News from the Alliance of Business Immigration Lawyers Vol. 5, No. 9B • September 15, 2009
Headlines:
1. USCIS Issues Guidance on E-Verify Federal Contractor Rule – Companies awarded a contract with the E-Verify clause are now required to enroll in E-Verify within 30 days of the contract award date.
2. October Visa Bulletin Shows EB-3s Backlogged 7 Years, Several Programs Expiring on September 30 – EB-3 cut-off dates are in 2001 and 2002.
3. Labor Dept. Issues Proposed Rule on Temporary Agricultural Employment of – The Department has concluded that the policy underpinnings of a 2008 H-2A streamlining final rule do not provide an adequate level of protection for either U.S. or foreign workers.
4. USCIS Proposes Nonimmigrant Investor Visa Classification for Northern Marianas – This status would be available only to investors in the CNMI who have been granted a qualifying status by the CNMI before November 28, 2009.
5. Recent News from ABIL Members – Recent News from ABIL Members
6. Government Agency Links – Government Agency Links
Details:
1. USCIS Issues Guidance on E-Verify Federal Contractor Rule
U.S. Citizenship and Immigration Services (USCIS) reminded federal contractors and subcontractors that effective September 8, 2009, they “may be required” to use the E-Verify system to verify their employees’ eligibility to work in the United States if their contract includes the Federal Acquisition Regulation (FAR) E-Verify clause. The regulation states that federal contracts will be awarded only to employers who use E-Verify to check employee work authorization.
The E-Verify federal contractor rule extends use of the E-Verify system to cover both federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. Applicable federal contracts awarded and solicitations issued on or after September 8 will include a clause committing government contractors to use E-Verify.
Companies awarded a contract with the E-Verify clause are now required to enroll in E-Verify within 30 days of the contract award date. With certain exceptions, E-Verify must be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts are legally authorized to work in the U.S.
More than 148,000 participating employers at nearly 560,000 worksites nationwide currently use E-Verify to electronically verify their workers’ employment eligibility, according to USCIS. The agency noted that since October 1, 2008, more than 7.8 million employment verification queries have been run through the system and approximately 96.9 percent of all queries are now automatically confirmed as work-authorized within 24 hours or less.
The USCIS announcement is available at http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/September%202009/EVerifyFederalContractorRule8Sep09.pdf.
2. October Visa Bulletin Shows EB-3s Backlogged 7 Years, Several Programs Expiring on September 30
The Department of State’s October 2009 Visa Bulletin shows a cut-off date for employment-based third preference visa numbers of June 1, 2002, for all chargeability areas except for China-mainland born (February 22, 2002); India (April 15, 2001); Mexico (May 1, 2002); and Philippines (June 1, 2002).
All chargeability areas are current for EB-2 numbers, except for China-mainland born (March 22, 2005), and India (January 22, 2005). For the third preference “Other Workers” category, all chargeability areas have a cut-off date of June 1, 2001, except for India (April 15, 2001).
Meanwhile, the non-minister special immigrant program expires on September 30, 2009. No SR-1, SR-2, or SR-3 visas may be issued overseas on or after September 30, 2009. Visas issued before that date will only be issued with a validity date of September 30, 2009, and all individuals seeking admission as a non-minister special immigrant must be admitted into the U.S. no later than midnight September 30, 2009.
Also, the employment fifth preference (I5, R5) immigrant investor pilot program has been extended through September 30, 2009. I5 and R5 visas may be issued until the close of business on September 30, 2009, and may be issued for the full validity period. No I5-1, I5-2, I5-3, R5-1, R5-2, or R5-3 visas may be issued after September 30, 2009.
The Visa Bulletin for October 2009 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4575.html.
3. Labor Dept. Issues Proposed Rule on Temporary Agricultural Employment of
The Department of Labor’s Wage and Hour Division proposes to amend its regulations governing the certification of temporary employment of nonimmigrant workers in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. The proposed rule reexamines the process by which employers obtain a temporary labor certification from the Department for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A status. The Department also proposes to provide for enforcement under the H-2A program so that workers are protected when employers fail to meet the requirements of the H-2A program.
The Department said it has concluded that the policy underpinnings of a 2008 H-2A streamlining final rule do not provide an adequate level of protection for either U.S. or foreign workers. In addition, the Department noted, one of the goals of the 2008 final rule was to increase usage of the H-2A program and make it easier and more affordable for the average employer. Applications have decreased since implementation of that rule, however. Employers filed 3,176 applications in the first three and a half months of fiscal year 2009, before implementation of the 2008 final rule. In the six and a half months from January 17, 2009, to July 31, 2009, employers filed 4,214 applications. When compared to the previous year (fiscal year 2008), however, in which employers filed 8,360 applications, it is apparent that employers are not increasing their usage of the H-2A program. “While factors other than the regulatory changes may play a role in this decrease, without accomplishing the prior rules’ goal of increasing program usage, the Department can no longer justify the significant decrease in worker protections,” the Department said.
