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Fragomen, Del Rey, Bernsen & Loewy, LLP

February Cut-Off Dates Advance for Employment Preference Categories
The U.S. Department of State (DOS) recently issued the February Visa Bulletin, and the cut-off dates for employment-based immigrant visa categories have advanced. This update will outline the issues related to the advancement of these dates, as well as speculation within the immigration bar on future immigrant visa availability.

BACKGROUND

The Immigration and Nationality Act (INA) provides a yearly minimum of 140,000 employment-based immigrant visas that are divided into five preference categories. In addition to limiting the number of employment-based immigrant visas that can be issued each fiscal year per preference category, the INA further provides that no single country can be awarded more than a statutorily determined number of immigrant visa numbers each year. The Department of State has responsibility for regulating the flow of visas by imposing cut-off dates, when needed, based on the priority dates assigned to individual applicants' immigrant visa applications. In doing so, it must determine the country quota to which a specific immigrant visa application must be allocated or "charged." This is known as "chargeability." With certain exceptions, the INA provides that an applicant for an immigrant visa is normally chargeable to his or her country of birth, not country of citizenship. Priority dates are determined by either the filing date of a labor certification application with the U.S. Department of Labor (DOL) or, if a labor certification is not required, the filing of an I-140 immigrant visa petition with USCIS.

As we have previously reported, on October 1, 2005 (the first day of the 2006 fiscal year), early cut-off dates were imposed for China and India in the first preference employment-based immigrant visa category (EB-1) and the second preference employment-based immigrant visa category (EB-2), and for all countries in the third preference employment-based immigrant visa category (EB-3) category. This means that, beginning October 1, 2005, employees chargeable to China and India who are the beneficiaries of approved I-140 immigrant worker petitions in the EB-1 and EB-2 categories, and all individuals with approved I-140 petitions in the EB-3 category, are able to apply for adjustment of status to permanent residence only if their priority dates are before the dates listed. As discussed below, cases eligible for Schedule A adjudication remain current.

CUT-OFF DATES ADVANCE

First Preference. The cut-off dates in the February Visa Bulletin for China EB-1 cases have moved ahead by one year since the publication of the January Visa Bulletin, from January 1, 2002 to January 1, 2003. India EB-1 cases advanced seven months, from July 1, 2003 to February 1, 2004. All other countries remain current. The first preference category is reserved for persons of extraordinary ability in the sciences, art, education, business or athletics, outstanding professors or researchers with at least three years of experience and certain multi-national executives and managers.

Second Preference. In the second preference category (EB-2), the dates have advanced ten months for China (June 1, 2001 to April 1, 2002) and seven months for India (January 1, 2001 to August 1, 2001). As with first preference, numbers for countries other than India and China remain current. The second preference category is reserved for foreign nationals of exceptional ability and those holding advanced degrees in the arts, sciences or business. As discussed below, some EB-2 cases (and EB-1 cases, for that matter) may be approvable under Schedule A.

Third Preference. Third preference dates have advanced three weeks for China (April 1, 2001 to April 22, 2001), seven months for India (June 1, 1999 to January 1, 2000), two weeks for Mexico (March 1, 2001 to March 15, 2001), and three weeks for the Philippines and all other countries (April 1, 2001 to April 22, 2001). The third preference category is reserved for skilled workers (having at least two years of training or experience), professionals (having at least a bachelor's degree) and other workers. The worldwide cut-off date for "other workers" – those deemed ineligible for skilled worker or professional classification – has advanced from April 1, 2001 to October 1, 2001. As discussed below, Schedule A continues to be current for occupations for which the third preference would normally apply (i.e., nurses and physical therapists).

Schedule A. Schedule A continues to be current for all countries. As we have reported previously, on May 11, 2005, the President signed into law a measure that provides for the recapture of up to 50,000 employment-based immigrant visas from Fiscal Years 2001 to 2004 that were unused due to processing delays at USCIS. Under the new law, these visas are allocated to foreign nationals with approved immigrant visa petitions based on the Department of Labor's Schedule A, as defined in Section 656.5 of Title 20 of the Code of Federal Regulations. The family members of Schedule A beneficiaries are also included in this section. Schedule A occupations are of a limited variety that the Department of Labor has determined will not adversely affect the U.S. labor market. As a result, these cases are in essence "pre-certified" and cases may be filed directly with USCIS without going through DOL processing.

