LitwinLaw Newsletter 1/1/07

January 1, 2007

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1. USCIS Issues Guidance on Periods of Admission for H and L Workers

U.S. Citizenship and Immigration Services (USCIS) released guidance on determining periods of admission for those previously in H-4 or L-2 status, those applying for additional periods of admission beyond the H-1B six-year maximum, and those who have not exhausted the six-year maximum but who have been absent from the U.S. for over one year. Specifically, the memorandum:

  • clarifies that time spent as an H-4 or L-2 dependent does not count against the maximum allowable period of stay available to principals in H-1B or L-1 status;
  • clarifies that H-1B workers, who qualify under section 106(a) and (c) of the American Competitiveness in the Twenty-First Century Act of 2000 need not be in H-1B status when requesting an additional period of stay beyond the six-year maximum; and
  • clarifies how to determine the maximum period of admission in H-1B status for a beneficiary who was in the U.S. in valid H-1B status for less than the six-year maximum period of admission, but who has since been outside the U.S. for more than one year.

USCIS noted that a worker seeking H-1B or L-1 status (or corresponding derivative status) in light of these clarifications still must meet all of the substantive requirements for those classifications and is subject to the normal maintenance-of-status requirements.

Additional details on these clarifications and why they were necessary are included in the memorandum.

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2. SSA Explains How Foreign Workers Can Get Social Security Numbers

The Social Security Administration (SSA) lists the following documentation required of a foreign worker in order to obtain a Social Security number (SSN) for work purposes:

  • Department of Homeland Security (DHS)-stamped work-authorized status on an I-94 (e.g., L-1 is work-authorized inherent in status), or
  • I-551 Permanent Resident Card ("green card"), or
  • Machine-readable immigrant visa with temporary work authorization language embedded on the face of the visa (upon endorsement, this serves as a temporary I-551 evidencing permanent residence for one year), or
  • Employment Authorization Document (EAD): I-766 or I-688B

B-2 temporary visitors for pleasure (tourists) are not authorized by DHS to work in the U.S. so they cannot be assigned SSNs for work. The only other way for a B-2 to get an SSN, which a spokesperson for the SSA said is rare, is if he or she qualifies for a non-work SSN. The only valid non-work reasons are:

a federal statute or regulation requires that the individual provide his or her SSN to get a particular benefit or service to which he or she has otherwise established entitlement;

a state or local law requires the individual, who is legally in the U.S., to provide his or her SSN to get public assistance benefits to which entitlement has been established otherwise and for which all other requirements have been met.

For more information, see "Foreign Workers and Social Security Numbers," http://www.socialsecurity.gov/pubs/10107.html, and "Social Security Numbers for Non-citizens," http://www.socialsecurity.gov/pubs/10096.html.

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3. No Progress on Immigration Reform in 109th Congress; Report Released on Immigration Legislation and Issues

The 109th session of Congress ended in December with no progress on major immigration reform legislation or on the Securing Knowledge, Innovation, and Leadership (SKIL) Act of 2006, which was intended to provide visa shortage relief for key foreign nationals working in the U.S. As noted by the Congressional Research Service (CRS) in a detailed report, security concerns figured prominently in congressional debates this past year, and immigration enforcement remains on Congress's agenda. Additional action is possible early in 2007 when appropriations bills will be considered.

The CRS's report discusses limited provisions that were enacted on temporary and permanent employment-based immigration and other issues. The report is available at http://fpc.state.gov/documents/organization/76318.pdf.

Meanwhile, sources said Sen. Ted Kennedy (D-Mass.), the new chairman of the Senate immigration subcommittee plans to put forward a new version of an immigration bill early this year. The bill is expected to contain many of the components of the measure Sen. Kennedy co-sponsored last year, including a legalization provision for undocumented workers. Also, according to sources, a coalition including immigration advocates, the Service Employees International Union, and business lobbyists are working on another provision to require employers to electronically verify the work authorization of new hires. The coalition does not want to require employers or workers to pay for verifications, and wants a certification that the system is workable before it takes effect.

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4. H-2B Cap Reached for First Half of FY 2007

U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of H-2B petitions to reach the cap for the first six months of fiscal year (FY) 2007. USCIS will reject new petitions for H-2B workers seeking employment start dates before April 1, 2007. The agency will continue to accept petitions for new H-2B workers seeking employment start dates on or after April 1, 2007, only if such petitions are supported by a valid temporary labor certification.

Petitions for workers currently in H-2B status and returning H-2B workers do not count toward the H-2B cap. To qualify as a returning worker, the worker must have counted against the H-2B numerical cap between October 1, 2003, and September 30, 2006. Petitions received after the "final receipt date" (November 28, 2006) that contain a combination of returning workers and workers subject to the cap will be rejected with respect to the non-returning workers.

USCIS will continue to process petitions filed to extend the stay of a current H-2B worker; change the terms of employment for a current H-2B worker; allow a current H-2B worker to change or add an employer; and request eligible H-2B returning workers.
The notice is available at http://www.uscis.gov/files/pressrelease/...

