American Immigration Lawyers Association Sues the Department of Homeland Security and U.S. Citizenship and Immigration Services for Public Disclosure

Vol. VII, Issue 29 - July 29, 2010

On July 20, 2010, The American Immigration Council’s Legal Action Center (AIC) filed a lawsuit against the Department of Homeland Security (DHS) and the U.S. Citizenship and Immigration Services (USCIS) on behalf of the American Immigration Lawyers Association (AILA). AILA seeks public disclosure of rules and guidelines related to the H-1B visa application review process. The H-1B visa program allows U.S. businesses to temporarily employ foreign workers to perform services in high-skilled occupations that require theoretical and technical expertise in specialized fields, such as scientists, engineers, or computer programmers. Since 2008, USCIS has significantly increased oversight over the program and has employed stricter procedures for review of H-1B applications. However, the USCIS failed to provide to the public the rules and guidelines necessary for H-1B applicants to successfully meet the requirements and expectations of the agency. The current lawsuit stems from USCIS’s complete denial of AILA’s two Freedom of Information Act (FOIA) requests seeking public release of those documents. AILA contends that the wholesale denials of the two FOIA requests are contrary to President Obama’s promise of a more open and transparent

USCIS Releases Clarifying Guidance on “O” Petition Validity Period

The O-1 nonimmigrant visa is divided into two sub-categories. The O-1A visa permits nonimmigrant working visas to individuals who possess an extraordinary ability in the sciences, education, business, or athletics. The O-1B visa applies to those who possess extraordinary ability in the arts or have demonstrated record of extraordinary achievement in the motion picture or television industry. The validity period for an O-1 petition is gauged by the specific period of time required to perform or participate in the event for which the foreign individual is employed. The initial validity period may not exceed a period of three years and any necessary extension of stay will be determined and granted by the USCIS in increments of up to one-year periods. Although an O-1 petition beneficiary may remain in the U.S. for a period of up to 10 days prior to the commencement of the validity period and 10 days after its termination, he or she may engage in employment only during the specified validity period.

On July 20, 2010, the USCIS released a policy memorandum providing clarifying guidance for USCIS O-1 petition adjudicators. The memo addresses the issue of when to consider an event with a period of “gap” in between as a single event for purposes of the O-1 petition and when to consider them separate events requiring additional petitions. This issue typically arises in the context of employment that entails multiple activities, such as tours and lecture series. The memo states that there is no statutory or regulatory requirement that an itinerary with a gap of a certain number of days must be deemed separate events. The memo highlights the policy that adjudicators of O-1 petitions “should evaluate the totality of the evidence submitted to determine if the activities described in the itinerary are related in such a way that they would be considered an “event” for purposes of the validity period.”

For more detailed information on the guidance memo, please visit the following USCIS website:
http://www.uscis.gov/USCIS/Laws/Memoranda/2010/July/guidance-O-petition-gap_memo-07-20-10.pdf

H-1B Program Cap Count Update (July 16, 2010)

The H-1B program allows U.S. businesses to employ foreign workers to perform services in specialty occupations that require technical expertise in specialized fields, such as scientists, engineers, or computer programmers.

The FY 2011 cap amount for the regular H-1B visa category is 65,000. However, not all H-1B petitions are subject to this cap. Up to 20,000 H-1B petitions are exempt under the H-1B advanced degree exemption. This exemption applies to petition beneficiaries who have obtained a U.S. master’s degree or higher. According to the July 16, 2010 USCIS cap count for FY 2011, 25,300 regular H-1B petitions and 11,000 advanced degree H-1B petitions have been accepted or are still pending.

For more information on the H-1B program, eligibility and filing requirements, please visit the following USCIS websites: H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models and H-1B Fiscal Year (FY) 2011 Cap Season.

H-2B Program Cap Count Update (July 16, 2010)

The H-2B Temporary Non-agricultural Workers Program permits U.S. employers to fill temporary nonagricultural jobs by bringing foreign workers to the United States. The current statutory cap on the H-2B visa category is 66,000 employments per fiscal year. This cap amount is divided equally between the two halves of the fiscal year; 33,000 visas are reserved for the first half of the fiscal year (October 1 to March 31) and another 33,000 are reserved for the second half (April 1 to September 30). Although there is no carry-over of unused employment spots from one fiscal year to another, unused cap numbers from the first half of the fiscal year can be filled during the second half of the fiscal year.

