Immigration Alert: June 2008June 17, 2008
On June 2, 2008, the U.S. Department of Labor (DOL) announced that it would audit all PERM labor certification applications filed by the attorneys at Fragomen, Del Rey, Bernsen & Loewy LLP (FDBL) on behalf their clients. The DOL indicated that it was taking this unprecedented action because it developed information that FDBL had, in some cases, improperly instructed clients who filed PERM cases to consult with the law firm before hiring apparently qualified U.S. workers that applied for the positions. If these allegations are substantiated, it may result in an order from the DOL that places FDBL clients under DOL-supervised recruitment because of inappropriate attorney participation in the recruitment process. This would involve the DOL in all aspects of recruiting for each PERM case handled by FBDL. Regardless of its outcome, however, the audit promises to slow processing of PERM applications filed for clients by FBDL to a crawl.
In view of this unprecedented action, the DOL felt compelled to issue an explanation. In its June 3, 2008 Press Release, Gregory F. Jacob, DOL Solicitor, stated: "The department's decision to further investigate these applications will help ensure the integrity of the permanent labor certification process and ultimately protect job opportunities for American workers,?.... The department takes seriously its responsibility to ensure that American workers have access to jobs they are qualified and willing to do and that their wages and working conditions are not adversely affected by the hiring of foreign workers."
According to the DOL, counsel for employers filing PERM application should have little or no involvement in the recruiting process, unless the employer routinely includes immigration attorneys in its hiring practice. To emphasize what it considers a permissible role for attorneys in the PERM process, the DOL issued a Guidance Bulletin for the public on June 13, 2008. In this Bulletin, the DOL reiterated that employers should use a recruitment and applicant assessment procedure that "closely resembles the employer's normal consideration process" and noted that attorneys normally play no role in the employer's assessment of applicants. At the same time, the DOL conceded that the PERM process imposes recruitment standards that may differ from the employer's normal recruitment standards and that the employer has a legitimate right to consult with counsel to ensure they are compliance with all legal requirements.
To provide direction for resolving this dilemma, the DOL issued the following guidelines:
1. Attorneys may receive resumes and applications from U.S. workers but may not conduct a preliminary screening before the employer reviews them, unless they normally perform this function;
2. Attorneys may not participate in interviewing applicants, unless they normally perform this function;
3. The employer may consult with counsel after it reviews applicant resumes about how its determination of a candidate's qualifications impact the PERM labor certification process, and whether the employer's rejection of a candidate is based on lawful, job-related reasons.
Employers using counsel in the PERM process would be well advised to follow these guidelines so as not to fall into the same quagmire that the clients of FBDL currently face.
On June 11, 2008, the U.S. Citizenship and Immigration Services (USCIS) announced that it would begin accepting an extremely limited number of I-140 petitions for premium processing on June 16, 2008. To be eligible, the foreign national employee must be: (a) in H-1B status; (b) within 60 days of reaching his/her six-year maximum stay: and (c) unable to extend that status other than by the approval of the I-140 petition. H-1B employees who have been granted annual extensions of H-1B status beyond six years because their labor certifications were filed over 365 days before the expiration of their H-1B status are not eligible to request premium processing under this new procedure.
III. USCIS Announces Two-Year EADs for Permanent Residence Applicants
Whose Priority Dates Are Not Current
On June 12, 2008, the USCIS announced that, effective June 30, 2008, it will begin issuing Employment Authorization Documents (EAD) valid for two years for those foreign nationals (FNs) who have filed permanent residence applications (Form I-485) but who are unable to become permanent residents because an immigrant visa number is not available. However, the USCIS will continue to grant EADs valid for one year to FNs who have filed for permanent residence where an immigrant visa number is available. In this regard, the USCIS may decide to issue a two-year EAD if the FN's preference classification regresses so that no visa number is available when the EAD application is filed. For additional information on Employment Authorization Documents, please visit http://www.uscis.gov.
As a prelude to what the government predicts will be a busy international travel season, on June 6, 2008, the Customs and Border Protection (CBP) issued the following travel tips:
- Have all the required travel documents for the countries you are visiting, as well as identification for re-entry to the United States. Passports are required to the United States for travelers arriving by air.
- Make sure you find out the rules and regulations concerning food and agricultural items before you travel, as some are prohibited or must meet certain requirements, such as a license or permit. Also, all live birds and bird products, whether for personal or commercial use, may be restricted and/or quarantined.
- When you arrive at a U.S. port of entry, a CBP officer will inspect you. Be prepared to tell the officer the purpose of your trip and to list those items purchased or obtained abroad.
