Immigration Alert: March 2008

New H-1B Petitions Must be Filed on March 31, 2008

Ninth Circuit Refuses to Enjoin Arizona's New Employer Sanctions Law

DHS Raises Civil Fines For Employers Hiring Undocumented Workers

DHS Publishes Interim Rule on Immigration-Related Asset Forfeitures

State Department ("DOS") Institutes New PIMS Security System at U.S. Embassies and Consulates

DOS Issues March 2008 Visa Bulletin: Indian EB-2 is Still Unavailable


I. New H-1B Petitions Must Be Filed on March 31, 2008

During each federal fiscal year, the U.S. government is authorized to issue 65,000 new H-1B visas. An additional 20,000 new H-1B visas are available to foreign nationals who have obtained a master's degree or higher from accredited American universities. The fiscal year begins October 1, but employers are permitted to apply up to six months in advance. This means April 1, but the H-1B petitions must be mailed on March 31 so they are received by the government on April 1.

Last year, the entire H-1B quota for regular H-1B petitions was exhausted on the first day! The H-1B quota for those with U.S. master's degrees was exhausted shortly thereafter. This means that all new H-1B petitions must be filed on Monday, March 31, 2008, to have any chance for selection in this year's quota. As you may know, it takes time to prepare these H-1B petitions, so we strongly advise that you make the decision to file several weeks in advance of the March 31, 2008 deadline.

II. Ninth Circuit Refuses to Enjoin Arizona's New Employer Sanctions Law

On February 28, 2008, the United States Court of Appeals for the Ninth Circuit refused to enjoin temporarily county prosecutors from enforcing the Arizona Employer Sanction Immigration Law. (Chicanos por la Causa Inc. v. Napolitano, 9th Cir., No. 07-17272, Feb. 28, 2008). In its per curiam order, the Ninth Circuit stated:

Balancing the seriousness of the legal questions presented, the likelihood of success on the merits, the possibility of irreparable injury to appellants, and the evidence of hardship to both sides, we conclude the appellants have not shown that the case warrants a grant of temporary relief during the pendency of the expedited appeals.

As a result of this ruling, Arizona counties now are able to enforce the law, which requires employers to use the federal E-Verify system to confirm the name and Social Security number of all new hires. Violators will face suspension or even revocation of their state licenses to conduct business.

A spokesman for the County indicated that the Ninth Circuit's order did not mean that large numbers of employers would immediately face sanctions because it would take time to collect the evidence required to begin enforcement. Employers in Arizona, however, should now be following the new law and should audit their workforce to ensure that they do not knowingly employ any undocumented worker.

III. DHS Raises Civil Fines For Employers Hiring Undocumented Workers

On February 22, 2008, the DHS announced a 25% increase in the civil fines that can be levied against employers who violate federal immigration laws. Under the new fine system, the maximum civil penalty for multiple violations will rise from $11,000 to $16,000. Additionally, some of the higher civil penalties for a first violation will increase by $1,000. The new rule will take effect on March 27, 2008. For additional information, you can access the February 26, 2008 Federal Register announcement at: http://www.gpoaccess.gov/fr/index.html

Attorney General Michael B. Mukasey and DHS Secretary Michael Chertoff announced this fine increase during a joint news briefing discussing the federal government's progress on worksite enforcement. In addition, Secretary Chertoff stated that DHS soon will issue a rule requiring federal contractors to participate in the E-Verify employment eligibility system, and that a new "Safe Harbor" rule regarding the process employers should follow for "No-Match" letters received from Social Security would soon follow.

Under the Immigration and Nationality Act (INA), any employer that violates employment eligibility requirements is subject to civil monetary penalties. Employers may be fined under the INA for knowingly employing unauthorized aliens or for other violations, including failure to comply with requirements relating to employment eligibility verification forms, wrongful discrimination against job applicants or employees on the basis of nationality or citizenship, and immigration-related document fraud, according to the departments. Civil fines are assessed on a one violation per alien basis. For example, if an employer knowingly employed, or continued to employ, seven unauthorized aliens, that would result in seven separate fines. Employers contesting fines have the right to a hearing before an administrative law judge in the Justice Department's Executive Office for Immigration Review.

IV. DHS Publishes Interim Rule on Immigration-Related Asset Forfeitures

On February 28, 2008, the DHS published an interim rule amending its regulations to consolidate the procedures for administrative seizures and asset forfeiture proceedings. This interim rule became effective on February 19, 2008. Written comments must be submitted on or before April 21, 2008.

As part of the general law enforcement process, federal law enforcement officers are permitted to seize assets or other property if it has been used in the commission of a crime. On November 25, 2002, President Bush signed into law the Homeland Security Act of 2002 (HSA), which reorganized the former Immigration and Naturalization Service into three separate and distinct agencies: U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), and USCIS. After the HAS was signed, both CBP and ICE retained authority to perform asset seizures and property forfeitures under separate regulatory provisions. The interim rule consolidates the different procedures that these agencies now use into the general asset forfeiture process followed by most other federal law enforcement agencies.

For additional information, please see the February 19, 2008 Federal Register at http://www.gpoaccess.gov/fr/index.html

V. DOS Institutes New PIMS Security System at U.S. Embassies and Consulates

The DOS has instituted a new security system that requires consular officers to verify the approval of all nonimmigrant petitions with U.S. Citizenship and Immigration Services ("USCIS") before issuing a nonimmigrant visa. The DOS estimates that this new procedure, called the Petition Information Management System ("PIMS"), will add at least four (4) business days to the time when a visa can be issued and the passport returned. Foreign nationals must now factor this additional delay into their plans when securing nonimmigrant visas abroad.

VI. DOS Issues February 2008 Visa Bulletin: Indian EB-2 Still Unavailable

The DOS recently issued its Visa Bulletin for March 2008. This Bulletin determines who can apply for permanent residence and when. The results were mixed. Employment-Based Third Preference showed improvement to January 1, 2005; however, the Employment—Based Second Preference ("EB-2") for Indian nationals is still unavailable. In addition, the DOS indicated that further regression in the EB-2 Preference for Chinese nationals, as well as possible cut-off dates for Chinese and Indian First Employment-Based Preference might occur due to heavy demand. The monthly Visa Bulletin is available through the DOS web site at: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

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