Not all H-2B petitions are subject to the statutory cap amount. In general, H-2B workers who apply to extend their stay are exempt from the cap. Likewise, the spouse and children of H-2B workers who qualify under the H-4 nonimmigrant classification are exempt from the cap. Further, H-2B workers who apply for the employment as fish roe processors, fish roe technicians and/or fish roe processing supervisors, or perform labor or services in the Commonwealth of Northern Mariana Islands and/or Guam between November 28, 2009 until December 31, 2014 are exempt from the statutory cap.

According to the July 16, 2010 USCIS cap count for the second half of FY 2010, 28,539 petitions have been approved and 1,615 petitions are still pending.

Arizona’s New Immigration Law Faces Opposition in Federal Court

Vol. VII, Issue 20 - July 20, 2010

On Tuesday, July 6, the Department of Justice, with the support of the Obama Administration, filed a lawsuit against Arizona to challenge the state’s new immigration law, SB-1070, which was passed back in April 23, 2010. In its brief, the Department stated, “the Constitution and federal law do not permit the development of a patchwork of state and local immigration policies throughout the country.” The Department further stated that SB-1070 would place considerable burdens on federal agencies by diverting federal resources away from high-priority targets, such as aliens with criminal record, and those associated with terrorism, drug smuggling and gang activity. The law’s enforcement provisions would result in harassment and detention of foreign visitors and legal immigrants, as well as U.S. citizens, who cannot readily prove their citizenship status. U.S. Attorney General, Eric Holder, emphasized, “Setting immigration policy and enforcing immigration laws is a national responsibility.” The law is viewed as exceeding constitutional boundaries by usurping the federal government’s authority to make and enforce immigration laws. The Department requested a preliminary injunction to enjoin enforcement of the law, which is set to go into effect on July 29, 2010.

The Arizona law, viewed by both critics and proponents to be among the broadest and most stringent immigration measure ever passed, would require police to check the immigration status of anyone they lawfully stop or arrest if they reasonably suspect them to be an alien who is in the country illegally. The law would grant police broad powers to detain aliens suspected of being in the country unlawfully. It would also criminalize an immigrant’s failure to carry immigration documents and grants Arizona residents the right to sue state and local agencies and officials for strict enforcement of SB-1070. Critics of the legislation argue that the law promotes racial profiling, while proponents claim that the Arizona law merely enforces existing federal immigration law.

On Thursday, July 15, U.S. District Court Judge Susan Bolton heard oral arguments for the first of seven lawsuits against Arizona. The lawsuit was brought by Phoenix police officer, David Salgado, who argued that the new law would require him to use racial profiling in determining who is and is not an illegal alien. He stated that his failure to do so can subject him to termination of employment or lawsuits by those who claim their immigration status check was motivated by their race and ethnicity. Although she did not rule on whether to dismiss the lawsuit or enjoin the law from taking effect, she is scheduled to hear arguments this week in the other lawsuits, including the one brought by the Department of Justice.

For more information on the Department of Justice lawsuit, please visit the DOJ website at http://www.justice.gov/opa/pr/2010/July/10-opa-776.html.

H-1B Program Cap Count Update

The H-1B program allows U.S. businesses to employ foreign workers to perform services in specialty occupations that require technical expertise in specialized fields, such as scientists, engineers, or computer programmers.

The FY 2011 cap amount for the regular H-1B visa category is 65,000. However, not all H-1B petitions are subject to this cap. Up to 20,000 H-1B petitions are exempt under the H-1B advanced degree exemption. This exemption applies to petition beneficiaries who have obtained a U.S. master’s degree or higher. According to the July 9, 2010 USCIS cap count, 24,800 regular H-1B petitions and 10,600 advanced degree H-1B petitions have been accepted or are still pending.

