LitwinLaw Newsletter 02/01/09

February 1, 2009

1. - We recommend that you begin preparing your H-1B strategy and paperwork.

2. - The new form reflects the DHS' amended regulations governing the types of acceptable documents and receipts that employees may present to verify their work authorization.

3. - The U.S. Chamber of Commerce said the federal government agreed to its request to postpone until May 21, 2009, implementation of the rule requiring federal contractors to use E-Verify.

4. - Some categories advanced by several months; others retrogressed.

5. - All eligible travelers who wish to travel under the VWP must apply for authorization using the Electronic System for Travel Authorization.

6. - USCIS announced on January 7, 2009, that it had received a sufficient number of petitions to reach the cap for new H-2B worker petitions requesting employment start dates before October 1, 2009.

7. - In conjunction with regulations that went into effect in January 2009 for the H-2A and H-2B programs, the Department of Labor has created new forms to collect the necessary information from employers applying for labor certifications and prevailing wage determinations

8. - But the Board of Immigration Appeals or an immigration judge may reopen removal proceedings in extraordinary cases.

9. - The current standard used by USCIS adjudicators requires more than "just working for a company overseas for a year," USCIS said.

Also in this issue:

1. Prepare Early for H-1B Lottery

Every year, there is a mad scramble for available H-1B visa numbers. As many companies are aware, often they are gone in a single day following a random "lottery" run by U.S. Citizenship and Immigration Services in early April. There are many more applicants than available numbers.

U.S. Citizenship and Immigration Services reportedly plans to issue a rule in the spring or summer of 2009 to streamline the H-1B paperwork required to participate in the fiscal year 2010 lottery. The rule would propose a "pre-registration" system with a shorter application required for the lottery, and the full H-1B petition required for lottery winners. That system will not be in place for this April's H-1B rush, however.

We continue (as we have in the past two to three emails) to advise that you contact us now to begin preparing your H-1B strategy and paperwork.

Back to Top

2. New I-9 Form Available, USCIS Delays Change in List of Acceptable Documents

An updated version of the I-9 Handbook for Employers is also expected to be released. The new form reflects the Department of Homeland Security's amended regulations governing the types of acceptable documents and receipts that employees may present to their employers for employment authorization verification. The interim rule, among other things, requires that all documents presented during the verification process be unexpired, makes adjustments to List A documents, and makes technical updates.

Please note: U.S. Citizenship and Immigration Services (USCIS) announced that it has delayed until April 3, 2009, implementation of the interim rule. USCIS also has reopened the public comment period, until March 4, 2009.

Back to Top

3. Rule Requiring Contractors to Use E-Verify Suspended Again, Until May 21

The U.S. Chamber of Commerce said the federal government agreed to its request to postpone implementation until May 21, 2009, of a new rule requiring federal contractors to use E-Verify. "The federal government agreed that the new administration needs time to re-think mandatory E-Verify use, particularly in light of the stressed economy," said Robin Conrad, executive vice president of the National Chamber Litigation Center, the Chamber's public policy law firm. "We are hopeful that the incoming administration will agree that E-Verify is the wrong solution at the wrong time."

Randy Johnson, vice president of Labor, Immigration and Employee Benefits at the U.S. Chamber, said, "The new administration's interest in reviewing the rule is a promising development, but it doesn't change the fact that the executive branch may not make E-Verify use mandatory when Congress clearly said that it must be voluntary. We're cautiously optimistic that the incoming administration will make the right choice, but if not it will be up to the court to settle the issue."

This was the second recent postponement. The American Council on International Personnel (ACIP) reported that an agreement previously was reached with the Department of Homeland Security to suspend implementation of the rule until February 20, 2009. It had been slated to take effect on January 15, 2009.

Meanwhile, the new stimulus package bill approved by the House of Representatives on January 28, 2009, includes provisions that would mandate the use of E-Verify by federal contractors receiving stimulus funds. The bill states that "[n]one of the funds made available in this Act may be used to enter into a contract with an entity that does not participate in the E-verify program." The Senate is expected to act on the economic stimulus bill this week. It remains to see whether this E-Verify provision will remain in the final bill.

The Chamber of Commerce's announcement is available at http://www.uschamber.com/nclc/090128_pr.htm. The House bill is at http://thomas.loc.gov/cgi-bin/query/D?c111:2:./temp/~c1116lrDtW::.

