VISANOW Voice Newsletter - February 2009

The Economic Stimulus Package Mandates Strict Regulations for Hiring H-1B Workers

On Feb. 17, 2009, President Obama signed the American Recovery and Reinvestment Act, paving the way for $787 billion to revive the tattered U.S. economy. Unfortunately, the measure as finally approved by Congress, included the Sanders H-1B amendment which burdens stimulus fund recipient companies with strict regulations for hiring foreign workers under the H-1B program.

In short, the Sanders H-1B provision restricts the hiring of H-1B guest workers at bailed-out banks or any other firms that receive funds from the stimulus bill or from other emergency loans made by the Federal Reserve. The provision, known in the text of the bill as the “Employ American Workers Act”, would require companies receiving stimulus funds to comply with hiring rules set for "H-1B dependent" firms -- those with more than 15 percent of their workers on H-1B visas. Any company receiving stimulus funds will be automatically considered H-1B dependent, regardless of the percentage of H-1B workers on the payroll.

As a result, these companies will be required to hire only American workers for two years unless the company can prove they are not replacing laid-off Americans with guest workers. Many groups have expressed disappointment, arguing that the provision’s difficult requirements will prevent affected U.S. companies from hiring the best available global talent. The text of the provision is as follows:

SEC. 1611. HIRING AMERICAN WORKERS IN COMPANIES RECEIVING TARP FUNDING. (a) SHORT TITLE.—This section may be cited as the ‘‘Employ American Workers Act’’. (b) PROHIBITION.— (1) IN GENERAL.—Notwithstanding any other provision of law, it shall be unlawful for any recipient of funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110–343) or section 13 of the Federal Reserve Act (12 U.S.C. 342 et seq.) to hire any nonimmigrant described in section 101(a)(15)(h)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(h)(i)(b)) unless the recipient is in compliance with the requirements for an H–1B dependent employer (as defined in section 212(n)(3) of such Act (8 U.S.C. 1182(n)(3))), except that the second sentence of section 212(n)(1)(E)(ii) of such Act shall not apply. (2) DEFINED TERM.—In this subsection, the term ‘‘hire’’ means to permit a new employee to commence a period of employment. (c) SUNSET PROVISION.—This section shall be effective during the 2-year period beginning on the date of the enactment of this Act.

USCIS Delays New I-9 Rule

On Jan. 30, 2009, the U.S. Citizenship and Immigration Services (USCIS) announced that the implementation of the new Form I-9, Employment Eligibility Verification and the list of identity and employment authorization documents acceptable for completion of the form. The rule was supposed to take effect on February 2, 2009, but will be delayed until April 3, 2009. Employers should continue to use the June 5, 2007 version of Form I-9 until the USCIS releases the new form.

The I-9 rule was to allow the Department of Homeland Security (DHS) more time for consideration over the specifics of the rule. In addition, this time will allow the new administration to review the rules and regulations proposed by the Bush administration. As a part of this review suggested by the White House to all federal agencies, the public will be allowed an additional 30 days, until March 4, 2009, to make any comments on the I-9 rule.

During the hiring process, employers are required to verify the identity and the employment eligibility of all new employees by submitting the I-9 form. Employers are required to prove that all newly-hired employees present documentation verifying their identity and legal authorization to accept employment in the United States. The I-9 form assists in this process and must be filled out by an employee at the time of hire. The employee must also present a document, or a combination of documents that establishes both identity and legal authorization to work in the United States. Employers need to oversee this process to ensure it is carried out correctly and in a timely manner.

DOL Updates PERM Processing Times, Filing Statistics for Early 2009

In January 2009, the U.S. Department of Labor (DOL) released a report updating current processing times for PERM applications and offering selected statistics for filings made in the first quarter of Fiscal Year 2009, which began on Oct. 1, 2009.

As of late January 2009, DOL is processing cases with priority filing dates in June 2008, an advance from March 2008 during the prior quarter. Processing of cases in the audit queue has moved by only one month, from July 2007 to August 2007, and cases in the appeal queue moved from December 2006 to April 2007. “Clear DOL error” appeals remain current.

During the first quarter of FY 2009, between October 1 and December 1, 2009, a total of 20,752 PERM cases were filed. During that same period of time, only 4,571 cases have been processed: 3,074 were certified; 1,328 were denied; and 169 were withdrawn. 53,200 cases remain active as of December 31, 2008. Of the active cases, 67 percent are at the “final review” stage; 26 percent are in the audit queue; 5 percent are in the appeal queue, and 2 percent are awaiting sponsorship verification.

The DOL attributes the Fall 2008 processing slowdown to litigation over the contract for additional review staff. The Atlanta Processing Center has only 40 federal employees, and the new contract staff has only been in place since September. The DOL noted that while only 4,571 cases were processed in the first quarter of FY 2009, approximately 3,500 applications were completed in the month of January 2009 alone. However, they warn that the processing rate will likely level off or slow down even further due to the limited number of federal employees available to review the contractors’ work.

March 2009 Visa Bulletin Released

The Department of State (DOS) has recently released the March 2009 Visa Bulletin. While there has been advancement in the employment-based second (EB-2) preference workers for Indian and Chinese nationals, the current priority dates for those individuals from other countries remains stagnant.

The lack of movement in the Visa Bulletin is due to the high demand for the limited supply of annual immigrant visas, as mandated by U.S. immigration law. The March Visa Bulletin does not provide any insight into the backlog nor does it offer any predictions for future bulletins. Unfortunately, we can expect movement to continue to be slow in the coming months given the prior statement by the DOS regarding the large number of pending applications for permanent residency with priority dates earlier than the posted Visa Bulletin dates.

Employment-Based Visa Bulletin for March 2009

Re-adjudication of Eligibility of L-1B Cases on Extension

In the last few months, U.S. Citizenship and Immigration Services (USCIS) has issued extensive Requests for Evidence (RFE) for L-1B extension petitions. The Vermont Service Center, one of two centers adjudicating L-1 petitions, stated that it does not routinely re-adjudicate a previously approved L-1B petition when an extension is filed unless the initial L-1B approval was obviously erroneous or new factors are presented to the adjudicating officer when the extension is being adjudicated. When an officer encounters an obvious error committed by USCIS in approving the first L-1B or if new factors are presented that throw the first approval into question, the officer must either:

• Issue an RFE referencing the material error in the first adjudication or the new material information forming the basis of the re-adjudication; or
• Issue a denial decision referencing the material error, changed circumstance, or new material information that is the basis of the re-adjudication