Headlines:

1. USCIS Reopens FY 2009 H-2B Petition Filing Period – The Department of State received far fewer than expected requests for H-2B visas and has announced that it will immediately accept new H-2B petitions.

2. State Dept. Introduces Online Nonimmigrant Visa Application Form – The new DS-160 Web-based nonimmigrant visa application form is part of the Visa Office’s effort to automate the visa process to the extent possible.

3. State Dept. Announces Revised Exchange Visitor Skills List – Exchange visitors who entered the U.S. on a J-1 visa before June 28, 2009, will continue to be governed by the 1997 Exchange Visitor Skills List, as amended, only if their country remains on the revised 2009 list.

4. Visa Waiver Program Emergency/Temporary Passports Must Be Electronic, CBP Says – All VWP emergency or temporary passports now must be e-Passports to be eligible for travel to the U.S. without a visa.

5. USCIS Extends TPS Designation, Work Authorization for Somalians – USCIS has extended the designation of Somalia for TPS for 18 months, through March 17, 2011.

6. State Dept. Updates Visa Medical Examination Forms – Medical exams that have been completed using the older version of the forms do not have to be repeated.

7. USCIS Resumes Premium Processing for Nonimmigrant Religious Workers – Only those petitioners who have successfully passed an on-site inspection are eligible to file under Premium Processing Service.

8. Tata America’s Foreign Workers in U.S. Win Right To Court Hearing – Tata’s noncitizen U.S. employees had been required to sign over their federal and state tax refund checks to Tata.

9. Recent News from ABIL Members – Recent News from ABIL Members

10. Government Agency Links – Government Agency Links

Details:

1. USCIS Reopens FY 2009 H-2B Petition Filing Period

On August 6, 2009, U.S. Citizenship and Immigration Services (USCIS) reopened the fiscal year (FY) 2009 H-2B petition filing period and announced that it will immediately accept new H-2B petitions. The H-2B program allows U.S. employers to bring foreign nationals to the U.S. to fill temporary nonagricultural jobs for which there is a shortage of available U.S. workers. Typically, H-2B workers fill labor needs in occupational areas such as education, construction, health care, landscaping, manufacturing, food service/processing, and resort/hospitality services.

Although on January 7, 2009, USCIS announced that it had accepted and approved a sufficient number of H-2B petitions to meet the congressionally mandated annual cap of 66,000, the Department of State received far fewer than expected requests for H-2B visas and, as a result, has issued only 40,640 H-2B visas for FY 2009 to date. This means that approximately 25,000 visas could go unused because they have not been granted. Because of the low visa issuance rate, USCIS is reopening the filing period to allow employers to file additional petitions for qualified H-2B temporary foreign nonagricultural workers.

The normal (non-premium processing) adjudication timeframe for H-2B petitions is 60 days. USCIS said it will make visa numbers available to petitions in the order in which the petitions are filed. However, because H-2B petitions (Forms I-129) for FY 2009 visas must be received, evaluated, and adjudicated by the FY 2009 deadline of September 30, 2009, USCIS said it cannot guarantee approval of any H-2B petition by that date. The agency therefore encourages employers to file as soon as possible and to request premium processing by filing a Form I-907 and submitting the $1,000 premium processing fee, which will allow for expedited adjudication.

The USCIS notice, which includes instructions on how to qualify for a FY 2009 H-2B cap number, is available at http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/August%202009/h-2b_petitions_fy09.pdf. A related Q&A is available at http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/QA_USCIS_Reopens_H-2B_Filing.pdf. Information on how to use premium processing service is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ebaf0c594dafd010VgnVCM1000000ecd190aRCRD&vgnextchannel=54519c7755cb9010VgnVCM10000045f3d6a1RCRD. A USCIS guide to hiring a foreign national for short-term employment in the U.S. is available at http://www.uscis.gov/files/article/E1eng.pdf.

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2. State Dept. Introduces Online Nonimmigrant Visa Application Form

The Department of State (DOS) recently posted a cable sent to the field in May 2009 introducing the new DS-160 Web-based nonimmigrant visa application form, which is part of the Visa Office’s effort to automate the visa process to the extent possible. DOS noted that at least 12 posts currently require applicants to use the DS-160. The new form incorporates all of the current NIV forms (DS-156, 157, 158, 156K, 3032, and parts of the E visa application) into one interactive format, and allows applicants to upload a photo. It is hosted on the Consular Electronic Application Center, which eventually will host online immigrant visa and passport applications, online fee payments, “possible queuing systems,” and an online appointment system.

When an applicant fills out and submits the form online, the cable noted, he or she receives a confirmation page with a barcode that allows consular officers to locate the applicant’s case in the Consular Consolidated Database system and load it into the nonimmigrant visa system.

As noted above, 12 posts (including some Mexican and Canadian posts, Dublin, Hamilton, Hong Kong, and Tripoli) are requiring use of the DS-160 by their applicants. These posts’ applicant volume makes up about a tenth of the worldwide NIV applicant workload, DOS noted. This summer, the agency is expanding DS-160 use to two additional posts in Mexico, as well as Australia. Current server capacity, however, does not allow DOS to expand DS-160 use more rapidly.

The form is available in English and Spanish, but translations into Arabic, Japanese, Chinese, Russian, Serbian, and French are being developed. DOS hopes to have it available to all posts (and in the above languages) by the end of 2009.

The DOS cable is available at http://travel.state.gov/visa/laws/telegrams/telegrams_4547.html.

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3. State Dept. Announces Revised Exchange Visitor Skills List

The Department of State (DOS) recently released a cable sent to the field in June 2009 announcing the revised 2009 J-1 Exchange Visitor Skills List. Exchange visitors who entered the U.S. on a J-1 visa before June 28, 2009, will continue to be governed by the 1997 Exchange Visitor Skills List, as amended, only if their country remains on the revised 2009 list. Exchange visitors whose countries were removed from the revised 2009 skills list are retroactively not subject to the two-year home residence requirement based on the Exchange Visitor Skills List, even if they entered the U.S. before the effective date.

The DOS cable is available at http://travel.state.gov/visa/laws/telegrams/telegrams_4548.html. The revised list was published in the Federal Register at http://edocket.access.gpo.gov/2009/pdf/E9-9657.pdf.

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4. Visa Waiver Program Emergency/Temporary Passports Must Be Electronic, CBP Says

All Visa Waiver Program (VWP) emergency or temporary passports now must be electronic passports (e-Passports) to be eligible for travel to the U.S. without a visa. This includes VWP applicants who present emergency or temporary passports to transit the U.S. An e-Passport contains an integrated chip that stores biographic data, a digitized photograph, and other information about the bearer, and is distinguished by a gold-colored symbol on the passport’s front cover. VWP applicants arriving in the U.S. with a non-compliant passport may be required to undergo further processing and/or denied admission. U.S. Customs and Border Protection (CBP) may exercise discretion at the ports of entry in cases of medical or other emergency travel.

The CBP notice released July 14, 2009, contains additional country-by-country details and is available at http://www.cbp.gov/xp/cgov/travel/id_visa/business_pleasure/vwp/epssprt_vwp.xml.

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5. USCIS Extends TPS Designation, Work Authorization for Somalians

U.S. Citizenship and Immigration Services (USCIS) has extended the designation of Somalia for temporary protected status (TPS) for 18 months, from its current expiration date of September 17, 2009, through March 17, 2011. USCIS also automatically extended the validity of employment authorization documents (EADs) issued under the TPS designation of Somalia for six months, through March 17, 2010, to give re-registrants sufficient time to receive their new EADs after their current EADs expire.

The USCIS notice sets forth procedures necessary for nationals of Somalia, or those having no nationality who last habitually resided in Somalia) to re-register with USCIS for TPS. Re-registration is limited to persons who previously registered for TPS under the designation of Somalia and whose applications have been granted by, or remain pending with, USCIS. The 60-day re-registration period began on July 27, 2009, and will remain in effect until September 25, 2009.

The notice is available at http://edocket.access.gpo.gov/2009/pdf/E9-17862.pdf. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=7862cb29f99b2210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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6. State Dept. Updates Visa Medical Examination Forms

Updated visa medical forms are now being used. The forms are:

• DS-2053 – Medical Examination for Immigrant or Refugee Applicant (1991 TB TIs)
• DS-2054 – Medical Examination for Immigrant or Refugee Applicant (2007 TB TIs)
• DS-3024 – Chest X-Ray and Classification Worksheet (1991 Centers for Disease Control (CDC) Technical Instructions (TIs) on tuberculosis (TB))
• DS-3030 – Chest X-Ray and Classification Worksheet (2007 TB TIs)
• DS-3026 – Medical History of Physical Examination Worksheet (all posts), and
• DS-3025 – Vaccination Documentation Worksheet (all posts).

The Department of State recently released a cable sent to the field in June 2009 listing the forms and noting that all posts should begin using the DS-2053, DS-3024, DS-3026, and DS-3025 forms immediately, and discontinue use of any older version of these forms. Medical exams that have been completed using the older version of the forms, however, do not have to be repeated.

The cable is available at http://travel.state.gov/visa/laws/telegrams/telegrams_4550.html. Related information from the CDC, including CDC global TB control activities for U.S. immigration and TIs for TB screening and treatment, is available at http://www.cdc.gov/ncidod/dq/panel_2007.htm. Other CDC information on proposed vaccination criteria for U.S. immigration, and guidelines for medical examination of immigrants, is available at http://www.cdc.gov/ncidod/dq/refugee/index.htm.

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7. USCIS Resumes Premium Processing for Nonimmigrant Religious Workers

After a suspension of several years, U.S. Citizenship and Immigration Services (USCIS) announced that it has resumed premium processing service for nonimmigrant religious worker petitions filed by certain R-1 petitioners. Only those petitioners who have successfully passed an on-site inspection are eligible to file under premium processing service. Under premium processing service, USCIS guarantees petitioners that, for a $1,000 processing fee, within 15 calendar days of receipt it will issue either an approval notice or, where appropriate, a denial notice, a notice of intent to deny, or a request for evidence, or will open an investigation for fraud or misrepresentation.