Back to Top

4. Several Immigrant Visa Categories Show Movement in February

For February 2009, the Department of State's Visa Bulletin shows movement in the priority dates for several employment-based categories. For example, although the Worldwide category stays put, the China-mainland born second preference category moves ahead almost six months, from July 8, 2004, to January 1, 2005. India's second preference category advances six months, from July 1, 2003, to January 1, 2004. China's third preference category similarly advances four months, from June 1, 2002, to October 1, 2002. Mexico's third preference employment-based category advances four and a half months, from November 15, 2002, to April 1, 2003.

In February, however, China's "Other Workers" category retrogresses from March 15, 2003, to October 1, 2002, as do India's (from March 15, 2003, to October 15, 2001) and Mexico's (from March 15, 2003, to October 15, 2001). The Philippines third preference and "Other Workers" categories stay put at May 1, 2005, and March 15, 2003, respectively.

Robin Conrad, executive vice president of the National Chamber Litigation Center (NCLC), the Chamber's public policy law firm, said, "the Administration can't use an Executive Order to circumvent federal immigration and procurement laws. Federal law explicitly prohibits the secretary of Homeland Security from making E-Verify mandatory or from using it to reauthorize the existing workforce."

Back to Top

5. VWP Travelers Must Apply for Security Clearance Online

Those seeking to travel to the U.S. under the Visa Waiver Program are now subject to enhanced security requirements as of January 12, 2009. All eligible travelers who wish to travel under the Visa Waiver Program must apply for authorization using the Electronic System for Travel Authorization (ESTA), available at https://esta.cbp.dhs.gov/. All VWP travelers applying for admission at a U.S. port of entry, including VWP travelers who have obtained travel authorization via ESTA, also must present a completed Form I-94W to U.S. Customs and Border Protection.

The stimulus package bill passed by the House of Representatives includes provisions on the Visa Waiver Program that would enhance program security requirements and extend the VWP to nationals of foreign countries "that are partners in the war on terrorism." The bill also would "support and expand tourism and business opportunities to enhance long-term economic competitiveness," and would establish a "maximum visa overstay rate" for participating countries.

More information about ESTA is available. Additional information about the VWP is available at http://travel.state.gov/visa/temp/without/
without_1990.html
. The full text of the House bill, H.R. 1, is available at http://frwebgate.access.gpo.gov/cgi-bin
/getdoc.cgi?dbname= 110_cong_bills&docid=f:h1enr.txt.pdf.

Back to Top

6. USCIS Reaches H-2B Cap for Second Half of Fiscal Year 2009

U.S. Citizenship and Immigration Services (USCIS) announced on January 7, 2009, that it had received a sufficient number of petitions to reach the congressionally mandated H-2B cap of 33,000 for the second half of fiscal year 2009, for new H-2B worker petitions requesting employment start dates before October 1, 2009.

If deemed necessary, USCIS said it may apply a computer-generated random selection process to all petitions that are subject to the cap and received on January 7, 2009. USCIS will reject, and return the fee, for all cap-subject petitions not selected.

Petitions for workers who are currently in H-2B status do not count toward the biannual H-2B cap. USCIS will continue to process petitions filed to extend the stay of a current H-2B worker in the U.S.; change the terms of employment for current H-2B workers and extend their stay; or allow current H-2B workers to change or add employers and extend their stay.

Back to Top

7. New Forms Required for H-2A and H-2B Programs

In conjunction with regulations that went into effect in January 2009 for the H-2A and H-2B programs, the Department of Labor has created new forms to collect the necessary information from employers applying for labor certifications. Employers must begin using Form ETA-9142. In addition, for the H-2A program, employers must fill out and submit Appendix A.1 and Appendix A.2. For the H-2B program, employers must fill out and submit Appendix B.1. For instructions on how to complete the form and appendices, see http://www.foreignlaborcert.doleta.gov/pdf/
OMBETAForm9142_Instructions.pdf
.

The H-2B final rule requires the use of the new ETA-9141 for prevailing wage determinations. However, the use of this form will only begin after the transition period outlined in the rule is completed. Therefore, the DOL said that the ETA-9141 will be posted toward the end of the transition period.

The H-2A final rule is available at http://www.foreignlaborcert.doleta.gov/pdf/H2A_FinalRule.pdf. The H-2B final rule is available at http://www.foreignlaborcert.doleta.gov/pdf/H2BFinalRule.pdf.

