Immigration Alert: July 2007

USCIS Reinstates Original July 2007 Visa Bulletin!

USCIS Announces Extension of Temporarily Suspended I-140 Premium
Processing Service

J-1 Visa Trainee and Intern Category Changes

Immigration Enforcement in the News


 USCIS Reinstates Original July 2007 Visa Bulletin!

The U.S. Citizenship and Immigration Services ("USCIS") announced on July 17, 2007 that it will immediately accept employment-based permanent residence applications (Form I-485) from foreign nationals who have priority dates and whose priority dates were current under the initial July 2007 Visa Bulletin. These foreign nationals will be given a 31-day grace period (from July 18, 2007 through August 17, 2007) to file their I-485 applications. Applications already properly filed will be retained and accepted. This was done to provide the same filing window people would have had if the July 2, 2007 revised Visa Bulletin had never been issued at the insistence of the USCIS. In addition, the current fee schedule will apply to all applications filed under this extended filing period under the July 2007 Visa Bulletin even if they are filed after the new fee schedule goes into effect.

At the same time, the Department of State ("DOS") issued its new August 2007 Visa Bulletin. This new Visa Bulletin shows that all employment-based cases current under the July Visa Bulletin are unavailable for August 2007. This means that those eligible to file under this new grace period must file by August 16, 2007 under the revised July 2007 Visa Bulletin because they will not be able to file after this period expires in August.

Those contemplating filing an I-485 application under this grace period should keep in mind, among other things, the following:

1. Any application filed must be complete, except for the medical examination.

2. I-485 applications can only be filed by foreign nationals in the United States. Dependents do not receive derivative priority dates. There also must be a visa available to them if they file separately. They will not be able to file after the grace period even if the principal's application is timely filed and accepted.

3. Foreign nationals who file I-485 applications during this grace period should plan on spending a considerable amount of time in the United States until they receive permission to travel. We anticipate that the USCIS will receive a tremendous volume of I-485 and related applications in July and thus expect that the USCIS will be extremely slow in issuing the receipts and/or advance parole approvals that permanent residence applicants need before they can travel abroad.

4. Those who file these I-485 applications should not anticipate prompt approval. Under USCIS rules, there must be a visa number available both at the time the I-485 application is filed and when it is approved. Based on the August Visa Bulletin, it appears quite likely that the supply of visa numbers will be exhausted by these filings. Indeed, we believe that there may be a significant regression in visa availability, and that it may take a substantial amount of time for visa numbers to be available in the future. For this reason, filers can anticipate lengthy delays in the adjudication of these applications.

USCIS Announces Extension of Temporarily Suspended I-140 Premium Processing Service

On July 24, 2007, the USCIS announced that the June 27, 2007 temporary suspension of Premium Processing Service for Form I-140, Immigrant Alien Worker Petitions is being extended indefinitely because the USCIS still expects that the volume of Form I-140 Petitions seeking the Premium Processing Service will exceed its ability to provide the service according to the program guidelines.

J-1 Visa Trainee and Intern Category Changes

On June 19, 2007 the DOS published interim final regulations that establish a new J-1 Intern category and significantly revise the regulations governing the J-1 Trainee program. The regulations came out as a result of the DOS's desire to increase the ability to more closely monitor quality and compliance while expanding the programs.

The regulations initially adopted by the DOS in 1993 required the completion of structured training plans for trainees. The DOS experience since then has shown that the regulations regarding the content and use of such training plans have not been effective and do not adequately assist the DOS in determining whether real training is being provided to the trainee or whether a boiler plate structured training plan is truly descriptive of what the individual trainee is actually doing at the workplace.

Accordingly, the DOS has revised its regulations regarding Trainees and Interns to eliminate the distinction between "non-specialty occupations" and "specialty occupations"; establish a new internship program and modify the selection criteria for participation in a training program. The new regulations also require sponsors to screen, vet and enter into written agreements with third parties who assist them in recruiting, selecting, screening, orienting, placing, training or evaluating foreign nations who participate in training and internship programs. Sponsors must also fully complete and secure signatures on Form DS-7002 (Training/Internship Placement Plan) for each trainee and intern prior to issuing a Form DS-2019.

In addition, the DOS regulations created a new "Intern" category in recognition of the fact that foreign nationals who are currently students at or recent graduates of degree or certificate-granting post secondary academic institutions and who have not yet had the opportunity to acquire experience in their academic field may also be interested in pursuing training in the US. The Intern category was created to distinguish the learning experiences of current post-secondary students and recent graduates from those of professionals. Like the Trainee program, the Intern program must relate directly to the participant's field of study or career field.

