WOLFSDORF IMMIGRATION NEWSLETTER – JULY 2009
EMPLOYMENT-BASED IMMIGRATION NEWS
1. Are You Ready for an I-9 Audit? USCIS serves 652 businesses nationwide with I-9 audit notices on Wednesday, July 1, 2009
U.S. Immigration and Customs Enforcement (ICE) launched a bold, new audit initiative on July 1, 2009, by issuing Notices of Inspection (NOIs) to 652 businesses nationwide - which is more than ICE issued throughout all of last fiscal year. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations. Inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. This new initiative illustrates ICE's increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.
"ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This nationwide effort is a first step in ICE's long-term strategy to address and deter illegal employment," said Department of Homeland Security Assistant Secretary for ICE John Morton.
Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual's identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.
The 652 businesses being presented with a NOI today for a Form I-9 audit have been selected for inspection as a result of leads and information obtained through other investigative means. Due to the ongoing, law enforcement sensitive nature of these audits, the names and locations of the businesses will not be released at this time. In FY 2008, ICE issued 503 similar notices throughout the year. In April, ICE implemented a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation's lawful workforce. Under this strategy, ICE is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers. The nationwide initiative being launched today is a direct result of this new strategy.
Please contact your Wolfsdorf professional if you have been contacted by
ICE. In addition, you can schedule an appointment with one of our attorneys
to conduct an internal I-9 audit to determine if your company is in
compliance.
The announcement is available at:
http://www.ice.gov/pi/nr/0907/090701washington.htm
2. Current I-9 Form Validity Extended Beyond June 30
U.S. Citizenship and Immigration Services (USCIS) has announced that the I-9 Employment Eligibility Verification Form (rev. 2/2/09) currently in use will continue to be valid beyond June 30, 2009.
USCIS has requested that the Office of Management and Budget approve the continued use of the current I-9. While this request is pending, the form will not expire.
USCIS will update the I-9 when the extension is approved. Employers will be able to use either the I-9 with the new revision date or the I-9 with the 2/2/09 revision date at the bottom of the form.
The announcement is available at http://www.uscis.gov/files/article/update_employ_eligible_i9.pdf
3. USCIS Updates Progress Toward H-1B cap
U.S. Citizenship and Immigration Services (USCIS) announced that as of June 26, 2009, it has received approximately 44,800 H-1B petitions toward the congressionally mandated 65,000 H-1B cap for the fiscal year (FY) 2010 program. The agency continues to accept petitions subject to the general cap.
The announcement is available at:
4. H-1B Processing Time Will Increase July 1
The ability to file an H-1B extension or change of employer petition for an H-1B employee on a same-day, or even same-week, basis will end on July 1.
In the past several years, employers have become used to immediate turnaround of H-1B petitions, made possible by the Department of Labor's (DOL) electronic system for filing and certification of the required Labor Condition Application (LCA). Effective June 30, 2009, the new iCert system for LCAs will eliminate same-day LCA approvals in many cases. Instead, the DOL may take up to seven business days to certify the LCA. Early experience with the system indicates that DOL is using all seven business days or more.
In the era of iCert, advance planning is a must. Employers should monitor the expiration dates of H-1B employees and allow sufficient time (4-6 months) for the preparation and filing of H-1B extensions and amendments. This delay in filing H-1B petitions will also affect the usefulness of H-1B portability, because an individual in H-1B status will only be authorized to work for the new employer upon the filing of the new petition, and a certified LCA is required to make that filing. Under the new system, LCA delays will likely add at least a week to 10 days to that process. Unfortunately, employees who fall victim to the economy will also feel the impact of the delayed LCA certification timing because it will delay their ability to file a new H-1B petition once they have obtained new employment.
If you have further questions on how iCert affects your workforce, contact your Wolfsdorf representative for more information.
