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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.
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:
The bill has been referred to the Senate Judiciary Committee.
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.
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:
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:
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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.
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.
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.
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:
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.”
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:
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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:
The webpage also includes telephone numbers and links to websites for obtaining further information regarding vaccination requirements.
The U.S. Department of State has released its Visa Bulletin for February 2010. The bulletin outlines:
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.
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.
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.
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.
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.
Congressman Luis V. Gutierrez (D-IL) has unveiled comprehensive immigration reform legislation that would, among other provisions:
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.
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.
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.”
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.
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.
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.
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.
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.
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.
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.
Continue Reading...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
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
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.
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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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:
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.
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.
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
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.
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.
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.
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:
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:
Applications can be filed online only. (Required application information can be found in the above-referenced instructions.)
Continue Reading...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.
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).
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.
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.
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:
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.
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.
USCIS has released a “Supplemental Guide for Federal Contractors” (PDF) regarding the E-Verify program. The guide contains information concerning:
With the rejection of an 11th–hour appeal, a Maryland district court judge has permitted the new E-verify requirements for federal contractors to become effective September 8, 2009. Federal agencies are now permitted to require federal contractors to use E-Verify to confirm the work eligibility status of their employees.
For more information, see Littler's ASAP: Federal Contractors: Be Aware of New E-Verify Requirements in Contracts by Jorge R. Lopez, Joshua Roffman, Aimee Clark Todd and Russell C. Ford.
The Dallas Morning News reports that Homeland Security Secretary Janet Napolitano remains optimistic that Congress eventually will pass a bipartisan immigration-policy overhaul bill. However, because the White House and Congress are consumed with healthcare legislation, Napolitano could not predict when a bill would be introduced. Nevertheless, she believes the process will be less contentious than previous attempts during the Bush administration.
Napolitano stated that immigration legislation needs to focus on the following:
Napolitano expressed her opposition to amnesty, stating that she favors an approach allowing illegal immigrants to pay fines and taxes without incurring criminal liability.
As reported by Daily Journal of Commerce, business groups have appealed the August 25 decision by a federal district court in Maryland upholding the E-Verify Federal Contractor Rule. As previously discussed, the rule is set to take effect on September 8, 2009. If government officials do not voluntarily postpone the effective date, lawyers for the business groups have indicated that they will ask the courts to do so.
Criticisms about E-Verify include:
Others, however, contend that:
The E-Verify Federal Contractor Rule was created via an executive order by George W. Bush in June 2008 but the effective date was postponed until a new administration was sworn in. The Rule requires contractors receiving federal funds to verify that their employees can legally work in the United States.
The US Citizenship and Immigration Services (USCIS) announced on August 27 that the expiration date of the current version of the I-9 (Employment Eligibility Verification) form has been extended for three years, until August 31, 2012. This means that employers can use I-9 forms that have a revision date of either February 2, 2009, or August 7, 2009. The revision dates are printed in small type on the bottom right of the I-9 form.
As a reminder, employers generally must, within three business days of the date that a new employee begins working (on the first day of work for short-term employees), obtain a completed I-9 form and review original documents establishing the employee’s identity and authorization to work in the United States.
To obtain Form I-9 and the Handbook for Employers (PDF), visit www.uscis.gov/i-9. Forms may also be ordered by calling the USCIS toll-free forms line at (800) 870-3676. In addition, employers may use photocopies of the I-9 forms.
This entry was written by Patricia Haim.
The U.S. District Court for the District of Maryland has upheld the E-Verify Federal Contractor Rule, scheduled to become effective September 8, 2009, that will require federal contractors to enroll in 
E-Verify within 30 calendar days after being awarded a covered contract and to start using the system within 90 days from the date of enrollment.
The U.S. Chamber of Commerce and other business organizations challenged the regulation, claiming it:
The court disagreed and ruled for the government on every count.
Click here for the full text of the decision.
The United States Court of Appeals, Seventh Circuit, has upheld a United States Department of Labor (DOL) regulation amended to limit the validity of foreign worker labor certificates to 180 days after the regulation had taken effect and only if submitted with a visa petition within that time period. A group of businesses had challenged the regulation, arguing that: (1) the DOL exceeded its authority by creating a rule that regulates immigration, and (2) the regulation itself was unlawfully retroactive because it invalidated previously approved labor certificates that were “valid indefinitely.”
The Seventh Circuit held that the DOL had not exceeded its authority, noting that previous DOL policy was not entirely consistent with federal law requiring that labor certificates only be issued if the DOL could demonstrate that (1) there were insufficient numbers of qualified and available workers for the position and (2) the employment of foreign workers would not adversely impact U.S. workers. The amended regulation, however, fulfilled legislative intent by requiring determinations based on true labor market conditions as well as protecting the interests of U.S. workers.
The court further held that the regulation was not retroactive because it did not create new legal consequences for a past act. The court found that the mere act of applying for a labor certificate was not a final event triggering legal consequences. Moreover, the court reasoned that “indefinite” did not mean “permanent” because the duration was “not clearly fixed.” The court concluded that the DOL addressed the issue of “indefiniteness” by prescribing a validity period for labor certificates.
BusinessWeek reports that a troubled economy coupled with domestic concerns about jobs being lost to legal, and illegal, immigrants or through outsourcing make immigration reform a difficult campaign promise for President Obama to keep. Although Obama reaffirmed his commitment to the issue last week while meeting with pro-immigrant activists, his efforts might be stymied by a bill—co-sponsored by his former Illinois colleague, Senator Dick Durbin—that seeks to significantly limit the issuance of H-1B visas. Conversely, legislation that will be unveiled in the upcoming months by Senator Charles Schumer is expected to garner Obama’s support.
The debate comes at a time when immigration is in decline. The number of foreigners immigrating for school or work has decreased, and many presently residing in the U.S. are electing to leave because of a poor job market and visa hassles. As we noted earlier this month, more than one-third of H-1B visas for fiscal year 2009 remain available.
According to BusinessWeek, even though the overall number of applications has increased, the number of foreign students admitted to graduate programs in the United States has decreased for the first time in five years. A struggling U.S. job market and the difficulties applicants face obtaining funding during enrollment and then visas after graduation are cited as major contributors to the decline. Most impacted are business programs, which normally enroll a considerable number of foreign students.
International students are instead opting to apply to programs in their home countries, where work visas are not an issue and the cost of education is considerably lower than in the United States. Many have turned to emerging programs in Asia and Europe. Applications to graduate programs in China rose 14% this year.
Fifty-five percent of U.S. graduate programs received more foreign applications in 2009 than in 2008, although less than half reported an increase in admission offers. U.S. graduate programs rely heavily on foreign students to meet diversity initiatives and to provide tuition income. Although a reported increase in domestic applications may fill the tuition void, the diversity gap may not be so easy to mend.
As reported by NetworkWorld, the United States Citizenship and Immigration Services (USCIS) has expanded its Administrative Site Visit and Verification Program to address fraud and abuses of H-1B and L-1 Visa programs by conducting unannounced work site inspections of companies that sponsor H-1B and L-1 Visa holders. Its Office of Fraud Detection and National Security estimates that 21% of H-1B visa petitions violate program rules. The shift comes as the Visa Reform Act - proposed federal legislation that will increase restrictions on and oversight of the issuance of non-immigrant professional visas – remains in congressional committee and employers examine visa alternatives should the legislation pass.
During “surprise visits,” USCIS assessors attempt to confirm the identities of a petitioning employer and visa recipient to verify that both have complied with the visa’s terms and conditions. Unlike the U.S. Department of Labor which has the statutory authority to investigate employer compliance with visa obligations, USCIS has no regulatory or statutory authority to enter workplaces of H-1B or L-1 Visa holders. USCIS officials have confirmed that complying with the investigation is voluntary. Previously only religious organizations were subject to mandatory inspections and reviews, however presently any non-immigrant petition might be subject to a workplace audit after approval and prior to any potential adjudication.
Investigators will request to interview the petitioner, review documents that support the visa application, and enter the workplace to visually confirm the recipient’s employment conforms to H-1B terms and conditions. Employers are not obligated to submit to disruptive or unreasonable requests for access to company employees or company property, but it is advisable that companies sponsoring foreign professionals prepare for potential visits by doing the following:
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The Department of Homeland Security (DHS) has issued a proposed rule (pdf) rescinding regulations instituting 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 full story on Littler's Washington DC Employment Law Update blog.
The Wall Street Journal reports that many U.S. businesses along the Canadian border are complaining that a U.S. law requiring travelers to show more than a driver’s license to enter the United States is hurting sales. They claim the additional burden is causing a sharp decline in patronage by Canadian customers.
The law, The Western Hemisphere Travel Initiative, was drafted in 2005 in response to the 9/11 Commission report that recommended tighter border restrictions. The law’s initial provisions, which required greater documentation from air travelers to the United States, took effect January 2007.
During June 2009, the first month the new land and sea crossing requirements became effective, there was a 23% drop from the previous year in border crossings at the U.S.-Canada bridges. Although some businesses are reporting a 27% to 30% drop in sales, U.S. government officials contend the law has had no discernible negative impact on business. Some experts believe the recession is damaging travel and business along the border because people are not traveling as frequently or as far.
Security experts suggest that the law was designed more with Mexico in mind—where documentation requirements have been strict for some time—and not Canada. Before the new requirements, security at U.S.-Canada crossing points was remarkably lenient and Canadians were sometimes permitted to enter the U.S. without showing identification.
The United States Citizen and Immigration Services (USCIS) reported promising news for foreign nonagricultural workers who possess valid, temporary labor certificates and who are seeking a fiscal year 2009 H-2B visa. Due to a decrease in requests, approximately 25,000 visas remain available for 2009, more than one-third of those available under the Congressionally mandated cap. Therefore, USCIS has reopened the filing period.
The H-2B nonimmigrant program permits employers to hire foreign workers to come temporarily to the U.S. and perform temporary nonagricultural services or labor on a one-time, seasonal, peak load or intermittent basis.
To obtain a fiscal year 2009 H-2B Visa, Form I-129 (PDF) petitions must be received and approved by USCIS before October 1, 2009. Because the average processing time is two months, it is unlikely that regularly submitted petitions would be approved before the October 1 deadline, so USCIS is recommending that petitioners use its premium processing service which has an average processing time of 15 calendar days.
Petitions for a fiscal year 2009 H-2B visa must include the following:
Petitions requesting an employment start date before October 1, 2009 that are received on or after October 1, 2009, or petitions that are incomplete, will not be approved. Petitions requesting an employment start date on or after October 1, 2009 will be considered for a fiscal year 2010 H-2B visa.
