April 2009 Immigration Update

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1. H-1B Update: FY 2010 Filing Starts April 1

U.S. Citizenship and Immigration Services (USCIS) has announced that it is accepting fiscal year (FY) 2010 H-1B applications starting on April 1, 2009. In recent years, H-1B numbers have been used up on the first day of the filing period, which has led to more and more applications being filed in a rush. To alleviate difficulties caused by so many H-1B applications being filed on the same day, USCIS put in place last year five-day window, which continues for FY 2010 H-1B filings if the agency receives 65,000 or more H-1B applications within the first five business days in April, ending April 7, 2009. This means that if that situation occurs, the selection process (“lottery”) will be based on petitions received during all of the five days, and the receipt date for all of those cases likely will be the same: April 8, 2009.

Exempt from the 65,000 cap are those who: (1) are employed at, or have received offers of employment from, an institution of higher education, or a related or affiliated nonprofit entity; (2) are employed at, or have received offers of employment from, a nonprofit research organization or a governmental research organization; or (3) have earned a master’s or higher degree from a U.S. institution of higher education. There is a 20,000 cap on master’s degree exemptions.

The following are highlights of recent H-1B developments:

Interim final rule. USCIS issued an interim final rule effective March 24, 2008, governing petitions filed on behalf of workers subject to the annual numerical limitations applicable to the H nonimmigrant classification. This rule provides that USCIS will include petitions filed on all of those first five business days in the random selection process if USCIS receives a sufficient number of petitions to reach the applicable numerical limit (including limits on exemptions) on any one of the five business days on which USCIS may accept petitions. USCIS has determined that a filing period of five business days is sufficient to account for a wider range of mail delivery times offered by the various mail delivery providers available to the public.

This rule also provides that if both the 65,000 and 20,000 caps are reached within the first five business days available for filing H- 1B petitions for a given fiscal year, USCIS must first conduct the random selection process for petitions subject to the 20,000 cap on master’s degree exemptions before it may begin the random selection process of petitions to be counted toward the 65,000 cap. After conducting the random selection for petitions subject to the 20,000 cap, USCIS then must add any non-selected petitions to the pool of petitions subject to the 65,000 cap and conduct the random selection process for this combined group of petitions. Therefore, those petitions that otherwise would be eligible for the master’s degree exemption that are not selected in the first random selection will have another opportunity to be selected for an H-1B number in the second random selection process. This rule also clarifies that those petitions not selected in either random selection will be rejected.

To ensure the fair and equitable distribution of cap numbers, the interim rule also precludes a petitioner (or its authorized representative) from filing, during the course of any fiscal year, more than one H-1B petition on behalf of the same beneficiary if such person is subject to the 65,000 cap or qualifies for the master’s degree exemption. USCIS said it recognizes that on occasion, an employer may extend the same worker two or more job offers for distinct positions and therefore have a legitimate business need to file two or more separate H-1B petitions on behalf of the same person. This rule precludes this practice if the beneficiary is subject to the numerical limitations or qualifies for the master’s degree exemption.

In cases where USCIS does not discover that duplicative or multiple petitions were filed until after approving them, the rule also provides that USCIS may revoke all such petitions if they were approved after this rule becomes effective.

The rule does not, however, preclude related employers from filing petitions on behalf of the same worker. USCIS said it recognizes that an employer and one or more related entities (such as a parent, subsidiary, or affiliate) may extend the same worker two or more job offers for distinct positions and therefore have a legitimate business need to file two or more separate H-1B petitions on behalf of the same person.

