Labor Immigration Law

Many of our clients are complaining of the need to renew their employment authorization documents (EADS) every year while their green card adjustment of status application is pending. Given the long backlogs, the need to extend EADs every year becomes a hassle and, especially for those applicants who have to pay for each application, a financial burden.

DHS Secretary Chertoff, in remarks at the “State of Immigration” address, noted that beginning June 2008, DHS will start issuing 2-year EADs for applicants whose adjustment of status petitions if such petitions are expected to be pending for more than one year. His precise remarks are:

“Beginning later this month, we’ll start issuing these documents with a two-year validity period for aliens who are waiting adjustment of status if their application is expected to be pending for more than a year.

..

This, again, is eliminating a persistent source of frustration for workers who are here, who have a pending adjustment application but have to go and renew their employment documents every single year. It’s going to cut the paperwork there.“

Full text.

The speech does not address details such as the exact date of when this change would take effect and whether advance parole (AP) extensions would also be extended in 2-year terms. We will continue monitoring developments in connection with Secy. Chertoff’s statement and update our clients and readers as we know more. Readers can subscribe to our newsletter to obtain email notification of recent developments.

Update: USCIS has released more details on the new rule.

BREAKING NEWS

EB-3 Unavailable.  The July 2008 Visa Bulletin is out.  As we predicted in May, the Employment Based Third Category (EB-3) is now unavailable until the end of the Fiscal Year in October.   This means that no EB-3 cases will be approved until at least October.  It is expected that in October the EB-3 priority dates will return to their May/June level.

Good news for EB-2 India and China.   The July 2008 Visa Bulletin, however, brings good news to EB-2 applicants from India and China.  According to Section 202(a)(5) of the Immigration and Nationality Act, the total demand for EB-2 visas from countries other than India and China has been insufficient to meet the number of available visas; therefore, such estimated excess numbers have been allocated to EB-2 India and China.  It is expected that because Indian nationals constitute a larger proportion of the currently pending EB-2 cases, most of the newly available EB-2 visas will go to Indian nationals.

The debate surrounding E-Verify is in full force.  In the meantime, the federal government and many states are busy implementing regulations requiring employers to become E-Verify compliant and start using the E-Verify system for all of their new hires.

The latest regulation is an Executive Order 12989 as Amended, dated as of  June 6, 2008, which requires all federal agencies and departments to require from all federal contractors who are also employers to become E-Verify participants and ensure that all new hires are subject to E-Verify checks.

Section 5(a) reads: “Executive departments and agencies that enter into contracts shall require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the Federal contract.”

Based on this Executive Order and other federal and state regulations, it is clear that E-Verify is here to stay.  While the debate on its  effectiveness and burdens on employers will continue, there are a number of “carrots” which make E-Verify participation extremely hard to reject.  In addition to the ability to obtain federal contracts, many employers must become E-Verify employers in order to be able to hire or extend F-1 visa OPT documents for highly qualified foreign graduates.

The good news is that we at the Capitol Immigration Law Group can help you with your E-Verify compliance.  We are E-Verify Designated Agent and we allow you to outsource your E-Verify compliance work to us.   As a law firm, we not only provide E-Verify processing but we can also advise your company on developments in the law which can affect your company and employees.  Please contact us for more information on how your company can become E-Verify compliant in few easy steps.

The Department of Homeland Security has announced an Interim Final Rule which creates a new online system which is part of the Visa Waiver Program (VWP).  The new online system will require all nationals or citizens of VWP countries who plan to come to the United States under the VWP to register their travel in advance and obtain pre-authorization of their entry into the U.S.    The system will go into effect on August 1, 2008 and will be optional until the rule is published in the Federal Register, which is expected in January 2009.

To apply for authorization to travel to the U.S., VWP travelers will log-in to a web-based system and complete an application providing certain personal and eligibility information which is currently required on the I-94W form filled out by VWP travelers upon entry into the U.S.   The applications may be submitted at any time prior to travel to the United States and DHS encourages travelers to do so as soon as their travel plans are made.  The system will allow modification of travel plans and other information.

Once the application is completed, the information will be compared to various law enforcement databases and an instant response will be provided to the applicant.  The possible responses are: Authorization Approved, Travel Not Authorized, or Authorization Pending.  An Authorization Approved is valid for up to two years or until passport expiration, whichever is earlier, is valid for multiple entries to the U.S., and is not a guarantee for admission to the U.S.

According to DHS, once the program becomes mandatory (expected January 2009), VWP travelers who fail to complete the pre-travel authorization may be denied boarding on the airplane or may be turned at the U.S. port of entry.

The recent OPT 17-month extension which went into effect in early April 2008 has been challenged in the U.S. District Court in Newark, N.J. by the Immigration Reform Law Institute, joined by the Programmers Guild and other organizations.   The lawsuit challenges the administration’s decision to extend the work period for students under the OPT program and argues that the OPT extension is just a way to go around the H-1B cap limit.  The argument is based on the fact that the H-1B program, and its annual cap, is set by U.S. Congress and by extending the OPT by 17-month, the administration has circumvented the required process of consent by the U.S. Congress.

We do not have a copy of the complaint at this hour to comment on the sufficiency of the legal arguments and whether it has actual merit as opposed to  its PR value.  However, we will monitor this lawsuit and report on any significant developments related to the OPT extension program.  Feel free to subscribe to our  electronic newsletter to receive updates on this and other immigration law-related stories.

Update: August 5, 2008, ruling against the plaintiffs.