The Department also said it believes that there are insufficient worker protections in the attestation-based model in which employers merely confirm, but do not demonstrate to the satisfaction of a government observer, that they have performed an adequate test of the U.S. labor market. Even in the first year of the attestation model, the Department said, employers are attesting to compliance with program obligations with which they have not complied, “either from a lack of understanding or otherwise.” Specific situations the Department noted include employers “who have imposed obstacles in the way of U.S. workers seeking employment. Examples of this have included the requirement of interviewing in-person at remote interview sites that require payment to access; multiple interview processes for job opportunities requiring no skills or experience; test requirements that are not disclosed to the applicants; contact information that is disconnected, is located outside the U.S., or proves incorrect; farm labor contractors who attest to a valid license but have none; and contractors who have not obtained surety bonds.”
The Department also noted that the shift from the Adverse Effect Wage Rate (AEWR) as calculated under the 1987 rule to the recalibration of the prevailing wage as the AEWR under the 2008 final rule has resulted in a substantial reduction of farmworker wages in a number of labor categories.
The proposed rule, which includes a number of requirements and a proposed timetable under the proposed H-2A program, is available at http://edocket.access.gpo.gov/2009/pdf/E9-21017.pdf. The Department made a technical correction to the proposed rule, available at http://edocket.access.gpo.gov/2009/pdf/E9-21274.pdf.
4. USCIS Proposes Nonimmigrant Investor Visa Classification for Northern Marianas
The Department of Homeland Security (DHS) issued a proposed rule on September 14, 2009, proposing to recognize a Commonwealth of the Northern Mariana Islands (CNMI)-specific nonimmigrant investor visa classification. The “E-2 CNMI Investor” status is one of several CNMI-specific provisions in the Consolidated Natural Resources Act of 2008, which extended most provisions of federal U.S. immigration law to the CNMI. This status would be available only to investors in the CNMI who have been granted a qualifying status by the CNMI before the “transition period,” which begins on November 28, 2009, and ends on December 31, 2014. With E-2 CNMI Investor nonimmigrant status, eligible CNMI investors would be able to remain in the CNMI for an initial period of two years, and the period would be renewable through the duration of the transition period. CNMI investors would be able to exit and enter the CNMI with valid E-2 CNMI Investor visas.
DHS said it is proposing temporary provisions for the transition period “to provide for an orderly transition from the current CNMI permit system to the immigration laws of the U.S., to lessen potential effects on the CNMI economy, and to give foreign long-term investors time to identify and obtain appropriate U.S. immigrant or nonimmigrant status.”
The proposed rule is available at 74 Fed. Reg. 46938 (Sept. 14, 2009) (http://edocket.access.gpo.gov/2009/pdf/E9-21967.pdf). Related questions-and-answers are available at http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/September%202009/CNMI_InvestorQandA.pdf.
5. Recent News from ABIL Members
Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) recently posted a blog, “USCIS Puts Silent Kibosh on Successorship in Interest for High-Achieving Immigrants.” The blog discusses a recent policy memorandum issued by U.S. Citizenship and Immigration Services that Mr. Paparelli says illustrates “just how much damage can ensue when bureaucrats pass rules without the beneficial vetting required by statute and presidential orders.” The memo in question is an August 6, 2009, Policy Memorandum by Donald Neufeld, Acting Associate Director, Operations for USCIS. Mr. Neufeld’s memorandum, “Successor-in-Interest Determinations in Adjudication of Form I-140 Petitions,” purports to modernize the interpretation of continuing green-card eligibility for employees of businesses involved in corporate reorganizations so that surviving entities need not restart the years-long immigrant visa process from scratch, but “by failing to give the public and the stakeholder community an opportunity to enlighten the agency on the legal and real-world implications of its contemplated change, USCIS creates mischief and mishigas for itself and for the highest of high-achievers in the immigration pantheon,” Mr. Paparelli says. The blog is available at http://www.nationofimmigrators.com/?p=271. The memo is available at http://www.uscis.gov/USCIS/Laws%20and%20Regulations/Memoranda/2009%20Memos%20By%20Month/August%202009/Successor-in-Interest-8-6-09.pdf.
Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) recently co-authored a blog, “The Grassley-Durbin Bill To Restrict H-1B and L Visas Is the Wrong Solution at the Wrong Time.” The blog argues that the U.S. is in a global battle for human capital, and that the nation that attracts and retains human capital will dominate the information economy of our digital age: “The proposed bill of Senators Grassley and Durbin will do exactly the opposite.” The blog is posted at http://www.cyrusmehta.com/news.aspx?SubIdx=ocyrus20099111575.
6. 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