FY 2010 H-1B Cap Not Yet Reached - Numbers Still Available
For the first time in several years, the annual fiscal year H-1B “cap” was not reached in the first week of filing eligibility. Historically, U.S. Citizenship and Immigration Services (USCIS) received on the first day (last year redefined as the first week) of April more petitions than it had slots available for the entire year. USCIS then resorted to a "lottery system" to allocate those slots. According to USCIS, as of April 20th, there are still 21,000 slots available for fiscal year 2010 H-1B cap-subject cases.
H-1B petitions can request an October 1, 2009 start date of employment. Employers that employ workers in statuses such as F-1 (student), J-1 (exchange visitor), L-1B (intracompany transferee with specialized knowledge) and some other temporary visa statuses may need to file an H-1B petition to retain a foreign national employee without a gap in employment authorization.
Now is the time to scour your employee roster and determine if your workforce includes foreign national workers who are on a time-limited work authorization. Particularly, employers may wish to review which employees will be May graduates from bachelor's and master's degree programs who would not have met the eligibility requirements on April 1, 2009.
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May Visa Bulletin - EB-3 Category Unavailable
The Department of State (DOS) issued the May 2009 Visa Bulletin, making the Employment-Based 3rd Preference (EB-3) category unavailable across the board. This retrogression came on the heels of the April Visa Bulletin in which the cut-off dates for India and China natives advanced but the “all chargeability “cut-off date” in the EB-3 category retrogressed significantly. DOS stated that the cut-off dates for the EB-3 category
were held and then retrogressed in an effort to bring demand within the average monthly usage targets and the overall annual numerical limits. Despite these efforts, the amount of demand received from Citizenship and Immigration Services Offices for adjustment of status cases with priority dates that were significantly earlier than the established cut-off dates remained extremely high. As a result, these annual limits have been reached and both categories have become 'Unavailable.'
DOS notes that visa availability in the EB-3 category will resume in October, the first month of the new fiscal year.
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E-Verify for Federal Contractors Delayed Again - This Time Until June 30th
The U.S. government has again delayed the applicability of the E-Verify requirement for Federal contractors. A notice to this effect appeared in the April 17th Federal Register.
In November 2008, the Administration published a regulation requiring businesses contracting with the Federal government (“Federal contractors”) to "verify the employment eligibility of: (1) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (2) all persons assigned by the contractor to perform work within the United States on the Federal contract." The regulation was scheduled to take effect on January 15, 2009. For more information about the regulation, please click here.
In late December, the U.S. Chamber of Commerce and other representative organizations filed a federal lawsuit against the government over its Federal contractor E-Verify program. Because of this lawsuit, the Bush Administration agreed to delay the applicability date of the rule until February 20, 2009.
In January, the Obama Administration issued a memorandum encouraging all federal agencies to extend for 60 days the effective date of regulations that had been published but had not yet taken effect. The U.S. Chamber of Commerce asked the Administration to apply this memorandum to E-Verify for Federal contractors. The Chamber and the government’s lawyers asked the court to stay the proceedings to permit the incoming Administration to review the Federal contractor regulation.
Because the Administration wants more time to revisit this regulation, the E-Verify clause for Federal contractors will not be effective until June 30, 2009. Further delays are possible.
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Nebraska Passes E-Verify Legislation
Earlier this month the Nebraska Governor signed a bill mandating E-Verify for public employers and state contractors. The law requires public employers and state contractors to register and begin performing E-Verify checks on newly-hired employees starting October 1, 2009. Under the law, public contractors are defined as "any contractor or his or her subcontractor who is awarded a contract by a public employer for the physical performance of services within the State of Nebraska." Nebraska's public employers also must verify the legal status of all applicants trying to collect public benefits and may not provide benefits to persons illegally present in the United States. Although private employers are not obligated to use E-Verify under this new law, Nebraska has created tax incentives for private entities that use E-Verify.
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Western Hemisphere Travel Initiative - June 1, 2009 for 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.