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

On November 29 the House of Representatives voted overwhelmingly in favor of passing the Fairness for High-Skilled Immigrants Act (H.R. 3012), bipartisan legislation that would abolish the per-country numerical limits on employment-based immigrant visas. Introduced by Rep. Jason Chaffetz (R-UT) on September 22 and approved by a vote of 389-15, the measure would incrementally change the current system, whereby the annual number of employment-based immigrant visas allocated to natives of any single foreign country cannot exceed 7 percent of the total number of such visas issued that year. To learn more about the bill and its potential implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update. 

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By Ian Macdonald

U.S. Citizenship and Immigration Services ("USCIS") announced on November 23, 2011, that the statutory H-1B cap for FY 2012 was met. USCIS will reject any cap-subject petitions for new H-1B workers that are received by USCIS after November 22, 2011, regardless of when they were postmarked. As a result, employers will be unable to obtain new H-1B petitions with start dates between now and September 30, 2012. The filing period for FY 2013 will open on April 1, 2012, for H-1B petition start dates that will be effective on October 1, 2012, the beginning of FY 2013.

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By Shin-I Lowe

On November 12, 2011, while meeting in Honolulu with Asia-Pacific Economic Cooperation (APEC) leaders, President Obama signed the APEC Business Travel Card (ABTC) Act, which will expedite travel in the Asia-Pacific region for qualified American travelers. Under the Act, U.S. Customs and Border Protection is authorized to issue the ABTC to U.S. citizens as part of its Global Entry program. Cardholders will receive expedited scheduling of visa interviews and access to fast-track immigration lanes at airports in APEC's 21 economies.

The Act, which unanimously passed Congress earlier this month, allows U.S. business people to apply for the cards for reciprocal rights in the region. Cardholders will have pre-cleared immigration entry into the 18 fully participating member economies, eliminating the cost and time involved in obtaining visas. Cardholders also will benefit from expedited transit through special fast-track lanes at major airports and seaports in all 21 economies.

An APEC press release cited business leaders’ praise of the development as a “clear signal” that the United States is helping businesses as they seek stronger trade ties in the Asia-Pacific region.

Photo credit: Official White House Photo by Pete Souza
 

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Alabama gained notoriety in June when Governor Robert Bentley signed into law HB 56, the Beason-Hammon Alabama Taxpayer and Citizen Protection Act. HB 56 quickly gained a reputation as the most aggressive in a long line of state immigration legislation and attracted interest (and ire) from the federal government, immigrant rights groups, and others. A recent federal court decision has halted implementation of certain provisions of the Act, but the central requirement that employers use E-Verify remains intact and on schedule. To learn more about the decision, the E-Verify requirements, and their implications for employers, please continue reading Littler's ASAP, Despite Legal Challenge, Effective Date Approaches for Key Provisions of Alabama Immigration Legislation, by Jorge Lopez and Patrick Simpson.

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By Shin-I Lowe

The Department of Homeland Security (DHS) has announced an extension of Temporary Protected Status (TPS) for eligible nationals of Honduras and Nicaragua for an additional 18 months, beginning January 6, 2012, and ending July 5, 2013. Eligible applicants must re-register during the 60-day re-registration period that runs from November 4, 2011 through January 5, 2012.

The 18-month extension also allows TPS re-registrants to apply for a new Employment Authorization Document (EAD). Eligible Honduran and Nicaraguan TPS beneficiaries who timely re-register will receive a new EAD with an expiration date of July 5, 2013. U.S. Citizenship and Immigration Services (USCIS) recognizes that all re-registrants may not receive their new EADs until after their current EADs expire. Therefore, USCIS is extending the current TPS Honduras EAD bearing a January 6, 2012, expiration date for an additional six months, through July 5, 2012.

TPS is a temporary immigration status that allows eligible individuals to remain and legally work in the United States for a set time period. Information from DHS about completing an Application for Temporary Protected Status and other requirements relating to TPS are available at the TPS landing page.

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United States Citizenship and Immigration Services (USCIS) released updated H-1B visa petition numbers for Fiscal Year (FY) 2012, as of October 7, 2011. Since we last discussed H-1B petition numbers (based on filings as of August 26, 2011), 12,000 H-1B regular cap petitions were filed, bringing the total to 41,000. During the same period, 3,300 H-1B Master’s Exemption petitions were filed, bringing that total to 19,100 and very near to the cap amount of 20,000. The H-1B regular cap petitions filed thus far constitute approximately two-thirds of the 65,000 cap amount. Please note that once the Master’s Exemption cap is met, all petitions filed under this category will be applied to the general 65,000 cap automatically by USCIS.

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On September 28, 2011, U.S. Immigration and Customs Enforcement (ICE) announced that it arrested more than 2,900 convicted criminal aliens and fugitives during a 7-day “Cross Check” enforcement operation. The operation was carried out in all 50 states and four U.S. territories by ICE officers and agents in coordination with local, state and federal law enforcement agencies. All detained individuals had prior criminal convictions; more than half for felony violations. Additionally, 681 individuals were fugitives who had previously been ordered to leave the country but failed to do so; 386 individuals had previously been removed from the country multiple times and had illegally re-entered the U.S.

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Rep. Joe Heck (R–NV) has introduced the Welcoming Business Travelers and Tourists to America Act of 2011 (H.R. 3039), which would increase fees imposed on travelers entering the United States as a method of speeding up the processing of travel document applications. The revenue from increased fees would fund State Department staffing increases designed to streamline and accelerate visa processing, thereby increasing tourism into the United States. Highlights of H.R. 3039 include the following:

• The State Department must set a visa processing standard of 12 or fewer calendar days at U.S diplomatic or consular missions in Brazil, India and China, and increase staffing levels.
• The State Department must conduct a two-year pilot program on using secure, remote video-conferencing technology to conduct visa application interviews.
• The Secretary of State would be permitted to modify or enter into agreements with certain countries to allow for longer visa validity periods.

According to the bill’s legislative findings, over the past decade the United States lost the opportunity to generate $606 billion in revenue through tourism. Moreover, increasing tourism by shortening the nonimmigrant visa approval timeline could permit an additional 98 million visitors, create 1.3 million jobs, and generate $859 billion in U.S. economic output between 2015 and 2020. Additionally, the findings contend that removing these barriers will benefit U.S. diplomatic relations.

Photo credit: Dx73

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The National Conference of State Legislatures (NCSL) recently announced the results of its report on immigration-related laws and resolutions introduced by state legislatures in 2011. Employment remained one of the top issues in immigration-related legislation, along with law enforcement and identification/driver’s licenses.

Although the number of introduced measures increased by 16% during the first half of 2011, compared to the same period in 2010, the number of enacted bills decreased by 18%.

	2011 (January 1 - June 31)	2010 (January 1 - June 31)
Introduced	1,592	1,374
States Enacting	40	44
Laws Passed	162	191
Resolutions Passed	95	128
Bills Vetoed	12	5
Pending Approval	10	N/A

 

 

 

 

 

 

 

As reported by the NCSL, the surge in immigration-related proposals at the state level started in 2006, when the number of bills introduced (570) and laws enacted (84) essentially doubled compared to 2005. The most dramatic increase in terms of legislation volume occurred in 2007: 1,562 measures were introduced, with 240 laws enacted and 50 resolutions adopted. Since 2007, the number of immigration-related measures has always been well above 1,000, with at least 200 laws enacted each year.

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Currently, the Immigration and Nationality Act permits the issuance of approximately 140,000 employment-based visas each year. The percentage of available visas that may be awarded to nationals of any one country is capped, i.e., visas issued to individuals of one country cannot exceed 7% of the total number of visas available.

Under the Fairness for High-Skilled Immigrants Act (H.R. 3012), introduced by Rep. Jason Chaffetz (R–UT), the per-country limitation for employment-based visas would be removed. Additionally, the following transitional rules would apply to employment-based visas:

• Fiscal Year (FY) 2012 (Oct. 1, 2011-Sept. 30, 2012): 15% of visas would be allocated to immigrants who are natives of a foreign state or dependent area that was not one of the two countries with the largest numbers of natives obtaining permanent resident status during FY 2010.
• FY 2013: 10% of visas would be allocated to immigrants who are natives of a foreign state or dependent area that was not one of the two countries with the largest numbers of natives obtaining permanent resident status during FY 2011.
• FY 2014: 10% of visas would be allocated to immigrants who are natives of a foreign state or dependent area that was not one of the two countries with the largest numbers of natives obtaining permanent resident status during FY 2012.

Additionally, H.R. 3012 increases, from 7 to 15% of the total number of available visas, the per-country restrictions for family-sponsored immigrants.

The bill has been referred to the House Judiciary Committee’s Subcommittee on Immigration Policy and Enforcement.

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By Kelly Reese

On September 28, 2011, the District Court for the Northern District of Alabama (Judge Sharon Blackburn) issued a ruling (pdf) on a motion for preliminary injunction in the lawsuit filed by the U.S. Department of Justice against the State of Alabama challenging its recently enacted immigration law, House Bill 56 (HB 56).

The court has granted a preliminary injunction enjoining the enforcement of two provisions of HB 56 which are of direct concern for employers. The first is Section 16, which prohibits employers from deducting as business expenses wages or compensation paid to an unauthorized alien and imposes a penalty of 10 times the claimed deduction. The second is Section 17, which creates a new cause of action making it a discriminatory practice for employers to knowingly fail to hire a job applicant or discharge an employee who is either a U.S. citizen or authorized alien while retaining or hiring an individual the employer knows, or reasonably should know, is an unauthorized alien. Employers violating this provision can be subject to a civil suit, and the prevailing party may recover compensatory damages and reasonable attorneys’ fees.

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Under the H-1B visa program, an employer may employ foreign workers in occupations requiring theoretical or technical expertise in a specialized field. An H-1B visa holder is issued a Social Security number (SSN) but is only authorized to work for his or her sponsoring employer.

In response to a recent Department of Homeland Security (DHS) study and criminal investigations launched by the Department of Justice (DOJ) concerning visa fraud, the Social Security Administration’s Office of the Inspector General (OIG) set out to assess whether H-1B workers were properly using their SSNs. In its September 2011 Audit Report, H-1B Workers' Use of Social Security Numbers, the OIG estimated that 18% of H-1B workers assigned a SSN in 2007 may have used their SSN to work for a non-approved employer: specifically, 11% posted wages from an employer other than their approved employer, and 7% posted no wages from fiscal years 2007 to 2009.

Based on its findings, the OIG recommended that the Social Security Administration work more closely with DHS and establish a data match agreement to help DHS identify and reduce improper SSN usage by H-1B visa holders.

Photo credit: Aggressive Entertainment

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HireRight, an international employment screening provider, recently released its 2011 Employment Screening Benchmarking Report (available here). The report, in part, examines employer use of E-Verify, the federal electronic employee verification system. Of the 1,800 human resources, talent management, recruiting, security, safety and compliance professionals surveyed, 51% indicated that they use E-Verify, as compared to 28% in the 2010 report.

Other findings in the 2011 report include:

• 11% of those surveyed reported that although they are not currently using E-Verify, they plan to use it in the future.
• 60% of respondents store Form I-9s exclusively in paper form, 12% digitally store, and 27% use a combination of both. According to HireRight, employers using a paper-based I-9 process are more likely to experience errors, thereby increasing the risk of noncompliance.
• 69% of respondents reported feeling completely or very prepared for a U.S. Immigration and Customs Enforcement (ICE) Notice of Inspection or audit.

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As reported by the Wall Street Journal, the Legal Workforce Act (H.R. 2885) (pdf), which would require that employers use E-Verify to authenticate individuals’ legal work status, has produced one of the more unusual opposition coalitions, given the current political climate: conservative, tea-party, libertarian and liberal groups all oppose the measure. The groups have voiced their opposition in letters to lawmakers, and one group took an ad out on Politico, a multimedia news outlet covering politics.

On September 21, 2011, the House Judiciary Committee approved the bill, which was sponsored by Judiciary Chairman Lamar Smith (R-TX). Rep. Smith had previously called on President Obama to include a similar provision in the American Jobs Act.

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U.S. Citizenship and Immigration Services (USCIS) has published a final rule establishing a Transitional Worker (CW) classification for workers in the Commonwealth of the Northern Mariana Islands (CNMI). The CW classification will allow CNMI employers to hire nonimmigrant workers who are otherwise ineligible to work. In Fiscal Year 2012 (October 1, 2011 to September 30, 2012), 22,416 CW visas will be available, and the number of available visas will decrease each year. The visa will not permit the holder to travel or work in any other part of the United States, except for nationals of the Philippines who may, via the Guam airport, travel between the CNMI and the Philippines.

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The U.S. Department of State has released the October 2011 Visa Bulletin, which summarizes visa availability. As compared to the September 2011 Visa Bulletin, minimal 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 three months, from April 15 to July 25, 2007.
• EB-3 (skilled workers and professionals): The oversubscription date for nationals of Mexico and the Philippines advanced 16 days, from November 22 to December 8, 2005. A 24-day advance occurred for nationals of China, from July 15 to August 8, 2004. Indian nationals experienced a one-week advance, from July 8 to July 15, 2002.
• EB-3 (other workers): There were no changes concerning Chinese nationals (April 22, 2003); Indian nationals’ oversubscription date advanced one week, from June 1 to June 8, 2002; the oversubscription date for nationals of Mexico and the Philippines advanced several weeks, from August 1 to September 15, 2005. 

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By Ian Macdonald

The U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) has released Frequently Asked Questions Regarding Delays Issuing Prevailing Wage Determinations and H-1B Labor Condition Applications (pdf).  OFLC’s current priority is to complete H-2B wage redeterminations, but it also notes that it receives voluminous requests for prevailing wage determinations (PWD) in connection with H-1B petitions. When filing an H-1B petition, the employer must pay to the H-1B employee 100% of the prevailing wage or higher. As OFLC points out in its FAQ document, an OFLC-issued PWD is not mandatory for H-1B petitions, and employers filing petitions may use the following alternative sources for determining a prevailing wage:

• a wage rate included in a collective bargaining agreement;
• a wage rate for the occupation and area of intended employment under the Davis-Bacon Act or the McNamara-O’Hara Service Contract Act;
• a wage rate produced by a survey conducted by an independent authoritative source that meets DOL regulatory standards; or
• a wage rate produced by another legitimate information source, such as the Bureau of Labor Statistics Occupational Employment Statistics Survey or a state-generated prevailing wage survey.

