Global Immigration Counsel : Immigration Lawyer & Attorney : Littler Mendelson Law Firm : Permanent Residence, Labor Certification : Global Immigration Counsel

On April 27 the U.S. Citizenship and Immigration Services (USCIS) announced that it has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated cap of 65,000 for the fiscal year 2010 program. The agency continues to accept petitions subject to the general cap.

In addition, USCIS has received approximately 20,000 petitions for aliens with advanced degrees. Congress has mandated that the first 20,000 of these petitions are exempt from any fiscal year cap on available H-1B visas. Even though the numbers are close, USCIS will continue to accept advanced degree petitions, since experience has shown that not all petitions received are approvable.

Regular updates on the processing of FY2010 H-1B petitions are available at the USCIS website.
 

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As reported by The Moscow News Weekly, over the past several months it has become more difficult for companies to hire and retain foreign employees in Russia. A major issue cited by various foreign business associations is that the enforcement of migration rules can be unpredictable. For example, the Federal Migration Service has become stricter in enforcing certain rules: Two years ago, diplomas attesting to the applicant's educational qualifications were required only for language teachers, but since October 2008, the rule is being enforced for all professions.

There also are concerns about the quota system for work permits and the bureaucratic obstacles that employers sometimes encounter with the system. One possible solution is to give certain white-collar employees from the European Union, the United States and Japan "green cards" that would exempt card holders from the quota system. The Federal Migration Service has drafted a bill along these lines that may be introduced in the Duma in July.

Another reason for the difficulties is the procedure by which representative offices hire foreign workers. A representative office is issued a permit by an accrediting body (such as the Chamber of Commerce and Industry or the State Registration Chamber) which states how many foreign employees the representative office may hire. Under this arrangement, foreign employees working for the representative office do not receive work permits, but rather an accreditation card from the accrediting body. Recently there have been reports of police officers questioning the validity of these accreditation cards during their routine document checks in the streets. The Japan Business Club and the Association of European Businesses have been advising their members to obtain work permits for accredited foreign employees working in representative offices.

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The Australian government has enacted amendments that will increase the range of visas and citizenship provisions available to same-sex couples. Amendments to the Immigration (Education) Act 1971, Migration Regulations 1994 and Migration Act 1958 will take effect on July 1, 2009. Key changes to migration legislation include:

• a new definition of spouse, applying to opposite-sex married couples;
• a definition of de facto partner, applying to both same-sex and opposite-sex de facto couples;
• new definitions of parent and child which will include recognition of certain parent-child relationships via artificial conception procedures and surrogacy arrangements;
• a new definition of member of the family unit, recognizing de facto partners (same and opposite-sex) as family members;
• a simplified and more equitable visa framework. All visas that currently include provisions for spouse will be available to opposite-sex and same-sex de facto partners alike.

Further details about the changes are available on the Department of Immigration and Citizenship (DIAC) website.

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Last week Assistant Senate Majority Leader Richard Durbin (D-Ill.) and Sen. Charles Grassley (R-Iowa) introduced legislation that would completely reform the H-1B and L-1 visa guest worker programs. The H-1B and L-1 Visa Reform Act (S. 887) aims to close perceived loopholes in the programs that critics argue allow foreign workers to displace qualified Americans seeking the same employment.  Continue reading this entry on Littler's Washington DC Employment Law Update blog.

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President Obama has announced his intent to nominate Alejandro Mayorkas to serve as the director of the U.S. Citizenship and Immigration Services (USCIS).   The USCIS is the agency within the Department of Homeland Security responsible for overseeing lawful immigration to this country. To that end, the USCIS adjudicates, among other things, the petitions and applications of potential immigrants and guest workers.  Continue reading this entry on Littler's Washington DC Employment Law Update blog.

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The Department of Labor (DOL) published a Final Rule on the labor certification process and enforcement for H-2B employment on December 19, 2008, which became effective on January 18, 2009. The Final Rule made some significant changes in the processing of applications for H-2B labor certifications. In response to questions raised regarding the application of the new regulations, the DOL has released (PDF) a list of “Frequently Asked Questions” (FAQs).

The FAQs cover the following topics:

• Transition to new procedures (for applications filed on or after January 18, 2009 for employment with start dates before October 1, 2009);
• Prevailing wage;
• Form ETA9142;
• Recruitment;
• Recruitment fees; and
• Former regulations vs. new regulations.
   

