Thursday, September 11, 2008

DOS Issues October Visa Bulletin

Department of State's (DOS') Visa Office (VO) has released the visa numbers for the month of October. This is a critical announcement for immigrants and employers alike who have been frustrated during the summer by the lack of "green card" visas. The problem arises because Congress long ago established a cap on the number of green card visas that are issued each year in most visa categories. In addition, because the federal government works on a fiscal year that begins October 1st, the government often runs out of green card visas during the summer, when its fiscal year ends.

The new numbers indicate that employment-based visas will be available in the professional and skilled categories for applications that were filed on or before January 1, 2005. Other, more highly skilled workers can apply immediately for citizens of all countries other than China, India, Mexico and Philippines.

Click here for a complete copy of the Visa Bulletin for October 2008.

Wednesday, September 3, 2008

Union Sues Employer Successfully Over No-Match Letter

In a follow-up to the recent controversy over No-Match letters, a federal appeals Court in California has ordered re-instatement and awarded back pay to workers who were dismissed over discrepancies in their social security numbers. The Court stated the issue bluntly: "This case boils down to a single issue: whether the SSA's no-match letter -- and the fired employees' responses -- put [the employer] on constructive notice that it was employing undocumented workers."

The employer received a no-match letter from the Social Security Administration that reported discrepancies between the social security numbers reported by the employer and the numbers in SSA's data base. Upon receipt of the no-match letter, the company gave the employees 3 days to correct the mismatches and fired 33 employees a week to 10 days later, if they failed to comply.

The Court's decision effectively holds that no-match letters do not effectively provide "constructive notice" to employers of any immigration violations. The Court concluded that "Constructive notice . . requires positive information of a worker's undocumented status."

The issue of no-match letters took on heightened importance last summer, when DHS announced that employers would be required to respond to those letters by requiring verification of employment authorization by the affected worker or dismiss the worker. The issue has remained bogged down in litigation for the past year.

Monday, August 11, 2008

Department of Labor Awards Back Pay For H-1B Workers

A series of recently released decisions by the Administrative Review Board of the U.S. Department of Labor again highlights the importance to H-1B employers and employees to carefully document their employment relationship and notify USCIS when that relationship terminates. This is particularly true in employment where "benching" of workers is common, such as the computer consulting field.

The DOL has awarded back pay with interest and civil fines against employers who fail to notify the USCIS after they have "terminated" an employee and in one case back pay was awarded even though the employer notified USCIS of the termination, but continued to correspond with the worker to help her find additional work. Both of these decisions occur in "benching" circumstances.

Benching occurs when an individual who has been approved for H-1B employment is in nonproductive status (i.e. "benched") "due to a decision by the employer." If the H-1B nonimmigrant is nonproductive due to lack of assigned work, lack of a permit or license, or some other employment related reason, the employer is required to pay the wages due under the Labor Condition Application which was filed with the H-1B application. Benching occurs routinely when computer professionals, contracted out to clients by a consulting company, complete the project to which they were assigned. They often remain "unproductive" until a new client is retained. The law provides that the employee must continue to be paid the higher of the actual wage or the prevailing wage during the benching period. This is to be distinguished from the nonproductive status that results at the "voluntary request and convenience" of the employee, such as maternity leave, an incapacitating accident, or a requested leave to care for a sick relative or extended vacation.

This leads to the ultimate question: when does employment "terminate." Clearly, if the employer notifies the H-1B employee in writing that his or her employment will end on a specific date, sends a copy of this notification to USCIS and ceases any further contact with the employee after the specified date, then employment will have terminated on the specified date.

Employers are reminded that USCIS regulations require the employer to notify CIS when the employment relationship has been terminated so that the petition is canceled by USCIS. The employer if further responsible to provide the employee with payment for transportation home under certain circumstances.