5. USCIS Discusses Requirements for H-1Bs in Health Care Specialty Occupations
U.S. Citizenship and Immigration Services (USCIS) has issued a memorandum clarifying the standards for adjudicating H-1B petitions filed on behalf of beneficiaries seeking employment in a health care specialty occupation.
Among other things, the memo notes that if the petitioner provides documentary evidence that the beneficiary has a valid license to practice a health care occupation (and meets the definition of specialty occupation) in the state in which the beneficiary will be employed, the adjudicator "should not look beyond the license." However, the petitioner will still need to provide evidence that the beneficiary is admissible. This guidance applies regardless of whether the beneficiary has a bachelor’s degree, master’s degree, or doctoral degree in the health care occupation.
If the beneficiary has an unrestricted license and the petition is otherwise approvable, the memo states that an adjudicator should approve the petition for the full H-1B period requested (up to three years) but may not approve the petition beyond the validity of the labor condition application. The memo notes that most states require a license to be renewed periodically. If the beneficiary has an unrestricted license, the memo states that the renewal date should not be considered when determining the validity period of the approval.
The memo is available at http://www.uscis.gov/files/nativedocuments/health_care_occupations_20may09.pdf.
6. USCIS Resumes Premium Processing for Certain I-140s
U.S. Citizenship and Immigration Services (USCIS) will accept premium processing requests for I-140s involving the EB-1 (extraordinary ability and outstanding professors/researchers), EB-2 (members of professions with advanced degrees or exceptional ability not seeking a national interest waiver), and EB-3 (professionals, skilled workers, and other workers) categories.
Premium processing is still not available for I-140s involving EB-1 multinational executives and managers and EB-2 members of professions with advanced degrees or exceptional ability seeking a national interest waiver.
Under premium processing, USCIS guarantees petitioners that for a $1,000 processing fee in addition to the normal filing fee, it will issue an approval notice, a notice of intent to deny, a request for evidence, or an investigation for fraud or misrepresentation within 15 calendar days of receipt. If the petition is not processed within 15 calendar days, USCIS will refund the $1,000 fee and continue to process the request. In addition to faster processing, petitioners who participate in the program may use a dedicated phone number and e-mail address to check on the status of their petitions or ask related questions.
Premium processing continues to be available for previously designated classifications within the I-140 and within the I-129 Petition for Nonimmigrant Worker.
The notice is available at http://www.uscis.gov/files/article/premproc_22jun09.pdf.
7. USCIS Issues Guidance on Education, Training, Experience Requirements for Foreign Physicians
U.S. Citizenship and Immigration Services (USCIS) has issued a memorandum providing guidance on adjudication of the I-140 Petition for Alien Worker filed for certain physicians. In particular, the memo provides guidance to Immigration Services Officers (ISOs), formerly known as Information Immigration Officers (IIOs) or Adjudications Officers (AOs), on determining whether a foreign medical degree (MD) is the equivalent of a U.S. MD, and thus constitutes an advanced degree for EB-2 purposes.
The memorandum also addresses how to determine whether a foreign physician has met the education, training, and experience requirements of labor certification and licensure in the area of intended employment. The memo clarifies that all EB-2 and EB-3 physicians must overcome the "unqualified physician" provisions of INA § 212(a)(5)(B) at the time of the permanent job offer.
The memo notes that the U.S. is one of the few countries where medical school applicants must obtain a bachelor's degree as a prerequisite to admission to medical school. As a result, a U.S. MD is considered to be an advanced degree. In many other countries, USCIS noted, a person may be admitted to medical school directly out of high school. In these instances, the program of study for the foreign medical degree is longer in length (generally 5-7 years in duration) than the program for a less specialized foreign bachelor's degree (generally 3-4 years in duration.)
The memo is available at http://www.uscis.gov/files/nativedocuments/AFM_alien_physicians_i140_afm_update_ad09_10.doc.pdf.
