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Judge Rules
H-1B Worker Deportable For Starting New Job Before New Employer Filed
Petition
On September 8th, the Seventh Circuit Court of Appeals ruled that a
foreign national working in the US was deportable for failing to
maintain the terms of his H-1B visa. The individual had begun
working with a new employer at least three months prior to the new
employer filing a petition to "port" his H-1B visa.
The H-1B is a temporary work status used by US employers for hiring
foreign nationals to perform a job which requires a bachelor's degree
or higher (professionals). H-1B Portability allows a foreign
national who currently holds H-1B status to change employers, but the
new employer must file a petition prior to the employee beginning
work. For more on H-1B status, see the Clark Hill Website.
Visa Lottery
Opens October 2nd
Every year Congress issues 50,000
permanent resident visas (green cards) to randomly selected
applicants who completed entries, meet eligibility requirements and
are from countries with low rates of immigration to the United
States. Entries for the 2009 Diversity
Lottery must be submitted electronically between October 2,
2008 and December 1, 2008. There is no fee to enter and
applicants must only enter once. Our office encourages foreign
nationals NOT to pay a fee for assistance with this process, as it
does not increase the chances of success. Photographs of the
applicant, spouse, and his/her children under age 21 must also be
submitted electronically (for specifications, see the instructions).
To prevent delays due to heavy demand, it is best not to wait until
the last few days to apply. An applicant must be from a qualifying
country (see below), and have either a high school education or two
years of experience within the past five years in an occupation
requiring at least two years of training to perform. Persons must
maintain US status in order to obtain their green card in the United
States (Adjustment of Status).
Natives of the following
countries are ineligible to enter the 2010 Diversity Lottery: Brazil,
Canada, P.R. China, Colombia, Dominican
Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan,
Philippines, Peru, Poland, South Korea, United Kingdom (except
Northern Ireland), and Vietnam. If a person is a native of one of
these ineligible countries but their spouse is from a country that is
eligible, he/she may be eligible under the spouse's country of birth.
Those who are chosen in the lottery will be notified by mail between
May and July 2009. Green cards will be issued between October 1, 2009
and September 30, 2010. If processing is not complete by September
30, 2010, an applicant, even though selected in the lottery, will not
receive a green card. If selected, spouses and unmarried children
under age 21 may also apply for a green card.
E-Verify
Required For All Vendors Doing Business With Rhode Island
In March 2008, the governor of Rhode
Island had authored an executive order requiring all vendors and
contractors with the State of Rhode Island to check their workers
immigration status and participate in the E-Verify program. For
more on E-Verify visit the DHS website. The
American Civil Liberties Union filed a lawsuit to stop enforcement
of the executive order. The lawsuit alleged the E-Verify
program may encourage employers to discriminate against workers who
appear foreign and may disproportionately identify foreign-born
workers as ineligible for employment. On September 15, 2008, a
judge denied a request for a temporary restraining order against
enforcement of the E-Verify requirement. Companies that do business
with the State of Rhode Island will now have to participate in
E-Verify.
Appeals
Court Upholds Arizona Law That Punishes
Businesses For Hiring Unauthorized Workers
The Ninth Circuit Court of
Appeals upheld an Arizona law that suspends or revokes the
business license of employers who knowingly hire unauthorized
workers. This law has not yet been enforced. The Ninth
Circuit left open the possibility for future lawsuits based on how
the law is implemented.
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 in the
last few months, below are a few of the highlights.
ICE Raid in California
On September 18, 2008 ICE
announced a raid on two Sacramento area Chinese restaurants
arresting 21 individuals at the restaurants and in homes owned by
individuals affiliated with the restaurants.
Seven Companies Notified of Potential Debarment from Federal
Contracting
On September 12th ICE notified
seven companies that they will be considered for debarment from
federal contracting. ICE alleged each company has been
unlawfully employing persons without employment authorization.
ICE Raid in Palm Springs, California
On September 10th ICE raided
Palm Springs Bakery in Palm Springs, California arresting 51
workers and a current and former supervisor. The supervisors
were charged in a criminal complaint with one count of continuing to
employ an unauthorized alien and face up to six months in prison and
a $3,000 fine for each unauthorized worker.
Agriprocessors Human Resources
Employees Arrested
On September 9th ICE arrested
two human resources employees at Agriprocessors
Inc. in Postville, Iowa. One human resources employee was
charged with aiding and abetting document fraud, aiding and abetting
aggravated identity theft, and conspiring to harbor illegal
aliens. That employee faces up to 22 years in prison and a
$750,000 fine if convicted of all charges.
Shipley Do-Nuts Executives Plead Guilty
On September 5th ICE announced
the president and three managers of Shipley Do-Nut Flour and Supply
Company plead guilty to conspiring to harbor illegal aliens.
ICE Raid in Arcata, California
On September 3rd ICE announced
the arrest of 23 employees of a wholesale flower grower, The Sun
Valley Group, on immigration violations.
Visa
Priority Dates - October Visa Bulletin
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