Wolfsdorf Immigration Newsletter November 2009

1. H-1B Quota Numbers Running Out

USCIS reports, as of October 30, 2009, approximately 53,800 H-1B cap-subject petitions had been filed. The annual quota is 65,000. Employers that wish to ensure one of these quota numbers should begin the process immediately.

2. Congress Extends Four Immigration Programs for Three Years

On October 28, 2009, President Obama signed into law the fiscal year 2010 appropriations bill for the Department of Homeland Security. The law extends four immigration programs: the non-minister religious worker program, the "Conrad 30" program for certain foreign doctors, the EB-5 immigrant investor pilot program, and the E-Verify program for electronic verification of workers' eligibility. All four programs are extended for three years until September 30, 2012. The new law also includes statutory authority for U.S. Citizenship and Immigration Services to complete processing of permanent residence applications for surviving spouses and other relatives of immigration sponsors who die during the adjudication process. The Department of State has stated in the Visa Bulletin that legislation extending the religious worker and EB-5 programs would make these immigrant visa categories current for the month of November.

3. State Dept. Issues DV-2011 Visa Lottery Instructions

The Department of State announced that entries for the DV-2011 Lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Friday, October 2, 2009, and noon, Eastern Standard Time (EST) (GMT-5) Monday, November 30, 2009. Applicants may access the electronic Diversity Visa (E-DV) Entry Form at http://www.dvlottery.state.gov/ during the registration period. Paper entries will not be accepted. The Department strongly encourages applicants not to wait until the last week of the registration period to enter. Heavy demand may result in Web site delays. All entries by any individual will be disqualified if more than one entry for that individual is received, regardless of who submitted the entry. For DV-2011, natives of the following countries are not eligible to apply: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, 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. The full instructions, including details on eligibility and how to apply, are available at http://edocket.access.gpo.gov/2009/pdf/E9-24077.pdf.

4. USCIS Ombudsman Recommends Temporary Acceptance of Filed LCAs for Certain H-1B Filing

The ombudsman for U.S. Citizenship and Immigration Services (USCIS) has received complaints concerning H-1B cases with incorrectly denied labor condition applications (LCA) filed with the U.S. Department of Labor (DOL). The ombudsman said that LCA processing delays and errors at DOL, coupled with USCIS’s current H-1B petition initial filing requirements, "are prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions." Untimely H-1B petition filings lead to several problems, the ombudsman noted, including: (1) the potential loss of employees’ legal status; (2) business operation disruptions due to the loss of continuity in the employment of key employees; and (3) economic loss to employees in the form of lost wages and costs of travel overseas due to loss of status. Specifically, stakeholders have detailed errors stemming from the new DOL LCA certification process, iCERT, launched on April 15, 2009. For example, the ombudsman noted, DOL is denying LCAs based on false FEIN (Federal Employer Identification Number) mismatches with DOL's database. The ombudsman noted that despite DOL's jurisdictional ownership of H-1B-related LCA processing problems, these difficulties extend to USCIS through the agency's requirement that petition filings include certified LCAs. "Any costs to USCIS[,] such as issuing RFEs or temporarily lowering production levels, are outweighed by the burden that incorrect denials have on employers and individuals," the ombudsman said. "USCIS currently has the capacity to make what amounts to a minor processing modification to address a temporary situation.” To mitigate the impact of LCA processing difficulties, the ombudsman recommends that USCIS: (1) reinstate the agency's previous practice of temporarily accepting an H-1B petition supported by proof of timely filing of an LCA application with DOL, and issue a Request for Evidence whereby the H-1B petitioner later provides the certified LCA; and (2) establish a temporary policy under which the agency would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly rejected. The report is available at http://www.dhs.gov/xlibrary/assets/cisomb_recommendation_43_LCAs_October_2009.pdf. USCIS officials have not responded yet to the ombudsman's recommendations.

5. DHS Rescinds 'No-Match' Rules

Effective November 6, 2009, the Department of Homeland Security (DHS) has rescinded rules promulgated in 2007 and 2008 for employers to acquire a safe harbor from "no-match" letters, which the Social Security Administration (SSA) sends, when the employee name and social security number does not match SSA records. DHS said it would focus its enforcement efforts on improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs. The agency said it focuses criminal and civil enforcement efforts against "the most egregious violators: employers who use unauthorized workers in order to gain a competitive advantage or those who exploit the vulnerable, often engaging in human trafficking and smuggling, identity theft, and social security number and document fraud"; and "employers in the Nation's critical infrastructure sites, including airports, seaports and power plants." The final rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-24200.pdf

6. Many Visa Number Cut-Off Dates Not Budging in November, State Dept. Says

The State Department's Visa Bulletin for November 2009 notes that demand for immigrant visas has far exceeded earlier indications. As a result, the Department said that it is necessary to hold most of the employment cut-off dates for November, and it is not possible to provide an estimate of future cut-off date movements. The Visa Bulletin for November 2009 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4576.html.

