News from the Alliance of Business Immigration Lawyers Vol. 6, No. 10B • October 15, 2010

Headlines:

1. ETA Publishes Proposed Rule on Wage Methodology for H-2B Temporary Non-Agricultural Employment – The proposed rule would revise the methodology by which the Department calculates the H-2B prevailing wage.

2. USCIS Releases Q&A on H-1B and L-1 Fee Increases – Among other things, USCIS noted that all employees in the U.S., regardless of whether they are paid through a U.S. or foreign payroll, will count toward the percentage calculation.

3. USCIS Seeks Comments on E-Verify Self-CheckUSCIS Seeks Comments on E-Verify Self-Check – Self-Check will allow workers to enter data into the E-Verify system to ensure that information relating to their eligibility to work in the U.S. is correct.

4. ICE Breaks Immigration Enforcement, Employer Sanctions Records – Since January 2009, ICE has audited more than 3,200 employers.

5. USCIS Tells TPS Re-Registrants From El Salvador, Honduras, and Nicaragua That EADs May Be Late – EADs may not be issued until November; USCIS says existing EADs and the relevant Federal Register notice may serve as proof in the meantime.

6. DOS Addresses Diversity Visa Lottery Applications for Persons With Limited Internet Access – At a daily briefing, DOS answered a question about how people in areas with limited Internet access can apply for the Diversity Visa Lottery program.

7. USCIS Hosting Open Houses for Stakeholders, Public – USCIS is hosting open houses in October and November 2010 nationwide.

8. State Dep’t Discusses Fiscal Year Visa Projections – Charles Oppenheim of the Department of State’s (DOS) Visa Office discussed the Visa Bulletin, family- and employment-based priority dates, and other issues.

9. New Publications and Items of Interest – New Publications and Items of Interest

10. Member News – Member News

11. Government Agency Links – Government Agency Links

Details:

1. ETA Publishes Proposed Rule on Wage Methodology for H-2B Temporary Non-Agricultural Employment

The Department of Labor’s Employment and Training Administration has proposed to amend its regulations governing certification of the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment and related enforcement. The proposed rule, published on October 5, 2010, would revise the methodology by which the Department calculates the H-2B prevailing wage.

The proposed rule would establish that the prevailing wage will be the highest of: (1) wages established under an agreed-upon collective bargaining agreement (CBA); (2) a wage rate established under the Davis-Bacon Act (DBA) or McNamara-O’Hara Service Contract Act (SCA) for that occupation in the area of intended employment; and (3) the arithmetic mean wage rate established by Occupational Employment Statistics (OES) for that occupation in the area of intended employment. The employer would be required to pay its workers at least the highest of the prevailing wage as determined by the National Processing Center (NPC) (currently the National Prevailing Wage Center), the federal minimum wage, the state minimum wage, or the local minimum wage.

The proposed rule also would eliminate the use of the current four-tiered wage structure that differentiates wage tiers by level of experience, education, and supervision required to perform the job duties. The Department proposes instead a single OES wage level for H-2B job opportunities based on the arithmetic mean of the OES wage data for the job opportunities in the area of intended employment.

On August 30, 2010, the U.S. District Court for the Eastern District of Pennsylvania in Comitè de Apoyo a los Trabajadores Agricolas (CATA) v. Solis, et al., invalidated the Department’s use of skill levels in establishing prevailing wages and the Department’s reliance on OES data in lieu of DBA and SCA rates. The court order required the Department to complete a new rulemaking regarding the calculation of prevailing wage rates in the H-2B program within 120 days.

The Department noted that the types of jobs found in the H-2B program involve few if any skill differentials necessitating tiered wage levels. The Department said that multiple wage rates, particularly in a program in which most job opportunities have few or no skill requirements, “stratify wages and inappropriately allow employers to force much of the wage-earning workforce into a lower wage.” H-2B workers, most of whom fill jobs with low skill levels, are more likely to be classified at the low end of the wage tiers, ultimately adversely affecting the wages of U.S. workers in those same jobs, the Department noted, citing H-2B disclosure data from the last 10 years demonstrating that many jobs for which employers seek H-2B workers (e.g., housekeepers, landscape workers) “clearly require minimal skill to perform, have few special skill or experience requirements, and do not generally have career ladders.” These jobs typically have resulted in a Level 1 (the lowest wage level) determination for the H-2B employer because the jobs themselves do not require the employer to seek workers with higher skill levels, the Department pointed out. The result is a wage determination lower than the average wage paid for many jobs under the same classification as those filled under the H-2B program. “By allowing jobs to be filled by H-2B workers at these lower wages, a tiered wage system can have a depressive effect on wages of similar domestic workers, ultimately adversely affecting the wages of U.S. workers in those same jobs.” The Department said it “cannot continue to allow such wage depression where its mandate is to ensure that the wages of U.S. workers suffer no adverse impact.”

