Vol. XXXV A MONTHLY UPDATE ON IMMIGRATION September 2009In this Issue: Immigration News & Policy Updates
CORPORATE AND BUSINESS IMMIGRATION LAW NEWS AND POLICY UPDATESDepartment of State has announced that the opening of the registration period for the DV-2011 Diversity Visa lotteryThe Department of State has announced that the opening of the registration period for the DV-2011 Diversity Visa lottery. Entries for the DV-2011 Diversity Visa lottery must be submitted electronically between noon, Eastern Daylight Time (EDT), Friday, October 2, 2009, and noon, Eastern Standard Time (EST), Monday, November 30, 2009. Instructions for the 2011 Diversity Immigrant Visa Program (DV-2011)The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State. The Program makes available 55,000 permanent resident visas (green cards) annually to persons from countries with low rates of immigration to the United States. The annual DV program makes permanent residence visas available to persons meeting the simple, but strict, eligibility requirements. Applicants for Diversity Visas are chosen by a computer-generated random lottery drawing. The visas, however, are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to citizens of countries sending more than 50,000 immigrants to the U.S. in the past five years. Within each region, no one country may receive more than seven (7%) percent of the available Diversity Visas in any one year. Countries Not EligibleFor DV-2011, natives of the following countries are not eligible to apply (the term "country" includes countries, economies and other jurisdictions explicitly listed herein): Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible. No countries have been added or removed from the list of eligible countries. The list of eligible countries remains the same as for DV-2010. Electronic RegistrationThe Department of State implemented the electronic registration system beginning with DV-2005 in order to make the Diversity Visa proves efficient and secure. The Department utilizes special technology and other means to identify those who commit fraud for the purposes of illegal immigration or who submit multiple entries. For DV-2011, those who submit entries may check the status of entries online and determine whether their entries are selected or not. Successful entrants will continue to receive notification letters by mail. Application Submission DatesEntries for the DV-2010 Diversity Visa Lottery must be submitted electronically between noon, (EDT) (GMT-4), Friday, October 2, 2009 and noon, EST (GMT-5), Monday, November 30, 2009. Applicants may access the Electronic Diversity Visa Entry Form (E-DV) at http://www.dvlottery.state.gov during the registration period starting at noon (EST) on October 2. Paper entries will not be accepted. Applicants are strongly encouraged to not wait until the last week of the registration period to enter. Heavy demand may result in web site delays. No entries will be accepted after noon, (EST), on November 30, 2009. Requirements for Entry and Detailed Instructions may be found the following site: http://travel.state.gov/visa/immigrants/types/types_1318.html Mandatory E-Verify Rule for Federal Contractors Effective September 8, 2009(Although we ran a similar story in our August Newsletter, since our Immigration Law Group has received an influx of inquiries from our government contractor clients regarding the nuances of the E-Verify process, we thought it might be a benefit to others to run an update to our August story). U.S. companies which contract with the federal government for goods or services (including construction contracts) will likely see existing contracts modified to require E-Verify review of (i) all persons hired during the contract term and (ii) all persons assigned by the contractor to perform work on the federal contract. Please do not assume that E-Verify relates only to foreign national employees since it is administered by USCIS. That is simply not the case -- the E-Verify requirement applies to all persons working in the United States. What does the September 8 effective date of the E-Verify rule mean for Federal Contractors?Mandatory E-Verify only affects Federal contractors who are awarded a new contract on or after September 8, 2009 which contract includes the FAR E-Verify clause. Only the legal entity which enters into such contract is considered the prime contractor and is thus bound by the E-Verify obligation. Any subcontractors to such an agreement, which are providing services or construction with a value of more than $3,000, must also participate in E-Verify [with few exceptions]. What does the new rule require qualifying Federal Contractors to do?The rule requires qualifying Federal Contractors to use the government's electronic E-Verify system to confirm the employment eligibility of (i) all new hires during the term of the contract (whether or not they work on the covered contract) and (ii) all existing employees who are assigned to work on a covered federal contract. Qualifying Federal Contractors also have the option of verifying their entire workforce. To do so, you must notify DHS that you have chosen to verify your entire workforce by (i) choosing the entire workforce option during the E-Verify initial enrollment process or, if you are already enrolled, (ii) update your company profile to reflect same. Once you have done so, you must initiate an E-Verify query for each employee within 180 calendar days of notifying DHS. What are the time limitations imposed on enrollment in E-Verify?For those Federal Contractor clients not yet enrolled, the prime contractor and any covered subcontractor will be required to enroll in E-Verify within 30 calendar days of the award date of the contract or subcontract. New enrollees will be provided an additional 90 days--for a sum total of 120 days--to enroll and initiate verification queries for employees already on staff assigned to fulfill a federal contract and to begin using the system to verify all newly hired employees. Those clients who are already enrolled in E-Verify for more than 90 days are required to continue to initiate verification of newly hired employees within three (3) business days of their start date, but have 90 days from the effective award date of the covered contract to begin using E-Verify for each employee already on staff who will be performing work upon an existing federal contract. Our attorneys are experienced in all aspects of the employment verification process. We have already advised several of our government contractor clients on compliance issues. Should you have any questions regarding your business' present obligations with respect to E-Verify, please do not hesitate to contact us. USCIS Updates the Number of H-1B Petitions Filed under the CapUSCIS 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 September 25, USCIS has received 46,700 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. As such, USCIS continues to accept petitions subject to the general cap. Although USCIS has received 20,000 petitions for aliens with advanced degrees, the Service reiterated that it will continue to accept advanced degree petitions, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. USCIS' FDNS Commences An Audit of The H-1B Program, Including Unannounced Site Visits To H-1B Employers and their ClientsUSCIS' Office