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

By Jorge Lopez

Over the past few months, United States Citizenship and Immigration Services (USCIS) has been applying a more restrictive definition of “affiliation” for health care institutions. An affiliation with a university exempts hospitals from having to wait until October to apply for H visas. This exemption is especially advantageous in the health care setting, since many hospital residency and fellowship programs start in June and July, considerably earlier than the October application date.

USCIS’s narrow interpretation of “affiliation” has resulted in visa applications—for extensions as well as for new visas—being denied to health care professionals working in hospitals affiliated with universities, which has in turn impacted graduate medical education programs and the allied health care positions of many health care institutions. The net result has been the reduction in staffing and interruption of graduate medical education programs, among others. Accordingly, on March 16, 2011, USCIS announced interim procedures that will be in effect while the agency reviews its policy on H-1B exemptions for entities affiliated with or related to an institution of higher education. 

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United States Citizenship and Immigration Services (USCIS) has announced a proposed rule designed to decrease administrative and employer costs associated with the H-1B petition process. Under the proposed rule, employers would electronically register with USCIS during an enrollment period of at least two weeks in March of each year, prior to the April 1 filing period start date. Participating employers would file a single registration for each prospective H-1B worker they seek to hire (i.e., multiple prospective H-1B workers could not be listed on a single registration). Unlike current requirements, procuring a Labor Condition Application (LCA) prior to filing a petition would not be required.

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On March 3, 2011, the Georgia House of Representatives passed, by a 113-54 vote, House Bill 87 (pdf), an immigration enforcement bill that, among other provisions, would require employers to use E-Verify to authenticate their new hires’ legal work status. The bill, known as the Illegal Immigration Reform and Enforcement Act of 2011, now moves to the Senate, where a committee endorsed a similar measure on March 2. As reported by the Atlanta Journal-Constitution, HB 87’s controversial provisions, such as authorizing state and local police to verify the immigration status of certain criminal suspects, prompted “hundreds” of demonstrators to gather outside the Georgia Capitol during the House debate to “denounce the measure as an ‘Arizona copycat law.’”

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The UK Border Agency has announced its annual update to the occupation codes of practice for sponsored skilled workers, with an effective date of March 1, 2011. To sponsor a migrant worker from outside Europe under Tier 2 or Tier 5 of the points-based immigration system, employers must use the codes of practice to: (1) check the skill level and appropriate pay for the job; and (2) determine where in the United Kingdom the job must be advertised before it can be offered to a migrant worker. Employers also must consult the latest version of the codes of practice before issuing a certificate of sponsorship.

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Arizona legislators continue to press forward with immigration-related proposals. State Senate President Russell Pearce, sponsor of the infamous SB 1070, recently introduced SB 1611 (pdf), a wide-ranging immigration enforcement bill. On February 22, 2011, the State Senate Appropriations Committee approved the bill by a 7-6 vote, with two committee Republicans voting against the bill, according to Courthouse News Service.

Of interest to employers is Section 9 of SB 1611, which would amend Arizona’s E-Verify statute. Since December 31, 2007, Arizona employers have been required to use E-Verify to authenticate new hires’ legal work status (Ariz. Rev. Stat § 23-214). SB 1611 amends that statute to permit business license suspension for failure to provide proof that the entity is registered with, and participating in, the E-Verify program. If the state attorney general discovers noncompliance, notice will be issued to the business, which will have six months to comply. If, after six months, the business remains noncompliant, the attorney general can petition a state court to order the appropriate agencies to suspend all licenses held by the business. The suspension will remain in effect until the business complies.

The bill’s other enforcement provisions include:

• making it a crime (punishable by a 30-day minimum jail sentence) to drive a motor vehicle while in the country illegally;
• requiring schools to collect information on students’ legal status and to report to law enforcement if families do not provide the necessary documents or if the documents appear false; and
• requiring public agencies to verify renters’ immigration status and to evict everyone living in a unit if any person living in that unit is found to be an illegal immigrant.

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