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.
IMMEDIATE H-1B PLANNING IMPERATIVE
This year it is anticipated that some 200,000 new H-1B visa applications will be filed on April 1, 2008, three times the number of H-1B visas that will become available for new employment starting October 1, 2008. H-1B visas are the most common temporary work visa available to professionals, and it is inevitable that many qualified employees and their would-be employers again will be disappointed this year. Given the current supply and anticipated strong demand for H-1B visas, it is absolutely critical for employers to start planning and preparing petitions now for this anticipated crisis.
What specifically should employers do to enhance the probability of capturing new H-1B petitions? Human resource personnel must remind managers that H-1B petitions can be filed again for new employment on April 1st and those petitions must be prepared now. April 1, however, is not a "start date" for this program, but it is the date on which all complete H-1B petitions for new employment must be received by USCIS. Employers also must determine now who among their current and prospective employees will require H-1B status for the first time, and thus are subject to the H-1B cap. The cap allows for only 65,000 visas per year for professional workers in specialty occupations. There are an additional 20,000 H-1B visas available to those who have earned a Masters degree or higher from a U.S. university. While the law provides for some significant exemptions to the cap, detailed below, the vast majority of those eligible must apply for one of these 85,000 visas. Foreign students currently working on optional practical training (OPT) are but one example of those who may require H-1B status for the first time and who are likely to be cap subject.
Those currently holding H-1B status are not affected by the cap, nor are most H-1B employees who transfer from one company to another or those who seek extensions and amendments of H-1B status. Furthermore, H-1B petitions filed by institutions of higher education or related or affiliated non-profit entities, nonprofit research organizations, and governmental research organizations are exempt from the cap. Finally, new H-1B1 visas for nationals of Chile and Singapore are not likely to be exhausted at any point during the fiscal year.
Alternatives to H-1B status are limited, but they must be explored immediately. E-3 visas are available to professionals. Employers should also consider TN status for Canadians and Mexicans, J-1 trainees, and O-1 extraordinary ability status. Some employers are electing to transfer U.S employees abroad so they may return after one year in L-1 status or again be entitled to a full six years of H-1B status. And, filing immediately for adjustment of status may be an option, since adjustment of status-based employment authorization can be an alternative too. In fact, there are additional, significant advantages to E-3, L-1, TN, and O-1 nonimmigrant classifications that employers and employees should consider.
Acquiring H-1B status - and resulting employment authorization - will be significantly more difficult than in years past because of the pent up demand. The window for planning is now.
On January 29th, Maggio & Kattar will present a complimentary telephonic briefing on how to plan and prepare for April 1st H-1B filings. "Beating the H-1B Cap" will be conducted by firm Shareholders Elizabeth Quinn and Cora Tekach. For more information on this the program, please contact Jane Howitt at jhowitt@maggio-kattar.com or 202.483.0053.
UPDATE ON ENFORCEMENT-RELATED ISSUES: EMPLOYERS MUST USE REVISED I-9 FORM TO AVOID POSSIBLE PAPERWORK PENALTIES; USCIS ENCOURAGES E-VERIFY USE
Over the course of the last six months, and in light of Congress' failure to enact comprehensive immigration reform addressing enforcement-related concerns, DHS has been actively pursuing regulatory and other activity to ensure employer and employee compliance with current work authorization laws. These actions have included increased work place raids, better coordination between and among agencies with respect to documentation (e.g., no-match letter regulations), revisions to Form I-9 in an effort to streamline documentation acceptable to prove work authorization; and promotion of employers' use of the government's electronic employment eligibility verification system, E-Verify.
With respect to I-9 changes and compliance, employers, and especially human resources specialists, are reminded that they now must use the revised Form I-9, Employment Eligibility Verification form, which employers are required to complete for each employee hired in the United States. Although employers were instructed to begin using the new form (Rev. 06/05/07)N as of November 7th, USCIS advised that it would not seek penalties against an employer for using a previous version of the I-9 form until 30 days after a notice is published in the Federal Register. That notice was published on November 26, 2007; thus older versions of Form I-9 were permissible only through December 26, 2007. (The current, revised Form I-9 and Handbook for Employers are available on the USCIS web site as well as on our firm's web site.)
