Global Immigration Blog : Immigration Lawyers & Attorneys : Jackson Lewis Law Firm : Labor Certification, Adjustment of Status

Despite a marked decrease in H-1B petitions filed to date, USCIS is making little effort to adjudicate its current caseload of H-1B petitions in a timely fashion. The USCIS’s stated processing times for H-1B’s are more than two months off the actual processing times, which are approaching five months and increasing.

The effect of the processing slow down is that some beneficiaries and employers are being forced to move cases into premium processing or risk losing work authorizations. One affected group is the cap-gap student who has an expired Optional Practical Training (“OPT”) work permit, but is permitted to continue working until October 1st under the cap-gap regulations.

To qualify for cap-gap relief, an H-1B petition for a change of status must be timely filed on behalf of an eligible F-1 student. The student must be in authorized status, meaning, within the OPT period, which includes the 60-day post-departure preparation period, commonly known as the “grace period.” Once a timely filing has been made, the automatic cap-gap extension will begin and will continue through September 30th, unless the H-1B petition is denied, withdrawn, or revoked.

Because USCIS is not doing its job of adjudicating petitions, many cap-gap students are now faced with a not-yet-approved H-1B and October 1st approaching. If this situation applies to you, several steps need to be taken:

1. Notify legal counsel immediately. Counsel may be able to request that the case be expedited without premium processing.
2. The student must go on unpaid leave after September 30th, continuing until the H-1B is approved.

Contact legal counsel immediately if you wish to premium process the application. Premium processing is an extra $1,000 filing fee. Even with this payment, you may not get the case adjudicated for 10 business days.
 

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Immigration and Customs Enforcement (ICE) has served more than 500 Notices of Inspection (NOIs) to U.S. companies over the past week. According to the agency, allegations that employers are hiring unauthorized workers and paying employees unfair wages or otherwise exploiting workers set off this latest round of inspection notices.

With this move, ICE furthers its stated objective of executing all measures necessary to ensure that lawful employment of all workers is maintained in the workplace, a central objective of the Obama Administration. No doubt this will be followed by additional rounds of mass NOIs. Consequently, this is a reminder to employers of the critical need to ensure I-9 form compliance. Among other activities, employers should take precautions to ensure that they are diligently conducting the employment eligibility verification review process at the time of hire, maintaining documentation, and ensuring proper review on an ongoing basis.

As part of an employer’s diligence, focus should be given to completing internal audits immediately to identify and correct any errors. Upon receipt of a NOI, an employer has only three (3) business days to provide I-9 Forms to ICE (an extension is available under limited circumstances). Therefore, the NOI should not be the primary trigger for a company’s I-9 concerns. A proactive review would provide an opportunity to confirm accurate record keeping, as well as allow an employer to target areas that need procedural development and internal training. The Global Immigration Group can provide assistance in navigating these processes.

An employer can address the retention of I-9s in a number of ways, but the approach selected should be uniform, consistent and, most importantly, in compliance with government rules and regulations. Developing an action plan should be paramount on a company’s to-do list. Take the opportunity to reflect on and assess what your next step should be. We will continue to monitor this and related developments.
 

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On September 23, 2010, the United States Citizenship and Immigration Service (USCIS) announced a fee increase for immigration benefits. Unlike most federal agencies, USCIS is primarily a fee-based organization, with 90% of its approximately $2.7 billion budget paid for by user fees. The economic downturn has meant that fewer employers were petitioning for foreign national workers, and that fewer individuals had the money to pay for individual petitions and applications. Consequently, intake at USCIS fell and USCIS brought in less money than expected in 2008 and 2009. To make up for this shortfall, USCIS has enacted a fee increase that will go into effect November 23, 2010.

Overall, fees will go up an average of 10% - this number, however, hides the fact that business- or employment-based categories were disproportionately affected by the fee increase. This is especially true for applicants interested in the EB-5 - Alien Entrepreneur category.

Fortunately, though, the nonimmigrant worker petition used for popular visa types, such as the H-1B, TN, and L categories, only increased 1.5% or from $320 to $325.

Other employment-related visas were not so lucky:

• I-140, Immigrant Petition for Alien Worker – from $475 to $580 (22% increase)

• I-765, Application for Employment Authorization – from $340 to $380 (11.7% increase)

• I-829, Petition by Entrepreneur to Remove Conditions – from $2,850 to $3,750 (31.5% increase)

• I-907, Request for Premium Processing Service – from $1,000 to $1,225 (22.5% increase)

• Application for Regional Center under the Immigrant Investor Pilot Program – from $0 to $6,230

Employers and businesses should be aware of these upcoming increases and, if possible, plan to file cases before the increase on November 23, 2010.
 

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The U.S. Department of Justice (“DOJ”) has filed a lawsuit against the Maricopa County Sheriff’s Office, and its well known County Sheriff Joe Arpaio, for his refusal to hand over documents in the DOJ’s long running civil rights probe. The complaint alleges that the Sheriff’s Office is in violation of Title VI of the Civil Rights Act of 1964 by refusing to fully cooperate with the DOJ’s investigation into the Sheriff’s Office’s police practices and jail operations.

The DOJ’s investigation into the Sheriff dates back to the Bush Administration, which started investigating allegations of civil rights violations by the Sheriff’s Office in June 2008. The investigation has focused on allegations that the Sheriff’s Office violated Title VI’s prohibition on national origin discrimination by engaging in a pattern or practice of discriminatory law enforcement conduct.

The DOJ’s lawsuit is the most recent in a series of immigration-related lawsuits filed this year in the federal district court in Arizona. (See Another Lawsuit Filed Challenging Arizona's Senate Bill 1070.) Following enactment of the highly controversial Senate Bill 1070, at least six separate lawsuits were filed in federal court challenging Senate Bill 1070 on a variety of bases. On July 28, Judge Susan Bolton enjoined several provisions of the Bill. The State of Arizona immediately appealed Judge Bolton’s decision to the Ninth Circuit Court of Appeals. The appeal is currently pending.

Finally, the case challenging the Legal Arizona Workers Act (the 2008 bill that established the requirement that all Arizona employers use E-Verify for all new hires) is currently pending before the U.S. Supreme Court. Jackson Lewis will let you know when the Court issues its decision in that case.
 

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