Vol. XXXV A MONTHLY UPDATE ON IMMIGRATION APRIL 2009In this Issue: Immigration News & Policy Updates
The Road To Comprehensive Immigration Reform
IMMIGRATION NEWS AND POLICY UPDATESInformation On Cap-Gap Extensions Of Optical Practical TrainingU.S. employers often turn to H-1B professionals when they recruit graduates and post-graduates from U.S. universities. In fact, foreign students represent about half of all U.S. graduate enrollments in engineering, math, and computer science. Studies indicate that there are still not enough U.S. students graduating with advanced degrees in these fields to fill highly specialized positions, and, according to the Bureau of Labor Statistics, the demand for such graduates will increase substantially over the next ten years. It is, therefore, imperative that U.S. businesses have access to foreign professionals who have graduated from U.S. universities. If your Company employs an F-1 nonimmigrant student on post-completion optional practical training (“OPT”), and that student is the beneficiary of a pending or approved H-1B petition, the student may be eligible to continue working beyond the expiration date on his/her EAD. In years past, F-1 students who were the beneficiaries of an H-1B petition often had their F-1 status expire before H-1B status began on October 1 – a period known as “cap gap.” The most common situation occurred when a student’s OPT ended on the late spring upon graduation, and the student’s F-1 status expired 60 days after that, leaving a gap of several months before that individual’s H-1B status began on October 1. Prior to the recent regulation, that F-1 student, in most cases, would have to leave the United States and return at the time the student’s H-1B status became effective . Under the “cap gap” regulation promulgated in April 2008, the OPT for a student in valid F-1 status is automatically extended while an H-1B petition is pending with the USCIS. So long as his/her petition (i) remains pending, (ii) is selected in the “lottery”, or (iii) is approved, OPT will be extended (through the intended commencement date set forth in the petition), provided that that a “change of status” is elected in Section 3 of the I-129 form. If, however, the petition is denied, OPT will not be extended but will end on the date set forth on the student’s EAD. The normal 60 day grace period for F-1 students will apply. A student who is eligible for the cap-gap extension must work with the appropriate official at their school to receive an updated Form I-20. New Form I-9 Effective ImmediatelyAs of Friday, April 3, 2009, employers may no longer use prior versions of the Form I-9 Employment Eligibility Verification. Rather, the revised Form I-9 (Rev. 2/02/09) is now in effect for all U.S. employers (the revision date is printed on the lower right-hand corner of the form). Should you have any questions regarding the new form or your Company’s obligations to remain I-9 compliant, please do not hesitate to contact us. It’s Still Not Too Late To File H-1B Petitions Under The Cap!USCIS recently announced on its website an updated the tally of H-1B petitions received and counted towards the H-1B cap. As of April 20, USCIS has received approximately 44,000 H-1B petitions that will count toward the Congressionally-mandated 65,000 general cap. As such, USCIS has advised that the agency will continue to accept petitions subject to the general cap. Additionally, USCIS reports to have received approximately 20,000 petitions for foreign nationals with advanced degrees. Notwithstanding, USCIS advises that it will continue to accept advanced degree petitions as prior experience dictates that all Masters Cap petitions received are not necessarily approvable. Congress mandates that the first 20,000 of the Masters Cap petitions are exempt from any fiscal year cap on available H-1B visas. This presents a very unique opportunity for those employers who may have opted not to file H-1B petitions for otherwise eligible workers because of the potential for wasted efforts and resources should such petitions not be selected in the anticipated lottery. This is not to say that no such risk exists; however, based upon this updated news, it appears there is plenty of availability under the regular cap, as well as a window of opportunity under the U.S. master's cap if you act promptly. As USCIS provides updates on the receipt or processing of FY2010 H-1B petitions, we will post them on our H-1B Visa blog at http://blogs.ilw.com/h1bvisablog/ Mandatory E-Verify For Federal Contractors Postponed Once AgainUnited States Citizenship and Immigration Services ("USCIS") has announced that the applicability date of the final rule requiring all Federal contractors and subcontractors (with certain limited exceptions) to enroll in the E-Verify System would be postponed, once again, this time until June 30, 2009. Originally slated to be effective on January 15, 2009, this marks the third extension of this rule. As such, it remains to be seen whether this will be the last extension. Should you have any questions regarding the recent extension of the Federal E-Verify program, or if your business contracts with state agencies in any state, please do not hesitate to contact us to discuss your obligations under any such statutes. DOL Announces iCert Rollout, Releases Fact SheetThe Office of Foreign Labor Certification (“OFLC”) recently announced the implementation of a new one-stop visa portal system, formally called the iCERT System, to improve employer access to employment-based visa application services and OFLC immigration news and information. Effective April 15, 2009, employers or their authorized representatives are eligible to register with the iCERT System and establish a single account to file the new ETA