Finally, the H-2B regulations currently allow the use of an employer-provided survey to determine the prevailing wage when that survey meets certain methodological requirements, even if the survey produces a lower wage than the OES wage. The proposed rule would eliminate the use of private wage surveys in the H-2B program. The Department said it has concluded that “the review of such surveys is an inefficient and unnecessary expenditure of government resources. While private surveys can provide useful information, the cost of reviewing the surveys outweighs their utility.”

The Department anticipates further rulemaking that will address other aspects of the H-2B temporary worker program. (The proposed rule notes that temporary labor certification is currently not required for H-2B employment on Guam, for which certification from the governor of Guam is required.)

Comments are due by November 4, 2010, and should be submitted using one of the methods set forth in the proposed rule, which is available at http://edocket.access.gpo.gov/2010/pdf/2010-25142.pdf. See also http://www.foreignlaborcert.doleta.gov/.

2. USCIS Releases Q&A on H-1B and L-1 Fee Increases

U.S. Citizenship and Immigration Services released a frequently asked questions (FAQ) sheet on October 7, 2010, that discusses the new additional fees of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions. The additional fee applies to H-1B or L-1 petitioners that employ 50 or more employees in the United States with more than 50 percent of their employees in the U.S. in H-1B, L-1A, or L-1B nonimmigrant status. USCIS noted that all employees in the U.S., regardless of whether they are paid through a U.S. or foreign payroll, will count toward the percentage calculation.

The fee increase applies to covered petitions postmarked August 14, 2010, or later. For petitions filed by courier service, the fee applies to packets picked up by the courier on August 14 or later.

Among other things, the FAQ notes that until the Petition for Nonimmigrant Worker (Form I-129) and the Nonimmigrant Petition Based on Blanket L Petition (Form I-129S) are revised, the agency recommends that all H-1B, L-1A, and L-1B petitioners include, as part of the filing packet, the new fee or a statement or other evidence outlining why this new fee does not apply. USCIS requests that petitioners include a notation indicating whether or not the fee is required in bold capital letters at the top of the cover letter. The fee, statement, notation, or other evidence should be provided with each petition submitted.

Where the fee or documentation is not submitted with the filing, or where questions remain, USCIS may issue a Request for Evidence (RFE) to determine whether the additional fee applies to the petition. Because an RFE will be issued for the fee, rather than a rejection for the omission of the fee, USCIS will maintain the original filing date as the receipt date. Petitioners should wait to respond to the RFE before sending in the additional fee or an explanation of why the new fee does not apply, USCIS said. Once the revised I-129 and 1-129S are in place, USCIS will reject covered petitions submitted without the new fee. USCIS said it will release those revised forms “as soon as possible.”

The FAQ is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=a68794687538b210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

3. USCIS Seeks Comments on E-Verify Self-CheckUSCIS Seeks Comments on E-Verify Self-Check

U.S. Citizenship and Immigration Services seeks comments on a new E-Verify self-check program. Self-Check will allow workers to enter data into the E-Verify system to ensure that information relating to their eligibility to work in the U.S. is correct. The notice, including instructions on how to submit comments, is available at http://edocket.access.gpo.gov/2010/pdf/2010-24626.pdf.
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4. ICE Breaks Immigration Enforcement, Employer Sanctions Records

On October 6, 2010, Department of Homeland Security Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement (ICE) Director John Morton announced record-breaking immigration enforcement statistics achieved under the Obama administration, including the highest-ever numbers of convicted criminal removals and overall removals in fiscal year 2010.