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The Los Angeles Times has reported that President Obama believes immigration reform is unlikely this year and that it must wait until 2010. Although promises of immigration reform during his first year in office were made during the campaign—and high-ranking legislators predicted reform could occur in 2009—current pressing matters, such as economic recovery and healthcare reform, have forced the administration to reprioritize. The delay is upsetting to advocates who suggest that immigration reform will not be as complex and time-consuming as the administration appears to believe.
President Obama made his statement about immigration reform while in Mexico meeting with his NAFTA counterparts, Mexican President Felipe Calderon and Canadian Prime Minister Stephen Harper. Other topics discussed at the meetings were the “Buy American” provisions of the stimulus package and the United States’ restrictions on Mexican truckers.
Legislation introduced in both the House and Senate aimed at reducing illegal immigration would expand the E-Verify employment verification system, and require its use by all employers. The Secure America through Verification and Enforcement Act (SAVE Act) (H.R. 3308, S. 1505) was originally introduced in 2007, but died in committee. The current bills introduced by Rep. Heath Shuler (D-NC) and Sen. Mark Pryor (D-Ark.) remain substantially similar to the earlier versions. Essentially, both bills contain three components to curb illegal immigration, the second of which would impact employers. Both bills would mandate the use of E-Verify, although the Senate bill provides for a slightly longer timeframe in which all employers must be in compliance with the Act. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
On Friday the Senate confirmed the nomination of Alejandro Mayorkas to serve as the director of the U.S. Citizenship and Immigration Services (USCIS), the agency within the Department of Homeland Security responsible for overseeing lawful immigration to this country. In addition to establishing immigration-related policies and services, the USCIS adjudicates the petitions and applications of potential immigrants and guest workers. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
The New York Times reports that President Obama’s approach to immigration enforcement has remained similar to that of his predecessor. Employee paperwork audits have been conducted at hundreds of businesses and prosecutions for immigration violations have increased. E-Verify, the federal program that allows employers to check applicants’ work authorization status, has been expanded, as has a cooperative program between federal, state, and local officials that runs immigration checks on individuals booked at certain local jails.
The reliance on holdover policies has upset immigrant and Latino advocates, key supporters of Obama’s election, who believed the new administration would take a different, less harsh approach. Although administration officials state that they have backed away from unpopular mass factory roundups of illegal immigrants, advocates contend that the administration’s continuation of existing programs will result in further ethnic profiling and civil rights violations.
As previously discussed, Democrats are planning to introduce an immigration reform bill sometime this year or in early 2010. Anticipating a legislative battle, influential party members have suggested members alter their language when discussing the issue—e.g., abandoning the term “undocumented” in reference to illegal immigrants—to demonstrate their commitment to preventing illegal immigration and strengthening immigration enforcement.
The nomination of Alejandro Mayorkas as director of the Department of Homeland Security’s Citizenship and Immigration Services was recommended by the Senate Judiciary Committee and the matter now goes to the full Senate for consideration.
Mayorkas served as U.S. Attorney for the Central District of California for 12 years. He has proposed an overall review of the agency, improving the department’s fraud prevention and detection operations, increasing interdepartmental cooperation, and improving E-Verify’s efficiency.
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Increased unemployment, coupled with immigration restrictions and delays has resulted in many skilled foreign workers electing to leave the United States. A recent study found that of those surveyed, 72% of Chinese nationals and 56% of Indian nationals who emigrated to the United States and then returned home thought professional opportunities were better in their home country, even though wages might not necessarily compare. Researchers estimate that possibly 200,000 skilled Indian and Chinese workers will return home over the next five years, compared with approximately 100,000 over the past 20 years.
Obtaining permanent residency can be a long process because only 9,800 green cards per country are awarded annually. BusinessWeek reports that applications from Indian and Chinese nationals can take almost a decade and, while applicants wait, visa restrictions prohibit them from changing positions, companies, or starting their own business without obtaining a separate visa. Although the Obama administration has vowed to push for immigration reform, it remains uncertain how skilled immigrants will be affected.
The Department of Homeland Security (“DHS”) recently unveiled its updated website and YouTube channel. Through the website and YouTube, DHS aims to promote transparency, provide the public with accurate, up-to-date information, and start a dialogue on the department’s security efforts.
The YouTube channel will allow users to watch speeches, public service announcements, and other related content, while the DHS website, which was redesigned based on user input to make the site more accessible, will highlight the department’s five major responsibilities:
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A recent USCIS study reports that American businesses authenticate 1 in 4 new hires’ work status using E-Verify. According to a Homeland Security Insight & Analysis article, in 2009 there have been about 6 million E-Verify queries, a considerable increase from previous years. E-Verify boasts a 96.9% accuracy rate, and the program is frequently analyzed and updated. Substantial improvements are scheduled to occur in August 2009.
Although E-Verify has been praised by many in the business community, caution over mandating usage among all employers, particularly smaller employers, has been expressed. Others, however, believe that the system represents an efficient and effective way to curb illegal immigration, and are hoping that Congress increases funding and expands the program.
Anticipating greater restrictions on H1-B visas, Indian IT firms operating in the United States are considering utilizing NAFTA provisions to avoid staffing shortages. The strategy arose in response to proposed U.S. legislation that would, among other provisions, limit the number of employees on H1-B visas in a company to 50% of its total U.S. workforce. Indian IT firms would be impacted because the majority of their U.S. staff work under H1-B visas.
As reported by Computerworld, instead of sending Indian professionals to the U.S., they would go to Mexico, and Mexican employees would work in the United States under a TN professional visa, which is easier to obtain than the H1-B. No limit applies to TN visas; they are valid for three years, and they are renewable.
The New York Daily News reports that the U.S. is moving toward ending its ban on HIV-infected foreigners entering the country. New regulations would not require HIV testing for various travel visas or permanent residence exams. The HIV travel ban started in 1987, at the height of the AIDS epidemic, but scientific and social advances have decreased concerns about the disease’s transmittal.
Congress proposed new regulations during George W. Bush’s final year in office, and with current administration backing the ban might be lifted by year’s end. The Centers for Disease Control and Prevention (CDC) is currently seeking public comment on the matter and final say will rest with the Department of Health and Human Services.
The H-1B and permanent residency programs are, as reported by Computerworld, under “assault” by the US Citizenship and Immigration Services and other agencies, which have “dramatically increased” the documentation requested of employers seeking to hire workers under the programs. In recent months, requests for evidence are becoming significantly more frequent and expansive, seeking information such as corporate payroll records, zoning maps and building fire-safety plans. 
Among the possible explanations for the stepped-up enforcement are the increased scrutiny required as part of the Troubled Asset Relief Program (which set new H-1B restrictions on firms that received bailout funds) and findings of various problems, including fraud, in nearly one in five H-1B applications (according to a USCIS study (PDF) released in fall 2008).
Crystal Williams, co-director of the American Immigration Lawyers Association (AILA), commented that the document requests are "on the border of harassment," and that the agency is "attempting to build a barrier, to make it as difficult as it possibly can be to get a visa." AILA is gathering evidence to demonstrate that the government is overstepping its authority in this area.
Senator Charles Schumer (D-NY) said he expects a comprehensive immigration reform bill to be completed by the end of this year, or early next year. According to Schumer, the bill will focus on increasing the number of highly skilled foreign workers in the U.S. and getting tougher on illegal immigration.
While business seeks to expand the skilled employee pool, particularly in the technology sector, unions have generally been against increased foreign labor. However, AFL-CIO and Change to Win, two prominent unions, came out earlier this year in favor of immigration reform, which they previously opposed. To appeal to both sides, Senator Schumer believes legislators will need to bridge the gap between them. "I think one of the ways to bridge it is to look at the different areas of labor and where there are shortages and where there are not and where just workers are being brought in for exploitive purposes — broadly put meaning just get lower wages — rather than having a shortage," Schumer said.
The United States Citizenship and Immigration Services recently changed its procedures regarding the issuance of ADIT stamps. Local USCIS offices will no longer automatically provide an ADIT stamp to an approved permanent resident applicant waiting for his or her green card.
An ADIT stamp is temporary proof of residence in the United States that is generally placed on a passport or an I-94, an Arrival-Departure Record. Previously, USCIS would automatically provide an ADIT stamp to approved applicants because of an almost eight-week delay between approval and receipt of a green card.
ADIT stamps will continue to be provided on a case-by-case basis if applicants can show they need a stamp to be issued.
Last week the Senate voted to accept an amendment (S. AMDT. 1375) to the Department of Homeland Security’s (DHS) Appropriations Bill (H.R. 2892) that would prevent the DHS from revoking its “No-Match” Rule. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
The Immigration and Customs Enforcement (ICE) has announced that it will begin to investigate workplaces in all 50 states to identify employers who are hiring undocumented workers. Specifically on July 1, 2009, ICE launched a comprehensive audit initiative and issued Notices of Inspection (NOIs) to 652 businesses nationwide. States are also beginning to increase their enforcement efforts so employers should take steps to ensure compliance with both federal and state immigration requirements. Continue reading Littler ASAP "Latest Developments in Employment Verification Enforcement" by Jorge R. Lopez, Chadwick M. Graham and Melissa M. Randall.
Yesterday, the Senate approved by voice vote an amendment (S. AMDT. 1371) to the Department of Homeland Security (DHS) appropriations bill (H.R. 2892) that would make the E-Verify program permanent. Currently a voluntary initiative, E-Verify is an Internet based system operated by DHS in partnership with the Social Security Administration (SSA) that allows employers to electronically verify the employment eligibility of potential and current employees. The amendment – introduced by Sen. Jeff Sessions (R-Ala.) – requires that all government contractors who do work for the federal government use E-Verify to screen their potential hires. Following introduction of the amendment, Sen. Charles Schumer (D-NY) criticized the E-Verify program, saying that it is a flawed system that “creates havoc for both employers and employees.” Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
Department of Homeland Security (DHS) Secretary Janet Napolitano has announced that the Obama administration will fully implement the federal contractor rule that extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. Starting on September 8, 2009, the rule will apply to federal solicitations and contract awards government-wide. At the same time, Napolitano announced that DHS intends to rescind the Social Security No-Match Rule.
In making the announcement, Napolitano commented: “E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce. . . . As Senator Schumer and others have recognized, we need to continue to work to improve E-Verify, and we will.” Initiatives now underway with respect to E-Verify are designed to:
As reported by The New York Times, support for the E-Verify system is by no means universal. Immigrant advocacy groups continue to criticize E-Verify, and the system is being challenged in federal court by the US Chamber of Commerce and other business groups, who contend that the databases it relies upon is full of errors.