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Representatives Gabrielle Giffords (D-AZ) and Sam Johnson (R-TX) have introduced a bill that would establish a mandatory electronic verification system to take the place of E-Verify. As reported at Workforce.com, Giffords and Johnson hope their bill, the New Employee Verification Act, will either be the foundation for employment verification in a broader immigration bill or move through Congress on its own.

The proposed legislation would:

• Require all employers to use either the Electronic Employment Verification System (based on the new-hire system used to enforce child support payments) or the Secure Electronic Employment Verification System (which would authenticate an employee’s identity using biometric information). Data for recently hired employees would be checked against Social Security and Department of Homeland Security databases to determine work eligibility.
• Eliminate the I-9 immigration form.
• Establish civil and criminal penalties for employers that knowingly hire illegal immigrants.
• Establish federal preemption of state laws on employment verification.
• Require that the Social Security database, which has a 4.1% error rate, be cleaned up before the new system takes effect.

Giffords and Johnson have collaborated on the legislation with The HR Initiative for a Legal Workforce, which is led by the Society for Human Resource Management.

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Leaders of the AFL-CIO and Change to Win labor federations have announced a proposed framework for reforming the U.S. immigration system, a key feature of which is the formation of an independent commission to evaluate how many immigrants should be admitted to fill temporary and permanent jobs without displacing U.S. workers. As reported in The Wall Street Journal, the unions contend that the current visa levels are outdated and often keep immigrant workers in temporary status, with fewer benefits and job protections. Business groups, however, argue that temporary worker programs do not put immigrant workers at a disadvantage and are effective. In particular, business groups argue that temporary worker programs are essential to filling labor-intensive, low-skill jobs (such as in the agricultural sector).

The announcement of the proposed framework could lead to renewed debate of immigration issues and provide the Obama administration and congressional Democrats with additional leverage for introducing legislation.

The proposed framework is based on a new report, “Immigration for Shared Prosperity,” written by former Labor Secretary Ray Marshall in coordination with the Economic Policy Institute, a liberal think tank in Washington.
 

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On April 20, 2009, U.S. Citizenship and Immigration Services (USCIS) provided its second update regarding the H-1B cap count. USCIS has received approximately 44,000 H-1B petitions subject to the regular cap of 65,000. This represents only 1,000 additional filings since April 13th and means that new H-1B petitions may still be filed.

In addition, USCIS has received approximately 20,000 H-1B petitions eligible for the U.S. advanced degree exemption. Although the exemption is limited to 20,000 H-1Bs, USCIS continues to accept petitions since prior experience has shown that a certain percentage of submissions will be denied. Therefore, to reach the 20,000 petitions actually approved, USCIS must accept additional petitions.

This entry was written by Aimee Clark Todd.

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E-Verify is an Internet-based system operated by the Department of Homeland Security's U.S. Citizenship and Immigration Services (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to verify electronically the identity and employment eligibility of their newly hired employees, regardless of citizenship. Specifically, the SSA will verify that the name, Social Security number, and date of birth are correct, and the DHS will verify that the employee is in an employment-authorized immigration status.  Continue reading the April 2009 Littler "Insight" publication "A Basic Guide to E-Verify and Related Immigration Compliance: Everything Federal Contractors and Others Need to Know to Comply with E-Verify Requirements," written by Jorge R. Lopez, Joshua S. Roffman, Aimee Clark Todd, Shin-I Lowe and Lisa A. Cottle.
 

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On April 16, 2009, the U.S. Department of Defense announced that the effective date of the Federal Contractor E-Verify Rule will be delayed until June 30, 2009. To that end, the federal government will include the new E-Verify clause in affected contracts on or after June 30, 2009. The government will also take steps to reach out to affected contractors to bi-laterally modify existing affected contracts on or after that date.

On June 6, 2008, President George W. Bush issued Executive Order 13465, entitled “Economy and Efficiency in Government Procurement through Compliance with Certain Immigration and Nationality Act Provisions and the Use of an Electronic Employment Eligibility Verification System.” Three days later, the Secretary of Homeland Security designated the E-Verify system as the system to be used by federal contractors to satisfy the Executive Order’s mandate. The final rule requiring certain federal government contractors to use the E-Verify system to confirm their employees’ eligibility to work in the United States was first published by the Department of Defense (DOD), General Services Administration (GSA) and National Aeronautics and Space Administration (NASA) in the Federal Register on November 14, 2008. It was scheduled to go into effect on May 21, 2009.

