USCIS Reaches H-2B Cap for Second Half of Fiscal Year 2008

On Jan. 3, 2008, the U.S. Citizen and Immigration Services (USCIS) announced they had reached the congressionally mandated H-2B cap for the second half of Fiscal Year 2008. Petitions for workers currently under the H-2B status do not count towards the H -2B cap.

The USCIS will continue to process petitions filed to:

• Extend the stay of a current H-2B worker in the U.S.
   

• Change the terms of employment for current H-2B workers and extend their stay.
   

• Allow current H-2B workers to change or add employers and extend their stay.

The USCIS will apply a computer generated random selection process to those H-2B petitions received Jan. 2, 2008, that are subject to the cap. Cases not selected in the random process will be rejected and the fees will be returned. The USCIS will also reject all H-2B cases that arrived after Jan. 2, seeking an employment start date prior to October 1, 2008.

Increase in the Number of PERM Audits

The Department of Labor (DOL) has published an updated fact sheet providing statistics on PERM processing. As of Dec. 31, 2007, of the total 23,000 active cases, 44 percent were in Audit Review, 37 percent in Final Review, 14 percent in Appeal and 5 percent in Sponsorship Conformation. This update is startling, as the percentage of cases in Audit Review went from 11 percent to 44 percent since the DOL’s last update on June 1, 2007. According to the DOL’s Chief of Division of Foreign Labor Certification, Employment and Training Administration, William Carlson, the increase in the number of PERM audits is the result of officers transferring from Backlog Elimination Centers to PERM Processing Centers. Currently, almost one out of two PERM cases is issued an audit, increasing the need to make sure that PERM recruitment documentation is in proper order.

Some highlights from the fact sheet include:
 

• Approximately 85,112 cases were certified during the fiscal year 2007; 65 percent of foreign workers are on H-1B visas.
   

• The top five states of intended employment for these permanent labor certifications were California (20,222), New York (8,843), New Jersey (6,594), Texas (6,534), and Florida (5,128)
   

• The top 10 countries of citizenship of alien beneficiaries include India (24,573), China (6,846), Mexico (6,442), South Korea (5,159), Canada (4,847), Philippines (4,821), United Kingdom (1,811), Taiwan (1,503), Pakistan (1,486), and Colombia (1,482)
   

• Top job titles certified for permanent employment included Computer Software Engineers (15,560), Computer Systems Analysts (4,021), Restaurant Cooks (2,642), Computer and Information System Managers (2,235), Electronics Engineers (2,090), Financial Analysts (1,744), Market Research Analysts (1,507), Electrical Engineers (1,488), and Computer Programmers (1,340).

FEIN Required for Employers Filing PERM Applications

The Board of Alien Labor Certification Appeals (BALCA) recently upheld a Department of Labor (DOL) denial of a PERM labor certification, finding that an employer who files a labor certification must provide a Federal Employer Identification Number (FEIN) on the PERM application. 

In 2006, BALCA’s noteworthy HealthAmerica case found that a DOL certifying officer cannot deny a PERM application for typographical errors when there is underlying compliance with the regulations.  However, in the December 2007 Bugajski-Lang case, BALCA found that lack of a FEIN was not a mere clerical oversight and was rather an issue of compliance with the law.  Even though the employer was a private household employing a domestic worker, BALCA found that private households are not exempt from the requirement of possessing a FEIN.  Thus, any employer intending to file a PERM case for an alien employee should be aware of this FEIN requirement.  Employers can apply for a FEIN online at https://sa.www4.irs.gov/modiein/individual/index.jsp.

Labor Certification Expiration

According to the 180-day validity date established by Department of Labor (DOL), all the labor certifications approved on or before July 16, 2007, expired on Saturday, Jan. 12, 2008.  Therefore, all I-140 petitions, based on the approved labor certifications, should have been filed for delivery to the appropriate USCIS service center by Friday, Jan. 11, 2008. 

 Labor certifications now expire 180 days from the initial approval date.  I-140 petitions need to be filed before the expiration of the labor certification.  There is no need for an I-140 petition to be approved before the expiration date, filing alone preserves the case.

In the event that the I-140 petition is denied, it is possible to appeal and/or re-file the I-140 petition, even after the labor certification expiration date. The only requirement is an initial I-140 petition filing prior to the expiration date.

The expiration of effected labor certifications on Jan. 12, 2008 might impact the H-1B extension eligibility. Once a labor certification has expired, it is unlikely that an H-1B extension beyond the six-year limitation will be granted based on that labor certification.