Regarding the 2007 No-Match Rule, which was blocked by court order shortly after issuance and has never taken effect, DHS will propose a new regulation that will rescind the rule. With respect to rescission of the No-Match Rule, the DHS announcement noted that the E-Verify system addresses data inaccuracies more quickly and “provides a more robust tool for identifying unauthorized individuals and combating illegal employment.”
As reported by Reuters, Silicon Valley is experiencing a brain drain of foreign-born students, many of whom are returning to their home countries due to immigration hurdles. The very long waiting time for US permanent residency, combined with comparatively attractive job markets in India and China, is driving the trend.
Observers warn that the flow of foreign students out of the United States will eventually damage its high-tech industry competitiveness. More than half of the Silicon Valley start-up companies established between 1995 and 2005 had a founder who was a foreign national. In addition, foreign nationals earn half of the masters degrees and 71% of the doctorates in electrical engineering at US universities.
Senator Charles Schumer (D-NY), chairman of the Senate Judiciary subcommittee on immigration, has strongly criticized the E-Verify system and proposes replacing it with a biometric-based federal employment verification system. As reported by Workforce Management, Schumer has called E-Verify “unfair” because it singles out individuals with Hispanic surnames and “ineffective” because unauthorized workers can slip through the system by using stolen Social Security numbers and fake IDs.
However, it is far from certain that Schumer’s plan to scrap E-Verify will succeed. The House recently approved a homeland security appropriations bill that includes a two-year reauthorization of E-Verify, and it also has approved redirecting $50 million of the DHS budget to the U.S. Customs and Immigration Services for E-Verify enhancements.
On July 1, U.S. Immigration and Customs Enforcement (ICE) initiated a significant new audit initiative by issuing Notices of Inspection (“NOIs”) to 652 businesses, which is more in one day than ICE issued throughout the entire last fiscal year. ICE’s announcement of this action stated:
This new initiative illustrates ICE's increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.
The NOIs alert business owners that ICE will be inspecting their hiring records to determine whether they are complying with employment eligibility verification laws and regulations. The 652 businesses presented with NOIs for a Form I-9 audit were selected as a result of investigations; the names and locations of the businesses were not released.
President Barack Obama has asked Homeland Security Secretary Janet Napolitano to meet regularly with members of Congress in order to systematically resolve various immigration issues, including treatment of the 12 million illegal immigrants currently in the country and prevention of illegal immigration going forward. As reported by Reuters, statements by Obama and by various lawmakers emphasize the urgent need to enact immigration reforms soon.
Following a recent meeting with Republican and Democratic lawmakers, Obama told the press, “Despite our inability to get this passed over the last several years, the American people still want to see a solution.” Also following the meeting, Senator Charles Schumer (D-NY) stated that Obama has set a goal of passing legislation by the end of 2009 or early 2010. Senator Lindsey Graham (R-SC) stated that, due to the political heat caused by immigration issues, he sees only “one more chance” to enact legislation:
If we can't get it done this time around, no politician is going to take this up in a generation. That would be a shame for this country.
U.S. Citizenship and Immigration Services (USCIS) has announced that the Employment Eligibility Verification form I-9 (Rev. 02/02/09) currently on the USCIS website will continue to be valid for use beyond June 30, 2009.
USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire.
When the extension is approved, USCIS will update Form I-9. Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.
U.S. Citizenship and Immigration Services (USCIS) has announced that, working together with the Federal Bureau of Investigation (FBI), it has eliminated the FBI National Name Check Program (NNCP) backlog. The final goal of an April 2008 joint business plan was to achieve a sustainable performance level by the NNCP of completing 98% of name check requests submitted by USCIS within 30 days, and the remaining 2% within 90 days. This performance level will become the new standard.
Secretary of State Hillary Clinton, speaking before the U.S.-India Business Council, outlined her plans for a “dramatic expansion” in U.S./India relations and touched upon concerns voiced by the Indian IT community and the Indian government that proposed restrictions on the H-1B visa program are a form of protectionism. As reported at Computerworld.com, Clinton remarked that both countries should "work through any issues in our relationships and differences in our perspectives by focusing on shared objectives and concrete results." Meera Shankar, India's ambassador to the United States, stated that India's IT talent has helped U.S. firms become more competitive globally, while also stimulating the U.S. economy by creating jobs and increasing profits.
U.S. Citizenship and Immigration Services (USCIS) has announced that, as of June 19, 2009, approximately 44,500 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.
U.S. Citizenship and Immigration Services (USCIS) announced (PDF) today that it will resume premium processing of I-140 immigrant visa petitions effective June 29, 2009. This new policy will allow for the premium processing of I-140 immigrant petitions for alien workers filed under the following categories: EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals.
At this time premium processing is not available for I-140 petitions filed under the EB-1 Multinational Executives and Managers or EB-2 Members of Professions with advanced Degrees or Exceptional Ability seeking a National Interest Waiver.
Premium processing is a service offered by the USCIS that allows petitioners to pay an additional $1,000 fee in exchange for a guarantee that the USCIS will issue either an approval notice, a notice of intent to deny, a request for evidence, or open an investigation for fraud or misrepresentation within 15 days of receipt of the application and premium processing request. In addition to the accelerated processing time, petitioners also have access to a dedicated premium processing telephone line and email address to check on the status of a petition or ask other questions relating to their petition.
Given current USCIS processing times for I-485 Adjustment of Status applications and immigrant visa retrogression in many categories, it is not likely that this service will have a significant impact on overall green card processing times for most applicants. However, it may in some circumstances benefit petitioners and beneficiaries of I-140 applications.
This entry was authored by Sam Adair.
As reported in The New York Times, the Transportation Security Administration (TSA) is preparing to assume responsibility (currently assigned to airlines) for checking passengers’ names against terrorist watch lists, and is advising travelers to book airline tickets using their full name as it appears on their driver’s license or passport. Also, later this summer the TSA will begin requiring airlines to ask passengers for their birth date and gender during the ticketing process. Airlines will send this information to the TSA with the intent of making the watch list matching process more accurate.
The TSA has set August 15, 2009 as the target date for the airlines to begin asking for each passenger’s full name, gender and date of birth, and has begun publicizing the program, called Secure Flight. However, because many airlines’ reservation systems are not yet prepared to accept this additional information, the TSA has acknowledged that it will need to phase in the program as the airlines update their systems. For now, airlines are advising passengers not to worry if there is no field for entering their middle name, gender or date of birth when purchasing a ticket.
Senator Charles Schumer (D-NY), the new chairman of the immigration subcommittee, strongly supports introducing "forgery-proof" worker identification cards, which would be secured with fingerprints or other biometric data. Schumer, who is heading the Senate’s efforts to draft comprehensive immigration reform legislation, has stated that such an ID card would be the best method of confirming that workers are authorized. As reported in The Los Angeles Times, Schumer is likely to present the worker ID card plan at an upcoming hearing on employee verification systems.
In his book Positively American (published in 2007), Schumer wrote: “The ID will make it easy for employers to avoid undocumented workers, which will allow for tough sanctions against employers who break the law, which will lead to no jobs being available for illegal immigrants, which will stop illegal immigration. …. Once Americans are convinced that we will permanently staunch the flow of illegal immigration, they will be more willing to accept constructing a path toward earned citizenship for those who are already here.”
Although some business and community organizations support the concept of a worker ID card, others argue that the cards would violate privacy rights and civil rights.
Under current U.S. immigration law, 140,000 employment-based (EB) immigrant visas (green cards) are available to foreign workers every year. This number is broken down into preference categories, including the EB-1, EB-2, and EB-3 categories (the most widely used employment categories), as well as EB-4 (religious workers and other special immigrants), and EB-5 (investor) categories. The number is further broken down by an applicant’s country of birth resulting in approximately 2,800 available visas per country per EB category per year. Individuals born in countries with higher demand, including India and China, have significantly longer wait times to obtain green card approval due to the limited annual availability.
Each month, Charles Oppenheim of the U.S. Department of State provides an estimated calculation of immigrant visa availability for the following month, and this information is published through the State Department’s Visa Bulletin. These estimates form the basis for an individual’s eligibility to apply for an immigrant visa depending on his/her preference category and country of birth.
On June 10, Oppenheim made dire predictions for immigrant visa availability for the rest of 2009 and into 2010. The increased demand in the EB-4 “religious worker and other special immigrants” category, as well as the EB-5 “investor” category, is partly to blame. Most years there are significant unused numbers from those categories, which then pass through to the EB-1 and EB-2 categories. Without these additional numbers, EB-1 and EB-2 categories will be stretched very thin. Those born in India and China already experience backlogs in the EB-2 category, and it is anticipated that this will become much worse if there are no unused numbers that flow from the EB-4 and EB-5 categories.
As reported by The Telegraph, officials from the Department of Homeland Security and the Department of State are planning to significantly decrease the visa processing delays faced by foreign students and researchers. Under a new “streamlined” process, the time needed for a visa security review will be reduced from several months to two weeks. American universities that rely upon foreign science and engineering graduates and doctors—especially from China and India—to lead scientific and technical research projects have complained about the delays in the American visa application process.
The Senate Judiciary Committee held a hearing regarding Sen. Patrick Leahy’s (D-VT) proposal to allow U.S. citizens and legal immigrants to seek residency for their same-sex partners. As reported by The New York Times, Sen. Leahy has said that his initiative, contained in the Uniting American Families Act (S. 424), should be included in any comprehensive immigration legislation that Congress considers.
Currently, family unification provisions allow American citizens and legal residents to petition for residency for their spouses. Same-sex couples, however, cannot petition for partners; as a result, immigrant partners are at risk of deportation. The Uniting American Families Act would add the term “permanent partner” to immigration law provisions that refer to married couples and would legally define that term. Opponents of Sen. Leahy’s proposal argue that it would facilitate immigration fraud because it would be difficult for immigration officers to determine whether same-sex couples actually had an established relationship.
The Department of Labor is suspending the H-2A Final Rule (published on December 18, 2008 and in effect as of January 17, 2009). That Final Rule amended the regulations governing the certification for temporary employment of nonimmigrant workers in agricultural occupations on a temporary or seasonal basis, and the enforcement of contractual obligations applicable to employers of such nonimmigrant workers. To ensure continued functioning of the H-2A program, the DOL is republishing and reinstating the regulations in place on January 16, 2009 for a period of nine months, after which the Department will either have engaged in further rulemaking or lifted the suspension.