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On September 6, 2011, the California State Senate passed Assembly Bill 1236 (AB 1236), the Employment Acceleration Act of 2011, which now heads to Governor Jerry Brown. The Act
prohibits the state, counties, cities and special districts from mandating that employers use an electronic employment verification program (such as E-Verify), except when required by federal law or as a condition of receiving federal funds. The Act’s prohibition on mandating use of an electronic employment verification program specifically applies in the following circumstances:

• as a condition of receiving a California government contract;
• as a condition of applying for or maintaining a business license; or
• as a penalty for violating licensing or other similar laws.

The findings and declarations set forth in AB 1236 include, among others:

• E-Verify’s inaccuracies have prevented employers from hiring employees “in a timely manner;”
• had E-Verify been mandatory in 2010 it would have cost employers $2.7 billion; and
• the net societal cost of all federal contractors using E-Verify would be $10 billion per year, according to a U.S. Chamber of Commerce estimate.

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Representative Lamar Smith (R–TX) has called on President Obama to include in the American Jobs Act a provision mandating that employers use E-Verify, the electronic employment authorization program. Responding to Obama’s September 8, 2011, jobs speech, Smith stated: “[I]f President Obama is indeed focused on putting 23 million unemployed or underemployed Americans back to work, there is one element that is missing from his jobs plan: a federal E-Verify requirement. This is one of the best options available to put unemployed Americans back to work.” The E-Verify program has been criticized by many, including Obama, for problems with its accuracy.

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U.S. District Judge Sharon Blackburn has ruled (pdf) that a complaint challenging Alabama’s recently-enacted immigration law lacks specificity, and ordered the plaintiffs to amend the pleading. The complaint, filed by 36 immigration and civil rights organizations against 11 defendants, contains “380 paragraphs, including 144 paragraphs of facts and history,” and 9 counts–with each count incorporating all previous factual allegations. Labeled a “shotgun complaint” by Judge Blackburn, the plaintiffs were directed to clarify, by September 16, 2011, for each discrete claim:

• which plaintiff(s) asserts the claim;
• the defendant(s) against whom relief is sought; and
• all factual allegations that support the discrete claim.

The organizations’ lawsuit is one of three challenges to the law; the U.S. Department of Justice and a group of religious leaders also have filed suit. As discussed here previously, on August 29, 2011, Judge Blackburn temporarily enjoined enforcement of the law.

Photo credit: Christian Baig Photography

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The Social Security Administration (SSA) has started using a new process for assigning Social Security Numbers (SSNs): randomization. This change is designed to extend the longevity of the nine-digit SSN and enhance identity protection.

Previously, the first three SSN digits (area number) were assigned by state (e.g., 545-573 California; 449-467 Texas; 050-134 New York). However, the state-driven area number assignment had limitations and, with only approximately 420 million available SSNs, the SSA amended the process to extend the longevity of nine-digit SSNs.

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Throughout September, U.S. Citizenship and Immigration Services (USCIS) will offer free webinars on the following subjects:

• Form I-9: An overview of the process, including step-by-step instructions on completion, retention and storage of Form I-9’s.
• E-Verify Self Check: An overview of the program that allows employees, at no charge, to check their employment eligibility.
• E-Verify: An overview and demonstration of the program, along with examining the enrollment process and employer responsibilities.
• Federal Contractor E-Verify: A general program overview for those awarded a federal contract containing the FAR E-Verify Clause.
• E-Verify for Current Users: A detailed program overview discussing user roles, common mistakes, and case alerts.

Webinar dates and registration links are available on the USCIS website. While some topics are offered multiple times, the webinar on E-Verify for current users is only offered once this month, on September 29. A computer with internet access and a telephone are required for viewing and listening. 

Photo credit: Matthew Bowden

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The Department of Homeland Security (DHS) has issued a final rule, published in the Federal Register on August 29, which will enable U.S. Citizenship and Immigration Services (USCIS) to transition from a paper-file-based systems environment to an “electronic customer-focused, centralized case management environment for benefit processing.” The transition will be a multi-year project that will allow USCIS to:

• streamline benefit processing;
• eliminate the capture and processing of redundant data; and
• reduce the number of and automate forms.

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On August 17, 2011, United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum (pdf) to its staff concerning nonimmigrants regularly residing in the same dwelling as a principal nonimmigrant (i.e., a visa holder who is in the United States on a status such as H-1B or F-1). The Memorandum clarifies that nonimmigrant spouses, children, parents, cohabitating partners, and other “household members” of principal nonimmigrants may seek B-2 visas, or change their status to B-2, to allow them to reside with the principal nonimmigrant visa holder for the duration of their authorized period of stay. The Memorandum defines a “household member” of a principal nonimmigrant as “an alien who regularly resides in the same dwelling as the principal nonimmigrant and with whom the principal nonimmigrant maintains the type of relationship and care as one normally would expect between nuclear family members.”

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United States Citizenship and Immigration Services (USCIS) has released updated H-1B visa petition numbers for Financial Year (FY) 2012, as of August 26, 2011. Since data were last updated (based on filings as of August 12, 2011), 3,700 H-1B regular cap petitions were filed, bringing the total to 29,000. During the same period, 1,100 H-1B Master’s Exemption petitions were filed, bringing that total to 15,800. Although the number of H-1B regular cap eligible petitions filed is less than half of the cap amount – 65,000 – the cap eligible H-1B Master’s Exemption petitions filed constitute more than 75% of the cap amount – 20,000.

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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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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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During a recent White House press conference, President Obama was asked whether he would veto a mandatory E-Verify bill that did not include immigration reform provisions. Without directly answering the question, Obama stated, “We may not be able to get everything that I would like to see in a package, but we have to have a balanced package.” Though Obama acknowledged that the E-Verify employment authorization system can be “an important [immigration] enforcement tool,” he added a caveat – “if it’s not riddled with errors.”

Skepticism surrounding E-Verify’s accuracy is not new. The Department of Homeland Security and U.S. Citizenship and Immigration Services have been gradually making improvements to the E-Verify system, many of which are intended to improve its accuracy rate.

The need to attain an acceptable level of accuracy grows as the number of E-Verify users expands. Computerworld reports that more than 250,000 U.S. employers have already signed up for E-Verify, with another 1,300 new businesses enrolling each week. State and local legislation mandating E-Verify use is continually rising. Additionally, in June 2011 two bills were introduced in Congress that would require all employers to use E-Verify. 

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The Foreign Labor Certification Data Center has announced that prevailing wage determination data for the July 2011 to June 2012 program year are now available. The wage data are effective July 1, 2011, and are posted to the Online Wage Library. The data center also hosts Foreign Labor Certification disclosure data for the Permanent, H-1B, H-2A and H-2B programs.

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U.S. Citizenship and Immigration Services (USCIS) has published a revised employer handbook on Form I-9 completion. The handbook guides employers through the process step by step and features:

• expanded guidance on how to enter names on Form I-9;
• more examples of acceptable documents;
• additional information regarding employment-authorized nonimmigrants; and
• other clarifications.

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Building on changes made in June 2010 to enhance the E-Verify web interface’s usability, security, accuracy and efficiency, U.S. Citizenship and Immigration Services (USCIS) recently announced further improvements, including:

• the ability to verify applicants’ driver’s license information;
• less strict entry requirements for U.S. passport and visa number information;
• improved messages that guide employers towards creating qualifying passwords;
• upgrades to the user registration process concerning additional users;
• the ability to select a future hire date;
• a “help” icon linking to instructions and information;
• an upgraded “case details” screen, making it easier to locate detailed case information;
• interface enhancements, e.g., sorting client companies alphabetically, to increase the efficiency of the case creation process for E-Verify employer agent users.

An employer’s existing user ID and password remain valid, and all pre-update case information will be available upon login. However, upon the first login to the enhanced website, users will be required to take a short tutorial to learn about the changes.

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As reported by Politico.com, Immigration and Customs Enforcement (ICE) recently notified 1,000 companies in 50 states that they will be subject to an immigration audit wherein ICE inspects employers’ hiring records, e.g., Form I-9s and supporting documents. This latest round of notices brings the tally to more than 2,300 audits to date in Fiscal Year (FY) 2011 (October 1, 2010 to September 30, 2011), compared to a total of 2,196 during FY 2010.

Audits have been a central theme of the Obama administration’s immigration enforcement strategy. Immigration officials’ focus has shifted to employer, versus employee, noncompliance, the rationale being that the volume of illegal immigration will decrease if employers stop hiring undocumented workers. To prevent such hiring, enforcement agencies use their ability to impose civil and criminal penalties on employers.

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The same day a mandatory E-Verify bill was introduced in the House of Representatives, Sen. Charles Grassley (R-IA) introduced the Accountability Through Electronic Verification Act (S. 1196) in the Senate. Like the House employment immigration bill, the Senate version would require all employers to use the E-Verify electronic employment verification system, increase employer penalties for violations of immigration law, and eliminate the current Form I-9 process. The Senate bill, however, would also require a shorter implementation timeframe for using E-Verify and expand its use, among other differences. To learn more about the bills and their implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update.

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Alabama is now the most recent state to require all employers to enroll in and verify employment eligibility through E-Verify. This requirement goes into effect on April 1, 2012. The new law prohibits all Alabama employers, public and private, from knowingly employing unauthorized aliens. Additionally, the law prohibits state government entities from awarding contracts or providing grants or other incentives to employers that fail to enroll in and verify employment eligibility through E-Verify. This provision goes into effect on January 1, 2012. Violations of the law can result in significant penalties for employers. The new law also creates a state law cause of action for U.S. citizens and authorized aliens against employers that refuse to hire or that discharge them while knowingly or negligently employing unauthorized aliens. To learn more about the new law and its implications for employers, please continue reading Littler's ASAP Alabama Is Latest State to Enact E-Verify Requirement by Kelly Reese.

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A bill that would expand the E-Verify employment verification system and require its use by all employers was reintroduced in the House on May 26. Introduced by Rep. Health Shuler (D-NC) and cosponsored by 37 others, the bipartisan Secure America through Verification and Enforcement (SAVE) Act (H.R. 2000) would create a four-year phase-in period during which all employers would eventually be required to use E-Verify to check the employment eligibility of their potential and current hires. To learn more about the bill and its implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update blog.

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The Immigrant Investor Program (“EB-5 Program”) makes available 10,000 visas annually to immigrant investors who invest in commercial enterprises creating at least 10 full-time jobs for U.S. workers. However, the annual cap has never been met in the two decades since the program’s creation.

In a move designed to maximize utilization of the Immigrant Investor Program and respond to President Obama’s call to promote immigrants’ entrepreneurial spirit, U.S. Citizenship and Immigration Services (USCIS) has announced proposed enhancements to EB-5 visa processing, consisting of three main elements (pdf):

1. USCIS will accelerate processing for applications involving job-creating projects that are fully developed and ready to be implemented. Applicants and petitioners will have the option to request Premium Processing Service, which, for an additional fee, guarantees processing within 15 calendar days.
2. USCIS will create new intake teams with expertise in economic analysis and EB-5 Program requirements. Moreover, applicants submitting Form I-924 (i.e., applying to participate under a USCIS-designated Regional Center) will be able to directly communicate via email with the team to streamline issue resolution and rapidly address applicants’ questions or needs.
3. USCIS will convene an expert Decision Board, composed of an economist and adjudicators supported by legal counsel, to render an enhanced decision process concerning Form I-924 applications. For example, interviews will be available in instances where the Board’s preliminary recommendation is to request further information or to deny the application.

USCIS will accept public comment on the proposals until June 17, 2011.

Image credit: StudioX

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The Department of Homeland Security has published a final rule (pdf) amending the filing locations for a Petition for Alien Relative (Form I-130) or a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). Under the final rule, a petitioner living outside the United States can:

• mail the petition to the United States Citizenship and Immigration Services (USCIS) Chicago Lockbox, if he or she resides in a country without a USCIS office; or
• file the petition at a USCIS international office, if he or she resides in a country with a USCIS office.

Previously, if a petitioner lived in a country without a USCIS office, petitions could be accepted and approved by a consulate, and USCIS reimbursed the U.S. Department of State for processing those petitions. Establishing the Lockbox as a filing option is intended to save costs and increase efficiency.

Written comments on the rule will be accepted until July 18, 2011, and the rule’s effective date is August 15, 2011.

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Rep. Sue Wilkins Myrick (R-NC) has reintroduced legislation that would amend the Immigration and Nationality Act to substantially increase employer penalties for violations. The 10k Run for the Border Act (H.R. 1698) would increase the fines for knowingly hiring or recruiting an undocumented worker, or continuing to employ an illegal alien when the employee’s legal status changes or becomes known.

Under the terms of this bill, an employer could be fined between $10,000 and $80,000 for each violation, an increase from the current $250-$2,000 penalty range. For an employer with a prior violation, the penalties would be increased to between $80,000 and $200,000, up from $2,000 to $5,000 per violation under current law. For a repeat offender, the fine skyrockets to a range of $120,000 to $1.6 million. The current fine for such a repeat offense is a minimum penalty of $3,000 and a maximum of $10,000.

If state or local law enforcement officials provide material assistance in investigating or prosecuting employers that are in violation of this law, they are entitled to 80 percent of the fines paid by those employers. It follows that such large financial incentives would increase enforcement.

The provisions of this amendment would take effect on the day of enactment. Prior versions of this bill have been introduced within the past six years, but have failed to advance.

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The Supreme Court has held that an Arizona law that imposes sanctions on employers that hire unauthorized workers and requires the mandatory use of E-Verify is not preempted by federal law, and therefore valid. The Arizona law at issue – the Legal Arizona Workers Act – provides for the suspension or revocation of an employer’s business license in that state if that employer knowingly or intentionally hires an unauthorized worker. The statute also mandates the use of the E-Verify electronic verification system to check on an employee’s work eligibility. The Court’s decision in Chamber Of Commerce v. Whiting upholding this statute opens the door for other states to enact laws that similarly impose stricter penalties on employers for immigration law violations. To learn more about the decision, please continue reading at Littler's D.C. Employment Law Update blog.

Photo credit: MBPhoto, Inc.

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Under the science, technology, engineering, and math (STEM) extension of the Optional Practical Training (OPT) program, a student visa holder may petition to extend his or her stay in the United States to receive work experience training for up to 17 months after completing a qualifying STEM degree program. On May 12, United States Immigration and Customs Enforcement (ICE) expanded the list (pdf) of qualifying STEM degree programs to include an additional 50 fields, e.g., Neuroscience, Mathematics and Computer Science, and Pharmaceutics and Drug Design. According to an ICE press release, the list expansion will help “address shortages in certain high tech sectors of talented scientists and technology experts.”

