WOLFSDORF IMMIGRATION NEWSLETTER
May 2009
www.wolfsdorf.com
310-570-4088

1. H-1B Cap Not Yet Reached, USCIS Announces

Unlike in recent years, when the H-1B cap was reached immediately, U.S. Citizenship and Immigration Services (USCIS) announced on April 27, 2009, that it had received approximately 45,000 H-1B petitions counting toward the congressionally mandated 65,000 cap for fiscal year (FY) 2010. The agency continues to accept petitions subject to the general cap.

Additionally, the agency has received approximately 20,000 petitions for those with advanced degrees; however, USCIS continues to accept advanced degree petitions "since experience has shown that not all petitions received are approvable." Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visa numbers.

For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition.

USCIS will provide regular updates on the processing of FY 2010 H-1B petitions. The updates can are available at http://www.uscis.gov/h-1b_count. The announcement is available at http://www.uscis.gov/files/article/H-1B_count_20apr09.pdf.

2. DOL Announces New LCA/PERM Labor Cert Electronic Application System

The Department of Labor's Employment and Training Administration (ETA) has announced "iCERT," a new electronic system for submitting the H-1B labor condition application (LCA) and the application for permanent labor certification.

The iCERT portal, located at http://icert.doleta.gov, is available for the submission of ETA 9035Es (electronic LCA H-1B applications). The current electronic LCA system will continue to be available through May 14, 2009. However, effective May 15, 2009, the LCA for the H-1B program will be available for submission only through the iCERT portal system. The PERM labor certification application, Form ETA 9089, will become available for application submission on September 1, 2009. To allow for an appropriate transition, both systems will be active during the month of September. However, beginning October 1, 2009, PERM applications will be submitted electronically only through iCERT system accounts.

The Department plans to deactivate the current electronic version of the ETA 9035E on May 15, 2009, and to deactivate the current electronic version of the Form ETA 9089 on October 1, 2009. The Department is encouraging employers to copy all necessary application information into the new iCERT system before these deactivation dates. The status of applications submitted before deactivation will continue to be available through current system accounts.

The Office of Foreign Labor Certification has implemented a Help Desk Unit for program assistance at the Chicago National Processing Center (CNPC) to serve as a resource to employers and their representatives in filing LCAs.

 Program-related questions may be e-mailed to LCA.Chicago@dol.gov. The LCA Help Desk e-mail box will be monitored by the CNPC from 8:30 a.m. to 5 p.m. Central Time, Monday through Friday.

The ETA's notice is available at http://edocket.access.gpo.gov/2009/pdf/E9-8505.pdf.

Meanwhile, the DOL redesigned the ETA 9035 (H-1B LCA form) effective April 15, 2009, and the 9089 (PERM labor certification form) effective July 1, 2009. The DOL also noted at a February 4, 2009, public briefing that it has up to seven working days, effective with the new form on April 15, 2009, to certify an LCA. (The old LCA form may be used without the seven-day requirement up to May 14.) Both revised forms require more information and details about the employer, employee, job title, and attorney.

The new ETA Form 9089 is available at http://www.foreignlaborcert.doleta.gov/pdf/ETA_Form_9089_PEC.pdf. The new ETA Form 9035/9035E is available at http://www.foreignlaborcert.doleta.gov/pdf/ETA_Form_9035_LCA_Non_Immigrant.pdf. Links to handouts, instructions, and a fact sheet are available at http://www.foreignlaborcert.doleta.gov/ (scroll down).

3. Employment Third Preference, 'Other Worker' Categories Unavailable

The Department of State's Visa Bulletin for May 2009 states that the employment third preference and third preference "Other Workers" categories have become "Unavailable." The Department explained that the cut-off dates for those categories were held and then retrogressed in an effort to bring demand within the average monthly usage targets and the overall annual numerical limits. Despite these efforts, the amount of demand for adjustment of status cases with priority dates that were significantly earlier than the established cut-off dates remained extremely high. As a result, these annual limits have been reached and both categories have become unavailable.

Visa availability in these categories will resume in October, the first month of the new fiscal year. The Visa Bulletin for May 2009 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4454.html.

