AN UPDATE ON IMMIGRATION
LAW AND RELATED NEWS FROM
MEYNER AND LANDIS LLP
First Quarter 2009
In this Issue:
New Stimulus Bill Makes It More Difficult For TARP Funds Recipients To Hire H-1B Workers
The Stimulus Bill signed into law on Tuesday, February 17 by President Obama has certainly made it more complicated for companies that received Troubled Asset Recovery Program ("TARP") funds to hire new foreign workers on H-1B visas. More specifically, Section 1611(b) of the American Recovery and Reinvestment Act of 2009 provides that TARP recipients may not hire new H-1B workers unless such recipients comply with the requirements for an "H-1B dependent" employer, as defined by INA 212(n)(3).
Until last Tuesday, "H-1B dependent" was a special status held only for companies that employ 15% or more of its workforce with H-1B visa holders. Now, all companies who received TARP recipients will fall into that status, regardless of the percentage of H-1B non-immigrants it employs.
Before hiring a qualified foreign national, H-1B dependent companies are required to actively recruit U.S. workers and may not file a Labor Condition Application ("LCA") for new employment unless they complete the required recruitment and make the attestations required of H-1B dependent employers. Among others, H-1B-dependent companies are required to attest that the company (i) engaged in a "good faith" effort to recruit U.S. workers for the position for which the company is seeking to employ the H-1B worker; and (ii) offered at least the "prevailing wage" during the recruitment process.
Such attestations, of course, are subject to audit.
For information regarding those employers who are recipients of such funding, please click here:
http://www.treas.gov/initiatives/eesa/transactions.shtml
Effective Date For Mandatory E-Verify For Federal Contractors Postponed To May 21, 2009
Originally effective January 15, 2009, then delayed to February 20, 2009, the United States Chamber of Commerce recently postponed the effective date of mandatory enrollment in E-Verify for Federal contractors and subcontractors to May 21, 2009. The litigants challenging the compulsory nature of the rule have agreed to stay proceedings to allow the Obama Administration the opportunity to review the proposed rule.
To review the "Frequently Asked Questions" on USCIS' Website, please click here
http://www.uscis.gov/files/article/FAR_FAQ_13nov08.pdf
New Form I-9 Implementation Delayed To April 3, 2009
United States Citizenship and Immigration Services ("USCIS") recently announced that it delayed, until April 3, 2009, the implementation of the interim final rule entitled "Documents Acceptable for Employment Eligibility Verification." Such rule, published in the Federal Register on December 17, seeks to streamline the Form I-9 process. Hence, effective April 3, 2009, all employers will be required to complete the new I-9 form for all new employees, as well as for re-verification of certain employees with temporary work authorization. Until such time, employers should continue to use the current version of the form (Rev. 06/05/07).
Starting April 3, 2009, the new I-9 form will be available at www.uscis.gov/files/form/I-9.pdf
DHS Inspector General Special Report Shows 108,434 Illegal Alien Parents Of U.S. Citizen Children Were Deported Between 1998 and 2007
The Department of Homeland Security, Office of Inspector General recently issued a report which shows, among other statistics, that the United States was responsible for 2,199,138 alien removals between Fiscal Years 1998 and 2007. Of that number, 108,434 removals, or roughly 5%, were illegal alien parents of U.S. citizen children. The report provides further statistics on the number of illegal alien parents removed for immigration violations, such as being present without authorization, as well as the number of illegal alien parents removed for committing criminal violations that affect one's immigration status.
To review the DHS report, in full, please click here:
http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_09-15_Jan09.pdf
NJ Corporation Alleged To Be Part Of An H-1B Visa Fraud Ring
On February 11, Federal agents arrested eleven (11) individuals in seven (7) states on allegations that such individuals submitted false statements or documents in support of their H-1B visa petitions. The arrests came in connection with a U.S. Department of Justice ("DOJ") investigation of several IT consulting companies, probing H-1B fraud. A January 22 indictment charges Vision Systems Group Inc., a New Jersey-based company, with visa fraud, mail fraud, wire fraud, money laundering and conspiracy. The indictment seeks $7.4 million in forfeitures against the Company.
The investigation focuses on IT consulting companies that sponsor H-1B workers in specialty occupations. It is alleged that Vision Systems filed H-1B petitions on behalf of workers abroad to fill existing IT vacancies in the United States. It is further alleged that said companies did not always have jobs available for these workers, thus placing them in non-pay status after they arrived in the United States. The indictment also alleges, in some cases, that foreign nationals were placed in jobs and locations not certified by the Department of Labor ("DOL"), thus possibly displacing qualified American workers and violating prevailing wage laws.