The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=8b3dcb29f99b2210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3f4ecb29f99b2210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD

Information on how to use premium processing service is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ebaf0c594dafd010VgnVCM1000000ecd190aRCRD&vgnextchannel=54519c7755cb9010VgnVCM10000045f3d6a1RCRD.

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8. Tata America’s Foreign Workers in U.S. Win Right To Court Hearing

The U.S. Court of Appeals for the Ninth Circuit has denied Tata America International Corp.’s attempt to compel arbitration in Mumbai, India, and dismiss a class action by Tata’s noncitizen U.S. employees, who had been required to sign over their federal and state tax refund checks to Tata. The suit, Vedachalan v. Tata America International Corp., included a proposed class of thousands of current and former noncitizen U.S. employees of Tata working in the U.S.

According to plaintiffs’ representative Lieff Cabraser Heimann & Bernstein, LLP, the complaint claims that Tata has paid its employees less than promised; has failed to pay its employees overtime pay and has misclassified them as exempt from overtime; and has failed to compensate employees for earned but unused vacation pay. The complaint alleges further that Tata required its noncitizen U.S. employees to sign power of attorney agreements delegating an outside agency to calculate and submit each employee’s tax return to state and federal authorities. Tata then required its noncitizen employees who received tax refunds from state and federal tax authorities to endorse the tax refund checks and send them to Tata.

A press release announcing the ruling is available at http://www.lieffcabraser.com/press_releases/20090731-lawsuit-against-tata.htm, and the decision is available at http://www.lieffcabraser.com/pdf/20090730-tata-order.pdf. Additional information on the lawsuit and related links are available at http://www.lieffcabraser.com/lawsuitagainsttata.htm.

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9. Recent News from ABIL Members

Charles Kuck (bio: http://www.abil.com/lawyers/lawyers-kuck.cfm) has added a new posting, “H-1B Investigations – USCIS Run Amok!” to his blog. The posting discusses a new benefit fraud assessment program run by U.S. Citizenship and Immigration Services, in which a private contractor is sending investigators to conduct thousands of site visits to H-1B employers to verify H-1B positions. Mr. Kuck asks: “[W]hy is USCIS spending money on a program ‘looking’ for problems when they would be better off using their resources to solve the problems they already have as an agency and better manage the extant operations that need to run more effectively?” The posting is available at http://www.immigration.net/blog/.

Laura Danielson (bio: http://www.abil.com/lawyers/lawyers-danielson.cfm) was quoted in the Bureau of National Affairs’ Workplace Immigration Report’s August 10, 2009, issue regarding how employers should respond to an increase in I-9 audits. For most employers, she said the E-Verify program has “such strenuous requirements” that it is hard to see “how the benefits outweigh the disadvantages.” The article is available at http://www.fredlaw.com/bios/attorneys/danielsonlaura/BNAWorkplaceArticle.pdf.

John Nahajzer (bio: http://www.abil.com/lawyers/lawyers-nahajzer.cfm) will be a presenter for a Business & Legal Reports 90-minute teleconference on the E-Verify program on August 27, 2009. For more information, see http://www.blr.com/product.cfm?product=30566200.

Stephen Yale-Loehr (bio: ) was quoted in Inc. magazine’s Web site in an article about EB-5 visas and start-ups turning to foreign investors seeking U.S. citizenship. “Congress thinks it’s a good program because it’s what I call a win-win-win-win,” he said, but noted that “[i]t’s not for everyone.” The article is available at http://www.inc.com/news/articles/2009/08/capital.html.

Mr. Yale-Loehr also recently authored “USCIS Clarifies Key Aspects of EB-5 Program,” discussing two USCIS memoranda and related issues, and providing practice pointers. The article is available at http://www.abil.com/articles/USCIS%20Clarifies%20Key%20Aspects%20of%20EB-5%20Program%20(Yale-Loehr).pdf.

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10. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/jsps/ptimes.jsp

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

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Headlines:

1. More on E-Verify Federal Contractor Rule Delay – USCIS has instructed federal contractors not to use E-Verify to verify current employees until the final rule becomes effective on September 8, 2009, and they are awarded a contract that includes the FAR’s E-Verify clause.

2. China, India EB-2 Priority Dates Progress in August; DOS Determines FY 2009 Limits – The State Department’s Visa Bulletin for August 2009 shows an October 1, 2003, cut-off date for both the China-mainland born and India EB-2 categories.

3. DOS Releases DV-2010 Lottery Results – The highest number for any single country went to Nigeria, at 6,006; dates for the upcoming DV-2011 program registration period will be announced in August.

4. Ninth Circuit Rules That Revocation of I-140 Trumps Portability – USCIS may revoke its previous approval of a visa petition at any time for “good and sufficient cause.”

5. Krispy Gets Kremed: $40,000 Fine Incurred for Immigration Violations – 652 businesses around the country will be audited to determine their compliance.

6. Publications and Items of Interest – Publications and Items of Interest

7. Recent News from ABIL Members – Recent News from ABIL Members

8. Government Agency Links – Government Agency Links

Details:

1. More on E-Verify Federal Contractor Rule Delay

Following the announcement of the delay in the effective date of the new E-Verify rule until September 8, 2009, U.S. Citizenship and Immigration Services (USCIS) has instructed federal contractors not to use E-Verify to verify current employees until the rule becomes effective and they are awarded a contract that includes the Federal Acquisition Regulation’s E-Verify clause. The new final E-Verify rule will require federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the U.S.

Frequently asked questions about the new rule are posted at http://www.uscis.gov/files/article/FAR_FAQ_13nov08.pdf.

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2. China, India EB-2 Priority Dates Progress in August; DOS Determines FY 2009 Limits

The State Department’s Visa Bulletin for August 2009 shows an October 1, 2003, cut-off date for both the China-mainland born and India EB-2 categories, which is close to a four-year jump from last month’s cut-off date. The third preference and “other workers” employment-based categories are Unavailable; all other categories are Current. EB-3 visa numbers worldwide and for India, China, and Mexico are expected to remain unavailable for the remainder of this fiscal year at least. The EB-3 category for India could remain unavailable indefinitely.

This follows on the heels of news last month that the India and China EB-2 categories could become unavailable in August or September and remain unavailable indefinitely. The Department had explained that there is a backlog of at least 25,000 India EB-2 cases awaiting visa numbers. Charles Oppenheim of the Department of State’s Visa Office reportedly stated that without legislative relief, the waiting time for Indian EB-2 applicants may be measured in years, even decades.

The Department also noted in the August Visa Bulletin that heavy applicant demand for numbers in the employment-based fourth preference is likely to require the establishment of a cut-off date, or the preference becoming “Unavailable,” for September. The category can be expected to return to a “Current” status for October, the first month of the new fiscal year.

Meanwhile, the Department of State has determined the family and employment preference numerical limits for FY 2009. The worldwide employment-based preference limit is 140,000.

The per-country limit is fixed at 7 percent of the family and employment annual limits. For FY 2009, the per-country limit is 25,620. The dependent area annual limit is 2 percent, or 7,320.

The August Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4539.html.

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3. DOS Releases DV-2010 Lottery Results

The Kentucky Consular Center has registered and notified the winners of the DV-2010 diversity visa lottery. Applicants registered for the DV-2010 program were selected at random from over 13.6 million qualified entries received during the 60-day application period that ran from October 2, 2008, until December 1, 2008. The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country. During the visa interview, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years.

Only participants in the DV-2010 program who were selected for further processing have been notified; those who have not received notification were not selected. The dates for the registration period for the DV-2011 lottery program will be announced in August 2009.

The highest number for any single country went to Nigeria, at 6,006. The country-by-country breakdown of DV-2010 registrations appears at http://travel.state.gov/visa/frvi/bulletin/bulletin_4539.html.

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4. Ninth Circuit Rules That Revocation of I-140 Trumps Portability

A recent decision by the U.S. Court of Appeals for the Ninth Circuit affirmed that U.S. Citizenship and Immigration Services (USCIS) may revoke its previous approval of a visa petition at any time for “good and sufficient cause.” In Herrera v. USCIS, the court found that the plaintiff’s changing jobs (“portability”) did not shield her from revocation of her previously approved I-140 Immigrant Petition for Alien Worker, which USCIS had concluded was justified because of the company’s small size (seven employees) and the agency’s conclusion that the plaintiff did not perform managerial or executive duties.

For more on this case and its implications, see “Ninth Circuit in Herrera v. USCIS Rules That Revocation of I-140 Petition Trumps Portability,” available at http://www.cyrusmehta.com/Print_Prev.aspx?SubIdx=ocyrus200979113434.

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5. Krispy Gets Kremed: $40,000 Fine Incurred for Immigration Violations

It seems there is a hole in Krispy Kreme’s immigration compliance doughnut. On July 7, 2009, U.S. Immigration and Customs Enforcement (ICE) and the Butler County, Ohio, Sheriff’s Office announced a $40,000 fine settlement reached with the Krispy Kreme Doughnut Corporation for violations of immigration laws. ICE conducted an I-9 inspection of Krispy Kreme after receiving information from the Butler County Sheriff’s Office that the company had employed dozens of undocumented workers at one of Krispy’s doughnut factories in Cincinnati.

In other news, ICE recently found that nearly a third of 6,000 American Apparel workers may lack work authorization. Dov Charney, CEO of American Apparel, said, “Many of these employees, some of whom have worked at American Apparel for as long as a decade, have been responsible, hard-working employees who have made significant contributions to the Company’s growth and success. As a company that prides itself on being one of the last major apparel manufacturers still making clothing in the United States, at a ‘sweatshop free’ factory where we pay our garment workers some of the highest wages in the industry, it is the company’s hope–and my personal hope as an immigrant myself–that these employees are able to confirm their work authorization so that they may continue to work at American Apparel. The company remains very proud of its track record as an advocate for the comprehensive reform of the country’s immigration laws.” ICE has also announced that as part of a new auditing initiative, 652 businesses around the country will be audited to determine their levels of I-9 compliance.

More information on the American Apparel case is available at http://investors.americanapparel.net/releasedetail.cfm?ReleaseID=393357.