4. USCIS Issues Q&A on Cap Gap Extension of Post-Completion Practical Training and F-1 Status for Eligible Students

U.S. Citizenship and Immigration Services (USCIS) has issued questions and answers addressing the automatic extension of F-1 student status in the U.S. for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2009, under the FY 2010 H-1B cap. The Q&A states that once a timely H-1B filing has been made, the automatic "cap gap" extension will begin and will continue until the H-1B process has been completed.

The Q&A, which contains additional details, is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=7f1a046c43360210VgnVCM1000004718190aRCRD
&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

5. E-Verify Update: Applicability of Contractor Rule Extended; USCIS Issues Reminder; Nebraska Governor Signs Bill

U.S. Citizenship and Immigration Services (USCIS) has postponed to June 30, 2009, the effective date of a rule that will require federal contractors and subcontractors to begin using the E-Verify system to verify the work authorization of new hires. USCIS said the extension will provide an opportunity to review the entire rule before it applies to federal contractors and subcontractors.

USCIS issued a reminder that the revised Form I-9, Employment Eligibility Verification (rev. 02/02/09), went into effect on April 3, 2009, for all U.S. employers. The revision date is printed on the lower right-hand corner of the form.

Meanwhile, Nebraska Governor Dave Heineman signed a bill on April 8, 2009, to require public employers and those receiving state or local contracts or tax incentives (including subcontractors) to use E-Verify for newly hired employees effective October 1. The bill also prohibits undocumented persons from receiving state and local public benefits.

Michael Aytes, USCIS Acting Deputy Director, noted in testimony on April 2, 2009, that over 117,000 employers are enrolled in E-Verify, representing over 456,000 locations. He said that an average of 1,000 employers enroll each week and participation has more than doubled each fiscal year since 2007. Employers have run over 3.6 million queries thus far in fiscal year (FY) 2009, Mr. Aytes noted, adding that the volume of queries doubled from FY 2007 to FY 2008 from 3.27 million to 6.6 million, and that according to an analysis of Bureau of Labor Statistics data, over 14 percent of all nonagricultural new hires in the U.S are run though E-Verify.

 The USCIS announcement extending the E-Verify contractor rule is available at http://www.uscis.gov/files/article/UpdateContractor_%20Rule_Extended_16apr09.pdf. The I-9 reminder is available at http://www.uscis.gov/files/article/revised-i-9-update.pdf, along with a link to the revised Handbook for Employers, which includes instructions on completing the I-9. Questions and answers on the revised I-9 form are available at http://www.uscis.gov/files/article/revised-i-9-q-a.pdf. Mr. Aytes's testimony is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=d3ace7c336c60210VgnVCM1000004718190aRCRD
&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

6. USCIS Extends Validity of Civil Surgeon Medical Certifications

U.S. Citizenship and Immigration Services (USCIS) has extended the validity of civil surgeon endorsements on Form I-693, Medical Examination of Aliens Seeking Adjustment of Status.

 A memorandum from Donald Neufeld, USCIS Acting Associate Director for Domestic Operations, sent to the field on December 10, 2008, notes that a USCIS policy memorandum issued in January 2008 extended the validity of the civil surgeon endorsement on the I-693 until the adjustment of status application could be adjudicated. That policy was set in consultation with the Centers for Disease Control and Prevention and was limited to those applications where no Class A or B medical condition was certified. The policy was in effect until January 1, 2009. The new memo states that due to the continuing backlog of some adjustment applications, the validity of the civil surgeon's endorsement on the I-693, when submitted in support of an adjustment application, is extended until the time of adjudication if no Class A or B medical condition is certified by the civil surgeon. This policy will remain in effect until January 1, 2010.

The memo is available at http://www.uscis.gov/files/nativedocuments/extension_of_
validity_of_medical_certifications_i693_10dec08.pdf.

7. DOL Extends Transition Period of Filing Procedures for H-2A Employers

The Department of Labor's Employment and Training Administration issued an interim final rule on April 16, 2009, to extend the transition period of the application filing procedures currently in effect for all H-2A employers with a date of need on or before July 1, 2009, as established in the H-2A final rule published on December 18, 2008, and in effect as of January 17, 2009. The transition period is extended to include all employers with a date of need on or before January 1, 2010. Comments may be submitted by May 18, 2009.

