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U.S. Citizenship and Immigration Services (USCIS) has announced that the Employment Eligibility Verification form I-9 (Rev. 02/02/09) currently on the USCIS website will continue to be valid for use beyond June 30, 2009.

USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire.

When the extension is approved, USCIS will update Form I-9. Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form. 

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U.S. Citizenship and Immigration Services (USCIS) has announced that, working together with the Federal Bureau of Investigation (FBI), it has eliminated the FBI National Name Check Program (NNCP) backlog. The final goal of an April 2008 joint business plan was to achieve a sustainable performance level by the NNCP of completing 98% of name check requests submitted by USCIS within 30 days, and the remaining 2% within 90 days. This performance level will become the new standard.

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A review conducted by Australia’s Department of Immigration and Citizenship regarding the student visa program found that Indian students breached their visa conditions at a rate three times higher than the average breach rate. As reported by The Australian, the review ranked Indian students alongside Bangladeshis and Cambodians as a level-four risk, which is the second highest risk category (no country currently ranks at the highest risk category).

As a result of these findings, rules for Indian students have been tightened: Indian students now must prove they have enough money to support themselves for the duration of their studies and must pass stricter English language tests. Critics of the tightened standards argue that they fail to distinguish between university students and vocational training students (who account for almost 80% of all Indian students in Australia).
 

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Secretary of State Hillary Clinton, speaking before the U.S.-India Business Council, outlined her plans for a “dramatic expansion” in U.S./India relations and touched upon concerns voiced by the Indian IT community and the Indian government that proposed restrictions on the H-1B visa program are a form of protectionism. As reported at Computerworld.com, Clinton remarked that both countries should "work through any issues in our relationships and differences in our perspectives by focusing on shared objectives and concrete results." Meera Shankar, India's ambassador to the United States, stated that India's IT talent has helped U.S. firms become more competitive globally, while also stimulating the U.S. economy by creating jobs and increasing profits.

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As reported at philstar.com, the Philippines’ Bureau of Immigration is introducing a Special Visa for Employment Generation (SVEG), to be officially launched on July 3. The SVEG is available to qualified non-immigrant foreigners who will employ at least 10 Filipinos in a lawful and sustainable enterprise, trade or industry. Qualified foreigners who are granted the SVEG will be considered special immigrants with multiple entry privileges and conditional extended stay privileges.

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U.S. Citizenship and Immigration Services (USCIS) has announced that, as of June 19, 2009, approximately 44,500 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

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U.S. Citizenship and Immigration Services (USCIS) announced (PDF) today that it will resume premium processing of I-140 immigrant visa petitions effective June 29, 2009. This new policy will allow for the premium processing of I-140 immigrant petitions for alien workers filed under the following categories: EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals.

At this time premium processing is not available for I-140 petitions filed under the EB-1 Multinational Executives and Managers or EB-2 Members of Professions with advanced Degrees or Exceptional Ability seeking a National Interest Waiver.

Premium processing is a service offered by the USCIS that allows petitioners to pay an additional $1,000 fee in exchange for a guarantee that the USCIS will issue either an approval notice, a notice of intent to deny, a request for evidence, or open an investigation for fraud or misrepresentation within 15 days of receipt of the application and premium processing request. In addition to the accelerated processing time, petitioners also have access to a dedicated premium processing telephone line and email address to check on the status of a petition or ask other questions relating to their petition.

Given current USCIS processing times for I-485 Adjustment of Status applications and immigrant visa retrogression in many categories, it is not likely that this service will have a significant impact on overall green card processing times for most applicants. However, it may in some circumstances benefit petitioners and beneficiaries of I-140 applications.

This entry was authored by Sam Adair.

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Canada’s Citizenship, Immigration and Multiculturalism Minister, Jason Kenney, has announced  the release of “The Employer’s Roadmap,” which helps guide employers in hiring, assimilating, and retaining internationally trained workers.

The Roadmap is a tool for employers, human resources professionals, recruiters and managers in small to medium-sized enterprises and covers topics such as:

• the benefits of hiring internationally trained workers;
• how to hire and recruit such workers;
• how to assess qualifications; and
• how to integrate and retain employees with different professional and cultural backgrounds into the workforce.

This resource is one of several measures that the Canadian government is taking to help newcomers quickly and successfully integrate into the Canadian labor market. Another measure is Canada’s Economic Action Plan, which includes an investment of $50 million (Canadian) to help develop a common approach to foreign credential recognition.

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The Australian government’s 2009-10 budget  includes a 20% increase in application charges for a number of visa categories, effective July 1, 2009. This measure will increase revenue by $400 million (Australian) over four years and is intended to help offset the costs associated with operating the migration and temporary entrant program.

