May 11, 2005. The President has signed into law an Emergency Supplemental Appropriations (ESA) bill today that includes four separate pieces of important immigration legislation. In summary, the immigration provisions of the ESA cover the following areas:

H-2B Temporary Worker Program Changes. The "Save our Small and Seasonal Businesses Act of 2005" provides relief to employers of temporary H-2B workers who have been affected by the rapid depletion of the 66,000 annual cap over the last two fiscal years. While not an increase in the overall cap numbers, it will temporarily exempt workers with prior H-2B usage in any one of the past three years coming to return to work for the same employer. The exemption will free up additional H-2B numbers for newer workers, and will end in FY 2007, which starts October 1, 2006. The new act also takes the 66,000 annual cap and divides it into two separate 33,000 caps, for the first and second halves of the fiscal year. The separate caps will allow for more balanced usage of H-2B visas for both summer and winter seasonal employers. The mechanics of the new legislation are yet to be announced. Further updates will be provide as they emerge.

Nurse and Physical Therapist Backlog Relief. New legislation contained in the ESA will open up another 50,000 immigrant visa numbers unused from prior years to decrease the green card waiting time for Nurses and Physical Therapists from backlogged countries including China, India and the Philippines. These categories became backlogged in January of this year, with delays of 2-3 years for impacted workers. We will report in specific as additional details emerge.

New E-3 Visa Category For Australian Professionals. The legislation also creates a new E-3 visa category for Australian professionals, which is anticipated to be subject to an annual limit of 10,500 per year. Similar to the special Singapore and Chile H-1B free trade visas that were created last year, the visas will be processed directly at the U.S. consulates abroad without needing to file an I-129 petition in the US. The category will only apply to professional level positions (typically requiring a Bachelor's degree or higher). Prior to filing the employer will need to secure wage and working condition approval from the Department of Labor using the Labor Condition Application process (similar to H-1B petitions). The E-3 category will also be exempt from the six year H-1B time limit. In addition, spouses of E-3 workers will be eligible to apply for E spousal work authorization once in the U.S. The implementation date and processing details are still pending clarification.

New Driver's License and Judicial Review Rules - the REAL ID Act. The REAL ID act imposes severe restrictions on judicial review, raises the burden of proof on asylum seekers, and requires states to meet strict federal requirements for issuing Driver's licenses. Berry, Appleman & Leiden will issue further clarification on the impact of the provisions as additional details emerge.

BAL Comment: The implementation details and dates for these new provisions are expected to emerge in the coming weeks, and we will offer further guidance as to how they will impact our clients.