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IMMIGRATION LAW UPDATE
Obama Extends
Four Immigration Related Programs (Including E-Verify and Conrad 30)
Through
September 30, 2012
On October 28,
2009, President Obama signed into law the FY 2010 Department of
Homeland Security Appropriations Bill to fund and extend four
immigration related programs through September 30, 2012.
The following programs were extended: E-Verify (employment
compliance program); Religious Worker (immigrant petitions for
non-ministers), Conrad 30 (providing states with J-1 visa waivers for
physicians), and the EB-5 program (green cards for individuals who
own or invest in a business and create US jobs).
H-1B Cap Not
Yet Reached
On November 6, 2009, US Citizenship
and Immigration Services (USCIS) announced that it has received
approximately 54,700 H-1B petitions toward the 65,000 available per
fiscal year under the general cap. USCIS continues to accept
petitions toward the general cap. In addition, the agency
stated it has reached the 20,000 US Master's cap for H-1B applicants
with advanced degrees. Individuals with advanced degrees will
continue to be accepted, but will now count toward the 65,000 general
cap. The H-1B is a frequently utilized temporary work visa for
professional positions. For more information on the H-1B visa, see the Clark Hill website.
Temporary Acceptance of H-1Bs Without LCAs
USCIS has announced a 120 day
period, through March 4, 2010, where it will accept H-1B applications
that include LCAs that have been filed with the Department of Labor
(DOL) but have not yet been certified by the Department of
Labor. The H-1B petitions will be accepted if the LCAs were
filed at least seven days prior to the filing of the H-1B petition
and so long as the petitioner includes a copy of the e-mail from the
DOL evidencing filing of the LCA. The LCA is a wage compliance
form that must accompany every H-1B filing. Delays in approving
LCAs under this new system are what prompted this change in USCIS
policy. The H-1B is a frequently utilized temporary work visa
for professional positions. For more information on the H-1B
visa, see the Clark Hill website.
HIV Removed From List of Communicable Diseases for
Immigration Purposes
A federal
regulation has removed the Human Immunodeficiency Virus
("HIV") from the definition of communicable diseases of
public health significance and has removed HIV from the scope of
examinations of foreign nationals required for US immigration.
As a result of this rule, foreign nationals will no longer be
inadmissible to the US based solely on the ground that they are
infected with HIV and they will not be required to undergo HIV
testing.
Senators Grassley and Sanders Plan to Introduce Bill
Regarding Immigration
US Senators
Grassley and Sanders plan to introduce a bill requiring employers to
certify that large numbers of US workers have not been laid-off
within the preceding 12 months before the employer is allowed to
sponsor a foreign worker in the US. The bill proposes to require
employers to certify that the employer has not provided notice of a
mass lay-off under the Worker Adjustment and Retraining Notification
(WARN) Act during the 12 month period prior to which the employer
proposes to employ the foreign worker. The bill also provides
that any employer sponsored visas currently valid for that employer
will automatically expire 60 days after the WARN Act notice was
provided. The WARN Act is a federal law that requires
employers, who have 100 or more employees, to give 60 days notice to
employees in the event of a mass layoff or plant closing. A
mass layoff is 33% of the workforce and at least 50 employees.
A plant closing occurs when the company closes a plant and lays off
50 or more employees.
Immigration Site Visits
USCIS continues
to engage its employees, and in some cases outside contractors, to
conduct site visits of companies who have submitted petitions for
non-immigrant work categories including H-1Bs and L-1s. Other
immigration agencies such as ICE (Immigration and Customs
Enforcement), CBP (Customs and Border Patrol), and the DOL (US
Department of Labor), may also conduct site visits for immigration
related matters, issues regarding employment authorization, and
public access folder for certain types of non-immigrant categories
such as H-1Bs. These site visits may occur before or after the
approval of the petition. We believe the visits will occur to
confirm the details of the employment listed in the petition and to
determine if any fraud has occurred. Please contact Mike Nowlan
(mnowlan@clarkhill.com) or Roberta
Freedman (rfreedman@clarkhill.com)
if you have any questions regarding preparing for or responding to
these site visits.
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.
Individual
Arrested for Document Fraud
On November 10, 2009, ICE announced
that a man in North Carolina had been arrested for allegedly
producing and selling fraudulent immigration, Social Security and
North Carolina Department of Motor Vehicle documents.
Six Florida
Residents Arrested for Immigration Benefit Fraud
On November 4, 2009, ICE announced
that six individuals in South Florida had been arrested for
immigration benefit fraud for the filing of false applications for
persons not authorized to be in the US and knowing the applicants
were not entitled to the benefits sought. The leader of the
scheme claimed to be an immigration attorney and consultant.
Visa Priority Dates - December Visa Bulletin
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