of Fraud Detection and National Security ("FDNS") has recently commenced an assessment of the H-1B program. Unlike many of the site visits made in connection with the L-1, EB-1-3 and R-1 assessment programs in the past, the majority of H-1B site visits have been unannounced. Such site visits may occur at the H-1B employer's principal place of business and/or at the H-1B nonimmigrant's work location, as indicated on the Form I-129 petition (regardless of whether the work location is controlled by the H-1B employer). Importantly, the employer may request that immigration counsel be present during the site visit. To date, such a request has been met with varying response from FDNS. While some officers are willing to accommodate such request, it has also been reported that other FDNS officers have refused to reschedule the site visit to allow for counsel to be present. In such instances, those FDNS officers have, however, allowed counsel to be present by telephone, but only if requested by the employer. FDNS has also indicated that it does not require a subpoena to complete such an unannounced site visit. Such assertion is based on USCIS' interpretation of the regulations governing the filing of H-1B nonimmigrant petitions. USCIS has made such determination based on the language contained in the instructions to the Form I-129 Nonimmigrant Petition which, by executing the document, consents to allow USCIS to verify the information contained therein. During a typical H-1B site visit, the FDNS officer will likely seek to verify the information continued in a specific H-1B nonimmigrant petition, regardless of the number of H-1B petitions filed by the employer. The FDNS officer will normally have a copy of the petition and will likely request to speak with the employer's representative who signed the Form I-129. However, because the site visit is unannounced, if such representative is unavailable, the officer may then ask to speak with someone else in the Human Resources Department. When speaking with the employer's representative, the officer will typically question the designated individual or request documentation on any of the following topics:
After speaking with the employer's representative, the officer may then request a tour of the employer's facility. During the tour, the officer may take photographs of the facility. It is also likely that the officer will request to interview the H-1B beneficiary. During this interview, the officer may ask the beneficiary about his/her job title, job duties, responsibilities, employment dates, position location, requirements for the position, his/her academic background and previous employment experience, his/her current address, and information about his/her dependents, if any. After speaking with the H-1B beneficiary, the officer may then request to speak with a colleague of the beneficiary and/or the beneficiary's manager. When speaking with these individuals, the officer will likely again request information about the beneficiary's position title, the position duties, and the requirements for the position. After conducting the interviews and receiving any requested documentation, the officer will complete the site visit (such site visits typically last for less than an hour). With the implementation of such rash measures, H-1B employer compliance is becoming more and more important. To effectively deal with such issues and avoid the potential consequences for noncompliance, H-1B employers should take the time to audit their H-1B Public Access Files to make sure such files will endure an unannounced site visit by USCIS. The USCIS Vermont Service Center has indicated to the American Immigration Lawyers Association ("AILA") that it has transferred approximately 20,000 cases to FDNS as part of the H-1B assessment program. It is, therefore, assumed that the USCIS California Service Center has also forwarded a comparable number of cases for review. This is an addition to the cases that are referred to FDNS based on a standard profile worksheet, which is completed by the USCIS adjudicators as part of the regular H-1B adjudication process. In the event your Company is subject to such a site visit, please contact us immediately. A few pointers:
U.S. and Mexico Announce Agreement For Cross Border Public Security Communications NetworkDHS and the Department of State and State recently announced today that senior officials on the United States-Mexico High-Level Consultative Commission on Telecommunications ("HLCC") have signed a bilateral telecommunications agreement to support a new cross border communications network for public safety and law enforcement organizations focused on strengthening border security. The agreement establishes a bilateral working group through which the Department of Homeland Security of the United States and the Secretariat of Public Security ("SSP") of Mexico will coordinate the installation and operation of the network. The new network will allow participating public safety organizations to coordinate incident response and cooperate on a broad array of law enforcement activities through the establishment of new cross border voice, data and video channels. The agreement also provides radio interference protection for the network's infrastructure and a process under which the bilateral working group can establish interoperable communications for qualifying federal, state, local and tribal public safety and law enforcement organizations that are invited to participate in the network. Negotiation of the agreement stemmed from a recommendation by HLCC working level officials in May 2008 to formulate a long-term plan to advance critical cross border communications networks for improving border security and combating border violence. Some Food For Thought For USCIS Director Mayorkas...In a recent speech, USCIS Director Alejandro Mayorkas broached the subject of the possible need to increase filing fees because of a decrease in the number of applications received by USCIS this fiscal year. During such speech, Director Mayorkas also noted that USCIS' budget had suffered a shortfall of over $100 million due to decreased filings. A few questions for Director Mayorkas:
The list could go on about what USCIS is doing wrong. And, while there are some things that USCIS does right, the reality is that rather than serving immigrants and their employers, USCIS officers have a newly-found tendency to punish both. The Service is in serious need of a thorough review. Director Mayorkas has a colossal challenge ahead to bring this agency in line with the priorities it should have; priorities that not only include national security, but also ensure our own economic well-being and competitiveness by promoting job growth and allowing companies to hire qualified workers, keeping families together through reunification, and bringing new citizens into the fold. So, before USCIS raises its filing fees, a general suggestion to Director Mayorkas would be to first get his own "house in order". Put simply, USCIS should not balance a budgetary disaster on the backs of the employers and immigrants the agency is committed to serving. Portions of this Newsletter have been The material contained in this newsletter is for informational purposes and should not be considered legal advice. |
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