For example, USCIS noted, a Fortune 500 company may be the parent company of numerous U.S.-based subsidiaries whose business is to engage in either the food, beverage, or snack industries. Each line of business may in turn be divided into several business units and operate distinct companies (e.g., restaurant, bottled beverage plant, cereal manufacturer) with different EIN numbers and addresses. Although all the subsidiaries are ultimately related to the parent company through corporate ownership, this rule does not prohibit different subsidiaries from filing one H-1B petition each on behalf of the same worker so long as each employer/subsidiary has a legitimate business need to hire the worker for a position within that subsidiary’s corporate structure. Thus, in this example, if the bottled beverage plant owned by the Fortune 500 company and the cereal manufacturing company owned by the same Fortune 500 company each need the services of a Chief Financial Officer, both may file one petition each on behalf of the same worker. A subsidiary should not file an H-1B petition for a worker just to increase the person’s chances of being selected for an H-1B number where that subsidiary has no legitimate need to employ the worker and is instead only filing a petition to facilitate the worker’s hiring by a different, although related, subsidiary. The interim final rule is available at http://edocket.access.gpo.gov/2008/pdf/E8-5906.pdf.

USCIS issued a notice about the FY 2010 H-1B cap and filing period at http://www.uscis.gov/files/article/H-1B_Filing_20mar2009.pdf. A related Q&A document is available at http://www.uscis.gov/files/article/H-1B_filing_qa_20mar2009.pdf.

H-1B employers receiving TARP funding. Meanwhile, USCIS has announced additional H-1B requirements for employers receiving Troubled Asset Relief Program (TARP) funding before hiring H-1B specialty occupation workers. The new “Employ American Workers Act” (EAWA), signed into law by President Obama as part of the American Recovery and Reinvestment Act on February 17, 2009, was enacted to ensure that companies receiving covered funding do not displace U.S. workers. Under this legislation, any company that has received covered funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.” All H-1B dependent employers must make additional attestations to the Department of Labor (DOL) when filing the Labor Condition Application (LCA).

EAWA applies to any LCA and/or H-1B petition filed on or after February 17, 2009, involving any employment by a new employer, including concurrent employment and regardless of whether the beneficiary is already in H-1B status. The EAWA also applies to new hires based on a petition approved before February 17, 2009, if the H-1B employee had not started working before that date.

EAWA does not apply to H-1B petitions seeking to change the status of a beneficiary already working for the employer in another work-authorized category. It also does not apply to H-1B petitions seeking an extension of stay for a current employee with the same employer.

The USCIS notice is available at http://www.uscis.gov/files/article/H-1B_TARP_20mar2009.pdf. USCIS has issued a related Q&A document at http://www.uscis.gov/files/article/H-1B_TARP_qa_20Mar2009.pdf.

Revised Form I-129. USCIS has revised Form I-129, Petition for Nonimmigrant Worker, to include a question asking whether the petitioner has received covered funding. USCIS has posted this form at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?
vgnextoid=f56e4154d7b3d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db02
9c7755cb9010VgnVCM10000045f3d6a1RCRD.

While USCIS encourages petitioners, whenever possible, to use the most up-to-date form, the agency said it will not require use of the revised form in time for the start of the filing period for fiscal year 2010. However, USCIS urges H-1B petitions who have already prepared packages for mailing using the previous Form I-129 (January 2009 version) to complete only the page in the revised version of the Form I-129 (March 2009) that has the new question on EAWA attestation requirements and to file this single page with the prepared package. The single page referenced is the first page on the H-1B Data Collection and Filing Fee Exemption Supplement.

USCIS reminds petitioners that a valid LCA must be on file with DOL at the time the H-1B petition is filed with USCIS. This means that if the petitioner indicates on its petition that it is subject to the EAWA, but the LCA does not contain the proper attestations relating to H-1B dependent employers, USCIS will deny the H-1B petition.

Meanwhile, Bank of America has withdrawn many job offers to MBA students graduating from U.S. business schools because of the H-1B limitation on TARP funding. About a third of MBA students at leading U.S. schools who go into finance and banking jobs come from outside the U.S. David Schmittlein, dean of MIT’s Sloan School of Management, worried that “[t]here might be an inclination for people from around the world to vote with their feet.”

H-1B success stories. The American Immigration Lawyers Association is collecting examples of the important contributions made by H-1B workers. If you have any such examples, please e-mail them to H-1Bsuccess@aila.org.

