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A study commissioned by the Ewing Marion Kaufman Foundation, a private, nonprofit foundation, concluded that few foreign nationals studying at universities in the United States plan to remain permanently in this country to pursue careers after graduation. The study surveyed 1,224 students from India, China and Western Europe via the Facebook social networking site. The students' fields of study primarily included engineering, business and economics, computer science and biological sciences.

In previous surveys of doctoral recipients in science and engineering by the National Science Foundation, 92 percent of students from China and 85 percent of students from India said they intended to stay in the United States to work or conduct research for at least five years after graduating. In contrast, the new survey shows that only 54 percent of the students from China and 58 percent of the students from India want to stay in the United States for a few years after graduation, and only 10 percent of students from China and 6 percent of students from India said they wanted to remain permanently.

The researchers conducting the survey concluded that the results reflected the students’ assessment that there are better economic opportunities in their home countries than in the U.S. Approximately 74 percent of the students from China and 86 percent of the students from India said they believed their home countries' economies will grow faster in the future than they have in the past decade. Almost the same percent of these students said they thought it would be difficult to find a job in their field in the United States. One of the authors stated, “The challenge for the U.S. is to preserve the economic dynamism and openness that has long made us a magnet for talented immigrants."

More information about the study is available online at the Kaufman Foundation Web site at: http://www.kauffman.org/Newsroom.aspx.
 

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At a meeting attended by all 24 members of the Congressional Hispanic Caucus, President Obama stated his intent to push for a comprehensive immigration overhaul during the first year of his presidency. Although the president was said to have discussed specific timelines for legislation, neither the President nor the attendees disclosed dates for action following their meeting. The White House sought to play down the talks and the substance of the discussions apparently in recognition of how difficult it will be to gain the support needed to pass legislation creating substantial change in immigration policy. Rep. Raul Grijalva, a Democrat from Arizona who attended the meeting, said that President Obama promised to use his executive authority to make some substantive immigration changes soon, without waiting for passage of legislation.

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New United Kingdom (UK) Immigration Rules raising the academic and financial requirements for highly-skilled foreign workers applying for entry into the T1 (General) and T1 (Post-Study Work) categories will become effective for all applications submitted on or after March 31, 2009. The changes will apply to applicants seeking permission to enter the UK in this category for the first time, or who are applying to transfer into the Tier 1 (General) category from another category.

The resident labor market test, which prevents employers from offering skilled jobs to foreign workers without first advertising them to workers who have already settled in the UK, will also be strengthened. Effective March 31, 2009, an employer wishing to sponsor a foreign worker to do a job under Tier 2 (General) must first advertise the job:

• to settled workers in Jobcentre plus; and
• use one other method permitted by the relevant code of practice.

Full details of these changes are available in the revised guidance for sponsor applications.
 

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Conservative Party MP Damian Green said Britain should adopt Australian-style limits on immigration in light of the global financial crisis. Green made his comments simultaneously with the release of data showing UK unemployment had risen above two million for the first time since 1997, and following an announcement by the Australian government that it would reduce its skilled migrant program by nearly 20,000 to 115,000 this financial year in an effort to protect local jobs in the tough economic climate.

In support of his position, Green also stated that one in seven children in British primary schools does not speak English as a first language. Responses to Parliamentary questions reflected that in 2004, 452,388 primary school children spoke English as a second language, and that in 2008 that figure had increased by 113,500, a rise of almost 25 percent. UK communities secretary Hazel Blears is expected to announce that anyone from outside the European Union applying for a student or work visa will have to pay a migrant tax, which will go to local authorities to assist with the impact of immigration on their schools, doctors' surgeries and other public services.
 

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U.S. Citizenship and Immigration Services (USCIS) has announced that on April 1, 2009 it will begin accepting H-1B petitions for the fiscal year 2010. Petitions will be considered accepted on the date that USCIS takes possession of the petition, not the date that the petition is postmarked. H-1B petitions cannot be filed more than six months in advance of the requested start date.

The H-1B program allows businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. The 2010 fiscal year numerical cap for H-1B petitions is 65,000, but the first 20,000 H-1B petitions filed on behalf of foreign citizens who have earned a U.S. masters’ degree or higher will be exempt from the cap. H-1B petitions for employment at institutions of higher education or related or affiliated nonprofit organizations, nonprofit research organizations, or governmental research organizations also will be exempt from the cap.