Sunday, August 10, 2008

ICE Steps Up Work Site Raids

In a series of highly controversial and highly publicized raids, ICE officials arrested scores of undocumented workers as well as allegedly corrupt company officials who assisted the workers in obtaining false work documents. The raids come on the heals of the controversial Postville, Iowa raid in May at which time over 300 undocumented workers were seized at Agriprocessor, the worlds largest kosher meat processor. That raid became notorious among civil rights advocates because of pressure applied by federal officials through an "exploding plea bargain" (sign the deal within 7 days of arrest or face maximum prosecution with 2-year mandatory minimum sentences) which required detainees to forfeit all possible immigration relief. Most are now serving 5-month federal prison terms which will be followed by immediate deportation," according to the American Immigration Lawyers Association. The willingness to use the threat of criminal prosecution is the newest weapon in the ICE arsenal.

So far in fiscal year 2008, ICE has made more than 3,700 administrative immigration arrests in connection with worksite enforcement investigations, including 850 involving criminal violations. In fiscal year 2007, ICE made more than 4,900 arrests in connection with worksite enforcement investigations, including 863 involving criminal violations.

The most recent raids this summer include the following:

  • More than 160 employees arrested at a Houston Rag-Exporting Company in June. The raid against Action Rags USA, an international supplier of used clothing and rags, resulted in criminal charges against the owner and manager, alleging a conspiracy to harbor illegal aliens, inducing illegal aliens to come to the U.S. and engaging in a pattern or practice of hiring illegal aliens. According to the criminal complaint, the year long investigation revealed that the company did not complete I-9 forms to verify eligibility for employment, hired undocumented aliens and paid them in cash until they were able to purchase fraudulent identity and social security cards from local flea markets.
  • Thirty-two arrested at a Puget Sound Area Aerospace Manufacturer in June. Aerospace Manufacturing Technologies, Inc. (AMT) is a leading supplier of frame and interior parts for commercial and military aircraft, providing many of the parts used in some of aviation's most popular airplanes, including the Boeing 737 and Boeing 777. The arrests followed an ICE audit of AMT that revealed discrepancies leading agents to believe that a small percentage of the company's employees used counterfeit documents to secure their jobs. There is no evidence AMT was aware the arrested workers had used false credentials to secure their employment. The investigation is ongoing.
  • Two alleged supervisors at the Agriprocessors Inc. plant in Postville, Iowa, were arrested in July on various criminal immigration and fraudulent identity charges. The criminal complaint alleges that, a few days before the May 12, 2008, execution of a search warrant at Agriprocessors, the Human Resources manager told a group of employees they needed new IDs and Social Security numbers to continue working at the company, and they would need to provide him with a photograph and $200 or $220. Fraudulent resident alien cards were allegedly supplied to Agriprocessors workers. The Complaint also alleges that the May 12 search resulted in seizing dozens of fraudulent permanent alien resident cards from offices within the human resources department at Agriprocessors.
  • Forty-five employees of a Maryland painting company were arrested in July and charged with administrative immigration violations. All of the individuals arrested will be placed in removal proceedings.
  • Eighteen workers at a Colorado Concrete Plant were arrested in mid July for being in the United States illegally. One is from El Salvador; the rest are from Mexico. The company fully cooperated with ICE during the operation; no criminal charges are anticipated against the company.

Employers are again advised to complete the I-9 form for EVERY employee and to do so in good faith. If the documents later turn out to be fraudulent, the employer is protected as long as the employer could not reasonably know that the documents were false.

Saturday, August 2, 2008

Declining Numbers of Undocumented Immigrants Reported

The number of illegal immigrants in the country has dropped by as much as 1.3 million in the past year, an 11 percent decline since a historic peak last August, according to the Center for Immigration Studies, a restriction immigration group based in Washington. The groups findings add to a growing body of studies indicating that the population of illegal immigrants in the United States is dropping significantly.

The more controversial issue is whether this decline can be attributed to a step up in enforcement policies or the declining economy. "The decline can easily be explained by changes in the economy," said Steve Levy, senior economist at the Center for Continuing Study of the California Economy in Palo Alto. He said California had lost 134,000 construction jobs since the summer of 2006.

The arguments provoked by the study reflected the difficulties of discussing options for halting illegal immigration, when researchers cannot agree on how many illegal immigrants there are and how they are affected by immigration enforcement.

The Center based their findings on census figures for foreign-born Hispanics ages 18 to 40 with a high school degree or less. They estimated that three-quarters of those Hispanics were illegal immigrants, and that they made up about two-thirds of the illegal immigrants in the United States.

