Business Immigration Monthly - July 2011

Date: 6/29/2011
 Business Immigration Monthly - July 2011

DOS Releases July 2011 Visa Bulletin – Most Employment-Based Immigrant Visa Categories Continue to Advance

The U.S. Department of State (DOS) recently released its July 2011 Visa Bulletin. The July 2011 Visa Bulletin continues to advance all of the employment-based immigrant visa categories, except for the EB-3 Other Workers category for Chinese nationals. In particular, the DOS continues to significantly advance the EB-2 category for Indian and Chinese nationals. The DOS has advanced the EB-2 Indian and Chinese national categories from October 2006 in the June 2011 Visa Bulletin to March 2007 in the July 2011 Visa Bulletin. These categories have significantly advanced by approximately one year in the past few months due to the fact that there has not been significant demand in the EB-1 preference category and these visas have spilled over into the EB-2 preference category in order to ensure that they are used during the government's fiscal year 2011 (October 1, 2010 through September 30, 2011). It is assumed that the EB-2 Indian and Chinese national preference categories will continue to advance through the end of the government's fiscal year 2011. However, when the government's fiscal year 2012 begins on October 1, 2011, it is assumed that the EB-2 Indian national and Chinese national categories will not continue to advance as quickly and may actually retrogress if demand begins to exceed supply for the new fiscal year.

The following is a comparison of priority date movement since the inception of the current retrogression in October 2005:

Dec 2007

Jun 2008

Aug 2009

Mar 2010

May 2011

June  2011

July 2011

EB-3 World

09/01/02

03/01/06

U

12/15/02

08/22/05

09/15/05

10/08/05

EB-2 China

01/01/03

04/01/04

10/01/03

07/08/05

08/01/06

10/15/06

03/08/07

EB-3 China

10/15/01

03/22/03

U

12/15/02

04/15/04

05/15/04

07/01/04

EB-2 India

01/01/02

04/01/04

10/01/03

02/01/05

07/01/06

10/15/06

03/08/07

EB-3 India

05/01/01

11/01/01

U

07/01/01

04/15/02

04/22/02

05/01/02

EB-3 Other Workers

10/01/01

01/01/03

U

06/01/01

09/08/03

09/15/05

11/22/04

Additional information about the employment-based immigrant visa priority date movement will be contained in our firm's future Immigration Updates when it becomes available.

H-1B Quota for Fiscal Year 2012 Remains Available

The U.S. Citizenship and Immigration Services (USCIS) recently provided an update about the Fiscal Year 2012 (October 1, 2011 through September 30, 2012) H-1B quota. Similar to past years, the regular H-1B quota is limited to 65,000 with an additional 20,000 available for individuals who have earned U.S. Master's or higher degrees. Employers are allowed to begin filing six months prior to the beginning fiscal year 2012 on October 1, 2011, namely on April 1st, 2011. The initial filing period for the Fiscal Year 2012 H-1B quota was from April 1, 2011 through April 7, 2011. During this time, the USCIS receipted approximately 5,900 petitions as indicated in our firm's Immigration Update dated April 11, 2011. This number of filings received by the USCIS during the initial filing period were significantly less than the filings received during the initial filing periods of previous H-1B quotas.

On June 17, 2011, the USCIS provided an update on the number of filings that it has received against the quota. As of this date, the USCIS has received approximately 17,400 petitions filed against the regular H-1B quota with an additional approximately 11,300 petitions filed requesting the U.S. Masters or higher degree exemption from the quota. The USCIS is receiving approximately 1,200 petitions a week filed against the regular H-1B quota with an additional approximately 700 petitions filed requesting the U.S. Masters or higher degree exemption. The USCIS will continue to accept petitions until the regular H-1B quota and the U.S. Masters or higher degree exemption from the quota is met.

Additional information about the H-1B quota for fiscal year 2012 will be contained in our firm's future Immigration Updates when it becomes available.

The U.S. Citizenship and Immigration Services (USCIS) recently provided an update about the Fiscal Year 2012 (October 1, 2011 through September 30, 2012) H-1B quota. Similar to past years, the regular H-1B quota is limited to 65,000 with an additional 20,000 available for individuals who have earned U.S. Master's or higher degrees. Employers are allowed to begin filing six months prior to the beginning fiscal year 2012 on October 1, 2011, namely on April 1st, 2011. The initial filing period for the Fiscal Year 2012 H-1B quota was from April 1, 2011 through April 7, 2011. During this time, the USCIS receipted approximately 5,900 petitions as indicated in our firm's Immigration Update dated April 11, 2011. This number of filings received by the USCIS during the initial filing period were significantly less than the filings received during the initial filing periods of previous H-1B quotas.