In addition, employers are reminded that USCIS revised the list of acceptable "List A" documents. The current list includes: (1) a U.S. passport (unexpired or expired); (2) a permanent resident card or alien registration receipt card (I-551); (3) an unexpired foreign passport with a temporary I-551 "green card" stamp; (4) an unexpired EAD with a photograph (I-766, I-688, I-688A, I-688B); and (5) an unexpired foreign passport with an unexpired arrival-departure record (Form I-94) for nonimmigrants who are authorized to work for the employer. Employers who must re-verify employee employment authorization due to pending expirations are required to use the new updated list and the new I-9. But, employers do not need to complete the amended Form I-9 for current employees for whom there is already a properly completed Form I-9 on file. In fact, USCIS advises that unnecessary verification may violate anti-discrimination laws.
As a companion to the I-9 verification process, USCIS has rolled out and has been promoting to employers its electronic, internet-based employment eligibility system, E-Verify. Free to employers, E-Verify is a link to federal databases and is touted as "the best means available for employers to verify electronically the employment eligibility of their newly hired employees." According to USCIS, E-Verify virtually eliminates Social Security mismatch letters. While participation in E-Verify does not provide safe harbor from worksite enforcement, an employer who verifies work authorization under E-Verify may be presumed to have not knowingly hired an unauthorized foreign national. In order to participate, an employer must sign a Memorandum of Understanding (MOU) that sets forth the points of agreement between the Social Security Administration (SSA), the Department of Homeland Security (DHS), and employers regarding participation in the program.
In another related development, the SSA no-match letter regulation remains stayed until March 2008. The U.S. District Court for the Northern District of California granted DHS's motion to stay proceedings until March 28, 2008, pending new rulemaking by DHS, which purports to address the court's concerns.
These and other trends of the government to secure the border through heightened workplace enforcement are surveyed in a recent article authored by Maggio & Kattar shareholder Cora Tekach. "Securing Our Borders from Within: Forcing Employers to Be the Virtual Fence -- DHS's New Focus on I-9s and SSA No-Match Letters," published in the December 2007 issue of Immigration Briefings (07-12) (Thomson/West), also details employers' obligations with respect to I-9 and Social Security no-match compliance. Please contact Cora at ctekach@maggio-kattar.com for more information about her article and this topic.
DEPARTMENT OF LABOR UPDATE
Labor certification applications certified prior to July 16, 2007 will become invalid, if they have not been filed in support of an Immigrant Petition (I-140) with the USCIS by January 12, 2008. Since January 12th falls on a Saturday, we advise filing the I-140 with the labor certification so that it is received by the USCIS no later than Friday, January 11, 2008. All pre-July 16, 2007 certified applications not filed with the USCIS in support of I-140 petitions will expire after January 12, 2008.
The Board of Alien Labor Certification Appeals issued several precedent decisions in December, including cases finding that certain seemingly insignificant errors were substantive and not excusable. In particular, one case involved an employer that filed the PERM application just a few days less than thirty days after the job order posting was complete. BALCA found that this constituted a substantive deficiency in the mandatory recruitment steps, and denied the application. In other denials, BALCA held that the employer's failure to answer Form 9089 questions H-8 (is there an alternate combination of education and experience that is acceptable) and H-10A (how many months of experience in the alternate occupation is required) constituted incomplete applications on material issues. Finally, BALCA also denied a PERM application because the employer of a domestic worker did not have a Federal Employer Identification Number (FEIN or EIN), which BALCA determined to be necessary to establish a bona fide business entity.
Additionally, the DOL posted to its website Backlog Elimination FAQs, Round 8. The FAQs provide that both the Dallas and Philadelphia BECs were officially closed on December 21, 2007, and all communication with those centers has ceased. Any additional inquires regarding case dispositions should go to the Chicago National Processing Center (Chicago NPC). Appeals of denied BEC cases should be mailed to the Chicago NPC (the mailing address is provided in the FAQs). The FAQs also include a mailing address for FOIA requests regarding cases that were pending at the BECs.
NEW TRAVEL DOCUMENTATION REQUIREMENTS FOR AMERICANS AND OTHERS BEGIN JANUARY 31st
Effective January 31, 2008, U.S., Canadian, and Bermudian citizens entering the United States at land or sea ports-of-entry must present proof of citizenship, such as a birth certification, and proof of identity, such as a driver's license to the satisfaction of a U.S. Customs and Border Protection (CBP) officer. Oral declarations of citizenship will no longer be sufficient. Children ages 18 years and under will be required only to present proof of citizenship. Passport cards will continue to be valid for cross-border travel (for departure from and entry to the United States through land and sea ports of entry between the United States and Mexico, Canada, the Caribbean and Bermuda.) Passport cards, unlike passport books, are valid without signature but are not globally interoperable international travel documents.