Using those estimates, they concluded that the illegal immigrant population had dropped to 11.2 million, from a historic high of 12.5 million in August 2007.

Jeffrey Passel, a demographer at the Pew Hispanic Center in Washington who studies illegal immigration, said his research also showed a decline in immigrants. But because of recent changes in the census's data reporting, he said it was too soon to make precise calculations.

Wayne Cornelius, director of the Center for Comparative Immigration Studies at the University of California, San Diego, said Mr. Camarota and Ms. Jensenius had applied "highly arguable assumptions" to their data.

"They offer no direct evidence that fewer undocumented immigrants are attempting to come to the United States, or that fewer of them are getting in, or that more of those already here are leaving the United States as a result of enforcement efforts," said Mr. Cornelius, who has studied the impact of border enforcement over the past 15 years.

Friday, August 1, 2008

USCIS Clarifies Premium Processing for Certain I-140 Petitions

U.S. Citizenship & Immigration Services (USCIS) announced confirmed that Premium Processing Service requests for Form I-140 (Immigrant Petition for Alien Worker) will be limited to H-1B applicants who are nearing the end of their sixth year in H-1B nonimmigrant status.

Premium Processing Service offers 15 calendar-day processing for designated employment based petitions and applications upon request. There is a nonrefundable fee of $1,000 for this service. During the 15-day period, USCIS will issue an approval or denial notice, a notice of intent to deny, a request for evidence, or open an investigation for fraud or misrepresentation. USCIS previously designated certain classifications under Form I-140 for Premium Processing Service in the May 23, 2006 issue of the Federal Register.

USCIS is limiting Premium Processing Service for Form I-140 petitions that are filed on behalf of aliens:
  • Who are currently in an H-1B nonimmigrant status;
  • Whose sixth year will end within 60 days;
  • Who are only eligible for a further extension of H1-B nonimmigrant status under section 104 (c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and
  • Who are ineligible to extend their H-1B status under Section 106(a) of AC21.

Section 104 (c) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to three years, provided they are the beneficiary of an approved Form I-140 and an immigrant visa is not immediately available. Section 106(a) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days.

USCIS Starts Online Service to Check FOIA Requests

U.S. Citizenship and Immigration Services (USCIS) recently launched the online FOIA Request Status Check service providing customers a quick and secure way to check the status of requests they have made under the Freedom of Information Act (FOIA). The service will work much like the existing procedure that allows applicants with pending immigration applications to check the status of their applications. Customers use the FOIA service by entering their assigned control number to receive a "pending" or "processed" response. A pending response indicates to the customer the position of their request relative to all other requests in the same processing track. A "processed" request indicates that the request was processed and the customer will be provided that processing date. USCIS will make daily updates to the status information.

Customers without Internet access can still obtain information on their FOIA requests by calling the USCIS FOIA Requester Service Center at (816) 350-5785 from 7 a.m. to 2:15 p.m. (Central Time). USCIS receives more than 110,000 requests annually for access to immigration records. These requests include both active cases, involving immigrants seeking information about pending or completed adjudications as well as relatives seeking immigration histories about family members.

ICE Program To Allow Fugitive Aliens To Leave Voluntarily

U.S. Immigration and Customs Enforcement (ICE) announced last week the launch of a pilot program, "Scheduled Departure," which allow fugitive aliens who have no criminal history and pose no threat to the community an opportunity to remain out of custody while they coordinate their departure from the U.S. with ICE. The program effectively permits aliens with deportation orders to surrender to ICE officials if they agree to leave the U.S. within 90 days. The program will allow these individuals to remain at liberty pending their departure, although some may be required to wear monitoring ankle "bracelets."

Initially, the Scheduled Departure Program will run from Aug 5th to Aug 22nd and may be expanded as ICE continues to evaluate the pilot. Non-criminal fugitive aliens who live in or around Santa Ana, Calif., San Diego, Phoenix, Chicago and Charlotte can visit their local ICE Offices to discuss their departure plans. Aliens who have not previously been detained by immigration officials or who have criminal records, or are determined to be a danger to the community are not eligible for this program and may be arrested and taken into custody if they report to ICE.