The notice of suspension (PDF) was published in the Federal Register on May 29, 2009, and the suspension is effective June 29, 2009. In order to answer employers’ questions about the suspension, the Office of Foreign Labor Certification has issued the document “H-2A Notice of Final Suspension: Frequently Asked Questions”(PDF).
A bill introduced by Rep. Gabrielle Giffords (D-AZ) would extend the E-Verify program through September 2014. The Employee Verification Amendment Act of 2009 (H.R. 2679) would also order a General Accounting Office (GAO) study to determine the cause of errors made by this employment verification system, and its effects on small businesses. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
The United States’ Western Hemisphere Travel Initiative (WHTI), which heightens the document requirements for entering and re-entering the United States by land or sea, went into effect on June 1. The WHTI requires all citizens of the US, Canada, Mexico, Bermuda, and Caribbean nations to have a passport or other form of approved documentation in order to enter or depart the US. As reported by JURIST, some have voiced concerns about the rules’ impact on tourism in the US and Canada, whose border has been called the "world's longest undefended border." The WHTI rules were promulgated under the Intelligence Reform and Terrorism Prevention Act of 2004, which required the Department of Homeland Security and the Department of State to develop and implement a plan requiring travelers to present secure identification documents when entering or re-entering the United States.
The federal government has told a Maryland judge that it plans to delay for the fourth time the effective date of a rule requiring certain federal contractors and subcontractors to use the E-Verify program. Continue reading about this development on Littler's Washington DC Employment Law Update blog.
The Department of State has announced the opening of its 21st domestic passport issuance facility in Minneapolis, Minnesota. The Minneapolis Passport Agency, which opened on May 18, is designed to provide in-person passport services to American citizens throughout the North Central border region. The announcement noted: “With the final phase of the Western Hemisphere Travel Initiative scheduled to be implemented June 1, 2009, this agency will greatly improve our ability to meet the travel needs of our customers in several of our northern border states.” The Minneapolis Passport Agency serves U.S. citizens who have urgent/emergency travel needs, and has the capability to issue passport books and passport cards on-site to qualified applicants.
Som Mittal, president of Nasscom, the industry association representing Indian software and IT services firms, recently met in Washington, D.C. with various U.S. government officials and representatives of trade organizations. In an interview with InformationWeek, Mittal stated that he was in D.C. "to provide perspective on the Durbin-Grassley bill," bipartisan legislation aimed at preventing abuse and fraud in the H-1B and L-1 visa programs. Based on his meetings, Mittal said he thinks that the Obama administration and Congress are likely to consider H-1B and L-1 provisions as part of broader immigration reforms, perhaps later this year.
Mittal also noted that, from his perspective, the H-1B and L-1 visa programs should be considered matters of trade policy rather than immigration, stating: “Our data shows that [H-1B visa holders] stay in the U.S. less than two years.” He further commented:
Other countries, including the U.K., France, Germany, Japan, and India provide work permits to bring in foreign workers temporarily. It's not about immigration, it's about trade.
As reported in The Los Angeles Times, the E-Verify program recently received a few boosts, with the Obama administration announcing that it wants Congress to allocate an additional $12 million to the program in the next fiscal year (bringing its budget to $112 million) and Department of Homeland Security Secretary Janet Napolitano stating in a congressional hearing that E-Verify was "a cornerstone of workplace enforcement across the country." Almost 125,000 businesses are signed up for the E-Verify program. Some argue, though, that E-Verify will not solve the issue of illegal immigration and that expansion of the program would only push more undocumented workers underground. Others generally support E-Verify but criticize the program’s accuracy rate. The government reports that E-Verify has a 96% accuracy rate, and Napolitano has stated that the government plans to improve the accuracy of the databases.
On May 11, the U.S. Citizenship and Immigration Services (USCIS) issued an announcement reminding customers that Public Law 111-9 extends—until September 30, 2009—the date by which international medical graduates must have be granted J-1 nonimmigrant status in order to later qualify for the “Conrad 30” program. Before this latest extension, the most recent sunset date for qualifying J-1 admission was March 6, 2009.
The current sunset date of September 30, 2009 applies to the date the medical doctor originally entered the United States in J-1 status or received a change of status to J-1 to complete a residency program in the United States. Doctors who acquired J-1 status before September 30, 2009 may pursue a waiver of the two-year foreign residence requirement under the Conrad 30 program, if they meet all the eligibility requirements
Department of Homeland Security Secretary Janet Napolitano, speaking at a Senate Judiciary Committee hearing, stated that ensuring jobs for U.S. workers is one of her "top obligations," and that the DHS is increasing its enforcement of the H-1B visa program. As reported by Computerworld, Napolitano cited new fraud prevention tactics—including visits to work sites—implemented over the past month as an example of measures being taken to prevent abuses of the H-1B program. A 2008 study (PDF) by the U.S. Citizenship and Immigration Service, found that as many as one in five H-1B applications were affected by either fraud or "technical violations" of the program.
Napolitano’s comments were in response to a question from Sen. Richard Durbin (D.-Ill.) raising concerns about H-1B visa holders displacing American workers. Durbin is co-sponsor of the H-1B Visa Fraud and Abuse Protections Act (S. 887) (see our previous post), which includes several enforcement provisions such as audits of employers. Napolitano stated that "our top obligations are to American workers, making sure American workers have jobs."
Under a pilot program that was launched in New York in February and recently expanded to Los Angeles, the Army is waiving—for applicants who have certain skills—its requirement that recruits be U.S. citizens or green card holders. Through this program, the Army hopes to enlist 1,000 foreigners who have special language or medical skills and who are in the United States on temporary visas or have been granted asylum. As reported by The Los Angeles Times, response to the program has exceeded expectations, attracting applications from more than 7,000 people, many of them highly educated.
The program is aimed at addressing the shortage of soldiers with medical, foreign language and cultural abilities needed in the war on terror and peacekeeping efforts around the world. The Army seeks to enlist 333 healthcare professionals (including doctors, dentists, and nurses) and 557 people skilled in any of 35 languages, such as Arabic (but Spanish is not on the list). An additional 110 slots are earmarked for other services.
According to a new report by the Center for Immigration Studies, immigrants to the United States have been hit harder by the recession as compared to native-born Americans, with larger increases in unemployment among both educated and uneducated workers. The report, which was based on U.S. Census statistics, found that immigrants (legal and illegal) now have significantly higher unemployment than natives, which represents a departure from the recent past, when native-born Americans typically had higher unemployment rates. Immigrant unemployment in the first quarter of 2009 was 9.7%, the highest level since 1994 (when data began to be collected for immigrants). The current unemployment rate for natives is 8.6%, also the highest since 1994.
Other key findings of the study include:
As reported in The Los Angeles Times, Steven Camarota, the study's coauthor, commented that many of the immigrant job losses came in low-skill occupations. In construction, for instance, the immigrant jobless rate climbed to 20% in the first quarter of 2009, from 4.7% 18 months earlier.
Former Federal Reserve Chairman Alan Greenspan, appearing before a Senate subcommittee, commented that illegal immigrants make a “significant” contribution to U.S. economic growth by increasing the flexibility of the workforce. As reported at Bloomberg.com, Greenspan also spoke in support of reforming the U.S. immigration laws, calling changes that would create legal avenues for workers to enter the country “badly needed.”
Greenspan was speaking before the Senate Judiciary Subcommittee on Immigration, Refugees and Border Security, which has commenced hearings on revisions to immigration policies. During his remarks, Greenspan also stated that, because U.S. schools do not produce enough skilled workers, the H-1B visa program should be expanded in order to fill the gap with immigrants who hold advanced degrees.
The State Department has published a revised Exchange Visitor Skills List in the April 30 issue of the Federal Register. The Skills List serves as the basis for making some J-1 visa holders subject to a two-year home country residence requirement. J-1 Exchange Visitors whose skills or fields of specialized knowledge appear on the Skills List will not be eligible to change to H or L temporary visa status or permanent residence until the two-year foreign residence requirement is satisfied or waived. The new list takes effect on June 28. Continue reading about this development in the Littler ASAP "State Department Publishes New Exchange Visitor Skills List," written by Debra Baker, Jorge R. Lopez, Ian R. MacDonald and David C. Whitlock.
On April 30, the Department of Homeland Security (DHS) issued a Fact Sheet discussing its revised Worksite Enforcement Strategy. The DHS enforcement strategy was revised at the direction of DHS Secretary Janet Napolitano after she expressed concerns that enforcement efforts were targeted more at employees rather than employers abusing the law. Indeed, the Fact Sheet acknowledges that there were more than 6,000 arrests related to worksite enforcement in 2008, but only 135 employers were arrested.
The revised strategy "reflects a renewed Department-wide focus targeting criminal aliens and employers who cultivate illegal workplaces by . . . knowingly hiring illegal workers." Immigration and Customs Enforcement (ICE) is to focus its resources on the criminal prosecution of employers that knowingly hire illegal workers, but will continue to arrest and prosecute illegal workers found during the course of worksite enforcement actions. ICE will also use all available civil and administrative tools, including fines and debarment, to deter illegal employment.
The Fact Sheet indicates that ICE will look for evidence of mistreatment of workers in addition to evidence indicating criminal conduct such as trafficking, smuggling, harboring, visa fraud, identification document fraud, or money laundering. Before conducting a raid and arresting workers at the site of employment, ICE will obtain indictments, criminal arrest or search warrants, or a commitment from the US Attorney's office to prosecute the employer. The existing humanitarian guidelines governing ICE’s behavior in raids affecting 150 or more employees will now apply to worksite enforcement efforts impacting 25 or more illegal workers.
The revised enforcement strategy suggests that there will be increased criminal enforcement efforts and interagency cooperative investigations. It is likely that ICE will continue the growing trend of planting agents within the employer's workforce to gather evidence of criminal activity. Going forward, it is almost a certainty that enforcement efforts will begin with an audit of I-9 compliance, particularly for employers in industries with high percentages of illegal workers, as well as for employers engaged in infrastructure projects. A recent Congressional Research Service report (PDF) analyzing unauthorized employment in the U.S. listed the following industries as having significant (over 10%) employment of illegal workers: Food Manufacturing, Agriculture, Furniture Manufacturing, Construction, Textiles and Apparel, Food Services, Administrative and Support Services, and Accommodation. Employers in these industries should review their I-9 compliance and adopt best practices to avoid adverse consequences related to employment of unauthorized workers.
This entry was authored by David Whitlock.
On April 27 the U.S. Citizenship and Immigration Services (USCIS) announced that it has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated cap of 65,000 for the fiscal year 2010 program. The agency continues to accept petitions subject to the general cap.