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The U.S. Department of State has released the June 2011 Visa Bulletin, which summarizes visa availability. 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 October 15, 2006, from July 1 and August 1, 2006, respectively.
• EB-3 (skilled workers and professionals): The oversubscription date for Mexican nationals advanced 3.5 months, from September 8 to December 22, 2004. A one-month advance occurred for Chinese nationals, from April 15 to May 15, 2004, with a one-week advancement for Indian nationals, from April 15 to 22, 2002, and three weeks’ progression for Philippines nationals, from August 22 to September 15, 2005.
• EB-3 (other workers): The oversubscription date for nationals of Mexico and the Philippines advanced two months, from September 8 to November 8, 2003.

Photo credit: David Pedre Loureiro

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A recent report by Reuters highlights the possible correlation between the demand for pilfered identities and employers’ increased efforts to verify employees’ immigration status, e.g., by using E-Verify. Starting in 2009, federal immigration enforcement efforts have targeted employers rather than workers, and many businesses have been intensifying their efforts to ensure the legality of their workforce. The E-Verify program identifies mismatched names and Social Security numbers but is not designed to flag stolen identities. Accordingly, some undocumented workers have moved away from using their real name and an illegitimate Social Security number and, instead, are purchasing and using stolen names and their accompanying Social Security numbers.

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Georgia Governor Nathan Deal has signed into law House Bill 87 (pdf), a sweeping, Arizona-style immigration enforcement bill that, among other provisions, requires employers to use E-Verify, the federal electronic employment authorization program. Provisions of the “Illegal Immigration Reform and Enforcement Act of 2011” affecting private employers amend the Georgia Code as follows:

• Private employers must register with and use E-Verify to confirm new hires’ legal work status under the following deadlines:
  • Employers with 500 or more employees must comply by January 1, 2012.
  • Employers with more than 100 but less than 500 employees must comply by July 1, 2012.
  • Employers with more than 10 but less than 100 employees must comply by July 1, 2013.
• Business licenses, occupational tax certifications, and other documents required to operate a business will not be issued until the employer submits an affidavit attesting that it utilizes E-Verify or is exempt from the requirement (because it employs fewer than 11 employees or otherwise does not fall within the statute’s requirements). The Georgia Attorney General’s Office will provide a form affidavit for this purpose.

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United States Citizenship and Immigration Services (USCIS) has announced the launch of I-9 Central, a website dedicated to providing resources, tips and guidance on proper completion of Form I-9, which employers must complete for each worker hired after November 6, 1986. Highlights of the site, which is designed for use by both employers and employees, include:

• Overviews of employer and employee rights and responsibilities
• Step-by-step instructions for completing Form I-9
• Information on acceptable identity and employment authorization documents
• A discussion of common mistakes, and guidance on how to correct errors
• Answers to employers’ frequently asked questions about the Form I-9 process

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On April 19, President Obama assembled a bipartisan group of current and former government officials, law enforcement representatives, and business, faith and civic leaders, to gather their input regarding possibilities for immigration reform. A White House press statement about the meeting stated that the President encouraged participants to take a public role and solicit input from their communities about how immigration reform can be achieved.

As reported by CNN, the President remains committed to reform, although he recognizes that progress will not be easy given the politically divided Congress. Even before the Democrats’ losses in the 2010 Congressional election, substantial reform proposals made during President Obama’s term, such as the DREAM Act, have been unsuccessful. USA Today reports that the President favors legislation that would simultaneously increase border security and offer current illegal immigrants a path to citizenship, although some Republican lawmakers contend that this would reward lawbreakers. 

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On April 15, 2011, United States Citizenship and Immigration Services (USCIS) published a final rule (pdf), effective May 16, 2011, governing the types of acceptable identity and employment authorization documents and receipts that an employee may present to an employer when completing Form I-9. The final rule adopts without change an interim rule (pdf) that was published on December 17, 2008, and has been in effect since April 3, 2009.

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The Florida House of Representatives’ Economic Affairs Committee recently approved a bill, HB 7089, that would require all employers in the state to use E-Verify to authenticate newly hired employees’ legal work status. The bill does not require employers to verify current employees’ status.

The proposed law would prohibit an employer from “knowingly” employing an unauthorized alien, and violators would be subject to administrative investigation and possibly administrative and civil actions and penalties. Additionally, a business failing to use E-Verify would lose its business license until it registers to use E-Verify and provides the appropriate licensing agency an affidavit demonstrating such registration. Noncompliant government contractors would have their contracts rescinded and become ineligible for future public contracts.

As reported in The News-Press, the bill faces opposition on many fronts, including labor and business groups. Representatives of Florida’s agriculture and tourism industries contest E-Verify’s efficiency and contend that the bill would damage these industries. Additionally, immigrants staged a pray-in during the Economic Affairs Committee hearing. 

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The Social Security Administration (SSA) has announced that after a four year halt, it will resume sending Social Security “no-match” letters to employers. (SSA has continued to send letters to employees’ home addresses if the name and/or social security number on an employer’s W-2 form does not match the information on SSA’s database.) This new round of no-match letters, formally referred to as “Decentralized Correspondence” (DECOR), informs employers that the information on an employee’s 2010 W-2 wage and tax statement does not match the name and/or Social Security number on file with the SSA, or lacks a SSN entirely. To learn more about this development and its implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update.

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By Neil M. Alexander and Michael J. Lehet

In our July 2010 ASAP Update, Littler discussed the federal district court decision temporarily enjoining enforcement of certain provisions of Arizona's controversial "Support Our Law Enforcement and Safe Neighborhoods Act" ("SB 1070"). On April 11, 2011, the Ninth Circuit Court of Appeals issued an opinion affirming the district court ruling.

Like the district court decision, the Ninth Circuit opinion does not impact those provisions of SB 1070 that amend the Legal Arizona Workers Act (LAWA). Consequently, LAWA will continue to provide an entrapment defense to employers charged with knowingly or intentionally hiring undocumented workers. LAWA will also continue to require that employers keep a record of each E-Verify verification. Furthermore, the Ninth Circuit opinion does not affect the language of SB 1070 making it a Class 1 Misdemeanor for occupants of a motor vehicle stopped on a street, roadway, or highway, to hire and pick up, or attempt to hire and pick up, passengers for work at a different location, if the motor vehicle blocks or impedes the normal movement of traffic.

The opinion is the second Ninth Circuit decision to weigh in on Arizona's recent immigration debate. As explained in our September 2008 ASAP, Ninth Circuit Court of Appeals Upholds Legal Arizona Workers Act, the court previously sided with the district court and ruled that LAWA was constitutional. That decision is currently on review before the U.S. Supreme Court. A ruling from the high court is expected within the next several months.

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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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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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The U.S. District Court for the Western District of New York has determined that the Fair Labor Standards Act requires employers to reimburse foreign H-2B visa workers for certain expenses paid by the workers if, after subtracting the costs from the workers’ wages, the workers’ effective net salary would fall below minimum wage. To learn more about the decision and its implications for employers, please continue reading at Littler's Wage and Hour Counsel blog.

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United States Citizenship and Immigration Services (USCIS) announced that it has begun issuing employment and travel authorization on a single card for certain applicants filing a Form I-485, Application to Register Permanent Residence or Adjust Status. This new card replaces the paper Advance Parole documents formerly issued to such applicants and offers increased security and durability. The card serves to verify a cardholder’s legal work status in the United States; specifically, employers may use the card as a List A document when completing a Form I-9. Additionally, cardholders can travel abroad and return to the United States without abandoning their pending adjustment application. Cardholders must present the card to request parole through the U.S. port of entry, at which point immigration officials will determine whether to grant parole (i.e., individuals who were unlawfully present in the United States may be denied re-admission).

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As discussed here previously, legislators in many states have been introducing legislation mimicking Arizona’s controversial immigration legislation, SB 1070. In the past week, such legislation has progressed, albeit slightly, in South Carolina, but has been taken off the table in Colorado.

In South Carolina, The Sun News reported that S. 20, an Arizona-style immigration bill introduced by Senator Lawrence Grooms, was moving forward. However, after clearing the State Senate Judiciary Committee, the bill failed to garner sufficient votes to set it for Special Order, i.e., moving the bill to the top of the calendar. Accordingly, it is presently unknown when the bill will be voted on by the entire State Senate.

In Colorado, the sponsor of House Bill 1107, Rep. Randy Baumgardner, abandoned his attempt to institute an Arizona-like law, believing that legal challenges would burden taxpayers, reports Fox News Latino. On February 14, the House Committee on Agriculture, Livestock, & Natural Resources indefinitely postponed the bill. As we previously noted, a group of Republican Colorado lawmakers recently traveled to Arizona to learn more about its approach to immigration legislation.

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On February 14, Senator Orrin Hatch (R-UT) re-introduced the “Strengthening Our Commitment to Legal Immigration and America’s Security Act” (S. 332). Senator Hatch first introduced this bill on September 29, 2010, but it died in committee. The current bill has been referred to the Senate Judiciary Committee. As outlined in our report of the bill’s initial introduction, Senator Hatch’s bill includes a long list of immigration enforcement provisions, such as requiring the IRS to notify Social Security number holders if the agency suspects fraudulent use of their number for employment verification purposes.

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On February 10, the House Judiciary Committee’s Subcommittee on Immigration Policy and Enforcement held a hearing, “E-Verify – Preserving Jobs for American Workers,” in which it considered whether to make E-Verify mandatory for all employers. House Judiciary Committee Chairman Lamar Smith (R–TX ) favors the idea, as does the Subcommittee’s Chairman, Representative Elton Gallegly (R–CA). In introducing his reasons for supporting the expansion of E-Verify electronic employment verification program, Representative Smith stated: “With unemployment over 9% now for 21 months, jobs are scarce and families are worried. According to the Pew Hispanic Center, seven million people are working in the U.S. illegally. These jobs should go to legal workers.”

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The Department of Homeland Security (DHS) has announced that, on March 18, 2011, it will launch the E-Verify Self Check Program, a secure web portal that allows an individual to verify his or her work authorization status. Previously, only employers could conduct E-Verify checks, and, in the event of a possible mismatch, the prospective employee needed to resolve the matter, thereby delaying his or her possible hire and/or start date. The Self Check Program will allow individuals to correct any identity information errors that the E-Verify system might contain, thereby “provid[ing] a vehicle for an individual to proactively check work authorization status prior to the employer conducting the E-Verify inquiry.”

The Self Check program is a two-stage process: Stage 1 requires users to verify their identities; Stage 2 examines whether the individual is legally authorized to work in the United States.
 

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USCIS has announced that it is beta testing a web-based tool – Validation Instrument for Business Enterprises (VIBE) – designed to enhance the agency’s adjudications of certain employment-based immigration petitions by using commercially available data to validate basic information about companies or organizations petitioning to employ a foreign worker.

VIBE will relieve some burdens associated with USCIS’s paper-intensive petition review process by allowing its service centers to electronically receive information about a petitioning entity (e.g., current physical address, ownership, and legal status) from an independent information provider (IIP).

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On January 27, the Mississippi House of Representatives approved an immigration enforcement bill providing for fines of up to $25,000 per day against employers that hire unauthorized workers. As reported by the Clarion Ledger, the House amendments to Senate Bill 2179 are a significant departure from the original provisions, paving the way for a contentious reconciliation process. Before the bill can become law, it needs to be approved by the Senate, then signed by the Governor.

Originally, S.B. 2179 provided that a Mississippi resident could sue public officials or agencies that adopt or implement policies limiting or restricting the enforcement of federal immigration laws. Courts could impose civil penalties of between $500 to $5,000 for each day the policy remained in effect after a suit was filed.

The House amendments not only bring in employers as the enforcement target, but also dramatically increase the penalties. The amendments provide that a person may sue an employer “to challenge the hiring practices of the employer as being in violation of . . . the enforcement of state or federal immigration laws.” Moreover, courts could impose penalties of between $5,000 and $25,000 for each day the employer committed a violation. 

Photo credit: MBPhoto, Inc.

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Less than one month into the new session, the 112th Congress continues to introduce labor and employment-related bills at a rapid pace, including proposals relating to immigration. Representative Jeff Flake (R-AZ) re-introduced the Stopping Trained in America Ph.D.s From Leaving the Economy (STAPLE) Act of 2011 (H.R. 399), a bill that would exempt from visa quotas foreign students who have earned a Ph.D. degree in science, technology, engineering, or mathematics from a U.S. university and have a job offer in the United States. Senator Harry Reid (D-NV) introduced the Reform America's Broken Immigration System Act (S. 6), which calls for no specific reforms, but rather declares certain immigration-related goals. To learn more about the bills and their potential implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update blog.

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United States Citizenship and Immigration Services (USCIS) has announced that the cap for H-1B petitions (65,000) has been met for FY 2011. Accordingly, USCIS will not consider petitions received after January 26, 2011. However, the agency will continue to accept and process petitions filed to:

• extend the amount of time a current H-1B worker may remain in the United States;
• change the terms of employment for current H-1B workers;
• allow current H-1B workers to change employers; and
• allow current H-1B workers to work concurrently in a second H-1B position.

As previously noted, the 20,000 petition cap for H-1B Master’s Exemption visas was reached on January 7.

USCIS will continue to receive and process petitions that are otherwise exempt from the caps.

April 1, 2011 is the first day that petitions may be received for FY 2012 with an October 1, 2011 start date.

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United States Citizenship and Immigration Services (USCIS) has released updated H-1B visa numbers for Financial Year 2011. As of January 7, 2011:

• the 20,000-petition cap for H-1B Master’s Exemption visas has been met; and
• 58,700 H-1B regular cap petitions have been filed, 6,300 petitions shy of the cap amount.

Although the H-1B Master’s Exemption visa cap has been met, USCIS will continue to accept these petitions and count them against the regular cap until said cap is reached.

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On January 5, four Republican Congressmen, along with 26 co-sponsors, introduced H.R. 140, the Birthright Citizenship Act of 2011. This bill would amend the Immigration and Nationality Act’s birthright citizenship requirements (8 U.S.C. § 1401) so that individuals born in the United States will be granted citizenship only if at least one parent is:

• a U.S. citizen or national;
• a lawful U.S. permanent resident; or
• an alien performing active service in the armed forces.