There are approximately 572,000 ICE fugitives in the United States, including 457,000 who do not have criminal histories. An ICE fugitive is defined as an alien who has failed to depart the United States based upon a final order of removal, deportation, or exclusion from a U.S. immigration judge, or who has failed to report to ICE after receiving notice to do so. Only non-criminal fugitive aliens are eligible for the program and will be screened by an ICE officer when reporting to verify status.

The Scheduled Departure Program will not alter a participant's immigration status or provide any immigration benefit. The program is not a form of voluntary departure or voluntary return. Participants will continue to have a final order of removal, deportation or exclusion.

As of this writing, exactly one alien has surrendered under this program.

USCIS Again Promises Two-Year Work Cards

U.S. Citizenship and Immigration Service (USCIS) announced that beginning on June 30, 2008 it will issue work cards valid for two years to individuals who have filed for permanent residence ("green cards") but whose applications cannot be approved because an immigrant visa number is not currently available.

The problem has become common for individuals who applied for permanent residency last summer when the State Department reported that all employment based green card categories were currently available. This announcement resulted in a deluge of applications in July and August that created long backlogs in the issuance of green cards that will likely continue for several more years. USCIS later qualified its position by announcing that to be eligible for a 2-year work card, the I-140 petition, filed by the employer prior to or concurrently with the green card application (I-485) must have been approved. If the I-140 is still pending, USCIS will only issue a 1-year work card.

USCIS will review the issue of visa retrogression at the time the work card application (I-765) is filed. However, if the priority date is current as of the date of filing, but later retrogresses while the I-765 application is pending, USCIS has the discretion to review the case again and issue the 2-year EAD. If the priority date is backlogged as of the date of filing, but later becomes current while the I-765 is pending, USCIS also has the discretion to review the case again and issue a 1-year EAD.

Sunday, May 25, 2008

H-1B Lottery Completed

The U.S. Citizenship and Immigration Services (USCIS) completed its H-1B selection process in April, conducting two random lotteries -- one for candidates with master's degrees from U.S. institutions and the second for applicants with a bachelor's degree from a U.S. or foreign university. Approximately 163,000 applications were received during the first week in April for 85,000 visas. This was a far cry form the 250,000 applications that many immigration professionals had estimated. The relatively low number can probably be attributed to two factors -- the economic downturn that has greatly impacted on the foreign labor force and the growing frustration with an immigration system out of control.

USCIS has "wait-listed" some H-1B petitions, meaning they are holding them in abeyance in the event already selected petitions are denied. Most employers who submitted applications should already have receipts from USCIS. Adjudications of the petitions will likely take another eight to ten weeks. Those applications which were not chosen in the selection process will be returned to the employer (or their representatives) along with the full filing fees.

Tuesday, May 20, 2008

USCIS Proposes Extension of TN Visas

USCIS announced in May that it was proposing a change in the regulations to permit TN professionals to stay in the U.S. for as long as three years on each visit. Under current rules the TN visa is valid for a maximum period of one year and the foreign national must then leave the U.S. and re-enter with a new visa. The TN visa is issued in accordance with the NAFTA trade agreements with Canada and Mexico and permits certain professionals to enter the U.S. to work. The decision extending the authorized stay takes on increased importance because of the scarcity of H-1B visas (see above story). Citizens of Canada and Mexico who might otherwise qualify for H-1B professional visas will usually qualify for the TN.

Some employers however have been reluctant to utilize the TN because of the shorter approval period.

Thursday, May 15, 2008

Litigation on Naturalization Delays

Two permanent residents ("green card" holders) filed a class action lawsuit on behalf of themselves and all permanent residents whose applications for naturalization have been pending with USCIS for more than 180 days. The action is part of a nationwide effort to force USCIS and the FBI to expeditiously complete security checks and adjudicate pending applications. Many applicants for citizenship are experiencing delays of two years or more while awaiting interviews.

