Immigration News & Analysis, Maggio & Kattar’s electronic immigration newsletter, offers up-to-date information and insightful commentary on U.S. immigration law and policy. Immigration News & Analysis is published monthly in an electronic format and is available via e-mail. Subscribe to Immigration News & Analysis.
Comprehensive Immigration Reform Now Fast Tracked
All agree. For a host of reasons, there has been a change of attitude in the last month in Washington. Comprehensive immigration reform is now on a fast track, and it is back with a renewed sense of optimism. Indeed, U.S. immigration law very well may be dramatically different as soon as this summer.
On the first day of the new Congress, the Democratic leadership introduced the Comprehensive Immigration Reform Act of 2007 (S. 9). This is a “placeholder” bill that will be replaced in the coming weeks with a detailed, wide-ranging legislative package. In doing so, the Democrats made clear that immigration reform is now among their top legislative priorities for the 110th Congress. On the other side of the aisle, Republican Minority Leader Mitch McConnell declared that immigration is one of the most pressing issues of our day, an issue on which voters demand action. "We should be daring about immigration reform," he said, when addressing the new Senate. Moreover, President Bush continues to express his support for immigration reform, stating that he hoped to sign an immigration bill into law in 2007.
What's changed? Immigration reform always has depended on the support of a bipartisan, broad-based coalition so the change of power on Capitol Hill, in and of itself, is not solely responsible. That change, however, and the post-election assessment of what transpired, gave both parties an opportunity for soul searching. The elections disabused the Republicans of the notion that opposing meaningful immigration reform would win widespread support, and they have now acknowledged that reality. The Democrats, while still protective of their newly elected more conservative members, still believe that immigration reform is an important issue they can deliver on and soon.
Beyond the President, there also seems to be renewed support for real immigration reform - and not just symbolic overtures -- within the Administration. Domestic security officials have, for example, expressed doubt over the efficacy of the border fence even if appropriately funded, and they support the key elements of the immigration reform framework. They also support the less cumbersome legislative scheme affecting undocumented immigrants now under consideration, which would permit undocumented immigrants to remain in the country and one day be eligible for citizenship.
Additionally, the highly publicized immigration raids at numerous Swift meatpacking plants in December were a galvanizing event. Approximately 6,000, mostly Hispanic workers, were arrested. Many held jobs paying more than $40,000 in rural Iowa. The company lost almost 25% of its workforce after cooperating for years with the government to ensure it employed only legal workers.
The Swift raids underscored that demographics argue persuasively for more visa numbers and a legalization program. Simply stated, the Swift raids showed there just are not enough legal workers in the United States . Meanwhile, the three biggest non- governmental players - the Hispanic community, business, and unions – have expressed increased concern in what again has become a center-stage political fight for immigration reform.
No doubt immigration remains a high-charged, high-voltage issue. Nevertheless, lawmakers seem to now agree that the environment is conducive for real work and real progress. We shall see.
Plan H-1B Filings Immediately; Early Exhaustion of Numbers Anticipated
The H-1B crisis for employers and foreign nationals is worse than ever. H-1B visas for new employment have been unavailable for many months, and although numbers will be available again April 1st for employment starting October 1st, those visas are expected to be gone within weeks or even days of April 1st. Given the current supply and demand for H-1B visas, it is absolutely critical for employers to start planning and preparing petitions now for new H-1B workers.
What should employers do? Human resource personnel must remind managers that H-1B petitions can be filed again for new employment on April 1st and that visa numbers will be exhausted early. Employers also must determine now who among their current and prospective employees will require H-1B status for the first time, and thus subject to the cap.
Employers also must determine who among their workers are affected by the cap. Those currently holding H-1B status are not affected by the cap. Nor are H-1B employees who are transferred from one company to another or those who seek extensions and amendments of H-1B status. In addition, H-1B petitions filed by institutions of higher education or related or affiliated non-profit entities, nonprofit research organizations, and governmental research organizations are, likewise, unaffected. And, new H-1B1 visas for nationals of Chile and Singapore under a special program are not likely to be exhausted at any point during the fiscal year. Employers should also consider that for some foreign nationals, F-1 student OPT work authorization, J-1, , TN, E-3, L-1 and O-1 status may be alternatives to H-1B status.
This is a fast-approaching window of opportunity to acquire H-1B employment authorization. We invite inquires from those concerned.
CIS Launches Online Change of Address Function
U.S. Citizenship and Immigration Services ("CIS") just launched a new online change of address service through its web site. Instead of mailing in an Alien Change of Address Card (AR-11), non-citizens in the United States who move can now do so online. Users need a USCIS receipt number (if the case is pending with CIS), new and old addresses, names and biographical information for family members for whom the applicant filed a petition, and date and location (port of entry) of last entry into the United States. The change of address link is available at http://www.uscis.gov/AR-11. Mail in change of address cards will continue to be accepted by CIS.
DOL Extends Deadline to January 22, 2007 for Conversion of Traditional Labor Certification Filings to Reduction in Recruitment (RIR)
The Department of Labor ("DOL") recently announced that it is extending until January 22, 2007 (midnight EST) the deadline for employers to e-mail their intent to request conversion to Reduction in Recruitment (RIR) of pending traditional labor certification applications under DOL's "hold harmless opportunity." See related article in our December 2006 issue of Immigration News and Analysis. Upon submitting this e-mail notification, the DOL will not commence the recruitment efforts required under traditional filings. Once the DOL has commenced recruitment efforts, an employer's recruitment efforts are no longer accepted by the DOL. Thus, e-mail notification to the DOL of an employer's desire to convert to RIR allows an employer to conduct its recruitment without the risk that the DOL will initiate recruitment efforts rendering an employer's recruitment useless. As the DOL processes RIR cases generally more quickly than it processes traditional cases, most employers and foreign nationals prefer the RIR process. Specific details on the e-mail notification requirements are found on the DOL website at in the Backlog FAQ Round 6 http://www.foreignlaborcert.doleta.gov/pdf/backlog_faqs_12-22-06.pdf. After an employer conducts recruitment to convert a traditional case to RIR, a report of those efforts must be submitted to the DOL by April 1, 2007.
