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The Immigration Law Blog has moved

March 11, 2015

The Davis Brown Immigration Law Blog has moved. Please visit the blog at http://www.davisbrownlaw.com/iowa-immigration-law-blog.aspx.

Family-Based Immigrant Visa Backlogs Continue to Increase

February 22, 2011

Close family members of green card holders and U.S. citizens, who are already used to the long wait times for their visas, will now have to wait even longer. The March 2011 Visa Bulletin, the official Department of State publication establishing visa availability and cut-off dates, reports that heavy demand for visa numbers has required categories to continue to retrogress. The Family F2A category (spouses and children of lawful permanent residents) has been particularly impacted, with a cut-off date of January 1, 2007 for all countries except Mexico (with a cut-off date is January 1, 2006). Compare these dates to the cut-off in December 2010, when the F2A category was at August 1, 2010 for all countries, expect Mexico.

On the employment-based side, no significant changes are reported in the March Visa Bulletin, with numbers slowly inching forward for most categories. Still, EB-3 professional visas remain seriously backlogged — more than five to eight years — and EB-2 master-level visas remain backlogged for more than five years for foreign nationals from India and China.

Only Congress has the authority to reduce these long wait lines through ameliorative legislation.

USCIS Announces Combined EAD/Advance Parole Card for I-485 Adjustment Applicants

February 21, 2011

U.S. Citizenship and Immigration Services (USCIS) has announced that it is now issuing a single, dual-purpose card combining the employment authorization document (EAD) and advance parole travel authorization (AP) for certain applicants who have pending family- or employment-based adjustment of status applications (Form I-485). This is welcome news and a significant improvement from the current practice of issuing the two documents separately — often at different times. For many adjustment applicants, the inability to plan travel abroad during the pendency of their advance parole application produces great consternation. Now, adjustment applicants can plan travel with more predictability because issuance of the new card presumably will be governed by the 90-day regulatory period for employment authorization documents (EADs). Under current regulations, EADs must be issued within 90 days from the time of filing, but no corresponding regulation mandates the issuance of advance parole.

Under this new policy, applicants may receive the combined card when they file both an application for employment authorization (Form I-765) and an application for travel document (Form I-131). Both forms must be filed at the same time to receive the new card.

USCIS advises that for individual who already have an EAD and a separate travel document with a different expiration date, applicants may receive the new card ONLY IF 1) both documents have less than 120 days of validity left OR 2) if the EAD has less than 120 days of validity left and the advance parole document is for a single entry only. Those wishing to apply for the new card are advised to wait until they are within 120 days of the expiration of their current work authorization card. The validity period for the combined card will begin on the date both applications are adjudicated. The fee for the card, if applied for separately from the adjustment application, is $740. Not all applicants are eligible for the combined card, and USCIS advises that it will continue to issue separate EAD and advance parole documents as warranted.

As with the current advance parole document, obtaining a combined advance parole and employment authorization card allows an adjustment applicant to travel abroad and return to the United States without abandoning his or her pending adjustment application. Upon returning to the United States, the individual must present the card to request parole through the port-of-entry. The decision to parole the individual is made at the port-of-entry.

The new card will look similar to the current EAD but will include the text, “Serves as I-512 Advance Parole.” The card is obviously more secure and more durable than the paper advance parole document currently in use.

H-1B Cap Reached

February 18, 2011

On January 26, USCIS announced that it had received a sufficient number of cap-subject H-1B temporary non-immigrant petitions for employment commencing during the current fiscal year (October 1, 2010 to September 30, 2011). Cap-subject employers seeking to employ new professional workers now must wait until April 1 of this year to file new petitions for employment commencing October 1, 2011.

Under the immigration laws, visas for professional specialty workers are capped at 65,000 per fiscal year. Another 20,000 slots are available to workers with advanced degrees (masters or higher) obtained at U.S. institutions of higher education. Of the total 85,000 H-1B visas available, some 6,800 visas are set aside each year for nationals of Chile and Singapore (a maximum of 1,400 for Chile and 5,400 for Singapore). While not all H-1B applicants are subject to the cap, the vast majority in business are subject.