Secretary Napolitano said, “Our approach has yielded historic results, removing more convicted criminal aliens than ever before and issuing more financial sanctions on employers who knowingly and repeatedly violate immigration law than during the entire previous administration.” Among other things, ICE removed more than 392,000 undocumented persons nationwide in 2010; half were convicted criminals. Since January 2009, ICE has audited more than 3,200 employers, debarred 225 companies and individuals, and imposed approximately $50 million in financial sanctions. Debarment excludes persons or entities from government business for up to 3 years for prescribed violations.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=95a921e7bcc7b210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The list of open house dates and locations is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f87f9d6fd9c7b210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

5. USCIS Tells TPS Re-Registrants From El Salvador, Honduras, and Nicaragua That EADs May Be Late

U.S. Citizenship and Immigration Services has announced that new employment authorization documents (EADs) for those from El Salvador, Honduras, and Nicaragua who have successfully re-registered for temporary protected status (TPS) may not be issued until “early November 2010.” While awaiting their EADs, USCIS said they may provide their existing EAD as proof of employment authorization. They may also provide their employer with a copy of their country’s most recent Federal Register notice announcing the TPS six-month extension and the automatic extension of EADs.

The Federal Register notices they may provide as proof include the July 9, 2010, notice for El Salvador (http://edocket.access.gpo.gov/2010/2010-16431.htm), and the May 5, 2010, notices for Honduras (http://edocket.access.gpo.gov/2010/2010-10620.htm) and Nicaragua (http://edocket.access.gpo.gov/2010/2010-10619.htm).

The announcement, dated October 7, 2010, is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=cfdc94687538b210VgnVCM100000082ca60aRCRD&vgnextchannel=390d3e4d77d73210VgnVCM100000082ca60aRCRD. A fact sheet about documentation employers may accept and TPS beneficiaries may present as evidence of employment eligibility is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f876090684988210VgnVCM100000082ca60aRCRD&vgnextchannel=8a2f6d26d17df110VgnVCM1000004718190aRCRD.

6. DOS Addresses Diversity Visa Lottery Applications for Persons With Limited Internet Access

At the Department of State’s daily press briefing on October 5, 2010, the following answer was provided to the question of how people in areas with limited Internet access can apply for the Diversity Visa Lottery program:

Lottery applicants may prepare and submit their own entries, or have others, who have Internet access, submit them on their behalf. Regardless of whether an entry is submitted by the individual directly, or assistance is provided by an attorney, friend, relative, etc., only one entry may be submitted in the name of each person, and the entrant remains responsible for ensuring that information in the entry is correct and complete.

There were over 16 million applications entered into the system last year.

The question and answer are available at http://www.state.gov/r/pa/prs/ps/2010/10/149027.htm.

7. USCIS Hosting Open Houses for Stakeholders, Public

U.S. Citizenship and Immigration Services (USCIS) is hosting open houses in October and November 2010 nationwide. The agency is inviting community stakeholders and the general public to the open houses at its offices across the country to meet USCIS personnel and learn more about the agency’s programs. The effort “is designed to enhance USCIS’s presence in the community and strengthen its partnership with stakeholders,” the agency said. In addition to meeting local USCIS staff, attendees will tour USCIS offices and witness mock naturalization interviews.

USCIS Director Alejandro Mayorkas kicked off the series of open houses October 4 at the USCIS Field Office in Baltimore, Maryland.

8. State Dep’t Discusses Fiscal Year Visa Projections

On September 22, 2010, Charles Oppenheim of the Department of State’s (DOS) Visa Office met with the American Immigration Lawyers Association’s (AILA) DC Chapter, where he discussed the Visa Bulletin, family- and employment-based priority dates, and other issues.

Among other things, AILA reported Mr. Oppenheim as noting that many EB?3 beneficiaries from India and China are now eligible for and applying under the EB?2 category. He said that he does not expect priority dates in the EB?3 category for Indian and Chinese nationals to advance at a pace greater than that experienced during fiscal year (FY) 2010.

According to AILA, Mr. Oppenheim made the following short?term predictions about the employment?based priority dates:

EB?2 and EB?3, China. These two categories are expected to move slowly over the next few months, by one or two weeks at a time.
EB?2, India. This category is expected to remain unchanged or to move very slowly forward, by a week or so. This is mainly a result of EB?3 Indian applicants (approximately 60,000 cases pending) “porting” their priority dates into the EB?2 category and thus using visa numbers, he said.
EB?3, India. Similarly, this category is expected to move very slowly over the next few months, perhaps by one or two weeks at a time.
EB?3, Rest of World (ROW). This category is expected to move slightly forward or to remain unchanged in the November 2010 Visa Bulletin due to the high number of applications waiting for a visa number in this category.
E?4, Special Immigrant Religious Workers, may have cut-off dates by the end of this year.
EW has such a small number of visas (5,000 per year) that it will advance very slowly. As with those in the EB?3 category, many of these cases are at the District Offices, so Mr. Oppenheim does not know the numbers until after moving the cut?off date forward.