On June 24, 2011, the USCIS provided an update on the number of filings that it has received against the quota. As of this date, the USCIS has received approximately 17,400 petitions filed against the regular H-1B quota with an additional approximately 10,800 petitions filed requesting the U.S. Masters or higher degree exemption from the quota. The USCIS is receiving approximately 1,200 petitions a week filed against the regular H-1B quota with an additional approximately 700 petitions filed requesting the U.S. Masters or higher degree exemption. The USCIS will continue to accept petitions until the regular H-1B quota and the U.S. Masters or higher degree exemption from the quota is met.

On June 17, 2011, the USCIS provided an update on the number of filings that it has received against the quota. As of this date, the USCIS has received approximately 16,300 petitions filed against the regular H-1B quota with an additional approximately 10,800 petitions filed requesting the U.S. Masters or higher degree exemption from the quota. The USCIS is receiving approximately 1,200 petitions a week filed against the regular H-1B quota with an additional approximately 700 petitions filed requesting the U.S. Masters or higher degree exemption. The USCIS will continue to accept petitions until the regular H-1B quota and the U.S. Masters or higher degree exemption from the quota is met.

Additional information about the H-1B quota for fiscal year 2012 will be contained in our firm's future Immigration Updates when it becomes available.

U.S. Supreme Court Upholds Arizona Law Penalizing Employers who Knowingly Hire Illegal Immigrants

The U.S. Supreme Court recently issued a decision upholding an Arizona Law that penalizes businesses for hiring workers who are undocumented. The court stated that the federal immigration laws give states the authority to impose sanctions on employers who hire undocumented workers. The Arizona Law allows the state to revoke the business license of employers that knowingly hire undocumented workers and requires employers in the state to use the U.S. Citizenship and Immigration Services' (USCIS) E-Verify system. The court found that the licensing portion of the Arizona law is not preempted by federal law. It also found that the mandatory E-Verify requirement does not conflict with the federal government's employment verification scheme.

Immigration advocates emphasized that the decision is limited in scope because it does not address the broader legal provisions contained in the Arizona law. These provisions include requiring police while enforcing other laws to question a person's immigration status if the officer has reasonable suspicion that the person is in the United States illegally. These broader provisions may also be considered by the U.S. Supreme Court in the future. However, this decision may embolden other states to pass similar laws requiring employers to use the E-Verify system to verify workers employment eligibility in order to either obtain and/or maintain business licenses to conduct business in those states.

ICE Announces New Round of I-9 Inspections

Immigration and Custom Enforcement (ICE) recently notified 1,000 companies that they will be subjected to Form I-9 inspections. This new round of inspections brings the number of companies audited by ICE to 2,338 in fiscal year 2011 (October 1, 2010 through September 30, 2011), surpassing last year's record of 2,196. The total number of fines lobbied against employers in the Form I-9 investigations reached 7.1 million so far in fiscal year 2011 compared with 6.9 millions for the entire fiscal year 2010. ICE stated that employers of all sizes and in every state were notified of the Form I-9 inspections. ICE stated that the focus of these investigations were on companies in areas defined as critical infrastructure and key resources, including food production, information technology, financial services and construction.

DHS Allows for Greater E-Verify Enforcement at the State Level

The U.S. Department of Homeland Security (DHS) recently announced that it is now permitting employers in South Carolina to disclose information from E-Verify to the South Carolina Department of Labor as required by the state's 2008 Immigration Law. Previously, some employers in South Carolina refused to release E-Verify information to the state's DOL because they stated that under the terms of their E-Verify agreement with DHS, they can not disclose or share any information about their E-Verify transactions or operations. The Governor of South Carolina complained to DHS that it could not enforce its local immigration laws under the terms of this agreement. Therefore, DHS sent an e-mail to many E-Verify employers and E-Verify employer agents stating that they may disclose E-Verify information directly to the South Carolina Labor License and Regulation (LLR) Department when requested during enforcement actions. Other states which require employers to use the E-Verify system may in the future request a similar accommodation from DHS so that they may also enforce their states' immigration laws.