For the second year in a row, H-1Bs remained available for some 9–10 months after the U.S. government began accepting applications. Even in 2009, with the recession beginning to take hold, employers snapped up the 65,000 visas available in just one day, as they had for the past several years. While the weakened economy no doubt has played a significant role in lessening the demand for the once-coveted visa, more recently companies have become increasingly reluctant to petition for foreign workers in the face of rising costs and greater governmental scrutiny. In the past two years, several disincentives for H-1B visas were put into place. These include the USCIS:

· appreciably altering its definition of what constitutes a valid employer-employee relationship

· adding fees for H-1B “dependent employers”

· requiring companies that received TARP federal bailout funds to prove they have tried to recruit US workers at prevailing wages and that foreigners are not replacing US citizens

· effective February 20, requiring that H-1B employers attest that they are in compliance with the Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR) regarding the release of controlled technology or data. (We will post more information on this issue soon)

Even though the cap has been reached for this fiscal year, some H-1B petitions can still be filed because they are exempt from the numerical cap. These include petitions for physicians with certain J waivers, as well as petitions filed by institutions of higher education or related or affiliated nonprofit entities, by nonprofit research organizations, or by governmental research organizations. Also, petitions filed on behalf of current H-1B workers who have previously been counted against the cap are not counted again. This means H-1B petitions for extension of status, change of employment, or concurrent employment may be submitted at any time.

PERM Labor Certification Program

December 17, 2010

Most foreign nationals who wish to be eligible for employment-based green cards must do so through the PERM labor certification process, by having their employer file a labor certification application with the Department of Labor (DOL). The PERM application certifies that there are no U.S. workers who are willing, able, or available to fill a position offered by a U.S. employer, and the employer must undertake extensive recruitment as documentation of this fact. The PERM application also certifies that the employer will pay the sponsored employee the prevailing wage for the job. Once approved or “certified,” the U.S. Employer can petition USCIS for the foreign national’s eligibility under one of the employment-based preference categories by filing an I-140 immigrant visa petition.

The largely automated PERM program was introduced in March 2005 and touted by DOL as a new and retooled expedited labor certification process through which employers could begin their sponsorship of valued employees. Nevertheless, the PERM process remains laborious and complicated.

Over the past five years through the issuance of FAQs — DOL’s 11th and latest was issued in August — DOL has retroactively applied new rules to old cases and used the informal FAQ process to create or change its requirements. By forgoing the more formal route of promulgating regulations, which would afford public comment and mandate government consideration, the program remains riddled with deficiencies and uncertainties for employers. Moreover, the application takes about three to six months to prepare, plus at least a few months for processing by DOL (from online submission to adjudication). And, if DOL requests that the employer’s recruitment and other records be audited, another 15 months will be tacked on for a DOL audit response. Beyond the changing rules and lengthy processing times, perhaps the most disheartening aspect of the process is how unforgiving it is — even the tiniest error on the PERM application can completely derail a case.

So why do employers and their employees bother? Despite these and other hurdles inherent in the PERM labor certification process, this route to permanent residence is often the only viable option for many needed employees. And, the process eventually works: long-time nonimmigrant employees and their families can become green card holders (and eventually citizens) of the United States. However, employers who anticipate long-term sponsorship of current employees must take particular care to ensure consistency throughout what can be a multi-process, nine- to ten-year immigration odyssey. This can be difficult, especially when the immigration laws are not consistent. Employers also must take care to timely file their PERM applications, especially when their H-1B employees are approaching their final year of their visa status. Indeed, long-term immigration strategies must be considered when hiring H‑1B workers.

Until this system changes, employers and their immigration counsel should actively review pending cases to determine whether additional documentation is required to meet ever-changing DOL requirements. Counsel and employers also are advised to determine from the start the best short- and long-term strategies for their employees.

“Deemed Export” Attestation by Employers To Be Required on Certain I-129 Petitions

December 16, 2010

Beginning December 23, 2010, a new “deemed export” attestation will be required on Form I-129 nonimmigrant visa petitions for H-1B, H-1B1 (Chile/Singapore), L-1, and O‑1A petitioners. The Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) require U.S. persons to seek and receive authorization from the U.S. government before releasing controlled technology or technical data to foreign persons in the United States. Under both the EAR and the ITAR, release of such information to a foreign national — even by an employer — is deemed to be an export to that person’s country or countries of nationality. One implication of this rule is that a U.S. company must seek and receive a license from the U.S. government before it releases controlled technology or technical data to its nonimmigrant workers employed as H-1B, L-1, or O-1A beneficiaries. While these licensing requirements will affect only a small percentage of employer-petitioners because most types of technology are not controlled for export or release to foreign persons, a new certification attestation will be included on Form I-129. Most employers will simply certify that no license is required, but if an export license is required, then the employer must further certify that it will not release or otherwise provide access to controlled technology or technical data to the foreign national until it has received the required governmental authorization to do so.

