Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for November, 2009

ICE Announces 1,000 Workplace Audits

The U.S. Immigration and Customs Enforcement (“ICE”) announced recently that ICE would be issuing Notices of Inspection (NOI) to 1,000 employers across the United States associated with critical infrastructure.   The NOIS will seek to determine the employers’ compliance with employment eligibility verification laws.

What is Critical Infrastructure Employer?

The announcement seems to focus on employers associated with critical infrastructure.  What exactly does this mean?  The 1,000 businesses served with audit notices have been selected for inspection as a result of investigative leads and intelligence and because of the business’ connection to public safety and national security—for example, privately owned critical infrastructure and key resources.

What Would the Audits Focus On?

The audits will involve a comprehensive review of Form I-9s, which employers are required to complete and
retain for each individual hired in the United States. I-9 forms require employers to review and record each individual’s identity and work eligibility document(s) and determine whether the document(s) reasonably appear to be genuine and related to that specific individual.

What Are the I-9 Audit Procedures and Fines?

By law, employers are required to maintain for inspection original Forms I-9 for all current employees. In the case of former employees, retention of Forms I-9 are required for a period of at least three years from the date of hire or for one year after the employee is no longer employer, whichever is longer.  The authority of ICE to perform I-9 audits is specifically granted by law and penalties range from $375 to $16,000 per violation.  Penalties for failing to produce a Form I-9 range from $110 to $1,100 per violation.  For employers with many employees, the potential fine amount can be substantial.

The procedures for I-9 audits and the applicable fines can be found in this Form I-9 Inspection Overview document.

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FY2010 H-1B Numbers Update – 8,100 H-1B Visas Left (November 20, 2009)

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of November 20, 2009, USCIS has received approximately 56,900 H-1B petitions counting toward the 65,000 cap (an increase of 1,300 in the past week).   The updated count means that as of November 20, 2009, there were 8,100 H-1B visas left under this year’s H-1B quota and USCIS will continue to accept petitions subject to the general cap.

U.S. Masters Degrees Quota Reached

USCIS has received sufficient number of petitions for aliens with advanced degrees and as a result, USCIS has announced that the master’s cap for FY2010 has been met.  As of October 25, 2009, all FY2010 H-1B petitions for holders of U.S. advanced degrees will be counted towards the general cap of 65,000.

H-1B Quota Trends

The numbers, as reported over the past few weeks indicate that there was a notable increase in the H-1B filings.  As we previously reported, there was an increase of about 900 H-1B visas for each of the past four weeks, in addition to this week’s increase of 1,300 H-1B visas.  Based on our tracking of the H-1B numbers, this increase shows a notable weekly increase in the numbers of H-1B filings.  As a result, if the current trend remains, we estimate that the H-1B quota will be reached within 6-7 weeks.

If you are considering filing a cap-subject H-1B petition as part of the FY2010 quota, please contact us as soon as possible.

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Reminder – DV-2011 Green Card Lottery Closes on November 30

We would like to remind our clients and readers that the Department of State DV-2011 Diversity Visa (a.k.a. “green card”) lottery is currently open but is scheduled to close at noon, Eastern Standard Time (EST) (GMT-5), on Monday, November 30, 2009.

If you are planning to submit a DV-2011 entry, please do so well before the deadline because the website may become overloaded as the deadline approaches and some applicants may not be able to submit their entry in a timely manner.

More information about this year’s DV lottery.

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Foreign Students in U.S. Reach a Record Number

A recent report by Open Doors, a member of the Institute of International Education provides some numbers and statistics about the foreign students currently in the U.S.

According to the report, there are more than 670,000 foreign students in the U.S. – an increase of about 8% over the past academic year.  This rate of growth has not been seen since 1980s.

