Updated H-1B Cap Count
U.S. Immigration and Citizenship Services (USCIS) has updated the number of FY2010 H-1B petitions received as of May 22, 2009: approximately 45,700 H-1B cap-subject petitions have been received. The statutory limit in the “basic degree” category is 65,000. USCIS indicated that it has received approximately 20,000 petitions qualifying for the “advanced degree” cap exemption. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits.
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Reminder: Western Hemisphere Travel Initiative Effective June 1, 2009 at U.S. Land and Sea Ports of Entry
Starting June 1, 2009, all travelers must present a passport or other approved secure document denoting citizenship and identity for all land and sea travel into the United States.
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 U.S. Department of State and the U.S. Department Homeland Security have developed. For more information and a listing of acceptable Western Hemisphere Travel Initiative compliant documents, please click here.
In a related development, U.S. Customs and Border Protection will shortly designate enhanced driver’s licenses and identification documents issued by the states of Vermont and Michigan and the Canadian provinces of Quebec, Manitoba, British Columbia, and Ontario as acceptable documents for purposes of the Western Hemisphere Travel Initiative. These documents may be used to denote identity and citizenship of, as appropriate, U.S. or Canadian citizens entering the United States from within the Western Hemisphere at U.S. land and sea ports of entry.
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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 proposal is targeted at closing perceived loopholes in the H-1B (specialty Worker) and L-1 (Intracompany Transferee) nonimmigrant visa categories.
Among the features of this legislation are:
- a requirement that all employers who want to hire an H-1B worker 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
- a prohibition against advertising “H-1B only” ads and a prohibition against the hiring of additional H-1B and L-1 professionals if more than 50% of the entity’s 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:
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 support for 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 the 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 reinforce the notion of immigration reform sooner than later.
Recently, Sens. Mendez (D-NJ), Gillibrand (D-NY), Kennedy (D-MA) and Schumer (D-NY) introduced legislation to restore America's commitment to family unity by recapturing unused visas and eliminating family immigration backlogs. Senate Judiciary Immigration Subcommittee Chairman Schumer has announced hearings for the coming months and indicated that he is "cautiously optimistic that we can pass strong, fair, practical and effective immigration reform this year." The White House announced on May 20 that a high-level meeting with Congressional leaders will be held on June 8 to discuss plans for immigration reform.
Whether these initiatives will produce comprehensive immigration reform this year remains to be seen, but the issue is clearly moving to the forefront.
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New Enforcement Guidelines for ICE
The Department of Homeland Security (DHS) recently issued updated enforcement guidelines to Immigration and Customs Enforcement (ICE). ICE must focus worksite enforcement program resources on "the criminal prosecution of employers who knowingly hire illegal workers . …" The guidelines also emphasize that ICE will
- continue executing arrests and processing of illegal workers who are discovered during employer investigation; and
- use all available civilian and administrative tools to penalize and deter illegal employment.
ICE field agents must have indictments, criminal arrests or search warrants, or a commitment from a U.S. Attorney's Office to prosecute an employer before arresting employees for civil immigration violations.
The new guidelines reflect the Obama Administration's focus on employers who hire unauthorized workers. The previous administration was criticized for mass raids that ended in thousands of unauthorized worker arrests while very few employers were prosecuted for illegal hiring practices.
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Old LCA System Remains Operational Through June 30, 2009
The U.S. Department of Labor (DOL) announced that the existing Labor Condition Application (LCA) system used for H-1B and E-3 nonimmigrant visa cases will remain operational through June 30, 2009 to allow employers sufficient time to transition to the new “iCert” system. The DOL has asked employers who are already using the new iCert program to report all technical issues to the iCert help desk at
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DHS Proposes Compliance Tracking and Monitoring System for SAVE and E-Verify Records
This month the Department of Homeland Security (DHS) announced a new system of records known as the Compliance Tracking and Monitoring System (CTMS), effective June 22, 2009.
The purpose of CTMS is to collect information that facilitates monitoring of "misuse, abuse, discrimination, breach of privacy, and fraudulent use of U.S. Citizenship and Immigration Services (USCIS) Verification Division's verification programs," specifically the Systematic Alien Verification for Entitlements (SAVE) and E-Verify. CTMS focuses on users of these systems (employers or government agencies), rather than on the individuals being verified.
Activities to be monitored and considered "non-compliant agency or employer categories of behavior" include:
If it is determined that a user's behavior falls within a non-compliant category, USCIS will further research the non-compliance and notify the user of the non-compliance. USCIS notification will serve as an opportunity for the user to remediate or explain the issue. If the behavior is not remediated and additional investigation shows that the acts are substantiated, the USCIS will take steps to correct the behavior, including "requiring additional training, restricting access to [the systems], or referral to a law enforcement agency for further action." For more detailed information on the CTMS please click here.
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June Visa Bulletin -- Retrogression in India EB-2 and Uncertainty for Future Availability
The U.S. State Department (DOS)’s June 2009 Visa Bulletin reflects a retrogression of more than four years in the permanent resident or “green card” Employment Second Preference for India. The Employment First and Third Preference categories remain unchanged compared to the May 2009 Visa Bulletin.
DOS notes that the retrogression in the India Employment Second preference cut-off date was necessary to maintain the number of visas issued within the annual numerical limit. DOS 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 DOS, 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.