Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for May, 2008

Pending H-1B Relief Bills

Following the H-1B lottery, where roughly half of the applications were rejected in the lottery, we are providing an overview of the pending H-1B relief bills in Congress.

The main piece of legislation in connection with H-1B relief is the SKIL Bill (HR 1930, S 1083).   The bill would raise the H-1B cap to 115,000 and provide for market-based increase if the cap has been reached during the previous years.  The bill would also exempt from the cap professionals with U.S. master’s or higher degrees AND some medical specialty certificate awardees.  Finally, the SKIL Bill contemplates including into the 20,000 advanced degree cap holders of advanced degree from non-U.S. educational institutions.

The STRIVE Act of 2007 (HR 1645) has provisions similar to the SKIL Bill.

HR 5630, introduced by  Rep. Giffords (AZ) seeks to increase the cap to 130,000 and, similarly to the SKIL Bill, includes a market-based escalation provision.

Finally, HR 5642, introduced by Rep. Smith (TX) seeks to increase the cap for fiscal years 2008 and 2009 to 195,000.

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Map of SEVIS-approved Schools

The United States Immigration and Customs Enforcement (ICE) has released a map of SEVIS-approved schools in the U.S.  The map is useful tool for foreign students hoping to come to study in the United States or to transfer to a new school as it lists schools authorized to issue F-1 visas and other education-related immigration benefits.

The map can be located here.

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New Proposal Aims to End Concurrent I-140/I-485 Filing

USCIS is proposing to amend the regulations concerning the concurrent filing of employment-based I-140 and I-485 petitions as long as visa number is available to the alien beneficiary. The proposed rule seeks to amend the rule so that a worker applying for I-485 adjustment of status must be the beneficiary of an approved immigrant petition prior to the filing of the adjustment application.

The proposed rule is scheduled for publication in June with a 60-day comment period.

Reasons
We do not have reliable information at this point as to the rationale of this proposed rule change. It seems that USCIS may be trying to eliminate the backlog of I-140/I-485 applications which were filed in the summer of 2007 when there was a substantial forward visa movement. It has been suggested that USCIS may be trying to control the volume of filings should a dramatic forward movement, similar to the summer of 2007, occur in the future.

About the I-140/I-485 Concurrent Filing Procedure
The concurrent filing procedure was implemented in 2002 and it has become a very useful for aliens who qualify. The concurrent filing procedure permits an alien who has an I-140 filed to file a I-485 adjustment of status application and, as a result, take advantage of a number of benefits associated with pending I-485. A properly filed and pending I-485 opens eligibility for employment authorization documents (EAD) and advanced parole (AP) for the beneficiary and his or her immediate family. Also, having I-485 pending for certain period of time may open other benefits, such as job portability to similar job opportunities.

Consequences
As a result of the new rule, foreign employees would be impacted negatively in several important ways. First, they would be restricted in switching employers. Additionally, families of foreign employees would not be entitled to work authorization until later in the process, thus putting financial strain on some of the immigrant families. Finally, international travel may be impacted as fewer families would be entitled to AP earlier in the process.

It should be noted that it is not expected that the proposed rule will impact currently filed concurrent I-140/I-485. We will continue to monitor the situation and update our clients as we learn more.

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June 2008 Visa Bulletin – EB-3 Expected to Retrogress

The June 2008 Bulletin is out.  Among the employment-based visa numbers, there is a slight forward movement in the EB-2 category for China and India, by about 3 months, from January 2004 to April 2004.

Unfortunately, there was no movement in the EB-3 category for any country.  There were more bad news for EB-3 applicants.  According to the June 2008 Visa Bulletin, the annual cap for EB-3 cases is expected to be reached in June; as a result, the EB-3 category is likely to experience retrogressions or visa unavailability beginning in July (stay tuned for the July 2008 Visa Bulletin in mid-June).  It is expected that in October, upon the start of the new fiscal year, the cut-off dates would recover to their present date.

Read the full June 2008 Visa Bulletin.

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Modern Immigrants Better at Assimilating into the US Society

The Washington Post writes about the trends of how quickly and easily foreign nationals who immigrate to the U.S. are able to assimilate. The article is based on a research conducted by the Manhattan Institute (note: they are famous for their advocacy of free market-based solutions to policy issues) where researchers measured the degree of similarity between native-born Americans and foreign-born residents.

It would not be a surprise to many that the research found that the length of residence in the U.S. has contributed greatly to the increased level of adaptation. However, what may be interesting is that the speed with which new arrivals take on native-born traits has increased since the 1990. This means that new immigrants are more willing and likely to adopt native-born American economic, cultural and civic traits.

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Re-Entry Permit – Expedite by Having Attorney Call USCIS

The topic of re-entry permits for green card holders seems to resurface every few days.  We have written extensively about the new re-entry permit biometrics and the procedure to request expedited processing.

The main issue is that the new biometrics requirements create a great deal of uncertainty for international travelers who, most often, have planned and booked their trip months or even years in advance.  According to the March 2008 rule, re-entry permits cannot be issued unless the applicant remains in the U.S. and attends a biometric appointment.

Fingerprinting Appointment – Have Us Call USCIS on Your Behalf and Request Expedited Processing

Although, as we wrote recently, there is a procedure for expediting the fingerprinting appointment, such requests are not always honored in a timely manner.  Our law firm now offers a second alternative to have the fingerprinting appointment expedited by USCIS.  If you have a re-entry permit pending with USCIS or if you plan to file one, we can, as an attorney on your behalf, call the USCIS and request that your fingerprinting appointment be expedited.  Having an attorney call the USCIS and explain the situation warranting expedited processing has advantages and recent experience shows that, given the circumstances, can significantly expedite the biometric appointment and the issuance of re-entry permit.

