Immigration Alert: April 2008April 28, 2008
Hector Chichoni, Esq., has joined the National Immigration Law Group of Epstein Becker & Green, P.C. and will work out of the Firm's Miami office. Prior to joining EBG, Mr. Chichoni was the co-chair of the East Coast immigration practice for another multi-jurisdictional law firm, where he practiced U.S. and global immigration law and served as the national immigration counsel for Retail Bakers of America. He has represented a vast number of corporate and individual clients throughout his career, ranging from top U.S. health care organizations, to Fortune 100 and Fortune 500 companies, multinational corporations and universities. His international experience includes handling matters relating to complex export controls, customs, and global corporate compliance and business transactions. He also is a frequent speaker and author on immigration and international issues at U.S. and global forums. Further information about Mr. Chichoni can be found at: http://www.ebglaw.com/showbio.aspx?Show=8324
On April 14, 2008, the U.S. Citizenship and Immigration Services ("USCIS") conducted three computer-generated arbitrary selection processes to identify those H-1B petitions included in the fiscal 2009 quota. First, USCIS selected the petitions qualifying for the 20,000 advanced degree exemption. Second, USCIS selected the remaining petitions for the 65,000 cap from the general H-1B pool of petitions, together with those left over from the advanced degree exemption. Finally, USCIS selected a waiting list for cases that dropped out of the first two selection categories. USCIS will keep these petitions until a decision is made as to whether they will replace a previously selected petition.
According to USCIS, it received approximately 163,000 petitions during the five-day eligibility filing period and labeled each petition with "unique numerical identifiers." USCIS then selected the petitions and notified the appropriate service centers so that they could adjudicate them. USCIS expects to advise those petitioners whose H-1B cases were either selected or placed on the waiting list by notice dated no later than June 2, 2008. USCIS will return all unselected petitions with the fee(s). However, duplicate filings will be returned without the fee. USCIS expects the total adjudication process to take approximately eight to ten weeks, but those cases on the waiting list should learn their status within six to eight weeks.
For those H-1B cases filed via premium processing, USCIS announced that the 15-day premium processing period for selected cases filed with the premium processing units begins on April 14, 2008, the date the random lottery was conducted. Any receipt issued prior to that date does not mean that the case was selected for the lottery.
On April 4, 2008, USCIS announced limited relief for those F-1 students whose H-1B cases were selected in the random lottery but whose period of Optional Practical Training ("OPT") would expire prior to October 1, 2008, the first date that they can start working for the H-1B employer. This is referred to as a "Cap Gap" because it prevented these students from remaining in status until their H-1B employment started on October 1. In the past, these students had to leave the country, secure a new H-1B visa and then return in H-1B status. The USCIS announcement automatically extends the authorized stay and employment authorization for these students until September 30, 2008. This allows them to remain here in status and thus affords them a seamless transition to H-1B status on October 1, 2008.
Many students did not request a change to H-1B status in the United States because their OPT and F-1 status did not extend to October 1, 2008, and they faced a "Cap Gap." USCIS announced on April 18, 2008, that it would allow these F-1 students now to request a change of status as long as their H-1B petitions were selected in the lottery. This means that these F-1 students in OPT will be allowed to continue living and working here until their status is changed to H-1B on October 1, 2008. Subsequent to that date, however, they will be required to secure a new H-1B visa if they travel abroad (except for short trips to Canada or Mexico).
Certain Highly Skilled F-1 Foreign Students
On April 4, 2008, the USCIS issued an Interim Final Rule ("Rule") extending the period of OPT from 12 to 29 months for qualified F-1 nonimmigrant students. The extension will be available to F-1 students with a STEM degree (science, technology, engineering, or mathematics) who are employed by businesses enrolled in the E-Verify program. The Rule represents at least a partial solution to the H-1B quota dilemma.
