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Immigration News Update
October 2009
Immigration Reform Back on the Agenda, But Still a Hard Sell - President Obama met with Congressional Leaders to kick off a late 2009 legislative push, but the White House acknowledges that votes aren’t there yet. Momentum may be picking up.
DHS Budget Proposal Emphasizes Border, Transportation Security – FY 2010 increases southwest border enforcement spending by 18% to $2 billion and increases TSA budget by 12%, but the Senate bill's requirement to spend $4.6 billion on a 700 mile stretch of Mexican border fence is a sticking point in the House.
Think Tank Panel Would Expand Employment-Based Immigration Programs – Employment verification system seen as integral part to immigration reform, according to Brookings-Duke report.
GAO Report Addresses Secure Border Initiative Implementation and Deployment of Tactical Infrastructure - Report finds long delays in implementation and no way of measuring effectiveness of several key measures.
ENFORCEMENT
E-Verify Mandatory for Federal Contractors and Subcontractors - The Obama Administration has put into effect the Bush Administration's mandatory use of electronic employment verification system by government contractors and subcontractors.
H-1B
Grassley Wants Action on H-1b Fraud Report – Senator Chuck Grassley wants USCIS to tell him what they're going to do in response to the Inspector General's report finding that 20% of randomly examined H-1b cases involved fraud or "technical violations".
FY2010 H-1b Cap Count - Six months into FY2010 filing period, demand remains fairly weak and more than 20,000 visa numbers remain.
Department of Labor’s New Prevailing Wage Web Application Creates Havoc - New Labor Condition Application portal caused thousands of false denials and other headaches after its July 1, 2009 unveiling; USCIS offers no assistance to H-1b petitioners running out of time.
PERMANENT RESIDENCE PROCESSING
Pending Employment-Based I-485 Inventory – USCIS will publish pending I-485 inventory status quarterly; now you can see how slowly they're moving.
Employment-Based Visa Availability – The State Department declares that the outlook for availability of India and China Employment-Based immigrant visas is “grim”.
2011 Diversity Visa Lottery Opened October 2, 2009 - Application window open until November 30, 2009.
QUICKTAKES – USCIS Overhauls Website “to improve responsiveness and access to immigration services”; Interim EADs for El Salvador TPS Beneficiaries; E-Verify User Manual Published; DHS Initiative to Reform Immigration Detention; Immigration and Customs Enforcement (“ICE”) Worksite Enforcement Strategy Memorandum Outlines ICE Strategy and Methodology
Immigration Reform Back on the Agenda, But Still a Hard Sell - President Obama made his clearest statement yet as to the timing of his push to enact Comprehensive Immigration Reform, although made little reference to specifics. In remarks after a June 25 meeting with his Secretaries of Homeland Security and Labor and thirty senior members of Congress, the President stated that there is a consensus that “we need an effective way to recognize and legalize the status of undocumented workers who are here, ” and that the American people are ready for us to do so”. He noted, however, that “it's going to require some heavy lifting, it's going to require a victory of practicality and common sense and good policymaking over short-term politics.”
To underscore that point, White House Chief of Staff Rahm Emmanuel told the press earlier that day that there were insufficient votes in Congress to pass a comprehensive bill, and that one was unlikely to be passed during 2009. Instead, the White House would continue to focus on economic issues.
One of the key sticking points in achieving a comprehensive bill is the perception that the economy remains too soft to enable members of Congress to vote on employment-based immigration issues, such as expanding the numbers of visa made available to for persons with science, technology, engineering and math, for example. The business community is concerned – rightly - that it may be politically impossible to expand employment-based visa programs unless it is linked to normalizing the status of illegal immigrants. The U.S. Chamber of Commerce is pushing the White House for expansion of guest worker programs and has indicated that it will withhold support for any immigration reform bill which fails to do so.
To restart the debate, the President announced that Homeland Security Secretary Janet Napolitano would head a leadership group with members of the House and Senate that is supposed to methodically work through each issue.
On a more down to earth note, the President announced a renewed effort to speed up processing of USCIS petitions “which has been far too slow for far too long” and “to make the agency much more efficient, much more transparent, much more user-friendly than it has been in the past.” He then said he was assigning his Chief Information Officer, Chief Performance Officer, and Chief Technologies officer to work with USCIS to come up with a solution.
DHS Budget Proposal Emphasizes Border, Transportation Security - The Obama Administration’s FY 2010 Homeland Security Budget spends big on enforcement, no doubt in part to assuage critics of comprehensive immigration reform demanding border security before a legislative deal on illegal immigrants already in the US. Of the $42.7 billion total, $24.6 billion goes to Customs and Border Protection and the Transportation Security Administration, an 8% increase over FY 2009. The budget also proposes $10 million to establish a new Immigrant Integration program within USCIS which will develop an online welcome program for immigrants; provide grants to community-based organizations for citizenship preparation programs; facilitate online English language learning; promote volunteerism; and promote citizenship “with integration messages”.