Detailed information, including a processing worksheet, to assist in the completion and submission of fiscal year 2010 H-1B petitions is available on the USCIS web site www.uscis.gov or by contacting the USCIS National Customer Service Center at (800) 375-5283.
 

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As discussed in our previous entry, the new Form I-9 (revision date 2/02/2009) is currently scheduled to go into effect on April 3, 2009. The new I-9 form is available on the U.S. Citizenship and Immigration Services website. The new I-9 and the interim rule creating it were originally published in the Federal Register on December 17, 2008, with a correction published on January 16, 2009. However, on January 30, 2009, the U.S. Department of Homeland Security (DHS) announced that implementation of the new I-9 would be postponed until April 3, 2009. Notice of the delay appeared in the February 3, 2009 edition of the Federal Register. Continue reading Littler ASAP "Countdown to Effective Date of New I-9" by Jorge R. Lopez and Lisa A. Cottle.

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The Department of State has issued an announcement declaring Saturday, March 28, 2009, as “Passport Day in the USA,” a national outreach event to inform the public about the upcoming changes to U.S. travel document requirements, provide passport information and accept passport applications from U.S. citizens from coast-to-coast and border-to-border. All Department of State Passport Agencies and many Passport Acceptance Facilities around the country will host passport application acceptance events. The State Department is encouraging U.S. citizens without a valid passport book or passport card to apply on this day.
 

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On March 12, 2009, a federal district court in Illinois ruled that a state law prohibiting employers from enrolling in the federal E-Verify program violates the Supremacy Clause of the United States Constitution. United States v Illinois, CDIll, No 07-3261 (Mar. 12, 2009). The Illinois Right to Privacy in the Workplace Act (Ill. P.A. 95-137), scheduled to take effect on January 1, 2008, amended the Illinois Right to Privacy Act by prohibiting employers in the state from enrolling in the E-Verify program until the Social Security Administration and the Department of Homeland Security (DHS) were able to achieve a 99% accuracy rating with regard to making a determination on tentative nonconfirmation notices within three days of issuance.

The DHS sued the State of Illinois to repeal the law saying that it interfered with an employer’s right to participate in the voluntary federal program to verify whether a potential employee has valid U.S. work authorization. The federal district court in Illinois sided with DHS, holding that the law is preempted by the Supremacy Clause. Even though the E-Verify program is not mandatory, the court reasoned that the state law frustrates Congress’ intent to make the program available to all employers. The district court enjoined the State of Illinois from enforcing the law.

This article was written by Jorge R. Lopez, a shareholder in Littler's Miami office.

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On Friday, the United States Citizenship and Immigration Services (USCIS) announced that employers receiving funds through the Troubled Asset Relief Program (TARP) or under section 13 of the Federal Reserve Act (covered funds) must meet additional requirements before hiring foreign nationals to work in the H-1B specialty occupation category. Continue reading on Littler's Washington DC Employment Law Update blog. 

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The Department of Labor (DOL) proposes to suspend for nine months the H–2A regulations published on December 18, 2008, which became effective on January 17, 2009. The amended rules—implemented in the closing days of the Bush administration—were intended to make it easier for agricultural employers to hire foreign workers on a temporary or seasonal basis to fill agricultural jobs where U.S. workers were unavailable. The sweeping changes to the H-2A regulations have proven to be difficult for the DOL to implement.

The January 17, 2009 Final Rules are being suspended for several reasons including: (1) lack of sufficient resources at the DOL to implement the Final Rule and (2) processing delays due to the anticipated influx of applications with the upcoming growing season. The proposed suspension is open for comment for 10 days. If a suspension of the rules occurs, the rules in effect prior to January 17, 2009 will be reinstated. Written comments will only be considered as to whether the DOL should suspend the December 18, 2008 final rule for further review and consideration of issues that have developed since the final rule’s publication. Comments regarding the substance or merits of the final rule will not be considered. Comments may be submitted before March 27, 2009. Comments may be made on the Federal e-Rulemaking Portal at http://www.regulations.gov.
 

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The global economic crisis has triggered calls in some U.S. policy circles to tighten immigration rules in order to safeguard scarce jobs for American citizens. Yet despite difficult economic conditions, lawmakers should be considering immigration policy revisions based on the country's eventual economic revival, says former Department of Homeland Security (DHS) Secretary Michael Chertoff. In this interview, Chertoff discusses the future of immigration policy, and offers his advice that the U.S. increase communication efforts with the Mexican government to coordinate the legal flow of migrant workers to the United States.

