With only 85,000 visas available for the 172,000 H-1B petitions received by USCIS, those unlucky employers and their foreign national workers who were not selected in the lottery must seek alternative work authorization strategies. One alternative may be enrolling in E-Verify, the free, Internet-based program that enables employers to electronically verify the employment eligibility of new employees, in order to obtain a 17-month work permit. The additional 17 months is available to F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, and who have received an initial grant of post-completion OPT related to such a degree. But, the employer must also participate in E-Verify. The additional 17-month work authorization could provide some breathing room to pursue alternative strategies for longer-term employment; moreover, the extension gives U.S. employers another chance to recruit these highly desirable graduates through the H-1B process, as the extension is long enough to allow for another H-1B petition. Participation in E-Verify, however, includes a number of pros and cons, not the least of which are administrative burdens and additional obligations and potential liabilities. While obtaining additional work authorization for employees not selected in the H-1B lottery may be appealing, eligible employers should carefully weigh the advantages and disadvantages of E-Verify participation before signing up.
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Remaining an Optimist on CIR – It’s Becoming Harder and Harder Even After House Democrats Introduce a Comprehensive Reform MeasureThursday, October 24th, 2013
In an effort to jumpstart stalled comprehensive immigration reform deliberations, the Democratic leadership in the House of Representatives introduced their version of a comprehensive immigration reform bill on October 2. “The Border Security, Economic Opportunity, and Immigration Modernization Act,” is modeled after S.744, the Senate bill that passed that chamber in late June. The introduction of the H.R.15 was part of an orchestrated series of events, including marches and vigils that took place across the country to remind the public that immigration reform is among the many pieces of business that remain unfinished while Congress is in fiscal lockdown. While perhaps more symbolic than realistic – the bill is unlikely go anywhere given the Republican House members’ preference for piecemeal legislation and a refusal to vote for any measure that includes a pathway for citizenship for the undocumented – it is at least an important step toward keeping immigration reform in the conversation. Nevertheless, the stalemate on immigration continues, as does other important legislative matters.
To recap where we are on immigration reform: In late June, the Senate passed a comprehensive immigration reform (CIR) bill, a sweeping and long overdue overhaul of the nation’s immigration laws. For months since its passage, the House of Representatives dragged its collective feet to consider the bill. Instead, four piecemeal bills were approved by House committees, but have yet to be sent to the full House of Representatives for a floor vote, and none addresses legalization. Then, in mid September, two House Republicans who had been trying to draft a comprehensive immigration package dropped out of bipartisan negotiations. Texas Republican Representatives John Carter and Sam Johnson said that they had “reached a tipping point” in the talks and could no longer continue working on a broad approach to rewrite the country’s immigration laws. Their leaving basically dismantled the so-called Gang of Seven bipartisan group in the House that has struggled to draft legislation. H.R. 15 has no Republican sponsors.
Meanwhile, Rep. Bob Goodlatte (R-VA), chairman of the House Judiciary Committee, has promised action on immigration reform legislation and has been working on four separate bills in addition to the four already approved by the committee. Optimists note that a piecemeal approach could result in House approval of a series of bills that could lead to negotiations with the Senate on a compromise immigration reform bill. Pessimists, on the other hand, point to the remarks of House Speaker John Boehner, who has expressed reluctance to bring the bill to a vote. The refusal appears to be an acknowledgment of the so-called “Hastert Rule,” a principle used to limit voting to only those bills supported by a majority of the majority party. This is the same rule that has prevented a vote in the full House of Representatives on a “clean” continuing resolution to keep the government open from going forward.
Finding congressional common ground on the various immigration reform bills seems formidable – it always is – but a bigger obstacle may be the full agenda still awaiting lawmakers, including the budget and debt ceiling. According to one insider, the chance of CIR becoming law in 2013 is zero percent; the chance of enactment in 2014 is greater than zero.
Optimist or Pessimist?