Schedule A occupations currently fall into either Group I (professional nurses and physical therapists) or Group II (aliens of exceptional ability in the arts or sciences, including performing artists of exceptional ability). The December 2005 Visa Bulletin clarified that all Schedule A workers may benefit from the available visa numbers, regardless of preference classification. Cases affected by visa cut-off dates should be evaluated to determine whether they are eligible for Schedule A classification. Cases filed for exceptional ability aliens have historically had a high evidentiary burden, requiring documentation establishing the foreign national's widespread acclaim and international recognition, as well as documentation similar to that required for first preference extraordinary ability cases. In addition, a Schedule A case generally requires a job offer, completed Department of Labor (DOL) forms, job notice postings, a prevailing wage determination, and one prior year's experience in the field.

See http://travel.state.gov/visa/frvi/bulletin/bulletin_2771.html to view the February Visa Bulletin in its entirety.

RETROGRESSION AND FUTURE IMMIGRANT VISA AVAILABILITY

The current employment-based immigrant visa retrogression is the result of several converging factors. First, labor certification cases are moving through adjudication at a quicker pace, due to the introduction of the PERM system, with its projected processing times of 45 to 60 days for cases not subject to audit, and the fact that at least some cases filed before the implementation of PERM are now beginning to emerge from DOL's Backlog Elimination Center. In addition, the introduction of processing efficiencies at USCIS is resulting in faster adjudication of employment-based I-140 immigrant visa petitions. In turn, there has been an increase in petition approvals and, thus, higher rates of adjustment application filings and immigrant visa processing at U.S. consulates abroad. The result is an increased demand for employment-based immigrant visa numbers.

It is important to note, however, that accelerations and decelerations in workload at both DOL and USCIS can cause fluctuations in the demand for employment-based numbers. State Department officials constantly check USCIS and DOL processing rates to speculate on future demand and reassess visa number availability. As a result of these assessments, priority dates may advance or even become current for a time, but it is important to note that subsequent retrogressions are possible if adjudications – and thus visa number demand – increase markedly.

The February DOS bulletin notes that visa availability has advanced more quickly than anticipated, due to somewhat lower than expected demand for employment-based numbers. Based on the current demand, practitioners within the immigration community speculate that the worldwide EB-1 category will remain current through this fiscal year, with the possibility of further advancement in the EB-1 backlog for India and China. No further retrogressions are currently anticipated for the worldwide EB-2 category; further advancement in the cut-off dates for Indian and Chinese EB-2 cases may occur, though DOS officials are expected to monitor the EB-2 category over the coming months. Small advancements in priority date cut-offs are anticipated for the EB-3 category. However, the State Department will be closely observing DOL's progress in adjudicating its large volume of labor certification cases; if labor certification adjudications increase, demand for the EB-3 category may be affected, with some possibility of further retrogressions in this category later in the fiscal year. Schedule A is expected to remain current for the remainder of the fiscal year. Again, it is important to note that these projections could change at any time based on fluctuations in demand for immigrant visa numbers.

01-16-2006

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Ford & Harrison LLP

Maryland Law Establishes Threshold for Healthcare Spending for Large Employers
The Maryland legislature has overridden the governor's veto of a law that requires employers with 10,000 or more workers in the state to spend at least 8% of their payroll (for a for-profit employer; 6% for a nonprofit) on health insurance or else pay the difference into a state Medicaid fund. See SB 790. Maryland Governor Robert Ehrlich vetoed the bill in May; however, the veto was overridden by the legislature on January 12, 2006, and became law in accordance with the Maryland Constitution.

The law, known as the Fair Share Health Care Fund Act, is the first law of this type to be enacted in the nation and has sparked a nationwide debate over the level of benefits employers should provide to employees. The law essentially became a fight between organized labor and business, raising questions about the extent to which government should intervene in private enterprise.

Critics of the law say it opens the door for broader state regulation of health care spending by private companies and sends the message that the state is antibusiness. Critics also argue that the law could have the unintended consequence of encouraging employers to meet the 8% threshold by lowering wages instead of increasing the amount paid for health insurance. Those in favor of the law claim it establishes an important baseline for corporate responsibility in Maryland and prevents large employers from relying on public assistance programs to care for its employees.

The law requires covered employers to file a report with the state, beginning in January 2007 and annually thereafter, stating the number of employees the employer had in the state during the immediately preceding calendar year, the amount spent by the employer on health insurance costs in the state, and the percentage of payroll the employer spent on health insurance costs in the state. Failure to submit the report will result in a $250 per day penalty for each day the report is not filed. Failure to make the payment required by the law will result in a $250,000 penalty.