- If you are a visitor to the United States, the CBP officer may require you to provide your biometrics — digital finger scans and photograph — to verify your identity against your travel documents. This simple and fast collection of biometrics is the same as you experienced if you had to get a visa for your trip to the United States.
- If you are a nonimmigrant, make sure that the airline ticket agent collects your I-94 form when you depart the United States.
- Visit the CBP's website: "Know Before You Go" at: http://www.cbp.gov/xp/cgov/travel/ for its "Top 10 Travel Tips," and "Frequently Asked Questions" concerning international travel.
- Visit the CBP's website: http://www cbp.gov to view recent airport wait times This will help you gauge how long the clearance process may take.
- If you are traveling by plane to Mexico or Canada, please keep in mind that the Western Hemisphere Travel Initiative requires all travelers to and from the Americas, the Caribbean, and Bermuda to have a passport or other accepted forms of identification to enter or depart the United States.
Also, please remember that CBP officers no longer accept an oral declaration of American citizenship. Since January 31, 2008, all individuals entering the country at land and sea ports of entry from within the Western Hemisphere must have documentary proof of identity and citizenship. Documents that can be used to gain entry into the U.S. include official passports, passport cards, copies of birth certificates along with government-issued photo identification, enhanced driver's licenses and NEXUS cards.
On June 9, 2008, the Department of Homeland Security (DHS), through the CBP, issued an interim final rule soliciting comments on its intention to add significant security protections to the Visa Waiver Program (VWP). Comments are due by August 8, 2008, and the CBP expects to implement the new system on or about January 12, 2009, sixty days after publication in the Federal Register.
The VWP allows millions of visitors to come to the U.S. without first getting a visa. While this facilitates for international tourism and commerce, Congress has long been concerned that the VWP permits visitors to circumvent basic security and other protections that are incorporated into the State Department's (DOS) visa issuance process. The DHS designed this interim rule to address security concerns by implementing the Electronic System for Travel Authorization (ESTA).
The ESTA is an electronic website where FNs must register if they intend to visit the United States using the VWP. Currently, FNs traveling on the VWP complete a green I-94W Departure Record on the plane and then present it upon arrival at a U.S. port of entry. The CBP officer then quickly assesses the information it contains. Under the new ESTA process, the FN first will need to register on the CBP website prior to travel and provide the same information that he or she previously would have included on the I-94W upon arrival. The CBP then will evaluate the FN's eligibility to enter the United States and determine if there is anything about his or her background that would render him or her ineligible to enter the United States. If not, the FN will receive Travel Authorization (TA). In this way, the CBP hopes to clarify any admissibility problems before the FN attempts to board his or her flight and thus shorten airport congestion. Once issued, a TA generally would be good for two years or for the time remaining on the FN's passport, whichever is shorter.
With the exception of emergency travel, all FNs will be expected to seek TA at least 72 hours before any trip. In assessing the new ESTA program, however, it is important for intending FN travelers to realize that receipt of TA will not guarantee admission. It simply is a certification that there is nothing in the FN's background that would disqualify him or her from admission to the United States. The FNs still must convince the CBP officer at the airport that he or she is coming to this country for a permissible purpose.
This new ESTA system represents a significant procedural change from the VWP. For this reason, the CBP has delayed implementation until at least January 12, 2009, so that it can educate the traveling public about these changes. This should allow sufficient time for employers with offices abroad to become familiar with the new ESTA procedures and to develop their own procedures for ensuring that VWP participants are eligible for TA. Further information about the new ESTA system can be found at: https://esta.cbp.dhs.gov.
On June 12, 2008, the USCIS issued an update regarding H-1B processing under the Fiscal Year 2009 H-1B Cap:
1. All receipts for new H-1B petitions selected in the random lottery were issued and mailed on or before May 24, 2008, except for cases that were being reviewed as potential duplicate filings.
2. Cases thought to be duplicate filings are being hand-reviewed and a determination will be made on a case-by-case basis.
3. The number of H-1B petitions selected during the random selection process was sufficient to meet the cap limit. Accordingly, the USCIS will not establish a reserve/cushion this year.
4. The USCIS started mailing out rejection notices this week.
VII. President Bush Signs Executive Order Requiring Federal Contractors Use E-Verify
On June 6, 2008, President Bush issued Executive Order 12989 (EO 12989), which requires all federal government contractors to use the best available verification system to assess the identity and work authorization of: (a) all new hires during the contract term; and (b) all existing personnel performing work in the United States on federal contracts. Under EO 12989, the DHS is authorized to establish the system and promulgate the rules necessary to enforce compliance.