The government has recently moved to eliminate delays caused by pending security checks involving applicants for green cards. In a February 4, 2008 USCIS memorandum, USCIS announced a major shift in the agency's approach to FBI name checks of pending applications. According to the memo, after a FBI fingerprint and IBIS check have been completed, and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the application and proceed with the card issuance. This new procedure will apply to Applications for Adjustment of Status (I-485); Applications for Waiver of ground of Inadmissibility (I-601); Applications for Status as a Temporary Resident Under Section 245A of the Immigrant and Nationality Act (I-687), or Applications to Adjust Status from Temporary Permanent Resident (Under Section 245A of Public Law 99-603) (I-698).

USCIS however, has not approved the new procedures for naturalization applicants. Last July, USCIS received 460,000 applications for naturalization. That was three times the record for any previous month. For the year, USCIS received 1.4 million naturalization applications, almost double the normal annual volume.

In a related matter, USCIS announced last week a settlement agreement in a class action filed by naturalization applicants who had lost or were about to lose their eligibility for Supplemental Social Income (SSI). Under the settlement, USCIS will expedite green card and naturalization applications of current or former SSI beneficiaries, if the application has been pending more than 6 months.

Thursday, May 8, 2008

CIS Issues Guidance for Extension of OPT for Science Students

In furtherance of its earlier announcement that Optional Practical Training (OPT) would be extended for foreign students majoring in the "hard science", USCIS issued a Q & A that should prove valuable for the affected individuals. OPT is a program that permits foreign students to obtain work authorization in furtherance of their studies. Until recently, OPT was limited to a period of one year for all foreign students at the completion of the study. In April, USCIS announced that certain student will be eligible to receive a 17-month extension of OPT (resulting in a total of 29 months). To be eligible, a student must received a degree in one of the designated sciences including computer science, engineering, mathematics and statistic, physical sciences and science technologies, among others. For a complete copy of the CIS Q & A go to:

Thursday, May 1, 2008

Senate Committee Adds Immigration Amendments

On May 15th, the Senate Appropriations Committee held a mark-up session for the emergency war supplemental bill. Among the various amendments added to the bill were several immigration-related measures which passed, including:

  • A scaled back version of AgJobs, introduced by Senators Craig (R-ID) and Feinstein (D-CA);
  • A 3-year returning worker extension for the H-2B program, introduced by Senator Mikulski (D-MD);
  • A recapture of employment based immigrant visas, and early adjustment filing, introduced by Senators Gregg (R-NH) and Murray (D-WA);
  • A reauthorization of the EB-5 program introduced by Senator Leahy (D-VT); and
  • A border security grant funding program, introduced by Senator Hutchison (R-TX).

Ultimately, the prospect of these measures surviving debate on the Senate floor is very slim, because they will all likely be subject to points of order on grounds of germaneness, which are extremely difficult to overcome for a variety of reasons

Worker Verification Bill Passes Suffolk County Legislature; New Rules for Contractors

When the Suffolk County legislature passed a bill last week requiring 17,000 contractors to verify the immigration status of their employees or risk the loss of their license, it created an enforcement nightmare. As County Executive Steve Levy noted the day after the bill's passage, the enforcement will largely depend on complaints and random checks. In the real world, this likely means that contractors with Spanish speaking work forces can expect to come under closer scrutiny. Levy threatened to tighten the screws further by suggesting that contractors might be required to use the E-Verify system, an on-line employee registration system.

Suffolk County is part of an ever growing trend of more than 100 communities around the U.S. that have tried -- with limited success -- to enforce immigration laws that the federal government is unable to enforce itself. Most of these enforcement measures take the form of penalties on employers who knowingly hire undocumented workers. Since 1986, federal law has required all employers to verify that new workers are eligible to work in the U.S. by reviewing certain specified documents. However, there has been little enforcement of the rules on the federal level. Now, the problem is out of control. With estimates of at least ten to fifteen million undocumented immigrants nationwide and a Congress that is stalemated on immigration reform, the U.S. Immigration and Customs Enforcement (ICE) has made a show of stepping up enforcement efforts. On May 15, 2008, for example, ICE issued a press release announcing it had arrested 18 undocumented immigrants at a restaurant in San Diego. The press release further notes that "Today's worksite enforcement action is part of ICE's ongoing nationwide effort to shut down the employment magnet fueling illegal immigration." ICE statistics for 2007 show that "more than 4,900 arrests were made in connection with worksite enforcement investigations." How the apprehension of 18 undocumented Mexican workers in the latest effort or 4,900 through all of 2007 will significantly accomplish the goal of removing 15 million undocumented workers is hard to understand.