In addition, USCIS has received approximately 20,000 petitions for aliens with advanced degrees. Congress has mandated that the first 20,000 of these petitions are exempt from any fiscal year cap on available H-1B visas. Even though the numbers are close, USCIS will continue to accept advanced degree petitions, since experience has shown that not all petitions received are approvable.
Regular updates on the processing of FY2010 H-1B petitions are available at the USCIS website.
The Australian government has enacted amendments that will increase the range of visas and citizenship provisions available to same-sex couples. Amendments to the Immigration (Education) Act 1971, Migration Regulations 1994 and Migration Act 1958 will take effect on July 1, 2009. Key changes to migration legislation include:
Further details about the changes are available on the Department of Immigration and Citizenship (DIAC) website.
Last week Assistant Senate Majority Leader Richard Durbin (D-Ill.) and Sen. Charles Grassley (R-Iowa) introduced legislation that would completely reform the H-1B and L-1 visa guest worker programs. The H-1B and L-1 Visa Reform Act (S. 887) aims to close perceived loopholes in the programs that critics argue allow foreign workers to displace qualified Americans seeking the same employment. Continue reading this entry on Littler's Washington DC Employment Law Update blog.
President Obama has announced his intent to nominate Alejandro Mayorkas to serve as the director of the U.S. Citizenship and Immigration Services (USCIS). The USCIS is the agency within the Department of Homeland Security responsible for overseeing lawful immigration to this country. To that end, the USCIS adjudicates, among other things, the petitions and applications of potential immigrants and guest workers. Continue reading this entry on Littler's Washington DC Employment Law Update blog.
The Department of Labor (DOL) published a Final Rule on the labor certification process and enforcement for H-2B employment on December 19, 2008, which became effective on January 18, 2009. The Final Rule made some significant changes in the processing of applications for H-2B labor certifications. In response to questions raised regarding the application of the new regulations, the DOL has released (PDF) a list of “Frequently Asked Questions” (FAQs).
The FAQs cover the following topics:
Representatives Gabrielle Giffords (D-AZ) and Sam Johnson (R-TX) have introduced a bill that would establish a mandatory electronic verification system to take the place of E-Verify. As reported at Workforce.com, Giffords and Johnson hope their bill, the New Employee Verification Act, will either be the foundation for employment verification in a broader immigration bill or move through Congress on its own.
The proposed legislation would:
Giffords and Johnson have collaborated on the legislation with The HR Initiative for a Legal Workforce, which is led by the Society for Human Resource Management.
Leaders of the AFL-CIO and Change to Win labor federations have announced a proposed framework for reforming the U.S. immigration system, a key feature of which is the formation of an independent commission to evaluate how many immigrants should be admitted to fill temporary and permanent jobs without displacing U.S. workers. As reported in The Wall Street Journal, the unions contend that the current visa levels are outdated and often keep immigrant workers in temporary status, with fewer benefits and job protections. Business groups, however, argue that temporary worker programs do not put immigrant workers at a disadvantage and are effective. In particular, business groups argue that temporary worker programs are essential to filling labor-intensive, low-skill jobs (such as in the agricultural sector).
The announcement of the proposed framework could lead to renewed debate of immigration issues and provide the Obama administration and congressional Democrats with additional leverage for introducing legislation.
The proposed framework is based on a new report, “Immigration for Shared Prosperity,” written by former Labor Secretary Ray Marshall in coordination with the Economic Policy Institute, a liberal think tank in Washington.
On April 20, 2009, U.S. Citizenship and Immigration Services (USCIS) provided its second update regarding the H-1B cap count. USCIS has received approximately 44,000 H-1B petitions subject to the regular cap of 65,000. This represents only 1,000 additional filings since April 13th and means that new H-1B petitions may still be filed.
In addition, USCIS has received approximately 20,000 H-1B petitions eligible for the U.S. advanced degree exemption. Although the exemption is limited to 20,000 H-1Bs, USCIS continues to accept petitions since prior experience has shown that a certain percentage of submissions will be denied. Therefore, to reach the 20,000 petitions actually approved, USCIS must accept additional petitions.
This entry was written by Aimee Clark Todd.
E-Verify is an Internet-based system operated by the Department of Homeland Security's U.S. Citizenship and Immigration Services (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to verify electronically the identity and employment eligibility of their newly hired employees, regardless of citizenship. Specifically, the SSA will verify that the name, Social Security number, and date of birth are correct, and the DHS will verify that the employee is in an employment-authorized immigration status. Continue reading the April 2009 Littler "Insight" publication "A Basic Guide to E-Verify and Related Immigration Compliance: Everything Federal Contractors and Others Need to Know to Comply with E-Verify Requirements," written by Jorge R. Lopez, Joshua S. Roffman, Aimee Clark Todd, Shin-I Lowe and Lisa A. Cottle.
On April 16, 2009, the U.S. Department of Defense announced that the effective date of the Federal Contractor E-Verify Rule will be delayed until June 30, 2009. To that end, the federal government will include the new E-Verify clause in affected contracts on or after June 30, 2009. The government will also take steps to reach out to affected contractors to bi-laterally modify existing affected contracts on or after that date.
On June 6, 2008, President George W. Bush issued Executive Order 13465, entitled “Economy and Efficiency in Government Procurement through Compliance with Certain Immigration and Nationality Act Provisions and the Use of an Electronic Employment Eligibility Verification System.” Three days later, the Secretary of Homeland Security designated the E-Verify system as the system to be used by federal contractors to satisfy the Executive Order’s mandate. The final rule requiring certain federal government contractors to use the E-Verify system to confirm their employees’ eligibility to work in the United States was first published by the Department of Defense (DOD), General Services Administration (GSA) and National Aeronautics and Space Administration (NASA) in the Federal Register on November 14, 2008. It was scheduled to go into effect on May 21, 2009.
Notice of the delay until June 30, 2009 is expected to be published in the April 17, 2009 edition of the Federal Register.
This entry was authored by Lisa Cottle.
As reported at Stateline.org, a new report finds that the estimated 12 million illegal immigrants in the United States are settling in states such as Georgia and North Carolina, where relatively few lived 20 years ago. The findings could have financial implications for already stressed state and local governments.
Highlights of the report, conducted by the nonpartisan Pew Hispanic Center, include:
The Pew Hispanic Center periodically examines trends in the unauthorized immigrant population. State and local officials watch such trends carefully because state and local governments pay for the services provided to illegal immigrants, especially education, health care and public safety.
The Centers for Disease Control and Prevention (CDC) is seeking public comment on a set of proposed criteria to be used in determining which vaccines, among those recommended by the Advisory Committee on Immunization Practices (ACIP) for the United States’ general population, should be required for immigrants seeking admission into the U.S. or seeking permanent residence status. These specific criteria will be applied against each vaccine, rather than requiring all ACIP recommended vaccines for immigration purposes.
Through a notice (PDF) published in the Federal Register on April 8, CDC has proposed the following criteria:
The deadline for submitting written comments is May 8, 2009.
President Barack Obama plans to begin addressing changes to the U.S. immigration system this year, even though he acknowledges that the recession makes the politics involved in this divisive issue even more challenging. As reported in The New York Times, a senior administration official stated that Obama will frame the new effort as “policy reform that controls immigration and makes it an orderly system.”
Without stating specific proposals, officials commented that the Obama administration favors legislation that would:
Obama plans to speak publicly about immigration issues in May, and over the summer he will convene bipartisan working groups, composed of lawmakers and a variety of immigration groups, to begin discussing possible legislation. Administration officials are still debating the precise timing and strategy for the proposed legislation.
On March 30, 2009, U.S. Representative Jeff Flake (R.-AZ) introduced legislation (H.R. 1791) that would amend the Immigration and Nationality Act to authorize “certain aliens who have earned a Ph.D. degree from a United States institution of higher education in a field of science, technology, engineering, or mathematics” to be exempted from the numerical caps on H-1B visas. The bill, titled “Stopping Trained in America Ph.D.s From Leaving the Economy Act of 2009” (the “STAPLE Act”), was referred to the House Judiciary Committee. In addition to the exemption from the H-1B numerical cap, the legislation also would exempt the specified foreigners from the numerical limitations on permanent residence.
As reported at the DailyRecord.com, Department of Homeland Security Secretary, Janet Napolitano, has stated that she supports the E-Verify program and would like to see it extended beyond its current expiration date of September 30, 2009. Napolitano also remarked that the Obama administration has not yet taken a position on whether to require all U.S. employers to use E-Verify.
During her interview with Gannett Washington Bureau, Napolitano referred to her experience with E-Verify while she was governor of Arizona. Napolitano stated:
Some of the arguments that are made about how [E-Verify] works or does not work don’t carry much water with me. I’ve already used it for several years. It works.
Senators Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa) plan to reintroduce legislation that would require employers to make a “good faith” effort to hire U.S. citizens over H-1B visa holders, Computerworld.com reports. The two senators introduced a similar bill in March 2007, but that bill died after being folded into a comprehensive immigration reform bill that never went up for a vote.
The bill that Grassley and Durbin proposed in 2007, which they called “The H-1B and L-1 Visa Fraud and Abuse Prevention Act,” will be reintroduced with some changes, but its general outline is expected to remain the same. The 2007 bill would have required employers to advertise job openings for 30 days before submitting H-1B applications for those positions. The bill also sought to prevent employers from hiring H-1B workers and then outsourcing them to other companies.
The widespread layoffs being caused by the economic downturn may increase the chances of success for a new bill. Earlier in 2009, Grassley and Sen. Bernie Sanders (I-Vt.) succeeded at getting H-1B hiring restrictions on financial services firms receiving federal bailout money into the economic stimulus package.
Yesterday the immigration community was surprised to learn that while the 20,000 H-1B numbers set aside for the advanced U.S. degree cap were nearly all accounted for, only two-thirds of the 65,000 regular H-1B cap numbers were used up. This means that the U.S. Citizenship and Immigration Services (USCIS) continues to accept applications for initial H-1B status more than a week after the H-1B filing season opened up on April 1st. This is in stark contrast to the 133,000 H-1B petitions received within the first two days of filing last year.
This scenario is not surprising because of the available H-1B numbers. Indeed, the battered U.S. economy coupled with the recent legislative action against recipients of Troubled Assets Relief Program (TARP) funding foreshadowed less demand for H-1Bs this year.
The intriguing part is the inversion of the regular and advanced U.S. degree caps. From the time the 20,000 set aside came into existence for those holding advanced U.S. degrees, it has always taken longer to exhaust than the 65,000 regular H-1B numbers. This indicates that similar numbers of foreign students getting U.S. masters and doctorate degrees are being sponsored for H-1B status, while the demand for those holding bachelors degrees or foreign degrees has dropped significantly.