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On January 2, 2011, President Obama signed H.R. 847, known as the James Zadroga 9/11 Health and Compensation Act of 2010, which provides medical monitoring and treatment for 9/11 first responders. The law will be financed in part by extending the period during which increased application fees for L and H-1B visas will be collected from certain employers. As discussed previously, application fees increased for certain employers by $2,250 (L visas) and $2,000 (H-1B visas) to fund a border protection bill enacted in August 2010. This increase, which was to expire on September 30, 2014, now expires on September 30, 2015.

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United States Citizenship and Immigration Services (USCIS) announced that employers submitting petitions for visas will not be required, until February 20, 2011, to complete Part 6 of Form I-129 (Petition for a Nonimmigrant Worker). The updated Form I-129 replaced the previous version on December 23, 2010. According to Fox News, the delay in requiring employers to complete Part 6 was caused by confusion over recently implemented USCIS regulations that impose increased obligations under two older laws: The Export Administration Regulations (EAR) (15 C.F.R. Parts 770-774) and the International Traffic in Arms Regulations (ITAR) (22 C.F.R. Parts 120-130).

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Florida recently became the 14th state to require government employers and contractors to use E-Verify to confirm employees’ legal work status. On his first day in office, January 4, 2011, Governor Rick Scott signed Executive Order Number 11-02, which took effect immediately and requires:

• all state agencies under the direction of the governor to verify employment eligibility of all current and prospective employees through E-Verify; and
• that such agencies’ contracts contain an express requirement that contractors use E-Verify to confirm the legal work status of: (1) their employees on public works projects in Florida; and (2) all persons, including subcontractors, assigned by the contractor to work on those projects.

Additionally, the order states that agencies not under the direction of the governor are “encouraged” to use E-Verify to verify current and prospective employees’ legal work status, and to require the same of those agencies’ contractors and subcontractors.

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Despite no significant legislative advances concerning immigration during his first two years in office, and an upcoming legislative session with a Republican majority in the House and increased Republican presence in the Senate, President Obama told the Congressional Hispanic Caucus that he will continue to push for comprehensive immigration reform in 2011, reports Politico. Though the gesture was welcomed by caucus members, it remains uncertain whether Obama will find similar support in his own party given that many new, incoming legislators are veering to the right politically and pushing for more typically conservative initiatives like increased border control and enforcement. The President’s pledge came shortly after the Development, Relief and Education for Alien Minors Act (DREAM Act), which would have provided six years of conditional permanent residency to certain undocumented minors who have completed high school and then join the military or attend college for at least two years, failed to garner sufficient Senate votes to overcome a Republican filibuster.

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United States Citizenship and Immigration Services has released updated H-1B visa numbers for Financial Year (FY) 2011: 53,900 H-1B regular cap petitions and 19,700 H-1B Master’s Exemption petitions were filed as of December 17, 2010. Limitations for FY 2011 are 65,000 H-1B regular cap visas and 20,000 H-1B Master’s Exemption visas. In the past three months, 15,600 regular cap and 5,700 Master’s Exemptions petitions were filed.

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On December 18, 2010, a cloture motion fell five votes short of the 60 required to break a Republican filibuster of the Development, Relief and Education for Alien Minors Act (DREAM Act). On December 8, the House of Representatives had voted 216 to 198 in favor of the measure, but the Senate vote (55 to 41) effectively killed the measure for this legislative session.

The DREAM Act’s future remains uncertain because Republicans, who mostly oppose the measure, will have a majority in the House of Representatives and a stronger presence in the Senate in the forthcoming 112th Congress. Some supporters of the DREAM Act, however, were encouraged by the measure receiving majority backing in the Senate, including three yea votes from Republicans [Bennett (UT); Lugar (IN); Murkowski (AK)]. The New York Times reports that Democrats hope to revisit the measure next session, believing bipartisan cooperation on the issue is possible. 

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With uncertainty surrounding immigration reform at the federal level, a growing number of immigration reform proposals are being made at the state level, many of which borrow measures from Arizona’s controversial SB 1070. Examples of recent immigration enforcement proposals include:

• A group of Republican lawmakers in Colorado, some of whom traveled to Arizona to learn more about its approach to immigration legislation, are discussing what should be included in immigration-related bills to be introduced in early 2011. One bill is expected to require Colorado employers to use E-Verify.
• In Florida, a senator has introduced a bill that would allow law enforcement officers—during a lawful detention or arrest—to ask for immigration documents if the officer suspects the detainee may be in the country illegally. The bill prohibits officers from using race as a reason for checking the detainee’s documentation.
• In Nevada, an assembly member has asked the state’s Legislative Counsel Bureau to draft a bill based on Arizona’s SB 1070; another assembly member has requested a bill requiring state employers to use E-Verify.
• Two senators in South Dakota are drafting a bill that would prohibit providing transportation or lodging to an individual known to be in the United States illegally. The bill also would prohibit illegal immigrants from asking for employment.
• In California, proponents of an SB 1070-style initiative have started collecting signatures in an effort to put the initiative on the February or June 2012 ballot.

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The UK Government has announced the figures for the permanent cap on non-European Union migration to the United Kingdom. In its bid to reduce net migration to the tens of thousands by 2015, the Home Secretary Theresa May announced a figure of 21,700 as the yearly limit on migrants entering the UK from outside the EU. However, this cap excludes the categories for "Tier 2" intra-company transfers. To learn more about the cap and its implications for employers, please continue reading at our collaborative blog, Global Employment Law.

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The Fresno Bee reports that some employers, particularly within the agriculture industry, will not use E-Verify, the federal electronic employment verification system, to authenticate new hires’ legal work status. Relying on figures provided by the federal government, the paper states that “[o]ut of thousands of businesses in Fresno, for example, only 179 use the program… although those numbers don't account for businesses that contract with personnel companies using the program.” Businesses cite two main reasons for their non-participation in E-Verify: (1) administrative burden; and (2) a shortage of available legal workers.

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President Obama, along with Senator Robert Menendez (D–NJ) and Representatives Luis Gutierrez (D–IL) and Nydia Velazquez (D–NY), is pushing for a vote this year on the Development, Relief and Education for Alien Minors Act (DREAM Act), The Wall Street Journal reports. The president has agreed to make calls to Republican lawmakers seeking support for the legislation.

Given the administration’s past lack of success in advancing immigration legislation, coupled with strong opposition from Republicans (some of whom oppose the path to citizenship the Act creates), many doubt whether this effort will gather enough votes to advance the bill. Supporters, however, believe that passage of the Act, compared to comprehensive reform, may be possible.

The DREAM Act (S. 729), which Senator Dick Durbin (D–IL) introduced in March 2009, has remained idle in the Senate Judiciary Committee. Prior Senate votes on bills onto which legislators hoped to attach the DREAM Act have failed. As previously reported here, Senate Majority Leader Harry Reid unsuccessfully attempted to attach the Act to a defense spending bill on September 21, 2010. One week later, Senators Menendez and Leahy (D–VT) incorporated the Act into their comprehensive immigration reform bill (S. 3932), which, like the DREAM Act, remains in committee.

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United States Citizenship and Immigration Services (USCIS) has announced that two decisions from its Administrative Appeals Office (AAO) will be binding precedent for the agency, i.e., USCIS must follow the decisions’ holdings when evaluating future petitions. AAO precedent decisions result from a collaboration between the Department of Homeland Security and the Department of Justice. The two decisions are not new, having been decided in 2005 and 2006, but it was not until October 20, 2010, that both were deemed binding.

The first decision, Matter of Al Wazzan (pdf), affirms USCIS’s denial of an application to adjust status to permanent residence and holds that an employment-based petition must be "valid" initially if it is to "remain valid with respect to a new job."

The second decision, Matter of Chawathe (pdf), reverses USCIS’s denial of an application to preserve residence for naturalization purposes and clarifies the definition of employment by an "American firm or corporation."

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On September 29, 2010, Senator Orrin Hatch (R–UT) introduced the “Strengthening Our Commitment to Legal Immigration and America’s Security Act” (S.3901) (pdf). The bill is the third notable piece of immigration legislation introduced last week, together with the comprehensive immigration reform bill introduced by Senators Menendez and Leahy, and Senator Chambliss’ HARVEST Act (relating to agricultural workers). Senator Hatch’s bill addresses numerous immigration enforcement topics, and notable provisions include:

• Illegal aliens could only be paroled or granted deferred action on a case-by-case basis (for urgent humanitarian reasons or significant public benefit). Mass paroles and deferrals would be prohibited.
• Any state, county, city, or township that is eligible to participate in the Secure Communities program or to cross-designate local law enforcement officers to perform immigration law enforcement functions under section 287(g) (pdf) and does not participate in such programs may not receive compensation for incarceration expenses of illegal aliens.
• Individuals known or reasonably believed to be members of a known criminal organization regularly engaged in transnational criminal activity would be ineligible for visas.
• Elimination of the Diversity Visa Program, unless Congress signs off on changes designed to combat fraud and eliminate abuse in the program.
• Annual reporting by the Secretary of Health and Human Services on welfare benefits provided to states, and the portion thereof provided to illegal immigrants.
• Limiting states’ expansion of the Children’s Health Insurance Program (CHIP) coverage to noncitizen children or noncitizen pregnant women.
• Requiring the IRS to notify Social Security number holders if the agency suspects fraudulent use of their number for employment verification purposes.

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Senator Saxby Chambliss (R–GA) has introduced S. 3912, “The Helping Agriculture Receive Verifiable Employees Securely & Temporarily Act of 2010” (“HARVEST Act”). The HARVEST Act aims to provide a non-amnesty option for temporary agricultural workers, streamline the H-2A temporary worker program, and discourage the hiring of undocumented workers. Additionally, according to Senator Chambliss, the bill would:

• provide a mechanism for addressing the presence of undocumented workers on farms without providing a new path to citizenship;
• ensure that U.S. nationals’ jobs are protected; 
• require the U.S. Department of Labor to increase random audits and investigations of H-2A employers;
• limit the duration of a foreign worker’s continuous stay in the United States without returning to his or her home country;
• require H-2A employers to verify hired agricultural workers’ eligibility; and
• ensure that the H-2A program works for agricultural employers with year-round operations.

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On September 29, 2010, Senators Robert Menendez (D–NJ) and Patrick Leahy (D–VT) introduced “The Comprehensive Immigration Reform Act of 2010” (S. 3932). According to Senator Menendez, the bill “addresses long-standing, wide-ranging flaws in the immigration system that have been priorities of groups on each side of the immigration reform debate.” The bill was introduced shortly before Congress adjourned for its mid-term election recess. As reported by The Hill, Senator Menendez defended his timing for introducing the bill by stating that it could lead to possible “lame-duck movement” on the legislation, and in the longer term it serves as an "invitation to bring Republican colleagues to discussion" on immigration reform.

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On September 21, 2010, a cloture motion on the National Defense Authorization Act for Fiscal Year 2011 (S. 3454) fell four votes shy of the 60 required to advance the measure in the Senate. Senate Majority Leader Harry Reid (D–NV) intended to include the Development, Relief and Education for Alien Minors Act (DREAM Act) (S. 729) as an amendment to the bill. Also included in the defense bill was a provision to repeal the U.S. military’s “don’t ask, don’t tell” policy.

The DREAM Act is supported by President Obama, various business groups and the AFL-CIO. The Act would provide six years of conditional permanent residency to certain undocumented minors who have completed high school and go on to join the military or attend college for at least two years.

All Republican senators—save for Lisa Murkowski (R-AK), who did not vote—voted against the motion. Two Democrats, Senators Blanche Lincoln (D-NE) and Mark Pryor (D-NV), also cast votes against the motion. As a procedural safeguard, Senator Reid cast a “no” vote in order to retain the right to bring the motion up for vote again.

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The State Department has announced that from October 5, 2010, to November 3, 2010, individuals may register for the 2012 diversity visa lottery.

For 2012, 50,000 diversity visas will issued. To be eligible, applicants must possess:

• a high school education or its equivalent; or
• two years of work experience, in a profession requiring at least two years’ training or experience, during the past five years.

The lottery procedure randomly selects qualified applicants from six geographic regions with low rates of migration to the United States. Within each region, no country may receive more than 7% of the available diversity visas in any one year. No visas are awarded to nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years. Selectees will be notified of their selection through the Entry Status Check, available starting May 1, 2011, via the program’s website, www.dvlottery.state.gov.

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United States Citizenship and Immigration Services has released updated H-1B visa numbers for Financial Year (FY) 2011: 38,300 H-1B regular cap petitions and 14,000 H-1B Master’s Exemption petitions were filed as of September 17, 2010. Limitations for FY 2011 are 65,000 H-1B regular cap visas and 20,000 H-1B Master’s Exemption visas. Filing numbers were strong initially, with 19,000 petitions filed in the first week, but slowed afterwards, as we noted in April and June.

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The Houston Chronicle is questioning the efficacy of immigration-related employer audits after obtaining documents concerning 430 “closed” audits conducted by U.S. Immigration and Customs Enforcement (ICE). Although the records revealed potentially egregious violations (e.g., 93% of one audited company’s workforce had “suspect” documents on file), the Chronicle contends that insufficient action was taken in these instances. Instead of levying fines against companies, initiating deportation proceedings against undocumented workers, or criminally charging noncompliant employers, the Chronicle alleges that ICE’s enforcement actions (in most cases, ordering the employer to dismiss the workers with suspect documents) were inadequate.

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The U.S. Mission in Canada has announced that, as of September 1, 2010, individuals who need a visa in order to travel from Canada to the United States will receive appointment services, including information and scheduling-related calls, at no cost. Additionally, visa applicants are directed to Consular Services Canada’s Visa Information Services to obtain information on starting an application for a U.S. visa. Under the new scheme, applicants must pay their application fee prior to scheduling an appointment. For those who previously paid the fee, but had not scheduled an appointment, there will be a grace period, until October 1, 2010, in which to schedule an appointment and apply that fee. Those failing to do so prior to October 1 will be required to pay the fee again to secure an appointment.

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Politico reports that candidates in 20 (out of 37) of this year’s gubernatorial races favor tough anti-immigration measures, be they a Democrat, Republican, or third-party candidate. Not all initially campaigned in support; however, conversion is unsurprising given candidates’ desire to secure the confidence, and votes, of an electorate that, recent polling data suggests, increasingly favors tougher immigration laws.