USCIS Releases E-Verify Update

The USCIS recently released its latest version of the E-Verify system. The update attempts to improve data validation by allowing users to enter a U.S. passport number between six and nine alpha numeric characters with no special characters. The previous versions of the E-Verify system always required users to enter nine digits with no letters. Additionally, the new system allows users to enter visa numbers up to eight alpha-numeric characters with no special characters. Additionally, the update now allows employers to record a hire date in the E-Verify system up to 365 days in the future. Previously, the system did not permit an employer to record a future hire date due to concerns that employers will mistakenly interpret this allowance as condoning the practice of pre-screening applicants employment eligibility through the E-Verify system (which is not allowed). The USCIS also provided the following clarifications:

1.The hire date is the date the employer began (or will begin) work for pay. The user should enter the Section 2 certification date from the employee's Form I-9 as the hire date in E-Verify.

2.If the employer rehired an employee and completes Section 3 of Form I-9, the user should enter the "Date of Rehire" from Section 3 of the employees Form I-9 as the hire date in E-Verify.

3.If the employee's hire date changes after the user has created the case in E-Verify, no additional action is required in E-Verify. However, the USCIS does recommend that employers should make a correction to the Section 2 certification date on the employee's Form I-9. If the employees changes.

USCIS Introduces E-Verify RIDE Program

The USCIS has recently announced that it was launching Records and Images from DMVs for E-Verify (RIDE) pilot program. The first state that will be using RIDE is Mississippi. The new feature will allow USCIS' E-Verify Program to validate the authenticity of drivers license used by employees as a Form I-9 identity document. USCIS indicated that more than 80% of employees present drivers license to establish their identities in completing the Form I-9. By enabling E-Verify to compare drivers license data against state records, the USCIS stated that RIDE is designed to improve E-Verify's accuracy and help combat document fraud when employers are determining an employee's eligibility to work in the United States while observing safeguards to protect the employee's personal data. Previously, if the employee was presented a drivers license and a social security card to establish identity and employment eligibility in the Form I-9 process, E-Verify would only be able to confirm the validity of the Social Security Number (SSN). However, the RIDE program will allow employers to confirm the validity of both documents. In addition to drivers license, the RIDE program will also allow employers to verify the validity of drivers permits or state-issued ID cards (if presented during the Form I-9 process).

The RIDE program will work as follows: Once an E-Verify query successfully passes the Social Security Administration (SSA) validation of the SSN, E-Verify will then send relevant license information to the state's Motor Vehicle Administration (MVA) database. If the MVA can not find a matching record or if E-Verify can not match the document number and date of birth for the employee entered in E-Verify based on the record in E-Verify, E-Verify will instruct the employer to check and if necessary, correct the document number and/or date of birth fields and resubmit the information through E-Verify. If after the second attempt there is still is no match, the employer will receive a Tentative Non-Confirmation (TNC). In the case of a TNC generated because of a RIDE program mismatch, the employee will be required to call the USCIS status verifier and fax a copy of the document (e.g. drivers license, state permit or state ID) provided to establish identity on the Form I-9. The USCIS status verifiers will then contact the MVA to determine whether there is a true mismatch or an error in the MVA database and place the E-Verify record in continuance pending resolution. A response of employment authorized or Final Non-Confirmation (FNC) will be displayed to the employer pending resolution. Employers will not see the employees MVA record. Additionally, unlike the process when an employee presents a U.S. passport, Permanent Resident Card or Employment Authorization Document (EAD) as part of the Form I-9 process, the employer will not be required to retain a copy of the employee's drivers license presented as part of the Form I-9 process.

Additional information about the expansion of the E-Verify RIDE program will be contained in our firm's future Immigration Updates when it becomes available.

ICE SEVP Announces Employment Authorization Eligibility for Certain Libyan F-1 Students

ICE Student and Exchange Visitor Program (SEVP) recently announced special relief for certain F-1 Libyan students who have suffered severe economic hardship as a direct result of the civil unrest in Libya since February 2011. This relief only applies to students who were lawfully present in the United States in F-1 status on February 1, 2011 and enrolled in a SEVP SEVIS certified school. The special relief will allow eligible Libyan F-1 students to obtain employment authorization and if necessary, reduce their course load while continuing maintain their F-1 status. ICE SEVP stated that there are approximately 2,000 Libyan F-1 students currently enrolled in schools in the United States. The DOS also announced special relief for certain Libyan J-1 exchange visitors who have also suffered severe economic hardship as a direct result of the civil unrest in Libya since February 2011. This special relief for both F-1 and J-1 Libyan students and exchange visitors will continue until December 31, 2011 unless further extended by ICE and DOS prior to this date.