2. H-2A/H-2B: DOL Withdraws Interpretation of FLSA On Relocation Expenses
Effective March 26, 2009, the Department of Labor (DOL or the Department) withdrew an interpretation of the Fair Labor Standards Act (FLSA) published on December 18 and 19, 2008. The interpretation had said that the FLSA and its implementing regulations do not require employers to reimburse workers under the H-2A and H-2B nonimmigrant visa programs, respectively, for relocation expenses even when such costs result in the workers being paid less than the minimum wage. The Department withdrew this interpretation for further consideration and it “may not be relied upon as a statement of agency policy.”

The withdrawal notice, which was published in the Federal Register on March 26, 2009, is available at http://edocket.access.gpo.gov/2009/pdf/E9-6623.pdf.

3. H-2B Limits Hurting Maryland Crab Industry
Many crab processing plants in Dorchester County, Maryland, may stay closed when the crabbing season opens on April 1, 2009, because crab-pickers from Mexico and Central America have been unable to get H-2B visas, according to reports. Approximately 150 Chesapeake Bay-area watermen and representatives of related industries recently met with Maryland’s First District Congressman Frank Kratovil (D-Md.) to discuss the problem.

Congressman Kratovil recently sent a letter, along with Senators Barbara Mikulski (D-Md.) and Benjamin Cardin (D-Md.), to the Departments of Labor and Homeland Security that discussed the H-2B visa shortage’s effects on Maryland’s crab industry. Congressman Kratovil noted that “[a]llowing bureaucratic delays to [a]ffect an economy that is already hurting would do my constituents and their families an injustice and lead to further American job loss. Through no fault of their own, small businesses will not be able to employ the seasonal employees that they need to survive and prosper. Everything possible must be done to ensure local business have the workers they need to succeed, especially in the current environment.” Congressman Kratovil is an original co-sponsor of H.R. 1136, “Save Our Small Seasonal Businesses Act of 2009,” which would allow any H-2B temporary worker who came to the U.S. during at least one of the past three years to continue to qualify for temporary admission. The law also proposes a permanent extension of the H-2B program.

Jack Brooks, president of the Chesapeake Bay Seafood Industries Association, cited University of Maryland research that found that every H-2B temporary worker creates two-and-a-half jobs for shore residents.

The text of Rep. Kratovil’s letter is available at
http://kratovil.house.gov/2009/01/mikulski-cardin-and-kratovil-to-feds-h2b-employers-
need-your-help.shtml.

4. E-Verify, EB-5, Religious Worker and Conrad 30 Programs Extended to September 30
Congress recently extended until September 30, 2009 four immigration programs: E-Verify, the EB-5 immigrant investor pilot program, the religious workers program and the Conrad State 30 program. The first two provisions were extended as part of the 2009 Omnibus Appropriations law in early March; the other two provisions were extended in a separate bill (H.R. 1127) in mid-March.

The E-Verify program allows employers to electronically verify the work eligibility of new workers. The EB-5 pilot program allows immigrant investors to invest in “regional centers” around the country and thereby obtain a green card. The religious workers program allows certain foreign religious workers to obtain green cards. The Conrad State 30 program allows certain foreign doctors to get a green card by working in medically underserved areas.

U.S. Citizenship and Immigration Services (USCIS) announced on March 12, 2009, that as a result of the extension of the EB-5 pilot program, USCIS will continue to receive, process, and adjudicate all Regional Center Proposals and Forms I-526, Immigrant Petitions by Alien Entrepreneur, and Forms I-485, Applications to Register Permanent Residence or Adjust Status, affiliated with EB-5 regional centers relying on “indirect” job creation analysis. Currently, there are 45 regional centers throughout the U.S.

The USCIS announcement is available at http://www.uscis.gov/files/article/EB-5_12mar09.pdf.

5. Illinois E-Verify Statute Struck Down as Unconstitutional
The U.S. District Court for the Central District of Illinois has overturned a statute enacted by Illinois that prohibited employers from enrolling in any employment eligibility verification systems “until the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases are able to make a determination on 99% of the tentative nonconfirmation notices issued to employers within 3 days, unless otherwise required by federal law.”