For more information on the H-1B program, eligibility and filing requirements, please visit the following USCIS websites: H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models and H-1B Fiscal Year (FY) 2011 Cap Season

H-2B Program Cap Count Update

The H-2B Temporary Non-agricultural Workers Program permits U.S. employers to fill temporary nonagricultural jobs by bringing foreign workers to the United States. The current statutory cap on the H-2B visa category is 66,000 employments per fiscal year. This cap amount is divided equally between the two halves of the fiscal year; 33,000 visas are reserved for the first half of the fiscal year (October 1 to March 31) and another 33,000 are reserved for the second half (April 1 to September 30). Although there is no carry-over of unused employment spots from one fiscal year to another, unused cap numbers from the first half of the fiscal year can be filled during the second half of the fiscal year

Not all H-2B petitions are subject to the statutory cap amount. In general, H-2B workers who apply to extend their stay are exempt from the cap. Likewise, the spouse and children of H-2B workers who qualify under the H-4 nonimmigrant classification are exempt from the cap. Further, H-2B workers who apply for the employment as fish roe processors, fish roe technicians and/or fish roe processing supervisors, or perform labor or services in the Commonwealth of Northern Mariana Islands and/or Guam between November 28, 2009 until December 31, 2014 are exempt from the statutory cap.

For more information on the H-2B Program, eligibility and filing requirements, please visit the following USCIS websites: H-2B Temporary Non-Agricultural Workers and Cap Count for H-2B Nonimmigrants.

The New 2010 Final Rule for H-2A Program

On March 15, 2010, the new 2010 Final Rule for the H-2A Temporary Agricultural Worker’s Program became effective. The enactment of the 2010 Final Rule was motivated by the Department of Labor’s conclusion that the 2008 Final Rule provisions dealing with wages and protections for temporary foreign and domestic workers needed improvement. The H-2A program permits U.S. employers to bring foreign workers to the United States to fill temporary agricultural jobs for which U.S. workers are not available. The H-2A nonimmigrant visa classification applies only to temporary or seasonal agricultural labor or services in the United States.

On July 8, 2010, the Department of Labor (DOL) announced that the new National Electronic Job Registry is now operational for the public to access H-2A job postings by the DOL through the internet. Public access to the job registry will be available through the iCERT Visa Portal System at http://icert.doleta.gov. The job registry is part of the DOL’s efforts to fulfill its regulatory obligations under the Final Rule and to uphold its commitment to government transparency and public access to information.

Some of the key provisions of the 2010 Final Rule include:

• Restoring the use of the USDA Farmer Labor Survey as the means to determine accurate and fair wage for farm and livestock workers, resulting in increased wages. The 2008 Final Rule used a wage formula that produced inaccurate wage information and resulted in a decrease of wages of over $1.00 per hour for workers throughout the program.


• Employers must provide documentation to the DOL establishing their compliance with the requirement of searching for qualified U.S. workers before bringing in foreign H-2A workers.


• Employer-provided housing for H-2A workers must be inspected and approved as safe and healthy quarters prior to the issuance of labor certifications.


• Employer-provided transportation must meet Federal standards for vehicle safety, vehicle insurance and driver licensure standards.


• Provide public access to H-2A job orders through a national electronic job registry.

18-Month Extension Temporary Protected Status for El Salvador

The U.S. Citizenship and Immigration Services (USCIS) extended the Temporary Protected Status (TPS) for El Salvador from the current deadline of September 9, 2010 to March 9, 2012. The extension enables current El Salvadoran TPS beneficiaries to re-register during the re-registration period (July 9 - September 7, 2010) and apply for a new Employment Authorization Document (EAD). USCIS will automatically extend existing EADs held by El Salvadoran TPS beneficiaries for a period of 6-months ending in March 6, 2011. The 6-month EAD extension will prevent lapse in employment authorization during the re-registration process. Eligible TPS beneficiaries who wish to re-register must file both the I-821, Application for Temporary Protected Status, and I-765, Application for Employment Authorization.

For more information on the TPS extension and re-registration filing requirements, please visit the following USCIS websites: 18-Month Extension of Temporary Protected Status for El Salvador and Temporary Protected Status Designated Country - El Salvador.

6-Month Extension of Temporary Protected Status Registration Period for Haiti

The U.S. Citizenship and Immigration Services (USCIS) extended the Temporary Protected Status (TPS) registration period deadline for Haiti from July 20, 2010 to January 18, 2011. The 18-month TPS designation for Haiti began on January 21, 2010 and will last until July 22, 2011. TPS designation only applies to Haitians who have continuously resided in the United States since January 12, 2010. TPS does not apply to Haitians who arrived in the Unites States after January 12, 2010. TPS applicants must file both the I-821, Application for Temporary Protected Status, and I-765, Application for Employment Authorization.

For more information on the TPS registration extension and filing requirements, please visit the following USCIS websites: USCIS Announces Six Additional Months for Haitian Nationals to Seek Temporary Protected Status and TPS Designated Country - Haiti.