Stuck Between a Rock and a Hard Place: Social Security "No-Match Letters"
Over the past several years, the Social Security Administration ("SSA") has issued thousands of so-called "no-match letters" to employers around the country. These letters advise employers that certain Social Security Numbers ("SSN") do not match the names of the individuals that SSA has on file for such numbers. Although not always the case, no-matches are often caused by employees who are not authorized to work in the United States or who use either a false SSN or an SSN assigned to someone else. This should be of considerable concern to those employers who have received no-match letters because of stepped up immigration enforcement against employers who employ unauthorized foreign workers. At the same time, acute labor market shortages in many industries make employers reluctant to fire workers based upon the mere suspicion that they may not be authorized to work. In addition, there is the issue of employers facing discrimination complaints after acting over-zealously when concerned about potential immigration liabilities.
Significantly, numerous SSA no-match letters received over time by an employer could bear severe immigration consequences and legal liabilities, even despite efforts to correct the no-matches. Current guidance from U.S. Immigration and Customs Enforcement ("ICE"), the Department of Homeland Security's enforcement division, makes it clear that ICE will make a subjective analysis of an employer's actions upon receipt of SSA no-match letters to determine whether an employer should be subject to penalties concerning the employment of unauthorized workers. Such penalties would be based upon an assertion by ICE that an employer possessed either actual or constructive knowledge or notice of unauthorized employment via circumstances surrounding the receipt of and actions taken in response to the no-match letters. ICE could become aware of an employer's SSN no-match history through an I-9 audit or through notification from the SSA.
However, ICE guidance on how it would make that subjective analysis is far from clear. ICE states that the receipt of a no-match letter does not, in and of itself, put an employer on notice that it is employing unauthorized workers. At the same time, it has instructed that there are situations in which the SSA no-match letters would cause ICE to believe that an employer has been put on notice regarding its employment of unauthorized workers. Moreover, ICE does not say how far employers must go in correcting no-matches to absolve themselves from immigration liabilities and even cautions them not to take too much corrective action if such a letter is received. ICE has provided this advice because such action could expose employers to potential discrimination complaints and liabilities. Employers, consequently, are placed "between a rock and a hard place": if they don't act, they risk violating one set of laws; if they act too aggressively, they run afoul of other laws.
Recently proposed ICE regulations regarding SSA no-match letters, once finalized, should provide employers with much needed clarity and finality concerning the steps they must take when presented with SSN no-match letters. In light of the Administration's recent ramped-up workplace enforcement efforts (e.g., the Swift raids), and the ongoing political debate on Capitol Hill regarding immigration, we expect this proposed rule to be finalized with little or no change, and implemented later this year.
We invite you to read our more detailed guidance on what employers concerned about no-match letters can do under the current rules. Clearly, employers who receive numerous no-match letters should take some corrective action even now while they await the final regulations.
CIS Guidance on "Periods of Admission" for H-1B Visa Holders Who Face the Six Year Maximum
The U.S. Citizenship and Immigration Services ("CIS") recently announced that H-4 or L-2 dependent foreign nationals who change their status to a principal nonimmigrant visa holder (H-1B or L-1) are entitled to obtain a full six-year period of admission period based on their new visa status. In other words, the time spent in H-4 or L-2 status does not count against that six-year period. Upon the switch, however, the new "principal" would be subject to the H-1B cap if not independently exempt. CIS also advises that qualifying H-1B professionals need not be in H-1B status when requesting a seventh-year extension. They can be abroad or be maintaining another visa status and still qualify for an extra year. Finally, CIS now will permit an H-1B applicant, who has remained outside of the U.S. for one year to elect to recapture the remainder of his or her H-1B time period and avoid being subject to the cap (if previously counted) or seek admission as a new H-1B and obtain a new, full six-year admission period. In the latter instance, the H-1B applicant would be subject to the cap. While these changes seem technical, they provide new opportunities for those eligible to continue to work in H-1B status for a longer period of time.
No Forward Movement on Immigrant Visas Means Increased Backlogs
The Department of State's February 2007 Visa Bulletin offers little hope to most foreign nationals, their families, and their employers that permanent resident status will be acquired without waiting an eternity. With no movement in any employment-based category and only slight forward movement in some family-based categories, retrogression of visa numbers looms ominously on the horizon, perhaps as early as next month. In other words, current long lines probably will be getting longer.
The unavailability of visas - both immigrant and nonimmigrant H-1Bs - has clearly reached crisis proportions with American businesses unable to hire critically needed workers and families separated for years. This, of course, cries out for legislation making more visas available.
What's New at Maggio & Kattar
We're off to an exciting year at Maggio & Kattar, after four months in our newly expanded office space and numerous new hires. Our new staff is totally integrated into our six practice teams, and we are gearing up to launch a number of new programs to keep our clients up-to-date on immigration law and procedure. For example, we are redesigning and significantly expanding the informational materials on our web site. This will include more checklists, guides, and other information to better help our clients understand immigration law and procedure. Our new, state-of-the-art online case status inquiry system permits clients to monitor their case 24/7 as it proceeds through the immigration pipeline. Access to cases is as simple as clicking a link through our web site. And, we will hold a series of educational briefings, for both employers and foreign nationals, in our newly expanded offices.
Your comments and ideas on how we many better serve you are always welcomed. Please always feel free to contact our firm's chairman, Michael Maggio, directly.