The court said that Illinois’s statute “frustrates Congress’ purpose by prohibiting Illinois employers from participating in the Federal Program unless the Federal Program meets Illinois’ standard for accuracy and speed.” Illinois cannot “dictate to Congress the standards that federal programs must meet, the court said, noting that “this clearly frustrates the Congressional purpose of making the Federal Program available to all employers. The Illinois Act is invalid under the Supremacy Clause.”

Illinois had argued that its statute did not frustrate the federal verification program because Congress had established it as a test program, and the federal government has been able to test the program for years. “This is no answer,” said the court. “Even if Congress established the Federal Program as a test program, Congress is entitled to set the terms of the testing and the length of testing, not Illinois. Congress determined that all employers in the fifty states would be allowed to participate. Illinois cannot say no, or require the federal government to meet Illinois’ standards.”

The court concluded: “Section 12(a) of Illinois Public Act 95-138 is hereby declared to be invalid in violation of the Supremacy Clause of the United States Constitution, and the State of Illinois is permanently enjoined from enforcing this invalid act. All pending motions are denied as moot.”

The case is available at http://op.bna.com/dlrcases.nsf/id/jcwl-7q9mhj/$File/United%20States%20v.%20Illinois%20Op.pdf.

6. White House Extends Deferred Enforced Departure for Liberians
On March 20, 2009, the White House issued a memorandum deferring for 12 months the removal of any eligible Liberian national, or person without nationality who last habitually resided in Liberia, who is present in the U.S. and who is under a grant of deferred enforced departure (DED) as of March 31, 2009. The previous DED grant expired on March 31, 2009.

The memorandum is available at
http://www.whitehouse.gov/the_press_office/Presidential-Memorandum-Regarding-
Deferred -Enforced-Departure-for-Liberians/. A related Q&A document is available at http://www.uscis.gov/files/article/Liberiaqa_26mar2009.pdf.

7. Court Allows Concurrent Filings for Religious Workers
The U.S. District Court for the Western District of Washington recently ruled in Ruiz-Diaz v. United States that a U.S. Citizenship and Immigration Services (USCIS) regulation is “unreasonable and impermissible.” The challenged regulation, 8 CFR § 245.2(a)(2)(i)(B), permits some people to file a visa petition and an application for adjustment of status concurrently while requiring others, including religious workers, to wait until USCIS has approved the employer’s visa petition before filing their application for adjustment of status. The court found that “the Attorney General does not have discretion to choose who is eligible to apply for adjustment of status (that determination having been made by Congress), to interpret the same statutory provision in different ways depending on the classification of the applicant, or to waive a statutory requirement. Defendants may not, therefore, reject or refuse to accept plaintiffs’ applications for adjustment of status based on the regulation barring religious workers from concurrent filing.”

The court did not evaluate the constitutionality of the regulation or its validity under the Religious Freedom Restoration Act.

Ruiz-Diaz potentially provides religious workers who have filed I-360 petitions with the ability to concurrently file adjustment of status applications. This would allow religious workers whose underlying R visa status is expiring (the R is valid for five years) to remain in the U.S. as adjustment of status applicants. At present, the I-360 approval process is lengthy, after which point the religious worker can file an adjustment application, due to the need to conduct a site investigation on each filing.

The case is available at http://www.scribd.com/doc/13628825/RuizDiazvUS309.

8. Some Visa Categories Retrogress in April; Cut-Off Dates May Slow
Because of high adjustment of status demand, the Department of State said it has been necessary to retrogress the April employment third preference cut-off dates in an attempt to hold demand within the fiscal year (FY) 2009 annual limit. Because over 60 percent of the Worldwide and Philippines employment third preference demand received this year by U.S. Citizenship and Immigration Services has been for applicants with priority dates before January 1, 2004, the cut-off date has been retrogressed to March 1, 2003, to help ensure that future demand is reduced significantly. This cut-off date applies immediately. Further retrogression or unavailability at any time cannot be ruled out.