This does not mean that petitions should not be filed on behalf of individuals possessing advanced U.S. degrees. It simply means that their H-1Bs will now be drawn from the remaining regular cap numbers.
On the day USCIS determines that sufficient petitions have been received to meet the annual limit, a random selection lottery will be conducted for all cases received on that day. Cases not selected in the lottery will be rejected.
This entry was authored by Chad Graham.
The Office of Foreign Labor Certification (OFLC) has announced (PDF) a new iCERT Visa Portal System, starting April 15, 2009. The iCERT System will allow employers to:
The OFLC’s announcement includes a implementation timeline for the iCERT system.
Effective March 28, application forms for any temporary Australian visa must meet new health requirements, the Australian Visa Bureau reports. The working holiday visa and the holiday visa are affected by these changes. Changes to the health requirements include:
The revised health requirements and the revised health procedures advice manual are available on the Department of Immigration and Citizenship website.
Due to planning levels being achieved, some occupations have been removed from the Permanent Sponsorship and Provisional Sponsorship lists of the South Australian sponsored visa program, the Australian Visa Bureau reports. One occupation (hairdresser) was removed from the Permanent Sponsorship list, and several occupations (including construction project manager, statistician, health information manager, social professional, hairdresser and various scientist positions) were removed from the Provisional Sponsorship list. These amendments follow the Australian federal government’s recent changes to the General Skilled Migration Program, which reduced the number of occupations listed on the Critical Skills List.
The UK Border Agency has announced changes to the immigration rules for the following categories of business visitors:
Details of these changes are outlined in the immigration rules and the immigration directorate instructions.
Homeland Security Secretary Janet Napolitano has tapped a hot-button immigration issue by aiming enforcement efforts at employers. As reported in the Los Angeles Times, field guidelines for the Department of Homeland Security’s Immigration and Customs Enforcement agents will shift focus away from workplace raids aimed at rounding up individual undocumented workers and, instead, will go after the employers themselves. An emphasis will be placed on arresting and prosecuting employers who knowingly employ undocumented workers.
This shift is in line with a declaration made by President Barack Obama during last year’s campaign in which he claimed that past enforcement policies had failed because they focused on the individual rather than the employer. Targeting employers is a strategic attempt to reduce the supply of jobs available to undocumented workers. But with an estimated 12 million people currently living in the United States illegally, the shift raises uncertainty as to whether there is a sufficient number of willing and qualified U.S. workers to fill positions vacated when employers begin purging their workforces.
The Department of Homeland Security has made it clear that it still plans to conduct worksite enforcement raids. Still, this fundamental shift in priorities raises serious additional concerns for employers who could find themselves facing criminal charges. Even though it is difficult to prove that an employer “knowingly” employed undocumented workers—which provides a potentially large loophole for employers—the threat alone may have a significant impact on the workplace.
This entry was authored by Chad Graham.
A study commissioned by the Ewing Marion Kaufman Foundation, a private, nonprofit foundation, concluded that few foreign nationals studying at universities in the United States plan to remain permanently in this country to pursue careers after graduation. The study surveyed 1,224 students from India, China and Western Europe via the Facebook social networking site. The students' fields of study primarily included engineering, business and economics, computer science and biological sciences.
In previous surveys of doctoral recipients in science and engineering by the National Science Foundation, 92 percent of students from China and 85 percent of students from India said they intended to stay in the United States to work or conduct research for at least five years after graduating. In contrast, the new survey shows that only 54 percent of the students from China and 58 percent of the students from India want to stay in the United States for a few years after graduation, and only 10 percent of students from China and 6 percent of students from India said they wanted to remain permanently.
The researchers conducting the survey concluded that the results reflected the students’ assessment that there are better economic opportunities in their home countries than in the U.S. Approximately 74 percent of the students from China and 86 percent of the students from India said they believed their home countries' economies will grow faster in the future than they have in the past decade. Almost the same percent of these students said they thought it would be difficult to find a job in their field in the United States. One of the authors stated, “The challenge for the U.S. is to preserve the economic dynamism and openness that has long made us a magnet for talented immigrants."
More information about the study is available online at the Kaufman Foundation Web site at: http://www.kauffman.org/Newsroom.aspx.
At a meeting attended by all 24 members of the Congressional Hispanic Caucus, President Obama stated his intent to push for a comprehensive immigration overhaul during the first year of his presidency. Although the president was said to have discussed specific timelines for legislation, neither the President nor the attendees disclosed dates for action following their meeting. The White House sought to play down the talks and the substance of the discussions apparently in recognition of how difficult it will be to gain the support needed to pass legislation creating substantial change in immigration policy. Rep. Raul Grijalva, a Democrat from Arizona who attended the meeting, said that President Obama promised to use his executive authority to make some substantive immigration changes soon, without waiting for passage of legislation.
U.S. Citizenship and Immigration Services (USCIS) has announced that on April 1, 2009 it will begin accepting H-1B petitions for the fiscal year 2010. Petitions will be considered accepted on the date that USCIS takes possession of the petition, not the date that the petition is postmarked. H-1B petitions cannot be filed more than six months in advance of the requested start date.
The H-1B program allows businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. The 2010 fiscal year numerical cap for H-1B petitions is 65,000, but the first 20,000 H-1B petitions filed on behalf of foreign citizens who have earned a U.S. masters’ degree or higher will be exempt from the cap. H-1B petitions for employment at institutions of higher education or related or affiliated nonprofit organizations, nonprofit research organizations, or governmental research organizations also will be exempt from the cap.
Detailed information, including a processing worksheet, to assist in the completion and submission of fiscal year 2010 H-1B petitions is available on the USCIS web site www.uscis.gov or by contacting the USCIS National Customer Service Center at (800) 375-5283.
As discussed in our previous entry, the new Form I-9 (revision date 2/02/2009) is currently scheduled to go into effect on April 3, 2009. The new I-9 form is available on the U.S. Citizenship and Immigration Services website. The new I-9 and the interim rule creating it were originally published in the Federal Register on December 17, 2008, with a correction published on January 16, 2009. However, on January 30, 2009, the U.S. Department of Homeland Security (DHS) announced that implementation of the new I-9 would be postponed until April 3, 2009. Notice of the delay appeared in the February 3, 2009 edition of the Federal Register. Continue reading Littler ASAP "Countdown to Effective Date of New I-9" by Jorge R. Lopez and Lisa A. Cottle.
The Department of State has issued an announcement declaring Saturday, March 28, 2009, as “Passport Day in the USA,” a national outreach event to inform the public about the upcoming changes to U.S. travel document requirements, provide passport information and accept passport applications from U.S. citizens from coast-to-coast and border-to-border. All Department of State Passport Agencies and many Passport Acceptance Facilities around the country will host passport application acceptance events. The State Department is encouraging U.S. citizens without a valid passport book or passport card to apply on this day.
On March 12, 2009, a federal district court in Illinois ruled that a state law prohibiting employers from enrolling in the federal E-Verify program violates the Supremacy Clause of the United States Constitution. United States v Illinois, CDIll, No 07-3261 (Mar. 12, 2009). The Illinois Right to Privacy in the Workplace Act (Ill. P.A. 95-137), scheduled to take effect on January 1, 2008, amended the Illinois Right to Privacy Act by prohibiting employers in the state from enrolling in the E-Verify program until the Social Security Administration and the Department of Homeland Security (DHS) were able to achieve a 99% accuracy rating with regard to making a determination on tentative nonconfirmation notices within three days of issuance.
The DHS sued the State of Illinois to repeal the law saying that it interfered with an employer’s right to participate in the voluntary federal program to verify whether a potential employee has valid U.S. work authorization. The federal district court in Illinois sided with DHS, holding that the law is preempted by the Supremacy Clause. Even though the E-Verify program is not mandatory, the court reasoned that the state law frustrates Congress’ intent to make the program available to all employers. The district court enjoined the State of Illinois from enforcing the law.
This article was written by Jorge R. Lopez, a shareholder in Littler's Miami office.
On Friday, the United States Citizenship and Immigration Services (USCIS) announced that employers receiving funds through the Troubled Asset Relief Program (TARP) or under section 13 of the Federal Reserve Act (covered funds) must meet additional requirements before hiring foreign nationals to work in the H-1B specialty occupation category. Continue reading on Littler's Washington DC Employment Law Update blog.
The Department of Labor (DOL) proposes to suspend for nine months the H–2A regulations published on December 18, 2008, which became effective on January 17, 2009. The amended rules—implemented in the closing days of the Bush administration—were intended to make it easier for agricultural employers to hire foreign workers on a temporary or seasonal basis to fill agricultural jobs where U.S. workers were unavailable. The sweeping changes to the H-2A regulations have proven to be difficult for the DOL to implement.
The January 17, 2009 Final Rules are being suspended for several reasons including: (1) lack of sufficient resources at the DOL to implement the Final Rule and (2) processing delays due to the anticipated influx of applications with the upcoming growing season. The proposed suspension is open for comment for 10 days. If a suspension of the rules occurs, the rules in effect prior to January 17, 2009 will be reinstated. Written comments will only be considered as to whether the DOL should suspend the December 18, 2008 final rule for further review and consideration of issues that have developed since the final rule’s publication. Comments regarding the substance or merits of the final rule will not be considered. Comments may be submitted before March 27, 2009. Comments may be made on the Federal e-Rulemaking Portal at http://www.regulations.gov.
The global economic crisis has triggered calls in some U.S. policy circles to tighten immigration rules in order to safeguard scarce jobs for American citizens. Yet despite difficult economic conditions, lawmakers should be considering immigration policy revisions based on the country's eventual economic revival, says former Department of Homeland Security (DHS) Secretary Michael Chertoff. In this interview, Chertoff discusses the future of immigration policy, and offers his advice that the U.S. increase communication efforts with the Mexican government to coordinate the legal flow of migrant workers to the United States.
U.S. Citizenship and Immigration Services (USCIS) has provided the new Form I-9 in its recently published “Handbook for Employers”—with the express caveat that it may only be used on or after April 3, 2009. As discussed in a previous entry, USCIS originally planned to implement the new I-9 on February 2, 2009, but interest group pressure resulted in a last-minute postponement. For more insight into this development, see Littler’s ASAP “USCIS Issues Interim Final Rule on I-9 Employment Verification” by Jorge R. Lopez and Chadwick M. Graham.