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5. Over Six Million Apply for DV-2008 Green Card Lottery

Over 6.4 million entries for the 2008 Diversity Visa (DV) green card lottery were received during the two-month electronic registration period, from October 4, 2006, through December 3, 2006. This was an increase from the more than 5.5 million applications received in the 2007 DV lottery.

Most of the applications were from Africa and Asia, with 41 percent of the total from Africa, 38 percent from Asia, 19 percent from Europe, and two percent from South America, Central America, and the Caribbean. The largest number of applicants were from Bangladesh (more than 1.7 million), followed by Nigeria (684,735) and Ukraine (619,584). The number of winning entries by country will be released after the random lottery process is conducted in 2007.

Winners will be notified by letter from the Kentucky Consular Center between April and July 2007. The letter will provide further instructions.

The Department of State noted that there have been attempts to defraud DV Lottery entrants. Those selected as winners in the random drawing are notified only by the Department of State's Kentucky Consular Center. No other organization or company is authorized by the Department to contact winning entrants. The DV 2009 lottery registration period has not yet been opened and no applications are being accepted electronically now.

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6. USCIS Issues Notice Launching Pilot Test for New Naturalization Exam

U.S. Citizenship and Immigration Services (USCIS) has published a notice in the Federal Register confirming its announcement last month that it will be conducting a pilot of a redesigned naturalization test. USCIS plans to revise the naturalization testing process to ensure that the process is uniform; currently, test content varies among USCIS district offices. Based on the evaluation of the pilot, the final test is expected to be implemented nationally beginning in 2008.

USCIS said it plans to retain the current U.S. history and government test format but will replace the "trivia-based content" of the questions with new questions that will test applicants on the fundamentals of American democracy, such as the rule of law, separation of powers, and rights.

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7. California Fence Company to Pay Fines for Illegal Hiring; Gov't Raids Meatpacking Plants in Six States

Golden State Fence Company has been fined $5 million for hiring undocumented workers, and two company officials may receive jail time. The company had received a warning in 1999 but follow-up checks in 2004 and 2005 revealed that up to a third of the company's workers remained unauthorized. One of the company's projects included construction of a portion of a 14-mile border fence in San Diego, California, in the late 1990s.

In another enforcement action, federal agents raided meatpacking plants in six states. Raids against the Colorado-based Swift & Company's plants were the largest-ever immigration enforcement action, Secretary of Homeland Security Michael Chertoff said. Some observers were skeptical about the impact of the action. Frank Sharry, executive director of the National Immigration Forum, noted that "we've been doing raids for 20 years, and the immigration problem is soaring. You can't restore the rule of law until you respond to the law of supply and demand."

Meanwhile, under a new state law, Colorado employers will have 20 days to verify the work authorization status of a new employee. Employers who fail to maintain the required documentation will be subject to fines of up to $5,000 for the first offense and $25,000 for subsequent offenses.

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8. New OIG Report Assesses USCIS's Progress

A new U.S. Citizenship and Immigration Services (USCIS) Inspector General report concludes that USCIS "remains entrenched in a cycle of continual planning, with limited progress toward achieving its long-term transformation goals." Overcoming hindrances to moving from planning to implementation "is critical to addressing longstanding USCIS process and systems issues and realizing a more effective benefits processing environment."

Specifically, the report states, obtaining the funding needed to support implementation of USCIS's business transformation program is a continual concern. Establishing a clearly defined strategy, including funding plans, goals, and performance measures, is fundamental, the Inspector General said. Linking information technology (IT) objectives to this transformation strategy and ensuring sufficient internal and external stakeholder involvement in IT and process improvement initiatives also will be key. Until USCIS addresses these issues, the Inspector General noted, the agency will not be in a position to either manage existing workloads effectively or handle the potentially dramatic increase in immigration benefits processing workloads that could result from proposed immigration reform legislation.

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9. Gov't Agencies Release Info on Upcoming Regs

Several agencies recently released their semiannual regulatory agendas, which summarize planned upcoming proposed, interim, and final rules intended for publication. If past history is any indication, timetables often change and rules are frequently postponed, but the agencies' semiannual regulatory agendas provide a good overview of what changes can be anticipated in the foreseeable future regarding implementation of processes and requirements.

Selected immigrant and nonimmigrant employment-related highlights of the lengthy semiannual regulatory agenda of the Department of Homeland Security (DHS) follow.

Eliminating substitution of beneficiaries on permanent labor certification applications. DHS will propose to eliminate the current practice of allowing the substitution of beneficiaries on permanent labor certifications, among other options. In addition, DHS is proposing to reduce further the likelihood of the submission of malafide Immigrant Petitions for Alien Worker (Forms I-140), which are employment-based petitions "supported by fraudulent or stale labor certification applications" for the permanent employment of aliens in the U.S., by proposing a 45-day period for employers to file approved permanent labor certifications in support of Form I-140 petitions with DHS after the issuance of an approved labor certification by the Department of Labor.

