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Headlines:

1. 1. Fines, Prosecutions for Hiring Undocumented Workers To Increase - The increased fines are expected to take effect March 27, 2008, and will be assessed on a per-worker basis.

Ø      2. Filing Tips for H-1B Applications - The Alliance of Business Immigration Lawyers recommends these tips for employers planning to file H-1B applications.

Ø      3. USCIS Announces Centralized Filing Location for H-1B Cap Exempt Petitioners - This includes petitions filed by institutions of higher education and nonprofit organizations or entities related to or affiliated with such institutions, and nonprofit research organizations or governmental research organizations.

Ø      4. Many Employment Visa Number Cut-Off Dates Advance in March - Visa number cut-off date movement for March in several employment categories is significant.

Ø      5. USCIS Issues Q&A on Delays, House Holds Hearing - USCIS has issued questions and answers on receipting and processing delays, along with some fee issues; the House of Representatives held a hearing on naturalization delays.

Ø      6. DOS Testifies on Status of Visa Policy for Foreign Students, Scholars, Exchange Visitors - Foreign students contribute over $13 billion annually to the U.S. economy.

Ø      7. USCIS Revises Security, Name Check Requirements - USCIS is revising its guidance in response to a need to align the agency's background and security check policies with those of U.S. Immigration and Customs Enforcement.

Ø      8. E-Verify Participants Increasing by 1,000 Per Week - The E-Verify employment status verification program now has more than 52,000 employer participants.

Also in this issue:

Recent News from Flynn & Clark, P.C., and ABIL Members

Government Agency Links

Details...

1. Fines, Prosecutions for Hiring Undocumented Workers To Increase

Secretary of Homeland Security Michael Chertoff and Attorney General Michael Mukasey announced on February 22, 2008, that the fines for hiring undocumented workers will increase and that the Departments of Homeland Security and Justice are also working "to increase criminal prosecutions against the most egregious employer offenders." The increased fines are expected to take effect March 27, 2008, and will be assessed on a per-worker basis. For example, if an employer knowingly employs five undocumented workers, the employer could incur five fines. The minimum penalty for knowingly hiring an undocumented worker will increase from $275 to $375. The maximum fine for a first-time offender will increase from $2,200 to $3,200, and the maximum fine for repeated violations will increase from $11,000 to $16,000.

Secretary Chertoff's and Attorney General Mukasey's statements are available at http://www.dhs.gov/xnews/releases/pr_1203722713615.shtm. A related Department of Justice (Executive Office for Immigration Review) final rule was published in the Federal Register and is available at http://a257.g.akamaitech.net/7/257/2422/01jan20081800/edocket.access.gpo.gov/2008/pdf/E8-3320.pdf.

2. Filing Tips for H-1B Applications

For fiscal year 2009, the first H-1B filing date is Tuesday, April 1, 2008. Petitions are to be filed at U.S. Citizenship and Immigration Services (USCIS) Vermont and California Service Centers, depending on jurisdiction. The Alliance of Business Immigration Lawyers recommends the following tips for employers planning to file H-1B applications:

• Check filing fee amounts and submit fees in separate checks to avoid inadvertent errors.
• Answer all questions in the application and check answers for consistency. Original signatures are required.  Blue ink makes it easy for USCIS to confirm an original.
• Send only one petition per envelope.
• USCIS uses the information in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (Form I-129, page 11) to determine whether a petition is subject to the 65,000 and 20,000 (U.S. master's degree or higher) H-1B numerical limitation caps. Part C, #4 of the Supplement does not refer to all J exchange visitor nonimmigrants with a waiver of the two-year foreign residency rule.  Do not check "yes" unless the worker is a doctor who has been granted a Conrad 30 waiver to work in a medically underserved area.
• Clearly label all H-1B cap cases in red ink in the top margin of the I-129 petition.  Use the following codes:

Ø      Reg. Cap (65,000 regular cap cases minus the Chile/Singapore (C/S) cap cases received)

Ø      C/S Cap (Chile/Singapore H-1B1s)

Ø      U.S. Masters  (20,000 cap exemption for beneficiaries with U.S. Masters or higher degrees)

Ø      Exempt (for petitions filed by certain institutions of higher education; nonprofit organizations; and nonprofit research organizations or governmental research organizations, as defined in USCIS regulations)

Contact your ABIL member for details. For more filing tips from USCIS, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=d758ea468d6c7110VgnVCM1000004718190aRCRD&vgnextchannel=91919c7755cb9010VgnVCM10000045f3d6a1RCRD and http://www.uscis.gov/files/pressrelease/H1B_I129Info_032707.pdf.

