December 2009 Newsletter

Vol. XXXXIII

A MONTHLY UPDATE ON IMMIGRATION
LAW AND RELATED NEWS FROM
MEYNER AND LANDIS LLP

December 2009

In this Issue:

Recent Immigration Law News & Policy Updates

Corporate And Business Immigration Law News & Policy Updates

• The H-1B Visa Cap (For FY 2010) Has Been Reached
• Illinois E-Verify Bill to Take Effect on January 1, 2010
• Secretary Napolitano Highlights DHS’ Major Accomplishments In 2009

The Road To Comprehensive Immigration Reform

• CIR ASAP – A Step In the Right Direction, But is Reform Imminent?

CORPORATE AND BUSINESS IMMIGRATION LAW NEWS AND POLICY UPDATES

The H-1B Visa Cap (For FY 2010) Has Been Reached

U.S. Citizenship and Immigration Services (“USCIS”) recently announced that as of December 21, 2009, it had received a sufficient number of H-1B petitions to reach the Congressionally-mandated cap of 65,000 new H-1B visas for fiscal year 2010 (“FY 2010”). Indeed, December 21, 2009 was named the “final receipt date” for new H-1B petitions under the cap. As such, USCIS will reject cap-subject petitions which arrived after December 21.

USCIS also announced that it will apply a random lottery selection process to all cap subject petitions received on December 21, 2009 to fill the number of petitions that were remaining in the cap.  Those petitions not selected in the lottery will be rejected and returned to the petitioner with the appropriate filing fees.

Based on this announcement, please calendar March 1, 2010 as an important date to apprise us of the potential H-1B candidates your organization plans to sponsor for next year’s H-1B cap so that we can work with you to timely prepare and file those H-1B petitions on the first day of eligibility for the FY 2011 cap, which is April 1, 2010, with an effective date of October 1, 2010.

Please note that H-1B visa petition extensions and transfers are not subject to the annual cap and, therefore, will continue to be regularly accepted by USCIS. Likewise, H-1B nonimmigrants who work at (but not necessarily for) eligible universities and other qualifying non-profit research facilities may also be excluded from the numerical H-1B visa cap.

If you have any questions about the cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.

Illinois E-Verify Bill to Take Effect on January 1, 2010

Illinois bill SB 1133, designed to amend the Illinois Privacy in the Workplace Act by eliminating the law’s prohibition for employers to use the E-Verify system, will take effect on January 1, 2010.  SB 1133 was signed into law by Illinois Governor Quinn in August 2009.

Prior to the passage of SB 1133, the Illinois State Legislature had passed the Illinois Privacy in the Workplace Act which effectively forbade Illinois employers from enrolling in the E-Verify system.  However, shortly after the bill was passed, the State of Illinois agreed not to enforce the statute pending the outcome of a lawsuit filed by the Department of Homeland Security challenging the validity of the statute. 

SB 1133, in effect, reverses the Legislature’s prohibitions placed on the E-Verify program originally contemplated by the Illinois Privacy in the Workplace Act.

Secretary Napolitano Highlights DHS’ Major Accomplishments In 2009

Department of Homeland Security (“DHS”) Secretary Janet Napolitano recently highlighted the Department’s 2009 accomplishments in an address to DHS employees—emphasizing the steps DHS has taken in 2009, including enhancing the country’s capabilities to secure our nation’s borders; engaging in “smart enforcement of our immigration laws”; and “unifying and maturing” the Department and its 230,000-employee global workforce.

“To secure our nation’s borders while facilitating lawful travel and trade”, Secretary Napolitano claimed that DHS has (i) deployed additional personnel and technology to the Southwest border while increasing coordination with federal, state, local and Mexican law enforcement as part of the Obama administration’s Southwest Border Initiative; (ii) implemented the Western Hemisphere Travel Initiative for land and sea travel to the United States; (iii) expanded Global Entry (a pilot program which streamlines the screening process at airports for trusted travelers through biometric identification); and (iv) entered into new partnerships across the federal government and with international counterparts to crack down on drug and firearms trafficking.

“To engage in smart and effective enforcement of our immigration laws”, Secretary Napolitano outlined that DHS has (i) implemented a new, comprehensive worksite enforcement strategy to reduce demand for illegal employment and protect employment opportunities for the nation's lawful workforce; (ii) initiated major reforms to the nation’s immigration detention system to enhance security and efficiency while prioritizing the health and safety of detainees; and (iii) expanded the Secure Communities program, which uses biometric information to target criminal aliens in U.S. correctional facilities, to over 100 jurisdictions across the country.

