Friday, December 18, 2009

Immigration Alert - Vol. XII, Issue 27 - November 18, 2009

New Immigration Bill Is Introduced in House

The on-again, off-again drive to overhaul the nation’s immigration moved back to Congress on Tuesday with the introduction of legislation that would open a path to legal status for millions of illegal immigrants.

The bill presented by U.S. Congressman Luis V. Gutierrez (D-IL) of a comprehensive immigration reform (CIR) bill is considered an important step in creating momentum for immigration reform and fixing our nation's broken immigration system.

The bill, introduced in the House of Representatives, contains many core principles which immigration advocates consider vital to any comprehensive immigration reform bill which include:

    - Pathway to legalization for undocumented workers and students,

    - Family unity,

    - Labor provisions, smarter and more effective enforcement, and worker verification systems that work.

CIR for America's Security and Prosperity Act 2009 (CIR ASAP), prioritizes family unification, protection of civil rights, creation of economic opportunity and diversity. It is the result of many months cooperation with human rights advocates, labor organizations, and members of Congress.

Recent favorable comments by the DHS Secretary Napolitano and Senate Majority Leader Harry Reid (D-NV) further demonstrate that Congress and the Obama administration are fully committed to launch the difficult task engaging different interest groups together to create a measure which will be in our national interest. President Obama has pledged to take up the issue early next year.

The pressing desire for “comprehensive immigration reform” — as it is known by supporters — was made clear in the acronym of Mr. Gutierrez’s bill: “C.I.R. A.S.A.P.”

The Comprehensive Immigration Reform for America's Security and Prosperity (CIR ASAP) Act of 2009 contains six titles.

TITLE I - BORDER SECURITY, DETENTION, AND

ENFORCEMENT

TITLE II - EMPLOYMENT VERIFICATION

TITLE III - VISA REFORMS

TITLE IV – EARNED LEGALIZATION PROGRAM FOR

THE UNDOCUMENTED

TITLE V - STRENGTHENING AMERICA'S WORKFORCE

TITLE VI - INTEGRATION OF NEW AMERICANS

Under the bill, to obtain legal status and possibly citizenship, illegal immigrants already here must demonstrate that they had been working, pay a $500 fine, learn English and undergo a criminal background check, among other provisions. Unlike previous proposals in Congress, they would not have to return to their homeland first, something known as “touchback.”

Senator Charles E. Schumer, Democrat of New York, is working with some Republicans on a separate bill that should be ready whenever Mr. Obama asked for it.

Monday, July 13, 2009

IMMIGRATION ALERT Vol. VI, Issue 22 - July 2, 2009

ICE launches immigration crackdown on 652 businesses

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1. ICE launches immigration crackdown on 652 businesses
The Department of Homeland Security announced on July 1 that the Immigration and Customs Enforcement agency (ICE) has begun informing businesses of its intention to audit I-9 forms- employment eligibility documents that employers complete for all workers.
Employers must keep each I-9 form and review the authenticity of documents that have been supplied by the employee. Businesses have protested that pinpointing illegal workers is fraught with problems, such as distinguishing fake identity documents that have been made to appear legitimate and risking the violations of anti-discrimination laws.
Immigration officers have served "Notices of Inspection" to 652 businesses, a turn-around from the 503 issued in the last fiscal year.
Homeland Security Secretary Janet Napolitano has assured that the investigations will concentrate on businesses which knowingly employ immigrants incapable of working legally in the United States.
While the Bush administration had faced criticism for sending armed agents to arrest employees suspected of working illegally, the Obama administration has been attempting to build credibility in order to pass a bill for immigration reform.
This may be the beginning of the Obama administration's plan to crack down on unscrupulous employees, though it is difficult to assess as the names of the audited businesses have not been released.