Jobs remain scarce, benefits are decreasing, and supporters of strict immigration laws believe such measures will improve the outlook for both. Moreover, many voters are dismayed by the stalled federal immigration reform and, accordingly, are pressing state officials to take up the legislative mantle. Politico anticipates that, if these candidates prevail, there will be a surge of legislation mandating that employers use E-Verify to authenticate workers’ legal status, as well as of legislation concerning immigration status in relation to drivers’ licenses, public assistance, and education.

Image credit: 3dbrained

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The Department of Homeland Security’s (DHS) Office of Immigration Statistics has released the 2009 Yearbook of Immigration Statistics (pdf). The Yearbook provides statistical data on U.S. immigration, specifically:

• Nonimmigrant Admissions: The number of foreign nationals admitted to the United States on a temporary basis, e.g., as tourists, students, business visitors, or temporary workers. Notably, the number of admissions based on H-1B status (temporary workers in specialty occupations) has decreased from a peak of 461,730 in 2007, down to 409,619 in 2008 and 339,243 in 2009.
• Legal Permanent Residents: The number of foreign nationals who became legal permanent residents.
• Refugees and Asylees: The number of asylum or refugee status applicants.
• Naturalization: How many foreign nationals became naturalized U.S. citizens.
• Enforcement Actions: What enforcement actions were taken by DHS, including apprehension of illegal aliens, removals and prosecutions.

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Senator Jeff Merkley (D–OR), who has been working with Sen. Charles Schumer (D-NY) on a comprehensive immigration bill, does not expect action on immigration reform this year, according to The Hill. The senator’s statement exemplifies the on-again, off-again relationship that legislators have with immigration reform. Below is a brief recap of comprehensive immigration reform developments so far in 2010:

• February: Although immigration reform was a staple of President Obama’s campaign and early-term rhetoric, his State of the Union Address contained only one sentence on the topic.
• March: Senators Schumer and Lindsey Graham (R–SC) unveiled their “blueprint” for comprehensive reform.
• April: Senate Majority Leader Harry Reid (D–NV) predicted that the issue would not be addressed until after Memorial Day.
• June: President Obama urged Republicans to work with Democrats to pass a bill.
• July: In a keynote speech at American University’s School of International Service, President Obama pressed for immigration reform.
• August: A spokesperson for Senator Dick Durbin (D–IL), who introduced the Development, Relief and Education for Alien Minors Act (the "DREAM Act") (pdf), legislation to help students who immigrated to the U.S. as children obtain citizenship, reportedly said that comprehensive immigration reform is still possible in 2010.

Meanwhile, some state and local governments have attempted to fill the void they believe is created by federal inactivity on immigration reform, with Arizona attracting the most attention.

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Beginning September 8, 2010, international travelers to the United States from Visa Waiver Program (VWP) nations will be required to pay a $14 Electronic System for Travel Authorization (ESTA) fee. The fee, a result of the Travel Promotion Act of 2009 (pdf), will be matched by private sector contributions, and will fund the Corporation for Travel Promotion, a newly created independent non-profit corporation that will develop advertising campaigns to encourage tourism to the United States.

ESTA, operated by U.S. Customs & Border Protection (a Department of Homeland Security agency), is an automated system used to determine the eligibility of visitors to travel to the United States under the VWP and whether such travel poses any law enforcement or security risk.

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U.S. Citizenship and Immigration Services (USCIS) announced that, as of August 13, 2010, H-1B and L-1 visa application fees increased by $2,000 and $2,250, respectively, for certain businesses. The fee increases, as previously discussed, are mandated by the recently enacted border security law (Public Law No. 111-230) (pdf). Accordingly, petitioning businesses with 50 or more employees in the United States and with 50% or more of its employees in the United States on H-1B or L visas must submit the additional fees:

• initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15); or
• to obtain authorization for an alien having such status to change employers.

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Two years after introducing an interim final rule concerning trainees and interns in Exchange Visitor Programs (EVPs), the U.S. State Department published a final rule in the Federal Register. The final rule essentially confirms its interim predecessor which, among other things:

• eliminated the distinction between “non-specialty occupations” and “specialty occupations;”
• established a new internship program; and
• modified the selection criteria for participation in a training program.

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The State Department has released the September 2010 Visa Bulletin, which summarizes visa availability. 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 two months from March 1, 2006, to May 8, 2006.
• EB-3 (skilled workers and professionals): The oversubscription date for nationals of the Dominican Republic and the Philippines advanced six months, from June 1, 2004, to December 15, 2004. A one-month advance occurred for Chinese nationals, from September 22 to October 22, 2003, but there was no movement concerning the date for Indian nationals, which remains at January 1, 2002.
• EB-3 (other workers): The oversubscription date for nationals of China, the Dominican Republic and the Philippines advanced 10 months, from May 15, 2002, to March 22, 2003.

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Computerworld reports that the United States government is reviewing whether the recently-enacted border security law, funded through increased H-1B and L-1 visa application fees for certain foreign-owned companies, runs afoul of World Trade Organization rules, as the law’s opponents and India’s Commerce Secretary contend. However, the issue was only briefly addressed in a recent U.S. Department of State press briefing during which a spokesperson confirmed that discussions about the law were being held between U.S. and Indian officials. Some suggest that the law could increase Indian companies’ U.S. operating costs by $250 million per year.

In a separate article, Computerworld reports that the law has caused rare consensus among H-1B visa advocates and opponents. Individuals on both sides contend that the bill will not create IT jobs for Americans. They suggest that targeted companies—foreign entities operating in the U.S. whose workforce is 50% or more foreign—can easily shift operations to Canada or Latin America. Finally, there are concerns that the fees’ generated revenue is misdirected, and that the funds should be used to spur innovation in the U.S. technology industry rather than to increase law enforcement operations at the United States’ southwestern border.

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Proposed legislation in Pennsylvania and New Jersey would impose stricter work authorization verification requirements on employers.

Pennsylvania

House Bill 1502 would require all contractors and subcontractors on public works projects to verify the employment eligibility of new employees through E-Verify, the federal electronic employment verification system, and to verify existing employees’ Social Security numbers. In June 2010, this bill was referred to the House State Government Committee.

House Bill 1503 would require all construction industry employers to verify the employment eligibility of new employees through E-Verify and to verify existing employees’ Social Security numbers. This bill was passed by the House in June 2010 and is currently in the Senate Labor and Industry Committee.

Employers that in good faith rely on federal programs (E-Verify and the Social Security Number Verification Service) to verify new employees’ legal work status and existing employees’ Social Security numbers will be immune from sanctions. However, employers face debarment from public work contracts (HB 1502) or license forfeiture (HB 1503) for noncompliance. Additionally, employers could face civil liability for retaliating against employees who complain about alleged violations or participate in investigations, hearing or inquiries concerning alleged violations.

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During a special session held this morning, the Senate passed a $600 million spending bill (pdf) that will increase law enforcement presence at the United States’ southwestern border with Mexico and will finance additional aerial drones and construction of two operating bases. The Senate passed an identical bill (S. 3721) on August 5 before adjourning for recess, but for technical reasons the Senate needed to approve the version of the bill approved by the House of Representatives on August 10 before sending it to President Obama for signature.

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On July 28, 2010, the U.S. District Court for the District of Arizona issued a highly anticipated order in United States v. State of Arizona, a recent federal lawsuit challenging the constitutionality of the Arizona “Support of Law Enforcement and Safe Neighborhoods Act” (“SB 1070”). The order temporarily enjoins enforcement of certain provisions of SB 1070 pending the court’s final ruling in the matter. To learn more, please continue reading Littler's ASAP, What Arizona's Controversial Immigration Law Means for Employers, by Neil M. Alexander and Michael J. Lehet.

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Since October 2009, U.S. Immigration and Customs Enforcement (ICE) has levied over $600,000 in fines against Texas businesses for immigration-related violations ranging from incomplete I-9 records to employment of illegal immigrants, reports the Houston Chronicle. The largest fine ($360,000) imposed on a single business stemmed from an investigation commenced by the Bush administration in 2008. The newspaper’s review of federal records revealed a focus on fining employers rather than arresting undocumented workers, reflecting the Obama administration’s new immigration enforcement strategy that focuses on employer culpability through audits.

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Employers using E-Verify to authenticate employees’ work authorization status are subject to the Three-Day Rule, which requires an employer to create an E-Verify case no later than three business days after an employee first works for pay (commonly referred to as the Hire Date). Confusion sometimes arises, however, because the Hire Date differs depending on whether the E-Verify case is created before or after the first day an employee works for pay. To clarify the matter, United States Citizenship and Immigration Services (USCIS) created a webpage explaining how to determine the Hire Date, and how to calculate the compliance deadline.

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As of July 19, 2010, rules for the United Kingdom’s Points Based System have changed (pdf), permitting the Secretary of State to limit the number of Certificates of Sponsorship (CoS) assigned to sponsors, and to limit the number of CoS assigned to specific sponsors in any one period. The UK Border Agency (UKBA) released updated guidance on Tier 2 (General) sponsorship (pdf), which outlines the changes. UKBA will send each sponsor a letter detailing their individual CoS allocation for the interim period, which runs from July 19, 2010, to March 31, 2011.

Some sponsors will be given a “zero allocation” for the period, limiting their sponsorship to existing employed migrants, and preventing sponsorship of new employees unless the sponsor applies for “exceptional consideration,” which might result in additional CoS being issued. Moreover, sponsors that are downgraded to a B-rating will automatically have their allocation set to zero “until they demonstrate their commitment to make improvements by signing up to (and paying fees associated with) a sponsorship action plan.” 

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The State Department has released the August 2010 Visa Bulletin, which summarizes visa availability. 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 changed from October 1, 2005, and November 22, 2005, respectively, to March 1, 2006. As previously discussed, considerable movement concerning the oversubscription date for Indian nationals was reported in the July 2010 Visa Bulletin.
• EB-3 (skilled workers and professionals): The oversubscription date for nationals of the Dominican Republic moved from August 15, 2003, to June 1, 2004. For Indian nationals, the date edged forward slightly from November 22, 2001, to January 1, 2002.
• EB-3 (other workers): The previous oversubscription date of June 1, 2001 progressed to January 1, 2002 for Indian nationals, and to May 15, 2002 for nationals of China, Mexico, and the Philippines.

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According to the Salt Lake Tribune, since the July 1, 2010, effective date of a Utah law requiring businesses with 15 or more employees to verify new hires’ work status through E-Verify, less than one-third have done so. The figure did not surprise Utah Governor Gary Herbert, who stated that even the law’s sponsor did not expect universal compliance. Some suggest that employers either do not know about the new requirement to use the federal electronic employment verification system, or are not hiring due to poor economic conditions, which could explain the low enrollment numbers.

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Audits, not raids, are the centerpiece of the Obama administration’s immigration enforcement strategy, reports the New York Times. In the past year, Immigration and Customs Enforcement (ICE) audited over 2,900 business to determine whether illegal immigrants were employed, and, in 2010, it imposed $3 million in civil fines. While audits are less visually dramatic than raids, the effects on workers and businesses are not.

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The U.S. State Department announced that the U.S. Embassy in Beijing, and four other consular offices in other Chinese cities, will be open on Saturdays to accommodate Chinese nationals seeking to visit the United States. The extended hours are intended to decrease the wait time for visa appointments. Last year, 487,000 visas were issued to Chinese nationals, two-thirds of which were for business and tourism. For 2010, to date, the number of visa applications received is 28% higher than at this time last year.

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The UK Border Agency announced that, beginning July 19, 2010, it will limit how many applications submitted under Tier 1 (General) of the points-based system will be considered per month. A long-term limit will be imposed in April 2011. Additionally, the score necessary for approval of a Tier 1 (General) work permit will increase from 95 to 100 points.

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The UK Border Agency announced that on July 19, 2010, it will introduce an interim limit on the number of sponsorship certificates employers can issue to migrant workers. An annual limit will be introduced in April 2011.

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The Department of Homeland Security (DHS) will be implementing additional requirements for employers who register for the E-Verify electronic employment verification system, in order to provide additional protection for employees’ personal information. Previously, registering employers provided E-Verify with their business name, business address, mailing address, phone number and other information, which was then compared to information already in E-Verify’s system in order to prevent duplicate registrations. Now, according to the DHS’s June 2010 Privacy Impact Assessment Update (pdf), employers wishing to register for E-Verify will be required to provide the following additional information:

• the employer’s “doing business as” (DBA) name (if applicable);
• the employer’s DUNS number (the Dun and Bradstreet identifier) (if applicable);
• the name of the employer’s administrator; and
• the name of the employer’s parent organization (if applicable).

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The State Department has released the July 2010 Visa Bulletin, which summarizes visa availability. The most significant employment-based visa development concerns the oversubscription date (i.e., the date on which the availability quota was met) of EB-2 visas – visas for members of the professions holding advanced degrees or for persons of exceptional ability. The EB-2 oversubscription date for Indian nationals moved from February 1, 2005, to October 1, 2005 since the last visa bulletin in June 2010.

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With the July 2, 2010 submission deadline approaching, individuals in Washington are trying to collect 241,153 signatures to place an immigration-related measure on the November ballot, reports the Seattle Times. Employment-related provisions of proposed initiative I-1056 (pdf) include:

• Requiring all employers, after making an offer of employment, to verify the individual’s eligibility to work in the United States, using programs such as E-Verify.
• Making it an unlawful employment practice to terminate a U.S. citizen, or a permanent resident applying for naturalization, when an illegal alien is employed at the same job site or in a similar position at a different site.

Since 2006, similar measures have failed to get certified, and the chances for a 2010 measure are slim, given the campaign’s lack of funds and the absence of major party support for the measure.
 

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Based on recommendations by the World Professional Association for Transgender Health, the U.S. State Department has announced new policy guidelines concerning gender change in passports and consular records of foreign births. As of June 10, 2010, applicants can have their gender, as indicated on a passport, changed by supplying certification from an attending physician that the individual has undergone appropriate clinical treatment for gender transition. Additionally, a limited, two-year passport will be available if the physician’s statement indicates that the applicant is currently in the gender transition process. Finally, gender change in records of foreign births will also be possible.

To view the policy, please click here (pdf).

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Daily News & Analysis reports that, in response to criticism over the government’s recent enforcement of a rarely-used 1955 law requiring nonresident Indians (NRIs) who became United States citizens to obtain surrender certificates and pay up to $425 for an Indian travel visa, India has amended its travel rules for NRIs. As a result:

• NRIs who became U.S. citizens before June 1, 2010 will not need to obtain a surrender certificate, but will be required to pay $20 to have their India passport stamped “cancelled.” NRIs who have lost their India passports will need to provide an affidavit and a copy of their U.S. naturalization certificate.
• NRIs obtaining U.S. citizenship on or after June 1, 2010 will be required to obtain a surrender certificate and pay $175.