The ICE notice is available at http://www.ice.gov/pi/nr/0907/090707cincinnati.htm.

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6. Publications and Items of Interest

The U.S. Citizenship and Immigration Services (USCIS) Ombudsman will host a teleconference, “How Is USCIS Working For You?”, on July 29, 2009, from 2 to 3 p.m. EDT. To participate, e-mail cisombudsman.publicaffairs@dhs.gov specifying which call you would like to join. Participants will receive a return e-mail with the call-in information. Details are available at http://www.dhs.gov/xabout/structure/gc_1171038701035.shtm, which also includes links to questions and answers from previous teleconferences.
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7. Recent News from ABIL Members

Angelo A. Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm) has published “Federal Contractor E-Verify: Officious Intermeddling and the Immigration Nanny-State,” which proposes that E-Verify be put on hold and comprehensive immigration reform be enacted instead. The blog posting is available at http://www.nationofimmigrators.com/?p=251. The article also provides a link to “New Corporate Procurement Strategy: Minimizing Immigration Risks From Service Providers,” co-authored by Mr. Paparelli.

Links to articles by Alliance of Business Immigration Lawyers members are available at http://www.abil.com/newsletters_articles.cfm. Recent postings include:

• Seeing Green in U.S. Immigration Policy, by Cyrus D. Mehta
• Changes During the H-1B Relationship: Employer Compliance Issues, by H. Ronald Klasko
• Dissuasion’s Disappearance: DOL Again Retreats on Its PERM ‘Consideration’ Analysis, by Angelo A. Paparelli
• Success With L-1Bs in an Era of Increased USCIS Scrutiny, co-authored by Angelo A. Paparelli
• Going Green – U.S. Consular Processing Enters the Electronic Paperless Era in 2008, co-authored by Bernard P. Wolfsdorf
• E-Treaty Visas Provide Long-Term Immigration Options, co-authored by Bernard P. Wolfsdorf
• Don’t Ask, Can’t Tell: Immigration Inequality for Same-Sex Families, by Angelo A. Paparelli

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8. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/jsps/ptimes.jsp

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

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Headlines:

1. Outlook Grim for India, China Employment-Based Visa Categories – The July cut-off date for the India and China EB-2 categories is January 1, 2000; both could become unavailable in August or September and remain unavailable indefinitely.

2. E-Verify Federal Contractor Rule Delayed Until September 8, 2009 – The effective date to require federal contractors to use the E-Verify system to confirm the work authorization of new hires has been delayed again.

3. DHS Proposes To Expand E-Verify Monitoring and Compliance Efforts – USCIS’s Verification Division has created a Monitoring and Compliance (M&C) Branch.

4. SEVP Posts New Information on Upcoming SEVIS II – With the full deployment of SEVIS II, ICE will retire the original SEVIS system.

5. DOS Proposes Electronic Submission of SEVIS Annual Reports – Annual reports from designated program sponsors assist DOS in oversight and administration of the J-1 visa program.

6. USCIS Ombudsman Reports on Denials of Adjustment of Status Applications Following a Change of Employment – The USCIS Ombudsman has received inquiries stating that the agency is not issuing Notices of Intent to Deny following a change of jobs, as required.

7. Court Orders USCIS To Accept Concurrently Filed Religious Worker, Adjustment Applications – The court ordered USCIS to begin accepting concurrently filed special immigrant religious worker petitions and adjustment of status applications, along with related employment authorization applications.

8. DHS Begins Exit Pilot Test of Fingerprint Collections at Two Airports – DHS has begun collecting digital fingerprints from non-U.S. citizens leaving the U.S. from Hartsfield-Jackson Atlanta International Airport and Detroit Metropolitan Wayne County Airport.

9. DHS Establishes Interim Relief for Widows of U.S. Citizens – DHS has granted deferred action for two years to widow(er)s of U.S. citizens, and their unmarried children under 21 years old, who reside in the U.S. and were married for less than two years before their spouse’s death.

10. ABIL Global: EU Adopts Blue Card for Highly Skilled Foreign Workers – The Council of the European Union has created a fast-track procedure for third-country citizens in highly qualified employment.

11. Recent News from ABIL Members – Recent News from ABIL Members

12. Government Agency Links – Government Agency Links

Details:

1. Outlook Grim for India, China Employment-Based Visa Categories

The July cut-off date for the India and China EB-2 categories is January 1, 2000. The Department of State reports that these categories could become unavailable in August or September and remain unavailable indefinitely. The Department said there is a backlog of at least 25,000 India EB-2 cases awaiting visa numbers. Charles Oppenheim of the Department of State’s Visa Office reportedly stated that without legislative relief, the waiting time for Indian EB-2 applicants may be measured in years, even decades.

Meanwhile, the EB-1 category for India and China is not likely to stay current, although the EB-1 category worldwide is expected to remain current. EB-3 visa numbers worldwide and for India, China, and Mexico are expected to remain unavailable for the remainder of this fiscal year at least. The EB-3 category for India could remain unavailable indefinitely.

The third preference and “other workers” employment categories are unavailable in July.

The Visa Bulletin for July 2009 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4512.html.

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2. E-Verify Federal Contractor Rule Delayed Until September 8, 2009

The effective date to require federal contractors to use the E-Verify system to confirm the work authorization of new hires has been delayed again, to September 8, 2009. There is strong bipartisan support for electronic verification of new hires using federal systems, so the Alliance of Business Immigration Lawyers (ABIL) cautions all employers not already using E-Verify to be prepared for it in 2010.

Contact your ABIL attorney for guidance on I-9 audits, transitioning from paper to electronic I-9s, E-Verify training and policies, and related matters. We have many tools and resources available for employers to use in navigating through the new era in employment verification.

For more on this topic, see U.S. Citizenship and Immigration Services’ (USCIS) response to the USCIS Ombudsman on E-Verify: http://www.dhs.gov/xlibrary/assets/uscis_response_cis_ombudsman_recommendation_38.pdf.

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3. DHS Proposes To Expand E-Verify Monitoring and Compliance Efforts

U.S. Citizenship and Immigration Services’ Verification Division has created a Monitoring and Compliance (M&C) Branch, which will seek to “identify potential cases of misuse, abuse, discrimination, breach of privacy, or fraudulent use of SAVE [Systematic Alien Verification for Entitlements] and E-Verify.”

The M&C Branch is developing detailed procedures for both monitoring verification transactions and performing compliance activities on defined non-compliant behaviors. For example, DHS notes, with respect to the misuse of Social Security numbers, M&C will identify when a single social security number is used multiple times for employment authorization verifications through E-Verify. DHS acknowledges that it would not be uncommon for a single individual to be verified several times through E-Verify because one person may hold multiple jobs or change jobs frequently, but it would be unusual for a single individual to hold 30 or 40 jobs simultaneously. M&C has developed procedures for identifying when a certain threshold number of verifications of a single SSN would be likely to indicate misuse. If this threshold is met, M&C may contact or visit an employer to research the issue and determine if there is a system problem the Verification Division needs to correct; a user misunderstanding that requires additional training for the employer; or potentially fraudulent activity that may need to be reported to a law enforcement agency. Information also may be shared with other government agencies.

The management of compliance activities and storage of the supporting information will be handled by the Compliance Tracking and Management System (CTMS). Activities that will be monitored may include:

• Fraudulent use of Alien Numbers (A-Numbers) and SSNs by E-Verify users;
• Termination of an employee because he receives a tentative nonconfirmation (TNC);
• Failure of an employer to notify DHS, as required by law, when an employee who receives a final nonconfirmation (FNC) is not terminated;
• Verification of existing employees (as opposed to new hires);
• Verification of job applicants, rather than new employees (pre-screening);
• Selectively using E-Verify or SAVE for verifications based on foreign appearance, race/ethnicity, or citizenship status;
• Failure to post the notice informing employees of participation in E-Verify;
• Failure to use E-Verify, consistently or at all, once registered;
• Failure of a SAVE agency to initiate additional verification when necessary;
• Unauthorized searching and use of information by a SAVE agency user; and
• Fraudulent use of visas, permits, and other DHS documents by SAVE users.

DHS also notes that employers are required to post notification of their participation in E-Verify conspicuously for their employees. This notification provides the employees with information concerning their rights and responsibilities regarding E-Verify, including contact information. M&C compliance activities on this front most likely would occur based on a complaint or hotline report, or during a compliance visit researching other potential noncompliance. M&C might also identify potential noncompliance from media reports or tips from law enforcement agencies.

The related proposed rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-11966.pdf. The Privacy Act notice is available at http://edocket.access.gpo.gov/2009/pdf/E9-11967.pdf.

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4. SEVP Posts New Information on Upcoming SEVIS II

The Student and Exchange Visitor Program (SEVP) has added a new section to its Web site on the development of the SEVIS II database. SEVIS II supports the application and admission of students and exchange visitors under the F, M, and J classifications. SEVIS II maintains personal information about these foreign nationals and any accompanying dependents. In addition, SEVIS II maintains personal information about officials of approved schools and designated exchange visitor sponsors who host nonimmigrant students and exchange visitors.

The Student and Exchange Visitor Program (SEVP) has added a new section to its Web site on the development of the SEVIS II database. SEVIS II supports the application and admission of students and exchange visitors under the F, M, and J classifications. SEVIS II maintains personal information about these foreign nationals and any accompanying dependents. In addition, SEVIS II maintains personal information about officials of approved schools and designated exchange visitor sponsors who host nonimmigrant students and exchange visitors.

For more information, see http://www.ice.gov/sevis/sevisii/index.htm.

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5. DOS Proposes Electronic Submission of SEVIS Annual Reports

The Department of State (DOS) has proposed allowing electronic submission of Student and Exchange Visitor Information System (SEVIS) annual reports. Annual reports from designated program sponsors assist DOS in oversight and administration of the J-1 visa program. The reports provide statistical data on the number of exchange participants an organization has sponsored by category. The reports also summarize the activities in which exchange visitors were engaged and evaluate program effectiveness. Program sponsors include government agencies, academic institutions, and private sector entities.