But the growing frustration is easy to understand. The federal courts initially reacted to these local laws with skepticism and outright disdain. But that too is changing. In February, a federal judge in Arizona upheld a state law that imposed severe penalties on employers who knowingly hire illegal immigrants. In December, a judge in Oklahoma threw out a lawsuit brought by contractors and immigrant groups seeking to stop enforcement of a state statute much like the one passed by the Suffolk County legislature. The judge made it clear he had no patience for the litigation, bluntly stating, "This Court is convinced that the proper remedy for the injuries alleged by the remaining Plaintiffs -- all of whom are in willing violation of federal immigration law -- is not judicial intervention, rather, it is simple compliance with federal immigration law."

The Suffolk County bill -- yet to be signed by the county executive -- will almost certainly result in protracted litigation of its own. It will also be difficult to enforce. Many contractors will simply resort to paying workers "off the books" or designating them as independent contractors. Others will think twice about sending Spanish speaking employees to certain job sites. Our best advice? First, and most obviously, all employers should follow the law. Every employee must complete an I-9 form and must present the appropriate documentation to show he or she is eligible to work in the U.S. Secondly, employers must be very clear about the law regarding subcontractors. Although employers do not have the same requirements to verify the immigration status of independent contractors as they do with employees, calling an employee a subcontractor to avoid immigration and tax requirements is illegal and can result in criminal prosecution. Finally, no contractor should put up with discrimination. A customer, competitor or co-worker who threatens to complain to the county Labor Department regarding non English speaking workers at a job site may themselves in violation of the law.

Saturday, March 29, 2008

USCIS Works To Clear Green Card Delays

USCIS has confirmed it is conducting "sweeps" of applications for Adjustment of Status cases that can be reviewed for adjudication under its new policy of approving case that have been pending security checks for more than 180 days. USCIS has asked applicants to hold off on submitting inquiries on cases at the Service Centers that were delayed due to background checks until after April 30, 2008. CIS hopes to have identified and taken action on cases by that date.

In a report to Congress on the backlog problem, the Immigration Ombudsman stated that "as of May 2007, USCIS reported a staggering 329,160 FBI name check cases pending . . . with approximately 32 percent (106,738) pending over one year." The Ombudsman further stated that, "Delays in the name check process actually prolong an individual's presence in the United States while the check is pending. In this sense, the current USCIS name check policy may increase the risk to national security by extending the time a potential criminal or terrorist remains in the country."

The policy change provides that applications for immigrant benefits that have been pending with the Service for FBI name check requests and have been pending for more than 180 days can be approved without further wait. The policy change applies to applications for Adjustment of Status (I-485) and Applications for Waivers for Inadmissibility, but does not apply to Applications for Naturalization (N-400). Applicants will still need to wait until FBI fingerprint checks are completed and approved although applications waiting name checks can proceed. The apparent justification for the policy change on green cards as opposed to citizenship is that a negative name check response following a green card approval can result in action to revoke the green card. That is not necessarily true with citizenship applications where actions to revoke citizenship are far more difficult to accomplish.

Immigrant applicants that have applications for more than 180 days should contact their attorney immediately to expedite an approval.

Thursday, March 20, 2008

State Department to Add Eastern Europe To Visa Waiver Program

The U.S. Department of Homeland Security announced last week that it was moving forward with plans to add several East European Countries to the Visa Waiver Program. The program allows citizens from designated countries to come to the U.S. for up to 90 days without a visa. The program is used almost exclusively by tourists, because it does not permit the visitor to extend their stay beyond the 90-day period or switch to another status, such as student. At present, the program is restricted primarily to countries in Western Europe, as well as Australia and Japan.

The new additions would include Slovakia, Hungary, Lithuania, the Czech Republic, Estonia and Latvia and would go into effect later this year.