Form 9035E - Labor Condition Application (LCA) covering the H-1B, H-1B1, and E-3 visa programs. In addition, OFLC has implemented a dedicated Help Desk at the Chicago National Processing Center to serve as a resource to those employers or their authorized representatives filing LCAs with the Department. To obtain a copy of the iCERT System implementation factsheet, including a preliminary schedule for implementing the new ETA Form 9089 for the PERM program, click here. THE ROAD TO COMPREHENSIVE IMMIGRATION REFORMPresident Obama To Discuss Comprehensive Immigration Reform As Early As Next MonthAccording to a recent article in the New York Times, the White House has made it clear that President Obama intends to make good on his campaign promise to reform our dysfunctional, antiquated U.S. immigration system during his first year of office. In fact, the New York Times reported that President Obama “plans to speak publicly about the issue in May” and “over the summer he will convene working groups, including lawmakers from both parties and a range of immigration groups, to begin discussing possible legislation for as early as this fall.” Clearly, party leaders are sending a strong message that immigration reform is “in the making.” White House Chief Of Staff, Rahm Emanuel, reportedly has begun taking “concrete steps” in support of President Obama’s message for comprehensive immigration reform according to The Wall Street Journal. Additionally, recent statements from House Speaker Nancy Pelosi and Senator Harry Reid have also signaled their support for comprehensive immigration reform. White House officials have stated publicly that a key component of comprehensive immigration reform will be establishing a pathway to legal status for the roughly 12 million undocumented immigrants currently residing in the United States. A well-tailored legalization program would, in fact, bring order and legality to what is now a chaotic and unregulated situation. It is presumed that undocumented immigrants applying for legal status would not only be required to register with the Federal Government, but would also have to meet a number of other requirements, including paying taxes, getting criminal background checks, learning English, and paying a fine for entering the United States illegally. Additionally, comprehensive immigration reform may address many of the other flaws and inequities within our current immigration system, including updating Congressionally-mandated limits on corporate and business-related immigrant and nonimmigrant visas based upon the rise and fall of labor needs of our economy [rather than antiquated and arbitrary numerical caps that bear no relationship to labor demand] and reducing of the enormous backlog of applications for family reunifications. Finally, comprehensive immigration reform may establish more effective enforcement mechanisms to find individuals who pose a danger to public safety or our national security, as well as targeted measures to enforce the laws against those employers knowingly employing undocumented workers. Anticipating opposition to immigration reform, President Obama has sought to shift some of the political burden to advocates for immigrants, by encouraging them to build support among voters for when his proposal goes to Congress. In addition to our March 19 visit with a senior staff member of Congressman Donald M. Payne’s office (D.NJ) in connection with the American Immigration Lawyers Association’s National Day Of Action, the Immigration Law Group of Meyner and Landis LLP plans to work with Congressman Payne and others to spread the message about the underlying importance of the White House’s efforts to fix our currently broken immigration system. A.F.L.-C.I.O. and “Change to Win” Also Support Comprehensive Immigration ReformIn addition to party leaders, the nation’s two major labor federations, the A.F.L.-C.I.O. and Change to Win, have reportedly agreed, for the first time, to jointly support comprehensive immigration reform. The support of these labor federations serves as recognition by labor leaders that immigration reform is actually in step with economic recovery and provides further evidence that the momentum for immigration reform is building. Indeed, both academia and government research are in accord that comprehensive immigration reform would not only pay for itself in the form of increased wages and tax contributions, but would benefit all businesses with the concomitant increase in buying power for those who are currently undocumented. Stay tuned for the latest developments evidencing the growing sentiment to fix our broken immigration system. Tune In For The First Senate Judiciary Committee Hearing On Comprehensive Immigration Reform on April 30!Senator Charles Schumer (D-NY), who is now Chair of the Immigration Subcommittee in the Senate, announced that he will begin hearings on immigration reform next week. The first hearing, "Comprehensive Immigration Reform in 2009, Can We Do It and How" will be held on April 30. The witnesses for this hearing will include: J. Thomas Manger, Chief of Police, Montgomery County, MD and currently the Director, Major Cities Chiefs Association; Alan Greenspan, Former Chairman, Federal Reserve; Dr. Joel Hunter, Senior Pastor, Northland Church (Longwood, FL); Doris Meissner, Former Commissioner, U.S. Immigration and Naturalization Service; and Eliseo Medina, Executive Vice President, Service Employees International Union. You can listen in on the hearing by going to the following page on the Senate Judiciary Committee's Web site and clicking on "Webcast." The web link is as follows: http://judiciary.senate.gov/hearings/hearing.cfm?id=3793 Portions of this Newsletter have been
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