AILA reported that Mr. Oppenheim also said, among other things, that under AC21, EB?1 China/India cases are not currently subject to the per-country limit, because of the crossover in that category of otherwise unused numbers from other countries. This has allowed 5,000?6,000 visa numbers to be allocated to the India and China EB?1 categories when approximately 2,800 would be the normal limit. The remaining unused EB?1 numbers “fall down” into the EB?2 categories, which has allowed approximately 20,000 EB?2 numbers for India and nearly 6,500 for China. The availability of these numbers “fall across” strictly in priority date order, not by country, Mr. Oppenheim noted.

The November 2010 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5172.html.

9. New Publications and Items of Interest

Global Entry Program. U.S. Customs and Border Protection has developed the Global Entry Program to expedite entry into the U.S. of low-risk, pre-screened international travelers. Upon arrival, members of the program go to an automated Global Entry kiosk, present their machine-readable passport or permanent resident card, scan their fingerprints, and make a customs declaration. The kiosk issues the traveler a transaction receipt and the traveler is able to bypass the usual passport and customs lines, unless selected for further examination upon entry into the U.S. Applicants undergo a rigorous background check and interview before enrollment in the program. There is a $100 nonrefundable application fee. Global Entry is now available at most major airports in the U.S. Information is available at http://www.globalentry.gov/. The application is available at https://goes-app.cbp.dhs.gov/. Information on other “Trusted Traveler Programs” (e.g., Sentri, Nexus, FAST) is also available at the same link.

DOL OIG report on debarment authority in labor certification programs. The Department of Labor’s (DOL) Office of Inspector General (OIG) released a report, “Debarment Authority Should Be Used More Extensively in Foreign Labor Certification Programs,” in September 2010. The OIG found that DOL’s Office of Foreign Labor Certification (OFLC) and Wage and Hour Division (WHD) narrowly defined their suspension and debarment authority based only on immigration law provisions rather than on broader government-wide authority. As a result, they did not consider debarring individuals or entities convicted of program violations resulting from OIG investigations. When OFLC and WHD did debar individuals or entities, the OIG found, they did not provide that information for inclusion in the government’s Excluded Parties List System. As a result, there was an increased risk that parties who had previously violated labor certification laws or regulations could continue to participate in such programs or to receive business or benefits from other federal agencies.

Suspension prohibits persons or entities from participating in government business pending the results of an agency investigation. Debarment excludes persons or entities from government business for up to 3 years for prescribed violations. Violations of program requirements subject persons and entities to potential debarment from future program participation and other government business.

Although not related to the use of suspension and debarment authority, the OIG said the audit also identified several labor certification applications that contained potentially invalid Employer Identification Numbers (EIN). The number of potentially invalid EINs was “small,” but the OIG noted that the review of applications for valid EINs is within OFLC’s authority to “review applications for obvious errors.” An invalid EIN may indicate that the applicant is not a legitimate organization, the OIG noted.

The OIG recommended that the Employment and Training Administration (ETA) and WHD take steps to assure that (a) debarments are considered, and decisions documented, for anyone convicted of labor certification violations, and (b) labor certification debarments are reported to appropriate DOL personnel for inclusion in the government-wide exclusion system. The OIG also recommended that ETA strengthen foreign labor certification application processing controls to ensure the detection and resolution of applications with potentially invalid EINs.

The OIG noted that ETA cited the need to resolve differing legal opinions concerning the use of the exclusion system and stated that the agency had implemented additional EIN controls. WHD cited a need for further legal research over both debarment authority and use of the exclusion system.

A summary of the OIG report is available at http://www.oig.dol.gov/public/reports/oa/2010/05-10-002-03-321b.pdf. The full report is available at http://www.oig.dol.gov/public/reports/oa/2010/05-10-002-03-321.pdf.

10. Member News

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) participated in a panel on October 4, 2010, at a meeting of the New York Chapter of the American Immigration Lawyers Association. The topic was “How Pro Bono Makes Business ‘CENTS’ for Your Immigration Practice: Dispelling the Pro Bono Myths.”

Steve Clark (bio: https://www.abil.com/lawyers/lawyers-clark.cfm) will co-chair the American Immigration Lawyers Association’s PERM CLE Conference in New Orleans, Louisiana, on October 22, 2010. He will also present practice tips for drafting the PERM Labor Certification Application (ETA 9089).

11. 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/bulletin/bulletin_1360.html