Flynn & Clark, P.C.

Immigration Update
 

Still Time to File H-1B Cases -- Cap Not Yet Reached

DOL Announces New LCA/PERM Labor Cert Electronic Application System

CBP Expands Global Entry Pilot Program to Netherlands

Labor Organizations Reach Immigration Accord

E-Verify Update: Contractor Rule Deferred

Employment Third Preference, Other Worker Categories Unavailable

USCIS Issues Q&A on Extension of Work Authorization for Certain Students Filing H-1Bs

Flynn & Clark News

Flynn & Clark, P.C. is pleased to provide this Immigration Update as a service to our clients and friends.

Still Time to File H-1B Cases -- Cap Not Yet Reached

Unlike recent years when the H-1B cap was reached immediately, this year there are still H-1B visa numbers available.  U.S. Citizenship and Immigration Services (USCIS) announced on May 4, 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 this cap. After the initial surge of 42,000 applications there were approximately 1,000 applications per week in the next 2 weeks, but in the most recent week the numbers barely changed. While this may suggest numbers will continue to be available for some time, the rate of usage may increase as it has in past years when Spring graduates receive job offers.

The USCIS also announced that it has received approximately 20,000 petitions for employees with advanced degrees.  Congress mandated that the first 20,000 of these petitions are exempt from the regular H-1B visa cap.  USCIS continues to accept advanced degree petitions "since experience has shown that not all petitions received are approvable."  If the advanced degree cap is reached before the regular H-1B cap, USCIS will continue to accept advanced degree petitions and count them against the regular cap.

USCIS will provide regular updates on the processing of FY 2010 H-1B petitions. 

The updates are available at: www.uscis.gov/h-1b_count.

The May 4 announcement is available at: http://www.uscis.gov/files/article/update_h1b_4may09.pdf

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 new procedure will require longer processing times making it more difficult to quickly transfer H-1Bs from other employers.

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. Flynn & Clark will be requesting that the Department of Labor delay implementation, but otherwise 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. Initial reports suggest that the response time from the Help Desk will be considerable.

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

Both revised forms ETA 9035 and ETA 9089 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).

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. Arriving US citizens and lawful permanent residents (LPRs) will not have to wait in line for an inspector and simply swipe their passport or “green card” at a kiosk. This program will arrive in Boston before the end of the year. For a more complete description click: http://www.cbp.gov/linkhandler/cgov/newsroom/fact_sheets/travel/ge_fact_sheet.ctt/ge_fact_sheet.pdf see also http://www.cbp.gov/xp/cgov/travel/trusted_traveler/global_entry/

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 will also have the option to apply for participation in Privium. http://www.schiphol.com/AtSchiphol/PriviumIrisscan.htm

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.

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.

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.

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. Flynn and Clark recommends that employers speak to counsel before enrolling in E-Verify. It requires a tremendous amount of training and resources. It may be helpful for some employers, but certainly many small employers may find it a challenge to operate properly, and some larger ones will be troubled by the burdens imposed.

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.

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." Consequently it will not be possible to file adjustment of status to permanent resident applications for skilled, unskilled and professional workers without advanced degrees until visa numbers become available again for these categories. 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.

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

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 extension will allow many graduating students to work 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.

Flynn & Clark, P.C. News

STEVE CLARK of Flynn & Clark, P.C., will speak a the 2009 Annual AILA Conference in Las Vegas, Nevada on June 4, 2009 on filing PERM labor certification applications when the employer has had layoffs.

VINCENT LAU of Flynn & Clark, P.C.  spoke at the Northeast Regional Conference of the National Asian Pacific American Bar Association in Philadelphia on April 25, 2009.  In light of President Obama's continuing promise to tackle comprehensive immigration reform, Vince was invited to join three other panelists who consisted of practitioners and policymakers in discussing the frustrations of the current immigration system and areas that need change.

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

Contact Your Flynn & Clark Attorney for Further Information

Steven A. Clark
Jane P. Devlin

Vincent W. Lau

Mary E. Gilbert

FLYNN & CLARK, P.C., is a member of ABIL, The Alliance of Business Immigration Lawyers.  ABIL is an entity that offers a single point of contact for customer needs, news alerts, staff training and other programs that benefit the client through the collaboration of the 140 member attorneys and their 460 staff.  Corporate counsel, human resource professionals, in-house immigration managers and other corporate decision-makers turn to ABIL attorneys for outstanding legal skills and services.  ABIL's work also includes advocating for enlightened immigration reform, providing speakers and media sources, presenting conferences, publishing books and articles on cutting-edge immigration topics, and sharing best practices, all with the ultimate goal of offering value-added services to business immigration clients. This newsletter if produced through Flynn & Clark's collaboration with ABIL.

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.

Copyright © 2009 Alliance of Business Immigration Lawyers. All rights reserved.