On April 10, 2008, Senator John Cornyn of Texas introduced legislation to temporarily increase H-1B visa caps and "recapture" previously unused H-1B visas. The Global Competitiveness Act of 2008 (S. 2839) would provide U.S. employers access to about 150,000 unused H-1B visas and 218,000 permanent employment-based visas from prior fiscal years. In addition, S. 2839 would temporarily increase the level of H-1B visas from 65,000 to 115,000 and increase the advanced degree exemption to 30,000 for fiscal years 2009 through 2011, and increase the filing fees.
The benefits granted by S. 2839 would be coupled with additional restrictions on the H-1B program. It would restrict employment of H-1B workers only to areas where there is a demonstrated shortage of American workers. It also would prohibit an employer whose workforce contained a majority of H-1B workers from filing more than 1,000 H-1B petitions in a given fiscal year. Finally, S. 2839 would bar U.S. employers from outsourcing the labor of an H-1B worker by requiring the alien to work only at the worksite of the employer or its affiliates. This is similar to limitations currently placed on L-1B workers by the L-1 Reform Act.
VI. DOS Issues May 2008 Visa Bulletin: Indian EB-2 is Available
The State Department ("DOS") recently issued its Visa Bulletin for May 2008. This Bulletin determines who can apply for permanent residence and when. Employment-Based Third Preference showed improvement to March 1, 2006. The Employment—Based Second Preference ("EB-2") for Indian and Chinese nationals now has a cut-off date of January 1, 2004. The Indian EB-3 cut-off date advanced to November 1, 2001, and the Chinese EB-3 advanced to March 22, 2003. The monthly Visa Bulletin is available through the DOS web site at:http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html
VII. DHS Signs Visa Waiver Program Agreement with South Korea
On April 18, 2008, the Department of Homeland Security ("DHS") announced that it had executed a Visa Waiver agreement with South Korea. The security enhancements contained in this agreement put South Korea on the path toward visa-free travel to the United States under the Visa Waiver program.
On April 2, 2008, the House Judiciary Committee ("Committee") approved four immigration-related bills, including an extension of a special immigrant religious worker visa program.
Created by the Immigration Act of 1990, the Non-minister Religious Worker Visa Program ("Program") permits religious organizations in the United States to sponsor non-minister religious workers from abroad, such as nuns, religious brothers, and lay missionaries. The Program allows for up to 5,000 special immigrant visas per year that religious organizations can utilize to sponsor foreign nationals to perform religious service in the United States. This program was set to expire September 30, 2008.
In addition, the Committee approved legislation to extend the EB-5 Regional Center Pilot Program. The EB-5 immigrant preference classification allocates 10,000 visas annually for foreign nationals and their family members who make investments between $500,000 and $1 million into businesses that create or preserve at least 10 full-time jobs for U.S. workers. The Regional Center Program allowed USCIS to designate regional centers in areas of high unemployment or other qualifying rural areas and thus maximize the economic impact of this investment. This program is set to expire on September 30, 2008, and this Bill would extend it through 2013.
Finally, the Committee approved H.R. 5060, legislation that would allow nonimmigrant athletes to extend their period of authorized admission in five-year increments rather than the current 10-year increments, and H.R. 5571, legislation that would extend for another five years a program that allows international medical graduates to secure waivers of the J-1 foreign residence requirement if they practice in underserved medical areas for a specified period of time.
On March 21, 2008, DHS issued a supplemental proposed Safe Harbor Rule that it hopes will address issues raised by Judge Charles Breyer of the U.S. District Court for the Northern District of California, who blocked the original Safe Harbor Rule and enjoined the Social Security Administration from sending no-match letters to employers.
The Safe Harbor Rule attempts to address three procedural concerns that prompted Judge Breyer to enjoin the final Safe Harbor Rule promulgated by DHS last fall. (AFL-CIO v. Chertoff, N.D. Cal., No. 3:07-cv-04472-CRB, preliminary injunction granted 10/10/07). However, this Safe Harbor Rule does not purport to change the Safe Harbor provisions, which give employers 30 days to determine whether the Social Security mismatches resulted from errors on their part and, if not, give employees 60 days to resolve the discrepancy with the Social Security Administration ("SSA"). If the discrepancy cannot be resolved within this 90-day period, the employer then must re-verify the Form I-9 of the employee subject to certain limitations. Any employer who follows this protocol would receive Safe Harbor from criminal prosecution for employing an undocumented worker. Conversely, failure to follow the Safe Harbor Rule would be construed by DHS as a "knowing" violation of immigration law.
