Immigration News Update

June 2008

Government Contractors to be Required to Participate in E-Verify – Program applies to contractors' new employees in U.S. and all employees employed in US on a contract.

Labor Department Clarifies Attorneys’ Role in Labor Certifications – Seeks to bar attorney advice to employers unless employer first concludes that no U.S. applicant meets minimum job requirements.

Third Employment Based Immigrant Visa Category to be Cut Off July 1 for FY 2009 –Category to reopen at beginning of new fiscal year on October 1.

USCIS Proposes to Permit TN Visa Stays of Up to Three Years - Proposal would apply both to initial and extended terms of stay.

Labor Department Releases PERM Statistics - 78% approval rate identical for first half of FY 2008 and from inception of program. Guess they grade on a curve.

DHS Extends Tech Graduate Employment Period to 29 Months When Working for E-Verify Employer - Extra time will mitigate annual exhaustion of H-1b visas somewhat.

Quick Takes - I-140 Premium Processing; USCIS Naturalization processing times; Two year EADs in adjustment of status cases; Visa Waiver pre-travel authorization program.

Government Contractors to be Required to Participate in E-Verify – By Executive Order issued June 9, 2008, President Bush has directed all Federal department and agencies to require Federal Government contractors to enroll in the Department of Homeland Security's (DHS’) E-verify electronic employment verification system as the "best available means" to confirm employee work authorization. The Executive Order requires Federal Government contractors to enroll in E-Verify for the contract period, and requires verification of: 1) all new hires the contractor makes during the contract term who will work in the US; and 2) all existing employees who are assigned to work on the Federal contract and will be doing so from within the United States. The order is effective immediately, but it is up to the contracting agencies to implement. DHS issued a press release confirming that E-verify is the "best available means" of confirmation, and the Department of Defense, General Services Administration, and NASA have issued proposed implementing rules.

The E-verify system, formerly known as the Basic Pilot Program, is a web-based platform managed by the Department of Homeland Security and the Social Security Administration (SSA) which in the past has relied upon flawed SSA databases to match names and social security numbers provided by new employees on Form I-9. The underlying data have been so unreliable that a Federal Court in California issue a preliminary injunction barring the implementation of new rules which would have required employers to fire employees whose names and social security numbers the database could not match. That injunction remains in place, and does not directly affect this Executive Order.

There are two factors that distinguish the Federal Contractor Executive Order from the ”No Match” injunction: 1) DHS is adding its own database to SSA’s, so that determinations on immigration petitions and employment authorizations are supposed to be taken into account when verification issues; and 2) the Order is, ostensibly, voluntary rather than mandatory – it applies only to those who choose to accept government contracts. Although the use of DHS’ data can be a vast improvement over SSA records alone, DHS records are themselves deeply flawed in many cases. Moreover, there are many situations in which an individual continues to maintain employment authorization pursuant to USCIS policy, but where no action need be taken or record created.

A typical example is that of the spouse of a U.S. citizen awaiting adjudication of a petition to remove the condition on her permanent residence. The filing of the petition extends permanent resident status by one year, but cases can take much longer. USCIS policy states that conditional permanent residence remains in effect even after the end of a year if a case remains pending, but no notice issued or interim decision entered. Unless the E-Verify system is quite sophisticated, it seems unlikely that it would recognize this nuance, and may well return a failed verification, creating pressure on the employer to improperly terminate the employee. There are many other similar fact patterns which could easily trip up the system.

This is unquestionably the shape of things to come, however. In a somewhat similar situation (another ostensibly voluntary program) USCIS has limited the availability of extended post graduate employment opportunities to foreign graduates of US universities only where the U.S. employer agrees to enroll in E-Verify and use it prospectively for all new hires. No doubt DHS will continue to link E-Verify enrollment to as many programs it can which do comprise a mandate, with the expectation that Congress will impose it as a mandate in conjunction with a comprehensive immigration reform bill in the next Congress.

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Labor Department Clarifies Attorneys’ Role in Labor Certifications – The Department of Labor has issued a Program Guidance Bulletin clarifying the scope of advice attorneys may provide to their employer clients in regard to recruitments for Permanent Labor Certifications. In DOL’s view, the bright line test is that once the employer concludes that a U.S. citizen or permanent resident candidate is minimally qualified for the advertised position, the attorney is not permitted to “seek to dissuade an employer from its initial determination that a particular applicant is minimally qualified, able, willing and available for the position in question.”

Previously, in a press release issued June 4, DOL had stated that it would audit the Labor Certifications of Fragomen, Del Rey, Bernsen & Loewy LLP because some of its attorneys had purportedly advised employer clients to contact them ”should any of the applicants appear to be qualified for the position.” DOL had provided no prior guidance as to what advisory functions it believed to be appropriate for attorneys other than the admonition in its rules barring employer attorney involvement in “interviewing or considering” job candidates. The rules make an exception where the attorney routinely participates in the hiring process, although DOL provides no rationale as to why that would make a difference.

Under DOL’s Program Guidance Bulletin, attorneys and agents for the employer:

Are permitted to receive resumes and applications from U.S. workers responding to the employer’s recruitment efforts, provided they are all sent to the employer for consideration.
May not screen resumes or participate in interviewing applicants unless they are “the representative of the employer who routinely performs this function for positions for which labor certifications are not filed.” In other words, DOL wants employers to perform PERM recruitments in the same way as they perform non-PERM ones. Such “uniqueness” in attorney involvement “has resulted in an impermissible ’chilling effect’” on U.S. applicants.” DOL provides no evidence in support of its conclusion.”
May, after the employer has determined which applicants it believes to be minimally qualified, advise the employer "about the implications of its qualification determinations on the labor certification application. Those consultations can encompass the question of whether applicants who were found by the employer to be unqualified were rejected for lawful, job related reasons. Under no circumstances, however, should an attorney or agent seek to dissuade an employer from its initial determination that a particular applicant is minimally qualified, able, willing and available for the position in question."