7. USCIS Issues Controversial Clarification of Requirements for Agents Filing as Petitioners for O and P Visas

U.S. Citizenship and Immigration Services (USCIS) issued a controversial clarification on October 7, 2009, regarding the requirements for agents filing in the O and P visa classification. Both the O and P regulations provide that if the beneficiary/employee will work concurrently for more than one employer within the same time period, each employer must file a separate petition, unless an "established agent" files the petition. USCIS noted that a petition involving multiple employers may be filed by a person or company in business as an agent as the representative of both the employers and the beneficiary, if the supporting documentation includes a complete itinerary; specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the venues where the services will be performed; the contract between the employers and the beneficiary; and the agent explains the terms and conditions of the employment. An employer that files a petition on behalf of other employers under the guise of being such employers' "agent" does not meet this condition. The agency said. "For example, if Employer A files a petition for a beneficiary it will be sponsoring, and submits an itinerary that includes performances for the beneficiary with other employers, at different times, and at different venues, USCIS generally would only approve the petition for Employer A and deny the petition with respect to the other employers." Such a petition may be approved with respect to all employers only if Employer A can establish to the satisfaction of USCIS that it is "in business as an agent," and that the other employers are its clients. The USCIS news release is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/o-p-visas-7-Oct09_update.pdf. A related fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/o-p-visas-7-oct-09-factsheet.pdf.

 8. State Dept. Issues Final Rule on Documentation of Nonimmigrants in Religious Occupations

The Department of State issued a final rule that requires consular officers to ensure that R-1 visa applicants have obtained an approved U.S. Citizenship and Immigration Services (USCIS) Petition for a Nonimmigrant Worker (Form I-129) before a visa can be issued. The final rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-24089.pdf.

9. NYC Mayor Bloomberg Announces New Immigration Efforts

In a recent speech at CUNY Graduate Center, New York City Mayor Michael Bloomberg said the city "needs more immigrants." As part of his plan for a third term on November 3, 2009, Mayor Bloomberg has called immigrants the "lifeblood of New York City" and expressed his support for comprehensive immigration reform with a pathway to citizenship and for the DREAM Act, "which would allow children of undocumented immigrants to become citizens in exchange for attending college or performing military service." Mr. Bloomberg also plans to create an Immigrant Advisory Board "with members of the religious, labor, business, cultural, and community-based networks to meet quarterly." Mr. Bloomberg also said that New York City would partner with private law firms to dispatch deferred legal associates to immigrant communities in need of quality legal assistance and representation. The associates will be deployed for a minimum one-year fellowship. "Immigrants: The Lifeblood of New York City" is available at http://www.mikebloomberg.com/ImmigrantsLifebloodNYC.pdf.

10. USCIS Launches E-Notification

U.S. Citizenship and Immigration Services (USCIS) has launched an "E-Notification" initiative for immigration applications and petitions filed at USCIS facilities in Chicago, Illinois; Phoenix, Arizona; and Lewisville, Texas. If you file your USCIS applications and/or petitions at one of these facilities, you will have the option to receive an e-mail and/or text message informing you that USCIS has accepted your application or petition. If you would like to receive an E-Notification that your application or petition has been accepted, complete Form G-1145, E-Notification of Application/Petition Acceptance, and attach it to the top of your application or petition. A fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/FY%2009/September%202009/E-Notification%20Capability%20Fact%20Sheet_16Sep09.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/processTimesDisplay.do

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

FIRM NEWS

Bernie Wolfsdorf, AILA National President and firm founder will present the “Hot Topics” Opening Panel at the California Chapters Conference on November 13, 2009 providing the latest news from Washington, CIR, the Courts, DHS, DOL, and Advocacy. Bernie will also present a panel on “The current US immigration law landscape following the inauguration of Barack Obama” at the international Bar Association Global Immigration Conference in London on November 19.

Avi Friedman will moderate the panel on Consular Processing at the AILA California Chapters Conference on November 13, 2009.

Alli Acker will present on the panel on Ethics at the AILA California Chapters Conference on November 14, 2009.

Andrew Stevenson will serve on U.S. Customs and Border Patrol update panel at the AILA California Chapters Conference on November 14, 2009.

Cliff Rosenthal will be participating in a teleconference call with the office of the USCIS ombudsman to discuss improvements in the religious worker nonimmigrant and immigrant programs.

Judge Bruce J. Einhorn (Ret’d) who is “of counsel” to the firm will present an “Update on the 9th Circuit at the AILA California Chapters Conference on November 14, 2009.

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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 about 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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Disclaimer/Reminder

This e-mail does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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