Notice of the delay until June 30, 2009 is expected to be published in the April 17, 2009 edition of the Federal Register.

This entry was authored by Lisa Cottle.
 

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Under new United Arab Emirates visa regulations effective at the end of July, jobseekers from India, Pakistan, Nepal, the Philippines and Bangladesh, who currently are not subject to visa fees, will have to pay a refundable deposit of Dh1,000 ($272) and secure health insurance while they look for work. One likely result of the new regulations, as reported at portstrategy.com, is a rush of would-be workers in the port of Dubai in the spring and early summer. Another probable consequence is that potential employers and recruitment agencies will need to search abroad to find workers in order to avoid a labor shortage. Anyone found working while on a visit visa can be fined more than Dh50,000 ($13,617) and banned from re-entering the UAE. Employers also will be subject to strict penalties for violations.

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As reported at Stateline.org, a new report  finds that the estimated 12 million illegal immigrants in the United States are settling in states such as Georgia and North Carolina, where relatively few lived 20 years ago. The findings could have financial implications for already stressed state and local governments.

Highlights of the report, conducted by the nonpartisan Pew Hispanic Center, include:

• California leads the nation with 2.7 million illegal immigrants, but its share of the national total has dropped from 42% in 1990 to 22% in 2008. Instead, larger numbers of illegal immigrants are moving to states in the Southeast, Southwest, Mid-Atlantic, Midwest and Mountain regions.
• Florida, Illinois, New Jersey, New York and Texas have retained their appeal to illegal immigrants.
• The children of illegal immigrants comprise 6.8% of K-12 students in the U.S., up from 5.4% in 2003.
• Six in 10 illegal immigrants lack health insurance, more than double the uninsured share among legal immigrants and four times the uninsured share among U.S.-born adults.
• An estimated 8.3 million of the nation’s 154 million people in the labor force are illegal immigrants, according to 2008 estimates. That is a share of about 5.4%, up from 4.3% in 2003.

The Pew Hispanic Center periodically examines trends in the unauthorized immigrant population. State and local officials watch such trends carefully because state and local governments pay for the services provided to illegal immigrants, especially education, health care and public safety.

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The Centers for Disease Control and Prevention (CDC) is seeking public comment on a set of proposed criteria to be used in determining which vaccines, among those recommended by the Advisory Committee on Immunization Practices (ACIP) for the United States’ general population, should be required for immigrants seeking admission into the U.S. or seeking permanent residence status. These specific criteria will be applied against each vaccine, rather than requiring all ACIP recommended vaccines for immigration purposes.

Through a notice (PDF) published in the Federal Register on April 8, CDC has proposed the following criteria:

• the vaccine must be an age appropriate vaccine as recommended by ACIP for the general U.S. population, and
• at least one of the following: (1) the vaccine must protect against a disease that has the potential to cause an outbreak, or (2) the vaccine must protect against a disease that has been eliminated in the United States, or is in the process for elimination in the United States.

The deadline for submitting written comments is May 8, 2009.

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President Barack Obama plans to begin addressing changes to the U.S. immigration system this year, even though he acknowledges that the recession makes the politics involved in this divisive issue even more challenging. As reported in The New York Times, a senior administration official stated that Obama will frame the new effort as “policy reform that controls immigration and makes it an orderly system.”

Without stating specific proposals, officials commented that the Obama administration favors legislation that would:

• bring illegal immigrants into the legal system by acknowledging that they violated the law and imposing fines and other penalties as deemed appropriate; and
• guard against future illegal immigration by strengthening border enforcement and being tough on employers who hire illegal immigrants, while creating a national system for verifying the legal immigration status of new workers.

Obama plans to speak publicly about immigration issues in May, and over the summer he will convene bipartisan working groups, composed of lawmakers and a variety of immigration groups, to begin discussing possible legislation. Administration officials are still debating the precise timing and strategy for the proposed legislation.

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The United Kingdom's government has announced the start dates for new short stay visitor visa requirements for nationals of Bolivia, Lesotho, South Africa, Swaziland and Venezuela. Under the new requirements, nationals of these countries wishing to visit the UK for up to six months, will need to obtain a visit visa, and provide their fingerprints before they travel. Travelers from these countries who transit through the UK en route to other countries also will need a transit visa.