Annual reports currently are completed through SEVIS and then printed and signed by a sponsoring official, and sent to DOS by mail or fax. DOS is working with the Department of Homeland Security to expand SEVIS functions and enable the collection of electronic signatures. Annual reports will be submitted to the Department electronically as soon as the mechanism for doing so is approved and in place, DOS said.

See http://edocket.access.gpo.gov/2009/pdf/E9-12147.pdf.

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6. USCIS Ombudsman Reports on Denials of Adjustment of Status Applications Following a Change of Employment

The U.S. Citizenship and Immigration Services (USCIS) Ombudsman has received inquiries stating that the agency is not issuing Notices of Intent to Deny following a change of jobs, as required by the American Competitiveness in the 21st Century Act (AC21) and USCIS policy guidance, but instead is immediately denying pending Form I-485 (Application to Register Permanent Residence or Adjust Status) applications.

If a foreign national is: (1) the beneficiary of an approved Form I-140 (Petition for Immigrant Worker); and (2) has a Form I-485 pending for 180 days or more, he or she is eligible to change to a same or similar position. If the underlying approved I-140 is withdrawn, and no evidence of a new qualifying offer of employment was submitted, then USCIS must issue a Notice of Intent to Deny the pending I-485.

However, the ombudsman noted that USCIS may deny the I-485 in cases of portability (the ability to change jobs) before first issuing a Notice of Intent to Deny in certain limited circumstances. These include, for example, where the beneficiary is ineligible for the benefits of the I-485 by statute, or the I-140 is withdrawn before the I-485 was pending for 180 days.

If you think your case was erroneously denied, the ombudsman asks that you forward a description of the problem using DHS Form 7001 with the subject line, “AC21 Evidence of Immediate Denial.” Include a copy of your denial notice, detailed information about the reasons for the immediate denial, and, if appropriate, evidence that you submitted a Motion to Reopen or Reconsider. “If we consider your case to be an erroneous denial, we will forward it directly to USCIS for further review,” the ombudsman states.

For more information, including links to USCIS Interoffice Memoranda further clarifying USCIS processing of these cases, see http://www.dhs.gov/xabout/structure/gc_1221837986181.shtm#1.

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7. Court Orders USCIS To Accept Concurrently Filed Religious Worker, Adjustment Applications

In Ruiz-Diaz v. U.S., Washington District Court has found that the bar against concurrent filings on behalf of religious workers for adjustment of status is invalid and unenforceable. The court ordered U.S. Citizenship and Immigration Services to begin accepting concurrently filed special immigrant religious worker petitions and adjustment of status applications, along with related employment authorization applications.

The case is available at http://www.aila.org/content/default.aspx?docid=29247.

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8. DHS Begins Exit Pilot Test of Fingerprint Collections at Two Airports

The Department of Homeland Security (DHS) has begun collecting digital fingerprints from non-U.S. citizens departing the U.S. as part of a pilot program at Hartsfield-Jackson Atlanta International Airport and Detroit Metropolitan Wayne County Airport.

Non-U.S. citizens leaving from Detroit and Atlanta airports should expect to have their fingerprints collected before boarding their flights. U.S. Customs and Border Protection (CBP) officers will collect fingerprints at the boarding gate from non-U.S. citizens departing from Detroit; U.S. Transportation Security Administration (TSA) officers will collect fingerprints at security checkpoints from non-U.S. citizens departing from Atlanta. The pilot tests are expected to continue through early July. US-VISIT plans to begin implementing new biometric exit procedures based on these pilots for non-U.S. citizens departing the U.S. by air within the next year.

Non-U.S. citizens departing the U.S. from all other ports of entry will continue to follow current exit procedures, which require travelers to return their paper Form I-94 (Arrival-Departure Record) or I-94W (for Visa Waiver Program travelers) to an airline or ship representative.

Since 2004, the U.S. Department of State (DOS) and U.S. Customs and Border Protection (CBP) have collected biometrics from most non-U.S. citizens between the ages of 14 and 79, with some exceptions, when they apply for visas or arrive at U.S. ports of entry. The US-VISIT program has simultaneously worked to create a congressionally mandated automated biometric exit capability, which these pilots are testing.

For more information, see http://www.dhs.gov/ynews/releases/pr_1243605893203.shtm.

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9. DHS Establishes Interim Relief for Widows of U.S. Citizens

The Department of Homeland Security (DHS) has granted deferred action for two years to widows and widowers of U.S. citizens, and their unmarried children under 21 years old, who reside in the U.S. and were married for less than two years before their spouse’s death.

U.S. Citizenship and Immigration Services (USCIS) will suspend adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for reassessment of immigration status was the death of a U.S. citizen spouse before the second anniversary of the marriage. Additionally, U.S. Immigration and Customs Enforcement (ICE) will defer initiating or continuing removal proceedings, or executing final orders of removal against qualified widow(er)s and their eligible children.

USCIS will also consider favorably requests for humanitarian reinstatement where previously approved petitions for widow(er)s had been revoked because of the law. DHS said it will soon issue guidance on how to apply for this relief.

While the directive provides a short-term arrangement for widow(er)s of deceased U.S. citizens, the agency noted that legislation is required to amend the definition of “immediate relative” in the Immigration and Nationality Act to permit surviving spouses to remain indefinitely after the U.S. citizen spouse dies, enabling them to seek permanent resident status.

The DHS notice is available at http://www.dhs.gov/ynews/releases/pr_1244578412501.shtm.

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10. ABIL Global: EU Adopts Blue Card for Highly Skilled Foreign Workers

The Council of the European Union has created a fast-track procedure for issuing a special residence and work permit, the “EU Blue Card,” for third-country citizens in highly qualified employment. Under the rules set by the directive, EU Blue Card holders will enjoy equal treatment with nationals of the member state issuing the Blue Card regarding:

• working conditions, including pay and dismissal;
• freedom of association;
• education, training, and recognition of qualifications;
• a number of provisions in national law regarding social security and pensions;
• access to goods and services, including procedures for obtaining housing, information and counseling services; and
• free access to the entire territory of the member state concerned within the limits provided for by national law.

Following its publication in the Official Journal of the EU, the member states will have two years to incorporate the new provisions into their domestic legislation.

The announcement is available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/misc/107989.pdf.

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11. Recent News from ABIL Members

Cyrus Mehta (bio: http://www.abil.com/lawyers/lawyers-mehta.cfm) spoke on a panel, “Demoted, Restructured or Fired: Representing Your Clients In A Recession Era and How To Practice Ethics In A Crisis,” at the 2009 Upper Midwest Immigration Conference: “Maximizing The Act,” held in Bloomington, Minnesota, on April 30, 2009.

Mr. Mehta also spoke on business ethics at the American Immigration Lawyers Association’s (AILA) Annual Conference in Las Vegas, Nevada, on June 6, 2009.

At the AILA Conference, Sharon Mehlman (bio: http://www.abil.com/lawyers/lawyers-mehlman.cfm) moderated the USCIS Open Forum and also presented on liaison issues for the AILA Leadership Institute. She received an award from AILA for outstanding liaison work.

Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) spoke on four panels at the AILA Conference. On June 4, Mr. Yale-Loehr moderated a panel on E nonimmigrant investor visas. On June 5, he spoke at a luncheon seminar sponsored by CanAm enterprises on EB-5 immigrant investor green cards. On June 6, he spoke at an advanced panel on EB-5 issues. Also on June 6, he led a lunch meeting of Invest In the USA (IIUSA), a trade association of EB-5 regional centers.

Charles Kuck (bio: http://www.abil.com/lawyers/lawyers-kuck.cfm) is ending his term as AILA President as of June 4, 2009, and Bernard Wolfsdorf (bio: http://www.abil.com/lawyers/lawyers-wolfsdorf.cfm) is beginning his.

Mr. Kuck’s immigration blog is available at http://www.immigration.net/blog. His podcast is available on iTunes (“The Immigration Hour” – see http://www.apple.com/search/ipoditunes/?q=immigration+hour).

H. Ronald Klasko (bio: http://www.abil.com/lawyers/lawyers-klasko.cfm) addressed members of NAFSA: Association of International Educators on “Advanced Immigration Issues for Academic Healthcare Institutions” at its annual meeting in Los Angeles recently. His talk included the latest information on obtaining visas and resident status for faculty, researchers, medical personnel, and staff members. At the same conference, Mr. Klasko also spoke on worksite compliance. His talk, “100 Percent Compliance with Immigration, Form I-9, and E-Verify Rules,” detailed how universities and research institutions with federal contracts are subject to the new E-Verify compliance rules. Over 7,000 NAFSA members, from universities and teaching hospitals around the world, attended the annual meeting.

Mark Ivener (bio: http://www.abil.com/lawyers/lawyers-ivener.cfm) spoke at the AILA Conference on June 4, 2009, on “Marketing Your Brains Out, Without Losing Your Mind.”

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12. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/jsps/ptimes.jsp

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

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Headlines:

1. H-1B Cap Not Yet Reached, USCIS Announces – The agency continues to accept petitions subject to the general cap.

2. DOL Announces New LCA/PERM Labor Cert Electronic Application System – ‘iCERT’ is a new electronic system for submitting the labor condition application (LCA) and the application for permanent labor certification.

3. DOL Extends Transition Period of Filing Procedures for H-2A Employers – The transition period is extended to include all employers with a date of need on or before January 1, 2010.

4. CBP Expands Global Entry Pilot Program to Netherlands – The expansion of eligibility to qualified citizens of the Netherlands occurred on April 23, 2009.

5. H-1B, L-1 Reform Legislation Introduced – Among other things, the bill would allow the DOL to conduct random audits of any company that uses the H-1B program, and require the DOL to conduct annual audits of companies who employ large numbers of H-1B workers.

6. Labor Organizations Reach Immigration Accord – The accord calls for, among other things, adjustment of status for undocumented persons and an independent commission to assess and manage future immigration flows based on labor market shortages.

7. E-Verify Update: Applicability of Contractor Rule Extended; USCIS Issues Reminder; Nebraska Governor Signs Bill – The effective date of the USCIS final rule requiring federal contractors and subcontractors to begin using the E-Verify system has been postponed to June 30, 2009.

