LitwinLaw-Newsletter April 1, 2007

April 1, 2007

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1. H-1B Rush Begins and Ends; Reform Bill Introduced in House; Other Developments

April 2, 2007, marked the start and end of the annual H-1B rush. U.S. Citizenship and Immigration Services (USCIS) announced on April 3 that it had received many more than enough H-1B petitions to fill the annual quota on the very first filing day of the year. A random selection process will be employed to determine which cases will actually be accepted. The USCIS memo is at http://www.aila.org/content/.

Bipartisan legislation introduced in the House of Representatives on March 22, 2007, would lift the H-1B cap from the current 65,000 to 115,000, with market-based automatic increases up to 180,000. The "Security Through Regularized Immigration and a Vibrant Economy (STRIVE) Act of 2007" (H.R. 1645) also would eliminate visa limits on foreign workers with advanced U.S. degrees in science, technology, engineering, or math (STEM). Certain "extraordinary ability" workers in science and business would find it easier to obtain permanent residence ("green cards") under the legislation.

The new legislation also would establish an H-2C temporary visa, valid for three years and renewable for another three. Under the H-2C visa, employers would be required to attempt to hire U.S. workers first and would be barred from hiring new immigrant workers in areas with high unemployment rates for workers with no education beyond high school. The H-2C visa program would have an initial cap of 400,000, adjusted yearly based on market fluctuations, and would include labor rights and protections, such as visa portability and competitive wage protections.

The new bill also would create a new guestworker program under a conditional nonimmigrant visa for eligible undocumented workers and their spouses and children in the U.S., valid for six years. Such workers, if they qualify, would have the opportunity to apply for permanent residence and eventual "earned citizenship," but would have to wait at the back of the line for green cards and would have to pay a hefty fine. Among other things, to gain earned citizenship, a worker in most cases would need to meet a "legal reentry" requirement, whereby the worker would "reboot" his or her status by leaving the U.S. and returning.

Also, the new legislation calls for an electronic work authorization verification system for employers. The bill also incorporates the DREAM Act of 2007 and the AgJOBS Act of 2007.

Passage of the House bill remains uncertain. Some Republicans condemned the bill as an amnesty program for illegals. Discussions between Republican lawmakers in the Senate and the White House could lead in a different direction. Sen. Arlen Specter (R-Pa.) is reportedly heading a group of Republicans who are drafting a competing set of proposals in consultation with the White House. The Bush administration released a new immigration reform plan on March 29, 2007, that would also include a temporary guestworker program, with a "Z" visa renewable every three years after payment of a large fine each time. Under the administration's plan, undocumented workers would need to register for temporary status within six months of the bill's passage for the worker to receive consideration for legal status.

A Senate vote on immigration reform may take place in June. Senate majority leader Harry Reid (D-Nev.) reportedly stated that the Senate immigration debate may be slated for the last two weeks of May. Hearings are expected in the House shortly. If legislation does not pass by the end of 2007, many expect that it will be difficult to move it forward in the 2008 presidential election year.

Compete America, a coalition of corporations, educators, research institutions, and trade associations, endorsed key provisions of the House bill, including updating the employment-based green card cap and exempting key categories of professional; creating exemptions from employment-based immigrant visa and H-1B caps for foreign students receiving an advanced degree from a U.S. university, as well as for foreign professionals who have earned advanced STEM degrees at foreign universities; updating the cap on H-1B visas for highly educated temporary workers; and creating a new student visa category to allow U.S. STEM degree holders who have a job offer to transition directly from student visa to green card .
On March 7, 2007, at a hearing before the Senate Committee on Health, Education, Labor and Pensions, Microsoft Corporation Chairman Bill Gates recommended an increase in the H-1B cap and streamlining the green card process for highly skilled workers. He lamented the current state of the U.S.'s "obsolete immigration system," recommended changes in STEM education in the U.S., and expressed concerns about the dissuasion of foreign students from studying in the U.S. by the immigration system and new security measures. "Unfortunately, America's immigration policies are driving away the world's best and brightest precisely when we need them most," he said. Mr. Gates predicted that if current trends continue, a significant percentage of all scientists and engineers in the world will be working outside of the U.S. by 2010.

Mr. Gates noted that the number of H-1B visas available "runs out faster and faster each year." The current cap of 65,000 "is arbitrarily set and bears no relation to U.S. industry's demand for skilled professionals," he said, noting that for fiscal year 2007, the H-1B supply "did not last even eight weeks into the filing period, and ran out more than four months before that fiscal year even began." For fiscal year 2008, Mr. Gates noted, H-1Bs are expected to run out in April, the first month that it is possible to apply for them. "This means that no new H-1B visas -- often the only visa category available to recruit critically needed professional workers -- will be available for a nearly 18-month period," he warned.

Moreover, this year, for "the first time in the history of the program, the supply will run out before the year's graduating students get their degrees. This means that U.S. employers will not be able to get H-1B visas for an entire crop of U.S. graduates. We are essentially asking top talent to leave the U.S." He noted similar trends with the employment-based green card categories. Among other things, Mr. Gates called for "expedit[ing] the path to permanent resident status for highly skilled workers." He said, "If Social Security is the dreaded third rail of politics, immigration is its downed electrical wire: a problem everyone knows about, but no one's sure how to fix, so they just walk away." Meanwhile, a coalition of organizations has released a set of visa policy recommendations, posted online at http://www.nafsa.org/. The policy proposals emphasize the important role that visa policy plays in both the security of the U.S. and its capacity to attract the best talent from other countries. The coalition includes the Alliance for International Educational and Cultural Exchange, the Coalition for Employment Through Exports, the Heritage Foundation, NAFSA: Association of International Educators, and the National Foreign Trade Council.

