Business Immigration Monthly - December 2009

Date: 12/1/2009
 Business Immigration Monthly for December 2009

ICE Commences I-9 Audits of More than 1,000 Companies

Immigration and Customs Enforcement (ICE) has issued more than 1,000 new I-9 audit notices to companies across the country. This is in addition to the more than 650 I-9 audit notices issued by ICE in July 2009. ICE has indicated that the new round of audits are targeting companies primarily involved in "critical infrastructure" areas which are related to national security and public safety. According to one ICE representative, "critical infrastructure" companies include agricultural processors, food service companies, transportation companies, power plant companies, and defense industry companies that have government contracts of at least $100,000.

The newly issued notices appear to be requesting numerous additional documents that were not previously requested during I-9 audits. In the past, the I-9 audits would request employers to provide original I-9 forms, payroll records and federal and state wage taxing tax reporting forms. However, the new audit notices are also requesting information about independent contractors, Social Security Administration (SSA) "No Match" letters, copies of petitions filed with the U.S. Citizenship and Immigration Services (USCIS) and the Department of Labor (DOL), corporate documents and the company's policies regarding the I-9 process. ICE is still requiring companies to provide this requested information and documentation within three business days of the company's receipt of the subpoena from ICE. Although ICE has not released a list of the company's that are being audited, several online new sources have reported that at least 160 of the companies are located in Texas, at least 150 of the companies are located in California and at least 24 of the companies are located in Illinois.

Additional information about ICE's continued audits of the I-9 program will be contained in our firm's future Immigration Updates when it becomes available.

SEVP Releases Guidance about the Implementation of the Military Accessions Vital to the National Interest (MAVNI) Program

ICE's Student Exchange Visitor Program (SEVP) recently issued policy guidance about the implementation of the Military Accessions Vital to the National Interest (MAVNI) program. SEVP provided this guidance to schools with students who are enlisting in the U.S. military through the MAVNI program.

The MAVNI program allows certain non-citizens who are legally present in the United States to join the military and apply immediately for U.S. citizenship without first obtaining a lawful permanent residence. The MAVNI program allows legal foreign nationals holding critical skills (i.e. physicians, nurses and certain experts in languages with associated cultural backgrounds) to enlist for at least four years of contractual active duty as a language recruit or a minimum of three years of active duty (or six years in the U.S. army reserve) as a health care professional. The foreign national must also have been in valid nonimmigrant status for at least two years immediately prior to the enlistment date and have not had any single absence from the United States of more than 90 days during the two year period. The Army and Navy are currently participating in the MAVNI program. However, the air force has also been allocated slots in the program and is currently in the process of recruiting. The program is limited to 1,000 and set to expire at the end of December 2009. However, the Secretary of Defense is expected to extend the program.

SEVP indicated that schools should inform their nonimmigrant students who will be enlisting through the MAVNI program that their SEVIS record will be terminated because the nonimmigrant students will be unable to maintain their student status. However, recognizing that nonimmigrant students who enter the U.S. military through the MAVNI program will not have legal status, the Department of Homeland Security (DHS) has agreed to a process whereby if the nonimmigrant who is in the military or involved in the MAVNI program is encountered prior to basic training, the matter will be elevated to DHS headquarters and reviewed before any adverse actions are taken against the nonimmigrant. The USCIS will naturalize the recruits during the last week of basic training. The nonimmigrants are not sworn in as citizens until the military is assured that they will graduate from basic training.

SEVP advises schools to urge their current students who have joined the military through the MAVNI program to apply for citizenship as soon as possible after enlistment. The school should then terminate the SEVIS record of the current student as an early withdrawal and indicate in the remarks section that the current student maintained his/her status up to the present time and that his/her SEVIS record is being terminated due to MAVNI enlistment. The school should also include the date on which the current student must report to the military, if known.

USCIS Updates H-1B Cap Count

The USCIS recently updated its H-1B cap count. As of November 27, 2009, the USCIS indicated that approximately 58,900 H-1B cap-subject petitions have been filed. The H-1B quota for fiscal year 2010 (October 1, 2009 through September 1, 2010) is limited to 65,000. The USCIS previously indicated that it has also received a sufficient number of petitions to meet the fiscal year 2010 U.S. Master's Degree exemption which is limited to 20,000. Prior to this update, the USCIS indicated that it had received approximately 56,900 H-1B petitions as of November 20, 2009. Therefore, it appears that USCIS is receiving approximately 2,000 H-1B cap-subject petitions each week. If the current pace continues, the H-1B quota for fiscal year 2010 may be met by the end of December 2009. After the H-1B quota for fiscal year 2010 is met, the earliest date upon which employers would be able to file H-1B petitions for fiscal year 2011 (which starts on October 1, 2010) would be April 1, 2010.

