July 2009 Newsletter

Vol. XXXVIII

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

July 2009

In this Issue:

Immigration Law News & Policy Updates

• I-9 Audits: An Emerging Investigative Tool In DHS’ Arsenal For Implementing The Administration’s New Policy Of Enforcing Immigration Compliance Against The Employer
• 20,000 H-1B Visas Still Remain Available Under The Cap!
• Department Of Homeland Security To Implement E-Verify; Possibly Revoke SSA No-Match Rule
• Blanket L Petition: If You Don’t Use It, You May Lose It
• Premium Processing Now Available For Certain Categories Of Immigrant Visa Petitions (Form I-140)

The Road To Comprehensive Immigration Reform

• Police Chiefs Stress The Importance Of Comprehensive Immigration Reform

IMMIGRATION LAW NEWS AND POLICY UPDATES

I-9 Audits: An Emerging Investigative Tool In DHS’ Arsenal For Implementing The Administration’s New Policy Of Enforcing Immigration Compliance Against The Employer:

As reported in our May 2009 newsletter article titled, “The Department of Homeland Security Has Issued A New Directive To Focus Their Investigations On The Companies Hiring Undocumented Workers Rather Than Undocumented Workers Themselves”,  DHS Secretary Janet Napolitano announced in an April 30 press release that DHS had promulgated new field guidelines to “outline ways to build a criminal case against a business that knowingly hires illegal workers.” Those new guidelines emphasized the Administration’s interest in utilizing investigative tools including “auditing I-9 files, having illegal workers go undercover, and soliciting information from people who regularly interact with the employers (including competitors)” as just a few of DHS’ newly developed investigational methods of DHS.

Over the past several weeks, DHS has begun to follow through on its promise to implement such investigational tools by conducting an increasing number of audits of employers’ I-9 forms. More specifically, the Immigration and Customs Enforcement Division of DHS (“ICE”) has notified several hundred companies of ICE’s intent to audit their I-9 forms. Employers selected for such audits received a Notice of Inspection (“NOI”) with instructions to present all original I-9 forms and supporting documents. ICE regulations require the provision of three days notice prior to conducting such an audit.

According to a July 1 press release, ICE issued administrative NOI’s to 652 businesses nationwide (compared to 503 notices issued for the entire year of 2008). The press release also provided that ICE had identified the 652 employers as those resulting from “leads and information obtained through other investigative means.”

In light of these dramatically heightened investigations, it is important that you reassess the effectiveness of your compliance programs and take the appropriate steps to protect your business from potential fines and/or even criminal investigations.

To inquire about the protections available to your business and its employees, or about the potential ramifications of these changes to you or your organization, please do not hesitate to contact us.

20,100 H-1B Visas Still Remain Available Under The Cap

For the first time in recent memory, USCIS has been reporting an actual decline in the H-1B count from previous weeks. As of July 10, 2009, USCIS reported a total count of 44,900 against the 65,000 cap limit, less than the cap count of 45,800 on May 29. At first blush, this may appear as nothing more than USCIS miscounting the number of new H-1B filings for fiscal year 2010. Unfortunately, that is not the case. According to USCIS, the number of withdrawals of H-1B petitions already pending, combined with a number of denials and revocations, has exceeded the number of new H-1B filings in recent weeks.

As such, USCIS continues to accept petitions subject to the general cap.

As you may recall, in the past several years, both H-1B caps were met in the first few days of filing. This year, USCIS has been accepting petitions subject to the cap for nearly four (4) months. As such, this presents a unique opportunity for employers who opted not to file H-1B petitions for otherwise eligible workers because of the potential for wasted efforts and resources should the petitions not be selected in the H-1B lottery. Based upon this news release (and others prior), it appears that the probability of selection of your H-1B petition, in the FY 2010 quota, is almost assured if you act quickly.

DHS Said To Implement E-Verify; Possibly Revoke No-Match Rule

On July 8, the Department of Homeland Security (“DHS”) announced the Obama Administration's intent to “push ahead with full implementation” of the final rule requiring federal contractors to use the E-Verify system to verify employees’ authorization to work in the U.S. The E-Verify rule is expected to apply to federal solicitations and contract awards government-wide starting September 8.

At the same time, DHS announced its intent to issue a new regulation rescinding the rule establishing procedures for employers to follow up on receipt of a “no-match letter” from the Social Security Administration (“SSA”) or DHS. According to DHS, the E-Verify system will address the data inaccuracies that can result in no-match letters in a more timely manner, and will provide a more effective tool for identifying unauthorized individuals and combating illegal employment than will the SSA’s No-Match program.