IMMIGRATION ALERT Vol. VI, Issue 21 - June 26, 2009

President Obama Holds Bipartisan Immigration Meeting: Immigration Bill Coming Soon

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1. President Obama Holds Bipartisan Immigration Meeting: Immigration Bill Coming Soon
President Obama vowed on Thursday, June 25, 2009 to immediately begin negotiations to craft comprehensive immigration reform (CIR), with the goal of passing legislation in Congress later this year or early next year.
Obama said that all parties were in agreement that the current immigration system is broken and needs to be fixed. "The American people still want to see a solution in which we are tightening up our borders, (and) we're cracking down on employers who are using illegal workers in order to drive down wages," he said. "And we need an effective way to recognize and legalize the status of undocumented workers who are here."
Obama said his administration has already taken steps to make the border more secure. But he said that the American public is not yet convinced that immigration problems - including illegal border crossings, undocumented workers and the stress they put on public services such as health care and education - can be fixed.
Senator Chuck Schumer (D-NY) is expected to introduce the immigration legislation in the coming months.
Senator John McCain (R-AZ), a leading advocate of CIR, stressed the importance of including a legal temporary worker program in the bill. Senator McCain indicated that legislation without some sort of plan for legalizing the 12 million or so unauthorized workers currently in the U.S. would not gain his nor the Republican party's support.
The AFL-CIO joined the immigration coalition for the first time this year, on the condition that a proposed temporary guest worker program for future immigrant workers would not be part of the bill. Instead, the labor unions have proposed the creation of a federal commission that would adjust the number of worker visas each year based on economic conditions.
Mr. Obama announced improvements to the U.S. Citizenship and Immigration Services Office (USCIS). The office will collaborate with Mr. Obama's chief information officer, chief performance officer and chief technologies officer to make the agency more efficient, more transparent and more user-friendly. USCIS will also launch in the next 90 days a new Web site that will, for the first time ever, allow applicants to get updates on their status of their applications via e-mail and text message and online.

IMMIGRATION ALERT Vol. VI, Issue 20 - June 23, 2009

Topics in this Issue:
1. President Obama to hold Bipartisan Summit on Comprehensive Immigration Reform (CIR) this Thursday
2. Some Industries Cannot Find Enough Workers Even in a Recession
3. Employers Support CIR
4. CIR: Critical to Economic Recovery
5. PEW Research Center Shows that 64% of Americans Favor a Way for Illegal Immigrants to Gain Legal Status

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1. President Obama to hold Bipartisan Summit on Comprehensive Immigration Reform (CIR) this Thursday
The Associated Press reports that the Obama Administration is advancing Comprehensive Immigration Reform as one of its top priorities, and plans to hold a bipartisan summit on CIR this Thursday, June 25, 2009. President Obama will host a group of Senators and members of the House of Representatives at the White House to discuss upcoming legislation on CIR.
2. Some Industries Cannot Find Enough Workers Even in a Recession
Agriculture, food processing and some health care report few U.S. workers applying. Seasonal workers in particular remain in short supply. By advancing CIR and facilitating immigration, employers can fill the gaps they face with much needed workers. In 2007, foreigners accounted for nearly half of all workers with less than a high school education. The U.S. needs these workers to fill seasonal and unskilled jobs.
3. Employers Support CIR
U.S. employers want to be on the right side of the law. It is our obligation as citizens and it makes good business sense. With the government's help in providing an accurate, reliable electronic system to verify that employees are who they say they are and are authorized to work, employers can make employee verifications with greater ease. Law abiding business owners support more aggressive sanctions against businesses that deliberately ignore the law and those that continue to use unauthorized workers once more realistic immigration quotas are in place. Neglecting immigration reform or shrinking temporary worker programs now will lead to labor shortages when the economy improves. Growers who cannot find workers in the U.S. often move south across the border to Mexico. U.S. direct investment in Mexican agriculture has increased sevenfold since 2000. Other countries across the world are working hard to attract high-skilled immigrants - talent for which the U.S. will need to compete.
4. CIR: Critical to Economic Recovery
Requiring undocumented workers to become legal tax payers will create a level playing field for all workers and employers and will promote economic recovery. New tax revenue created by requiring undocumented workers to become legal taxpayers is estimated to contribute hundreds of billions of dollars to the tax burden over the next decade. Legalization will close the trap door at the bottom of the wage scale and will help life wages of all workers. Creating legal channels for workers to come in the future will protect U.S. workers from unfair competition while facilitating long-term economic growth and innovation. Even in an economic downturn, skilled U.S. workers may not take low-paying unskilled jobs.
5. PEW Research Center Shows that 64% of Americans Favor a Way for Illegal Immigrants to Gain Legal Status
The time for CIR is now! Contact your Congressman and Senator today!