The interim final rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-8815.pdf.

8. H-1B, L-1 Reform Legislation Introduced

Sens. Richard Durbin (D-Ill.) and Chuck Grassley (R-Iowa) introduced the "H-1B and L-1 Visa Reform Act" on April 23, 2009. The Durbin-Grassley bill would:

• Require all employers who want to hire an H-1B worker to first make a good-faith attempt to recruit a qualified U.S. worker. Employers would be prohibited from using H-1B visa holders to displace qualified U.S. workers.
• Prohibit "H-1B only" ads and prohibit employers from hiring additional H-1B and L-1 workers if more than 50 percent of their employees are H-1B and L-1 visa holders.
• Permit the Department of Labor (DOL) to initiate investigations without a complaint and without the Labor Secretary's personal authorization;
• Authorize the DOL to review H-1B applications for fraud;
• Allow the DOL to conduct random audits of any company that uses the H-1B program;
• Require the DOL to conduct annual audits of companies who employ large numbers of H-1B workers.

The Durbin-Grassley bill also would establish a process to investigate, audit, and penalize L-1 visa violations. The two senators introduced a similar bill in March 2007, which was folded into a comprehensive immigration reform bill that failed.

Meanwhile, President Obama reportedly plans to speak publicly about immigration issues in May, and to convene working groups over the summer to discuss possible legislation.

9. CBP Expands Global Entry Pilot Program to Netherlands

U.S. Customs and Border Protection (CBP) is conducting an international trusted traveler pilot program, "Global Entry," at seven U.S. airports. Under an arrangement between the U.S. and the Netherlands, CBP is expanding eligibility for participation in the pilot to include citizens of the Netherlands who participate in Privium, an expedited travel program in the Netherlands, and who otherwise satisfy the requirements for participation in Global Entry. Currently, eligibility is limited to U.S. citizens, U.S. nationals, and U.S. lawful permanent residents (LPRs). Pursuant to this same arrangement, U.S. citizens who participate in the Global Entry pilot also will have the option to apply for participation in Privium.

The expansion of eligibility to qualified citizens of the Netherlands occurred on April 23, 2009. The CBP Federal Register notice is available at http://edocket.access.gpo.gov/2009/pdf/E9-9221.pdf.

10. Labor Organizations Reach Immigration Accord

The AFL-CIO and Change to Win labor federations have agreed to jointly support a specified set of comprehensive immigration reform measures. The accord endorses legalizing the status of undocumented individuals already in the U.S. and improving current temporary worker programs, but opposes any new guestworker programs. Immigration of workers would be managed via a national commission, which would set the permanent and temporary numbers to be admitted each year each year based on labor market demands.

The accord includes five features:

1. An independent commission to assess and manage future flows, based on labor market shortages that are determined on the basis of actual need;
2. A secure and effective worker authorization mechanism;
3. Rational operational control of the border;
4. Adjustment of status for the current undocumented population; and
5. Improvement, not expansion, of temporary worker programs, limited to temporary or seasonal, not permanent, jobs.

The new accord did not sit well with many in the business community who favor a guestworker program. "If the unions think they're going to push a bill through without the support of the business community, they’re crazy," said Randel Johnson, the U.S. Chamber of Commerce's vice president of labor, immigration and employee benefits. "As part of the trade-off for legalization, we need to expand the temporary worker program." Others, such as Rep. Steve King (R-Iowa), a member of the House of Representatives' immigration subcommittee, objected to the idea of legalizing undocumented workers: "In our current economic crisis, Americans cannot afford to lose more jobs to illegal workers.”

An article released by the AFL-CIO in April 2009 summarizing the new accord is available at http://www.aflcio.org/issues/civilrights/immigration/upload/immigrationreform041409.pdf.

Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/jsps/ptimes.jsp

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

Recent Firm News:

On June 4, 2009, Bernie Wolfsdorf will be installed as the President of the American Immigration Lawyers Association for the 2009-2010 term. Mr. Wolfsdorf will be installed as the President of AILA during sessions of the association’s 53rd Annual Conference being held June 3-6, 2009 in Las Vega, Nevada.