3. USCIS Announces Centralized Filing Location for H-1B Cap Exempt Petitioners

U.S. Citizenship and Immigration Services (USCIS) announced a centralized filing location for H-1B "cap exempt" petitioners, which includes petitions filed by institutions of higher education and nonprofit organizations or entities related to or affiliated with such institutions, and nonprofit research organizations or governmental research organizations. The mailing addresses are:

For direct mail:

U.S. Citizenship and Immigration Services
California Service Center
Attn: CAP EXEMPT H-1B Processing Unit
P.O. BOX 30040
Laguna Niguel, CA 92607-3004

For non-U.S. Postal Service deliveries (e.g., private couriers):

U.S. Citizenship and Immigration Services
California Service Center
Attn: CAP EXEMPT H-1B Processing Unit
24000 Avila Road, Room 2312
Laguna Niguel, CA 92677  

USCIS asks H-1B petitioners to mark the outside of the envelope and the top margin of the I-129 form with "EXEMPT." The agency said this will ensure quick identification of the H-1B filing throughout the petition's processing at the California Service Center.

If a cap exempt H-1B petition is received at a different Service Center, USCIS said, that Service Center will "expeditiously forward the petition to the CSC for processing." In the near future, USCIS will post special filing instructions to Form I-129 requiring all qualifying H-1B cap exempt petitions to be filed at the CSC.

USCIS noted that the highest volume of H-1B filings occurs during the month of April. "This may result in longer than average receipting times or other interruptions in processing times," USCIS warned, adding that petitioners may file a qualifying H-1B cap exempt petition at any time of the year depending on the petitioner's need, but no earlier than six months ahead of the intended start date.

For more information, see http://www.uscis.gov/files/pressrelease/H-1B_Filing_30jan08.pdf.

4. Many Employment Visa Number Cut-Off Dates Advance in March

The Department of State's Visa Office announced that visa number cut-off date movement for March in several employment categories is significant.  Advancement of the priority cut-off dates now, the Department said, "should prevent a situation later in the fiscal year where there are large amounts of numbers available but not enough time to use them." If an  expected increase in number use materializes from U.S. Citizenship and Immigration Service processing, future cut-off date movements could slow or stop, the Department warned. The India employment-based second preference category remains unavailable in March.

The March 2008 Visa Bulletin, which includes a chart showing the cut-off dates in each category, is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3953.html.

5. USCIS Issues Q&A on Delays, House Holds Hearing

U.S. Citizenship and Immigration Services (USCIS) has issued questions and answers on receipting and processing delays, along with some fee issues. The agency noted that because of a significant increase in the number of applications filed, average processing times for certain application types filed after June 1, 2007, may become longer. For example, immigrant petitions for relatives and workers may take 9-10 months.

As of February 15, 2008, all receipting operations at USCIS Service Centers and the Chicago Lockbox are current, the agency said.

The questions and answers are posted at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=82b06a9fec745110VgnVCM1000004718190aRCRD&vgnextchannel=1958b0aaa86fa010VgnVCM10000045f3d6a1RCRD.

The House of Representatives' immigration subcommittee held a hearing on naturalization delays on January 17, 2008. The hearing testimony is available at http://judiciary.house.gov/oversight.aspx?ID=403.

6. DOS Testifies on Status of Visa Policy for Foreign Students, Scholars, Exchange Visitors

Stephen "Tony" Edson, Deputy Assistant Secretary of State for Visa Service, testified on February 7, 2008, before the House of Representatives' research and science education subcommittee. Among other things, he noted that foreign students contribute over $13 billion annually to the U.S. economy. "Their work significantly boosts our academic and scientific research and their exposure to our culture and freedoms is a crucial public diplomacy success," he said. Mr. Edson noted that exchange visitor admissions have risen to record highs; in fiscal year (FY) 2007, the Department issued 343,946 J-1 visas, which was 11 percent over the same period in FY 2006. He noted that 90 percent of posts have wait times of less than 30 days for student and business travelers.

The full text of Mr. Edson's testimony, which includes statistical tables by year, is available at

http://democrats.science.house.gov/Media/File/Commdocs/hearings/2008/Research/08feb07Research/Edson_Testimony.pdf. 

The hearing testimony of all the witnesses is available at

http://science.house.gov/publications/hearings_markups_details.aspx?NewsID=2064.

7. USCIS Revises Security, Name Check Requirements

U.S. Citizenship and Immigration Services (USCIS) issued a memorandum to the field on February 4, 2008, on revised national security adjudication and reporting requirements. The memo notes that USCIS is revising its guidance in response to a need to align the agency's background and security check policies with those of U.S. Immigration and Customs Enforcement (ICE). In the context of removal proceedings, ICE has determined that Federal Bureau of Investigation (FBI) fingerprint checks and Interagency Border Inspection Services (IBIS) checks are required. If an FBI name check reveals "actionable" information after an immigration judge has granted permanent residence, the memo states, the Department of Homeland Security may detain the permanent resident and initiate removal proceedings.

USCIS said that a definitive FBI fingerprint check and an IBIS check must be obtained and resolved before approval of an Application for Adjustment of Status (Form I-485), Application for Waiver of Ground of Inadmissibility (Form I-601), Application for Status as a Temporary Resident Under Section 245A of the Immigration and Nationality Act (Form I-687), or Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603) (Form I-698).

USCIS said it will continue to initiate FBI name checks when those applications are received. Where the application is otherwise approvable and the FBI name check request has been pending for more than six months, USCIS said the adjudicator will approve the I-485, I-601, I-687, or I-698 and proceed with card issuance. "The FBI has committed to providing FBI name check results within this timeframe," the memo noted. There is no change in the requirement that name check results be obtained and resolved before the adjudication of a naturalization application.