On June 9, 2008, the DHS designated the E-Verify system, operated by the USCIS in partnership with the Social Security Administration, as the electronic employment eligibility verification system to be used by federal contractors under EO 12989. At a press conference making this announcement, DHS Secretary Michael Chertoff stated:
A large part of our success in enforcing the nation's immigration laws hinges on equipping employers with the tools to determine quickly and effectively if a worker is legal or illegal?.... E-Verify is a proven tool that helps employers immediately verify the legal working status for all new hires.
The verification of federal contract workers will ensure 'stability and dependability' in federal government activities because contractors that employ illegal aliens cannot rely on the continuing availability and service of those illegal workers, and such contractors inevitably will have a less stable and less dependable workforce than contractors that do not employ such persons.
On June 12, 2008, the Defense Department, General Services Administration and National Aeronautics and Space Administration issued a proposed rule that would amend the Federal Acquisition Regulation to require certain contractors to use the E-Verify system to assess the identity and employment eligibility of all new hires of any contractor or subcontractor, as well as all employees directly engaged in the performance of services in the United States under any government contract with these agencies. Comments are due within 60 days.
We strongly urge companies that provide goods or services to the government to review these developments carefully so that they can develop procedures for compliance that are consistent with the manner in which they manage their entire workforce.
On June 4, 2008, Judge Robin J. Cauthron of the United States District Court for the Western District of Oklahoma issued a preliminary injunction barring enforcement of those portions of Oklahoma's Taxpayer and Citizen Protection Act of 2007 (H.B. 1804) (OTCP) that required employers to use E-Verify, finding that it was "substantially likely" that this new state law was preempted by federal immigration law. Without Judge Cauthron's injunction, these provisions would have taken effect on July 1, 2008.
The OTCP is one of the broadest pieces of state immigration-related laws that has been passed in recent years. It includes a requirement that public employers, and those who contract with them, must use E-Verify or another approved verification system to prove the legal status of all new hires. It also establishes criminal penalties for knowingly harboring illegal aliens, permits the state government to deny bail to arrested illegal immigrants, limits access to government IDs, and discontinues public assistance for illegal immigrants. Finally, the OTCP permits U.S. citizens to sue their employer for discrimination if they are fired/laid off while undocumented workers remain employed.
When she issued the temporary injunction, Judge Cauthron denied several motions by state defendants, including Governor Brad Henry (D) and Attorney General Drew Edmondson (D), who requested dismissal of the case for lack of standing, lack of jurisdiction based on the Federal Tax Injunction Act, and because the lack of Congressional authority lacked authority to pass the Immigration Reform and Control Act.
On June 4, 2008, South Carolina Governor Mark Sanford signed bill H. 4400, which mandates that employers verify a worker's identity and employment eligibility through the federal E-Verify system or through a valid South Carolina driver's license. The legislation also includes penalties, fines and loss of business licenses, for employers who neglect to confirm eligibility or who "knowingly and intentionally" hire illegal immigrants.
Under Bill H 4400, South Carolina employers will have five business days to verify a potential employee's work status. Employers with 500 employees or more will be required to comply by January 2009, and all other employers by July 2010. For each employee that is not verified, employers could sustain a civil fine of between $100 and $1,000. Furthermore, if it is determined that an employer has knowingly hired illegal immigrants, its business license may be suspended for 10 to 30 days for a first offence, and for five years for subsequent offenses. Licenses could be permanently revoked in an "egregious" case. Additionally, the Bill establishes a website and telephone line to report suspected violations of immigration law, forbids businesses from claiming wages paid to an undocumented worker as an expense, and mandates a 7% withholding of all wages paid to an undocumented worker.
The DOS has recently issued its Visa Bulletin for July 2008. This Bulletin determines who and when FNs can apply for permanent residence under our quota system. According to the Bulletin, the Employment Based Third Preference (EB-3) will be unavailable, and will remain unavailable, until October 1, 2008 (the end of the federal government's 2008 fiscal year). This means that the USCIS will not accept EB-3 green card applications received after June 30, 2008, regardless of priority date, until at least October 1, 2008. It also means that FNs who presently have EB-3 green card applications pending with the USCIS will have to wait at least until October 2008 before their priority dates might become current and available.
The Visa Bulletin is a monthly publication of the DOS which lists the immigrant visa preference quotas. It is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.