Think Tank Panel Would Expand Employment-Based Immigration Programs – A panel report published by the Brookings Institution and the Kenan Institute concludes that the U.S. should promote immigration of skilled workers and limit family-based immigration petitioners to spouses, children, and parents. The report, publishing the conclusions of a round table comprised primarily of social science academics, also recommends enhancing worksite enforcement and using the Diversity Visa program's 55,000 visas to expand employment-based immigration programs. The report also proposes to end the requirement that no more than 7% of new immigrants in a visa category come from any one country, a restriction that has greatly inhibited immigration of professionals from China and India
The report concludes that any legalization must be coupled with a strong workforce enforcement, including the use of a much improved version of E-Verify as a means of employment authorization verification, and increasing the frequency of wage and labor law enforcement audits and inspections of employers.
GAO Report Addresses Secure Border Initiative Implementation and Deployment of Tactical Infrastructure – A recent Government Accountability Office report has found that DHS’ Secure Border Initiative technology capabilities, SBInet, has not yet been deployed and delays have forced Border Patrol to rely on its existing technology rather than use the updated equipment designed to overcome existing technical limitations. In 2006, Customs and Border Patrol had announced that SBInet, a multiyear, multibillion dollar program aimed at “securing US borders and reducing illegal immigration”, would be deployed along the southwest border by early 2009; that estimate has since slipped to 2016. Delays also face fencing along the southwest border. Although 633 of 661 miles have been completed, delays continue due to problems obtaining property rights and concern over the impact on environmentally sensitive areas. CBP has not yet been able to determine the contribution of these fences to border security.
E-Verify Mandatory for Federal Contractors and Subcontractors – The Obama Administration put into effect Bush-era rules requiring federal contractors to enroll in and use the E-verify system to establish employment authorization for new employees and all employees working on federal contracts. The policy, which amends the Federal Acquisition Regulations (FAR) to require existing and new contracts include an E-verify mandate, had been tied up in litigation brought by the U.S. Chamber of Commerce. In August, a federal judge denied the U.S. Chamber's request to stay the effective date of the rules, and the Obama Administration put them into effect September 8.
Grassley Talks Tough on H-1b - Senator Chuck Grassley (R-Iowa) has sent a letter to USCIS Director Alejandro Mayorkas asking what actions USCIS intends to take in light of a USCIS report published in 2008 asserting that it found some degree of fraud or technical violation in 21% of a random sampling of 246 H-1b cases. Grassley’s letter criticizes USCIS’ lax enforcement measures in the H-1b program and calls for stricter enforcement with regard to employee “benching,” where an employer fails to pay an H-1b employee for periods when there is no work, usually in the context of employees assigned to work on third party contracts. Grassley also calls for more enforcement of rules that bar H-1b employees from performing job duties other than those expressly authorized in the H-1b petition and requiring that employers specify each location where the employee will be working.
Grassley is a perennial critic of the H-1b program, and, with Senator Dick Durbin, (D-Illinois), is a sponsor of a bill that would impose greater restrictions on the H-1b program, including requiring all H-1b employers to first conduct a recruitment seeking U.S. workers for each position and increasing Labor Department investigative authority. Although USCIS has not yet responded to Grassley’s letter, it has in the past several months ramped up their investigations of H-1b employers through its Office of Fraud Detection and National Security (FDNS), including hundreds – and ultimately, thousands, of employer site visits by FDNS contract investigators.
FY2010 H-1b Cap Count – As of September 25, 2009, approximately 46,700 H-1B cap-subject petitions of the 65,000 regular cap total had been received by USCIS since April 1, 2009, the first time in years that H-1b visas have been available after the start of the fiscal year. USCIS usually accepts an overage of 5%-10% H-1b petitions to account for denials and withdrawals. As such, USCIS continues to accept petitions for U.S. Masters degree H-1b exemptions even though it has received 20,000 petitions so far this fiscal year. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits. The slow economy, paired with TARP restrictions, has decreased the demand for new H-1b petitions to the point that USCIS is still accepted petitions 6 months after the filing window opened.
Department of Labor’s On Line H-1b Processing System Creates Havoc – The Department of Labor (DOL) has rolled out a new online application portal for Labor Condition Applications (LCA), by which DOL certifies that wages to be paid H-1b employees meet the minimum prevailing wage for the geographic area of intended employment. The LCA must be certified prior to filing an H-1b petition, which, in many cases, are extremely time sensitive. Prior to July 1, 2009, LCA certifications were virtually instantaneous provided that the employer used a well known wage survey. The new system apparently requires review by a DOL employee, and can take seven business days or more.
DOL’s implementation of the new system has been plagued by what appear to be technical problems. Most significantly, the new system has erroneously denied thousands of LCAs claiming a mismatch between the employer name and its Federal Employer Identification (FEIN) number, even where Labor has performed an FEIN verification in the past in conjunction with a PERM or other matter. DOL has established a process whereby an employer will email FEIN document, which DOL will vet and then advise the employer to resubmit the LCA. (Even then, it is not unusual for LCAs to again be denied erroneously). All in all, an employer’s first LCA in the new system may take weeks to receive certification, during which time the H-1b petition may not be filed with USCIS.
