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:
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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.