More than 30 other states, including Michigan and Wisconsin, are considering similar measures.

If you have any questions about this law or any other labor or employment related issue, please contact the Ford & Harrison attorney with whom you usually work.


01-16-2006

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Dykema Gossett PLLC

Dykema Adds Two Partners, Two Associates To Los Angeles Litigation Practice

Dykema Continues To Expand Los Angeles’ Litigation Presence; "Value Equation" Key Point of Differentiation in Heated Litigation Market

Dykema Gossett PLLC, a leading Midwest-based law firm with a growing presence in Southern California, today announced the addition of two partners and two associates to the firm’s Business Litigation practice in its Los Angeles office.

Joel R. Bennett and Matthew J. Fairshter join Dykema from Bennett & Fairshter, LLP, a well-respected boutique focusing on business litigation and based in Pasadena, CA. Associates Betty Chia and Dean Short have also joined the firm.

Rex Schlaybaugh, chairman and CEO of Dykema, noted that the arrival of the litigation group bolsters what is already one of the nation’s leading litigation practices with more than 160 litigators including a highly successful trial practice: "Joel, Matthew and their team bring added strength to our litigation practice both regionally and nationally which deepens our capability to address complex, high-exposure litigation."

"As clients increasingly turn to us for expanded litigation services in the Southern California market, we continue to add high caliber attorneys and litigators to our practice," added Craig Hentschel, Office Managing Member. "Joel and Matthew are terrific trial lawyers and we are proud to have their group join our growing team."

Joel Bennett brings more than 40 years of legal experience in antitrust, business competition and intellectual property law to Dykema, along with extensive trial experience. Bennett has often been retained by other firms as lead counsel or co-counsel in complex business litigation matters, and has won a number of $1 million-plus verdicts for his clients. Prior to his private law firm experience, Bennett served as a trial attorney for the Los Angeles field office of the U.S. Department of Justice, Antitrust Division. He received his J.D. from the University of Arizona.

Fairshter brings more than 18 years of legal experience in corporate, transaction and litigation matters to Dykema. Fairshter also has extensive trial, appellate, and expert witness experience in various state and federal courts, including the California District Court of Appeals, U.S. Bankruptcy Court, United States District Court and the U.S. Ninth Circuit Court of Appeals. He has also presented cases before the National Transportation Safety Board and the U.S. International Trade Commission. Fairshter received his J.D. from the University of San Diego.

The additions of Bennett, Fairshter, Chia, and Short come less than a month after Dykema added Stephen Besser and Jon Cantor to the Litigation practice in its Los Angeles office.

Continued Growth in Southern California

In August 2005, Dykema announced the move to a new Los Angeles office to accommodate its growth in the market. A leading Midwest law firm, Dykema established itself in the region two years ago to meet growing client demand for legal services in what was increasingly becoming a key district for litigation matters. The firm credits its local growth to this strong demand for litigation services and to the value it provides clients in one of the most dynamic legal markets.

"Los Angeles continues to grow in importance as a litigation venue," said Joel Bennett. "And we wanted to be part of a firm that is demonstrating clear leadership and growth in this practice. Dykema really stood out to us based on its litigation reputation, successes and momentum."

"Dykema was a perfect fit not only because of the firm’s litigation reputation, but also because the firm shares our philosophy of providing clients demonstrable value," added Matthew Fairshter. "Clients are facing mounting pressure to control and reduce their legal costs, and Dykema’s business model addresses the issue head on by providing clients with financial flexibility and predictability. That value equation made a lot of sense to us when evaluating our joining Dykema."

With more than160 attorneys engaged in business litigation nationally, Dykema is retained as national or regional counsel for some of the largest manufacturers in the world, as well as by leading retail, insurance, financial and professional services companies.

01-16-2006

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Duane Morris, LLP

Duane Morris Partner Nominated to New Jersey State Bar Association Board of Trustees
PRINCETON, January 16, 2006 - Duane Morris LLP is pleased to announce that James J. "J." Ferrelli, a partner in the Trial Practice Group in the firm's Princeton office, has been named to the Board of Trustees of the New Jersey State Bar Association (NJSBA). Nominated unanimously by the Board of Trustees of the Burlington County Bar Association, J. will serve an initial two-year term as an NJSBA trustee representing Burlington County, with a three-term limit.