Additional updates about the fiscal year 2010 H-1B quota will be contained in our firm's future Immigration Updates when it becomes available.

ICE Reports that a Record Number of International Students are Attending U.S. Universities

ICE recently reported that a record number of international students are now attending institutions of higher education in the United States. ICE stated that the number of international students attending institutions of higher education in the United States increased by more than 7% to a record high of 623,805 in the 2008 academic year. The number of new international students rose by more than 10% following an increase of 10% and 8% for the previous two years. The top three sending countries posting double-digit increases included India (up 13%), China (up 20%) and South Korean (up 11%). The top five institutions of higher education with the largest number of international students are the University of California, New York University, Columbia University, the University of Illinois at Urbana-Champaign and Purdue University. ICE indicated that this growth rate has not been seen since 1980 and continues a pattern started more than three years ago. ICE attributes the continuing increases to its "Open Doors" policy which balances the security of the country's student visa system while preserving the country's tradition of recruiting the best minds from around the world.

HIV to be Removed as a Ground of Inadmissibility from the United States

On November 2nd, 2009, the Department of Health and Human Services (HHS) published a final regulation removing HIV from the list of communicable diseases of public health significance. The effective date of this final regulation is January 4, 2010. After the regulation becomes effective, HIV will no longer be a ground of inadmissibility to the United States. Additionally, the HIV test will be removed from the routine medical examination required for lawful permanent resident status. The USCIS has issued a memorandum stating that any application for permanent resident status which would be denied based solely upon an applicant's HIV status should be held in abeyance until the implementation of the final regulations. However, since the HIV test will remain part of the medical examination procedure for permanent resident status until January 4, 2010, applicants with HIV may want to hold off filing for adjustment of status until the new rule becomes effective. However, even after the new rule becomes effective, all applicants (including those with HIV) will have to prove that they are not likely to become a public charge. USCIS is permitted to look at many factors when determining whether a person will become a public charge, including a person's health.

The U.S. Citizenship and Immigration Services (USCIS) announced updates on the status of the FY 2010 H-1B Quota. As of November 13, 2009, approximately 55,600 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

USCIS to Accept H-1Bs Filed Without Certified LCAs until March 2009

In a previous update, we reported that the USCIS Ombudsman had made a formal recommendation to the USCIS that it reinstate its prior practice of temporarily accepting H-1B petitions with evidence of the timely filing of the Form ETA-9035, Labor Condition Application (LCA), and establish a temporary policy excusing the late filing of H-1B petitions where the employer can document that the Department of Labor improperly rejected an LCA. The USCIS recently announced that it will temporarily accept H-1B petitions filed without LCAs that have been certified by the Department of Labor for a 120-day period, commencing November 5, 2009 and through March 4, 2010. However, the 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 USCIS will only accept a copy of DOL's email notifying petitioners and employers regarding receipt of the LCA as evidence of filing.

DOS Releases December 2009 Visa Bulletin – Little Movement in Most Employment-Based Immigrant Visa Categories

The U.S. Department of State (DOS) recently released its December 2009 Visa Bulletin. Similar to October and November 2009 Visa Bulletins, most of the employment-based immigrant visa categories have not advanced. For example, the EB-3 World category has not advanced and still remains at June 2002. The only employment-based immigrant visa category which did advance in the December 2009 Visa Bulletin is the EB-3 Indian National category. However, this category advanced only by approximately one week to May 1, 2001. Additionally, the DOS continues to remain silent in its Visa Bulletins about when it expects to more significantly advance any of the employment-based immigrant visa categories.

The following is a chart comparing the employment-based immigrant visa categories advancement (or lack of advancement) since the beginning of retrogression in October 2005.