8. USCIS Explains "Full-Time," Discusses Job Creation Timing in EB-5 Immigrant Investor Program
U.S. Citizenship and Immigration Services (USCIS) recently issued a guidance memorandum providing USCIS adjudication officers with instructions related to the timing of job creation and the meaning of "full-time" positions in the EB-5 Immigrant Investor Program.
The memo clarifies that for purposes of the Immigrant Petition by Alien Entrepreneur (Form I-526) adjudication and job creation requirements, USCIS will consider the two-year period to begin six months after approval of the I-526 EB-5 petition.
USCIS officers will ensure that the business plan filed with the I-526 reasonably demonstrates that the requisite number of jobs will be created by the end of the two-year period. For Regional Center petitions and for purposes of indirect job creation, USCIS adjudicators may consider economic models that rely on certain variables to show job creation and the amount of investment to determine whether the required infusion of capital or creation of direct jobs will result in a certain number of indirect jobs.
USCIS also has concluded that certain direct and indirect jobs that previously would have been considered to be temporary or intermittent (such as construction jobs) may be considered as permanent jobs for purposes of the EB-5 program if the positions can be expected to last at least two years.
A notice announcing the memo is available at http://www.uscis.gov/files/article/EB-5_Guidance.pdf
The memo is available at http://www.uscis.gov/files/nativedocuments/eb5_17jun09.pdf
9. USCIS, FBI Eliminate Name Check Backlog, Set New Standard
U.S. Citizenship and Immigration Services (USCIS) has announced that, in partnership with the Federal Bureau of Investigation (FBI), it has met all milestones set forth in a joint business plan announced April 2, 2008, resulting in elimination of the FBI National Name Check Program (NNCP) backlog.
The goal was to complete 98 percent of name check requests submitted by USCIS within 30 days, and the remaining two percent within 90 days. This performance level will become the new standard, USCIS said. As is the case with all security checks undertaken by USCIS, any information provided by the FBI through these checks may require further evaluation and may lead to follow-up queries to other agencies. This could result in additional delays in processing, which USCIS said are not governed by the processing goals in the joint business plan. In the majority of instances, however, USCIS said the completion of a backlogged FBI name check has resulted in a "no record response." Next steps in the adjudication of any cases that were delayed because of a pending FBI name check request may now include updating fingerprint results, scheduling interviews, requesting additional evidence and other reviews to determine whether the applicant is eligible for the requested immigration benefit.
The announcement is available at http://www.uscis.gov/files/article/NNCP_backlog_elim_22jun09.pdf.
SPECIAL IMMIGRANT UPDATES
10. USCIS Issues Court Notice to Pending I-360 Religious Workers
On June 11, 2009, the U.S. District Court for the Western District of Washington issued an order in Ruiz-Diaz v. U.S., finding that 8 CFR § 245.2(a)(2)(i)(B), which does not allow religious workers to concurrently file an Application to Register Permanent Residence or Adjust Status (Form I-485), was invalid and unenforceable. The court has ordered USCIS to accept properly filed I-485s and I-765s from beneficiaries of religious worker I-360 petitions. The court order also allows individuals whose concurrent filings were rejected previously to reapply for adjustment of status. The order accords a spouse and children of I-360 beneficiaries the same benefits.
A June 25, 2009, USCIS memo implementing the decision and providing information about filing applications for foreign religious workers with pending I-360s is available at http://www.uscis.gov/files/nativedocuments/Ruiz-Diaz_Implementation_25jun09.pdf
TRAVEL UPDATE FOR NON-CITIZENS
11. Helpful Tips for U.S. and Canadian Border Travelers this Summer
The U.S. Customs and Border Protection reminds both Americans and Canadians travelers that they must comply with the Western Hemisphere Travel Initiative (WHTI). WHTI requires all U.S. and Canadian citizens age 16 and older to present a valid, acceptable document that denotes both identity and citizenship when entering the United States.