In connection with these arrests, USCIS announced that it is battling back against H-1B visa fraud to restore confidence and support in the H-1B program. Acting Deputy Director of USCIS, Michael Aytes stated, "visa fraud undermines the integrity of the immigration system and I'm proud that our officers have helped to ensure that the American people and our customers can continue to depend on a reliable system."
As with any criminal case, a charge in an indictment is merely an accusation-not a finding of guilt.
Secretary Napolitano Issues Immigration And Border Security Action Directive
United States Department of Homeland Security ("DHS") Secretary Janet Napolitano recently announced a wide-ranging action directive on immigration and border security.
The directive requires specific DHS offices and components to work together and with State and local partners to review and assess the plans and policies to address the following issues: criminal and fugitive aliens; legal immigration benefit backlogs; southbound gun smuggling; cooperation with the National Guard; widows and widowers of U.S. citizens; immigration detention centers and electronic employee verification.
Such directive is the last in Secretary Napolitano's initial series of directives focused on a wide variety of issues impacting the DHS' missions: Protection, Preparedness, Response, Recovery and Immigration.
According to the DHS press release, with regard to category of "legal immigration benefit backlogs", Secretary Napolitano's directive will specifically focus on some of the following issues:
(i) What progress has been made in reducing the significant backlogs developed in the adjudication of naturalization petitions and adjustment of status (green card) applications?
(ii) Which regional offices still lag behind in making progress toward target processing times, and what specific steps are recommended for providing priority resources to those offices?
(iii) What steps have been taken and what further steps are recommended to make sure that the full quota of permanent immigration spaces is used each fiscal year?
(iv) What regulatory or legislative changes (including a possible pre-application filing procedure for adjustment cases) are recommended to facilitate caseload planning and make optimum use of U.S. Citizenship and Immigration Services adjudication capacity?
Congressman Hastings (D-FL) Renews Efforts To Designate Haiti For Temporary Protected Status
Rep. Hastings (D-FL) and other Congressional supporters have renewed their efforts to request the U.S. Government to grant temporary protected status ("TPS") of undocumented Haitian immigrants, after such request was denied last month.
The debate over granting TPS benefits to Haitian immigrants continues to vacillate and remains indecisive. In September 1998, the Government halted Haitian deportations after four tropical storms ravaged the country, raising the hopes of advocates that the outgoing Bush administration might grant TPS status to those individuals. However, on December 19, those hopes were dashed when DHS Secretary Michael Chertoff wrote to Haitian President Rene Preval, explaining that temporary status would not be granted. After consulting with the State Department and USCIS, Chertoff "concluded that Haiti does not currently warrant [TPS] designation."
The countries (or parts thereof) currently designated for TPS benefits are: Burundi, El Salvador, Honduras, Nicaragua, Somalia and Sudan.
New Bill Encourages Timely Reporting Of Detainee Deaths
In the wake of the death of a second immigrant detainee at the Piedmont Regional Jail in Virginia, which occurred in November, the U.S. House of Representatives recently passed a bill which encourages detention facilities to promptly report detainee deaths to the U.S. Attorney General. More specifically, under the "Deaths In Custody Reporting Act", State and Federally-run facilities that receive funding from the Federal Government will lose a percentage of their allotment if they fail to provide details of detainee deaths in a timely fashion.
More specifically, under the bill, the facility must provide the following details, at a minimum: (i) the name, gender, race, ethnicity, and age of the deceased; and (ii) the date, time, and location of the death, as well as a description of the circumstances surrounding the death; and (iii) the name of the law enforcement agency that detained, arrested, or was in the process of arresting the deceased.
The proposed bill requires States to submit their reports within 30 days of the detainee's death. The failure of any State to comply within the 30 day filing period will result in the withholding of 10 percent of the Federal funds that would otherwise have been allocated for that State under grant programs established by the Omnibus Crime Control and Safe Streets Act of 1968. This punitive provision may be waived by the Attorney General.
Portions of this Newsletter have been
Reprinted with permission from AILA
Copyright © 2009, American Immigration Lawyers Association
The material contained in this newsletter is for informational purposes and should not be considered legal advice.
For further information, please contact Anthony F. Siliato, Esq.
Meyner and Landis LLP, One Gateway Center, Suite 2500, Newark, NJ 07102
(973) 602-3440 - asiliato@meyner.com
www.meyner.com