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U.S. Citizenship and Immigration Services (USCIS) has provided the new Form I-9 in its recently published “Handbook for Employers”—with the express caveat that it may only be used on or after April 3, 2009. As discussed in a previous entry, USCIS originally planned to implement the new I-9 on February 2, 2009, but interest group pressure resulted in a last-minute postponement. For more insight into this development, see Littler’s ASAP “USCIS Issues Interim Final Rule on I-9 Employment Verification” by Jorge R. Lopez and Chadwick M. Graham.

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Term Asset-Backed Securities Loan Facility (TALF), a federal program aimed at reviving the market for securities backed by consumer and small-business loans, is being hampered by a new law that makes it more difficult for investment firms to bring in foreign employees. Last month, legislators added provisions to the stimulus bill that prevent investment firms who get funds under rescue programs from replacing fired U.S. workers with foreign employees. There is growing concern that these hurdles will prevent companies from participating in TALF. The Fed is working with U.S. Citizenship and Immigration Services to provide guidance on the issue.

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The Economic Times reports that Britain is preparing to impose a tax of up to £50 on applicants for student or work visas. The fee will go into a “transitional fund” to support government bodies dealing with the impact of immigration, including local authorities and police. Additional details about the fee are forthcoming; UK ministers are expected to make an announcement shortly.

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The Australian government is cutting the number of skilled migrant visas it will issue by 18,500, the first reduction in 10 years. According to Immigration Minister Chris Evans, there is mounting pressure to protect jobs made scarce by the global financial crisis. The Australian statistics bureau expects the unemployment rate to reach 7 percent in the year ending June 30, 2010. Evans has also indicated that the government will cut some trades from the list of needed overseas workers.

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As reported at CNNMoney.com, immigration experts expect H-1B visa applications for 2009 to be at their lowest levels in years. Some even predict that after April 1, the first day on which applications may be filed, it could take a week or more to fill the quota of 85,000 visas (as compared to past years, when the quota has been met in as little as 48 hours). Several factors account for this year's reduced demand, including the economic downturn and new restrictions on H-1B hiring at some firms. One result of the lower demand is that smaller businesses have the best chance in years to succeed with their H-1B applications.

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The U.S. Department of Homeland Security (DHS) released some details about those of its projects being funded by the American Recovery and Reinvestment Act. The total amount going to DHS and to the General Services Administration in support of DHS programs is $3.5 billion. Funded projects include:

• construction of a consolidated headquarters for the department ($650 million);
• renovation and construction at land ports of entry ($720 million); and
• explosive detection systems and enhanced checkpoint screening equipment at airports ($1 billion).

The DHS has also launched a website that will monitor and track the stimulus money coming in to the department and going out to DHS-related projects.

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As a result of anxiety over workplace raids and uncertainty over the future of illegal immigrants in the United States, the E-Verify system is soaring in popularity across the country, growing by 1,000 companies a week, The Boston Globe reported. The number of businesses in the E-Verify system has increased 10-fold since 2006. Leading the trend are Arizona and Mississippi, which have made the system mandatory for all employers, as well as 10 other states that require E-Verify for state agencies and contractors. But use of the system is also growing in states where it is optional, such as California, Texas and Massachusetts.

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As reported in The Edmonton Sun, Canada’s immigration department is planning to give preferred treatment to some business travelers, allowing them to obtain visas much faster than other visitors. Under the plan to streamline the visa process for business visitors, employees of established companies with operations in Canada would get visas in as few as one or two days.

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Japan’s cabinet has signed off on a bill that, in an effort to prevent illegal entry, would transfer complete control of alien registration to the central government, according to The Japan Times Online. At present, the government is in charge of granting permission for residency, while municipalities are in charge of issuing alien cards. According to Justice Ministry estimates, municipalities have inadvertently issued registration cards to about 20,000 foreigners staying illegally in Japan, a problem that has been blamed on the state’s lack of legal authority to investigate registration data. Other features of the bill, which will soon be submitted to the Diet for enactment, include:

• harsher penalties for those living in Japan illegally;
• extension of the maximum period of stay for foreign residents from three to five years; and
• improved working status for foreign vocational trainees, who would be guaranteed legal protection for wages and labor conditions after engaging in on-the-job training programs for two months or longer.

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In a late session yesterday, the Senate voted to approve the $410 billion omnibus appropriations bill (H.R. 1105). The House had approved this measure – which extends the E-Verify and EB-5 investor visa programs until September 30, 2009 – on February 25.  Continue reading about this development on Littler's Washington DC Employment Law Update blog.