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United States Citizenship and Immigration Services (USCIS) has announced the June 13 launch of a newly-designed E-Verify website. Highlights of the redesign include:

• icons accompanying case statuses to make it easier to identify cases requiring attention;
• the ability of businesses to view their Memorandum of Understanding (MOU) electronically; and
• simplified terms to better guide users through the process.

Existing users’ IDs and passwords remain valid, and all open cases will be accessible via the new platform. When users log on to the new E-Verify website, they will be required to take a short tutorial about the changes.

E-Verify is an electronic employment verification system, operated by the U.S. government, allowing employers to verify that individuals are legally permitted to live and work in the United States.

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United States Citizenship and Immigration Services (USCIS) has released updated H-1B visa numbers for Financial Year (FY) 2011: 20,800 H-1B regular cap petitions and 8,700 H-1B Master’s Exemption petitions have been filed as of May 28, 2010. As discussed previously, initial filing numbers were impressive, with 19,000 petitions submitted in the first week. Since then, however, per week filings have decreased in volume.

65,000 H-1B regular cap visas and 20,000 H-1B Master’s Exemption visas are available for FY 2011.

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Although some contend a comprehensive immigration bill is not probable as midterm elections near, President Obama has urged Republican lawmakers to work with Democrats in passing a law that would create an “orderly, fair, humane immigration framework in which people are able to immigrate to this country in a legal fashion,” reports Reuters. President Obama’s request followed his ordering 1,200 National Guard troops to Arizona’s border with Mexico, which he contends will not alone solve the problem.

The troop deployment was met with mixed reviews. Senator John McCain (R-AZ) contends that a deployment of at least 6,000 troops is necessary. Some view the move as an attempt by the president to show Republicans and centrist Democrats that he is serious about immigration, while certain Latino activists contend that it is merely a political gesture and will only negatively impact their community.

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The New York Times reports that the Massachusetts Senate has voted 28 to 10 in favor of an immigration-related amendment (pdf) to the state budget bill that would require state contractors to verify that their workers are legally authorized to live and work in the United States. The proposed law also would penalize contractors violating the law by prohibiting them from doing business with the state. Additionally, the state attorney general’s office would be required to set up a hotline by which people could anonymously report alleged hiring of illegal immigrants, and to investigate such allegations.

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The Washington Post reports that acting Solicitor General Neil Katyal has submitted a brief (pdf) on behalf of the Obama administration urging the U.S. Supreme Court to review and invalidate the Legal Arizona Workers Act (LAWA), a 2008 law that imposes sanctions far greater than those prescribed by federal law on employers that hire illegal immigrants (Note: LAWA is a different law than Arizona’s recently enacted and controversial immigration enforcement law.). The petition (pdf) for Supreme Court review was originally filed by a coalition that includes the U.S. Chamber of Commerce, civil libertarians and Latino groups.

The brief presents the administration’s position that federal law preempts this state law, and argues that upholding the law would:

"disrupt a careful balance that Congress struck nearly 25 years ago between two interests of the highest importance: ensuring that employers do not undermine enforcement of immigration laws by hiring unauthorized workers, while also ensuring that employers not discriminate against racial and ethnic minorities legally in the country."

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United States Citizenship and Immigration Services (USCIS) has unveiled a new, more technologically advanced and secure Permanent Residence Card. The card, commonly known as the “Green Card,” authenticates an individual’s authorization to live and work in the United States on a permanent basis. The intention behind the redesign, which is a collaboration between USCIS and various Department of Homeland Security agencies, is to deter fraud and more quickly authenticate identification. USCIS contends the new card is “nearly impossible to reproduce.”

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Of the 180 businesses that recently received audit notices from U.S. Immigration and Customs Enforcement, 30 are located in Tennessee. Nashville Public Radio reports that these audits are targeting businesses that serve as government contractors, including nuclear facilities, military bases, defense facilities, and companies in the financial sector.

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The Arizona Daily Star reports that several days after S.B. 1070, Arizona’s controversial immigration bill, became law, the legislature passed H.B. 2162, which clarifies when police officers may inquire into an individual’s immigration status. Under H.B. 2162, an inquiry can occur if:

• an officer performs a lawful stop, detention or arrest based on a town, city, county or state law; and
• the officer has reasonable suspicion that a person is an alien and is unlawfully present in the United States.

The language in H.B. 2162 does not amend S.B. 1070; however, when S.B. 1070 takes effect, the revised language in H.B. 2162 will take precedence because it was adopted more recently.

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With many in the nation watching, Arizona Governor Jan Brewer signed the "Support Our Law Enforcement and Safe Neighborhoods Act" ("SB 1070") into law. The legislation represents Arizona's latest effort to combat illegal immigration and is now the centerpiece of a national political firestorm, including criticism from President Obama and numerous public interest groups. In addition, SB 1070 already is the subject of two federal lawsuits challenging its constitutionality. Lost among this debate, however, are those provisions of the law directed toward Arizona employers. To learn more about the law and its implications for employers, please continue reading Littler's ASAP What Arizona's Controversial Immigration Law Means for Employers by Neil M. Alexander and Michael J. Lehet.

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A 26-page outline of a new proposed immigration overhaul bill would require all employers to use a newly-created Biometric Enrollment, Locally-stored Information, and Electronic Verification of Employment (BELIEVE) System as a means of verifying employee work authorization. Within 18 months of the proposed bill’s enactment, the Social Security Administration would be required to issue biometric social security cards, which within five years would serve as the only acceptable document employers could use for employment verification purposes. The proposal also calls for a 300 percent increase in monetary fines against employers that knowingly hire illegal workers, and enhanced civil and criminal penalties against employers that engage in egregious labor violations involving unauthorized workers. To learn more about the proposal and the potential implications for employers, please continue reading at Littler's D.C. Employment Law Update blog.

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U.S. Citizenship and Immigration Services announced that, as of April 22, 2010, it has received 16,025 H-1B Regular Cap and 6,739 H-1B Master’s Exemption petitions for Fiscal Year 2011 (October 1, 2010 to September 30, 2011). Petition filing slowed after an active first week in which over 19,000 petitions were submitted. In weeks two and three, combined, only 2,525 Regular Cap and 1,139 Master’s Exemption petitions were filed.

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Arizona Governor Jan Brewer has signed into law an immigration enforcement bill generally acknowledged to be the “broadest and strictest immigration measure in generations.” The bill has attracted national attention, even drawing strong criticism from President Obama who, according to The Daily Telegraph, has instructed the U.S. Department of Justice to examine the measure’s legality.

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The Hill reports that, although Senator Harry Reid (D-Nev.) has been focusing on immigration reform on the campaign trail during the past few weeks, he predicts that the Senate will not address the issue until after Memorial Day. Instead, he stated that the Senate’s focus during the coming several weeks will be on legislation concerning jobs, food safety, campaign spending and financial regulation, as well as on moving forward with a number of stalled Presidential nominees.

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A controversial Arizona immigration enforcement bill (S.B. 1070) moved one step closer to becoming law when the state senate approved the measure on April 19. The bill has been sent to Governor Jan Brewer for her signature or veto. As reported by The Los Angeles Times, most observers expect her to sign the bill. Brewer has until April 24 to act on the bill; if she neither signs nor vetoes the bill, it will become law within 90 days of the end of Arizona’s legislative session.

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The city council of Santa Maria, California approved a measure to use E-Verify when it hires new employees, reports the Santa Maria Times. The city will commence a six-month trial of the federal electronic employee verification system on May 8, 2010. It is uncertain, however, how often the city will use E-Verify because it is currently furloughing employees to save money.

Some officials and residents supported mandating E-Verify for private businesses as well. However, full council support was lacking, and many community organizers and residents spoke against the proposal.

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The Houston Chronicle reports that recent changes to the duration of E-1 and E-2 visas have surprised Mexican nationals and their attorneys. According to those interviewed, as of February 22, 2010, E-1 and E-2 visas being issued to Mexican nationals are for a period of only one year (previously, such visas were issued with duration periods of between three and five years).

Reportedly the reduction occurred because Mexico only grants U.S. citizens one-year work visas, and the fees for these visas increased recently.

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U.S. Citizenship and Immigration Services (USCIS) announced that it is continuing to accept H-1B nonimmigrant visa petitions for Fiscal Year 2011 (October 1, 2010 to September 30, 2011). The agency began accepting petitions on April 1, 2010, and after one week had received approximately 13,500 petitions subject to the general cap and 5,600 petitions subject to the advanced degree exception. It took approximately nine months for USCIS to receive enough applications to meet the FY 2010 cap, with the bulk of petitions being filed by the end of October 2009.

The H-1B program allows businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, e.g., science, engineering, computer programming. The program allows for 65,000 regular-cap visas, and an additional 20,000 visas for petitioners with advanced degrees (master’s degree or higher).

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Coastal Steel and Acoustics became the first company in South Carolina to sign an IMAGE agreement (Immigration and Customs Enforcement Mutual Agreement between Government and Employers), the agency announced. By signing the agreement, the company:

• will receive agency-provided training and education on fraudulent document detection, as well as on proper hiring and anti-discrimination procedures;
• can use E-Verify, the federal electronic employee verification system, and the Social Security Number Verification Service; and
• can become “IMAGE certified” by following the Department of Homeland Security’s Best Employment Practices.

IMAGE was initiated in 2007 to combat unlawful employment and reduce vulnerabilities that help illegal immigrants gain employment in the United States.

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The Department of Homeland Security has published a final rule in the Federal Register designating Greece an eligible country for the U.S. Visa Waiver Program (VWP). Beginning April 5, 2010, Greek nationals can visit the United States for tourism or business for 90 days or less without obtaining a visa before arrival. However, VWP travelers must comply with Electronic System for Travel Authorization requirements by obtaining travel authorization prior to arriving in the United States and must submit biometric information upon arrival, as required by US-VISIT.

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The New York Times reports that Arizona legislators have given preliminary approval to legislation that primarily concerns State enforcement of federal immigration laws. H.B. 2632, which is nearly identical to a bill passed in February by the state senate (S.B. 1070), would, among other things, allow police officers to charge illegal immigrants with criminal trespassing based solely on their presence in Arizona. The two bills must now go through reconciliation, which is expected to occur within the next two weeks.

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The United States Citizenship and Immigration Services (USCIS) recently issued a guidance memo to its adjudication officers, Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third Party Site Placements. The Memo clarifies what constitutes a valid employer-employee relationship in the context of petitions for H-1B visas, which are commonly used by IT staffing agencies and consulting groups for placing skilled workers at third-party worksites. For an analysis of the Memo and its implications for employers, continue reading Littler's ASAP Recent USCIS Memo on Employer-Employee Relationship Requirements for H-1B Visa Petitions: Regulation by Memorandum? by Jorge R. Lopez, Shin-I Lowe and Neil Grindstaff.

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Last Thursday, Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) released a framework for comprehensive immigration reform. Although a bill has yet to be introduced, the Senators outlined their “four pillar” reform strategy in a Washington Post opinion column. This plan would include “requiring biometric Social Security cards to ensure that illegal workers cannot get jobs; fulfilling and strengthening our commitments on border security and interior enforcement; creating a process for admitting temporary workers; and implementing a tough but fair path to legalization for those already here.” For more information on this development, please continue reading at Littler's Washington D.C. Employment Law Update blog.

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On Wednesday, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) and the Department of Justice’s Civil Rights Division (CRT) announced that the two agencies have collaborated on a series of initiatives to “strengthen the efficiency and accuracy of the E-Verify system.” The first component of this effort is a Memorandum of Agreement (MOA) (pdf) that establishes the relationship and process for case referrals between the two agencies with respect to allegations of discrimination arising out of employer use of E-Verify, and information regarding the misuse, abuse, or fraudulent use of E-Verify. The MOA details the agencies’ respective responsibilities, authority, and points of contact, and outlines how future exchange and disclosure of information should occur. According to a fact sheet, on the MOA, the CRT’s Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) will receive referrals of potential discrimination that come to USCIS; in turn, USCIS will receive from OSC referrals of potential employer misuse of E-Verify that does not fall within DOJ’s enforcement arena. Moreover, according to the fact sheet, the MOA provides USCIS with a more efficient process to assist the DOJ in pending E-Verify-related investigations.

In addition to the MOA, the agencies have created two training videos that explain E-Verify procedures, policies, employee rights and employer responsibilities in English and Spanish. These videos

“are designed to help employers understand their responsibilities under E-Verify and to inform employees of their rights when working for employers enrolled in E-Verify.”

Finally, the agencies have established an E-Verify employee hotline for employee inquiries, issues and complaints.

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The U.S. State Department has unveiled its new online nonimmigrant visa application process, reports Nextgov.com. As previously discussed, Form DS-160 combines three application forms into a single online platform. Although petitioners previously could complete applications online, they were required to bring hard copies of the completed applications to visa interviews. Now, only a confirmation sheet with a bar code is required since consular officers can retrieve the application through the department’s database.

Currently, 88 consulates and embassies have implemented Form DS-160. The State Department hopes that all overseas consular offices will use the system by the end of April 2010. However, because of the time and expense necessary to develop foreign language versions of DS-160, it is uncertain whether this goal will be met.

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The Wall Street Journal reports that a mandatory biometric identification card for U.S. citizens and legal residents could be included in a comprehensive immigration reform bill being spearheaded by Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC). The card would contain standard identifying information, but would also contain a biometric identifier, e.g., fingerprints. Schumer has previously proposed such a card to replace E-Verify, the federal electronic employment verification system.

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U.S. Immigration and Customs Enforcement (ICE) announced that it has served Notices of Inspection (NOIs) on 180 businesses in Louisiana, Mississippi, Alabama, Arkansas, and Tennessee. ICE will review these businesses’ hiring records to determine their compliance with federal employment eligibility verification laws. As previously discussed, in 2009 ICE developed a new enforcement strategy that includes significantly increasing the number of forensic audits. In December 2009, 1,000 businesses faced an audit. In July 2009, ICE issued more NOIs in one day—652—than it did in all of 2008.

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According to the Wall Street Journal, an independent report commissioned by the Department of Homeland Security (DHS) found that E-Verify, the federal electronic employment verification system, may be failing to detect 54% of unauthorized workers processed. According to the 338-page report (pdf), E-Verify experienced difficulty confirming that workers’ identities were their own. The purported reason: identity theft.

