June 2009 Newsletter

Vol. XXXVII

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

June 2009

In this Issue:

Immigration Law News & Policy Updates

• State Mandated E-Verify Provisions Effective July 1, 2009
• 20,000 H-1B Visas Still Remain Available Under The Cap!
• Bill Seeks To Increase Scrutiny of the H-1B and L-1 Process
• "New" Form I-9 Remains Effective Despite June 30 Expiration Date
• Interim Relief Granted For Widow(er)s of U.S. Citizens
• Mandatory Use Of DOL's iCERT System Still Slated For July 1, 2009 Start

The Road To Comprehensive Immigration Reform

• President Obama Holds A Twice-Delayed Meeting On Comprehensive Immigration Reform
• Secretary Clinton On The "Pro" Side Of The Debate Over The H-1B program?

IMMIGRATION LAW NEWS AND POLICY UPDATES

State Mandated E-Verify Provisions Effective July 1, 2009

Notwithstanding the Obama administration's most recent move to postpone the effective date of mandatory E-Verify participation for federal contractors and subcontractors to September 8, 2009, state legislators have taken these matters into their own hands and have, effective July 1, 2009, enacted state-level E-Verify requirements applicable to certain employers in Georgia, Mississippi, South Carolina and Utah.

More specifically, effective July 1, 2009, the following mandates will be required by state law:

Georgia: all state contractors and subcontractors must use E-Verify if the contract is for the physical performance of services within the state of Georgia. (This was amended from the previous provision which required participation in E-Verify only for state contractors with 100 or more employees). For further information on the Georgia legislation, click here.

Mississippi: all employers in the state with 100 employees or more are required to participate in E-Verify. This law is expected to expand to include employers with 30 or more employees in July 2010, and may include all employers within the state of Mississippi by July 2011. To review the Mississippi statute, click here.

South Carolina: all employers with 100 employees or more must either participate in E-Verify or only hire employees who possess or qualify for a South Carolina driver's license. This law is expected to expand to include all employers by July 2010. More further information, please click here.

Utah: state contractors and subcontractors must use E-Verify or the Social Security Number Verification Service (SSNVS) if the contract is for the physical performance of services within the state of Utah. To review the Utah statute, click here.

Should you have any questions regarding your Company's present obligations with respect to the foregoing E-Verify requirements, or what, if anything, your Company should be doing to prepare for the possibility of mandatory E-Verify for federal contractors and subcontractors, please do not hesitate to contact us.

20,000 H-1B Visas Still Remain Available Under The Cap

USCIS has once again updated its announcement regarding the number of H-1B petitions it has received and counted towards the H-1B cap. As of June 19, USCIS has reportedly received 44,500 H-1B petitions (down from 45,800 on May 29!) counting toward the Congressionally-mandated 65,000 cap. As such, USCIS continues to accept petitions subject to the general cap.

Although USCIS has received the limit of 20,000 petitions for aliens with advanced degrees, the Service has reiterated that it will continue to accept advanced degree petitions.

As you may recall, in the past several years, both H-1B caps were met in the first few days of filing. By contrast, this year, USCIS has been accepting petitions subject to the cap for nearly three (3) full 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, it appears that the probability of selection of your H-1B petition is almost assured if you act before summer's end.

Bill Seeks to Increase Scrutiny of the H-1B and L-1 Process

U.S. Senators Grassley (R-IA) and Durbin (D-IL) have introduced the H-1B and L-1 Visa Reform Act (S. 887) in the current session of Congress. This bill seeks to close perceived "loopholes" in the H-1B (specialty worker) and L-1 (intra-company transferee) nonimmigrant visa categories.

The proposed legislation will seek to impose the following:

• A requirement that all employers who seek to hire an H-1B worker first make a good-faith attempt to recruit a qualified American worker;
• A prohibition against the hiring of additional H-1B and L-1 professionals if more than 50% of the entity's employees are H-1B and L-1 visa holders; and
• A prohibition against advertising "H-1B only" ads.

The bill, if passed, will also provide the government with additional authority to conduct "streamlined" investigations of participating employers and would:

• Permit the Department of Labor (DOL) to initiate investigations of employers without the filing of an EEOC complaint (by an aggrieved employee);
• Authorize the DOL to review H-1B applications for fraud;
• Allow the DOL to conduct random audits of any company that utilizes the H-1B program; and
• Require the DOL to conduct annual audits of companies that employ large numbers of H-1B workers.

As for "reforming" the L-1 intra-company transferee visa category, the bill would establish for the first time a process to investigate, audit and penalize alleged L-1 visa abuses.

At this time, it is not clear whether this bill will gain popularity. In the recent past, stand-alone immigration legislation has failed to garner support in Congress. Indeed, Senators Grassley and Durbin introduced a similar bill in the last Congress which ultimately failed.

"New" Form I-9 Remains Effective Despite June 30 Expiration Date

U.S. Citizenship and Immigration Services ("USCIS") announced today that the Employment Eligibility Verification form I-9 (Rev. 02/02/09) currently on the USCIS Web site will continue to be valid for use beyond June 30, 2009.

USCIS has requested that the Office of Management and Budget ("OMB") approve the continued use of the current version of Form I-9. While such request is pending, the Form I-9 (Rev. 02/02/09) will not expire.

USCIS will update the Form I-9 when the extension is approved. While USCIS advises that Employers can use either (i) the Form I-9 with the new revision date or (ii) the Form I-9 with the 02/02/09 revision date at the bottom of the form, to avoid unnecessary confusion in the future, we recommend using the Form I-9 with the updated expiration date upon its release.