Distribution by Country

According to the report,

[There were] increases in foreign student enrollments from seven of the ten leading places of origin, and 19 of the top 25, with increases of more than 20% from four countries. India remains the leading place of origin for the eighth consecutive year, increasing by 9% to 103,260. Students from China, once again the second leading sender, increased 21% for a total of 98,510. South Korea, in third place, increased 9% to 75,065. Canada, the only non-Asian country in the top five, rose to fourth place with an increase of 2% to 29,697, surpassing Japan, now in fifth place after students declined for the fourth consecutive year, decreasing by 14% to 29,264. Taiwan remained in sixth place, with 28,065 students, a 3% decline. The number of students from Mexico, the seventh-leading sender, remained flat this year, with a total of 14,850.  

Distribution by University Location

Universities in California hosted the largest number of foreign students with 93,124, up 10%, followed by New York with 74,934, up 7%, and Texas with 58,188, up 12%. The New York City area continues to be the top city for international students, with 59,322 enrolled in area schools, up 8%. The Los Angeles metropolitan area is in second place with 42,897 international students, up 11%.

Distribution by Field of Study

The report also focused on the field of study.  Business and Management remains the most popular field of study for international students in the United States, increasing by 12% and comprising 21% percent of the total, followed by Engineering with an 11% increase and comprising 18% of the total. Math and Computer Science also increased significantly in 2008/09, up 10% from the prior year. After a 15% increase in 2007/08, Intensive English Language showed a slight decline in popularity, decreasing by 1%.

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FY2010 H-1B Numbers Update (November 13, 2009)

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of November 13, 2009, USCIS has received approximately 55,600 H-1B petitions counting toward the 65,000 cap (an increase of 900 in a week).   USCIS will continue to accept petitions subject to the general cap.

U.S. Masters Degrees Quota Reached

USCIS has received sufficient number of petitions for aliens with advanced degrees and as a result, USCIS has announced that the master’s cap for FY2010 has been met.  As of October 25, 2009, all FY2010 H-1B petitions for holders of U.S. advanced degrees will be counted towards the general cap of 65,000.

H-1B Quota Trends

The numbers, as reported over the past three weeks – as of October 30th, as of November 6th, and as of November 13th, indicate that there was a notable increase in the H-1B filings.  As we previously reported, there was an increase of about 6,100 in the number of H-1B petitions, between September 25, 2009 and October 25, 2009.  Similarly, there was an increase of 1,000 between October 25, 2009 and October 30, 2009, there was an increase of 900 between October 30, 2009, and November 6, 2009 and now there was another increase of 900 H-1B visas between November 7, 2009 and November 13, 2009.  Based on our tracking of the H-1B numbers, this increase shows a notable monthly increase in the numbers of H-1B filings.  As a result, if the current trend remains, we estimate that the H-1B quota will  be reached within 8-9 weeks.

If you are considering filing a cap-subject H-1B petition as part of the FY2010 quota, please contact us as soon as possible.

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CDC Reverses Course: No HPV Vaccine Required for Immigrants

In a shift in  policy, the CDC has announced that effective Decemeber 14, 2009, the HPV vaccine will no longer be required for immigrants applying for immigrant visa or adjusting their status from within the U.S.

Background About the Required Vaccinations

Under Section 212(a)(1)(A)(ii) of the Immigration and Nationality Act (INA), any alien who seeks admission into the United States as an immigrant, or who seeks adjustment of status to the status of an alien lawfully admitted for permanent residence, is inadmissible into the United States if the alien is unable to present documentation of having received vaccination against “vaccine-preventable diseases, which shall include at least the following diseases: Mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, Haemophilus influenzae type B, and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee on Immunization Practices.”  Current guidance by the Center of Disease Control (“CDC”) includes the HPV vaccin to the list of vaccine-preventable diseases and is therefore required by girls and women between the ages of 11 and 26 who are seeking to become legal permanent US residents.  Those within this age range were required to get at least the first dose of the HPV vaccine, which protects against some strains of the virus blamed for cervical cancer. Additionally, the Gardasil shot was added to the vaccine list for immigrants in July 2008 by the CDC.