Term Asset-Backed Securities Loan Facility (TALF), a federal program aimed at reviving the market for securities backed by consumer and small-business loans, is being hampered by a new law that makes it more difficult for investment firms to bring in foreign employees. Last month, legislators added provisions to the stimulus bill that prevent investment firms who get funds under rescue programs from replacing fired U.S. workers with foreign employees. There is growing concern that these hurdles will prevent companies from participating in TALF. The Fed is working with U.S. Citizenship and Immigration Services to provide guidance on the issue.
As reported at CNNMoney.com, immigration experts expect H-1B visa applications for 2009 to be at their lowest levels in years. Some even predict that after April 1, the first day on which applications may be filed, it could take a week or more to fill the quota of 85,000 visas (as compared to past years, when the quota has been met in as little as 48 hours). Several factors account for this year's reduced demand, including the economic downturn and new restrictions on H-1B hiring at some firms. One result of the lower demand is that smaller businesses have the best chance in years to succeed with their H-1B applications.
The U.S. Department of Homeland Security (DHS) released some details about those of its projects being funded by the American Recovery and Reinvestment Act. The total amount going to DHS and to the General Services Administration in support of DHS programs is $3.5 billion. Funded projects include:
The DHS has also launched a website that will monitor and track the stimulus money coming in to the department and going out to DHS-related projects.
As a result of anxiety over workplace raids and uncertainty over the future of illegal immigrants in the United States, the E-Verify system is soaring in popularity across the country, growing by 1,000 companies a week, The Boston Globe reported. The number of businesses in the E-Verify system has increased 10-fold since 2006. Leading the trend are Arizona and Mississippi, which have made the system mandatory for all employers, as well as 10 other states that require E-Verify for state agencies and contractors. But use of the system is also growing in states where it is optional, such as California, Texas and Massachusetts.
In a late session yesterday, the Senate voted to approve the $410 billion omnibus appropriations bill (H.R. 1105). The House had approved this measure – which extends the E-Verify and EB-5 investor visa programs until September 30, 2009 – on February 25. Continue reading about this development on Littler's Washington DC Employment Law Update blog.
A recent posting to the Bits Blog (hosted by NYTimes.com) calls the bank bailout legislation’s provision discouraging banks from recruiting skilled foreign workers “a political gesture, understandable and probably empty.” The real problem is the great number of “bright, ambitious” immigrants leaving the United States and returning home. This problem is the topic of a report released on March 2, “America’s Loss Is the World’s Gain” (PDF). The principal author of the report estimates that over the next five years 100,000 immigrants from India and China will leave the United States, as compared to 50,000 over the past two decades. Of the 1,203 Indian and Chinese workers who were surveyed for the report, growing demand for their skills and promising career opportunities back home were cited by 87% of the Chinese and 79% of the Indians as the major professional reason for returning.
As of March 2, the U.S. Citizenship and Immigration Services (USCIS) has expanded Premium Processing Service for designated Forms I-140 (Immigrant Petition for Alien Worker) to include alien beneficiaries who have reached, or are reaching, their limitation of stay in H-1B nonimmigrant status. Previously, only certain alien beneficiaries who were in H-1B nonimmigrant status at the time of filing were able to request premium processing for Form I-140.
As a result of this action (further details are available in a fact sheet), USCIS will accept Form I-907 (Request for Premium Processing Service) for alien worker petitions filed on behalf of alien beneficiaries who, as of the date of filing the Form I-907:
Representatives John Shadegg (R-AZ), Jeff Flake (R-AZ), and Ed Pastor (D-AZ) have sponsored legislation to create a new nonimmigrant visa category for professional nurses called the “W” visa. If passed, the legislation will provide some relief for the country’s healthcare industry, which is experiencing a severe shortage of qualified and available nurses.
The shortage is compounded by the fact that there are not enough students enrolled in U.S. nursing programs to: (1) backfill those positions that are open due to attrition and retirement; and (2) fill the existing positions currently available. According to the proposed Nursing Relief Act of 2009, which cites a Department of Labor Report, the current national nursing shortage exceeds 126,000.
The proposed legislation also reflects what immigration and healthcare professionals have stated for years – current immigration laws do not adequately address the need in this country for qualified nurses and do not provide an adequate visa category and/or quota to help alleviate this need. The Nursing Relief Act of 2009 seeks to address these issues directly and provide the healthcare industry with the ability to overcome this shortage by recruiting, hiring, employing, and retaining qualified nurses regardless of their country of citizenship. To qualify for the proposed new “W” visa, an individual must meet the standard of a “professional nurse” as defined by the state licensing agency, and must be hired to work as a professional nurse for a qualifying U.S. employer. The initial status would be valid for three years and could be extended for an additional three-year period.
This entry was authored by Russell Ford.
On February 26, President Obama unveiled his proposed $3 trillion budget. As expected, the budget includes increased funding for various agencies tasked with oversight of employers. One highlight of this proposal is funding of $110 million to continue expansion of the E-Verify program. Continue reading about this development on Littler's Washington DC Employment Law Update blog.
Embedded in the massive House Appropriations bill (H.R. 1105) that was approved on Wednesday by a vote of 245-178 are provisions extending the E-Verify and EB-5 investor visa programs until September 30, 2009. Both programs are set to expire on March 6, 2009. Continue reading about this development on Littler's Washington DC Employment Law Update blog.
President Obama has announced his intention to nominate John Morton to be the Assistant Secretary for Immigration and Customs Enforcement (ICE), and U.S. Department of Homeland Security Secretary Janet Napolitano named Esther Olavarria as Deputy Assistant Secretary for Policy.
Secretary Napolitano said:
John Morton and Esther Olavarria are tremendous additions to our Homeland Security team. Both have demonstrated an extraordinary commitment to public service and both will be able and effective partners as we tackle the very complex issues surrounding immigration and securing of our borders.
As reported at Workforce.com, Rep. Ken Calvert, R-California, who authored the bill that established E-Verify, was unhappy that a provision requiring companies receiving stimulus funding to sign up for E-Verify did not survive in the $787 billion stimulus package. Representative Calvert stated that “there is no assurance that the jobs created will go to American workers,” and asserted that E-Verify was “stripped out of the bill without discussion or debate.” A separate provision, which would have reauthorized E-Verify, also was excluded from the final stimulus package.
Even though E-Verify did not make it into the stimulus package, Congress is likely to find a way to maintain the program (due to expire on March 6, 2009) until it can be addressed as part of a comprehensive immigration bill.
Immigration-related bills are being introduced at a rapid pace. While many of these bills are destined to languish in committee, the sheer volume of immigration legislation introduced by both parties barely two months into the new Congress increases the chance that at least one bill will eventually receive real consideration. The latest bill – Electronic Employment Eligibility Verification and Illegal Immigration Control Act (H.R. 1096) – would amend the Immigration and Nationality Act to create an electronic employment eligibility verification system and a detailed employment verification process, expand the verification system to apply to previously hired individuals, and increase employer penalties for violations, among other things. Continue reading about this bill on Littler's Washington DC Employment Law Update blog
The American Recovery and Reinvestment Act of 2009, signed by President Obama on February 17, imposes limits on the availability of H-1B visas, but the E-Verify amendment proposed in an earlier version of the bill was eliminated from the final version. Continue reading Littler's ASAP, "Besides COBRA: What Does the Stimulus Package Have for Employers," by Ellen N. Sueda, GJ Stillson MacDonnell, Patricia A. Haim, and Chadwick M. Graham.
The nation’s economic troubles have inspired a number of new employment-related bills. One immigration bill seeks to promote hiring Americans by limiting the incentives for illegal aliens to move to the United States to live and work, while another bill would facilitate the hiring of foreign workers under the H-2B guest worker program. Continue reading about these bills on Littler's Washington DC Employment Law Update blog.
H-1B employment visas, widely issued by high-tech companies, have been issued to hundreds of thousands of foreign professionals. As reported in The Seattle Times, the economic downturn is having a dramatic impact on H-1B visa holders, who are "out of status" as soon as losing a job, and must find another employer sponsor in order to regain status. And, with U.S. unemployment rates soaring, employers are under increased pressure to cut their foreign workforce first. This is happening even as employers prepare and submit applications to hire up to 85,000 new H-1B workers nationwide.
Department of Homeland Security (DHS) Secretary Janet Napolitano spoke with National Public Radio reporter Madeleine Brand about her views on federal immigration policy. Topics discussed include enforcement along the border, human trafficking, and criminal sanctions against employers who violate laws.
U.S. Citizenship and Immigration Services (USCIS) Acting Director Michael Aytes issued a memorandum [PDF] responding to the CIS Ombudsman’s recommendations regarding processing delays for Employment Authorization Documents (EADs). The CIS Ombudsman had recommended that USCIS:
• Adhere to regulations that state USCIS shall issue EADs within 90 days, or issue interim EADs to prevent unnecessary loss of employment;
• Expeditiously provide information to the public stating the cause of EAD processing delays and how the delays will be addressed;
• Provide consistent guidance to the public regarding EADs pending more than 90 days; and
• Reconsider Ombudsman recommendation FR2006-25 to issue multi-year EADs.
In his memo, prior to responding to each recommendation in detail, Aytes states:
“We acknowledge that, unfortunately, there is a small percentage of applicants whose cases are not adjudicated timely, and we understand that this imposes a significant burden on them, but we respectfully disagree with the perception that EAD processing, as a whole, is a significant issue.”
USA Today reports that the federal E-Verify system is becoming increasingly popular with states, despite the pitfalls and controversies that surround its use. The problems, identified in a report commissioned by the Homeland Security Department, include the following:
Janet Napolitano, new head of the Department of Homeland Security and a strong supporter of E-Verify, has ordered a review of the program, due February 20, 2009.
Senate Bill 23, the "Fair and Legal Employment for Coloradans Act," was killed in the Senate Committee on State, Veterans & Military Affairs. The bill, sponsored by Senator David Schultheis (R- Colorado Springs), would have required employers to participate in the federal E-Verify program. On his website, Sen. Schultheis had the following to say about the bill's defeat :
This bill was killed in State Affairs committee on 2/8 by Democrats on a party-line vote."
The Senate has approved a modified amendment to the massive stimulus bill (H.R. 1) that substantially limits employers that receive Troubled Asset Relief Program (TARP) funds from hiring employees who hold H-1B work visas. This amendment was sponsored by Senators Bernard Sanders (I-VT) and Charles Grassley (R-Iowa). Continue reading on Littler's Washington DC Employment Law Update blog.
