News from the Alliance of Business Immigration Lawyers Vol. 5, No. 7B • July 15, 2009
Headlines:
1. More on E-Verify Federal Contractor Rule Delay – USCIS has instructed federal contractors not to use E-Verify to verify current employees until the final rule becomes effective on September 8, 2009, and they are awarded a contract that includes the FAR’s E-Verify clause.
2. China, India EB-2 Priority Dates Progress in August; DOS Determines FY 2009 Limits – The State Department’s Visa Bulletin for August 2009 shows an October 1, 2003, cut-off date for both the China-mainland born and India EB-2 categories.
3. DOS Releases DV-2010 Lottery Results – The highest number for any single country went to Nigeria, at 6,006; dates for the upcoming DV-2011 program registration period will be announced in August.
4. Ninth Circuit Rules That Revocation of I-140 Trumps Portability – USCIS may revoke its previous approval of a visa petition at any time for “good and sufficient cause.”
5. Krispy Gets Kremed: $40,000 Fine Incurred for Immigration Violations – 652 businesses around the country will be audited to determine their compliance.
6. Publications and Items of Interest – Publications and Items of Interest
7. Recent News from ABIL Members – Recent News from ABIL Members
8. Government Agency Links – Government Agency Links
Details:
1. More on E-Verify Federal Contractor Rule Delay
Following the announcement of the delay in the effective date of the new E-Verify rule until September 8, 2009, U.S. Citizenship and Immigration Services (USCIS) has instructed federal contractors not to use E-Verify to verify current employees until the rule becomes effective and they are awarded a contract that includes the Federal Acquisition Regulation’s E-Verify clause. The new final E-Verify rule will require federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the U.S.
Frequently asked questions about the new rule are posted at http://www.uscis.gov/files/article/FAR_FAQ_13nov08.pdf.
2. China, India EB-2 Priority Dates Progress in August; DOS Determines FY 2009 Limits
The State Department’s Visa Bulletin for August 2009 shows an October 1, 2003, cut-off date for both the China-mainland born and India EB-2 categories, which is close to a four-year jump from last month’s cut-off date. The third preference and “other workers” employment-based categories are Unavailable; all other categories are Current. EB-3 visa numbers worldwide and for India, China, and Mexico are expected to remain unavailable for the remainder of this fiscal year at least. The EB-3 category for India could remain unavailable indefinitely.
This follows on the heels of news last month that the India and China EB-2 categories could become unavailable in August or September and remain unavailable indefinitely. The Department had explained that there is a backlog of at least 25,000 India EB-2 cases awaiting visa numbers. Charles Oppenheim of the Department of State’s Visa Office reportedly stated that without legislative relief, the waiting time for Indian EB-2 applicants may be measured in years, even decades.
The Department also noted in the August Visa Bulletin that heavy applicant demand for numbers in the employment-based fourth preference is likely to require the establishment of a cut-off date, or the preference becoming “Unavailable,” for September. The category can be expected to return to a “Current” status for October, the first month of the new fiscal year.
Meanwhile, the Department of State has determined the family and employment preference numerical limits for FY 2009. The worldwide employment-based preference limit is 140,000.
The per-country limit is fixed at 7 percent of the family and employment annual limits. For FY 2009, the per-country limit is 25,620. The dependent area annual limit is 2 percent, or 7,320.
The August Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4539.html.
3. DOS Releases DV-2010 Lottery Results
The Kentucky Consular Center has registered and notified the winners of the DV-2010 diversity visa lottery. Applicants registered for the DV-2010 program were selected at random from over 13.6 million qualified entries received during the 60-day application period that ran from October 2, 2008, until December 1, 2008. The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country. During the visa interview, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years.
Only participants in the DV-2010 program who were selected for further processing have been notified; those who have not received notification were not selected. The dates for the registration period for the DV-2011 lottery program will be announced in August 2009.
The highest number for any single country went to Nigeria, at 6,006. The country-by-country breakdown of DV-2010 registrations appears at http://travel.state.gov/visa/frvi/bulletin/bulletin_4539.html.