Start dates for the new visa requirements are:

• May 18, 2009 for Bolivian and Venezuelan nationals. Venezuelan nationals holding valid biometric passports containing an electronic chip will be exempt from the visa requirement.
• July 1, 2009 for nationals of South Africa, Lesotho and Swaziland.

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As reported at KableNET.com, the UK Border Agency plans to work with the United States, Canada and Australia to “introduce a system of appropriate data protection arrangements for fingerprint checks and data sharing.” This system, which is intended to help identify and bar foreign criminals from entering the UK, is one of the programs discussed in the agency’s business plan  issued on April 1.

Other highlights of the business plan include:

• As of December 2008, the agency had enrolled more than 3.6 million sets of fingerprints from visa applicants, finding more than 5,200 cases of identity swaps.
• By December 2009, the agency will open its National Border Targeting Centre, checking 60% of all international passenger movements (with the goal of checking 95% of movements by the end of 2010).
• By 2011, all new applicants coming to the UK for more than six months, or extending their stay, will need to have a biometric identity card.
   

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On March 30, 2009, U.S. Representative Jeff Flake (R.-AZ) introduced legislation (H.R. 1791) that would amend the Immigration and Nationality Act to authorize “certain aliens who have earned a Ph.D. degree from a United States institution of higher education in a field of science, technology, engineering, or mathematics” to be exempted from the numerical caps on H-1B visas. The bill, titled “Stopping Trained in America Ph.D.s From Leaving the Economy Act of 2009” (the “STAPLE Act”), was referred to the House Judiciary Committee. In addition to the exemption from the H-1B numerical cap, the legislation also would exempt the specified foreigners from the numerical limitations on permanent residence.

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As reported at the DailyRecord.com, Department of Homeland Security Secretary, Janet Napolitano, has stated that she supports the E-Verify program and would like to see it extended beyond its current expiration date of September 30, 2009. Napolitano also remarked that the Obama administration has not yet taken a position on whether to require all U.S. employers to use E-Verify.

During her interview with Gannett Washington Bureau, Napolitano referred to her experience with E-Verify while she was governor of Arizona. Napolitano stated:

Some of the arguments that are made about how [E-Verify] works or does not work don’t carry much water with me. I’ve already used it for several years. It works.
 

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Senators Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa) plan to reintroduce legislation that would require employers to make a “good faith” effort to hire U.S. citizens over H-1B visa holders, Computerworld.com reports. The two senators introduced a similar bill in March 2007, but that bill died after being folded into a comprehensive immigration reform bill that never went up for a vote.

The bill that Grassley and Durbin proposed in 2007, which they called “The H-1B and L-1 Visa Fraud and Abuse Prevention Act,” will be reintroduced with some changes, but its general outline is expected to remain the same. The 2007 bill would have required employers to advertise job openings for 30 days before submitting H-1B applications for those positions. The bill also sought to prevent employers from hiring H-1B workers and then outsourcing them to other companies.

The widespread layoffs being caused by the economic downturn may increase the chances of success for a new bill. Earlier in 2009, Grassley and Sen. Bernie Sanders (I-Vt.) succeeded at getting H-1B hiring restrictions on financial services firms receiving federal bailout money into the economic stimulus package.
 

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Yesterday the immigration community was surprised to learn that while the 20,000 H-1B numbers set aside for the advanced U.S. degree cap were nearly all accounted for, only two-thirds of the 65,000 regular H-1B cap numbers were used up. This means that the U.S. Citizenship and Immigration Services (USCIS) continues to accept applications for initial H-1B status more than a week after the H-1B filing season opened up on April 1st. This is in stark contrast to the 133,000 H-1B petitions received within the first two days of filing last year.

This scenario is not surprising because of the available H-1B numbers. Indeed, the battered U.S. economy coupled with the recent legislative action against recipients of Troubled Assets Relief Program (TARP) funding foreshadowed less demand for H-1Bs this year.

The intriguing part is the inversion of the regular and advanced U.S. degree caps. From the time the 20,000 set aside came into existence for those holding advanced U.S. degrees, it has always taken longer to exhaust than the 65,000 regular H-1B numbers. This indicates that similar numbers of foreign students getting U.S. masters and doctorate degrees are being sponsored for H-1B status, while the demand for those holding bachelors degrees or foreign degrees has dropped significantly.

This does not mean that petitions should not be filed on behalf of individuals possessing advanced U.S. degrees. It simply means that their H-1Bs will now be drawn from the remaining regular cap numbers.