8. Employment Third Preference, ‘Other Worker’ Categories Unavailable – Visa availability in these categories will resume in October.

9. USCIS Extends Validity of Civil Surgeon Medical Certifications – The validity of the civil surgeon’s endorsement on the I-693, when submitted in support of an adjustment application, is extended until the time of adjudication if no Class A or B medical condition is certified by the civil surgeon.

10. USCIS Recommends New Procedures for Case Queries – USCIS has recommended a new protocol for resolving case-specific inquiries.

11. USCIS Issues Q&A on Cap Gap Extension of Post-Completion Practical Training and F-1 Status for Eligible Students – USCIS has issued a Q&A addressing the automatic extension of F-1 student status in the U.S. for certain students with pending or approved H-1B petitions for an employment start date of October 1, 2009.

12. Recent News from ABIL Members – Recent News from ABIL Members

13. Government Agency Links – Government Agency Links

Details:

1. H-1B Cap Not Yet Reached, USCIS Announces

Unlike in recent years, when the H-1B cap was reached immediately, U.S. Citizenship and Immigration Services (USCIS) announced on April 27, 2009, that it had received approximately 45,000 H-1B petitions counting toward the congressionally mandated 65,000 cap for fiscal year (FY) 2010. The agency continues to accept petitions subject to the general cap.

Unlike in recent years, when the H-1B cap was reached immediately, U.S. Citizenship and Immigration Services (USCIS) announced on April 27, 2009, that it had received approximately 45,000 H-1B petitions counting toward the congressionally mandated 65,000 cap for fiscal year (FY) 2010. The agency continues to accept petitions subject to the general cap.

For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition.

USCIS will provide regular updates on the processing of FY 2010 H-1B petitions. The updates can are available at http://www.uscis.gov/h-1b_count. The announcement is available at http://www.uscis.gov/files/article/H-1B_count_20apr09.pdf.

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2. DOL Announces New LCA/PERM Labor Cert Electronic Application System

The Department of Labor’s Employment and Training Administration (ETA) has announced “iCERT,” a new electronic system for submitting the H-1B labor condition application (LCA) and the application for permanent labor certification.

The iCERT portal, located at http://icert.doleta.gov, is available for the submission of ETA 9035Es (electronic LCA H-1B applications). The current electronic LCA system will continue to be available through May 14, 2009. However, effective May 15, 2009, the LCA for the H-1B program will be available for submission only through the iCERT portal system. The PERM labor certification application, Form ETA 9089, will become available for application submission on September 1, 2009. To allow for an appropriate transition, both systems will be active during the month of September. However, beginning October 1, 2009, PERM applications will be submitted electronically only through iCERT system accounts.

The Department plans to deactivate the current electronic version of the ETA 9035E on May 15, 2009, and to deactivate the current electronic version of the Form ETA 9089 on October 1, 2009. The Department is encouraging employers to copy all necessary application information into the new iCERT system before these deactivation dates. The status of applications submitted before deactivation will continue to be available through current system accounts.

The Office of Foreign Labor Certification has implemented a Help Desk Unit for program assistance at the Chicago National Processing Center (CNPC) to serve as a resource to employers and their representatives in filing LCAs.

Program-related questions may be e-mailed to LCA.Chicago@dol.gov. The LCA Help Desk e-mail box will be monitored by the CNPC from 8:30 a.m. to 5 p.m. Central Time, Monday through Friday.

The ETA’s notice is available at http://edocket.access.gpo.gov/2009/pdf/E9-8505.pdf.

Meanwhile, the DOL redesigned the ETA 9035 (H-1B LCA form) effective April 15, 2009, and the 9089 (PERM labor certification form) effective July 1, 2009. The DOL also noted at a February 4, 2009, public briefing that it has up to seven working days, effective with the new form on April 15, 2009, to certify an LCA. (The old LCA form may be used without the seven-day requirement up to May 14.) Both revised forms require more information and details about the employer, employee, job title, and attorney.

The new ETA Form 9089 is available at http://www.foreignlaborcert.doleta.gov/pdf/ETA_Form_9089_PEC.pdf . The new ETA Form 9035/9035E is available at http://www.foreignlaborcert.doleta.gov/pdf/ETA_Form_9035_LCA_Non_Immigrant.pdf. Links to handouts, instructions, and a fact sheet are available at http://www.foreignlaborcert.doleta.gov/ (scroll down).

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3. DOL Extends Transition Period of Filing Procedures for H-2A Employers

The Department of Labor’s Employment and Training Administration issued an interim final rule on April 16, 2009, to extend the transition period of the application filing procedures currently in effect for all H-2A employers with a date of need on or before July 1, 2009, as established in the H-2A final rule published on December 18, 2008, and in effect as of January 17, 2009. The transition period is extended to include all employers with a date of need on or before January 1, 2010. Comments may be submitted by May 18, 2009.

The interim final rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-8815.pdf.

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4. CBP Expands Global Entry Pilot Program to Netherlands

U.S. Customs and Border Protection (CBP) is conducting an international trusted traveler pilot program, “Global Entry,” at seven U.S. airports. Under an arrangement between the U.S. and the Netherlands, CBP is expanding eligibility for participation in the pilot to include citizens of the Netherlands who participate in Privium, an expedited travel program in the Netherlands, and who otherwise satisfy the requirements for participation in Global Entry. Currently, eligibility is limited to U.S. citizens, U.S. nationals, and U.S. lawful permanent residents (LPRs). Pursuant to this same arrangement, U.S. citizens who participate in the Global Entry pilot also will have the option to apply for participation in Privium.

The expansion of eligibility to qualified citizens of the Netherlands occurred on April 23, 2009. The CBP Federal Register notice is available at http://edocket.access.gpo.gov/2009/pdf/E9-9221.pdf.

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5. H-1B, L-1 Reform Legislation Introduced

Sens. Richard Durbin (D-Ill.) and Chuck Grassley (R-Iowa) introduced the “H-1B and L-1 Visa Reform Act” on April 23, 2009. The Durbin-Grassley bill would:

• Require all employers who want to hire an H-1B worker to first make a good-faith attempt to recruit a qualified U.S. worker. Employers would be prohibited from using H-1B visa holders to displace qualified U.S. workers.
• Prohibit “H-1B only” ads and prohibit employers from hiring additional H-1B and L-1 workers if more than 50 percent of their employees are H-1B and L-1 visa holders.
• Permit the Department of Labor (DOL) to initiate investigations without a complaint and without the Labor Secretary’s personal authorization;
• Authorize the DOL to review H-1B applications for fraud;
• Allow the DOL to conduct random audits of any company that uses the H-1B program;
• Require the DOL to conduct annual audits of companies who employ large numbers of H-1B workers.

The Durbin-Grassley bill also would establish a process to investigate, audit, and penalize L-1 visa violations. The two senators introduced a similar bill in March 2007, which was folded into a comprehensive immigration reform bill that failed.

Meanwhile, President Obama reportedly plans to speak publicly about immigration issues in May, and to convene working groups over the summer to discuss possible legislation.

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6. Labor Organizations Reach Immigration Accord

The AFL-CIO and Change to Win labor federations have agreed to jointly support a specified set of comprehensive immigration reform measures. The accord endorses legalizing the status of undocumented individuals already in the U.S. and improving current temporary worker programs, but opposes any new guestworker programs. Immigration of workers would be managed via a national commission, which would set the permanent and temporary numbers to be admitted each year each year based on labor market demands.

The accord includes five features:

1. An independent commission to assess and manage future flows, based on labor market shortages that are determined on the basis of actual need;
2. A secure and effective worker authorization mechanism;
3. Rational operational control of the border;
4. Adjustment of status for the current undocumented population; and
5. Improvement, not expansion, of temporary worker programs, limited to temporary or seasonal, not permanent, jobs.

The new accord did not sit well with many in the business community who favor a guestworker program. “If the unions think they’re going to push a bill through without the support of the business community, they’re crazy,” said Randel Johnson, the U.S. Chamber of Commerce’s vice president of labor, immigration and employee benefits. “As part of the trade-off for legalization, we need to expand the temporary worker program.” Others, such as Rep. Steve King (R-Iowa), a member of the House of Representatives’ immigration subcommittee, objected to the idea of legalizing undocumented workers: “In our current economic crisis, Americans cannot afford to lose more jobs to illegal workers.”

An article released by the AFL-CIO in April 2009 summarizing the new accord is available at http://www.aflcio.org/issues/civilrights/immigration/upload/immigrationreform041409.pdf.

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7. E-Verify Update: Applicability of Contractor Rule Extended; USCIS Issues Reminder; Nebraska Governor Signs Bill

U.S. Citizenship and Immigration Services (USCIS) has postponed to June 30, 2009, the effective date of a rule that will require federal contractors and subcontractors to begin using the E-Verify system to verify the work authorization of new hires. USCIS said the extension will provide an opportunity to review the entire rule before it applies to federal contractors and subcontractors.

USCIS issued a reminder that the revised Form I-9, Employment Eligibility Verification (rev. 02/02/09), went into effect on April 3, 2009, for all U.S. employers. The revision date is printed on the lower right-hand corner of the form.

Meanwhile, Nebraska Governor Dave Heineman signed a bill on April 8, 2009, to require public employers and those receiving state or local contracts or tax incentives (including subcontractors) to use E-Verify for newly hired employees effective October 1. The bill also prohibits undocumented persons from receiving state and local public benefits.

Michael Aytes, USCIS Acting Deputy Director, noted in testimony on April 2, 2009, that over 117,000 employers are enrolled in E-Verify, representing over 456,000 locations. He said that an average of 1,000 employers enroll each week and participation has more than doubled each fiscal year since 2007. Employers have run over 3.6 million queries thus far in fiscal year (FY) 2009, Mr. Aytes noted, adding that the volume of queries doubled from FY 2007 to FY 2008 from 3.27 million to 6.6 million, and that according to an analysis of Bureau of Labor Statistics data, over 14 percent of all nonagricultural new hires in the U.S are run though E-Verify.