On March 17, 2008, Mississippi Governor Haley Barbour signed into law the Mississippi Employment Protection Act (S.B. 2988). This is another example of state legislation that mandates use of the federal government's E-Verify program. Under S.B. 2988, all Mississippi agencies, public contractors, and private employers who employ at least 250 employees must start using E-Verify by July 1, 2008. All employers with at least 100 employees must begin using E-Verify by July 1, 2009. Those Mississippi employers with at least 30 employees must use E-Verify by July 1, 2010. All remaining Mississippi employers must use E-Verify by July 1, 2011.
In his accompanying statement, Governor Haley stated that, "[a]ny employer who knowingly hires an illegal alien should be held accountable, and that is the goal of S.B. 2988." He also stated that he has "serious concerns" about several provisions of the bill that could have "unintended negative consequences." Governor Barbour said that he will work with the legislature to make certain "technical amendments" to "ensure [that] the bill will have the intended effect."
Any employer that violates S.B. 2988 will be subject to cancellation of public contracts, debarment from any state contract award for up to three years, and loss of its business licenses for up to a year. In addition, this law makes it a felony to accept or perform employment knowing, or recklessly disregarding, that the person is an illegal alien. Violators can face prison terms up to five years and fines between $1,000 and $10,000.
S.B. 2988 exempts employers that hire workers through a state or federal work program, and individual homeowners that hire a worker to work on their private property. It also creates a new private discrimination claim against any employer who fires a U.S. citizen or legal permanent resident employee while knowingly retaining an illegal alien. Under S.B. 2988, an employer who uses E-Verify is exempt from lawsuits under this new cause of action.
On March 13, 2008, Republican Utah Governor Jon Huntsman, Jr., signed into law an omnibus immigration bill (S.B. 81) that includes a requirement that public employers and public contractors use a system to substantiate the federal authorization status of new employees. S.B. 81 places an responsibility on state and local government agencies, as well as the companies that receive public contracts, to use E-Verify or another status verification system to make certain that new employees possess authorized immigration status.
Contractors to Use E-Verify
On March 27, 2008, Rhode Island Governor Donald L. Carcieri issued an executive order that requires the state's executive agencies and contractors doing business with Rhode Island to use E-Verify. This executive order also directs the Rhode Island State Police and Department of Corrections to work with Immigration Customs Enforcement to make sure that the federal immigration law is enforced.
"By ensuring that there are no illegal immigrants employed in the executive branch and that those who do business with the state do not employ illegal immigrants, we are setting an example for others to follow," Governor Carcieri stated. "This will encourage the private sector to comply."
On March 3, 2008, Senior Deputy Attorney General of the State of Nevada Karen R. Dickerson issued an opinion that legislation (A.B. 383) considered by the Nevada legislature, which would empower the State Tax Commission to impose administrative fines on business licensees that employ undocumented workers, were pre-empted by federal law.
Under the Immigration Reform and Control Act of 1986 ("IRCA"), employers are prohibited from hiring or continuing to employ a person who they know is not authorized to work, and they are subject to fines for violating IRCA's provisions. In her opinion, Senior Deputy Attorney General Dickerson concludes as follows:
IRCA preempts state laws imposing civil or criminal sanctions, but does not preempt licensing or similar laws. The 'administrative fine' imposed by A.B. 383 is a 'civil sanction' which is both expressly and impliedly preempted by federal law. It is not a licensing or 'fitness to do business' law because the Tax Commission has no other authority to act against an employer's business license for immigration-related matters. Therefore, it is an attempt to impose an additional state sanction on certain businesses that violate the federal law, which is expressly preempted. A.B. 383 also conflicts with the comprehensive federal scheme, which already sets maximum monetary sanctions for violations of IRCA.