Oct 2005

Dec 2007

Jun 2008

Sept 2009

Oct 2009

Nov 2009

Dec 2009

EB-3 World

03/01/01

09/01/02

03/01/06

U

06/01/02

06/01/02

06/01/02

EB-2 China

05/01/00

01/01/03

04/01/04

01/08/05

03/22/05

04/01/05

04/01/05

EB-3 China

05/01/00

10/15/01

03/22/03

U

02/22/02

06/01/02

06/01/02

EB-2 India

11/01/99

01/01/02

04/01/04

01/08/05

01/22/05

01/22/05

01/22/05

EB-3 India

01/01/98

05/01/01

11/01/01

U

04/15/01

04/22/01

05/01/01

EB-3 Other Workers

10/01/00

10/01/01

01/01/03

U

C

06/01/01

06/01/01

Additional information about the priority dates will be contained in our firm's future Immigration Updates when it becomes available.

DOL Releases the Statistics about the PERM and H-1B programs

The DOL recently released its quarterly statistics for the quarter ending June 30, 2009. The DOL stated in its report that it is currently only processing approximately 17% of the PERM applications within 6 months of filing. This is a significant decrease from the June 2008 quarter when the DOL indicated that it was processing approximately 94% of the PERM applications within six months of filing. The DOL attributed the significant decrease due to "increased integrity activities in light of the declining economy and continued filings for positions where there are U.S. workers." The DOL stated that it will be implementing additional new PERM integrity measures within the next few months. The DOL is currently taking approximately 11 months to complete its initial review of PERM applications.

The DOL indicated that it was processing 99.11% of the Labor Condition Applications (LCAs) within 7 days of filing during the quarter ending June 30, 2009. This was a decrease of .87% from the quarter ending June 30, 2008. This data is primarily based upon the legacy LCA system. The new i-Cert system for LCA processing was not yet mandatory during the quarter ending June 30, 2009. It is assumed that the percentage will significantly decrease in the next quarterly report due to the issues encountered with the i-Cert system that is now mandatory for LCA processing.

The DOL also indicated that it will be rolling out the PERM component of the new i-Cert system in July 2010. Prior to this date, employers will still continue to use the current PERM system for PERM submissions.

USCIS Ombudsman Recommends Temporary Acceptance of LCAs for Certain H-1B Filings

On October 23, 2009, the USCIS Ombudsman made a formal recommendation to the USCIS requesting that it temporarily accommodate the needs of petitioners seeking to file H-1B petitions, but who encounter difficulty seeking certification of the DOL Form ETA-9035, Labor Condition Application (LCA), through the iCERT system. The USCIS Ombudsman provides independent analysis of problems encountered by those interacting with the USCIS, and proposes changes to mitigate those problems.

Petitioners filing H-1B petitions with the USCIS must submit an LCA certified by the DOL. Petitioners and immigration practitioners who utilize the DOL's new iCERT system, which has been available since April 15, 2009, have encountered significant processing delays, incorrect denials and other problems in seeking LCA certification. Both the DOL and the USCIS reported to the Ombudsman that cases involving LCA certification problems represent up to seven percent of total iCERT filings from April 15, 2009 through the beginning of August 2009 (approximately 2,900 denials out of approximately 41,700 LCAs submitted). After receiving numerous complaints about this matter and investigating the matter, the USCIS Ombudsman made two recommendations: 1. the USCIS reinstate its prior practice of temporarily accepting H-1B petitions with evidence of the timely filing of the LCA with the DOL; and 2. the USCIS establish a temporary policy excusing the late filing of H-1B petitions where the employer can document that the DOL improperly rejected an LCA.

The Ombudsman stated that this would not be contrary to USCIS regulations and that the legacy Immigration and Naturalization Service had in the past made similar accommodations in responding to LCA processing problems. Finally, the Ombudsman stated that any burden to the USCIS in making such accommodations were outweighed by the burden that incorrect denials have on employers and foreign nationals.

President Obama Signs Spending Bill Which Extends Four Immigration-Related Programs

On October 28, 2009, President Obama signed into law the FY10 Department of Homeland Security Appropriations bill (P.L.111-83) which provides funding for government-related programs. The new law included several immigration-related sections which were extended. The law extends the E-Verify, the EB-5, the "Conrad 30" and the non-minister religious worker programs until September 30, 2012. The law also included amendments to the statute which authorize the USCIS to complete the processing of permanent residence applications for surviving spouses and other relatives of immigration sponsors who die during the adjudication process. The bill was previously approved by the House of Representatives on October 15, 2009 by a 307-114 roll call vote, and by the Senate on October 20, 2009 by a 79-19 vote

For more information about this or any other immigration law topic, please contact Bob White, at 847.734.8811 or via email at rwhite@masudafunai.com. Weekly Immigration Updates are provided under the Legal Update link of the Immigration Group Section of our firm's website at www.masudafunai.com.