The USCIS announcement extending the E-Verify contractor rule is available at http://www.uscis.gov/files/article/UpdateContractor_%20Rule_Extended_16apr09.pdf. The I-9 reminder is available at http://www.uscis.gov/files/article/revised-i-9-update.pdf, along with a link to the revised Handbook for Employers, which includes instructions on completing the I-9. Questions and answers on the revised I-9 form are available at http://www.uscis.gov/files/article/revised-i-9-q-a.pdf. Mr. Aytes’s testimony is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=d3ace7c336c60210VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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8. Employment Third Preference, ‘Other Worker’ Categories Unavailable

The Department of State’s Visa Bulletin for May 2009 states that the employment third preference and third preference “Other Workers” categories have become “Unavailable.” The Department explained that the cut-off dates for those categories were held and then retrogressed in an effort to bring demand within the average monthly usage targets and the overall annual numerical limits. Despite these efforts, the amount of demand for adjustment of status cases with priority dates that were significantly earlier than the established cut-off dates remained extremely high. As a result, these annual limits have been reached and both categories have become unavailable.

Visa availability in these categories will resume in October, the first month of the new fiscal year. The Visa Bulletin for May 2009 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4454.html.

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9. USCIS Extends Validity of Civil Surgeon Medical Certifications

U.S. Citizenship and Immigration Services (USCIS) has extended the validity of civil surgeon endorsements on Form I-693, Medical Examination of Aliens Seeking Adjustment of Status.

A memorandum from Donald Neufeld, USCIS Acting Associate Director for Domestic Operations, sent to the field on December 10, 2008, notes that a USCIS policy memorandum issued in January 2008 extended the validity of the civil surgeon endorsement on the I-693 until the adjustment of status application could be adjudicated. That policy was set in consultation with the Centers for Disease Control and Prevention and was limited to those applications where no Class A or B medical condition was certified. The policy was in effect until January 1, 2009. The new memo states that due to the continuing backlog of some adjustment applications, the validity of the civil surgeon’s endorsement on the I-693, when submitted in support of an adjustment application, is extended until the time of adjudication if no Class A or B medical condition is certified by the civil surgeon. This policy will remain in effect until January 1, 2010.

The memo is available at http://www.uscis.gov/files/nativedocuments/extension_of_validity_of_medical_certifications_i693_10dec08.pdf.

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10. USCIS Recommends New Procedures for Case Queries

U.S. Citizenship and Immigration Services has recommended a new protocol for resolving case-specific inquiries:

(1) Employers should first call the National Customer Service Center (NCSC) at 1-800-375-5283 with case-related inquiries.

(2) If the issue has not been resolved after a reasonable period of time (e.g., 30 days), the employer may e-mail the query to:

California Service Center: csc-ncsc-followup@dhs.gov
Vermont Service Center: vsc.ncscfollowup@dhs.gov
Nebraska Service Center: ils.nebraska@dhs.gov
Texas Service Center: pending

(3) If the issue has still not been resolved after a reasonable period of time after contacting the Service Center directly, usually 14 days, employers may e-mail: SCOPSSCATA@dhs.gov. Employers may also use this e-mail address to ask about a new policy or a new trend. Once the request reaches this level, USCIS intends to respond within 5 days.

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11. USCIS Issues Q&A on Cap Gap Extension of Post-Completion Practical Training and F-1 Status for Eligible Students

U.S. Citizenship and Immigration Services (USCIS) has issued questions and answers addressing the automatic extension of F-1 student status in the U.S. for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2009, under the FY 2010 H-1B cap. The Q&A states that once a timely H-1B filing has been made, the automatic “cap gap” extension will begin and will continue until the H-1B process has been completed.

The Q&A, which contains additional details, is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=7f1a046c43360210VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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12. Recent News from ABIL Members

Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) was quoted in a recent article in the Los Angeles Daily Journal about Nken v. Holder, an April 2009 Supreme Court decision making it easier for those appealing removal orders to remain in the U.S. while their appeals are pending. In a concurring opinion, however, Justice Anthony M. Kennedy called a stay of removal “an extraordinary remedy that should not be granted in the ordinary case, much less awarded as a right.” Mr. Yale-Loehr noted that “[i]f the lower courts adopt Justice Kennedy’s line of reasoning, a lot fewer stays will be granted now than have been in the past.”
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13. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/jsps/ptimes.jsp

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

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Headlines:

1. Economic Stimulus Bill Includes H-1B Restrictions for TARP Recipients – The final economic stimulus legislation includes H-1B restrictions for recipients of TARP.

2. US-VISIT Procedures Expanded to Additional Travelers – All non-U.S. citizens, except certain Canadians, must follow US-VISIT procedures when entering the U.S.

3. DHS Directive Includes Analysis of E-Verify – The directive requires specific DHS programs to work with state and local partners to address concerns about the E-Verify system.

4. E-Verify and Three Employment Visa Categories Set To Expire; May Be Renewed – Certain religious workers and employment fifth preference pilot categories are set to expire.

5. DOL To Release New LCA and PERM Forms – The DOL has redesigned the Labor Condition Application (LCA) Form ETA 9035, effective April 15, 2009, and the Labor Certification Form 9089 (PERM form), effective July 1, 2009.

6. CBP Discusses Immigrant Intent for Trade NAFTA Applicants – A recently released letter discusses immigrant intent for TN applicants whose spouses are the beneficiary of an I-140 petition.

7. New Orleans Hotelier Need Not Reimburse H-2B Workers for Certain Expenses, Court Rules – Recruitment, transportation, and visa expenses that the workers incurred before relocating to the U.S. to work for the hotelier need not be reimbursed.

8. DHS Issues Final Rule Providing Employment Verification for Certain Enlistees of Armed Forces – The rule also adds the military identification card to the list of documents acceptable for I-9 purposes, but only for use by the Armed Forces to verify the employment eligibility of persons lawfully enlisted.

9. State Dept. Releases Guidance on B-1 Visas for Missionaries – The Department of State released guidance on B-1 visas for missionaries to all diplomatic and consular posts.

10. New Publications and Items of Interest -New Publications and Items of Interest

11. Recent News from ABIL Members – Recent News from ABIL Members

12. Government Agency Links – Government Agency Links

Details:

1. Economic Stimulus Bill Includes H-1B Restrictions for TARP Recipients

The recently enacted economic stimulus law (the American Recovery and Reinvestment Act of 2009) includes H-1B restrictions for recipients of TARP (Troubled Assets Relief Program) funds. It specifies that during the two-year period beginning on the date of enactment, any recipient of TARP funding (under title I of the Emergency Economic Stabilization Act of 2008 or section 13 of the Federal Reserve Act) is generally prohibited from hiring any H-1B nonimmigrant unless the recipient complies with the requirements for an H-1B dependent employer.

An H-1B dependent employer must comply with the following attestations:

• That the employer has, before filing the H-1B petition, taken good-faith steps to recruit U.S. workers for the position for which the H-1B worker is sought, offering a wage that is at least as high as that required under law to be offered to the H-1B worker. The employer must also attest that, in connection with this recruitment, it has offered the job to any U.S. worker who applies and is equally or better qualified for the position.
• That the employer has not laid off, and will not lay off, any U.S. worker in a job that is essentially equivalent to the H-1B position in the area of intended employment of the H-1B worker within the period beginning 90 days before the filing of the H-1B petition and ending 90 days after its filing.

Although the normal H-1B dependent employer rule provides an exemption from these attestations if an H-1B worker either possesses a master’s degree or receives wages of $60,000 or higher, the new law does not allow TARP funding recipients to claim these exemptions.

Only employers that receive funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343, also known as the “TARP Bill”) or that received funding under Section 13 of the Federal Reserve Act (12 U.S.C. § 342 et seq., authorizing the Federal Reserve’s “Discount Window” for short-term, secured loans to financial institutions and other companies) are subject to these restrictions.  Companies that will receive funds under the recently enacted stimulus law are not subject to these H-1B restrictions.

The new law defines “hire” as permitting “a new employee to commence a period of employment.”  Therefore, the restriction should not apply to H-1B extension requests filed on behalf of current H-1B employees of covered employers. It also should not cover existing current employees who are in another status such as F, TN, or L-1A, and are seeking to change status to H-1B.  However, the new legislation likely will cover new employees seeking to transfer in H-1B status from another employer to a covered employer.  Note that neither U.S. Citizenship and Immigration Services nor the Department of Labor has implemented any regulations or guidance on this yet.

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2. US-VISIT Procedures Expanded to Additional Travelers

Under a Department of Homeland Security final rule effective January 18, 2009, all non-U.S. citizens, except Canadians applying for admission to the U.S. as B-1/B-2 visitors for business or pleasure and those specifically exempted, must follow US-VISIT procedures when entering the U.S.

US-VISIT requires noncitizens to be photographed and fingerprinted so that appropriate databases can be checked. In many cases, this process begins overseas at a U.S. visa-issuing post, where a traveler’s biometrics—digital fingerprints and a photograph—are collected and checked against a watch list of known criminals and suspected terrorists. When the traveler arrives in the U.S., the Department of Homeland Security collects the same biometrics to verify that the person at the port of entry is the same person who received the visa. Immigration officials use this information to help them make visa-issuance and admission decisions as part of the visa application process or entry inspection.

The following additional non-U.S. citizens now must provide biometrics when entering or re-entering the United States:

• Lawful permanent residents of the United States (LPRs);
• Persons entering the U.S. who seek admission on immigrant visas;
• Persons entering the U.S. who seek admission as refugees and asylees;
• Canadian citizens who are currently required to obtain a Form I-94 (Arrival-Departure Record) upon entry or who require a waiver of inadmissibility to enter the U.S. (this excludes most Canadian citizens entering the U.S. for purposes of shopping, visiting friends and family, vacation or short business trips);
• Persons paroled into the U.S.; and
• Persons applying for admission under the Guam VWP.