Wolfsdorf Immigration Law Group will have a booth at the NAFSA 2009 Annual Conference and Expo. Visit us at booth #752 to meet your WILG attorney and to enter to win a 13-inch Apple® MacBook laptop.

Bernie Wolfsdorf will give an Update on New Developments and Hot Topics in Immigration" at the San Jose AILA Chapter Conference May 14, 2009 in San Jose, California.

Avi Friedman presented on "The National Visa Center and Consular Processing" at the AILA Minnesota/Dakotas Chapter 2009 Upper Midwest Immigration Conference on April 30, 2009 in Bloomington, Minnesota. On May 7, 2009, he will be speaking on "Security Clearances and Nonimmigrant Processing-Strategies for Resolving Issues at the Consulate and at the Border" on an AILA Web Seminar. Mr. Friedman will also be presenting at the AILA Annual Conference in Las Vegas, Nevada on June 5, 2009 on the topic of non-immigrant waivers, "Hit Me! What Are the Odds of Securing an NIV Waiver for Your Corporate Client’s Employee?" He has also been appointed to serve his third term on AILA’s national Department of State (DOS) liaison committee during the 2009-2010 year.

Rita Sostrin held immigration workshops for Postdoctoral Scholars at UCLA on April 29, 2009. Ms. Sostrin has also been appointed AILA Vice-Chair of the Healthcare Professionals/Physicians Committee and is a member of AILA’s Board of Publications. Ms. Sostrin will also be the discussion leader on a panel called "Responding to Extraordinary Ability/NIW RFEs" at the AILA Annual Conference on June 6, 2009 in Las Vegas, Nevada.

Tien-Li Loke Walsh will speak on the future of the E-Verify program at the NAFSA 2009 Annual Conference being held May 24-29, 2009 in Los Angeles, California. Ms. Loke Walsh continues to speak at immigration workshops around Southern California, including the UCLA Anderson School of Management, the University of California, Riverside and the University of California, Merced.

Naveen Rahman Bhora has been re-appointed as a member of AILA’s Vermont Service Center Liaison Committee.

Cliff Rosenthal spoke at an immigration law workshop at the University of California, Merced on April 30, 2009. He has also been appointed Chair of AILA’s National Religious Worker Committee.

Andrew Stevenson will be presenting at a Practice Roundtable on S, T & U Visas at the AILA 2009 Annual Conference in June at Las Vegas, Nevada. He will also serve on AILA’s national CBP liaison committee for the 2009-2010 year. Mr. Stevenson also volunteered at the AILA Citizenship Day workshop on April 18, 2009 in Pacoima, California.

Cynthia Lucas helped organize a Creative Writing Contest Awards ceremony to be held on May 17, 2009 at the Hilton Universal. The awards ceremony, sponsored by the American Immigration Law Foundation and the Southern California AILA Chapter, will honor close to 300 5th grade students who submitted creative writing pieces addressing the topic, "Why I'm Glad America is a Nation of Immigrants." The first phase of the essay contest was judged by a team of WILG paralegals and attorneys.

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This year Wolfsdorf Immigration Law Group staff are helping to coordinate an exciting “Celebrate America” Creative Writing Contest for 5th graders nationwide. This contest is sponsored by the American Immigration Law Foundation (AILF) and the American Immigration Lawyers Association Southern California Chapter. The Contest is part of AILF’s ongoing efforts to spread a positive message about the benefits of immigration. Additional information about the AILF's Curriculum Center and its goals can be found at http://www.ailf.org/awards/essaycontest/.

Close to 300 5th grade students from around the Los Angeles and Orange County areas have already submitted creative writing pieces on the theme “Why I am Glad America is a Nation of Immigrants.” The top three winners of the Southern California Contest will be honored at a local awards ceremony on May 17, 2009 at the Universal Hilton Hotel. The main winner of this local contest will then be entered into the national contest. We would like to invite you to participate in the “Celebrate America” Creative Writing Contest by asking you to donate scholarship awards or prizes your company may be able offer.

We hope to make this Contest an enriching experience for the students writing about immigration and for the community as a whole. Your contribution will help us achieve this goal and your generosity will be noted in the program for the awards ceremony.

For more information, please contact Attorney Cynthia Lucas at clucas@wolfsdorf.com / (310) 570-4088 x263. Thank you!

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