For many years now, companies as well as universities have been required to comply with export control laws, but compliance is generally not managed by the same units that prepare I-129 petitions. Even though many activities at companies and universities can benefit from several exclusions to the export license requirement (e.g., the “basic research” exemption), to properly complete the new deemed export attestation on Form I‑129, the petitioner would first have to inquire with the appropriate office at his or her company or university that handles export control issues. It would behoove these institutions to develop an institutional protocol for completing the form and assuring the signatory of the I-129 that their attestation is true and correct. Employers considering sponsoring foreign workers should familiarize themselves with these laws and discuss with immigration counsel their impact on future visa petitions.

The technology and technical data that are controlled for release to foreign persons are identified on the EAR’s Commerce Control List (CCL) (generally “dual use” items) and the ITAR’s U.S. Munitions List (USML) (generally defense-related articles). The CCL is found at www.access.gpo.gov/bis/ear/ear_data.html#ccl; the USML at www.pmddtc.state.gov/regulations_laws/itar.html. Additional information about applying for the appropriate licenses can be found at www.bis.doc.gov/deemedexports and www.pmddtc.state.gov/faqs/license_foreignpersons.html.

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H-1B Visas Still Available

December 15, 2010

Following years of extremely high demand, 2010 is proving to be a very slow year for H‑1B visa petitions. This is good news for businesses hoping to add foreign professional workers over the next several months and their prospective employees.

As of December 10, the U.S. Citizenship and Immigration Services (USCIS) reports having accepted 52,400 H-1B visa petitions out of the 65,000 visas that are available each year. Another 900 visas are still available for those foreign nationals who are eligible to file under the “master’s cap,” which provides for an additional 20,000 visa numbers annually. For several years before the 2008 economic downturn, all H-1B visa numbers were exhausted the first day they became available. In 2009, the cap was reached on December 24.

If you are considering sponsoring a foreign worker in the near future, now is a good time to do so while visa numbers remain available. Once the cap is reached for FY 2011, employer-petitioners and their prospective employees will have to wait until October 1, 2011 to commence new H-1B work (although these petitions can be filed on April 1, 2011).

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DREAM Act – Still Alive

December 14, 2010

As we go to press (December 14, 2010), the DREAM Act, a bill that would offer a path to citizenship for some undocumented immigrants who entered the United States as children, remains alive in the 111th Congress. The DREAM Act is still expected to be considered by Congress before it adjourns and the session is ended. If passage is unsuccessful, the bill must be reintroduced and considered anew in the 112th Congress come January. The following is the status of this ameliorative immigration legislation.

On December 8, 2010, the U.S. House of Representatives passed by a vote of 216-198 the Development, Relief and Education for Alien Minors, or DREAM Act. Senator Reid, who had vowed to bring up the measure during his recent re-election campaign, worked closely with the House leadership to determine which chamber should consider DREAM first. It was decided that the chances for overall success were best if the House considered its bill first. Their strategy paid off. The Senate was set to consider its version the next day, December 9th, but Reid and others quickly realized they did not have the necessary votes to overcome an important procedural vote and pulled the Senate bill from consideration. As Majority Leader in the Senate, he had the power to do so. Senator Reid next undertook several strategic procedural moves, substituting the House bill in the Senate and postponing consideration until more support could be galvanized. The legislation is now expected to be considered later this week. It must pass the Senate and be signed by President Obama before it becomes law.

The DREAM Act would offer a six-year, conditional status to eligible children under the age of 16 who entered the U.S. illegally but have lived here for at least five years. Other requirements include graduating from high school or obtaining a General Education Development (GED) diploma and demonstrating “good moral character.” Before moving forward, students in conditional status would need to pass criminal background checks and attend college or serve in the military for at least two years. The bill also imposes stiff filing fees at the time of application. Proponents, including President Obama and Democratic leaders, say the bill offers legal standing to young people brought to the United States who have bettered themselves and served their new country, while opponents claim it is a form of amnesty for illegal immigrants.