Also as of January 18, 2009:

• Canadians applying for admission to the U.S. under a B-1 or B-2 nonimmigrant classification for business or pleasure, which represents most Canadian travelers to the U.S., are not required to enroll in US-VISIT.
• Canadian citizens who must now enroll in US-VISIT are those issued an I-94, including:
  • Canadians applying for admission in the following nonimmigrant classifications: C, D, F, H, I, J, L, M, O, P, Q 1, Q 3, R, S, T, TN; and
  • Canadians who are granted a waiver of inadmissibility to enter the U.S.
• H-1B visa holders will follow existing protocols and will be screened through US-VISIT when applying for a new multiple entry I-94 or when referred to secondary inspection for other reasons.
• At seaports, LPRs returning from a “closed loop” cruise (cruises that begin and end at the same port in the U.S.) are exempt from US-VISIT processing. LPRs returning to the U.S. from an “open” cruise are subject to US-VISIT processing.
• Non-U.S. citizens entering or re-entering the U.S. at a land border port of entry will be processed somewhat differently, as follows, at the inspecting officer’s discretion:
  • LPRs will provide biometrics only if they are referred to secondary inspection.
  • All other non-U.S. citizens included in this final rule, unless specifically exempt, will experience US-VISIT procedures during secondary inspection, just as most non-U.S. citizens already subject to US-VISIT procedures currently do (e.g., those who require an I-94).
• Non-U.S. citizens who seek admission with Border Crossing Cards and who do not have an I-94 will still go through US-VISIT procedures, at the discretion of U.S. Customs and Border Protection officers.

The final rule is available at http://edocket.access.gpo.gov/2008/E8-30095.htm.

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3. DHS Directive Includes Analysis of E-Verify

U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano announced on January 30, 2009, a wide-ranging action directive on immigration and border security. The directive requires specific DHS programs to work with state and local partners to report on the E-Verify system, legal immigration benefit backlogs, and other concerns.

Some of the questions the directive asks about E-Verify include, “What is the status of the employer monitoring and compliance efforts of the E-Verify system? How can DHS expand such monitoring, including alternative strategies such as electronic detection of suspicious patterns, with an indication of resource requirements? What strategies are available to minimize false negatives? What steps and resources are needed to secure a systematic and detailed study of the origin, prevalence, and types of erroneous non-confirmations, including measuring the rate of correct non-confirmations, and how much time would be required for such a study?”

The full text of the directive is available at http://www.dhs.gov/ynews/releases/pr_1233353528835.shtm.

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4. E-Verify and Three Employment Visa Categories Set To Expire; May Be Renewed

The E-Verify program and two employment visa categories are currently set to expire March 6:

E-Verify: This program allows employers to electronically verify their workers’ employment eligibility.  General information about E-Verify is at http://www.dhs.gov/xprevprot/programs/gc_1185221678150.shtm.  E-Verify is a pilot program.  Absent a congressional extension, it will expire March 6, 2009.

Three other visa programs are also currently scheduled to expire March 6: (1) the special immigrant program for certain religious workers (EB-4); (2) the EB-5 immigrant investor program for regional centers; and (3) the Conrad state 30 program for certain J-1 foreign doctors working in medically underserved areas.

Efforts are underway to extend all four programs.  An omnibus appropriations bill now pending in the Senate contains six-month extensions of the EB-5 and E-Verify programs. That bill is expected to pass by March 6. On March 4, 2009, the House of Representatives passed by voice vote H.R. 1127, a bill that would extend the religious worker and Conrad 30 programs through September 30. The measure now moves to the Senate for further consideration. It is unclear whether the Senate will be able to vote on H.R. 1127 before the sunset of the religious worker and Conrad 30 programs on March 6.

The State Department has issued advice on visa issuance for the EB-4 and EB-5 categories if Congress fails to extend those categories by March 6:

Employment Fourth Preference, Certain Religious Workers: The nonminister special immigrant program expires on March 6, 2009. No SR-1, SR-2, or SR-3 visas may be issued overseas on or after March 6, 2009. If Congress fails to renew the category by that date, visas issued before that date may only be issued with a validity date of March 5, 2009, and all individuals seeking admission as a nonminister special immigrant must be admitted into the U.S. no later than midnight on March 5, 2009.

Employment Fifth Preference Pilot Categories (I5, R5): The EB-5 immigrant investor pilot program expires on March 6, 2009. If Congress fails to renew the pilot program by March 6, no I5-1, I5-2, I5-3, R5-1, R5-2, or R5-3 visas may be issued after March 6, 2009.

The initial cut-off dates for the categories mentioned above have been listed as “current” in the State Department’s March Visa Bulletin. If these categories have not been extended based on legislative action, those cut-off dates will become “unavailable” effective March 7, 2009.

The Visa Bulletin for March 2009 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4428.html.

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5. DOL To Release New LCA and PERM Forms

The Department of Labor (DOL) has redesigned the Labor Condition Application (LCA) Form ETA 9035, effective April 15, 2009, and the Labor Certification Form 9089 (PERM form), effective July 1, 2009. The DOL also noted at a February 4, 2009, public briefing that it has up to seven working days, effective with the new form on April 15, 2009, to certify an LCA. (The old LCA form may be used without the seven-day requirement up to May 14.) In both forms, more information and details are required about the employer, employee, job title, and attorney.

The new ETA Form 9089 is available at http://www.foreignlaborcert.doleta.gov/pdf/ETA_Form_9089_PEC.pdf . The new ETA Form 9035/9035E is available at http://www.foreignlaborcert.doleta.gov/pdf/ETA_Form_9035_LCA_Non_Immigrant.pdf . Links to handouts, instructions, and a fact sheet are available at http://www.foreignlaborcert.doleta.gov/ (scroll down).

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6. CBP Discusses Immigrant Intent for Trade NAFTA Applicants

A recently released letter sent on April 21, 2008, from Paul M. Morris, Executive Director, Admissibility and Passenger Programs, U.S. Customs and Border Protection (CBP), to Micron Technology, Inc., discusses immigrant intent for Trade NAFTA (TN) applicants whose spouses are the beneficiary of an I-140 petition. Mr. Morris states that CBP’s determination is that “the mere filing or approval of an immigrant petition does not automatically constitute intent on the part of the beneficiary to abandon his or her foreign residence. This would hold for a TN principal who may be riding on a spouse’s immigrant petition.”

The letter notes that a TN applicant could have the intent to immigrate or adjust status at a future time, but as long as his or her intent at the time of filing the application for admission is to be in the U.S. for a temporary period under NAFTA and applicable regulations, he or she could be admitted. However, “once a TN files an application for an immigrant visa or adjustment of status, then the TN would no longer be eligible for admission or an extension of stay as a TN nonimmigrant. The NAFTA professional must establish that the intent of entry is not for permanent residence.”

In an earlier letter, sent in 1996 from Yvonne M. LaFleur, Chief, Business and Trade Services Branch, to ABIL Member William Z. Reich, Ms. Fleur states that “[t]he fact that an alien is the beneficiary of an approved I-140 petition may not be, in and of itself, a reason to deny an application for admission, readmission, or extension of stay if the alien’s intent is to remain in the United States temporarily. Nevertheless, because the Service must evaluate each application on a case-by-case basis with regard to the alien’s intent, this factor may be taken into consideration along with other relevant factors every time that a TN nonimmigrant applies for admission, readmission or a new extension of stay. Therefore…if the inspecting officer determines that the individual has abandoned his or her temporary intent, that individual’s application for admission as a TN nonimmigrant may be refused.”

The new letter may be helpful in that it reaffirms the policy of allowing TNs, who may stay in the U.S. up to three years, to enter and extend their stay, assuming their intent is to remain only. Application of the law remains inconsistent across various ports of entry.  Many cases come down to proving that the individual is not entering the U.S. with the intent to establish permanent residence upon that entry.

Contact your Alliance of Business Immigration Lawyers member for details and help with TN cases.

The April 2008 letter is available at http://www.aila.org/content/default.aspx?docid=28002. An excerpt from the 1996 letter is available at http://www.naftatnlawyer.com/i-140-filing-not-dispositive-f/.

Additional information on presumption of immigrant intent is available at http://www.naftatnlawyer.com/presumption-of-immigrant-inten/.

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7. New Orleans Hotelier Need Not Reimburse H-2B Workers for Certain Expenses, Court Rules

The aftermath of Hurricane Katrina required New Orleans hotelier Decatur Hotels, L.L.C,  to look to foreign sources of labor. A group of these employees who held H-2B visas while working for Decatur contend that the hotelier violated the Fair Labor Standards Act (FLSA) by paying them less than the minimum wage when Decatur refused to reimburse them for recruitment, transportation, and visa expenses that they incurred before relocating to the U.S. to work for Decatur.

In an interlocutory appeal to the U.S. Court of Appeals for the Fifth Circuit, Decatur raised three issues of first impression for the court: whether under the FLSA an employer must reimburse guest workers for (1) recruitment expenses, (2) transportation expenses, or (3) visa expenses that the workers incurred before relocating to the employer’s location. The court concluded on February 11, 2009, that the FLSA does not require an employer to reimburse any of these expenses. The court therefore reversed the district court’s order, and remanded the case with instructions that it be dismissed.

The decision is available at http://www.ca5.uscourts.gov/opinions/pub/07/07-30942-CV0.wpd.pdf.

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8. DHS Issues Final Rule Providing Employment Verification for Certain Enlistees of Armed Forces

Effective February 23, 2009, the Department of Homeland Security (DHS) has issued a final rule providing for employer-specific employment authorization for certain people lawfully enlisted into the U.S. Armed Forces, and those whose enlistment the Secretary with jurisdiction over the force to which the person belongs has determined would be vital to the national interest. This rule also adds the military identification card to the list of documents acceptable for establishing employment eligibility and identity for the Employment Eligibility Verification Form (Form I-9), but only for use by the Armed Forces to verify employment eligibility of persons lawfully enlisted in the Armed Forces.

The full text of the final rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-3801.pdf.

