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