IMMIGRATION ALERT Vol. VI, Issue 19 - June 23, 2009

Topics in this Issue:
1. Department of Labor Publishes Final Rule Reinstating H-2A Regulations
2. Attorney General Vacates Decision in Matter of Compean
3. State Department Releases Visa Bulletin for July 2009
4. Chamber of Commerce Announces Delay in Implementation of E-Verify
5. iCert Visa Portal System: By the Office of Foreign Labor Certification

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1. Department of Labor Publishes Final Rule Reinstating H-2A Regulations

On May 29, 2009, the Department published a final rule suspending the H-2A final rule published on December 18, 2008, effective January 16, 2009. Employers should be aware that all applications filed prior to June 29, 2009 will be subject to and adjudicated under the December 2008 Rule. Applications filed on or after June 29, 2009 will be subject to and adjudicated under the reinstated regulations. The reinstated regulations will be in place for a period of no more than 9 months while the December 2008 Rule is under review by the Department.

2. Attorney General Vacates Decision in Matter of Compean

Attorney General Eric Holder vacated the order issued in Matter of Compean by Attorney General Mukasey in January and announced his intention to initiate a new rulemaking proceeding for regulations to govern claims of ineffective assistance of counsel in removal proceedings.

3. State Department Releases Visa Bulletin for July 2009

State Department summarizes the availability of immigrant numbers for July. Allocations were made, to the extent possible under the numerical limitations, for the demand received by June 8th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed
The surge in usage of the employment-based fourth and fifth preference numbers is significant beyond those specific categories themselves because, historically, there have been substantial unused numbers in these categories which have been used to meet demand for visas in the employment-based first and second preference categories, allowing the China and India cut-off dates to advance further than would be possible if those categories are limited to only their annual limits. This means EB-2 immigrants from China and India could have an even longer wait to obtain green cards.

4. Chamber of Commerce Announces Delay in Implementation of E-Verify

USCIS reports that implementation of the final rule requiring federal contractors and subcontractors to begin using USCIS E-Verify system has been delayed until 9/8/2009.

5. iCert Visa Portal System: By the Office of Foreign Labor Certification

Benefits of its use include -

-Single stop entry portal for employers to prepare, submit, and track applications for labor certification
-Central repository for OFLC immigration related content
-Search engine where visa applications that are submitted though iCert can be reviewed
-Employers can search for prevailing wages based on occupation and geographical area

Wednesday, July 8, 2009

Corporate Immigration Law Offices of Ron Katiraei - Vol. VI, Issue 23

Topics in this Issue:

1. Prevailing Wage Process to Change January 1, 2010
2. Board of Immigration Appeals Issues Decision Eliminating Benefits of Child Status Protection Act In Matter of Wang
3. Department of State Advises of Dire State of Affairs on Visa Number Availability for Those Born in India or China!
4. USCIS Issues Guidance Update on EB-5 Immigrant Investor Program
5. Premium Processing for I-140s
6. H-1B Cap Count Decreases

