June Visa Bulletin -- Retrogression in India EB-2 and Uncertainty for Future Availability
The U.S. State Department’s June 2009 Visa Bulletin reflects a retrogression of more than four years in the Employment Second Preference for India. The Employment First and Third Preference categories remain unchanged compared to the May 2009 Visa Bulletin.
The U.S. State Department notes that the retrogression in India Employment Second preference cut-off date was necessary to maintain the number of visas issued within the annual numerical limit. The Department remarked that it is not possible to estimate at this time "whether or not this retrogression will apply throughout the remainder of the fiscal year."
According to the State Department, employment-based visa availability for the remainder of fiscal year 2009 "cannot be guaranteed," and that "establishment of cut-off dates or retrogression of existing cut-off dates, cannot be ruled out." The reason for this possibility is the continued "extremely heavy" demand for adjustment of status cases at U.S. Citizenship and Immigration Services offices that occurred throughout the year.
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Reminder: Western Hemisphere Travel Initiative Effective June 1, 2009 at Land and Sea Ports of Entry
Starting June 1, 2009, all travelers will be required to present a passport or other approved secure document denoting citizenship and identity for all land and sea travel into the United States. Therefore, U.S., Canadian, and Bermudan citizens (who previously were exempt from this requirement) should apply for secure passports or renew passports now or investigate obtaining other acceptable secure documents such as special passport cards and trusted traveler cards that the Department of State and the Department Homeland Security have developed. For more information and a listing of acceptable Western Hemisphere Travel Initiative compliant documents, please click here.
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Proposed Legislation to Increase Scrutiny of the H-1B and L-1 Process
Senators Grassley (R-IA) and Durbin (D-IL) introduced the H-1B and L-1 Visa Reform Act (S. 887) in the current session of Congress. This legislative proposal is targeted at closing perceived loopholes in the H-1B and L-1 visa categories.
Sen. Durbin’s press release claims that:
"The H-1B visa program should complement the U.S. workforce, not replace it . . . Congress created the H-1B visa program so an employer could hire a foreign guest-worker when a qualified American worker could not be found. However, the H-1B visa program is plagued with fraud and abuse and is now a vehicle for outsourcing that deprives qualified American workers of their jobs. Our bill will put a stop to the outsourcing of American jobs and discrimination against American workers."
Among the features of this legislation, the law would
- require all employers who want to hire an H-1B worker to first make a good-faith attempt to recruit a qualified American worker. Employers would be prohibited from using H-1B visa holders to displace qualified American workers; and
- prohibit the practice of advertising “H-1B only” ads and prohibit employers from hiring additional H-1B and L-1 professionals if more than 50% of their employees are H-1B and L-1 visa holders.
The bill would give the government more authority to conduct employer investigations and streamline the investigative process and would include
- permitting the Department of Labor (DOL) to initiate investigations without a complaint;
- authorizing the DOL to review H-1B applications for fraud;
- allowing the DOL to conduct random audits of any company that uses the H-1B program; and
- requiring the DOL to conduct annual audits of companies that employ large numbers of H-1B workers.
As for reforming the L-1 transferee visa category, the bill would establish for the first time a process to investigate, audit and penalize L-1 visa abuses.
This bill has been referred to the Senate Committee on the Judiciary. It is not clear at this time whether this bill will gain traction or will serve as a bargaining chip in possible comprehensive immigration reform. In the recent past, stand-alone immigration legislation has failed to gain much support in Congress. In fact, Senators Durbin and Grassley introduced a similar bill in the last Congress.
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Steps toward Comprehensive Immigration Reform in 2009
President Obama's election campaign left little doubt that the new administration would place an immigration initiative on its agenda. The only question that remained was the timing of legislative efforts in light of the multitude of urgent issues that faced the incoming President.
In a press conference marking the end of his first 100 days in office, President Obama reiterated his administration's commitment to engage in comprehensive immigration reform and indicated that he "see[s] the process moving this first year." While the President conceded that he does not have control over the legislative calendar, he promised that his team will work with legislative leaders to see what can be done. This intention to move forward is further supported by a recent Obama administration plan to pump $27 billion into border and transportation security as part of the 2010 budget.
Another development on Capitol Hill that signals a move in the direction of comprehensive immigration reform was a hearing by the Senate Judiciary Subcommittee on Immigration, Border Security and Citizenship. The April 30th hearing examined solutions to address America's broken immigration system. While Committee Chairman believes that it is still too early to tell if we can "get major immigration reform," hearings in Congress and expressions of intent from the President to move immigration reform forward reinforce the administration's commitment to immigration reform sooner than later.