Back to Top

Attorney General Finds No Right To Effective Counsel in Removal Proceedings

In Matter of Compean, Attorney General Michael Mukasey found on January 7, 2009, that noncitizens have no constitutional right to an attorney in immigration removal proceedings. Although they have a statutory privilege to retain a lawyer, if that counsel is ineffective, they have no recourse, the Attorney General said. The decision notes that the Board of Immigration Appeals or an immigration judge may reopen removal proceedings in extraordinary cases based on egregious error by a lawyer, accredited representative, or nonlawyer that the person erroneously believed to be a lawyer.

The decision provides a framework and a list of documentation for filing a claim of deficient performance of counsel. The decision is available at http://www.usdoj.gov/eoir/vll/intdec/vol24/3632.pdf. The American Immigration Lawyers Association, which filed an amicus brief, is following this case and posting updates at http://www.ailf.org/lac/lac-ineffective.shtml.

Back to Top

USCIS Comments on L-1B Intracompany Transferee Denials

U.S. Citizenship and Immigration Services reportedly plans to address complaints about an L-1B visa denial increase some time this year. "Companies are trying to expand the definition of what is 'specialized knowledge' under the L-1B program to use it as an alternative to the H-1B visa because there is no congressionally mandated cap on L-1B visas," USCIS Acting Deputy Director Michael Aytes said, adding that the current standard used by USCIS adjudicators requires more than "just working for a company overseas for a year."

Back to Top

Canada: Recent Amendments Eliminate Passive Investment From Provincial Nominee Programs

Effective September 2, 2008, the Immigration and Refugee Protection Regulations have been amended to clarify the provisions related to passive investment in provincial nominee programs.

Under the Provincial Nominee Program (PNP), provinces and territories can nominate individuals whom they consider to be important to their economic development. Under the terms of the provincial nominee agreements, provinces and territories are responsible for designing the criteria for their respective nomination categories, which can include business immigrants. However, the intent of the entrepreneurial component within the PNPs was to permit provinces and territories to nominate business people who would meet the specific demographic and economic objectives of the nominating provinces or territories by settling there and opening or investing in a business that they would actively manage on a day-to-day basis. Selection on the basis of the ability to invest capital without involvement in the management of the recipient business/organization has always been exclusive to the Federal Immigrant Investor Program. By making the recent amendments, Citizenship and Immigration Canada (CIC) is making it clear that it was never intended for provinces and territories to select passive investors under their PNPs.

This information was supplied by Clark Wilson LLP's Immigration Lines. For more information, see http://www.cwilson.com/newsletters/immigration/.

Back to Top

New Publications and Items of Interest

EB-5 investor visas; AC21 issues. U.S. Citizenship and Immigration Services (USCIS) has added comments and Q&A from a teleconference to its online library: "Teleconference on EB-5 Investor Visas: Opportunities and Challenges," recorded in September 2008. The teleconference is available at http://www.dhs.gov/xabout/structure/gc_1232142118947.shtm. USCIS also has added an update on AC21 issues: "Did USCIS Immediately Deny Your Adjustment of Status Application Following a Change of Employment?".

On December 12 and 15, 2008, the Department of Labor (DOL) held stakeholder briefings on revised H-2A regulations that took effect on January 17, 2009. DOL staff described procedures under the new regulation for filing and reviewing H-2A labor certification applications, and preparation of the new application form, ETA Form 9142. The briefings also included discussion of changes to DOL enforcement procedures. To see the PowerPoint slide presentation on the new H-2A foreign labor certification process and form, go to the January 16, 2009, entry at http://www.foreignlaborcert.doleta.gov/eta_default.cfm#backlog and click on the link.

Q&A on religious worker final rule. U.S. Citizenship and Immigration Services (USCIS) published a final rule on the special immigrant and nonimmigrant religious worker visa categories on November 26, 2008. A supplemental Q&A for religious workers is available at http://www.uscis.gov/portal/site/uscis/
menuitem.5af9bb95919f35e66f614176543f6d1a/ ?
vgnextoid=e51026e8bb89e110VgnVCM1000004718190aRCRD&
vgnextchannel= 68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

Back to Top

Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplayInit.do

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/

Back to Top

To print or download this newsletter in PDF click this link:
Liltwinlaw 02.1.09 Newsletter (PDF version)