HPV Vaccine Requirement Controversy 

While HPV remains the single most widespread sexually transmitted disease in the country, only a small percentage of those infected with the virus will go on to develop life-threatening diseases like cervical cancer. The cost-effectiveness of the Gardasil vaccine (the HPV vaccine) remains largely in debate especially when young girls coming from a variety of foreign nationalities and cultures have to be subjected to medical exam and vaccination.  Additionally, the price of the vaccine, which is administered in three separate shots, can cost anywhere from $400 to $1000  (and the cost is often not reimbursable by insurance companies).

New CDC Guidance

Accordingly, CDC has announced a revised rule which becomes effective December 14, 2009, and under which the HPV vaccine will not be required for aliens seeking admission as an immigrant or seeking adjustment of status to that of an alien lawfully admitted for permanent residence.

In providing explanation to this change in policy, CDC recognized that genital infection with HPV is an extremely common infection due to its efficient transmission via sexual intercourse. There are approximately 6 million incident infections occurring annually in the United States. Over half of sexually active men and women will develop HPV infection at some point in their lives and 15% of all Americans have current infection with HPV.

Although there are millions of HPV infections annually, it is very difficult to distinguish those cases which resolve from those (about 10,000 per year) cases which result in cervical cancer.  Therefore, while HPV may be an age-appropriate vaccine for an immigrant applicant, HPV neither causes outbreaks nor is it associated with outbreaks (per explanation in the background section).  Further, HPV has not been eliminated, nor is in the process of elimination, in the United States. Therefore, because HPV does not meet the adopted criteria, it will not be a required vaccine for immigrant and adjustment of status to permanent residence applicants.

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FY2010 H-1B Numbers Update (November 6, 2009)

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of November 6, 2009, USCIS has received approximately 54,700 H-1B petitions counting toward the 65,000 cap (an increase of 900 in a week).   USCIS will continue to accept petitions subject to the general cap.

U.S. Masters Degrees Quota Reached

As we mentioned in last week’s H-1B visa numbers report, USCIS has received sufficient number of petitions for aliens with advanced degrees and as a result, USCIS has announced that the master’s cap for FY2010 has been met.  As of October 25, 2009, all FY2010 H-1B petitions for holders of U.S. advanced degrees will be counted towards the general cap of 65,000.

H-1B Quota Trends

The numbers, as reported over the past two weeks – as of October 30th and as of November 6th, indicate that there was a notable increase.  As we previously reported, there was an increase of about 6,100 in the number of H-1B petitions, between September 25, 2009 and October 25, 2009.  Similarly, there was an increase of 1,000 between October 25, 2009 and October 30, 2009 and there was an increase of 900 between October 30, 2009, and November 6, 2009.  Based on our tracking of the H-1B numbers, this increase shows a notable monthly increase in the numbers of H-1B filings.  As a result, if the current trend remains, we estimate that the H-1B quota will  be reached within 9-10 weeks.

If you are considering filing a cap-subject H-1B petition as part of the FY2010 quota, please contact us as soon as possible.

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Secretary Napolitano “Forecasts” Immigration Reform in 2010

In an article today, the Washington Post reports on a speech made by the Homeland Secretary Janet Napolitano and her prediction that in “[t]he first part of 2010, we will see legislation beginning to move.”

The Post article is based on a speech made by Secretary Napolitano earlier today.  She claimed that the Obama administration has been doing much to strengthen the borders and this gives it an opportunity to move forward with a comprehensive immigration reform in early 2010.   According to the Post,

In recent years, the U.S. government has erected more than 600 miles of fencing and pedestrian barriers on the 2,000 mile border with Mexico, and more than doubled the ranks of the U.S. Border Patrol, to 20,000 officers, Napolitano said. Meanwhile, due to a shrinking job market and increased enforcement, Border Patrol arrests last year were less than half the 2005 level of 1.2 million.

