USCIS Updates H-1B Count as of April 19th

August 20th, 2009

As of August 14, 2009, USCIS has received approximately 45,000 H-1B petitions subject to the bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS announced that it has received approximately 20,000 petitions subject to the advanced degree cap exemption. Even though the limit is 20,000 for this cap, USCIS states that it will continue to accept advanced degree petitions, noting that not all petitions received are approvable. 

Employers can continue to file H-1B petitions for a start date before October 1, 2010, so long as H-1B numbers are available.  However, the start cannot be more than six months in advance of the date of preparation on the Form ETA 9035 Labor Condition Application (LCA), which is filed with the Department of Labor.  The employer must file a certified LCA in support of the H-1B petition with USCIS.  Currently, the DOL is taking 7 days to certify an LCA, unless it requests evidence verifying the employer’s information.  

DOL will be fixing certain bugs and honing the iCert portal where the LCA is filed online.  This office can attest to mistakes made by the DOL in processing the LCA through the new iCert system.  In one case recently, DOL stated that the employer’s FEIN could not be confirmed and requested official IRS documentation confirming the FEIN.  The employer has been using this FEIN for years, including under the old LCA system.  Let’s hope that the update to this system will correct this error.

President Obama Continues Aggressive Enforcement Strategy

August 4th, 2009

According to the NY Times, President Obama has not moderated his predecessor’s aggressive worksite enforcement program, and with an absence of evidence that he intends to push forward comprehensive immigration reform, he is antagonizing his erstwhile Hispanic supporters.

There has been a recent flurry of tough immigration enforcement actions by the administration.  These include audits of businesses’ employment authorization documentation, expansion of a flawed online employment verification program, bolstering of cooperation between federal and local law enforcement officials and the rejection of legally binding rules governing conditions in immigration detention facilities.

Janet Napolitano, Secretary of Homeland Security, argues that these stringent measures are necessary to win the backing for comprehensive immigration reform to legalize the millions of undocumented workers in the US.  The administration claims that President Obama hopes to advance such legislation this year or early next year.

The administration has reduced its number of factory raids and round-up of undocumented workers.  However, Federal criminal prosecutions for immigration violations are up 32% from April 2008 to April 2009.  Ms. Napolitano has sought to be less heavy-handed than the Bush Administration and has focused immigration enforcement on illegal immigrant gangs and and convicts and employers that routinely hire undocumented workers and exploit them.

Immigration officials have increased Form I-9 audits of businesses and more than 600 businesses nationwide have so far been subject to them.  An employer can be criminally liable for a pattern and practice of employment of unauthorized individuals.

Ms. Napolitano has expanded the use of E-Verify, a federal program that allows employers to electronically verify the work authorization of their workers.  However, the system is still problem-ridden and resulted in false denials of 19,000 people.

Also, Ms. Napolitano has strengthened the relationship between federal and state and local law enforcement officials under Section 287(g).  Critics note that there are no protections against ethnic profiling under this law.  In addition, Ms. Napolitano did not terminate the relationship between federal officials and the Sheriff of Maricopa County in Arizona, Joe Arpaio, known as the toughest sheriff in the US, whom Latino Groups have accused of harassing Latinos.

According to Immigration Law Professor Michael Olivas of the University of Houston, without comprehensive immigration reform, which is sorely needed to bolster our nation’s interests, the continuing tough enforcement initiatives against undocumented workers renders the US mired in the “worst of all worlds.”