On the day USCIS determines that sufficient petitions have been received to meet the annual limit, a random selection lottery will be conducted for all cases received on that day. Cases not selected in the lottery will be rejected.

This entry was authored by Chad Graham.

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The Office of Foreign Labor Certification (OFLC) has announced (PDF) a new iCERT Visa Portal System, starting April 15, 2009. The iCERT System will allow employers to:

• Prepare and submit applications at any time;
• Save time preparing applications by pre-populating visa forms with business/contact information;
• Create and manage sub-account users (e.g., HR staff or in-house legal counsel) to prepare and submit applications on the employer’s behalf;
• Track the status of applications across visa programs through a single account;
• Submit requests to withdraw applications; and
• Notify the Department of Labor, at any time, in the event that unauthorized applications for labor certification have been submitted.

The OFLC’s announcement includes a implementation timeline for the iCERT system.

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Effective March 28, application forms for any temporary Australian visa must meet new health requirements, the Australian Visa Bureau reports. The working holiday visa and the holiday visa are affected by these changes. Changes to the health requirements include:

• revised “country risk levels” for tuberculosis;
• changes to “classroom requirements” for applicants seeking to work in the education industry; and
• tests for applicants seeking to study as a dentist, nurse or doctor.

The revised health requirements and the revised health procedures advice manual are available on the Department of Immigration and Citizenship website.

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Due to planning levels being achieved, some occupations have been removed from the Permanent Sponsorship and Provisional Sponsorship lists of the South Australian sponsored visa program, the Australian Visa Bureau reports. One occupation (hairdresser) was removed from the Permanent Sponsorship list, and several occupations (including construction project manager, statistician, health information manager, social professional, hairdresser and various scientist positions) were removed from the Provisional Sponsorship list. These amendments follow the Australian federal government’s recent changes to the General Skilled Migration Program, which reduced the number of occupations listed on the Critical Skills List.

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Effective March 31, 2009, the United Kingdom’s immigration rules covering highly skilled migrant workers have changed, raising the requirements of two categories in Tier 1 of the points-based system. Following the change, anyone applying for permission to enter the UK in the Tier 1 (General) category for the first time, or who applies to switch into the Tier 1 (General) category from another category, will need to have a Master's degree and a minimum salary of £20,000 to score points for qualifications and earnings respectively. Migrants applying to extend their permission to stay under Tier 1 (General) will not be affected by the changes.

The Tier 1 (Post-Study Work) category has also changed. Anyone applying in this category will not be awarded points for Postgraduate Diplomas or Postgraduate Certificates other than Postgraduate Certificates in Education (or PGDEs in Scotland only).

New versions of the Tier 1 (General) and Tier 1 (Post-Study Work) application forms, as well as revised guidance for applicants in these categories, are available on the UK Border Agency website.
 

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The UK Border Agency has announced changes to the immigration rules for the following categories of business visitors:

• Secondees;
• Advisers, consultants, trainers, troubleshooters; and
• Trainees.

Details of these changes are outlined in the immigration rules and the immigration directorate instructions.

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Homeland Security Secretary Janet Napolitano has tapped a hot-button immigration issue by aiming enforcement efforts at employers. As reported in the Los Angeles Times, field guidelines for the Department of Homeland Security’s Immigration and Customs Enforcement agents will shift focus away from workplace raids aimed at rounding up individual undocumented workers and, instead, will go after the employers themselves. An emphasis will be placed on arresting and prosecuting employers who knowingly employ undocumented workers.

This shift is in line with a declaration made by President Barack Obama during last year’s campaign in which he claimed that past enforcement policies had failed because they focused on the individual rather than the employer. Targeting employers is a strategic attempt to reduce the supply of jobs available to undocumented workers. But with an estimated 12 million people currently living in the United States illegally, the shift raises uncertainty as to whether there is a sufficient number of willing and qualified U.S. workers to fill positions vacated when employers begin purging their workforces.

The Department of Homeland Security has made it clear that it still plans to conduct worksite enforcement raids. Still, this fundamental shift in priorities raises serious additional concerns for employers who could find themselves facing criminal charges. Even though it is difficult to prove that an employer “knowingly” employed undocumented workers—which provides a potentially large loophole for employers—the threat alone may have a significant impact on the workplace.

This entry was authored by Chad Graham.
 

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