As you may recall, the implementation of the SSA’s No-Match Rule was enjoined by the Federal District Court for the Northern District of California shortly after its issuance and, as such, has never taken effect. The No-Match Rule, if implemented, would have required the SSA to include in the mailing of its no-match letters - which are sent to employers when an employee's name and Social Security number from their W-2 do not match SSA records - a separate insert letter from DHS explaining how employers are required to resolve such discrepancies, often referred to as safe harbor procedures. It remains to be seen whether the DHS’ E-Verify System will accurately address such inquiries.

Blanket L Petition: If You Don’t Use It, You May Lose It

USCIS issued a recent reminder that it intends to revoke an approved blanket petition if none of the qualifying organizations in the blanket petition have transferred an employee pursuant to the blanket petition in three consecutive years. The Service also reminds us that this includes blanket petitions with indefinite approvals as required by 8 CFR §214.2(l)(9)(iii)(A)(6).

Premium Processing Now Available For Certain Categories Of Immigrant Visa Petitions (Form I-140)

The U.S. Citizenship and Immigration Services (“USCIS”) recently announced that it will resume Premium Processing Services for certain Immigrant Visa Petitions (Forms I-140) beginning June 29, 2009. This decision was reportedly made following a positive evaluation by the agency of its backlog-reduction efforts and increased adjudicative efficiencies for this type of application. Current processing times for I-140 petitions range from four (4) to 18 months, depending on the category and Service Center.

Premium processing was first instituted for I-140 petitions in July 2006, but was later suspended in July 2007, due to the anticipated surge of I-140 petitions filed as a result of the availability of visas in all employment categories at that time. Since then, employers, advocates and I-140 beneficiaries have sought the return of this efficient service.

All categories of Immigrant Visa Petitions are eligible for premium processing except for petitions in the EB-1 category for multinational managers and executives as well as those applications in EB-2 requesting an NIW are not eligible for premium processing.

At present, it remains to be seen whether Premium Processing is beneficial/necessary for all such eligible petitions. It has been our recent experience that I-140 petitions (that do not pose “ability to pay” issues) have been approved in less than a week with regular processing, thereby obviating the need for the client to pay the additional $1,000 fee required for the Premium Processing Service.

THE ROAD TO COMPREHENSIVE IMMIGRATION REFORM

Police Chiefs Stress The Importance Of Comprehensive Immigration Reform

The Arizona Republic recently reported about 100 police chiefs and administrators from across the country joined DHS officials in Phoenix for the “National Summit on Local Immigration Policies”, sponsored by the non-profit Police Executive Research Forum. 

The article provides that many of the nation's top law enforcement officers have “called upon Congress to promptly adopt an immigration-reform measure, saying local law-enforcement agencies across America are struggling to deal with crime and confusion caused by a broken system.”

Dennis Burke, senior adviser to Homeland Security Secretary Janet Napolitano, attended the symposium and agreed with the police chiefs. "Congress needs to work quickly," Burke said. "Delay is not painless. Secretary Napolitano has said the situation the country is in is not defensible."

The meeting focused on the struggles of police chiefs and county sheriffs trying to cope with unlawful immigration and related crime. The municipal law officers said DHS enforcement efforts have been inconsistent and unreliable for years, leaving communities to adopt helter-skelter policies that polarize the public.

"It's starting to tear my town apart," said Steven Carl, a police chief in Framingham, Mass. "Especially with the economy going south. You see a hatred toward the immigrant population."

Larry Boyd, a police chief in Irving, Texas, said he has been "beaten over the head" by conservative groups for not going after undocumented immigrants and by Latino groups for enforcing immigration laws. "Neither side was dealing with factual information," Boyd added, "but it's an issue the media loves to cover."

Phoenix Police Chief Jack Harris noted that Arizona's capital city leads the nation in kidnappings, mostly involving human-smuggling syndicates, which reflects federal policy failures. "It needs to be fixed, and it needs to be done sooner rather than later," Harris said.

It is reported that Alan Bersin, President Obama's Border Czar, assured police administrators that a transformation is under way in Homeland Security. Bersin said the Bureau of Immigration and Customs Enforcement is shifting its focus to workplace violation rather than immigrant roundups. However, he concluded that enforcement is likely to remain schizoid "until there is a reform of immigration law that is acceptable to the American people."

We will continue to keep you informed with periodic news updates on the issues surrounding the Comprehensive Immigration Reform debate.

Portions of this Newsletter have been
Reprinted with permission from AILA
Copyright 2009, American Immigration Lawyers Association