Archive for August, 2009

E-Verify Going into Effect for Federal Contractors Sept. 8

August 31, 2009

The lawsuit against the federal government filed to stop the implementation of e-Verify requirements for federal contractors was dismissed late last week.  Therefore, the requirement that all federal contractors register for e-Verify for contracts entered into after the effective date (Sept. 8, 2009) will go into effect.

Please contact us if you would like assistance in implementing this rule.

Also, the government is providing free webinars on this subject (FAR – Federal Acquisition Regulations – e-Verify).  See the following link to sign up for a webinar.

ICE Launches I-9 Audits

August 24, 2009

I could not wait to September to send the September update – so much is happening in Immigration Law lately.  Not too much of it is good . . .

H-1B Numbers Hold Out, but DOL Bungles LCAs

As you recall, every fiscal year 65,000 “cap-subject” H-1Bs are available, plus 20,000 for U.S. advanced degree holders.  This fiscal year (2009/10), fewer than 45,000 cap-subject H-1Bs have been received, leaving 20,000 still available.  This count has not changed much since April when the filing period started.  Obviously, the economy has affected H-1B filings as expected.

However, this is good news for those who now have jobs for H-1B workers – you can still file for them for any job starting October 1, 2009 or later.

The bad news?  Dept. of Labor, which is charged with administering the labor condition application program, has implemented a new “iCert” program.  Rather than the fabulous electronic filing system that we had – where LCAs were approved in a matter of seconds if completed correctly – we now have a dysfunctional system that is delaying H-1B filings for weeks.

The point of the new system was to allow for human review of the LCAs to prevent fraud.  We knew this would take longer, but no one expected the lack of functionality we are experiencing.

Because of a technical problem, the iCert system cannot verify tax ID numbers of many companies (even large, well-established companies).  This results in a denial of the LCA.  We then have to file information to verify the tax ID number with DOL.  Once they verify this, we have to RE-FILE the LCA – they will not just approve the wrongly-denied one.  This process can take days or weeks.

Bottom line:  If your company anticipates filing H-1Bs in the future, we suggest that you FILE LCAs NOW for expected positions.  Just like in the “good old days” of manually-filed LCAs, there is no need to have a person identified for an LCA, and you can indicate a range of salaries and designate multiple positions.  The LCA is valid for up to 3 years (as you specify).

If you have a valid LCA approved for a position, you can then plug the H-1B beneficiary into the approved LCA (and of course keep track of how many positions have been used on an LCA).

We would be happy to help you figure out a strategy that can work for your company so that a critical H-1B hire will not be delayed.

More H-1B Woe . . .

Just a head’s up to those filing H-1Bs:  The Immigration Service has an RFE problem this year.  “RFEs” are “requests for evidence”.  They are issued when the examiner believes that more information is needed to properly decide the case.  Usually we do not receive them for common H-1B applications, such as for computer professionals.  But this year, the majority of cases filed have received RFEs, and we have heard the same news from attorneys throughout the U.S.  We can overcome the RFEs but it has added to the H-1B cost and hassle for many clients.  I am involved in liaison efforts with the government through the American Immigration Lawyers Association, and we are working to help resolve this issue.  We are also adjusting our filing packets to make even more abundantly clear that the H-1B should be approved the first time.  But even so, this is not guarantee that an RFE won’t be issued.

R-1 Premium Processing Resumed

R-1 petitions for religious workers and ministers may now be filed with the additional $1,000 premium processing fee for adjudication in 15 calendar days IF the employer has been subjected to a site visit inspection previously.

Please keep in mind that the religious worker category is sun-setting Sept. 30, but we hope it will be extended as in years past. The religious minister category is permanent in the law.

EB Priority Dates

Per the August 2009 Visa Bulletin, the cut-off date for both the China-mainland born and India EB-2 categories is October 1, 2003, almost a four-year jump from last month.  We are following up on any cases that have now become current so that our clients have the best chance of being approved while the numbers are available.

The third preference and “other workers” employment-based categories remain Unavailable; all other categories are Current. EB-3 visa numbers worldwide and for India, China, and Mexico are expected to remain unavailable for the remainder of this fiscal year (which ends Sept. 30). The EB-3 category for India could remain unavailable indefinitely.

Last month the Dept. of State announced that the India and China EB-2 categories could become unavailable in August or September and remain unavailable indefinitely. DOS explained that there is a backlog of at least 25,000 India EB-2 cases awaiting visa numbers. Without legislative relief, the waiting time for Indian EB-2 applicants might be measured in years or even decades, according to DOS.

Demand for EB-4 (religious workers and ministers) is also high, possibly requiring a the establishment of a cut-off date, or the category becoming “Unavailable” for September. It is expected to return to “Current” in October, the first month of the new fiscal year.

This news is disturbing for applicants and highlights the urgent need for immigration reform.

Federal Contractors

It appears the Obama Administration intends to fully implement the e-Verify rule for federal contractors.  The target effective date is September 8. As you may recall, this rule was challenged in court, but so far, no injunction against implementation has been issued.

This rule affects companies who are contractors with the federal government under the Federal Acquisition Rules (FAR).  Language requiring the contractor to use e-Verify on all new and existing employees who will be working directly on a federal contract will be inserted into contracts after the effective date.

A phase-in period is allowed for initial implementation.  We can provide detailed instructions if this rule will affect your company.

No-Match Rule to be Rescinded

Back in the good news department, the Obama Administration is giving up on ICE “no-match” regulation.  The no-match saga began when ICE (the immigration enforcement agency) figured out that the Social Security Administration was sending letters to employers who were reporting wages for SSNs that did not match SSA records.  The reason was to clear up SSA records and attribute withholdings to the right person.

