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

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

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

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

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

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

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The State Department has released the September 2010 Visa Bulletin, which summarizes visa availability. Some movement occurred in the oversubscription date (i.e., the date on which the availability quota was met) for employment-based visa categories, including:

• EB-2 (professionals with advanced degrees or persons of exceptional ability): The oversubscription date for Indian and Chinese nationals progressed two months from March 1, 2006, to May 8, 2006.
• EB-3 (skilled workers and professionals): The oversubscription date for nationals of the Dominican Republic and the Philippines advanced six months, from June 1, 2004, to December 15, 2004. A one-month advance occurred for Chinese nationals, from September 22 to October 22, 2003, but there was no movement concerning the date for Indian nationals, which remains at January 1, 2002.
• EB-3 (other workers): The oversubscription date for nationals of China, the Dominican Republic and the Philippines advanced 10 months, from May 15, 2002, to March 22, 2003.

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

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

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

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

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

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The State Department has released the August 2010 Visa Bulletin, which summarizes visa availability. Some movement occurred in the oversubscription date (i.e., the date on which the availability quota was met) for employment-based visa categories, including:

• EB-2 (professionals with advanced degrees or persons of exceptional ability): The oversubscription date for Indian and Chinese nationals changed from October 1, 2005, and November 22, 2005, respectively, to March 1, 2006. As previously discussed, considerable movement concerning the oversubscription date for Indian nationals was reported in the July 2010 Visa Bulletin.
• EB-3 (skilled workers and professionals): The oversubscription date for nationals of the Dominican Republic moved from August 15, 2003, to June 1, 2004. For Indian nationals, the date edged forward slightly from November 22, 2001, to January 1, 2002.
• EB-3 (other workers): The previous oversubscription date of June 1, 2001 progressed to January 1, 2002 for Indian nationals, and to May 15, 2002 for nationals of China, Mexico, and the Philippines.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The bill has been referred to the Senate Judiciary Committee.
 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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.
 

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

This entry was written by Ian Macdonald.

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

Photo credit: change.gov

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

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

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

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

Photo credit: GDFL

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

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

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

To enter the lottery, applicants must have:

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

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

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

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

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

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

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

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

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

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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.

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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:

• A mark in red ink that the petition requests a 2009 fiscal year start date.
• An employment start date before October 1, 2009.
• A valid, temporary labor certificate issued by the U.S. Department of Labor indicating a fiscal year 2009 employment start date that is valid for the entire period of requested employment.
  • NOTE: The U.S. Department of Labor advises employers to file temporary labor certificate requests at least 60 days before the need for the employee. If a certificate is not presently possessed, it would appear unlikely, even if using premium processing, that one could be obtained in time to submit with a fiscal year 2009 H-2B petition.

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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 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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.
 

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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.

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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).

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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.

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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
 

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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."
 

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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. 

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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.

 

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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.
 

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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:

• a new definition of spouse, applying to opposite-sex married couples;
• a definition of de facto partner, applying to both same-sex and opposite-sex de facto couples;
• new definitions of parent and child which will include recognition of certain parent-child relationships via artificial conception procedures and surrogacy arrangements;
• a new definition of member of the family unit, recognizing de facto partners (same and opposite-sex) as family members;
• a simplified and more equitable visa framework. All visas that currently include provisions for spouse will be available to opposite-sex and same-sex de facto partners alike.

Further details about the changes are available on the Department of Immigration and Citizenship (DIAC) website.

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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.

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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:

• Transition to new procedures (for applications filed on or after January 18, 2009 for employment with start dates before October 1, 2009);
• Prevailing wage;
• Form ETA9142;
• Recruitment;
• Recruitment fees; and
• Former regulations vs. new regulations.
   

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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.

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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.

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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.
 

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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.

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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:

• Prepare and submit applications at any time;
• Save time preparing applications by pre-populating visa forms with business/contact information;
• Create and manage sub-account users (e.g., HR staff or in-house legal counsel) to prepare and submit applications on the employer’s behalf;
• Track the status of applications across visa programs through a single account;
• Submit requests to withdraw applications; and
• Notify the Department of Labor, at any time, in the event that unauthorized applications for labor certification have been submitted.

The OFLC’s announcement includes a implementation timeline for the iCERT system.

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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:

• revised “country risk levels” for tuberculosis;
• changes to “classroom requirements” for applicants seeking to work in the education industry; and
• tests for applicants seeking to study as a dentist, nurse or doctor.

The revised health requirements and the revised health procedures advice manual are available on the Department of Immigration and Citizenship website.

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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.

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The UK Border Agency has announced changes to the immigration rules for the following categories of business visitors:

• Secondees;
• Advisers, consultants, trainers, troubleshooters; and
• Trainees.

Details of these changes are outlined in the immigration rules and the immigration directorate instructions.

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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.
 

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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.
 

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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. 

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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.
 

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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.

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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.

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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.

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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:

• are the beneficiary of a Form I-140 petition filed in a preference category that has been designated for premium processing service;
• have reached the sixth-year statutory limitation of their H-1B stay, or will reach the end of their sixth year of H-1B stay within 60 days of filing;
• are only eligible for a further H-1B extension under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and
• are ineligible to extend their H-1B status under section 106(a) of AC21.

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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.
 

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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.

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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.

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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.

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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.

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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.

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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.”
 

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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.

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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.
 

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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.

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