DOL states that it will audit cases where it believes there have been attorney, agent, or foreign worker “involvement in considering U.S. worker applicants.” DOL’s fear of employer-retained attorneys actively trying to talk employers out of hiring U.S. workers is unfounded. As a practical matter, employers usually have a strong incentive to see a valued alien employee offered a permanent position, and it is the attorney who must reinforce the importance of ensuring that U.S. workers who meet minimum job qualifications are afforded all lawful preferences, and that the recruitment is otherwise conducted in accordance with DOL regulations.

It is certain that this Program Guidance Bulletin will result in one outcome: at the commencement of each labor certification representation, every attorney will advise their employer client that: 1) if the employer concludes that a candidate is qualified for the position, DOL policy bars the attorney from advising the client as to whether the candidate in fact meets the minimum job requirements established for the position at the commencement of the recruitment; and 2) that if the employer believes that none of the U.S. candidates is qualified, then the attorney may fully advise the employer as to the application of DOL rules.

Whether DOL’s efforts to impede the attorney-client relationship will be able to overcome the many constitutional infirmities it raises may ultimately be determined by the federal courts. Inasmuch as Governments’ efforts to inhibit access to counsel historically fair poorly in Federal Court, DOL would be well-served to let this episode fade into the Washington summer and move on.

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Third Employment Based Immigrant Visa Category to be Cut Off July 1 for FY 2009 –The State Department's July Visa Bulletin indicates that the Third Preference Skilled Worker category will be cut off worldwide for the remainder of the fiscal year, until October 1, 2008. State advises that the October 2008 Visa Bulletin will revert to the availability dates published in the June 2008 Visa Bulletin. Other employment based preference categories are unaffected and unchanged from last month.

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USCIS Proposes to Permit TN Visa Stays of up to Three Years - USCIS has proposed extending from one year to three years the maximum period of stay authorized for Trade NAFTA admissions. The proposed rules would apply to both initial admission and to requests for extension of time. USCIS has not established a timeline in which they will intend to issue a decision or final rule.

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Labor Department Releases PERM Statistics - DOL has issued statistics on the outcome of Labor Certification applications filed from the commencement of PERM in March 2005 through March 31, 2008. In the first six months of FY 2008, 32,477 applications were filed, of which 25,284 were certified (77.9%), 5,713 were denied (17.6%) and 1480 (4.6%) were withdrawn. These are remarkably similar to the program total percentages: 78.2% approved (196,837), 18.6% denied (46,909), and 3.2% (8,102) withdrawn.

Of the 12,600 cases approved during the first quarter of FY 2008, 3,135 were from California, 1,293 from New York, and 1,057 from New Jersey. Virginia accounted for 516, seventh highest of all states. The most common occupation was Computer Software Engineers, with computer related profession accounting for 3,868 of the total. PERM beneficiaries were overwhelmingly from India (4,074), followed by China (993) and South Korea (875).

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DHS Extends Tech Graduate Employment Period to 29 Months When working for E-Verify Employer - USCIS will permit certain foreign graduates of U.S. universities to extend their optional training for up to 17 months beyond the current twelve month maximum. The extension opportunity applies to graduates (bachelors and above) with degrees in Science, Technology, Engineering, and Mathematics (STEM) disciplines. A list of the eligible degree programs is posted on the Immigration and Customs Enforcement website.

During the 17 month extension period, the student may only be employed by companies which have first enrolled in the E-Verify program.

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Quick Takes

USCIS Partially Reinstates Employer Petition Premium Processing - USCIS announced that commencing July 16, 2008, it will again accept Premium Processing requests for employers’ I-140 petitions for permanent employment of foreign workers. The announcement only applies to cases where the foreign worker is in H-1b nonimmigrant status (professional occupation), is in the last 60 days of their six year term, and approval of the I-140 would permit approval of an H-1b extension due to exhaustion of permanent resident visa numbers allocated to the worker’s country of origin. USCIS has given no indication when it will again Premium Process I-140 cases across the board, a program it suspended in June 2007.

USCIS Naturalization Processing Times Generally Rotten in Populous Regions – A USCIS news release shows that processing times in major metropolitan areas for applicants filing during Summer 2007 ranged from a low of 8.6 months in Chicago to a high of 14.7 months in Washington, D.C. The fastest office in the country is Indianapolis at 5.7 months.

DHS to Issue Two Year Employment Authorization Documents (EADs) During Pendency of Adjustment of Status Proceedings - New policy announced in DHS Secretary Chertoff's "State of Immigration Address". Current policy permits only one year EAD, which usually require extension.

CBP Establishes Online Registration Gateway for "Global Entry" Expedited Screening Program for Frequent International Air Travelers - On-Line registration permits US Citizen and Permanent Resident use of computer kiosks in lieu of Passport Control inspection at Washington Dulles; New York JFK Terminal 4, and Houston Intercontinental.

DHS issues Rule Implementing Pre-Travel Authorization Requirements for Visa Waiver Program Travelers - Program to come online in August 2008, and will likely be mandatory in January 2009.

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