Beginning
April 1, employers will be able to submit H-1B visa petitions for
foreign national employees who have not yet possessed H-1B status
before. Employees who receive an approved petition will be able
to begin working in that status as of October 1, 2009. The H-1B
is a frequently utilized temporary work visa for professional
positions. There are only 65,000 H-1Bs available per
year. We encourage employers to submit their petitions as early
possible because last year the annual limit on H-1B visas was reached
within the first five days of filing, and as a result only half of
the H-1Bs were accepted for processing. If USCIS
receives more than enough petitions for H-1B applications during the
first five days of filing, no additional applications will be
accepted and there will be a computer generated random selection
process (lottery) to choose which applications will be accepted for
processing.
There are an additional 20,000 H-1Bs available for candidates with a
Master's Degree or higher from a US university. Those are also
expected to be used very quickly. While the downturn in the
economy is expected to reduce the number of applications reviewed, we
believe at this time that more than 65,000 H-1B applications will be
received before the end of the fifth day of filing window. For
additional information about H-1B visas, see
the Clark Hill website.
Foreign nationals who attend a US university, and have temporary F-1
status, may secure temporary work status, called optional practical
training (OPT), for up to 12 months at the end of a course of
study. As
we reported last year, all F-1 students with OPT work
status are allowed to continue working until October 1, 2009, even if
the OPT will expire, as long as the student is the beneficiary of a
pending or approved H-1B application. If the H-1B application is
rejected (due to the cap) or denied, this provision ends for that
foreign national. In addition, some students can extend their
OPT work authorization for an additional 17 months, bringing the
total to 29 months of OPT work authorization, if certain conditions
are met.
Companies Who Received TARP
Money Restricted in H-1B Hiring
As part of the Emergency Economic Stabilization Act of 2008 spending
bill signed into law earlier last month, companies that received
federal assistance under the law referred to as
"TARP" are no longer permitted to hire "new
employees" on H-1Bs, unless they go through the dependant
employer provisions. This provision also applies to companies
that received money under Section 13 of the Federal Reserve
Act. The H-1B dependent employer provisions require employers
to run advertisements and prove there is no US worker ready and qualified
to do the job, prior to hiring the H-1B employee. Prior to this
law, only employers with a large number of H-1B employees as a
percentage of their workforce were subject to this provision.
The normal exemption from this advertising requirement, for employees
with an annual salary of $60K or Master's Degree in the field, does
not apply to companies who received TARP or Section 13 money.
Passport Data Added to
E-Verify
USCIS
has announced the addition of passport data to the
E-Verify employment authorization system. The enhancement to
the system is expected to reduce "tentative
non-confirmations" where there is a mismatch of data for
foreign-born US citizens. E-Verify is an electronic work authorization
verification system administered by the Department of Homeland
Security (DHS). For more on E-Verify visit the
DHS website. As we reported in our prior immigration
update, USCIS has issued a revised
I-9 form that employers will be required to use as of
April 3, 2009. In addition, a new Employer Handbook,
Instructions for Completing the Form I-9 (M-274), will be available
in the near future.
Passport Deadline Reminder
Beginning June 1, 2009, individuals will not be permitted to enter
the US from Canada and Mexico without a passport or passport
card. Information regarding applying for or renewing a US
passport can be found on the
US Department of State website. Information
regarding applying for a US passport card, a less expensive
alternative to a passport, can also be found on the
US Department of State website.
Ninth Circuit Upholds
Arizona's Immigration Law
On March 9, 2009, the US Ninth Circuit Court of Appeals agreed to
uphold Arizona's more restrictive immigration law. The Arizona
law requires employers to use E-Verify and penalizes employers who
hire unauthorized workers by revoking their Arizona business
licenses. The Ninth Circuit ruled that the law is not preempted
by federal immigration law and does not violate employers' rights to
due process.
Obama Pledges Comprehensive Immigration Reform
In a March 18, 2009 meeting with the Congressional Hispanic Caucus (CHC), President Obama
stated he would work with Congress to move forward with comprehensive
legislative reform. Representatives for the CHC
stated President Obama emphasized his
concerns over worksite raids and other enforcement actions
resulting in the separation of families.
Illinois Law Prohibiting
E-Verify Overturned
On March 12, 2009, a federal court held that an Illinois law
prohibiting employers from registering for E-Verify conflicted with
federal law. E-Verify is an electronic work authorization
verification system administered by the Department of Homeland
Security (DHS). For more on E-Verify visit the
DHS website. The Illinois state law was enacted to
prohibit employers from enrolling in E-Verify until the program was
able to make a determination within three days on "tentative
non-confirmations" notices and argued that the E-Verify program
was only a test program. The court ruled the law was invalid
because only Congress was entitled to set the terms and length of the
program. There was a temporary hold on this law until the court
case was resolved. Employers may continue to use E-Verify in
Illinois.
Clark Hill to Host Employment
Seminar
On May 7, 2009, Clark Hill will be hosting the 25th Annual Employment
Law Conference in Dearborn, Michigan. This is a day filled with
15 current and relevant seminar topics, including immigration
law. More details regarding the seminar are at
Clark Hill's website.
State Laws Require Employers
to Secure Personnel Data
Connecticut, Massachusetts and Nevada have recently
enacted state laws requiring that employers secure and
protect personal data of its employees including Social Security,
driver's license and financial account numbers, each in combination
with a person's name. The law requires employers to notify its
employees when there has been a breach of the personal data.
New Chairman of Senate
Immigration Sub-Committee
Charles Schumer, a US Senator from New York, was named the new
chairman of the Senate Immigration Sub-Committee. The post was
previously held by Senator Edward Kennedy who held the position for
28 years.
Final Rule on Employment
Verification for Foreign Nationals in the Armed Forces
On February 23, 2009, the final rule was published that provided for
employer-specific employment authorization to certain aliens enlisted
in the US Armed Forces. The rule also added the military
identification card to the list of documents acceptable for
establishing employment eligibility for the I-9 under certain
circumstances. The rule is effective as of February 23, 2009.
US Immigration and Customs
Enforcement (ICE) Updates
Below are summaries of recent efforts by the US Immigration and
Customs Enforcement (ICE) as they enforce laws related to employment
of persons not authorized to work in the US. While there were
many actions that took place recently, below are a few of the
highlights.
Agriprocessors Supervisor
Sentenced to 23 Months in Prison
On
March 4, 2009, ICE announced that an Agriprocessors
supervisor had been sentenced to 23 months in prison for aiding and
abetting the harbor of unauthorized workers.
Arrests in Multi-State Visa Fraud Operation
On
February 12, 2009, ICE announced that 11 individuals had
been arrested in seven states in connection with suspected visa and
mail fraud. Vision Systems Group Inc. was also indicted in a
10-count federal indictment that included one count of conspiracy,
eight counts of mail fraud, and one count of 'Notice of Forfeiture'
in the amount of $7.4 million. ICE declared that the
"multi-state enforcement action is the result of an extensive,
ongoing investigation into suspected H-1B visa fraud, mail fraud, and
conspiracy."
Restaurant Owner Sentenced to Eight Months of Home Confinement
On
February 9, 2009, ICE announced that the former owner of
an Asian Buffet restaurant in Vacaville, California was sentenced to
eight months of home confinement and three years probation stemming
from a September 2008 raid on the restaurant and his employment of
persons not authorized to work in the US.
Visa Priority Dates - April
Visa Bulletin
|