Click here for a copy of the "new" Form I-9 (Rev. 2/02/09).

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.

Interim Relief Granted For Widow(er)s of U.S. Citizens

On June 9, 2009, U.S. Department of Homeland Security ("DHS") Secretary Janet Napolitano granted interim relief in the form of "deferred action" for a period of two (2) years to widows and widowers of U.S. citizens-as well as their unmarried children under 18 years old-who reside in the United States and who were married for less than two (2) years prior to their spouse's death. Deferred action is generally an act of prosecutorial discretion that works to suspend removal proceedings against a particular individual or group of individuals for a specific timeframe. It does not, however, resolve an individual's underlying immigration status.

In connection with this grant of deferred action, Secretary Napolitano has also directed U.S. Citizenship and Immigration Services ("USCIS") to suspend the adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for reassessment of one's immigration status was the death of their U.S. citizen spouse prior to the second anniversary of their marriage.

U.S. Immigration and Customs Enforcement ("ICE") has also been instructed to defer initiating or continuing removal proceedings, or executing final orders of removal against qualified widow(er)s and their eligible children.

The foregoing directives apply regardless of whether the U.S. citizen filed a petition for the alien spouse before his/her death.

While this directive provides short-term relief for widow(er)s of deceased U.S. citizens, Congress may be required to amend the definition of "immediate relatives" in the Immigration and Nationality Act to permit surviving spouses to remain indefinitely after a U.S. citizen spouse dies, enabling them to seek permanent resident status under the law.

Of note, individuals granted deferred action may apply for work authorization provided they can demonstrate economic necessity.

Mandatory Use Of DOL's iCERT System Still Slated For July 1, 2009 Start

Mandatory use of the Department of Labor's ("DOL's") new iCERT portal for LCA submissions is still slated for July 1, which, consequently, will disable the legacy LCA Online system at the close of business on June 30, 2009.

The iCERT System is a new, one-stop visa portal system, implemented by the Office of Foreign Labor Certification ("OFLA") to improve employer access to employment-based visa application services.

The new PERM application, Form ETA 9089, is also expected to become available for application and submission as early as September 1, 2009 through the iCERT portal. For an appropriate transition, both systems must be active during the month of September. Beginning October 1, 2009, PERM applications will be submitted electronically only through iCERT system accounts. Like the old LCA online system, the DOL is expected to deactivate the current electronic version of the Form ETA 9089 as of October 1, 2009.

Employers, or their representatives, are encouraged to copy all necessary application information into the new iCERT system prior to these deactivation dates. If you have any questions with regard to the iCERT portal, please feel free to contact us or reach out to the DOL's Help Desk at the Chicago National Processing Center by sending an email to lca.chicago@dol.gov.

Click here to navigate to the iCERT portal.

THE ROAD TO COMPREHENSIVE IMMIGRATION REFORM

President Obama Holds A Twice-Delayed Meeting On Comprehensive Immigration Reform

President Obama has taken the first major step towards fulfilling his campaign promise to reform our broken immigration system. He has invited bipartisan Congressional leaders to the White House for a working session on immigration reform.

CNN.com reported, "the meeting, which was delayed twice as economic issues took center stage", is designed to be, according to President Obama, an "honest discussion of issues where we can identify areas of agreement, and areas where we still have work to do," according to the White House."

This meeting, which occurred on June 25, 2009, comes less than a week after President Obama reiterated his commitment to passing comprehensive immigration reform that could pave the way to citizenship for nearly 12 million undocumented workers. Specifically, President Obama told a Hispanic audience that the "fair, practical and promising way forward" is to strengthen border security, clarify the status of those who are here illegally, and require illegal immigrants to pay a penalty and taxes." President Obama added that undocumented workers should learn English and "go to the back of the line behind those who played by rules" in terms of applying for citizenship.

Contrary to such efforts, the Los Angeles Times reported White House Chief of Staff, Rahm Emanuel, stating that there is not enough support in Congress to pass a comprehensive immigration bill at this time, though he said he would not rule out the adoption of such a measure by the 2010 elections.

Following the meeting, the President announced the formation of an immigration working group led by Department of Homeland Security Secretary Janet Napolitano.

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

Secretary Clinton On The "Pro" Side Of The Debate Over The H-1B program?

U.S. Secretary of State Hillary Clinton's recent speech before the U.S.-India Business Council appeared to come out in favor of the H-1B program, but was it a ringing endorsement? Perhaps not. Speaking before an audience that included representatives from offshore outsourcing companies, as reported in Computerworld, Clinton appeared to lend indirect support to arguments raised by India's IT outsourcers that visa restrictions are a form of protectionism. She did not, however, address the merits of the "lost jobs/falling wages" argument so often put forth by critics of the H-1B program-critics who favor such legislation as that introduced by U.S. Sens. Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.) that would, among other things, set tougher prevailing wage standards, as well as impose limits on the number of visa workers that a company may employ.

What is needed is recognition not only by Secretary Clinton but, more importantly, by members of Congress that the reason the H-1B cap has not yet been reached is a direct result of market conditions -- and that an artificial quota or "cap" makes little or no sense as the market clearly dictates the need for H-1B specialty workers. Indeed, empirical data supports the proposition that H-1B workers create complementary jobs rather than result in a substitution of a foreign-based labor pool for U.S. workers.

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