Senate Passes Comprehensive Immigration Reform; House Committees Deliberate on Piecemeal LegislationFriday, August 2nd, 2013
On June 27, the Senate took a momentous step forward with a vote of 68-32 in favor of final passage of S. 744, the “Border Security, Economic Opportunity, and Immigration Modernization Act.” The bill represents the most sweeping overhaul of the nation’s immigration and border control laws in nearly 30 years, and moves the U.S. one step closer to its enactment.
The most publicized provisions of the legislation focus on legalization — and a path of citizenship for the 11 million undocumented individuals living and residing in the United States — as well as increased border security and enforcement. There are, however, many fundamental and significant changes to the current system that will, if the bill is ultimately enacted, affect the future flow of immigrants as well as those currently in the United States in status. Some of the most significant changes were detailed in our update in June.
Now, all eyes are on the Republican-controlled House of Representatives. Over the last several weeks, much speculation about the prospects of success for comprehensive immigration reform (CIR) has focused on GOP leaders who face a series of difficult policy and political dilemmas. For starters, CIR is popular with Hispanics (whose support is critical to win the White House in 2016) but not with the GOP’s base. Its approach thus far has been to deliberate on a series of piecemeal immigration reform measures, eschewing the comprehensive approach adopted by the Senate and favored by the Administration.
Those House committees that have jurisdiction over immigration already have passed several bills. These include: (1) the Agricultural Guestworker Act; (2) the Strengthen and Fortify Enforcement (SAFE) Act; (3) the Legal Workforce Act (mandatory E-Verify); (4) the Supplying Knowledge Based Immigrants and Lifting Levels of STEM Visas (SKILLS) Act; and (5) the Border Security Results Act. Hearings have also taken place on the DREAM Act. A key reform element missing in the House is provision for other undocumented immigrants.
The full House must still vote on these proposals, and whatever is finally enacted in the House must be reconciled with what was passed in the Senate. Reconciliation — even of key issues and provisions including legalization — can and is likely to take place during joint House-Senate conference committee negotiations. Clearly, advocates for CIR have stressed that all key elements of reform must be covered in the final iteration of the bill.
With Congress adjourning for the summer in early August and not returning until after Labor Day, it is clear that the debate and discussion over comprehensive immigration reform will continue well into the fall. At this point, it seems that the earliest we can expect final legislation for the President’s signature is November or December.
The gang of eight senators working on comprehensive immigration reform have announced that they are almost finished with their work on the Senate’s legislative package and expect to introduce a comprehensive overhaul bill on April 16. Legalizing the status of the 11 million undocumented foreign nationals currently in the United States will be a centerpiece of the proposal. Also to be included are measures to eliminate, over 10 years, a backlog of some 4.7 million immigrants who are waiting for their green cards; eliminating siblings of U.S. citizens as a category of foreigners who are eligible for green cards; and removing the annual limitations on the number of green cards for spouses and minor children of legal permanent residents (LPRs). The proposal is also reported to create, at the end of 10 years, a program offering 138,000 merit-based visas each year to foreigners based on their work skills, but also on other considerations including family ties. Permanent residency will be offered to workers in three categories: high-skilled foreigners in technology and science, employees with a middle range of white-collar skills, and low-wage workers. Farm workers are not included, as they will come under a separate program. Until the bill is introduced, these provisions can and may be changed as the Senate working group finishes its drafting.
After the bill is introduced, supporters will undertake a very public “sales” campaign as the bill moves through the normal legislative process. Proponents of immigration reform must hold together an uncommon coalition of labor, business, conservatives, and liberals. The House of Representatives is expected to consider the immigration reform after the full Senate has debated the bill; it is not expected to introduce its own legislation.
More details are likely to emerge over the next few days.
For the first time since 2008, the 65,000 H-1B cap has been reached within the first week of the filing period, with a total of approximately 124,000 H-1B petitions received by U.S. Citizenship and Immigration Services (USCIS). USCIS also announced that it received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.