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As of April 6, the UK Border Agency is extending the range of applications that can be made in person at their public enquiry offices. Applicants will be able to use the “premium service” at the public enquiry offices if they are applying under specified categories of Tiers 1, 2 and 5 of the points-based system. The Agency began setting appointments for the affected categories on March 2.

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A recent posting to the Bits Blog (hosted by NYTimes.com) calls the bank bailout legislation’s provision discouraging banks from recruiting skilled foreign workers “a political gesture, understandable and probably empty.” The real problem is the great number of “bright, ambitious” immigrants leaving the United States and returning home. This problem is the topic of a report released on March 2, “America’s Loss Is the World’s Gain” (PDF). The principal author of the report estimates that over the next five years 100,000 immigrants from India and China will leave the United States, as compared to 50,000 over the past two decades. Of the 1,203 Indian and Chinese workers who were surveyed for the report, growing demand for their skills and promising career opportunities back home were cited by 87% of the Chinese and 79% of the Indians as the major professional reason for returning.

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As of March 2, the U.S. Citizenship and Immigration Services (USCIS) has expanded Premium Processing Service for designated Forms I-140 (Immigrant Petition for Alien Worker) to include alien beneficiaries who have reached, or are reaching, their limitation of stay in H-1B nonimmigrant status.  Previously, only certain alien beneficiaries who were in H-1B nonimmigrant status at the time of filing were able to request premium processing for Form I-140. 

As a result of this action (further details are available in a fact sheet), USCIS will accept Form I-907 (Request for Premium Processing Service) for alien worker petitions filed on behalf of alien beneficiaries who, as of the date of filing the Form I-907:

• are the beneficiary of a Form I-140 petition filed in a preference category that has been designated for premium processing service;
• have reached the sixth-year statutory limitation of their H-1B stay, or will reach the end of their sixth year of H-1B stay within 60 days of filing;
• are only eligible for a further H-1B extension under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and
• are ineligible to extend their H-1B status under section 106(a) of AC21.

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As reported in the Herald Sun, Immigration Minister Chris Evans stated that the global economic crisis is greatly reducing Australia’s need to import foreign workers. Less than 12 months ago Australia was struggling with a skills shortage, but now the country’s unemployment rate is on track to hit 7 % in 2010. A final decision on the 2008-09 immigration intake will be made by Cabinet ahead of the May Budget.

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Representatives John Shadegg (R-AZ), Jeff Flake (R-AZ), and Ed Pastor (D-AZ) have sponsored legislation to create a new nonimmigrant visa category for professional nurses called the “W” visa. If passed, the legislation will provide some relief for the country’s healthcare industry, which is experiencing a severe shortage of qualified and available nurses.

The shortage is compounded by the fact that there are not enough students enrolled in U.S. nursing programs to: (1) backfill those positions that are open due to attrition and retirement; and (2) fill the existing positions currently available. According to the proposed Nursing Relief Act of 2009, which cites a Department of Labor Report, the current national nursing shortage exceeds 126,000.

The proposed legislation also reflects what immigration and healthcare professionals have stated for years – current immigration laws do not adequately address the need in this country for qualified nurses and do not provide an adequate visa category and/or quota to help alleviate this need. The Nursing Relief Act of 2009 seeks to address these issues directly and provide the healthcare industry with the ability to overcome this shortage by recruiting, hiring, employing, and retaining qualified nurses regardless of their country of citizenship. To qualify for the proposed new “W” visa, an individual must meet the standard of a “professional nurse” as defined by the state licensing agency, and must be hired to work as a professional nurse for a qualifying U.S. employer. The initial status would be valid for three years and could be extended for an additional three-year period.

This entry was authored by Russell Ford.
 

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On February 26, President Obama unveiled his proposed $3 trillion budget.  As expected, the budget includes increased funding for various agencies tasked with oversight of employers. One highlight of this proposal is funding of $110 million to continue expansion of the E-Verify program. Continue reading about this development on Littler's Washington DC Employment Law Update blog.

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Embedded in the massive House Appropriations bill (H.R. 1105) that was approved on Wednesday by a vote of 245-178 are provisions extending the E-Verify and EB-5 investor visa programs until September 30, 2009. Both programs are set to expire on March 6, 2009.  Continue reading about this development on Littler's Washington DC Employment Law Update blog.

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