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

By Kelly Reese

On August 29, 2011, U.S. District Judge Sharon Blackburn temporarily enjoined the enforcement of Alabama’s recently enacted immigration law, House Bill 56 (HB 56), which was due to take effect September 1. The injunction will remain in effect until the court enters its ruling on the preliminary injunction or until September 29, whichever comes first. Judge Blackburn’s Order (pdf) states that the court will rule on the merits of the pending Motions for Preliminary Injunction no later than September 28.

The U.S. Department of Justice (DOJ) filed the lawsuit in the U.S. District Court (Northern District of Alabama) against the State of Alabama, alleging that HB 56 is preempted by federal law. The DOJ asked the court to find HB 56 invalid, null and void; and sought a preliminary and permanent injunction prohibiting its enforcement.

Two similar lawsuits, also seeking preliminary and permanent injunctions prohibiting enforcement of HB 56, were filed by religious and public interest entities. Those two cases have been consolidated with the DOJ lawsuit.

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On August 16, 2011, President Obama issued a memorandum extending the September 30, 2011 expiration of Deferred Enforced Departure (DED) applicable to Liberians. The memorandum’s effect is to defer for 18 months the removal of any Liberian national, or person without nationality who last habitually resided in Liberia, who is present in the United States and who is under a grant of DED as of September 30, 2011.

Following the President’s action, U.S. Citizenship and Immigration Services (USCIS) announced a 6-month extension, through March 31, 2012, of employment authorization for qualifying Liberian nationals covered under DED. Qualifying individuals will be permitted to continue working as they file applications for new Employment Authorization Documents (EADs), which will cover the full 18 months of the DED extension.

Not all Liberians qualify under DED; for example:

• Liberians without Temporary Protected Status (TPS) on Sept. 30, 2007 are not covered under the current DED;
• certain criminals;
• persons subject to the mandatory bars to TPS; and
• other ineligible persons described in President Obama’s memorandum.

USCIS will publish in the Federal Register a notice with instructions on obtaining employment authorization for the remainder of the DED extension.

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United States Citizenship and Immigration Services (USCIS) has released updated H-1B visa petition numbers for Financial Year (FY) 2012. Since data were last updated (based on filings as of July 29, 2011), 2,600 H-1B regular cap petitions were filed, bringing the total to 25,300 as of August 12, 2011. During the same period, 900 H-1B Master’s Exemption petitions were filed, bringing that total to 14,700.

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In March 2011, the Department of Homeland Security launched the E-Verify Self Check Program, a secure web portal that allows an individual to verify his or her work authorization status. When unveiled, the program’s availability was limited to a handful of states. However, as of August 15, 2011, Self Check is available in 21 states, including the nation’s three most populated: California, Texas, and New York. Additionally, Self Check is now available in Spanish.

Self Check, which is a free service, allows individuals to compare their information to the same databases that E-Verify accesses, giving them the chance to address any existing data mismatches before they are hired by an employer that participates in E-Verify. United States Citizenship and Immigration Services will continue to evaluate and improve Self Check, which it intends to expand nationwide by spring 2012.

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The U.S. Department of State has released the September 2011 Visa Bulletin, which summarizes visa availability. As compared to the June 2011 Visa Bulletin, some movement occurred in the oversubscription date (i.e., the date on which the availability quota was met) for employment-based visa categories, including:

• EB-2 (professionals with advanced degrees or persons of exceptional ability): The oversubscription date for Indian and Chinese nationals progressed to April 15, 2007, from October 15, 2006.
• EB-3 (skilled workers and professionals): The most significant development concerned the oversubscription date for Mexican nationals, which advanced almost a full year, from December 22, 2004 to November 22, 2005. Advances of several weeks occurred for nationals of: China, from May 15 to July 15, 2004; the Philippines, from September 15 to November 22, 2005; and India, from April 22 to July 8, 2002.
• EB-3 (other workers): The oversubscription date for nationals of Mexico and the Philippines advanced two years, from November 8, 2003, to November 22, 2005. 

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By Andrew Osborne and Anita de Atouguia of Lewis Silkin

The UK Border Agency has finally opened up the Tier 1 (Exceptional Talent) route. This route is for exceptionally talented individuals in the fields of science, humanities, engineering and the arts, who wish to work in the UK. These individuals are those who are already internationally recognised at the highest level as world leaders in their particular field or who have already demonstrated exceptional promise and are likely to become leaders in their particular areas.

To qualify under this category, applicants need to obtain an endorsement from a Designated Competent Body (“DCB”). The DCB’s include:

• The Arts Council England
• The British Academy
• The Royal Academy of Engineering
• The Royal Society

The DCB’s have agreed specified eligibility criteria and Code of Practice with the UK Border Agency. There is a limit of 1,000 in the first year of operation, of which the first half year allocation of 500 will be decided from 9 August through 30 November 2011. The remaining 500 will be allocated from 1 December 2011 to 5 April 2012. Applicants must apply for entry clearance only. There is no provision to switch into this category from within the UK.

Photo credit: David Franklin

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The Security and Fairness Enhancement for America Act (H.R. 704), which would eliminate the Diversity Visa Lottery Program, passed out of the House Judiciary Committee on July 21, 2011, by a vote of 19 to 11. The bill, also known as the SAFE for America Act, was introduced in February 2011 by Rep. Bob Goodlatte (R–VA).

The Diversity Visa Lottery Program makes available 55,000 visas annually. Applicants register for the Diversity Visa lottery, and visa recipients are selected randomly from entries that meet eligibility requirements. This year’s lottery made headlines when, due to a computer coding error, most of the winners were selected from among those who applied in the first two days of the 30-day application period, denying the other applicants an equal chance of being selected. The initial results were voided and a second drawing was held.

Photo credit: David Franklin

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United States Citizenship and Immigration Services (USCIS) has released updated H-1B visa petition numbers for Financial Year (FY) 2012: 22,700 H-1B regular cap petitions and 13,800 H-1B Master’s Exemption petitions were filed as of July 29, 2011. USCIS began accepting FY 2012 H-1B petitions on April 1, 2011. Limitations for FY 2012 are 65,000 H-1B regular cap visas and 20,000 H-1B Master’s Exemption visas.

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