The Department noted that it has also been necessary to retrogress the employment third preference Other Worker cut-off date for all countries to hold the issuance level within the annual limit.

During the past year, many preference categories have experienced steady and sometimes rapid cut-off date movement. Such action is normally followed by an increase in applicant demand. Heavy applicant demand for numbers in some categories could require cut-off date movements to slow, stop, or even retrogress at some point during the remainder of FY 2009, the Department said, to hold visa use within the applicable annual numerical limits. Should such action occur, it would most likely be only temporary in nature, pending the start of the new fiscal year in October.

The Visa Bulletin for April 2009 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4438.html.

9. New Publications and Items of Interest
Updated I-9 handbook. U.S. Citizenship and Immigration Services has released an updated Handbook for Employers that includes instructions on completing the Employment Eligibility Verification Form (I-9), along with the form. The handbook is available at http://www.uscis.gov/files/nativedocuments/m-274_3apr09.pdf.

EB-5 recommendations. U.S. Citizenship and Immigration Services’ Ombudsman has released recommendations for the EB-5 immigrant visa. Congress allocates approximately 10,000 immigrant visas per year to the EB-5 category (including derivative visas for the spouses and minor children of investors), although fewer than 1,000 visas are used annually. The ombudsman said this underutilization is caused by a confluence of factors, including program instability, the changing economic environment, and more inviting immigrant investor programs offered by other countries.

The ombudsman’s recommendations included, among other things, (1) finalizing regulations to implement a 2002 EB-5 law that offers a certain subgroup of EB-5 investors a pathway to cure deficiencies in their previously submitted petitions; (2) offering a “Special Handling Package” option to EB-5 investors for faster adjudication of Forms I-526, I-829, and related applications for a higher fee; and (3) prioritizing the review and processing of all regional center EB-5 related petitions and applications to foster the immediate creation and preservation of jobs.

The report is available at http://www.dhs.gov/xlibrary/assets/CIS_Ombudsman_EB-5_Recommendation_3_18_09.pdf.

REAL ID implementation. The Department of Homeland Security’s Office of Inspector General (OIG) released a new report in March 2009, “Potentially High Costs and Insufficient Grant Funds Pose a Challenge to REAL ID Implementation.” The Inspector General found that many state officials considered REAL ID implementation costs prohibitive because of requirements such as the reenrollment of all current driver’s license and identification card holders and the new verification processes.

Further, state officials in 17 of the 19 states the OIG contacted said they needed more timely guidance from the Department of Homeland Security (DHS) to estimate the full cost of implementing REAL ID. State officials also said that REAL ID grants did not sufficiently mitigate the costs, and they viewed as ineffective communication of grant information by DHS.

The OIG recommended that the DHS Assistant Secretary for Policy (1) ensure that DHS develops and disseminates necessary guidance related to the REAL ID card marker, facility security, verification systems, and best practices that would assist stakeholders in implementing REAL ID; and (2) establish a communications plan to ensure that stakeholders receive the necessary REAL ID program and grant guidance.

The report is available at http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_09-36_Mar09.pdf.

Entrepreneurs returning to home countries. The Kauffman Foundation has released a study by Harvard professor Vivek Wadhwa, “America’s Loss Is the World’s Gain: America’s New Immigrant Entrepreneurs, Part IV.” The report notes that a substantial number of highly skilled immigrants have begun returning to their home countries after studying and/or working in the U.S. Most returnees originally came to the U.S. for professional and educational development opportunities, and the majority of returnees cited career and quality of life as the main reasons to return to their home countries rather than stay in the U.S. Many cited opportunities to start businesses in their home countries that they felt were better than those in the U.S., as well as family considerations. Many returnees considered care for aging parents to be much better in their home countries, for example. For more information on this report, see
http://www.kauffman.org/newsroom/united-states-losing-immigrants-who-spur-innovation-and-economic-growth.aspx.

10. Firm in the News
Cyrus D. Mehta was Chair of an all day seminar of the Practising Law Institute in New York entitled “Basic Immigration Law 2009” on March 13, 2009.

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