The Intern category requires the following:

  • Currently enrolled in and pursuing studies at a foreign degree/certificate granting post-secondary academic institution outside the US; or
  • Graduated from such institution no more than twelve (12) months prior to his/her exchange visitor program start date; and
  • Maximum duration in any field is twelve (12) months.

Significant Changes to Trainee category:

  • The Trainee must be a Foreign National (FN) who has: a degree or professional certificate from a foreign post-secondary academic institution outside of the US and at least one year of prior related work experience in his/her occupation field outside the US; or
  • Five years of work experience in his/her occupational field outside the US.

Significant Changes Relating to Host Organizations:

Sponsoring Organizations must: conduct site visits of host organization that have not previously participated successfully in the sponsors programs, and have fewer than twenty five (25) employees, or less than three (3) million dollars in annual revenues.

Host organizations must provide the following information: Dun and Bradstreet number; Employer Identification Number; Proof of Worker's Compensation Insurance Policy; and verification of participant's English language skills and documented interview with sponsoring organization, host organization or approved third party.

Immigration Enforcement in the News

Cambridge based IT Company agrees to pay $2.4 million to underpaid H-1B workers

The United States Department of Labor ("DOL") announced on July 2, 2007 that Pani Computer Systems Inc. of Cambridge, Massachusetts agreed to pay more than $2.4 million to six hundred and seven (607) nonimmigrant workers. The investigation by the DOL's Wage and Hour Division discovered that the H-1B computer professionals were not paid required wages for the period between January 2004 and December 2005.

Secretary of Labor Elaine L. Chao stated that "The department is committed to vigorously enforcing the H-1B provisions that guard against employers undercutting American workers by underpaying temporary foreign workers."

Review Board Exonerates Firm Charged under Invalid Rules

The United States District Court for the District of New Jersey has found that Pegasus Consulting Group, a New Jersey based software consulting firm, was not responsible for paying nineteen (19) H-1B employees for nonproductive time in a case where the employer was prosecuted under invalid regulations. In its decision, the Court criticized decisions by a Labor Department Administrative Law Judge (ALJ) and the DOL's Administrative Review Board (ARB) because the ALJ applied invalid regulations and the ARB retroactively applied a vague statute.

Judge Freda L. Wolfson found that the "basic notion on due process" prohibits an employer from being held "culpable for violations of statutory provisions with which it was never charged." Judge Wolfson added that, "[t]he ARB's decision to base its ruling on the statute is nothing more than after the fact jurisdiction for an improperly prosecuted action and its failure to provide any meaningful analysis whatsoever for its decision to uphold the ALJ's determination on alternative statutory grounds is the very definition of arbitrary and capricious agency action."

Texas Law Nixes Job Grants if Illegal Workers Are Hired

Texas Governor Rick Perry signed H.B. 1196 June 16, 2007 requiring Texas businesses that receive taxpayer-subsidized job creation grants and tax abatements to certify that they will not knowingly employ undocumented workers.

H.B. 1196 also authorizes a public agency, local taxing jurisdiction, economic development corporation, or the Texas attorney general on behalf of the state or state agency to commence a civil action to recover funds if a business hires workers not legally in the US. The bill applies to a business' subsidiary, affiliate, franchise of the business, or a person with whom the business contracts.

H.B. 1196 requires also requires that in a certifies statement, businesses must declare that if convicted of engaging in a pattern or practice of violations of federal law governing the unlawful employment of illegal workers, the business must repay the amount of the public subsidy with interest within 120 days of receiving notice of violations.

Arizona Governor Signs Legal Arizona Workers Act into Law

On July 2, 2007, Arizona Governor Janet Napolitano signed the "Legal Arizona Workers Act" (the "Act") into law. The Act amends Title 23, Chapter 2 of the Arizona Revised Statute by adding article 2, "Employment of Unauthorized Aliens." [Section 23-212] that prohibits employers from intentionally or knowingly employing an unauthorized alien.

The Act requires the Arizona Attorney General or County Attorney to investigate complaints that an employer violated the Act by verifying the work authorization of the alleged unauthorized alien with the federal government pursuant 8 USC Section 1373(c). If the Attorney General or Country Attorney determines that the complaint is not frivolous, he/she must: (1) notify the Immigration and Customs Enforcement; (2) notify the appropriate local law enforcement agency; and (3) bring an action if the complaint was originally filed with the attorney general.

Finally, the Act requires that, after December 31, 2007, every employer must verify the employment eligibility of their newly hired employee through the Basic Pilot Program. ("BPP"). Under the Act, the employer's participation in the BPP creates a rebuttable presumption that an employer did not intentionally/knowingly employ an unauthorized alien. In addition, an employer who can establish this good faith compliance with the BPP establishes an affirmative defense that they did not intentionally/knowingly employ an unauthorized alien.