NONIMMIGRANT AND IMMIGRANT VISA APPLICATION FEES INCREASED
Effective January 1, 2008, the application fee for a nonimmigrant visa increased from $100 to $131 and the immigrant visa fee from $335 to $355. The increases include the cost of collecting ten fingerprints from applicants at all visa processing locations and performing name checks on all applicants. They apply to machine-readable visas (MRV) in passports as well as border crossing cards (BCC). Applicants who paid $100 prior to January 1, 2008 will be processed only if they are scheduled and appear for a visa interview before January 31st. Those who paid $100 but appear for their interview after January 31st, will be required to pay the $31 difference before they are interviewed. Other, additional visa fees also may be required, and vary based on the applicant's country of nationality and the type of visa sought.
CONSULATES REQUIRE "PIMS" RECORD RATHER THAN FORM I-797 PETITION APPROVAL
The Department of State (DOS) began late last year to rely on a database system rather than the actual Notice of Action/Approval Form I-797 for issuance of nonimmigrant visas at consular posts, which in some instances was causing delays in visa issuance. The Department of State confirmed its new system in an advisory cable sent to all consular posts. Specifically, posts are now able to access the details of approved nonimmigrant visa petitions provided in a report called PIMS, or Petition Information Management Service. The PIMS record is created at the Kentucky Consular Center (KCC), where key information about the underlying petition is recorded. When a post is ready to grant a visa based on a petition, the post must confirm the petition in PIMS before issuance, as the PIMS record is now the primary source of evidence to be used in determining petition approval. While DOS states PIMS confirmations are provided by the KCC within 48 hours, visa applicants should be prepared to wait longer than two days on account of PIMS verification. Extension of visas and change of status related visas may take longer. We recommend that at this time visa applicants plan for a week between their visa interview and the actual issuance of their visa. On the flip side, if an original approval notice is unavailable, the post should not require it since a PIMS confirmation is required anyway, and the visa should be issued.
GREEN CARD WAIT GROWS FOR INDIAN AND IS LIKELY FOR OTHER ADVANCED DEGREED OR EXCEPTIONAL ABILITY FOREIGN NATIONALS (EB-2)
The January 2008 Department of State Visa Bulletin provides more discouraging news with predictions that the employment-based second preference (EB-2) (members of the professions with advanced degrees and individuals of exceptional ability) is likely to become oversubscribed and unavailable for the remainder of the fiscal year (until October 1, 2008) within the next few months. Once this happens, all employment-based second preference applicants will be unable to adjust their status and obtain employment-based work authorization. These individuals may, however, be eligible for H-1B extensions. For Indian nationals, this category retrogressed two years to January 1, 2000, representing a longer wait than that for unskilled workers.
IMMIGRATION ON THE CAMPAIGN TRAIL
In anticipation of the Iowa Caucus, the headline of the January 2nd Washington Post was: "It All Comes Down to This - For Republicans, Contest's Hallmark Is Immigration." "No issue," reports the Post, "has dominated the Republican presidential nomination fight the way illegal immigration has." Despite prognostications that strident immigration rhetoric is not an effective strategy, the issue remains front and center despite failures attributed to both parties last June when Congress failed to act on comprehensive immigration reform. One pollster described immigration as "the most volatile issue I have measured since busing in 1972" because, in part, it affects everyone. We shall see whether exasperated voters will let this issue dominate the debate, create a wedge between them and their favorite candidate, or recede into the background once the year long presidential campaign moves forward. In the meantime, as succinctly stated in a recent New York Times editorial, voters should insist that candidates and the immigration debate focus on serious answers to questions like:
"What should be the role of immigrant labor in our economy? How does the country maximize its benefits and lessen its ill effects? . . . . [W]hat happens to the 12 million illegal immigrants already here? . . . . And what about the future follow of workers? Should the current system of legal immigrants . . . be tweaked or trashed? What is the proper role of state and local governments in enforcing immigration laws?"