Shortly after the House passed the DREAM Act, President Obama issued a statement congratulating the House for its work and urging the Senate to do the same “so that I can sign it into law as soon as possible.”

The Senate, by pulling its bill so that it can take up the version passed by the House, now has a simpler path to victory; it can pass the House-passed bill and immediately send it to the President for signature. By contrast, if the Senate were to consider and pass its own version, a potentially lengthy conference committee process reconciling the two bills would have been required, as well as another round of voting.

The momentum from the House vote, the Senate vote on tax cuts, and the more economically palatable version of DREAM Act introduced by the House could help achieve success for a piece of legislation that was first introduced 10 years ago.

Stay tuned.

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H-1B Slots Still Available

November 2, 2010

H-1B status is a temporary, work-authorized status for individuals working in “specialty occupations”, which are occupations that require, at minimum, a bachelor’s degree in a specialized area. The government limits the number of new H-1B approvals to 65,000 per fiscal year (and makes an additional 20,000 slots available to individuals with a master’s or higher degree from a U.S. institution of higher education). This quota is referred to as the “H-1B cap” and, in most circumstances, only applies to individuals who are initially seeking H-1B status (it does not apply – in most instances – to individuals who have been in H-1B status and are seeking an extension or transfer to another employer). In addition, some employers are exempt from this H-1B cap (such as institutions of higher education, nonprofit research organizations, and government research organizations).

USCIS indicated that as of October 29, 2010, 45,600 H-1B cap-subject petitions had been receipted (and an additional 16,700 H-1B petitions for foreign nationals with advanced degrees). Therefore, there are still H-1B slots available for this fiscal year. Since it is impossible to predict how fast the remaining H-1B slots will be available, if you are interested in sponsoring any new H-1B employees, please contact us as soon as possible.

Enforcement Update: Abercrombie & Fitch Fined Over $1 Million in I-9 Violations and ICE Secure Communities Program

October 27, 2010

Increased enforcement initiatives show no sign of abating anytime soon. There have been a record number of deportations in 2009 and the government is on track to deport more than 400,000 individuals in calendar year 2010. Enforcement continues to focus on two prongs: employers who knowingly hire undocumented workers and stepped-up enforcement against gang-related violence and felons.

In recent, high-profile cases, ICE (Immigration and Customs Enforcement) has shown that it intends to continue investigating and prosecuting companies that knowingly hire undocumented workers. Abercrombie & Fitch recently agreed to a settlement of more than $1,000,000 for numerous I-9 compliance violations for its retail stores in Michigan. More employer audits are on the way. In mid-September, 500 “Notices of Inspection” (NOIs) were served to employers in one week and the scope of documentation requested or subpoenaed is expanding. A recent ICE Notice and subpoena requested 11 different immigration and employment documents over a three-year inspection period, including lists of current and terminated employees, copies of quarterly wage and hour reports, tax statements, company hiring policy, and a list of all contractors, recruiters, and temporary employment agencies. Meanwhile, in Los Angeles, the owner and top executives of a metal casting company were arrested and charged with federal crimes for their role in encouraging the acquisition of fake Social Security numbers. The current administration has made also stepped-up enforcement against criminal foreigners through a series of raids, including those on known gangs in major cities across the U.S.

In a related development, the ICE Secure Communities Program, which encourages local law enforcement agencies to cross-check fingerprints and biometrics against a federal database of immigration statuses, continues to expand quickly across the country. Nearly 700 jurisdictions in 32 states have signed on to the program. Secure Communities, however, has come under fire in recent weeks as controversy has arisen over the ability of communities to opt-out of the program. Since its introduction two years ago, the program was widely thought to be voluntary. However, when Washington, DC, Arlington (VA), and San Francisco recently attempted to opt-out, ICE replied that it was not possible to do so. Since the program relies only on state police to share fingerprint information with the FBI, local communities’ choices on whether to participate is essentially moot because they cannot control what state police choose to do with the biometric information. Sounds like this issue has the makings for legal and constitutional challenges. Stay tuned.

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