A list of visa application charges is available on the Department of Immigration and Citizenship website.

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As reported in The New York Times, the Transportation Security Administration (TSA) is preparing to assume responsibility (currently assigned to airlines) for checking passengers’ names against terrorist watch lists, and is advising travelers to book airline tickets using their full name as it appears on their driver’s license or passport. Also, later this summer the TSA will begin requiring airlines to ask passengers for their birth date and gender during the ticketing process. Airlines will send this information to the TSA with the intent of making the watch list matching process more accurate.

The TSA has set August 15, 2009 as the target date for the airlines to begin asking for each passenger’s full name, gender and date of birth, and has begun publicizing the program, called Secure Flight. However, because many airlines’ reservation systems are not yet prepared to accept this additional information, the TSA has acknowledged that it will need to phase in the program as the airlines update their systems. For now, airlines are advising passengers not to worry if there is no field for entering their middle name, gender or date of birth when purchasing a ticket.

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Senator Charles Schumer (D-NY), the new chairman of the immigration subcommittee, strongly supports introducing "forgery-proof" worker identification cards, which would be secured with fingerprints or other biometric data. Schumer, who is heading the Senate’s efforts to draft comprehensive immigration reform legislation, has stated that such an ID card would be the best method of confirming that workers are authorized. As reported in The Los Angeles Times, Schumer is likely to present the worker ID card plan at an upcoming hearing on employee verification systems.

In his book Positively American (published in 2007), Schumer wrote: “The ID will make it easy for employers to avoid undocumented workers, which will allow for tough sanctions against employers who break the law, which will lead to no jobs being available for illegal immigrants, which will stop illegal immigration. …. Once Americans are convinced that we will permanently staunch the flow of illegal immigration, they will be more willing to accept constructing a path toward earned citizenship for those who are already here.”

Although some business and community organizations support the concept of a worker ID card, others argue that the cards would violate privacy rights and civil rights.

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Under current U.S. immigration law, 140,000 employment-based (EB) immigrant visas (green cards) are available to foreign workers every year. This number is broken down into preference categories, including the EB-1, EB-2, and EB-3 categories (the most widely used employment categories), as well as EB-4 (religious workers and other special immigrants), and EB-5 (investor) categories. The number is further broken down by an applicant’s country of birth resulting in approximately 2,800 available visas per country per EB category per year. Individuals born in countries with higher demand, including India and China, have significantly longer wait times to obtain green card approval due to the limited annual availability.

Each month, Charles Oppenheim of the U.S. Department of State provides an estimated calculation of immigrant visa availability for the following month, and this information is published through the State Department’s Visa Bulletin. These estimates form the basis for an individual’s eligibility to apply for an immigrant visa depending on his/her preference category and country of birth.

On June 10, Oppenheim made dire predictions for immigrant visa availability for the rest of 2009 and into 2010. The increased demand in the EB-4 “religious worker and other special immigrants” category, as well as the EB-5 “investor” category, is partly to blame. Most years there are significant unused numbers from those categories, which then pass through to the EB-1 and EB-2 categories. Without these additional numbers, EB-1 and EB-2 categories will be stretched very thin. Those born in India and China already experience backlogs in the EB-2 category, and it is anticipated that this will become much worse if there are no unused numbers that flow from the EB-4 and EB-5 categories.
 

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Current global migration patterns indicate that, due to rising unemployment rates and contracting economies in developed countries, fewer workers are migrating from poor to wealthier nations, and the flow of migrant workers returning to their home countries is increasing. As reported in The Wall Street Journal,  this is potentially the biggest reversal in migration flows since the Great Depression.

Statistics illustrating the reversal include:

• Emigration from Mexico to the U.S. dropped 13% in the first quarter of 2009 compared to the first quarter of 2008. In the same period, more people returned to Mexico than left Mexico for the U.S., about 139,000 and 137,000, respectively.
• In 2009, a projected 60,000 or more Indonesia citizens will return home from Malaysia, South Korea and other wealthy neighboring nations, as immigrant workers lose their jobs.
• Tens of thousands of Indians are returning from Dubai as jobs there dwindle and work permits expire.
• In the United Kingdom, the number of registered workers coming from new European Union member nations like Poland and the Czech Republic dropped 55% in the first quarter of 2009 compared to the same quarter a year earlier.

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As reported by The Telegraph, officials from the Department of Homeland Security and the Department of State are planning to significantly decrease the visa processing delays faced by foreign students and researchers. Under a new “streamlined” process, the time needed for a visa security review will be reduced from several months to two weeks. American universities that rely upon foreign science and engineering graduates and doctors—especially from China and India—to lead scientific and technical research projects have complained about the delays in the American visa application process.