In comments to a small group of Hispanic journalists, White House Chief of Staff Rahm Emanuel cited a newly signed law that provides health benefits to legal immigrants’ children as a signal that, in the debate over immigration, “the arrow has begun to point in a different direction.” Emanuel’s comments, as reported at HispanicBusiness.com, refer to a law that increases the number of children covered by the State Children’s Health Insurance Program (SCHIP) from 7 million to 11 million, including--for the first time--children of legal immigrants. Emanuel would not say when Obama might propose comprehensive immigration reform.
As reported at eWeek.com, Senator Judd Gregg (R-N.H.), President Obama’s nominee to run the Department of Commerce, strongly supports expanding the H1-B visa program.
A favorite of U.S. technology companies, the H-1B program allows U.S. companies and universities to employ foreign guest workers with training in job categories that qualify as a “specialty occupation.” Senator Gregg commented: “Helping the high tech industry tap into highly skilled talent from around the world and address well-documented labor shortages not only keeps our economy strong, but creates U.S. jobs and deters employers from sending work elsewhere.”
On January 30, U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano announced a wide-ranging action directive on immigration and border security. The directive requires specific DHS offices and components to “work together and with state and local partners to review and assess the plans and policies” to address:
For each assessment, a final report is due by February 20, 2009.
On December 17, 2008, the U.S. Department of Homeland Security (DHS) published in the Federal Register an interim final rule revising the Form I-9 and List of Acceptable Documents attached thereto. A correction was subsequently published on January 16, 2009, contributing to the confusion already surrounding the new form. DHS later posted the new I-9 at www.uscis.gov indicating that it must be used by all employers effective February 2, 2009. Consequently, numerous interest groups proposed that the implementation of the I-9 be delayed. Late in the afternoon on January 30, 2009, that request was answered – DHS filed a last minute notice announcing that implementation of the form would be postponed until April 3, 2009. Notice of the delay appears in the February 3, 2009 edition of the Federal Register.
The interim rule alters both the I-9 form and the List of Acceptable Documents by changing some of the language on the form itself and adding to and deleting from the List of Acceptable Documents. In Section 1, the employee portion of the Form I-9, DHS has amended the language to include a noncitizen national. A noncitizen national includes someone born in American Samoa, certain citizens of the Trust territories of the Pacific Islands, and some children of noncitizen nationals born outside the United States.
President Obama's immigration agenda has been posted on the official White House website. The broad agenda is composed of the following items:
Create Secure Borders: Protect the integrity of our borders. Support additional personnel, infrastructure and technology on the border and at our ports of entry.
Improve Our Immigration System: Fix the dysfunctional immigration bureaucracy and increase the number of legal immigrants to keep families together and meet the demand for jobs that employers cannot fill.
Remove Incentives to Enter Illegally: Remove incentives to enter the country illegally by cracking down on employers who hire undocumented immigrants.
Continue Reading...The Department of State has released its Visa Bulletin for February 2009. The bulletin reports employment based third preference (EB-3) visas as oversubscribed, while the employment based second preference level (EB-2) is current for all areas of chargeability except for China and India.
The effective date of the E-Verify federal contractor regulation has been pushed back yet again – it has now been delayed until May 21, 2009. (See our previous blog post for more information about the original compliance deadline). The E-Verify federal contractor rule requires certain federal contractors to use E-Verify to check the work authorization of employees assigned to federal contracts, as well as new hires. Continue reading Littler's ASAP, Effective Date of Federal Contractor E-Verify Regulation Pushed Back to May 2009, by Jorge Lopez, Joshua Roffman and Lisa Cottle.
A bill that would amend section 274A(e)(4)(A) of the Immigration and Nationality Act to substantially increase employer penalties for violations was introduced last week by Rep. Sue Wilkins Myrick (R-NC). The 10k Run for the Border Act (H.R. 588) 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. Continue reading entry on Littler's Washington DC Employment Law Update blog.
A press release issued by the office of Senator Barbara A. Mikulski (D-Md.) states that Senator Mikulski, along with Senator Benjamin L. Cardin (D-Md.) and Congressman Frank M. Kratovil, Jr. (D-Md.), sent a letter to the Department of Labor and the Department of Homeland Security urging them to “use all means necessary” to protect small businesses throughout the country so they can keep their doors open this year. The reason for their concern is that, as of January 8, 2009, the U.S. Citizenship and Immigration Services (USCIS) had already received enough applications to exceed the cap for H2B visas for the second half of fiscal year 2009.
Senator Mikulski said,
Companies in Maryland and around the country are unable to get the H2B visas, and workers, that they need and depend on because of bureaucratic slowdowns. Small and seasonal businesses are counting on us. We need this problem resolved quickly so we can reward people who are playing by the rules, instead of letting them down.
Indiana state senator Mike Delph has introduced S.B. 580, legislation that he calls "one of the toughest illegal immigration bills in the country." If passed, S.B. 580 would:
The bill is a modified version of legislation that was submitted last year, and is expected to be heard by the Senate Committee on Pension and Labor in early February.
The Department of Homeland Security (DHS) has announced that upgraded biometric technology, now at major US ports of entry, should make the entry process for international visitors faster and more accurate. The DHS upgraded its biometric technology from a two- to a 10-fingerprint collection standard in 2007.
On January 8, 2009, US Citizenship and Immigration Services (USCIS) announced that it had reached the congressionally mandated H-2B cap for the second half of Fiscal Year 2009. Accordingly, January 7, 2009 was the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to October 1, 2009. USCIS states that it will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2009, that arrive after January 7, 2009.
A new bill introduced in the House by Rep. David Dreier (R-Calif.) would significantly increase fines and jail time for employers who knowingly hire illegal aliens or fail to verify their employment eligibility using a new procedure outlined in the bill. The Illegal Immigration Enforcement and Social Security Protection Act of 2009 (H.R. 98) increases penalties for each hiring offense of up to $50,000, up from fines ranging between $275 and $16,000 under current law. Offending employers could also be liable for deportation costs. In addition, employers would face jail sentences of up to five years per offense, up from the current maximum six-month sentence. The bill likewise authorizes the Secretary of Homeland Security to bring a civil action against an employer who fails to pay the assessed penalty. Continue reading entry on Littler's Washington DC Employment Law Update blog.
Today, Arkansas state representative Bill Sample introduced H.B. 1093, the "Arkansas Taxpayer and Citizen Protection Act of 2009" -- a bill nearly identical to Oklahoma's H.B. 1804, which passed by an overwhelming majority in 2007. Read our earlier blog post for background on H.B. 1093.
The federal government has agreed to delay the effective date of the E-Verify federal contractor regulation announced in November until February 20, 2009. The delay raises the question of whether President-elect Obama will add the regulation to his rescission list once he takes office.
For more information on this development, see Littler ASAP: Effective Date of E-Verify Federal Contractor Regulation Postponed Until February 20, 2009 by Jorge R. Lopez, Lisa A. Cottle and Joshua S. Roffman.
The 2008 year-end report on the federal judiciary (pdf), written by Chief Justice John G. Roberts Jr., noted that filings concerning criminal charges in immigration cases jumped by 27%, to more than 21,000. This growth resulted mostly from filings addressing improper reentry by aliens and filings involving fraud and misuse of visa or entry permits in the five southwestern border districts.
The Arkansas Democrat Gazette reports that Arkansas state representative Bill Sample plans to introduce a bill requiring, in part, verification of Social Security numbers prior to the issuance of employee identification cards. Rep. Sample made the following comments about the bill:
It will establish proper guidelines for the issuance of identification cards and documents. ... We're trying to define who can give out identification cards and what those ID cards would state. We don't want those phony ID cards to go out. ... If you give them an ID card, you're responsible to do a little due diligence and make sure that person is in the state legally.
Wyoming lawmakers are considering immigration legislation that would eventually require all Wyoming employers to participate in E-Verify. Under H.B. 0103, all employers would be required to participate in E-Verify not more than three years after the effective date of the act.
Senator Brad Ashford has introduced L.B. 34, the "Nebraska Fair and Legal Employment Act." The bill would, among other things, require all employers to participate in E-Verify by 2011.
In the wake of the 2008 elections, the Immigration Policy Center issued a report titled The New Electoral Landscape and What It Means for Immigration Reform: Latinos, Asians, and New Americans Redefine 21st Century American Politics (pdf) analyzing voter turnout and voting patterns among Latinos, Asians, and “New Americans.” Highlights of the report include the following findings:
The report concludes:
“Latino, Asian, and New American voter turnout was at an all-time high in 2008. The power of these voters is now undeniable, and immigrant-bashing has become a losing campaign strategy. All signs indicate that the incoming administration and Congress will tackle immigration reform, and that the leadership of the Republican Party is rethinking its position on the issue.”
On January 6, 2009, Senator Harry Reid (D, NV) introduced S. 9, the "Stronger Economy, Stronger Borders Act of 2009" (SESBA), a bill "to strengthen the United States economy, provide for more effective border and employment enforcement, and for other purposes."
In its current form, the bill is a placeholder for comprehensive immigration reform legislation. The introductory remarks of Senator Patrick Leahy (D, VT), however, provide additional insight into the nature and scope of the legislation. Sen. Leahy stated in part, as follows:
Mr. President, as we begin the 111th Congress, we will try, once again, to enact comprehensive immigration reforms that have eluded us in the past several years. With an administration that understands the critical necessity of meaningful reform and that understands the policy failures of the last 8 years, I am hopeful that the new Congress can finally enact legislation consistent with our history as a nation of immigrants.
According to an Associated Press pre-session survey, a majority of participating Nebraska state legislators support tough policies on illegal immigration. Measures favored by the lawmakers include requiring employers to use the federal employment verification system, E-Verify. See the complete story in the Columbus Telegram.
A record-setting settlement of claims alleging the knowing employment of illegal aliens demonstrates the government's intent to enforce immigration law through interagency task force investigations.
For more information about this development, see Littler's ASAP: Record Worksite Enforcement Settlement Sends Message to Employers of Illegal Aliens by David C. Whitlock.
For the first time in 20 years, the H-2A guest worker program for agricultural employees is slated for reform. On Dec. 11, the Department of Labor (DOL) and Department of Homeland Security (DHS) issued final rules regarding the hiring of foreign agricultural workers, ostensibly to streamline the hiring process of these temporary and seasonal employees. Continue reading entry on Littler's Washington DC Employment Law Update blog.
Given the current economic crisis and other pressing issues facing the new president, sweeping immigration legislation is unlikely. Immigration policy in general is a contentious topic, so expect more piecemeal legislation as opposed to radical, across-the-board reform, as even in this economy there are areas where the shortages are not meeting our demographic needs, such as healthcare recruitment. Continue reading entry on Littler's Washington DC Employment Law update blog.
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