On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing. USCIS conducted the selection process for advanced degree exemption petitions first; thus, all advanced degree petitions not selected were part of the random selection process for the 65,000 limit. H-1B petitioners will be notified via regular U.S. postal mail whether their petitions have been selected for adjudication. Premium-processed cases can expect to obtain e-mail notification of acceptance, although the adjudication of premium-processed H-1B cap cases will not begin until April 15, 2013.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. These include petitions for physicians with certain J waivers; petitions filed by institutions of higher education or related or affiliated nonprofit entities, by nonprofit research organizations, or by governmental research organizations; and those petitions filed on behalf of H-1B workers who previously have been counted against the cap.
New $165 USCIS Immigrant Fee Now in Effect: As of February 1, an any individual who receives an immigrant visa package from a United States consulate or embassy abroad (including Canada and Mexico) must pay a new $165 USCIS immigrant fee.
DOS Online Resources: DOS has introduced its online “Visa Status Check,” which allows both immigrant and nonimmigrant applicants to check the status of their cases at the CEAC system. https://ceac.state.gov/CEACStatTracker/Status.aspx. In addition, DOS is promoting its online resource for estimating wait times for visas. Advance planning and early visa application are important. At this site, individuals can select a U.S. embassy or consulate by city or country for specific wait times for interview appointments and visa processing. Those seeking appointments at their home consulates should regularly check the appropriate processing information before making travel plans, because processing times often change without notice. Visa applicants are also advised that most posts have an expedited interview appointment procedure, if needed, and emergent reasons can be demonstrated. http://travel.state.gov/visa/temp/wait/wait_4638.html.
DACA Statistical Update: As of February 14, 2013, USCIS reports that almost 425,000 DACA applications have been received by the agency – an additional 75,000 or so since mid-December – and almost 200,000 cases have been approved. USCIS has released several informative FAQs on the program, with the most recent issues on January 18. See www.uscis.gov/childhoodarrivals.
TPS Extended for Eligible Nationals from South Sudan and Sudan: USCIS announced an 18-month extension on South Sudan’s and Sudan’s TPS designation from May 3, 2013, through November 2, 2014, and redesignation for the same period. Redesignation permits additional individuals who have been continuously residing in the United States since January 9, 2013, to obtain TPS, if eligible. DHS determined that an extension and redesignation were warranted because the conditions in South Sudan and Sudan that prompted the TPS designation not only continue to be met but have deteriorated.
U.S. Spends More on Immigration Enforcement than the Combined Funds of All Other Federal Criminal Law Enforcement AgenciesWednesday, April 3rd, 2013
In a January 2013 report, the nonpartisan think-tank Migration Policy Institute (MPI) found that the U.S. government spends more on federal immigration enforcement than on all other principal federal criminal law enforcement agencies combined, with nearly $18 billion spent in fiscal year 2012. This is approximately 24 percent higher than the collective spending for the FBI, Drug Enforcement Administration, Secret Service, U.S. Marshals Service, and Bureau of Alcohol, Tobacco, Firearms and Explosives. MPI also found that U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) refer more cases for federal prosecution than all Justice Department law enforcement agencies.
MPI’s comprehensive report offers a detailed analysis of the current immigration enforcement system and traces the evolution of the system, particularly in the post-9/11 era, in terms of budgets, personnel, enforcement actions, and technology. The result is the creation of a complex, interconnected, cross-agency system – in some ways by deliberate design; in others, by happenstance.
Six distinct pillars identify how this modern-day system is organized: border enforcement, visa controls and travel screening, information and interoperability of data systems, workplace enforcement, the intersection of the criminal justice system and immigration enforcement, and detention and removal of noncitizens. “This modern-day system,” says its authors, “extends well beyond U.S. borders to screen visitors against multiple intelligence and law enforcement databases before they arrive and also reaches into local communities across the country via partnerships with state and local law enforcement, information sharing and other initiatives.”
The following are among the report’s key findings:
• deportations have reached record highs, with more than 4 million noncitizens deported since 1990, with removals rising from over 30,000 in FY 1990 to almost 400,000 in FY 2011.
• fewer than half of the noncitizens deported are removed pursuant to a formal hearing before an immigration judge; instead the majority are by DHS via its administrative authority.