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Senators John Kerry (D-MA) and Richard Lugar (R-IN) have introduced the StartUp Visa Act of 2010 (S. 3029), which would create a new visa category (EB-6) for foreign entrepreneurs. Foreign entrepreneurs would qualify for a two-year visa upon demonstrating that a qualified U.S. investor will dedicate at least $250,000 to his or her startup venture. Moreover, permanent resident status would be available to EB-6 visa holders after two years upon demonstration that the startup has:

• created five full-time jobs in the United States (excluding employment of the entrepreneur’s spouse or children); and
• secured $1 million in additional investment capital; or
• generated $1 million in revenue.

The bill has been referred to the Senate Judiciary Committee.
 

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This week, Rep. Frank Kratovil (D-MD) introduced the “Criminal Penalties for Unauthorized Employment Act of 2010” (H.R. 4627). The bill amends section 274A of the Immigration and Nationality Act (8 U.S.C. § 1324a(e)(4)(A)) by establishing criminal penalties—and increasing the existing civil penalties—that can be levied against individuals with “hiring authority” who employ unauthorized aliens.

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AZCapitolTimes.com reports that Arizona’s senate, by a party-line 17-13 vote, passed a broad, immigration-focused bill covering a wide range of topics including law enforcement procedures, criminal law, and traffic congestion. The bill would:

• require police officers to make a reasonable attempt to determine a person’s immigration status when “practicable;”
• allow illegal immigrants to be charged with trespassing;
• make it unlawful for anyone seeking work, regardless of their immigration status, to enter a vehicle stopped on the street;
• penalize drivers who impede traffic in an attempt to hire a day laborer;
• prohibit state and local governments from adopting policies that restrict the enforcement of immigration laws; and
• require state and local governments to comply with, and assist in enforcing, federal immigration laws.

The bill now moves to Arizona’s house of representatives for consideration.

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The U.S. Department of Labor has published a final rule (pdf) in the Federal Register concerning temporary agricultural employment of foreign laborers under the H-2A visa program. The final rule:

• amends regulations governing certification of temporary employment of nonimmigrant workers in temporary or seasonal agricultural employment;
• amends regulations concerning the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers; and
• provides for enhanced enforcement under the H–2A program requirements to ensure that workers are appropriately protected when employers fail to meet their obligations under the program.

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U.S. Citizenship and Immigration Services announced that approximately 500 Notices of Approval (Form I-797) issued between January 20 and January 27, 2010 contained incorrect or missing information. The deficient notices were sent to applicants who had submitted a Form I-129 (Petition for Nonimmigrant Worker to Come to U.S. to Perform Services or Labor) or a Form I-539 (Application to Extend/Change Nonimmigration Status).

The agency has started mailing revised notices and advises recipients not to attempt to use deficient notices. Recipients can contact USCIS if they believe a notice contains missing or incorrect information, or should a revised notice not be received.

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Rep. Kenny Marchant (R-TX) introduced the Mortgage E-Verify Act (H.R. 4586), which requires that mortgagors’ legal immigration status be confirmed by E-Verify as a condition for modification of home mortgage loans issued by Freddie Mac and Fannie Mae, or insured by the Federal Housing Administration. The bill aims to curb mortgage fraud, particularly by illegal immigrants. Mortgage fraud increased 1,411% from 1997 to 2005, according to the U.S. Treasury Department’s Financial Crimes Enforcement division.

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In his 2010 State of the Union address, President Obama devoted only a single sentence to immigration reform. As reported by The Washington Post, this cursory treatment of the issue has led to “disillusionment” among immigration advocates. A staple of Obama’s campaign and early-term rhetoric, immigration reform has taken a back seat to health care reform and other issues, such as job creation.

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As reported by The Washington Times, the Social Security Administration (SSA) failed to run electronic employment verification (E-Verify) checks on 19% of the employees it hired in 2008 and 2009. The SSA, along with U.S. Citizenship and Immigration Services, administers the E-Verify program.

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The United States Citizenship and Immigration Services’ (USCIS) Associate Director for Service Center Operations has issued a detailed memo (pdf) regarding how to determine, when evaluating H-1B visa petitions, whether an employer-employee relationship exists and will continue to exist. The memo, which is addressed to USCIS Service Center Directors, discusses:

• scenarios that do and do not represent a valid employer-employee relationship;
• documentation to establish the employer-employee relationship;
• requests for evidence to establish the employer-employee relationship; and
• regulatory compliance.

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The Department of Homeland Security has announced that, due to the devastating effects of the January 12 earthquake in Haiti, it is granting an 18-month Temporary Protected Status (TPS) to Haitian nationals who were in the United States as of January 12. Individuals without nationality who last resided in Haiti also may apply for TPS. The announcement specified that “[t]hose who attempt to travel to the United States after January 12, 2010 will not be eligible for TPS and will be repatriated.”

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In the January 5, 2010 Federal Register, U.S. Immigration and Customs Enforcement (ICE) outlined (pdf) its two-phase process for updating the Student and Exchange Visitor Information System (SEVIS). SEVIS collects information on:

• prospective, current and former foreign students, exchange visitors and their spouses entering the U.S. on F, M or J nonimmigrant visas; and
• officials of approved schools and designated sponsors.

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The United States Citizenship and Immigration Services (USCIS) has published a Q&A webpage concerning vaccination requirements for immigrants. The webpage provides general information concerning:

• vaccination requirements;
• procedural requirements; and
• required forms (e.g., Form I-693 - civil surgeon endorsement);

The webpage also includes telephone numbers and links to websites for obtaining further information regarding vaccination requirements.
 

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The U.S. Department of State has released its Visa Bulletin for February 2010. The bulletin outlines:

• how many visas are statutorily made available;
• how many visas are available based on type (family-sponsored, employment-based, diversity); and
• the allocation (by percentage) of these visas. 

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A recent U.S. Citizenship and Immigration Services (USCIS) memo (pdf) directs field offices, when evaluating adjustment of immigration status petitions decided before January 1, 2011, to accept as valid a Form I-693 (pdf) civil surgeon endorsement that was signed more than one year prior to the evaluation if:

• the endorsement was included with the initial adjustment status application; and
• no Class A or B medical condition is listed in sections 2, 3 or 4 of Part 2.

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The U.S. Department of Labor’s Employment and Training Administration recently revised its guidance on prevailing wage determination (PWD) concerning nonagricultural immigration programs (e.g., registered nursing programs). The revised guidance (pdf) discusses:

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Businesses in the southern California city of Lancaster will be required to use E-Verify to confirm new hires’ eligibility to legally work in the United States, according to the Los Angeles Times. Companies that fail to comply with the requirement could face revocation of their business license. At least 11,000 California business are already enrolled in the E-Verify program, which processed over 8.5 million queries in fiscal year 2009.

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The U.S. Department of Labor has provided notice that beginning January 1, 2010, the Office of Foreign Labor Certification National Prevailing Wage and Helpdesk Center in Washington, D.C. will receive and process prevailing wage determination requests for use in H-1B, H-1B1, H-1C, H-2B, E-3 and permanent labor certification programs. In the same notice, the DOL provides guidance about prevailing wage determinations for applications in the Commonwealth of the Northern Mariana Islands, which have been accepted at the center since November 28, 2009.

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Two bills introduced in both the House and Senate last week would make significant changes to the H-2B guest worker program. Both the Increasing American Wages and Benefits Act of 2010 (S. 2910) introduced in the Senate, and the H-2B Program Reform Act of 2009 (H.R. 4381) introduced in the House of Representatives, would establish new procedural and monetary requirements for employers that seek to hire temporary foreign workers, as well as impose stiffer penalties for noncompliance with these new requirements. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
 

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U.S. Citizenship and Immigration Services (USCIS) has announced that, as of December 21, 2009, it has received sufficient petitions to reach the statutory cap for fiscal year 2010. Also, USCIS has received more than 20,000 H-1B petitions on behalf of applicants exempt from the cap under the advanced degree exemption. USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009. Employers should note that even those petitions that were filed before the cap closed may be returned by USCIS once the final cap count is completed.

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Customs and Border Protection has introduced a new program called Global Entry. The Global Entry program allows US citizens, US permanent residents and Dutch citizens who are pre-approved as low-risk travelers to process quickly through international arrival areas in certain airports in the U.S. (list below). A process for UK citizens is expected to be added soon.

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It is expected that the H-1B cap will be reached this week, if it has not been reached already. USCIS announced on December 17 that, as of December 15, 64,200 of the available 65,000 H-1B numbers for this year had been used. The agency will notify the public once it has received the necessary number of petitions to meet the H-1B cap, known as the “final receipt date.” To ensure a fair system, USCIS will, if needed, implement a lottery system to randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date.

New H-1B cap-subject petitions cannot be filed until April 1, 2010 for an October 1, 2010 start date. Employers should start assessing alternative visa options for affected foreign nationals right away.

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Rep. Solomon Ortiz (D-Tex.) and Rep. Luis Gutierrez (D-Ill.) have introduced the Comprehensive Immigration Reform for America’s Security and Prosperity (CIR ASAP) Act of 2009 (H.R. 4321), an immigration overhaul bill they hope will receive serious consideration early next year. In October, Rep. Gutierrez outlined a set of core principles that he planned to include in his reform legislation. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
 

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Congressman Luis V. Gutierrez (D-IL) has unveiled comprehensive immigration reform legislation that would, among other provisions:

• strengthen border security;
• create a streamlined employment verification system;
• amend the visa program to promote the reunification of families;
• establish a commission to recommend changes to the current system of H-1B and H-2B visas for skilled workers;
• impose tougher penalties for employers who hire illegal workers; and
• legalize undocumented immigrants who register with the federal government, pay a $500 fine, learn English, pass background checks, and meet other requirements. Individuals who meet these requirements would then be eligible for a six-year visa and, finally, a green card.

In unveiling the bill, titled The Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009 (CIR ASAP), Gutierrez was joined by a coalition of lawmakers, including the Congressional Hispanic Caucus, Black Caucus, Asian Pacific American Caucus and Progressive Caucus.
 

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The U.S. State Department’s Bureau of Consular Affairs announced that the Electronic Visa Application Form (EVAF) is being replaced by DS-160, a fully web-based nonimmigrant visa application form. DS-160 allows consular officers to review nonimmigrant visa application data prior to in-person interviews. DS-160, which 24 consular offices currently use, will replace all nonimmigrant visa application forms (except those for K visas).

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The U.S. Citizenship and Immigration Services has indicated that nearly 62,500 of the available 65,000 H-1B cap-subject petitions have been used for the current fiscal year. Further, it appears that the demand for such H-1B petitions has been increasing in recent weeks, with approximately 1,000 petitions being utilized in the two days prior to the government's most recent tally, which was posted on December 10, 2009. In the prior week, 2,200 petitions were filed. With this trend appearing to continue, it is anticipated that the H-1B cap will be reached within the next week.

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On December 9, 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano confirmed her stance that immigration enforcement is a necessity and must be achieved in conjunction with comprehensive reform of the United States’ broken immigration system. Secretary Napolitano stated, "We can no longer perpetuate a status quo that is unacceptable for workers, employers, law enforcement, faith leaders, and America as a whole. We must seize this moment to build a truly effective immigration system that deters illegal immigration, provides effective and enduring enforcement tools, protects workers from exploitation and retaliation, and creates a tough but fair path to legalization for the millions of illegal immigrants already here."

This statement, made at a Senate Judiciary Committee oversight hearing, reiterates the position of the Obama Administration and its intent to present a proposal for comprehensive immigration reform to Congress in early 2010.

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Limited slots at Chinese universities and the prestige of U.S. higher education are contributing to an influx of Chinese nationals to American colleges and universities, according to USA Today. An Institute of International Education report found that, compared with last year, enrollment by Chinese nationals has increased 21% to 98,510 undergraduate and graduate students, slightly behind India, which sends 103,260 students.

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The Contra Costa Times reports that this month over 1,000 businesses will face forensic audits conducted by United States Immigration and Customs Enforcement (ICE). Many businesses, e.g., those involved in the food supply chain, have been targeted because they are connected to public safety and to the United States’ “critical infrastructure.”

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The United State Citizenship and Immigration Services (USCIS) announced that, as of December 10, 2009, 62,500 H-1B petitions had been filed for fiscal year 2010, inching closer to the general H-1B cap of 65,000. Although the H-1B cap of 20,000 for petitioners with advanced degrees already has been reached, USCIS will continue to accept those applications until the general cap is met.

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The Fiscal Policy Institute announced that its new report (pdf) found that in the United States’ 25 largest metropolitan areas, immigrants both documented and undocumented contribute to the economy in very close proportion to their share of the population. Foreign-born workers comprise approximately 20% of the U.S. population, and the study found that they are responsible for an equal percentage of economic output.

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The Department of Homeland Security (DHS) has released its Semiannual Regulatory Agenda (pdf) for the coming year. Rules addressing the H-1B lottery process and I-9 forms are among the Agency’s regulatory priorities. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
 

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U.S. Citizenship and Immigration Services announced (pdf) that since November 13, 2009, it has temporarily held certain applications of individuals seeking to become lawful permanent residents until the new Centers for Disease Control and Prevention (CDC) vaccination criteria becomes effective on December 14, 2009. Under the new CDC criteria, vaccines for herpes zoster (zoster) and human papillomavirus (HPV), will no longer be required for immigration purposes. The held applications were submitted by applicants who would have been denied a visa because they failed to demonstrate that they had received the zoster or HPV vaccination.

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On November 23, 2009, January Contreras was appointed as the U.S. Citizenship and Immigration Services (USCIS) Ombudsman. As Ombudsman, Contreras will be responsible for helping USCIS resolve obstacles to accessing services, identify areas in need of improvement, and recommend actions that will improve services. Previously, Contreras was a Senior Adviser to Department of Homeland Security Secretary Janet Napolitano.

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It appears that the economy continues to show signs of recovery. U.S. Citizenship & Immigration Services (USCIS) announced that it had received approximately 2,000 H-1B cap-subject petitions in a week. This brings the number of filed H-1B cap-subject petitions to about 58,900. This leaves approximately 6,000 H-1B petitions remaining from the 65,000 general H-1B cap. The 20,000 H-1B advanced degree exemption closed several weeks ago. As reported previously on this blog, employers should immediately assess whether they have any H-1B needs--including whether to file H-1B petitions for F-1 students working pursuant to OPT status early, as well as other candidates who may require H-1B processing--as next year the cap may be reached early if the economy continues to improve.