J. has developed a successful litigation practice in the areas of business litigation, product liability, and class actions. He has represented a wide array of corporate and individual clients in complex commercial matters including breach of contract, real estate, antitrust, employment disputes, restrictive covenants, and franchise and distributorship issues. He also has experience in matters of copyright and trademark, corporate governance, breach of fiduciary duty, and transactional disputes. In addition, he has gained extensive experience defending pharmaceuticals and medical devices companies in product liability matters, particularly in cases involving tort liability. He has also successfully represented defendants in class action litigation involving breach of warranty claims and consumer fraud.

An active member of the New Jersey legal community, J. is the immediate past President of the Burlington County Bar Association in New Jersey, where he led the creation of a Technology Committee to modernize the Association, and has served as an officer on its Board of Trustees for ten years. In addition, he has served on committees within the bar associations of New Jersey, Camden County, and Philadelphia. He is also a member of the Defense Research Institute's Commercial Litigation and Drug and Medical Device Litigation committees, as well as the Litigation, Real Property, Intellectual Property Law, and Probate and Trust Law sections of the American Bar Association. Since 2002, he has been a member of the Editorial Board of New Jersey Lawyer Magazine, the official publication of the NJSBA. J. writes and speaks frequently on a variety of legal issues.

Admitted to practice in New Jersey and Pennsylvania, J. graduated from New York University School of Law in 1984, where he served as a staff member and Articles Editor for the Annual Survey of American Law. Prior to that, he graduated summa cum laude with a B.A. from Boston College in 1981.

About Duane Morris
Duane Morris LLP, among the 100 largest law firms in the United States, is a full-service firm of more than 600 lawyers. In addition to legal services, Duane Morris has independent affiliates employing approximately 100 professionals engaged in other disciplines. With offices in major markets, and as part of an international network of independent law firms, Duane Morris represents clients across the nation and around the world.

01-16-2006

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Crowe & Dunlevy

Jerome Holmes Sworn In As Vice President of Oklahoma Bar Association
Crowe & Dunlevy is pleased to announce that Oklahoma City attorney, Jerome A. Holmes, has been sworn in as Vice President of the Oklahoma Bar Association. He will serve in this officer’s position on the Oklahoma Bar Association’s primary governing body, the Board of Governors. Mr. Holmes is the first African-American in the history of the Oklahoma Bar Association to hold an officer’s position on the Board of Governors.
“I very pleased and honored to have the opportunity to serve my profession, and in particular Oklahoma lawyers, in this important position on the Board of Governors,” Mr. Holmes said.
Mr. Holmes joined Crowe & Dunlevy last year as a director after a distinguished 11-year career as a federal prosecutor in the Oklahoma City U.S. Attorney’s Office.
Founded in 1902, Crowe & Dunlevy is one of Oklahoma’s largest and oldest law firms, with offices in Oklahoma City, Tulsa, and Norman.

01-16-2006

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Chadbourne & Parke LLP

Chadbourne Set to Argue Appeal Over Denial of Habeas
January 14, 2006 -- Six years after Princeton Economics International chairman Martin Armstrong was jailed on civil contempt charges, his lawyers at the international law firm of Chadbourne & Parke LLP will argue a new appeal on January 24 of a 2004 denial of a habeas corpus petition.

The attempt to free the former global commodities trader will be made before the U.S. Court of Appeals for the 2nd Circuit at 10 a.m. If the court refuses to free him, his attorneys intend to take his case to the U.S. Supreme Court.

Thomas Sjoblom, former SEC enforcement official and now a Chadbourne partner, has asked that Armstrong be released from the Metropolitan Correctional Center on the same $5 million personal recognizance bond he had executed for bail in a parallel criminal proceeding after he voluntarily surrendered to authorities in late 1999.

"It violates the Constitution of the United States to confine someone on contempt for more than 18 months, the term mandated by Congress," said Sjoblom. "The federal judge in the case seems to think he has unlimited power beyond that given by Congress. What also makes this situation so grievous is an incarceration for asserting Armstrong's Fifth Amendment privilege against self-incrimination in the face of a parallel criminal indictment. Defendants who are indicted should not be jailed for protecting themselves, even in the face of an SEC order requiring them to identify and turn over assets."

"CEOs simply should not be jailed like this," said Sjoblom, who noted that Armstrong has spent more time behind bars for contempt than any white-collar defendant charged in a federal fraud case. Armstrong's case was described as the largest corporate scandal of the 20th Century when he was charged with defrauding Japanese investors of $1 billion. As the first CEO of that period to be jailed, his case ushered in the current era of corporate executive scandals, which hit its benchmark with the Enron debacle in 2002 and led to passage of the Sarbanes-Oxley Act.