Employers and foreign nationals should be mindful of their labor certifications expiration date and be prepared to file their I-140 petition prior to this date.

State Department Comments on EB-2 Unavailability for Indian-born Nationals

On Jan. 10, 2008, Charlie Oppenheim, Chief of Immigrant Visa Control and Reporting at the State Department spoke on an announcement in the February Visa Bulletin concerning the EB-2 visa unavailability for Indian-born nationals.

As far back as early November 2007, there were indications that the demand for EB-2 visa numbers from Indian nationals would place significant pressure on the overall annual limitation. This resulted in the decision to retrogress the priority date for India EB-2 to Jan. 1, 2002, for the Dec. 2007 Visa Bulletin and to Jan. 1, 2000, for the January 2008 Visa Bulletin.

Notwithstanding the significant retrogressions, U.S. Citizen and Immigration Services (USCIS) requested almost 300 India EB-2 for December. This demand resulted in the EB-3 visa for Indian nationals becoming unavailable for the remainder of the fiscal year.   

The USCIS has indicated that there is some possibility that India EB-2 could again become available if it appears that the demand for EB-1 India will not exceed the annual limit. However, this determination cannot be made until the second half of the fiscal year.

Oppenheim has stated that he is always looking for mechanisms to maximize visa number usage in an effort to ensure that no visa numbers remain unallocated.  He is also making sure that any unused numbers that had been sent to consular posts are promptly returned, thereby trying to make additional numbers available for Indian and China-mainland born nationals
 

REAL ID Final Rule Announced by DHS

The U.S. Department of Homeland Security (DHS) recently announced a final rule setting a standard across state drivers’ licenses and identification cards.  The program, known as REAL ID, purports to address document fraud by requiring states to adopt specific requirements instituted by the DHS.   Privacy groups and civil liberties organizations argue that REAL ID will essentially be a national identification system, due to the uniform standards required by the DHS and the linking of identification databases throughout the country. However, the DHS claims that REAL ID will not constitute a “national identification card” system due to the maintenance of identity databases by the individual states. 

Under the REAL ID rule, by May 11, 2008, states must meet REAL ID standards in order for their drivers’ licenses and identification cards to be acceptable for federal use.  Such federal use will include entering a courthouse, boarding a plane, and receiving federal benefits, including social security and Medicare

E-Verify and Illinois Employers Alert

Recent legislation in the State of Illinois has affected the process by which many Illinois employers do business.  If you are an Illinois employer, you should be aware of these recent developments. 

The State of Illinois recently enacted a law that would actively prohibit Illinois employers from using the Department of Homeland Security’s (DHS) E-Verify system.  The DHS has filed a lawsuit against the State of Illinois for having taken this action.  While that suit is pending, the State has agreed NOT to enforce the new law. 

E-Verify, formerly known as the Basic Pilot/Employment Eligibility Verification Program, is an internet-based system that allows U.S. employers to verify eligibility of newly hired employees.  The system works in conjunction with the DHS and the Social Security Administration (SSA).

If you are an Illinois employer currently using the E-Verify program, continue to do so despite the State of Illinois’ recent legislation.  Further, if your company does not use the E-Verify program, but intends to begin doing so, you should likewise proceed.  It may be necessary to contact an attorney if you would like to obtain more information about the effect of the State’s new laws.  The recent legislation is not currently in effect and should not prevent Illinois employers from continuing or beginning use of the program.  Employers can register for E-Verify at www.dhs.gov/E-Verify. 

If the State of Illinois contacts you in efforts to enforce its prohibition on E-Verify, the DHS has asked to be notified. They can be reached by phone at 1-888-464-4218.The DHS has also set up a website for Illinois employers to track any updates in this matter.  That website is accessible at www.dhs.gov/E-Verify.

The VISANOW Voice is published monthly by VISANOW. VISANOW streamlines the immigration process for corporations and their foreign employees. Our superior client support and innovative technology have changed the way immigration legal services are delivered with a process that consistently delivers faster responses, provides greater access to information and increases efficiency. Any legal analysis or comments contained herein have been provided by American Services Network, P.C. and do not constitute the provisions of legal services and, therefore, should not be relied upon as legal advice. If you believe that any of the information contained in this newsletter relates to your immigration status or to your company's immigration issues, you should consult your immigration legal services provider. © 2008 VISANOW.com, Inc. VISANOW, 350 North LaSalle Street, Suite 1400, Chicago, IL 60610 (888) 4-VISANW Please send comments and questions to info@visanow.com