ICE decided this would be a good way to catch knowing hire violations.  So they issued a regulation providing strict and, in my opinion, unreasonable guidelines for companies to address the immigration status questions raised when a no-match letter was received.

Much push-back and federal litigation ensued.  After several rounds by the Bush Administration, the Obama Administration finally decided it was a losing battle. No word whether SSA will begin to issue no-match letters again.

If they do, please remember that a no-match letter still has immigration consequences.  Just because ICE doesn’t have a formal rule does not mean they will disregard how a company responds to a no-match letter.  If you receive one, please contact us to help you work through it to avoid later ICE problems.

New Visa Application Form Being Implemented

The Dept. of State is phasing-in an electronic visa application form, DS-160.  This form will be actually filed electronically with the consular post, rather than the current version (DS-156 and others) that is bar-coded electronically, but still must be physically filed with the consular post.

The form is currently required at 12 posts (some Mexican and Canadian posts, Dublin, Hamilton, Hong Kong, and Tripoli) and will soon be required at others (other Mexican posts and Australia to start).  Phase-in will likely be slow due to DOS server capacity.

VWP Emergency or Temporary Passports must be Electronic

DOS also recently announced that visitors allowed to enter without visas through the “visa waiver” program must have an electronic passport even if the passport is an emergency or temporary one.  An electronic passport is one that has an embedded computer chip that contains biometric information.

Travelers without an electronic passport may be subject to additional inspection or denied entry.  Medical and other emergency situations will be considered.

Whew! That is a big update. Please contact us if we can be of assistance.

H-2B CAP REACHED 2 MONTHS BEFORE FISCAL YEAR BEGINS

August 15, 2009

USCIS announced July 29 that it would no longer accept applications for H-2B (temporary seasonal non-agricultural) workers that request start dates before April 1, 2009.  The federal fiscal year starts October 1, and in the past, the quota has lasted at least until the start of the year.  This shows the increasing demand for H-2B workers and the increasingly inadequate supply of these visas, which are capped at 66,000/year but divided into two application periods so that applicants in warm-weather States do not get them all.

NVC to Accept Online Fee Payment

The National Visa Center has, beginning with fee letters dated on or after August 11, 2008, begun to accept online payments in connection with NVC processing. For details, choose “Online payment” from the NVC web page athttp://www.travel.state.gov/visa/immigrants/info/info_1335.html. We do not expect online payment to be acceptable for fees paid directly to a consular post.  The NVC is a the processing center that prepares immigrant cases for visa issuance abroad if the applicant is not yet in the United States or otherwise is not eligible for adjustment of status. We will work with you to determine if online payment is the best option for your case.

PIMS (Petition Information Management Service) Now Functioning – Changes to non-immigrant visa issuance system

PIMS is an electronic information system that allows the Dept. of State consular post to check whether a visa applicant has in fact been issued an H, L, O, P, or Q classification from USCIS in the States.  Consular posts are now to rely solely on PIMS rather than require or act on the original USCIS approval notice (I-797).  PIMS is maintained by the Kentucky Consular Center (KCC) based on information sent by USCIS Service Centers.

Of course, there are some problems with the transition.  First, USCIS has not routinely sent all approvals to the KCC.  Until recently, only those with the “consular processing” box checked on the application were sent.  Now, all are supposed to be sent, but it is not happening in all cases.  We are taking steps to increase the chances of the approvals being sent to KCC on cases we file.

If the approval is not in PIMS, then the visa applicant must wait until the consular officer can confirm that the approval is valid. This is done via email to KCC.  It typically takes only a few days, but the delay can be longer.  IT IS IMPORTANT TO PLAN FOR SUCH DELAY (OR FOR SECURITY CHECK DELAYS, WHICH CAN ALSO OCCUR WITHOUT WARNING) when making travel plans to obtain a visa.

Second, some consular posts still list I-797 as a required document or require it to make an appointment.  We recommend that all visa applicants still carry the original I-797, as it also may be needed at the port of entry for CBP (Customs and Border Protection) inspection.

The good news is that if the original I-797 is lost or forgotten, this should not prevent visa issuance.  Posts are to rely solely on PIMS, and not deny an applicant who does not have an I-797.

TPS Extension for Sudan

Temporary Protected Status for nationals of Sudan has been extended from Nov. 2, 2008, through May 2, 2010.  Work permission is automatically extended through May 2, 2009.  All TPS beneficiaries from Sudan must re-register for TPS (and apply for work authorization if desired) between August 14 and October 14, 2008).

ESTA website live – but NOT required until January 1, 2009

ESTA, the “Electronic System for Travel Authorization” is expected to become mandatory on January 1, 2009.  This system will require travelers who use the “visa waiver” program (those from countries where a visa is not required for business or tourist travel) to register online for pre-approval for travel.  If denied pre-approval, the applicant will be required to obtain a visa.  We will update you more as ESTA becomes operational. Meanwhile, you may view the website at https://esta.cbp.dhs.gov/esta/esta.html?_flowExecutionKey=_c9B80F42F-C2B9-1558-FE89-59D5FB8E6DE2_k83137F9A-50C3-536A-0479-619DA19B2166
Passport Card is a “List A” Document for I-9s

The Dept. of State is now issuing “passport cards” as an alternative to traditional passports for use in travel to Canada, Mexico, Bermuda and the Carribean at sea or land ports of entry only (you cannot use them for air travel).  USCIS announced that passport cards may be used by employment verification as a “List A” document – meaning the presentation of a passport card will authorize a person to work in the United States, as that person is a U.S. citizen.


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