It appears as if the FEIN denials are predominantly smaller employees (fewer than 100 workers), so it is possible that the denials are, in fact, a selective entity check by another name. If so, DOL’s actions would probably violate the Administrative Procedures Act which governs federal agency adjudications.
Labor has released an FAQ that attempts to address some of the issues that have arisen with the release of the new online system for filing ETA Form 9035, and describes the process for verifying an FEIN number with the Department of Labor.
Pending Employment-Based I-485 Inventory - U.S. Citizenship and Immigration Services (USCIS) has, for the first time, released details of its inventory of pending employment-based (EB) I-485 adjustment-of-status applications along with a set of questions and answers (Q&A) about the backlog. USCIS intends to update the inventory reports quarterly. Beneficiaries with pending cases can also consult the Department of State’s Visa Bulletin, a monthly report that publishes current visa availability for each immigrant visa category.
Employment-Based Visa Availability - The State Department is signaling that demand for employment-based visas will continue to be strong such that cut off dates may be pushed back in some categories and will remain unavailable in others. In a dramatic reminder of visa scarcity several months ago, State for a time moved back by five years the cut off date for India and China EB-2 visas (which require an advanced degree or a bachelors degree and at least five years of experience), to January 1, 2000. It has since been moved back up to January 22, 2005, for India, and March 22, 2005, for China, but is likely to be a moving target. Federal law bars nationals of any one country from receiving more than 7% of the annual allotment of immigrant visas in a particular category.
2011 Diversity Visa Lottery Opened October 2, 2009 – The U.S. Department of State has announced that the registration period for the 2011 Diversity Visa lottery opened on Friday, October 2, 2009, and will run through noon, Eastern Standard Time, on Monday, November 30, 2009. Applications must be submitted electronically through the State Department's Diversity Visa web site, http://www.dvlottery.state.gov/. The Diversity Visa program offers a maximum of 55,000 Diversity Visas each year to nationals of countries with low rates of immigration to the United States. For 2011, the list of ineligible countries includes Brazil, Canada, China, Colombia, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, the Philippines, Poland, South Korea, the United Kingdom (except Northern Ireland) and its dependents, and Vietnam.
USCIS Overhauls Website “to improve responsiveness and access to immigration services” – USCIS has replaced its website, which users had described as “hard to navigate” “overwhelming” and “frustrating”, with a redesigned version starting on September 22. Among the features of the new website are a redesigned homepage, which features a Where to Start tool intended to help guide users to relevant information. Users can choose to which group they most accurately belong, and what immigration benefits they seek. The homepage also features new links, including filing fees and addresses, civil surgeons list, and E-Verify information, all of which are useful in practice. USCIS has also replaced the list of press releases in the center column with a list of subject matter links. Case status reports will now include more meaningful information showing how far along in the application process a particular case is, how that case compares to national averages and goals, and how the USCIS office responsible for adjudicating the case compares to national averages. Users can also sign up to receive case status updates via email and text message. The new website publishes current processing volumes and trends for 10 different forms on its National Dashboard feature, and hopes to expand the number of forms for which information is published over the course of the next year. It also provides, on a national and office specific basis and for different case types, the volume of cases: 1) filed; 2) completed; 3) pending; 4) pre-adjudicated; 5) deferred pending agency action, and 6) deferred pending filer action. As a further attempt to make USCIS’ information more accessible, the website redesign also features a new Spanish-language website. Other improvements include revised content, rewritten in “plain language” as opposed to legal language, and an upgraded search engine designed to improve the relevance of search results.
Interim EADs for El Salvador TPS Beneficiaries - USCIS has announced that it will issue interim Employment Authorization Documents to Salvadoran Temporary Protected Status beneficiaries who are still awaiting final action on their re-registration applications, if those applications have been pending for more then 90 days. This measure will allow TPS beneficiaries to continue working while USCIS processes their re-registration applications.
E-Verify User Manual Published – USCIS has published its user manual for E-Verify. E-Verify is intended to compare information from employees' Forms I-9 to Social Security Administration and Department of Homeland Security databases in order to confirm employees' identity and employment eligibility. Participation in this program is currently voluntary in most states, and is free of charge to participating employers.
DHS Initiative to Reform Immigration Detention – The Department of Homeland Security announced several new initiatives intended to “[enhance] the efficiency of [Immigration and Customs Enforcement’s] detention system” and “[prioritize] the health and safety of detainees.” Included in the reforms is an effort to house detainees in converted hotels and nursing homes, rather than prisons, a measure that DHS claims would help reduce costs, but which critics argue would lead to an increase in the number of detainees that escape.
Immigration and Customs Enforcement (“ICE”) Worksite Enforcement Strategy Memorandum Outlines ICE Strategy and Methodology – ICE has released an April 30, 2009, Memorandum describing its ICE’s Worksite Enforcement Strategy.
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