An overview of the STRIVE Act from Rep. Flake's office is available at http://flake.house.gov/ . The full text of the lengthy bill is available at http://thomas.loc.gov/.

Testimony from Emilio Gonzalez, USCIS Director, at a hearing on March 27, 2007, on immigration reform and temporary workers before the House Subcommittee on Homeland Security is available at http://www.uscis.gov/ .

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2. I-9 Forms Have Expired – But Keep Using Them.
The current Employment Eligibility Verification Form (I-9) has expired. Until a revised form is published and made available, employers may continue to use the expired version. The revised form will be available on the U.S. Citizenship and Immigration Services' web site.
http://www.uscis.gov/files/form/i-9.pdf


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3. H-2B Cap Reached
U.S. Citizenship and Immigration Services (USCIS) announced on March 23, 2007, that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the final six months of fiscal year 2007. March 16, 2007, is the "final receipt date" for new H-2B worker petitions requesting employment start dates before October 1, 2007. The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the second half of FY 2007.USCIS will reject petitions for new H-2B workers seeking employment start dates before October 1, 2007, that arrived after March 16, 2007.

Petitions for both current and returning H-2B workers do not count toward the congressionally mandated biannual H-2B cap, USCIS noted. 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. USCIS said it would reject petitions received after the final receipt date that contain a combination of returning workers and workers subject to the H-2B cap. Petitioning employers will receive partial approvals for those who qualify as returning workers if otherwise approvable.

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;
• Allow current H-2B workers to change or add employers and extend their stay; or
• Request eligible H-2B "returning workers."


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4. FOIA 'E-Delinquents' Include DOL, ICE

The National Security Archive at George Washington University has released a new report finding that, 10 years after passage of the Electronic Freedom of Information Act (FOIA) Amendments, several federal agencies fall short of the law. The Department of Labor was cited for having no central reading room and no required documents available, and a lack of FOIA Web sites for several components. Immigration and Customs Enforcement had no dedicated FOIA page, very limited guidance, and no required documents.

Meredith Fuchs, the Archive's general counsel, said, "Public access on the Web to government information is the only long-term solution to the backlogs and delays that undermine the FOIA today. This audit plus Congressional oversight should provide a wake-up call to the agencies." Ms. Fuchs testified on March 14, 2007, before the Senate Judiciary Committee in support of a new FOIA reform bill. Her testimony is available at http://www.gwu.edu/. The report is available at http://www.gwu.edu/.

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5. New GAO Report Outlines US-VISIT Challenges

The U.S. Government Accountability Office (GAO) has issued a report analyzing challenges that continue to face the US-VISIT program. The GAO noted that US-VISIT has improved the Department of Homeland Security's (DHS's) ability to process visitors and verify identities upon entry, but found that management controls in place to identify and evaluate computer and other operational problems at land ports of entry were insufficient and inconsistently administered. In addition, the GAO noted, a biometric exit capability is not yet available. The GAO said that DHS continues to face longstanding US-VISIT management challenges and future uncertainties.

The GAO recommended that critical acquisition management processes be established and followed to ensure that program capabilities and expected mission outcomes are delivered on time and within budget. Such processes include, the GAO said, effective project planning, requirements management, contract tracking and oversight, test management, and financial management. Until these issues are addressed, the risk of US-VISIT continuing to fall short of expectations is increased, the GAO concluded. The report, "Homeland Security: US-VISIT Faces Operational, Technological, and Management Challenges" (GAO-07-632T), is available at http://www.gao.gov/new.items/d07632t.pdf.

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6. Immigrants Driving Globalization, Report Finds

A new report on the future of small business, authored by the Institute for the Future, finds that immigrant entrepreneurs will drive a new wave of globalization, and that U.S. immigration policy and the outcome of the current immigration debates will affect how this segment performs over the next decade.

The "Intuit Future of Small Business Report" is available at http://www.intuit.com/(see pages 8 and 9 for information on immigrant entrepreneurs).

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7. Resources on the Web

Roll Call and GalleryWatch have launched Congress Now!, an online source of legislative news. The newsletter for CongressNow! will appear in mid-afternoon, five days per week, and will feature news, analysis, and information on committee markups. Breaking news will be posted to CongressNow.com throughout the day and sent via e-mail alerts. These features are available free to congressional staff and members of Congress, and by subscription. See http://www.gallerywatch.com/ for more information.

The latest Transactional Records Access Clearinghouse (TRAC) data tool, covering the five-year period through the end of November 2006, notes that criminal immigration charges by federal prosecutors have declined substantially in the last year. TRAC documents trends for the overall number of prosecutions filed and convictions obtained under U.S. immigration law in federal districts around the country. U.S. District Court judges who handled the largest number of immigration cases also are highlighted. For this and many other immigration reports by TRAC, see http://trac.syr.edu/.

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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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