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1. Prevailing Wage Process to Change January 1, 2010
As of January 1, 2010, employers will have an avenue to contest prevailing wage determinations, which are required as part of the PERM labor certification process. These determinations dictate the required wage levels that must be offered for the position listed in the PERM labor certification. Beginning January 1, 2010, employers will have a mechanism for challenging the determination, if they believe it is inaccurate or does not reflect business realities. If the employer does not agree with the prevailing wage, then there is an appeals process through the Board of Alien Labor Certification Appeals (BALCA.) This will be an improvement. Currently, it is difficult to challenge the prevailing wage determinations of the government.
2. Board of Immigration Appeals Issues Decision Eliminating Benefits of Child Status Protection Act In Matter of Wang
Restricts "automatic conversion" clause for children of immigrants who age beyond the protections of CSPA, creating a longer wait time for them to rejoin their families.
3. Department of State Advises of Dire State of Affairs on Visa Number Availability for Those Born in India or China!
The Department of State recently provided an update to AILA liaison regarding the estimated visa availability for employment-based visas for individuals from India and China.
Mr. Charles Oppenheim of the Department of State Visa Office has advised AILA of the following predictions for the movement of priority dates for the remainder of FY2009 and future years. He estimates that all 140,000 employment-based immigrant visa numbers will be used this fiscal year (October 1, 2008 through September 30, 2009). Mr. Oppenheim notes that the estimates provided on visa availability for the remainder of FY2009 were based on USCIS processing during the first 7 ½ months of the fiscal year, and any changes to USCIS processing patterns would impact availability. Mr. Oppenheim reported:
The employment-based fourth preference, which includes religious workers and other special immigrants, has experienced a surge in usage of immigrant visa numbers this year. While this preference is current for June 2009, continued heavy demand for numbers could require the establishment of a cut-off date later in the fiscal year.
The EB1 category worldwide will remain current the rest of the fiscal year but demand is high. The EB1 categories for India and China will be current during the month of July 2009, but could require the establishment of a cut-off date in August or September should EB1 demand remain heavy. As noted above, China and India have previously benefited from the excess EB1 numbers for all other countries because excess visa numbers from other countries "fall across" the EB1 category to India and China. The high demand from other countries this year means there are fewer numbers to "fall across" to India and China.
EB2 India - the prognosis is grim. For July 2009, the cut-off date is January 1, 2000, and the category may become unavailable in August or September of 2009. There are currently approximately 25,000 EB2 India cases which have been reviewed by USCIS and queued up at the Department of State awaiting visa numbers for the "green cards" to be approved. Like all other countries, India has a limit of 2,800 EB2 numbers available per year plus any "fall across" and "fall down" numbers from EB4, EB5 and EB1 visa numbers. Therefore, without legislative relief, the waiting time for Indian EB2 applicants may be measured in years, even decades.
EB2 China - the prognosis is equally grim. As of July 2009, the cut-off date will be January 1, 2000 and the category may become unavailable in August or September of 2009. There are a significant amount of EB2 China cases which have been reviewed by USCIS and queued up at the Department of State awaiting visa numbers for approval of the adjustment of status. Like all other countries, China has a limit of 2,800 EB2 numbers available per year plus any "fall across" and "fall down" from EB4, EB5 and EB1 visa numbers. Therefore, without legislative relief, the waiting time for China born EB2 applicants may also be many years.
4. USCIS Issues Guidance Update on EB-5 Immigrant Investor Program
U.S. Citizenship and Immigration Services (USCIS) today issued a guidance memorandum that provides 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 guidance memorandum update to the Adjudicator's Field Manual (AFM) clarifies that for purposes of the Immigrant Petition by Alien Entrepreneur (Form I-526) adjudication and the job creation requirements, USCIS will consider the two-year period to begin six months after the adjudication of the Form I-526.
USCIS officers will ensure that the business plan filed with the Form 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 would have previously been considered to be temporary or intermittent (such as construction jobs) may be considered as permanent jobs for Form I-526 and the Petition by Entrepreneur to Remove Conditions (Form I-829) purposes if the positions can be expected to last at least 2 years.
5. Premium Processing for I-140s
USCIS announced that the agency will resume premium processing of most I-140s starting June 29, 2009. The USCIS announcement advises that they will accept premium processing requests for all EB1, EB2, and EB3 cases, except for EB1 Multinational Executive Transferees and EB2 National Interest Waiver cases.
Premium processing is a program developed by the INS in 2001 which permits persons to request speedier processing of certain types of petitions and applications for immigration benefits in exchange for paying the agency an additional $1,000 for filing fees.
6. H-1B Cap Count Decreases
USCIS updates a previous report released on May 22, 2009 which indicated that the H-1B cap cases had reached 47,700. In its newest update, the cap has actually decreased to 44,400 cases. Both Advanced Degree and Regular caps remain open as of this writing.