We agree. Republican candidates have been offering prescriptions that sound tough but lack solutions, Democrats, however softer on the rhetoric, have not consistently exercised the level of leadership and courage that the issue demands. Yes, meaningful immigration reform is one of our nation's most pressing problems. Whomever the candidates for President and Congress may be, in the end, it is up to the electorate to demand real and prompt solutions to this very important problem, which impacts the economy, millions of individuals, and in the end speaks volumes about America's history and future.
LAWSUIT RESOLVES PHYSICIAN'S BACKGROUND CHECK DELAY
In November, Maggio & Kattar successfully filed a lawsuit in federal court on behalf of Mercy Hospital in Grayling, Michigan to compel the U.S. Citizenship and Immigration Services (USCIS) to act upon the Hospital's long-pending H-1B visa application for an orthopedic surgeon from Pakistan. Although the H-1B petition was filed under USCIS's premium processing program, which guarantees a decision within 15 days, it had been pending for 112 days at the time the suit was filed. According to USCIS, the delay was unavoidable owing to uncompleted "background checks," a process which the agency declared "may not be accelerated or waived." The continued delay was causing a severe hardship to Mercy Hospital-Grayling and the community it serves, as the hospital and its patients were deprived of the services of a qualified orthopedic surgeon.
In conjunction with what is known as a mandamus complaint, Maggio & Kattar filed a Motion for Preliminary Injunction seeking an expedited hearing before the district court, arguing that USCIS's continued delay in processing the H-1B petition had caused the hospital irreparable harm. The court promptly set an expedited briefing schedule and ordered the parties to appear for a hearing. However, a mere 12 days after the lawsuit was filed, and prior to the scheduled hearing date, USCIS approved the Hospital's application and issued an H-1B visa to the physician.
Mercy Hospital-Grayling was represented in this action by Maggio & Kattar Senior Attorney Thomas Ragland.
INVESTOR GREEN CARD OPTION UPDATE
The Immigrant Investor Visa program (EB-5) is gaining popularity especially now that that fewer and fewer euros, yens, and pounds are needed to meet the $1,000,000 investment requirement (or in certain cases $500,000) and the waiting period for immigrant visas grows longer each year. One key issue for potential investors to consider is documenting the source of their investment dollars.
In an effort to ensure that the funds used to invest in an American enterprise are legitimate, USCIS highly scrutinizes the pathway of such funds to that enterprise. For some, this can be problematic not because the funds were obtained illegally but because of the unavailability of sufficient documentation to trace them.
The regulations and subsequent interpretations by USCIS require that the petitioner submit five years of tax returns and business registration records, among other records, to show that the capital was obtained through lawful means. But, the actual source of funds may not be contained in such records. For example, many would-be EB-5 investors obtained their money through a gift or inheritance, and this money may not be included in tax records. In these instances, documentation surrounding the gift or inheritance must be provided. Such documentation may include evidence of payment of appropriate gift and inheritance taxes, death certificates, and wills, as well a detailed declaration explaining the relationship and how the funds were derived. Here, not only must the investor's source of funds be traceable but also the donor's if funds are donated. USCIS will want to follow the money. This can be particularly difficult where old money is involved and the portion of the gifted capital cannot be easily segregated from other funds. If, however, the gifted funds were derived from the proceeds of a certain transaction, such as a sale of specific real estate, most petitioners can compile the needed documentation, such as deeds, purchase agreement, settlement and closing statements, and contemporaneous bank account deposits records. Isolating a specific income event that can be well-documented would serve such potential investors well.
MAGGIO & KATTAR ATTORNEYS IN THE NEWS
Maggio & Kattar attorneys Elizabeth Quinn, Andres Benach, and Michael Maggio were listed among the top immigration lawyers in the Washingtonian's December 2007 "Best of Washington" issue. The magazine features the top 1% of lawyers in the D.C. metro area, and more Maggio & Kattar attorneys were recognized than any other law firm.
Maggio & Kattar attorneys Thomas Ragland and Nadeen Aljijakli participated in a panel discussion entitled, "Protecting Immigrant Rights: Understanding Policies Affecting Our Community," at the Fourth National Conference of the Network of Arab-American Professionals, held in New York City.
And finally, we are pleased to announce that Dree Collopy has recently joined our firm as an Associate Attorney on Maggio & Kattar's Litigation Team. Dree is a 2007 graduate of The Catholic University of America Columbus School of Law. She will assist clients with deportation and removal defense, asylum, naturalization, adjustment of status, waivers of inadmissibility, and federal litigation cases.