• apprehensions at the U.S.-Mexico border fell to 40-year lows in 2011.
• immigration enforcement has evolved to be a key tool in the nation’s counterterrorism strategies.
For the last many years, “enforcement first” was sought by successive congresses and administrations as a precondition for reforming the nation’s immigration laws. The report makes clear that changes to the system accomplished this goal, having focused almost entirely on building enforcement programs and improving their performance. The findings pave the way for comprehensive immigration reform, given that the country’s enforcement priorities have been met.
H-1B Professional Visas – Savvy Employers Should File on April 1 to Ensure Visas for Their Needed EmployeesWednesday, March 27th, 2013
On April 1, employers will be able to file H-1B petitions for their employees who require a first-time H-1B visa for work that will commence on October 1, 2013.
As perhaps the most commonly used visa for professional-level employment in the U.S., the demand for new H-1Bs will exceed the quota very early this year. Indeed, with the improving economy, USCIS is likely to receive the full allocation of visa petitions in April, and perhaps even in the first week of filing. Once the quota is reached, new H-1B visa requests will not be accepted until April 1, 2014, and that will be for work that commences on October 1, 2014.
Under the immigration laws, visas for professional specialty workers are capped at 65,000 per fiscal year. Another 20,000 visas are available to workers with advanced degrees (Master’s or higher) obtained at U.S. institutions of higher education. Of the total 85,000 H-1B visas available, some 6,800 “H-1B1” visas are set aside each year for nationals of Chile and Singapore (a maximum of 1,400 for Chile and 5,400 for Singapore).
While the vast majority of H-1B applicants in business are subject to the cap, some H-1B petitions can be filed at any time because they are exempt from the numerical cap. These include petitions for physicians with certain J waivers, as well as petitions filed by institutions of higher education or related or affiliated nonprofit entities, by nonprofit research organizations, or by governmental research organizations. Also, petitions filed on behalf of current H-1B workers who previously have been counted against the cap are not counted again. This means H-1B petitions for extension of status, change of employment, or concurrent employment may be submitted at any time.
Employers should now identify first-time H-1B employees and begin preparing necessary petitions for the April 1 filing date. (Petitions should be completed by March 29, 2013 for receipt on Monday, April 1.) In addition, there are a number of steps employers must complete before filing an H-1B petition with USCIS, including obtaining certification from the Department of Labor regarding the position wage. Employers should take time now to collect academic and work-experience documentation; secure translations and educational evaluations, where appropriate; organize wage and compensation data; and prepare detailed job descriptions.
Moreover, with increased denial rates and skyrocketing requests for additional evidence, employers are well advised to meticulously and carefully prepare their petitions. (Denial rates for H-1B petitions increased from 11 percent in FY07 to 17 percent in FY11. RFEs (“Requests for Evidence”) rose from 4 percent in FY04 to 26 percent by FY11.) A review of company H-1B public access files also may be prudent to ensure that files are complete and in full compliance as well as to determine that valid employer-employee relationships have been maintained.
Stateside Waiver Process for Unlawful Presence —“Provisional Form I-601A Waiver” — Began March 4, 2013Thursday, March 7th, 2013
On March 4, 2013, a new USCIS rule went into effect, allowing certain immediate relatives of U.S. citizens (spouses, parents of adult U.S. citizens, and minor children) who are physically present in the United States to request a provisional unlawful presence waiver prior to traveling abroad for consular processing of their immigrant visa applications. USCIS’s approval of an applicant’s provisional unlawful presence waiver prior to departure to attend his or her immigrant visa interview at the home consulate, should, in most cases, allow a Department of State (DOS) consular officer to issue the immigrant visa without delay if there are no other grounds of inadmissibility and if the immediate relative is otherwise eligible for an immigrant visa. This new process will significantly decrease the amount of time that U.S. citizens are separated from their family members and hopefully will encourage more immediate relatives to seek an immigrant visa if they are otherwise eligible for one but had been reluctant to travel abroad for an unknown period of time.
Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the U.S. must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the U.S. after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the DOS has determined that they are inadmissible.