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9. State Dept. Releases Guidance on B-1 Visas for Missionaries

The Department of State released the following guidance on B-1 visas for missionaries to all diplomatic and consular posts on February 13, 2009:

1. VO has recently received inquiries from a religious group claiming that applicants applying for visas to perform missionary work in the United States, who are ineligible for R status because they have not been members of the religious organization for two years, are not alternatively considered eligible for B-1 ….  This cable reminds posts that the B-1 note regarding religious activities is still in effect and provides an alternative method for bona fide religious workers to enter the United States.
2. In cases where the applicant is a recent member of the religion and cannot demonstrate two-year membership in an affiliated organization, B-1 status remains an option where the applicant meets the requirements in 9 FAM 41.31 note 9.1.  This is true even if the applicant who meets the qualifications in the note intends a stay of one year or more in the United States.  9 FAM 41.31 note 3.1 provides that the period of stay in a given case may exceed six months or one year is not in itself controlling, provided the consular officer is satisfied that the intended stay has a time limitation and is not indefinite in nature.
3. We would also like to remind posts that many cases involving religious workers generate substantial public or congressional interest.  Therefore, it may be prudent to consider requesting an advisory opinion, or sending information cables to the Department in cases where a refusal might generate a response from the sponsoring religious organization.

The text of this cable is posted at http://travel.state.gov/visa/laws/telegrams/telegrams_4430.htm.

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10. New Publications and Items of Interest

Case information for the Permanent, H-1B, H-2A, and H-2B programs for fiscal year 2008 is available on the Case Data pages at http://www.flcdatacenter.com/casedata.aspx.

The Department of Homeland Security has released the following reports:

• Estimates of the Legal Permanent Resident Population in 2007 (http://www.dhs.gov/xlibrary/assets/statistics/publications/lpr_pe_2007.pdf) This report provides estimates of the legal permanent resident population and population eligible to naturalize as of January 2007.
• The Foreign-Born Component of the Uninsured Population (http://www.dhs.gov/xlibrary/assets/statistics/publications/uninsured_fs_2007.pdf) This report provides information on the trends in the population without health insurance coverage by nativity and citizenship status.
• Characteristics of Major Metropolitan Destinations of Immigrants (http://www.dhs.gov/xlibrary/assets/statistics/publications/metro_fs_2006.pdf)
  The report provides information on leading metropolitan destinations of immigrants ranked by immigrant population growth rates and selected economic and social indicators.

Performance of immigration agencies within DHS. The Migration Policy Institute (MPI) released a comprehensive report on February 9, 2009, assessing the performance of the three immigration agencies within the Department of Homeland Security (DHS), offering detailed recommendations for policy and operational changes that could be accomplished by the executive branch without legislation.

The report, DHS and Immigration: Taking Stock and Correcting Course, offers an assessment of immigration policy direction and coordination almost six years into the life of the department.

The MPI report follows a months-long review of the three agencies —U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS) — along with overall DHS immigration policy. The analysis, based on extensive MPI research, also was informed by roundtable discussions with senior DHS officials, congressional staff, stakeholders, state and local law enforcement officials, advocates and policy experts.

The report is available at http://www.migrationpolicy.org/pubs/DHS_Feb09.pdf.

MPI also recently launched its Labor Markets Initiative, which is a comprehensive, policy-focused review of the role of immigration in the labor market. The Initiative will produce detailed policy recommendations on how the U.S. should rethink its immigration policy in light of what is known about the economic impact. The Initiative is guided by a group of leading experts in labor economics, welfare policy, and immigration.

“Immigrants and the Current Economic Crisis,” a research product of MPI’s Labor Markets Initiative, examines how the number of immigrants has changed since the recession began; how legal and undocumented immigration flows may change; and how immigrants fare in the labor market during downturns. The report is available at http://www.migrationpolicy.org/pubs/lmi_recessionJan09.pdf.

Foreign labor certification visa portal. The Department of Labor has announced a new Office of Foreign Labor Certification visa portal, the “iCERT System.” The system allows users to prepare and submit applications, pre-populate visa forms with business and contact information; create and manage sub-account users (e.g., human resources staff or in-house legal counsel) to prepare and submit applications on a person’s behalf; track the status of applications across visa programs through a single account; submit requests to withdraw applications or authorize sub-account users to do so on a person’s behalf; and notify the Department of Labor if an application for labor certification has been submitted without the user’s authorization. See http://www.ilw.com/immigdaily/news/2009,0205-PERM.pdf.

Meanwhile, the Department of Labor also released the following information about fiscal year 2009 PERM certifications (October 1, 2008, to December 31, 2008):

Approximately 3,074 cases were certified during the first quarter of FY 2009; 74% of these foreign workers were on H-1B visas. The top five states of intended employment for these permanent labor certifications were California (509), New York (474), New Jersey (326), Florida (211); and Pennsylvania (173). Beneficiaries representing 122 different countries were certified for permanent employment in the U.S. The top 10 countries of citizenship of beneficiaries included India (1,219), China (254), Canada (174), South Korea (120), Philippines (113), Mexico (99), United Kingdom (79), Colombia (54), Venezuela (52), and France (46).

Top job titles certified for permanent employment included Computer Software Engineers (632), Computer Systems Analysts (194), Computer and Information System Managers (135), Financial Analysts (115), Electronics Engineers (105), Electrical Engineers (88), Accountants (77), Mechanical Engineers (76), Restaurant Cooks (71), and Operations Research Analysts (70).

Additional information is available at http://www.ilw.com/immigdaily/news/2009,0205-PERM.pdf.

Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2008. This report provides estimates as of January 2008 by period of entry, region and country of origin, state of residence, age, and gender. See http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2008.pdf.

Public resource.org. The tag line of Public.Resource.Org is “Making Government Information More Accessible.”  The site has an agency directory by Web address. See http://public.resource.org/.

Citizen journalist’s guide to open government. The Citizen Journalist’s Guide to Open Government, provided by the Knight Citizen News Network, is divided into 10 “doors,” covering a variety of topics, from “Access to Courts” to “Following Up on Records Requests.” Behind each door, there are expert interview clips and information about how to secure access to crucial documents, meetings, and court reports. A weblog  provides users with a place to ask questions about government records, meetings, or courts. See http://www.kcnn.org/open_government/.

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11. Recent News from ABIL Members

Steve Trow (bio: http://www.abil.com/lawyers/lawyers-trow.cfm) spoke to the Miami chapter of the Society of Trust and Estate Practitioners (STEP) on January 9, 2009, and the Cayman Islands STEP chapter on January 13 on the topic of “Green Cards, U.S. Citizenship Surprises and the Exit Tax.” Mr. Trow explained how permanent residents living outside the U.S. can avoid the exit tax by using reentry permits and other means to preserve their green cards against a finding of abandonment. He also explained how permanent residents who have held that status for less than eight years can voluntarily surrender their green cards and switch to nonimmigrant (temporary) visa status before they become subject to the exit tax. Mr. Trow also described how a person can become a U.S. citizen (and thus subject to U.S. tax on worldwide income) by birth abroad to a U.S. parent, by naturalization of a parent, or by descent from a parent or grandparent who mistakenly believes that he or she lost U.S. citizenship by acquiring another citizenship. These “accidental” Americans may not realize they are U.S. citizens, which can pose serious problems for STEP members engaged in estate planning, private banking and trust administration.

Mr. Trow also spoke on “U.S. Citizenship Surprises” at a STEP meeting in Nassau, Bahamas, in January.

Cyrus Mehta (bio: http://www.abil.com/lawyers/lawyers-mehta.cfm) was a panelist on the Training Visa and Labor Certification Update Panel at the 30^th Annual Immigration Law Update, American Immigration Lawyers Association (AILA)-Southern Florida Chapter, South Beach, Florida, held on February 5, 2009. He also was a panelist on Labor Certification: PERM 101, at the AILA-New York Chapter, February 12, 2009.

An updated and expanded version of “Walking The High Wire Without A Net – The Lawyer’s Role in the Labor Certification Process,” co-authored by Mr. Mehta, was published in Bender’s Immigration Bulletin on February 1, 2009.

“The Path Less Taken: Is There An Alternative To Waiting For Comprehensive Immigration Reform?,” co-authored by Mr. Mehta, was published in Immigration Daily (http://www.ilw.com/articles/2009,0225-endelman.shtm) on February 25, 2009.

Angelo Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm) has co-authored an extensive article on the H-1B dependency provision in ARRA (“The Employ American Workers Act: Protectionist Turducken, Immigration Style”). It was published in the New York Law Journal on February 23, 2009. The full text of the article is posted at  http://www.nationofimmigrators.com/wp-content/uploads/2009/02/EAWA%20-%20Protectionist%20Turducken%20-%20PDF%20of%20online%20version.pdf.

H. Ronald Klasko (bio: http://www.abil.com/lawyers/lawyers-klasko.cfm), of Klasko, Rulon, Stock & Seltzer LLP, spoke recently at the Mid-Winter Business Meeting of the Florida Association of Realtors in Orlando about immigration options for foreign investors who wish to purchase real estate in the U.S. but lack the desire or ability to pursue employment here. Such visa programs are of great interest to Florida realtors because they can advise foreign buyers that they may be able to obtain permanent resident status in the U.S. and live in properties they purchase.

Steve Clark (bio: http://www.abil.com/lawyers/lawyers-clark.cfm) spoke to the American Immigration Lawyers Association (AILA) on “Tips and Strategies for Successful Labor Certifications” on February 11, 2009. Mr. Clark explained how layoffs impact a PERM labor certification. He elaborated on how a layoff is defined, what workers must be notified, the manner and content of notice, and how laid off workers must be considered for the position that is the subject of a labor certification. Specifically, he elaborated on the Practice Advisory to AILA members, which he co-authored.

John Nahajzer (bio: http://www.abil.com/lawyers/lawyers-nahajzer.cfm), of Maggio and Kattar, was interviewed recently on Fox Business regarding H-1B issues, and hiring U.S. and foreign workers. The video clip can be viewed at http://www.vmsdigital.com/MyFiles.aspx?Onum=DCA0880C-2202-405A-B677-642BD3023981.

For an extensive analysis of the immigration impact on recipients of these federal funds, click here for an article published in the New York Law Journal (copyright 2009 IncisiveMedia; reprinted with permission) by Angelo Paparelli.  For blog postings on the same subject click on the following names: Angelo Paparelli and Hugh Hewitt, Political Commentator.

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12. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/jsps/ptimes.jsp

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

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