“To unify and mature the Department”, Secretary Napolitano claimed to have launched major reforms to foster a culture of responsibility and fiscal discipline, including a Department-wide Efficiency Review to cut costs and streamline operations through a series of initiatives ranging from eliminating non-mission critical travel to acquiring enterprise licenses for commonly used software—collectively expected to lead to hundreds of millions of dollars in cost avoidances.

Only time will tell whether such initiatives will, in fact, accomplish the aforementioned objectives.  If past government efforts to “unify” or “mature” are any indication of DHS’ future success, well, we’ll leave the rest of that sentence to your imagination…

THE ROAD TO COMPREHENSIVE IMMIGRATION REFORM

CIR ASAP – A Step In the Right Direction, But is Reform Imminent?

On December 15, Congressman Gutierrez (D-Ill.) and twenty (20) other House Democrats introduced the Comprehensive Immigration Reform for America’s Security and Prosperity (CIR ASAP) Act of 2009  (H.R. 4321 ) in the House of Representatives. To date, the bill has 92 co-sponsors, all of them Democrats.

The bill is multi-faceted and has proven highly controversial.  Most controversial is the bill’s proposed path to legalization for undocumented immigrants currently living in the U.S. as of December 15.  According to the bill, such undocumented immigrants must (i) demonstrate employment, (ii) undergo a criminal background check, (iii) learn English and (iv) pay penalties; all in exchange for a temporary, six (6) year visa which later provides an opportunity for these individuals to become lawful permanent residents of the United States.

CIR ASAP also seeks to incorporate the Development, Relief and Education for Alien Minors Act, otherwise known as the “DREAM Act”. The DREAM Act proposed federal legislation which seeks to provide certain, qualified undocumented immigrant students who graduate from U.S. high schools the opportunity to earn conditional permanent residency so they may remain in the U.S. to pursue a course of study at our colleges and universities.  To qualify under the DREAM Act, applicants must demonstrate they (i) are of good moral character (no criminal history); (ii) arrived in the U.S. as child; and (iii) have continuously resided in the U.S. for at least five (5) years prior to the bill’s enactment.

CIR ASAP also provides for increased training and equipment for United States Customs and Border Protection, improved conditions for immigration detainees and a bid to end to the controversial program authorizing state and local authorities to enforce our immigration laws.

Finally, the proposed bill would increase and improve the current “preference” systems for admitting both employment-based and family-based immigrants. Under current law, there is an annual cap of 140,000 employment-based green cards available (subject to per country limits) to qualified immigrants and their dependents. This antiquated quota was set by Congress several years ago, and has not been updated to meet current employment needs -- thereby creating the multi-year employment-based backlogs that we have today.  Likewise, with family-based petitions, due to the quota system currently in place, family members are forced to remain apart for several years while awaiting immigrant visa numbers.  By way of example, under the current family-based quota system, (i) siblings of U.S. citizens have a minimum 10 year backlog; (ii) unmarried children (21 years of age and older) of U.S. citizens have a minimum wait of 6 years; (iii) spouses and minor children of Lawful Permanent Residents have a minimum 4 year wait; and (iv) unmarried children (21 years of age and older) of Lawful Permanent Residents have a minimum wait of 8 years. 

Immigration reform is clearly overdue.

In the coming months, the Chairman of the Immigration Subcommittee, Charles Schumer (D-NY), and Senator Lindsay Graham (R-SC) are expected to introduce a bipartisan immigration reform bill in the Senate.  Since the Senate bill will be bipartisan, we expect that the bill will contain tougher worksite enforcement provisions, more requirements to secure our nation’s borders, and a less generous legalization program, than does Congressman Gutierrez’s House bill.

Speaker of the House Nancy Pelosi (D-CA), Senate Majority Leader Harry Reid (D-NV) and the Obama Administration have agreed that the Senate will first take up the issue of immigration reform bill before the House of Representatives.

Although President Obama has indicated he expects Congress to pass an immigration bill in 2010, there seems to be other “business”, such as energy reform and regulation of the financial markets, which will likely take precedent over the passage of a comprehensive immigration reform bill.  Moreover, similar comprehensive immigration reform bills have been rejected repeatedly in the past by critics (including most Republicans) who insist that, before any action on legalization is considered, a border crackdown must demonstrate its effectiveness.

Once again, only time will tell whether we receive the much-needed reform of our broken immigration system.