New H-4A working visa

DESPITE the briny ocean of restrictionist immigration laws in the US, an immigrant-friendly bill was filed in both houses of the US Congress, providing freshwater relief.

And surprise of surprises: Both bills were filed by Republican legislators from Arizona: Senator John McCain and Representative Jim Colbe (Eighth Congressional District of Arizona).

Both bills (similarly titled, as Border Security and Immigration Improvement Act -- S.1461 in the Senate version and HR 2899 in the House counterpart) came under fire from the Democratic and Republican parties, the former for not going far enough and the latter for being too far left.

Senator McCain says "the Border Security and Immigration Improvement Act establishes two new visa programs. One addresses individuals wishing to enter the United States to work on a short-term basis while the other will be available for an estimated six to 10 million undocumented immigrants currently residing in the US."

The highlights of the bill:

1. Creates two new nonimmigrant visa categories: H-4A and H-4B

2. Mandates a 1,000-dollar filing fee for employers with more than 500 employees, and 500 dollars for any other employer

3. Allows H-4A nonimmigrant to accept work for any other employer after the new employer files new H-4A petition

4. Visas issued only on machine-readable, tamper-resistant visas and other travel, entry documents that use biometric identifiers.

5. Requires medical examination prior to visa issuance (currently required only for immigrant visa applicants).

6. Gives priority to tourist visa applications for the spouse and minor children of H-4A non-immigrants.

7. Allows maximum six-year stay on H-4A status (in three-year increments; the three-year extension may be granted only after advertising the job held by H-4A alien in an electronic job registry.

8. Terminates lawful status of the H-4A after being unemployed for 45 or more consecutive days.

9. Requires employers to provide for return transportation if worker is dismissed without cause.

10. Denies derivative status to spouse and minor children with certain exceptions. Spouse and minor children may be petitioned independently as H-4A by an employer.

11. Exempts H-4A aliens from immigrant visa numerical limits but only if the alien has maintained H-4A status for at least three years.

12. Allows adjustment of status to lawful permanent residency despite unlawful presence or status before Aug. 1, 2003, but must pay 1,500 dollars as penalty fee for the privilege of applying for adjustment of status.

13. Prevents an H-4A from being removed if he/she has an application for adjustment of status pending.

Both bills had been referred to the corresponding committees of the House and the Senate as of July 25, 2003.

Numerical limits/quota

UNLESS the H-1B nonimmigrant visa is extended by Congress, it will be replaced by the H-4A visa. Until 1990, the H visa category was not subject to numerical limits. The 1990 Act set an H-1B quota at 65,000. In 1998, the American Competitiveness and Workforce Improvement Act (ACWIA), raised the numerical limit to 115,000 for the fiscal years 1999 and 2000. The limit recedes to 107,500 in 2001 and moves back to 65,000 in 2002. America's fiscal year starts Oct. 1 and ends Sept. 30. Therefore, without a bill extending the H-1B nonimmigrant category the limit will be pegged at 65,000.

Last year, the Bureau of Citizenship and Immigration Services (BCIS) reported that 370,490 H-1B visas were issued, Europeans getting the lion's share with 111,342, the Philippines with 5,509. The Philippine Overseas Employment Administration (POEA) figures (OFW deployment for 2002) reflects only 4,058 workers in the United States. Most of the H-1B visas in 2002 were extensions of previously filed H-1Bs, thereby not being counted towards the annual cap.

The discrepancy in the numbers could be attributed to some workers who were admitted in another nonimmigrant category (thereby not passing through the POEA) and later applying for change of nonimmigrant status to H-1B.

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This columnist can now be seen on the OFW Hour in his segment, The Visa Bulletin, aired Saturdays, 5-6 p.m. on RPN Channel 9.

Crispin R. Aranda is the executive director of the Immigrant Visa Center (IVC), an immigrant advocacy firm with offices in the Philippines (Ortigas Center) and the United States (San Francisco, California and Witchita Falls, Texas). You can reach him at usvisacenter@yahoo.com or legal@visacenter.org or by phone (+63 2 6348717, +63 2 6830615 and +63 2 6830617 at IVC) and +415 8341052 in California.