For tips and recommendations, visit the CBP website at: http://www.cbp.gov/xp/cgov/newsroom/news_releases/june_2009/06292009_5.xml
LEGISLATIVE UPDATES
12. President, Members of Congress Discuss Immigration Reform
President Barack Obama met on June 25, 2009, with several members of his cabinet, advisors, and Congress to discuss immigration reform. President Obama noted that Department of Homeland Security Secretary Janet Napolitano will lead a group that will work with key members of the House and the Senate on immigration issues. President Obama said that "we've got a responsible set of leaders sitting around the table who want to actively get something done and not put it off until a year, two years, three years, five years from now, but to start working on this thing right now."
Meanwhile, Charles Schumer (D-N.Y.), chair of the Senate's immigration subcommittee, said on June 24 that he will hold hearings on employment-related immigration in July. Stay tuned.
President Obama's statement is available at http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-after-meeting-with-members-of-Congress-to-discuss-immigration/.
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
Wolfsdorf Immigration Law Group has once again been recognized as one of the top ranked immigration law firms in Chambers USA 2009 and Chambers Global 2009. Bernie Wolfsdorf was recognized as a star individual. Rita Sostrin, Tien-Li Loke Walsh and Lisa Yu were all listed as up and coming attorneys.
This “ever-growing firm” has an impressive practice that stretches beyond its offices in New York and Santa Monica, and benefits from a strong international network encompassing more than 50 different countries. It is viewed by sources as “one of the best firms for processing US visas at consulates abroad,” and this continues to be a mainstay of the firm’s work. It has lately developed this specialism to take in the growing trend for investor visas, an area of work that has had an especially significant impact on the Santa Monica office. Bernard Wolfsdorf contributes heavily to the firm’s reputation for visa processing and is described as “a really smart guy who works day and night.” As a testament to his knowledge and expertise, Wolfsdorf was recently elected president of the American Immigration Lawyers Association (AILA). Chambers Global 2009
“Highly regarded for its wide-ranging immigration skills, this two-office firm acts for a diverse client base that includes academic, healthcare and entertainment entities, in addition to a more traditional corporate clientele. Founder and name partner Bernard Wolfsdorf is the president elect of AILA and is well known for his consular processing work in Mexico. Rita Kushner Sostrin has a rising profile in immigration work and is particularly good for skilled visas in the healthcare sector. Tien-Li Loke Walsh wins client plaudits for her business insight. Lisa Yu is appreciated for her expertise in green cards and permanent residency applications.” Chambers USA 2009
Chambers and Partners is the publisher of trusted guides to the world’s leading attorneys. http://www.chambersandpartners.com/Default.aspx
Congratulations to Tien-Li Loke Walsh, Cliff Rosenthal and Andrew Stevenson for being recognized in the Southern California Super Lawyers 2009 Rising Star Edition.
Rita Sostrin was a discussion leader on AILA’s Audio Seminar entitled, “"National Interest Waivers -- New Trends and Tricky Issues" on June 30, 2009.
The Southern California AILA Chapter selected the following Wolfsdorf Attorneys for liaison appointments for 2009-2010:
Alexander Dgebuadze- Labor Market Information Division & Congressional
Andrew Stevenson- Customs and Border Patrol
Avi Friedman- Consular Affairs
Allison Claire Acker- Advocacy Event Coordinator
Cynthia Lucas- Young Lawyers Division & Essay Contest
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The Wolfsdorf Immigration Law Group is one of the largest immigration boutique firms in the United States. With offices on both the east and west coasts, the firm serves an extensive and diverse client base, ranging from Fortune 500 corporations to entertainers and leading academic institutions. Our large and dedicated staff of 50 employees ensures prompt and expert attention to your immigration law matters. For more information about any of the above-mentioned issues, or any immigration-related questions or concerns, please contact our team of professionals or your assigned Wolfsdorf professional at 1(800)VISA-LAW or (310)570-4088/(212) 899-5040 or contact us via email at visalaw@wolfsdorf.com
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