The memo is available at http://www.uscis.gov/files/pressrelease/DOC017.PDF.

8. E-Verify Participants Increasing by 1,000 Per Week

U.S. Citizenship and Immigration Services (USCIS) announced that the E-Verify employment status verification program now has more than 52,000 employer participants, and that the program has been growing by approximately 1,000 participants per week since October. USCIS is recruiting new personnel for the first regional verification center in Buffalo, New York.

USCIS noted that participation in E-Verify remains voluntary, but that some states have begun requiring their employers to comply with a federal work authorization verification program. Arizona, for example, increased participation of its employers in E-Verify from 325 a year ago to more than 18,000 today.

Meanwhile, Illinois has delayed until April 15, 2008, implementation of a new law that would prohibit employers from participating in E-Verify until federal agency databases are able to resolve 99 percent of discrepancies within three days. The Illinois legislature is considering several bills that would amend the law.

USCIS's announcement is available at http://www.uscis.gov/files/pressrelease/everify12022008.pdf.

administration resulting from the proposed rule "will significantly encourage increased program participation, resulting in an increased legal farm worker labor supply with the attendant legal rights and protections for workers."

Recent News from Flynn & Clark, P.C., and ABIL Members

Flynn & Clark attorneys Steve Clark, Jane Devlin, Vincent Lau and Mary Gilbert presented a seminar on the new I-9 Form at the Riverfront Conference Center in Cambridge, MA on January 31.  This was the second in a series of seminars with the next one on H-1B alternatives: use of the J-1, H-3, L-1, B-1, O-1 for those left behind when the 65,000 H-1B numbers are gone on April 1.

Steve Clark will be on a panel with a speaker from the Department of Labor on the new PERM application in Vancouver on June 26, 2008.

Steve Clark and 14 colleagues from across the US met with key officials from the Department of State, Department of Labor and Department of Homeland Security responsible for Regional Service Center operations, Visa Office Advisory Opinions, the Visa Bulletin, DHS Enforcement Policy, USCIS Legal Department, Board of Immigration Appeals and DOL Solicitor's offices as well as Counsel to the House Immigration Subcommittee in Washington DC March 1 and 2. The group meets informally to exchange ideas on improving the immigration process.

Vince Lau spoke at the AILA 2008 Spring Fundamentals of Immigration Law Conference on March 10, 2008 in Anaheim, California on nonimmigrant visas and he will be one of the national speakers at the AILA annual conference to be held in Vancouver, BC, Canada in June 2008.  Vince is also serving as the co-editor of the handbook for the Fifth Annual AILA New England Immigration Law Symposium to be held at Suffolk University on April 11, 2008.

Mary Gilbert of Flynn & Clark will be addressing the Boston Bar Association on Visas for Foreign Nationals with Advanced Skills on May 22, 2008

Bernie Wolfsdorf (bio: http://www.abil.com/lawyers/lawyers-wolfsdorf.cfm), the American Immigration Lawyers Association (AILA)'s First Vice President, recently spoke at the AILA Midyear Conference on investor visa options and will be speaking to the Los Angeles County Bar on February 9 on H-1B visas and alternatives.

Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) was quoted in the February 22, 2008, edition of the Dallas Morning News. Commenting on the increased financial penalties against businesses that knowingly hire undocumented workers, Mr. Yale-Loehr said that the higher fines may not look like much, but in combination with an increase in prosecutions, they "could be a deterrent for employers." He expressed concerns that employers may hesitate to hire foreign workers if they perceive a heightened potential for prosecution or fines. The article is available at http://www.dallasnews.com/sharedcontent/dws/bus/stories/022308dnbusemployerfines.3792180.html.

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

STEVEN A. CLARK is a Fellow of the (ABIL), the alliance  of premier immigration law firms. ABIL provides to human resource professionals, corporate counsel, in-house immigration managers, and other immigration decision makers access to an alliance of U.S. business immigration attorneys who have a demonstrated history of client service and a dedication to providing the best and most effective solutions to your immigration concerns. Each of ABIL's Founding Fellows are committed to the highest standards of professionalism, to maintaining the most up-to-date knowledge in the field of U.S. immigration law, and to providing the kind of accessibility you expect from the best in the field.

The Alliance of Business Immigration Lawyers' website is: http://www.abil.com/. This update was prepared with the cooperation of ABIL.  Copyright © ABIL 2008, portions used with permission.

Disclaimer/Reminder

This e-mail does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Contact Your Flynn & Clark Attorney for Further Information

Steven A. Clark
Jane P. Devlin

Vincent W. Lau

Mary E. Gilbert
 

FLYNN & CLARK, P.C. provides a full range of inbound as well as outbound immigration legal services for United States and foreign companies under the leadership of Steven Clark, Past President of the American Immigration Lawyers’ Association (AILA) which has over 11,000 members worldwide. The Immigration Update provides periodic alerts about noteworthy developments in immigration affecting the business community. It is provided as a service of the Firm regarding legal developments; it is not a substitute for legal counseling and may constitute advertising material in some jurisdictions.

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