Business Immigration Monthly - January 2012

Date: 1/6/2012
 Business Immigration Monthly - January 2012

USCIS Begins to More Aggressively Review STEM EAD Extension Applications

The U.S. Citizenship and Immigration Services' (USCIS) Nebraska Service Center (NSC) has recently begun to more aggressively review F-1 STEM Optional Practical Training (OPT) extension applications. In addition to evidencing that the student has graduated with a STEM major and is (or will be) working for an E-Verify employer, some USCIS officers at the NSC are currently requesting verification of the student's employment history during the regular 12 month OPT period. In addition to employment confirmation letters, some officers are requesting copies of payroll statements and W-2 forms. If the student is unable to evidence that he/she had valid employment authorization during the entire OPT period, some of the USCIS officers will then explore whether the student exceeded the 90-day unemployment window during post-completion OPT. If the USCIS officer determines that the student was unemployed for more than 90 days during the post-completion OPT period, the USCIS officer may deny the STEM OPT extension application stating that the student has failed to maintain valid F-1 status.

DOL Again Delays the Implementation of the New H-2B Wage Rule

The U.S. Department of Labor (DOL) has again postponed the implementation of its new H-2B Wage Rule until October 1, 2012. The DOL initially published the Wage Rule on January 19, 2011 with an effective date of January 1, 2012. However, a court order accelerated the effective date to September 30, 2011. Due to additional lawsuits, the DOL then postponed the implementation date until November 30, 2011. However, prior to this effective date, legislation was enacted which postponed the effective date until October 1, 2012. The Wage Rule revises the methodology by which the DOL will calculate the prevailing wage to be paid H-2B temporary workers by allowing for only one prevailing wage level instead of the previous four level system. Therefore, with the compression of the prevailing wages into one median wage, the prevailing wages for H-2B positions will significantly increase. Various industry groups are currently working with various congressional leaders to introduce further legislation which will permanently prevent the DOL from implementing the Wage Rule.

Additional information about changes to the H-2B program will be contained in our firm's future Immigration Updates when they become available.

Company Owner and Manager Criminally Sentenced and Fined Nearly $400,000 for Employing Illegal Workers

The owner and a manager of a bakery in La Jolla, California were recently sentenced in federal court for hiring and employing workers who did not have authorization to work in the United States. The company's owner was sentenced to five years of supervised probation and assessed a penalty of approximately $400,000. The company's manager was sentenced to three years of supervised probation and fined $2,500 for knowingly employing more than ten undocumented individuals in a one-year period. The company admitted that they repeatedly rehired illegal workers even after the company received "No-Match Letters" from the Social Security Administration (SSA) advising the company that some employees' names did not match the Social Security Numbers recorded by the company on its tax returns. Immigration Custom Enforcement's (ICE) Homeland Security Investigations (HSI) stated that the conviction should "remind all employers – including corporations, owners and upper management – that they are equally bound by this country's immigration laws and cannot simply disregard their illegal obligations."

In fiscal year 2011, ICE criminally charged a record breaking 221 owners, employers, managers and/or supervisors, up from 196 in fiscal year 2010. Additionally, during fiscal year 2011, ICE initiated audits involving 2,496 employers nationwide surpassing the record number conducted in fiscal year 2010. ICE also issued 385 final fine notices in fiscal year 2011 totaling more than $10 million to employers across the country, again surpassing the record total in fiscal year 2010.

DOS Releases January 2012 Visa Bulletin – Most Employment-Based Immigrant Visa Categories Continue to Advance

The U.S. Department of State (DOS) recently released its January 2012 Visa Bulletin. Similar to the Visa Bulletins for the past few months, the January 2012 Visa Bulletin continues to advance most of the employment-based immigrant visa categories. Again, the most significant advancement in the employment-based visa categories continues to be in the EB-2 Indian and Chinese national preference categories. The DOS has again significantly advanced these from March 2008 to January 2009. The DOS indicated that it is able to continue to significantly advance these categories due to the apparent lack of demand in these categories after consulting with the USCIS about pending adjustment of status applications in these categories. Unofficially, the DOS has indicated that the USCIS has been unable to provide the DOS with accurate numbers of the potential applicants in these categories. Therefore, the DOS continues to warn that the DOS may have to retrogress (or make Unavailable) the EB-2 Indian and Chinese national preference categories if demand begins to exceed the available supply of immigrant visas in these categories during the remainder of this fiscal year.

The following is a chart outlining the movement of the employment-based immigrant visa categories since the inception of the current retrogression in October 2005:

Dec 2007

Jun 2008

Aug 2009

Mar 2010

Nov 2011

Dec 2011

Jan 2012

EB-3 World

09/01/02

03/01/06

U

12/15/02

12/22/05

01/15/06

02/01/06

EB-2 China

01/01/03

04/01/04

10/01/03

07/08/05

11/01/07

03/15/08

01/01/09

EB-3 China

10/15/01

03/22/03

U

12/15/02

08/22/04

09/08/04

10/15/04

EB-2 India

01/01/02

04/01/04

10/01/03

02/01/05

11/01/07

03/15/08

01/01/09

EB-3 India

05/01/01

11/01/01

U

07/01/01

07/22/02

08/01/02

08/08/02

EB-3 Other Workers

10/01/01

01/01/03

U

06/01/01

11/15/05

01/01/06

02/01/06

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

DOJ Files Lawsuit Against University Medical Center for Immigration-Related Employment Discrimination

The Department of Justice (DOJ) recently announced the filing of a lawsuit against the University of California, San Diego Medical Center alleging that the Medical Center discriminated in the employment eligibility verification process against people who are authorized to work in the United States. The DOJ's investigation revealed that the Center engaged in a pattern or practice of subjecting newly hired non-U.S. citizens to excessive demands for documents to verify and re-verify their employment eligibility during the Form I-9 process. The Center did not place such a requirement upon U.S. citizens to show any specific documentation during their Form I-9 process. The lawsuit seeks a court order prohibiting the Center's future discrimination, monetary damages for any individuals harmed in this process and civil monetary penalties.

USCIS Confirms That It Did Not Conduct a Random Selection Process of Petitions Received on the Last Day of the Fiscal Year 2012 H-1B Quota

The USCIS recently confirmed that it did not have to conduct a random selection process on the petitions received on the last day when the H-1B quota was met for fiscal year 2012 (October 1, 2011 through September 30, 2012). The USCIS previously announced that the H-1B quota for fiscal year 2012 was met on November 22, 2011. Additional information about the H-1B quota being met for fiscal year 2012 is contained in our firm's Immigration Update dated November 28, 2011. Therefore, that all properly completed H-1B quota petitions which were received by the USCIS on November 22, 2011 will be included in the fiscal year 2012 H-1B cap.

The next H-1B quota for fiscal year 2013 (October 1, 2012 through September 30, 2013) will open on April 1, 2012. The initial filing period will last from April 1, 2012 through April 7, 2012. If the USCIS receives a sufficient number of H-1B petitions during the initial filing period to meet the H-1B quota for fiscal year 2013, it will run a random selection process on the petitions received and then only the petitions selected through the random selection process will be accepted for adjudication under the fiscal year 2013 H-1B quota. Please note that the USCIS has not had to conduct a random selection process based upon petitions received during the initial filing period since fiscal year 2009. However, since fiscal year 2009, demand has continued to slowly increase in the H-1B program. Therefore, employers with either current or prospective employees who are subject to the H-1B quota may want to file their H-1B quota petitions during the initial filing period in case the H-1B quota for fiscal year 2013 is met during the initial filing period.