree. Experience, however, cannot substitute for a Ph.D. for a Ph.D.

Second Preference, continued…Second Preference, continued…

Aliens of exceptional ability must Aliens of exceptional ability must demonstrate at least three of the demonstrate at least three of the following: ten years of full time experience following: ten years of full time experience in the occupation; a license to practice the in the occupation; a license to practice the profession; an official academic record profession; an official academic record showing a degree, diploma or similar showing a degree, diploma or similar award from a university; evidence of a award from a university; evidence of a high salary; membership in professional high salary; membership in professional associations; recognition for achievements associations; recognition for achievements and significant contributions to the and significant contributions to the industry by peers, governmental entities, industry by peers, governmental entities, or professional organizations; or other or professional organizations; or other comparable evidence.comparable evidence.

Second Preference, continued…Second Preference, continued…

Foreign nationals also qualify under the Foreign nationals also qualify under the second preference if, because of their second preference if, because of their exceptional ability in the sciences, arts, or exceptional ability in the sciences, arts, or business, they will substantially benefit the business, they will substantially benefit the national economy, culture, educational national economy, culture, educational interests, or welfare of the United States. interests, or welfare of the United States. In short, exceptional ability foreign In short, exceptional ability foreign nationals are those who possess a degree nationals are those who possess a degree of expertise, which is well above that of expertise, which is well above that encountered ordinarily in the sciences, encountered ordinarily in the sciences, arts, or business. arts, or business.

Second Preference, continued…Second Preference, continued…

Aliens of exceptional ability must Aliens of exceptional ability must demonstrate at least three of the demonstrate at least three of the following: ten years of full time experience following: ten years of full time experience in the occupation; a license to practice the in the occupation; a license to practice the profession; an official academic record profession; an official academic record showing a degree, diploma or similar showing a degree, diploma or similar award from a university; evidence of a award from a university; evidence of a high salary; membership in professional high salary; membership in professional associations; recognition for achievements associations; recognition for achievements and significant contributions to the and significant contributions to the industry by peers, governmental entities, industry by peers, governmental entities, or professional organizations; or other or professional organizations; or other comparable evidence.comparable evidence.

Second Preference, continued…Second Preference, continued…

An exceptional ability alien or a foreign national An exceptional ability alien or a foreign national with an advanced degree is required to obtain a with an advanced degree is required to obtain a job offer and labor certification unless it can be job offer and labor certification unless it can be shown that a waiver of this requirement is in the shown that a waiver of this requirement is in the national interest. An exemption from these national interest. An exemption from these requirements may be granted upon a showing requirements may be granted upon a showing that the alien’s work is of substantial intrinsic that the alien’s work is of substantial intrinsic merit and is national in its scope. There must also merit and is national in its scope. There must also be a showing that the alien’s participation in his be a showing that the alien’s participation in his field considerably outweighs any inherent field considerably outweighs any inherent national interest in protecting U.S. workers national interest in protecting U.S. workers through the standard labor certification process.through the standard labor certification process.

Third PreferenceThird Preference

There are 40,000 visas reserved each year There are 40,000 visas reserved each year for skilled workers, professionals, and for skilled workers, professionals, and other workers. "Other workers" cover other workers. "Other workers" cover workers who are "capable of performing workers who are "capable of performing unskilled labor" and who are not working unskilled labor" and who are not working in a temporary or seasonal capacity. in a temporary or seasonal capacity. However, there are only 5,000 allotted to However, there are only 5,000 allotted to such unskilled workers. Skilled workers are such unskilled workers. Skilled workers are those capable of performing skilled labor those capable of performing skilled labor which require at least two years training or which require at least two years training or experience for the job. experience for the job.

Third Preference, continuedThird Preference, continued Relevant post-secondary education may Relevant post-secondary education may

count as training. Professionals are those count as training. Professionals are those who possess a Bachelor’s Degree or its who possess a Bachelor’s Degree or its foreign equivalent. Petitioners must also foreign equivalent. Petitioners must also demonstrate that such a degree is the demonstrate that such a degree is the normal requirement for entry into the normal requirement for entry into the profession. profession.

A job offer and labor certification is A job offer and labor certification is required for most foreign nationals under required for most foreign nationals under the third preference. However, there is a the third preference. However, there is a limited exception for physical therapists limited exception for physical therapists and nurses.and nurses.

Visa RetrogressionVisa Retrogression As a result of heavy demand for employment-As a result of heavy demand for employment-

based immigrant visas, several categories of based immigrant visas, several categories of immigrant visas are currently over-subscribed, immigrant visas are currently over-subscribed, necessitating a possible wait of years before an necessitating a possible wait of years before an applicant may obtain a green card. If there are applicant may obtain a green card. If there are sufficient numbers in a particular category to sufficient numbers in a particular category to satisfy the qualified demand, the category is satisfy the qualified demand, the category is considered “current.” However, if the total of considered “current.” However, if the total of qualified applicants in a particular category qualified applicants in a particular category exceeds the numbers available for the allotment exceeds the numbers available for the allotment for the particular month, the category is for the particular month, the category is considered “over-subscribed” with a considered “over-subscribed” with a corresponding wait before a green card may be corresponding wait before a green card may be issued. Visa availability is established by the U.S. issued. Visa availability is established by the U.S. State Department. State Department.

Visa Retrogression, continued..Visa Retrogression, continued..

While employment categories were current for almost While employment categories were current for almost four years, this changed in 2005 due to several four years, this changed in 2005 due to several reasons:reasons:

The AC 21 Act had a pool of 131,000 employment The AC 21 Act had a pool of 131,000 employment numbers unused in prior fiscal years which allowed numbers unused in prior fiscal years which allowed these re-captured numbers to be used by over these re-captured numbers to be used by over subscribed countries. These categories were also subscribed countries. These categories were also current because of a substantial decline in the current because of a substantial decline in the demand for numbers of adjustment of status cases. demand for numbers of adjustment of status cases. However, since 2005, we are faced with continuing However, since 2005, we are faced with continuing heavy demand due to DHS, USCIS, and DOL heavy demand due to DHS, USCIS, and DOL backlog reduction efforts, resulting in a visa limit backlog reduction efforts, resulting in a visa limit which is approximately 40% lower than fiscal year which is approximately 40% lower than fiscal year 2005. The lower annual employment limit is a 2005. The lower annual employment limit is a direct result of the virtual elimination of the pool of direct result of the virtual elimination of the pool of AC 21 numbers.AC 21 numbers.

Fourth Preference (Special Fourth Preference (Special Immigrants)Immigrants)

The fourth employment-based The fourth employment-based category is reserved for those category is reserved for those "special immigrants" including "special immigrants" including ministers, religious workers, and ministers, religious workers, and others. There are a total of 10,000 others. There are a total of 10,000 visas available annually. visas available annually.

Fifth Preference (Investors)Fifth Preference (Investors) The fifth category is reserved for investors The fifth category is reserved for investors

in job-creating enterprises in the United in job-creating enterprises in the United States. Although typically the investment States. Although typically the investment must be in excess of $1 million, this must be in excess of $1 million, this preference also covers investments preference also covers investments starting from $500,000 in certain starting from $500,000 in certain instances. The amount of money required instances. The amount of money required to be invested may vary depending upon to be invested may vary depending upon which area of the country such investment which area of the country such investment is made. Up to 10,000 visas a year may be is made. Up to 10,000 visas a year may be issued to such individuals. Moreover, at issued to such individuals. Moreover, at least ten U.S. workers must be employed least ten U.S. workers must be employed by each investor.by each investor.