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Due to the prevalence of fraudulent visas and passports, the Indian government is planning to install magnifying equipment and ultraviolet lamps at all international airports in order to more accurately verify the authenticity of travel documents. As reported by the Press Trust of India, other steps being taken at India’s international airports are the installation of new computer software (to verify passengers’ passport details) and additional training of immigration officers.

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The Senate Judiciary Committee held a hearing regarding Sen. Patrick Leahy’s (D-VT) proposal to allow U.S. citizens and legal immigrants to seek residency for their same-sex partners. As reported by The New York Times, Sen. Leahy has said that his initiative, contained in the Uniting American Families Act (S. 424), should be included in any comprehensive immigration legislation that Congress considers.

Currently, family unification provisions allow American citizens and legal residents to petition for residency for their spouses. Same-sex couples, however, cannot petition for partners; as a result, immigrant partners are at risk of deportation. The Uniting American Families Act would add the term “permanent partner” to immigration law provisions that refer to married couples and would legally define that term. Opponents of Sen. Leahy’s proposal argue that it would facilitate immigration fraud because it would be difficult for immigration officers to determine whether same-sex couples actually had an established relationship.

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The Department of Labor is suspending the H-2A Final Rule (published on December 18, 2008 and in effect as of January 17, 2009). That Final Rule amended the regulations governing the certification for temporary employment of nonimmigrant workers in agricultural occupations on a temporary or seasonal basis, and the enforcement of contractual obligations applicable to employers of such nonimmigrant workers. To ensure continued functioning of the H-2A program, the DOL is republishing and reinstating the regulations in place on January 16, 2009 for a period of nine months, after which the Department will either have engaged in further rulemaking or lifted the suspension.

The notice of suspension (PDF) was published in the Federal Register on May 29, 2009, and the suspension is effective June 29, 2009. In order to answer employers’ questions about the suspension, the Office of Foreign Labor Certification has issued the document “H-2A Notice of Final Suspension: Frequently Asked Questions”(PDF).

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A bill introduced by Rep. Gabrielle Giffords (D-AZ) would extend the E-Verify program through September 2014. The Employee Verification Amendment Act of 2009 (H.R. 2679) would also order a General Accounting Office (GAO) study to determine the cause of errors made by this employment verification system, and its effects on small businesses.  Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.

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The United States’ Western Hemisphere Travel Initiative (WHTI), which heightens the document requirements for entering and re-entering the United States by land or sea, went into effect on June 1. The WHTI requires all citizens of the US, Canada, Mexico, Bermuda, and Caribbean nations to have a passport or other form of approved documentation in order to enter or depart the US. As reported by JURIST, some have voiced concerns about the rules’ impact on tourism in the US and Canada, whose border has been called the "world's longest undefended border." The WHTI rules were promulgated under the Intelligence Reform and Terrorism Prevention Act of 2004, which required the Department of Homeland Security and the Department of State to develop and implement a plan requiring travelers to present secure identification documents when entering or re-entering the United States.

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As reported by The Japan Times, representatives of municipalities and human rights groups have voiced their opposition to government-sponsored immigration bills, on the grounds that the bills will violate foreigners' rights and lead to “excessive control” over them. Under the current system, local ward offices handle alien registration; the new bills would transfer responsibility to the Justice Ministry. Hiroko Uehara, the former mayor of the city of Kunitachi in western Tokyo, stated that centralizing the responsibility for alien registration would lower the quality of service for foreign residents. "Municipalities have so far made an effort to provide, at their own discretion, services to foreign residents," Uehara commented. "But if immigration takes control of registration, all that effort will be lost."

For details of the immigration bills at issue, see our previous entry about the proposed changes.

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Immigration officials of the Gulf Cooperation Council (GCC) likely will approve a single visa application system, which would allow Gulf visitors entry to all six of the GCC member countries (the United Arab Emirates, Bahrain, Saudi Arabia, Oman, Qatar and Kuwait). As reported at zawya.com, the single Gulf visa application system was proposed and favorably received at a recent meeting of undersecretaries of GCC interior ministries. GCC representatives also are discussing a range of issues regarding security coordination among the member countries, aiming to facilitate movement of Gulf citizens and foreign residents within the GCC.

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The federal government has told a Maryland judge that it plans to delay for the fourth time the effective date of a rule requiring certain federal contractors and subcontractors to use the E-Verify program.  Continue reading about this development on Littler's Washington DC Employment Law Update blog.

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