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TN Visa Period Extension Proposed

The USCIS announced yesterday that it is publishing a Notice of Proposed Rulemaking (NPRM) to increase the maximum amount of time a TN visa holder can remain in the U.S. before seeking readmission or extension of stay from one year to three years. The goal behind the proposed rule is to provide TN visa holders similar visa terms as other skilled worker visas, such as H-1B.

Under the current regulations, TN visa holders must seek extensions or readmission every year. While in many circumstances such extension or readmission is without issues, TN visa holders often complain of the cumbersome yearly readmission requirements to which H-1B or L-1 visa holders are not subject. The new rule seeks to address these concerns and provide more certainty and uniformity among skilled professional visa categories.

The NPRM, once implemented as a final rule, will provide a number of benefits to all stakeholders. TN visa holders will not have to travel outside of the U.S. or seek extension every year thus saving money and time. U.S. employers will have greater certainty that TN beneficiaries will be allowed longer terms. Finally, the USCIS will have a reduced work load due to the decreased number of TN visa extensions.

Update: an advance copy of the proposed rule can be found here.

About the TN Visa. Canadian and Mexican citizens seeking temporary entry to the United States as professionals may come into the country as TN nonimmigrants under the North American Free Trade Agreement (NAFTA). TN status is available to Canadian and Mexican citizens with a minimum of a bachelor’s degree, or appropriate professional credentials, who work in professions listed in Appendix 1603.D.1 to Annex 1603 of the NAFTA and under DHS regulations at 8 CFR 214.6(c). Eligible TN professions include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers.

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E-Verify Third Party Agent

We wrote earlier today about the improvements to the E-Verify program.  In the past weeks we have been approached by some of our corporate clients and asked whether we would provide E-Verify services.  In addition to advising employers on immigration, E-Verify, and employment authorization compliance, we are now registered with USCIS as E-Verify Third Party Agent.

This E-Verify Third Party Agent status allows our employer clients to outsource the E-Verify processing to us while they remain focused on their core business processes.  If you are an employer who wishes to register under the E-Verify program and take advantage of the electronic employment authorization verification please contact us.  We provide full service E-Verify solutions to our employer clients and we would be happy to discuss your needs.

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USCIS Improves E-Verify Program Accuracy

USCIS just announced a couple of significant enhancements to the E-Verify program which should increase its accuracy and appeal to employers.  One of the main concerns of E-Verify is that a fair number of legitimately authorized workers receive a non-confirmation which has consequences, ranging from embarrassment to potentially losing their employment.

About E-Verify. E-Verify is a program which provides an automated link to federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers.  The program is operated by USCIS in cooperation with the Social Security Administration (SSA) and it has evolved over the past 10 years to allow employers a quick (and ideally) accurate way to determine the employment eligibility of a new hire.  Currently, there are 64,000 employers who participate in the program with approximately 1,000 new enrollments weekly.  Our firm regularly provides advice to employers on E-Verify participation and compliance and we have noticed increased interest from employers.

The Changes.  Starting immediately, the E-Verify system will include naturalization data, which will help instantly the citizenship status of naturalized U.S. citizens hired and subject to verification by E-Verify employers.  According to USCIS, naturalized citizens who have not yet updated their naturalization records with the SSA are the largest category of properly authorized employees who face an initial E-Verify mismatch.

The second immediate change is that E-Verify will also include real-time arrival data from the border inspection and arrival system.  The goal of this integration is to reduce the number of mismatches related to immigration status for newly arriving workers who enter the U.S. legally through a point of entry.

Among the future plans for E-Verify – have USCIS sent back information to SSA to avoid future mismatches from happening and integrate Department of State passport records.

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iGate Mastech Fined $45,000 by DOJ for H-1B Discrimination

The U.S. Department of Justice announced May 1, 2008, that it has imposed a civil fine of $45,000 to iGate Mastech, Inc., a Pittsburgh computer consulting company in connection with the company’s alleged discrimination against United States citizens in its employment practices and advertisements.

The DOJ found that between May 9, 2006, and June 4, 2006, the company placed 30 job ads for computer programmers that expressly favored H-1B holders to the exclusion of U.S. citizens or green card holders.  Some of the ads contained text identical or similar to, “Only H-1s apply, and should be willing to transfer H-1B.

Such discrimination is prohibited under the U.S. Immigration and Nationality Act.   “We are committed to protecting the right of all authorized workers in the United States against citizenship status discrimination,” said Grace Chung Becker, Acting Assistant Attorney General for Justice Department’s Civil Rights Division.

While we are uncertain of the motives of the company to place such ads, the civil fine settlement comes as a result of a complaint by the Programmers Guild (PG) in 2006.  According to PG, iGate Mastech is just one of at least several companies engaged in the practice of discriminating against U.S. workers “in favor of cheap H-1B workers.”  If these are the motives, DOJ’s actions should serve to the great benefit of the labor immigrants.  It has been one of the main arguments of the H-1B program critics that the program undercuts the salaries of U.S. professionals.  By eliminating companies who intentionally seek foreign talent at a cheap rate, DOJ helps to ensure that the H-1B program’s critics have less of an argument against it.

Here is DOJ’s press release.

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