4. Ninth Circuit Rules That Revocation of I-140 Trumps Portability
A recent decision by the U.S. Court of Appeals for the Ninth Circuit affirmed that U.S. Citizenship and Immigration Services (USCIS) may revoke its previous approval of a visa petition at any time for “good and sufficient cause.” In Herrera v. USCIS, the court found that the plaintiff’s changing jobs (“portability”) did not shield her from revocation of her previously approved I-140 Immigrant Petition for Alien Worker, which USCIS had concluded was justified because of the company’s small size (seven employees) and the agency’s conclusion that the plaintiff did not perform managerial or executive duties.
For more on this case and its implications, see “Ninth Circuit in Herrera v. USCIS Rules That Revocation of I-140 Petition Trumps Portability,” available at http://www.cyrusmehta.com/Print_Prev.aspx?SubIdx=ocyrus200979113434.
5. Krispy Gets Kremed: $40,000 Fine Incurred for Immigration Violations
It seems there is a hole in Krispy Kreme’s immigration compliance doughnut. On July 7, 2009, U.S. Immigration and Customs Enforcement (ICE) and the Butler County, Ohio, Sheriff’s Office announced a $40,000 fine settlement reached with the Krispy Kreme Doughnut Corporation for violations of immigration laws. ICE conducted an I-9 inspection of Krispy Kreme after receiving information from the Butler County Sheriff’s Office that the company had employed dozens of undocumented workers at one of Krispy’s doughnut factories in Cincinnati.
In other news, ICE recently found that nearly a third of 6,000 American Apparel workers may lack work authorization. Dov Charney, CEO of American Apparel, said, “Many of these employees, some of whom have worked at American Apparel for as long as a decade, have been responsible, hard-working employees who have made significant contributions to the Company’s growth and success. As a company that prides itself on being one of the last major apparel manufacturers still making clothing in the United States, at a ‘sweatshop free’ factory where we pay our garment workers some of the highest wages in the industry, it is the company’s hope–and my personal hope as an immigrant myself–that these employees are able to confirm their work authorization so that they may continue to work at American Apparel. The company remains very proud of its track record as an advocate for the comprehensive reform of the country’s immigration laws.” ICE has also announced that as part of a new auditing initiative, 652 businesses around the country will be audited to determine their levels of I-9 compliance.
More information on the American Apparel case is available at http://investors.americanapparel.net/releasedetail.cfm?ReleaseID=393357.
The ICE notice is available at http://www.ice.gov/pi/nr/0907/090707cincinnati.htm.
6. Publications and Items of Interest
The U.S. Citizenship and Immigration Services (USCIS) Ombudsman will host a teleconference, “How Is USCIS Working For You?”, on July 29, 2009, from 2 to 3 p.m. EDT. To participate, e-mail [email protected] specifying which call you would like to join. Participants will receive a return e-mail with the call-in information. Details are available at http://www.dhs.gov/xabout/structure/gc_1171038701035.shtm, which also includes links to questions and answers from previous teleconferences.
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7. Recent News from ABIL Members
Angelo A. Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) has published “Federal Contractor E-Verify: Officious Intermeddling and the Immigration Nanny-State,” which proposes that E-Verify be put on hold and comprehensive immigration reform be enacted instead. The blog posting is available at http://www.nationofimmigrators.com/?p=251. The article also provides a link to “New Corporate Procurement Strategy: Minimizing Immigration Risks From Service Providers,” co-authored by Mr. Paparelli.
Links to articles by Alliance of Business Immigration Lawyers members are available at https://www.abil.com/newsletters_articles.cfm. Recent postings include:
- Seeing Green in U.S. Immigration Policy, by Cyrus D. Mehta
- Changes During the H-1B Relationship: Employer Compliance Issues, by H. Ronald Klasko
- Dissuasion’s Disappearance: DOL Again Retreats on Its PERM ‘Consideration’ Analysis, by Angelo A. Paparelli
- Success With L-1Bs in an Era of Increased USCIS Scrutiny, co-authored by Angelo A. Paparelli
- Going Green – U.S. Consular Processing Enters the Electronic Paperless Era in 2008, co-authored by Bernard P. Wolfsdorf
- E-Treaty Visas Provide Long-Term Immigration Options, co-authored by Bernard P. Wolfsdorf
- Don’t Ask, Can’t Tell: Immigration Inequality for Same-Sex Families, by Angelo A. Paparelli
8. 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