Wednesday, March 5, 2008

USCIS Revises Filing Instructions For I-130 Petitions

USCIS has revised filing instructions for Petitions for Alien Relative (I-130), which are used by family members to sponsor other family members for permanent residency in the United States. Until recently, these applications, if unaccompanied by an application for Adjustment of Status in the United States (I-485), were sent to the local Service Center -- which means the Vermont Service Center -- for sponsors living in the Northeast. Effective immediately, these applications will now be sent to the following address:

United States Citizenship & Immigration Services
P.O. Box 804616
Chicago, IL 60680-1029

Saturday, March 1, 2008

Small Businesses Make Final Push to Save H-2Bs

Over 120 members of the Save Small Business (SSB) advocacy group descended on Washington last week in a final push to convince Congress to pass legislation that will free additional H-2B guest worker visas. Although SSB members reported that Congress is unlikely to pass a bill before the two week Easter and Passover break, they remain hopeful of a breakthrough. Their efforts center on the Save Small Business Act, which would make the H-2B returning-worker exemption permanent. To date, their efforts have been stifled by the greater immigration debate and opposition from the Congressional Hispanic Caucus. The 21-member caucus has opposed any piecemeal immigration-related legislation, preferring to pass these measures only in a comprehensive bill.

The H-2B visa allows U.S. employers to hire skilled and unskilled foreign workers to work in seasonal and peak businesses. On Long Island, this includes primarily summer business such as pool and landscaping companies as well as resort related business in the Hamptons. Congress has set a numerical cap at 66,000 H2B visas a year and that cap was reached the first week in January. This means no additional workers will be approved to start before October 1, 2008.

New Regulations to Prohibit H-1B Duplicate Filings

New regulations prepared by USCIS to prevent duplicate filings of H-1B "lottery" petitions have been cleared for publication by the Office of Management and Budget. (OMB). The action clears the way for the April 1st lottery, under which an estimated 200,000 applications are expected to flood the two regional USCIS office for 65,000 professional worker visas.

The regulation deals with the problem of duplicate applications, which some employers filed last year in order to increase the likelihood of being selected in the lottery. Although immigration officials have repeatedly stated that such applications will be rejected this year, the regulation was required to enforce that position.

The H-1B visa category is established for foreign professional workers coming to the United States to perform professional work at a prevailing wage established by the U.S. Department of Labor. Congress has allocated a total of 65,000 new H-1B visas each year for new applicants. The fiscal year begins on October 1st and new applications can be filed no more than 6 months prior to the anticipated start date. Thus April 1st is the earliest possible day to file applications for new foreign workers to begin work October 1st. Once the cap is reached, further applications are returned to the employer without being adjudicated. Last year USCIS received over 120,000 on the very first day and a computer generated lottery was instituted.

Because it is imperative that the applications arrive on April 1st, employers are advised to use a delivery service such as FedEx rather than the U.S. Postal Service. Not only are the delivery services more reliable, but they will deliver the application directly to the service center. USPS on the other hand delivers the documents to the local post office and may not arrive at USCIS until the following day.

Tuesday, January 1, 2008

It's a myth that immigrants don't "assimilate" into U.S. society

Here are the facts (note 1):

Immigrants learn English and climb the socio-economic ladder over time,and their children and grandchildren make even greater strides.

  • A comprehensive 2007 study released by the Russell Sage Foundation found that Latino immigrants in California exhibit exceptionally large gains in home ownership -- a key indicator of entry into the middle class. Home ownership rose from 16.4 percent of Latino immigrant householders in California who arrived in the U.S. in the last 10 years to 64.6 percent among those who have lived here for 30 years or more.
  • A 2007 study by the Pew Hispanic Center found that among "adult first-generation latinos, just 23% say they can carry on a conversation in English very well. That share rises sharply, to 88%. among the second generation of adults, and to 94% among the third and higher generations."
  • According to a 2003 study from the RAND Corporation, "2nd and 3rd-generation Hispanic men have made great strides in closing their economic gaps with native whites. The reason is simple: each successvie generation has been able to close the schooling gap with native whites, which then has been translated into generational progress in incomes. "

Note 1: Excerpt from "Top 5 Immigration Myths from this Campaign Season" from the American Immigration Lawyer Association