This entry was written by Ian Macdonald.

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As reported previously on this blog, U.S. Citizenship & Immigration Services (USCIS) officially announced the opening of a new Verification Operations Center in Buffalo, NY. This center will employ approximately 135 people with the sole objective of performing immigration status verification for the Systematic Alien Verification for Entitlements (SAVE) and E-Verify systems. Specifically, the new center will run verification checks of employee work authorization status for companies enrolled in E-Verify, and it will confirm immigration status inquiries for government entities using SAVE. This is the first USCIS field office dedicated to monitoring compliance and ensuring the correct use of the SAVE and E-Verify programs. The Buffalo Verification Operations Center will spearhead USCIS's initiative to stop employers and third-party "investigation" companies from using E-Verify improperly. This development is the government's attempt to improve the integrity of both SAVE and E-Verify. These efforts may also facilitate the reduction of potential discriminatory effect in the application of E-Verify procedures and safeguard privacy interests.

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The Houston Chronicle reports that with a budget shortfall of $164 million, U.S. Citizenship and Immigration Services (USCIS) is considering increasing the fees it charges for immigration applications. USCIS also is considering possible cost-saving measures, including staff layoffs. As this blog previously noted, immigration applications (e.g., citizenship, permanent residency), a revenue source for USCIS, have decreased in recent years, thereby straining USCIS’s budget. In fiscal year 2009, citizenship applications decreased by over 25% (1 million in FY 2008; 733,000 in FY 2009). Although USCIS improved its citizenship application processing time after the most recent fee increases (July 2007), it may experience difficulty maintaining the five-month average processing time if the Obama administration succeeds in implementing a legalization program for the estimated 12 million illegal immigrants in the United States.

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Senators Bernie Sanders (I-Vt.) and Charles Grassley (R-Iowa) have introduced legislation that would prevent large companies that conduct mass layoffs from hiring foreign labor through guest worker programs. The Employ America Act (S. 2804) (pdf) builds on similar prohibitions included in the American Recovery and Reinvestment Act (ARRA or “Economic Stimulus”), which prevents companies receiving funds through the Troubled Asset Relief Program (TARP) from replacing laid-off citizen workers with foreign labor. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
 

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At a symposium in Washington, D.C., US Citizenship and Immigration Services (USCIS) announced that today (November 19, 2009), an additional 1,000 Notices of Inspection (NOI) will be issued. This is a significant move and reveals the administration's intent to increase enforcement actions against employers that engage in the unlawful hiring of undocumented workers. This year alone, Immigration Customs and Enforcement has issued 1,044 NOIs, which is three times as many NOIs than were issued in 2008. Adding another 1,000 NOIs drastically increases this statistic. To further illustrate the administration's aggressive pursuit of employers, Notices of Fines totaling $24 million have been issued in 2009, compared with $2.4 million in 2008. Also, during 2009, 100 companies and individuals have been barred from doing business with the federal government, whereas only one company was barred last year.

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U.S. Citizenship and Immigration Services (USCIS) recently announced that it would temporarily accept H-1B petitions for filing without a certified Labor Condition Application (LCA) from the Department of Labor (DOL). This action is being taken in response to public pressure and to the USCIS Ombudsman’s recommendation that USCIS reinstate its practice of accepting an H-1B petition with evidence of a timely filed LCA with DOL. USCIS had affirmed this practice in 1992, and then again in 2001. USCIS has granted this accommodation for a 120-day period, starting November 5, 2009 and ending March 4, 2010.

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The New York Times reports that the Obama Administration will push to implement immigration reform measures in the first quarter of 2010. Department of Homeland Security Secretary Janet Napolitano indicated today in an address to the Center for American Progress that immigration reform will be put on the political agenda early in 2010. Napolitano sent a clear message to Congress that it should be ready for movement on immigration. Specifically, Napolitano referred to a "three-legged stool" approach that will incorporate tougher enforcement laws aimed at employers and illegal immigrants, a streamlined system for legal immigration, and a stringent process to allow illegal immigrants to become legal. It is anticipated that the Administration's focus on securing the border and targeting employers that hire undocumented workers will substantially increase while the foundation is laid to introduce an immigration reform initiative to Congress.

This entry was written by Ian R. Macdonald.

Photo credit: David Franklin

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As reported by the New York Times, on October 30, 2009, President Obama repealed the ban on travel to the United States by people who test positive for HIV. The final rule (pdf) lifting the ban will take effect on January 4, 2010. As of the effective date, foreigners wishing to visit the U.S., or seeking U.S. residency, will no longer be required to take an AIDS test.

Photo credit: change.gov

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The U.S. Supreme Court has asked the Solicitor General to submit a brief outlining the Obama administration’s stance on an Arizona law that punishes companies for hiring illegal immigrants, the Miami Herald reports. The justices will review this brief before deciding whether to hear a challenge to the law.

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The Wall Street Journal reports that thousands of H-1B visas for fiscal year 2010 remain available. Unlike previous years, when the 65,000 visas available for the year were scooped up by employers within days, factors such as the sagging economy and government investigations into visa fraud have resulted in companies underutilizing the program. Not since 2003—when 323 days elapsed before all fiscal year 2004 H-1B visas were awarded—have visas remained available at such a late stage.

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US Citizenship and Immigration Services (USCIS) has announced that as of October 30, 2009, approximately 53,800 H-1B cap-subject petitions had been filed and received. It also announced that the 20,000 H-1B Advanced Degree Exemption cap had been met, and that all petitions filed for an individual with an advanced degree from a US academic institution will now be counted towards the general H-1B cap of 65,000. 

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The U.S. Citizenship and Immigration Services (USCIS) Ombudsman has discovered (pdf) that iCert, the certification process for Labor Conditions Applications (LCA) operated by the Department of Labor, has been generating false mismatches of Federal Employer Numbers. After examining applications filed between April and August 2009, the Ombudsman found that 7% of denials (approximately 2,900 applications) were incorrect. These errors can hinder the ability to timely file original or extension H-1B visa petitions.

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On October 21, 2009, Roxana Bacon became Chief Counsel for U.S. Citizenship and Immigration Services. Ms. Bacon is an employment and immigration law practitioner with over 30 years’ experience. Her professional experience includes:

• serving as a lawyer representative to the Ninth Circuit Judicial Conferences (the first woman to have this role);
• being the first woman elected President of the Arizona State Bar Association;
• teaching at the Arizona State University Sandra Day O’Connor College of Law; and
• chairing the American Immigration Lawyer's Association's (AILA) Enforcement Liaison Committee.

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On October 28, 2009, President Obama signed into law the Department of Homeland Security Appropriations Act, 2010 (H.R. 2892). The law contains a measure that ends the “widow penalty,” the government’s practice of annulling a foreigner’s permanent residency application when his or her American spouse dies before the marriage is two years old. 

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The Department of Homeland Security (DHS) has awarded General Dynamics Information Technology a contract to assist with designing and producing DHS’s new Employment Authorization Document (EAD), according to PR Newswire. The EAD, a polycarbonate identification card said to be counterfeit-resistant, will be issued to immigrants who are authorized to work in the United States. General Dynamics will assist in developing the card’s design and security characteristics. Production will commence in 2010 after completion of the design phase.

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Examiner.com reports that the U.S. Department of State will require Diversity Immigrant Visa Program (DV-2011) applicants to provide an email address. Previously, email addresses were optional. Although successful applicants will only be notified by mail, individuals who respond to official selection letters may be sent follow-up emails by the State Department, according to the DV-2011 instructions (pdf).

Photo credit: GDFL

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As reported by Nextgov.com, a Government Accountability Office (GAO) report suggests that the Social Security Administration (SSA) will need to upgrade its information technology systems to handle future electronic information exchanges. Currently the system operates more than 800 data exchanges that allow SSA to send and receive electronic information to and from state and local partners. The data exchanges are used for processing and distributing Social Security payments and validating identities of driver’s license applicants.

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On Tuesday the Senate approved by a vote of 79-19 the conference report for the Department of Homeland Security Appropriations bill (H.R. 2892) that includes provisions extending the E-Verify employment verification system and other visa programs. The House approved the conference report on October 15.  Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
 

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Rep. Luis Gutierrez (D-IL), chair of the Congressional Hispanic Caucus Immigration Task Force, has outlined a set of core principles that he plans to include in a comprehensive immigration reform bill. In a press release issued October 13, Gutierrez stated:

We simply cannot wait any longer for a bill that keeps our families together, protects our workers and allows a pathway to legalization for those who have earned it. It is time we had a workable plan making its way through Congress that recognizes the vast contributions of immigrants to this country and that honors the American Dream. I am preparing such a plan, and will introduce it in the near future.

Continue reading about this development on Littler's Washington DC Employment Law Update blog.

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Even with a considerable decrease in H-1B visa applications during the past year (nearly 20,000 visas remain available for 2009, whereas in 2008 over 163,000 applications were submitted within days of the entry period opening), issues surrounding the H-1B program remain very visible, so much so that Computerworld.com has issued a “10 top H-1B stories” list for fiscal year 2009. The following stories made the list:

1. The H-1B and L-1 Visa Reform Act of 2009. The bill would limit, to 50%, the percentage of visa holders a company could employ in its U.S. workforce.
2. Comprehensive Immigration Reform. Senator Charles Schumer (D-NY), chair of the Immigration, Refugees and Border Security subcommittee, is pushing for reform and supports the H-1B program. At a subcommittee hearing, former Fed Chairman Alan Greenspan spoke in favor of the H-1B visa.
3. TARP. Congress placed H-1B restrictions on banks receiving bailout money.
4. USCIS’s Increased Enforcement Efforts. Reports indicate that 20% of H-1B applications have problems, including fraud.
5. H-1B and Wages. A New York University / University of Pennsylvania study found evidence that H-1B workers reduced tech wages by as much as 6%.
6. The Recession. The economic downturn impacted the number of H-1B applications, particularly in the past few months.
7. Department of Justice Charges. The department filed complaints alleging H-1B fraud against a dozen individuals and companies, which some claim was the largest H-1B enforcement action ever taken by the federal government.
8. The Obama Administration. The President has appointed many H-1B supporters. Officials include IT industry leaders who benefit from the program and have argued for the end of H-1B visa restrictions.
9. Legal Challenges. Tech workers challenged President George W. Bush’s decision to extend (from 12 months to 29 months) the duration of student visas, alleging it created a vehicle to side-step H-1B restrictions.
10. The Shrinking IT Job Market. The H-1B visa program is central to the debate about the effects of globalization on the technology job market.

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The U.S. Department of State has issued instructions (pdf) on how to apply for the 2011 Diversity Immigrant Visa Program (DV-2011). This Congressionally mandated program makes available 50,000 diversity visas (DV) annually, drawn from random selection among all entries, to persons from countries with low rates of immigration to the United States and who meet strict eligibility requirements.

To enter the lottery, applicants must have:

• successfully completed a 12-year course of elementary and secondary education; or
• completed two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform. The U.S. Department of Labor’s O*Net online database will be used to determine qualifying work experience.

Applications can be filed online only. (Required application information can be found in the above-referenced instructions.)

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The Department of Homeland Security (DHS) has published in the Federal Register a final rule rescinding the controversial “no-match” rule. The rule – which has been enjoined by a lawsuit filed in 2007 and therefore never implemented – created safe harbor procedures for employers that receive no-match letters from the Social Security Administration (SSA) or notice of suspect documents letters from the U.S. Immigration and Customs Enforcement (ICE) regarding their employees’ authorization to work in this country. Read the full story on Littler's Washington DC Employment Law Update blog.

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According to The Los Angeles Times, a legislative mandate that the United States Citizenship and Immigration Service (USCIS) be a self-sustaining agency may result in application fee increases. USCIS faces a $118-million deficit, partially due to decreased volume of applications. In Southern California alone, the number of citizenship applications in 2008 fell by more than 75% compared to 2007 (from 254,000 to 58,000). USCIS has requested $206 million from Congress to help offset the shortfall.

Officials claim the fee increase is necessary because a special congressional appropriation to help reduce application backlogs has run out. Immigrant advocates, however, contend that increased fees will deter legal immigrants from pursuing citizenship. Citizenship application fees were previously increased in 2007 (a 69% increase, bringing the total application cost to $675).

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Examiner.com reports that California’s legislature has passed a non-binding resolution condemning federal immigration policies, practices and enforcement. The resolution, drafted by California State Senator Gilbert Cedillo, urges Congress and President Obama to declare a moratorium on immigration policies and practices until comprehensive immigration reform is enacted.

Although the resolution has no legal effect, opponents contend that a moratorium would negatively impact public safety. Anti-immigration advocates assert that the resolution’s sentiment does not represent that of the majority of Californians and that illegal immigrants would benefit from the proposal.

The resolution notes the financial contributions of immigrants (documented as well as undocumented), while criticizing various actions such as employer audits and, particularly, the E-Verify system. 

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The Department of Justice (DOJ) has awarded $723,000 in grants to various groups nationwide to help combat immigration-related employment discrimination. These grants, administered by the DOJ’s Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), will range from $48,000 to $87,000 for each of the 12 named recipients. Read the full story on Littler's Washington DC Employment Law Update blog.

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The US Department of State announced that from October 2, 2009, to November 30, 2009, individuals may register online to enter the diversity visa lottery.

The Diversity Immigrant Visa Program permits 50,000 diversity visas to be issued annually. To be eligible, applicants must possess:

• a high school education, or its equivalent; or
• two years of work experience, in a profession requiring at least two years’ training or experience, during the past five years.

Under the program, a computer randomly selects qualified applicants from countries with low rates of immigration to the United States. Lottery entrants, if selected, will be notified between May and July of 2010.

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An American Federation of Teachers (AFT) report (PDF) found that some U.S. school districts have looked overseas to staff positions in schools that they find difficult to fill. As reported by the New York Times, the AFT report, based on government data, estimated that 19,000 foreign teachers worked in the U.S. on temporary visas in 2007.

To secure positions, foreign teachers have used recruiting firms, sometimes paying recruiters between $5,000 and $8,000, in addition to other costs which they bear personally. Many are placed in inner-city or very rural schools to teach math, science and special education. According to the report, Maryland, New York, Georgia, Texas and California attract the highest number of foreign teacher visa applicants.

Although the AFT report was critical of districts recruiting foreign teachers, school administrators found that these individuals improved schools. Moreover, administrators noted that programs like Teach for America are providing an employee pool from which to draw qualified applicants to teach in needed schools, thereby reducing the need to employ foreign teachers.

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