While talk of the possibility of immigration reform may be welcome by some groups who have been pushing for such reform in a long time, the Obama administration and Congress have a very dense agenda over the next few months and congressional experts believe that there may not be sufficient time and/or political capital to tackle immigration reform before next year’s mid-term elections.

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USCIS to Temporarily Accept H-1B Filings Without Certified LCA

Two weeks ago we wrote about the USCIS Ombudsman recommendation to modify the LCA/H-1B filing process to avoid negative consequences associated with delayed LCAs.

As a response, USCIS just announced a temporary change in policy pursuant to which it will temporarily accept H-1B petitions filed without Labor Conditions Applications (LCA) that have been certified by the Department of Labor.  USCIS will begin to accept H-1B petitions filed with uncertified LCAs for a 120-day period, commencing November 5, 2009 and through March 4, 2010.  However, USCIS will only accept such H-1B petitions if they are filed at least 7 calendar days after the LCAs were filed with DOL and include evidence of these filings. The only acceptable evidence of filing is a copy of DOL’s email giving notice of receipt of the LCA.

This does not mean that H-1Bs will  be approved without certified LCAs.   USCIS will still require certified LCA to accompany the H-1B petition before it can be approved.   As a result, petitioners who seek to take advantage of this temporary flexibility in the normal filing procedures for H-1B petitions must wait until they receive a request for evidence (RFE) before they submit the DOL-certified LCA to USCIS in support of the H-1B petition. USCIS will give petitioners a period of 30 calendar days within which they must send in a DOL certified LCA in response to the RFE. USCIS will only approve H-1B petitions that include certified LCAs.

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DOL Performance Report for 2009Q2

The Department of Labor (”DOL”) has released a quarterly report covering the second quarter of 2009 (ending on June 31, 2009) which report indicates the performance measurements for four categories of labor certifications performed by DOL:

H-1B Labor Condition Applications (”LCA”).  The target performance rate set by DOL is seven (business) days.  For the second quarter, the performance rate was 99.11% of the goal, meaning that DOL responded to nearly all  LCA applications within the mandatory seven days.  This however, reflects statistics from the old, pre-iCert, system which used to provide instant LCA certification.  Under the new iCert LCA system, the LCAs are reviewed manually and from our experience an LCA takes up to 7 business days to certify.  The iCert system went into effect on June 30, 2009.

PERM Labor Certifications.  The target performance rate is review within six months of filing of PERM.  Unfortunately, the reported rate of PERM certifications which fell within the target of six months is only 17%.  Although this is a slight increase compared to 2009Q1 performance rate of 11%, it is still a very low performance rate and confirms our experience from earlier this year that DOL takes upward of 9 months to certify PERM applications.  DOL’s explanation is that such increased processing time is due to increased integrity checks in light of declining economy and continued PERM filings for positions where there are U.S. workers available (for example, financial services).  DOL plans to institute a new electronic filing system for PERM labor certifications around July 1, 2010.

H-2A and H-2BThe performance target for H-2A is 15 business days while the performance target for H-2B is 60 days.  The on-target performance was 54% (increase from last quarter’s 38%) for H-2A and 87% (increase from last quarter’s 31%) for H-2B.  An important note is that the H-2B regulations were revised as of January 2009 and the numbers do not reflect properly the new H-2B rules.  It should be also noted that the H-2B program performance incrase is a seasonal occurrence and even taking into consideration this performance improvement, the overall performance is under the annual target.

Conclusion.  There seems to be increased delays overall in some categories.  Most troubling are the significant PERM delays.  We have written previously about the delays in PERM processing (which seem to be improving slightly) but  the PERM performance chart for the past eight quarters suggests that return to 6-month processing PERM is far.  Additionally, LCAs for H-1B applications now take up to seven business days which adds a week of processing to all H-1B applications.  For employers who are not part of the iCert system, there may be an additional 2-5 days iCert employer verification period.   As a result, we urge our clients to factor this processing time when planning business and employment decisions with respect to H-1B workers.

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