Armstrong has been imprisoned indefinitely since January 14, 2000 for civil contempt for his purported refusal to turn over $14 million in assets to a court-appointed receiver -- assets that he steadfastly has insisted are not in his possession. Armstrong faces criminal and civil charges in the underlying cases against him.

The appeal was filed after U.S. District Judge Richard Owen, the judge who originally ordered Armstrong jailed, denied the habeas motion on December 23, 2004. The Second Circuit had requested that Armstrong's attorneys challenge the continuing contempt in a habeas petition.

Armstrong, who on occasion advised Margaret Thatcher while she was Prime Minister of Great Britain, retained Sjoblom to challenge the authority of federal courts to hold CEOs in contempt of SEC orders for indefinite time periods.

The habeas petition -- which sought a writ directing the United States Marshals Service and Federal Prison officials to bring Armstrong to court for a hearing to determine if he is imprisoned illegally and whether he should be released from custody -- argued several points, among them:

That the District Court, relying on its inherent power to incarcerate Armstrong for over four years, vastly exceeded its authority under Article III of the Constitution -- the section of that document which outlines the power of the judiciary.
That SEC orders to turn over assets and Armstrong's incarceration for purportedly failing to comply with them violated Armstrong's Fifth Amendment right against self-incrimination and his right to due process.

01-16-2006

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Chadbourne & Parke LLP

Martin Armstrong: Jailed Six Years on Illegal Civil Contempt Charges; Chadbourne Set to Argue Appeal Over Denial of Habeas
January 14, 2006 -- Six years after Princeton Economics International chairman Martin Armstrong was jailed on civil contempt charges, his lawyers at the international law firm of Chadbourne & Parke LLP will argue a new appeal on January 24 of a 2004 denial of a habeas corpus petition.

The attempt to free the former global commodities trader will be made before the U.S. Court of Appeals for the 2nd Circuit at 10 a.m. If the court refuses to free him, his attorneys intend to take his case to the U.S. Supreme Court.

Thomas Sjoblom, former SEC enforcement official and now a Chadbourne partner, has asked that Armstrong be released from the Metropolitan Correctional Center on the same $5 million personal recognizance bond he had executed for bail in a parallel criminal proceeding after he voluntarily surrendered to authorities in late 1999.

"It violates the Constitution of the United States to confine someone on contempt for more than 18 months, the term mandated by Congress," said Sjoblom. "The federal judge in the case seems to think he has unlimited power beyond that given by Congress. What also makes this situation so grievous is an incarceration for asserting Armstrong's Fifth Amendment privilege against self-incrimination in the face of a parallel criminal indictment. Defendants who are indicted should not be jailed for protecting themselves, even in the face of an SEC order requiring them to identify and turn over assets."

"CEOs simply should not be jailed like this," said Sjoblom, who noted that Armstrong has spent more time behind bars for contempt than any white-collar defendant charged in a federal fraud case. Armstrong's case was described as the largest corporate scandal of the 20th Century when he was charged with defrauding Japanese investors of $1 billion. As the first CEO of that period to be jailed, his case ushered in the current era of corporate executive scandals, which hit its benchmark with the Enron debacle in 2002 and led to passage of the Sarbanes-Oxley Act.

Armstrong has been imprisoned indefinitely since January 14, 2000 for civil contempt for his purported refusal to turn over $14 million in assets to a court-appointed receiver -- assets that he steadfastly has insisted are not in his possession. Armstrong faces criminal and civil charges in the underlying cases against him.

The appeal was filed after U.S. District Judge Richard Owen, the judge who originally ordered Armstrong jailed, denied the habeas motion on December 23, 2004. The Second Circuit had requested that Armstrong's attorneys challenge the continuing contempt in a habeas petition.

Armstrong, who on occasion advised Margaret Thatcher while she was Prime Minister of Great Britain, retained Sjoblom to challenge the authority of federal courts to hold CEOs in contempt of SEC orders for indefinite time periods.

The habeas petition -- which sought a writ directing the United States Marshals Service and Federal Prison officials to bring Armstrong to court for a hearing to determine if he is imprisoned illegally and whether he should be released from custody -- argued several points, among them:

That the District Court, relying on its inherent power to incarcerate Armstrong for over four years, vastly exceeded its authority under Article III of the Constitution -- the section of that document which outlines the power of the judiciary.
That SEC orders to turn over assets and Armstrong's incarceration for purportedly failing to comply with them violated Armstrong's Fifth Amendment right against self-incrimination and his right to due process.

01-16-2006

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