Requiring electronic filing. U.S. Citizenship and Immigration Services (USCIS), which is part of DHS, is restructuring its business processes to implement new procedures for filing, processing, and adjudicating all benefit applications and petitions. USCIS will move toward electronic filing and adjudication of benefits to streamline processing, modernize adjudications, and facilitate efficient and effective data collection and reporting.

Fee changes. In several upcoming rules, USCIS is proposing to raise fees or charge new fees. USCIS proposes to charge a new immigrant visa service fee to every immigrant visa applicant. Currently, USCIS does not charge immigrant visa applicants overseas the service fee that it charges to adjustment of status applicants in the U.S. By charging a new immigrant visa service fee, USCIS hopes to recover the full operating costs of providing maintenance services to all new permanent residents. USCIS expects to issue a notice of proposed rulemaking in January.

Another rule proposes increases in immigration benefit application and petition fees and the biometric fee for applicants/petitioners who apply for certain immigration benefits for fiscal years 2008 and FY 2009.

Changes in premium processing fees and timetables. Another DHS rule proposes to raise the premium processing fee for employment-based petitions and applications, and provides that all future fee adjustments for Premium Processing Service will be made annually through publication in the Federal Register. Meanwhile, an interim rule planned for mid-2007 changes the premium processing time from 15 calendar days to 15 business days and adds circumstances that will stop the premium processing clock. This rule also clarifies that for e-filed petitions and applications, the 15-business-day processing period begins when USCIS receives the initial required supporting documentation to adjudicate the case at the Service Center with jurisdiction over that case.

Allocating H-1B numbers. A final rule will implement certain changes made by the Omnibus Appropriations Act for Fiscal Year 2005 to the numerical limits on the H-1B nonimmigrant visa category and the fees for filing H-1B petitions. The rule also notifies the public of the procedures USCIS will use to allocate the additional H-1B numbers made available under that Act. This rule further modifies USCIS premium processing regulations by providing authority to delay, suspend, or set an alternate date on which the 15-calendar-day premium processing period starts.

Halting concurrent filing of I-140s and I-485s. USCIS is proposing to amend its regulations concerning employment-based immigrant status. Under the current regulations, employers may file a Form I-485, Application to Register Permanent Residence or Adjust Status (I-485) concurrently with Form I-140, Immigrant Petition for Alien Worker (immigrant petition), while the immigrant petition is pending; or after the immigrant petition has been approved, as long as a visa number is immediately available to the alien. The Department is considering modifying the current system to disallow concurrent I-140 and I-485 filings and instead mandate that a foreign worker applying for adjustment of status be the beneficiary of an approved immigrant petition prior to filing the adjustment application.

Withholding adjudication. An interim rule will expand the circumstances under which DHS may withhold adjudication or toll any applicable regulatory deadline for completion of adjudication of an application or petition.

Extending O and P filing times. This final rule amends DHS regulations to enable certain petitioners to file O and P nonimmigrant petitions up to one year before the petitioners' need for the worker's services. Petitioners frequently plan for an event or performance more than one year in advance when seeking O and/or P nonimmigrant workers. By extending the filing time requirement for O and P petitions from the current six months to one year, DHS "hopes to provide relief and assurance to petitioners that, if approvable, such petitions will be approved prior to the date of the petitioners' need for the alien's services."

Reduction of employment verification documents. DHS intends to publish a final rule this year implementing changes to employment verification requirements, including a reduction in the number of documents required.

Elimination of advance parole requirement for H-1 and L workers. DHS plans to publish a final rule that, among other things, eliminates the requirement for permission for overseas travel for adjustment applicants who are maintaining H-1 or L nonimmigrant status.

Significantly changing H-2B agricultural worker regulations. Under the redesigned H-2B temporary nonagricultural program, employers seeking to use H-2B workers, except for applications filed for employment in Guam or in logging, will file directly with the DHS instead of first filing an application for labor certification with the Department of Labor (DOL). Under regulations simultaneously proposed by DOL and DHS, the employer will be required to conduct recruitment before filing its petition. The petition will include a number of attestations concerning labor market and related issues. DHS will administer the petition adjudication process. After adjudication, DOL will audit selected approved petitions. In such audits, DOL will exclusively examine whether the employer has complied with those aspects of the approved petition related to the labor market and other related attestations. Employers will be expected to have documentation available to support their attestations and will be required to provide such documentation to DOL within 30 days from notice of the audit. If, after completion of the audit, DOL determines that the employer has failed to comply with the terms of the attestations contained in the DHS petition or made material misrepresentations in its attestation, DOL will, after notice to the employer and opportunity for a hearing, recommend to DHS that the employer be debarred for a period of up to 3 years.

As noted, other federal agencies have also issued their semiannual regulatory agendas, some of which have immigration-related components. For example, the Department of State's agenda has final rules planned on the Student and Exchange Visitor Information System, uncertified foreign health care workers, exchange visitors, and others.

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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:

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