LewsLaw Monthly Immigration Newsletter November 2009 Volume 1, Number 9
Vaccinations Requirements
Since November 13, 2009, USCIS has held certain applications to adjust status to permanent residence until new Center for Disease Control and Prevention (CDC) vaccination criteria become effective on December 14, 2009. CDC announced that it was developing new criteria for determining which vaccinations for applicants seeking to become lawful permanent residents would be required. Based on this new criteria, the vaccines for herpes zoster (zoster) and human papillomavirus (HPV) will no longer be required for immigration purposes as of December 14, 2009. As a result, any applications held since November 13, 2009 based on the applicant’s failure to show proof of having received the HPV or zoster vaccine will be adjudicated on December 14, 2009 using the new vaccination criteria. More information on the new criteria and changes to the vaccination requirements is available on CDC’s website: http://www.cdc.gov/ncidod/dq/laws_regs/fed_reg/vaccine/revised-vaccination-immigration.htm
58,900 H-1B cap subject petitions received as of 11-27-2009
As of 11-27-2009, USCIS had received 58,900 H-1B cap subject petitions. USCIS continues to accept H-1B cap subject petitions and will continue to accept filings until it has received a sufficient number of petitions to reach the statutory cap of 65,000 - no indication how many petitions it will ultimately accept nor when the cap may be reached. A week earlier, USCIS had received approximately 56,900 H-1B cap subject petitions; whereas by 11-13-2009 USCIS had received 55,600 petitions. In contrast, as of 11-06-2009, approximately 54,700 H-1B cap subject petitions had been filed. A month earlier (as of 10-25-2009), 52,000 H-1B cap subject petitions had been filed. Thus, in approximately one month (10-25-2009 to 11-27-2009), USCIS received 6,900 H-1B cap subject petitions in comparison to 5300 the previous month and only 1,600 in September 2009.
Employer Site Visits
The Department of Homeland Security established a program “2009 Government and Employers: Working Together to Ensure a Legal Workforce” aimed at fraud detection and ensuring national security. This program involves employer site visits to ensure compliance. Three types of visits are currently being conducted:
1. Risk Assessment Program Fraud Study. Applicable to any type of benefit including family or employment based; this study is part of a joint program between USCIS and ICE. Applications and petitions are chosen at random, usually on a post-approval basis, for visits to help in designing profiles of potential fraud.
2. Targeted Site Visits. These visits take place where fraud is suspected, and consist of a visit to ask questions. Advance notice, including notice to counsel, is supposed to be provided.
3. Administrative Site Visits. These relate to religious worker and H-1B petitions. They are generally conducted by contractors who know nothing about immigration law. The contractors are equipped with a set of specific questions, and all employers/beneficiaries should be asked essentially the same questions, primarily reaching the issues as to whether there is really an employer, if the employer knows it filed the petition, and if the beneficiary is doing the work and receiving the wage indicated on the petition. The H-1B visits are done on a post-adjudication basis and are randomly selected. Each employer should receive only one such visit, but may receive different visits for different sites.
I-9 Audits to Hold Employers Accountable
On November 19, 2009, U.S. Immigration and Customs Enforcement (ICE) announced the issuance of Notices of Inspection (NOIs) to 1,000 employers across the country associated with critical infrastructure. These business owners have been alerted that ICE will audit their hiring records to determine compliance with employment eligibility verification laws. These employers were selected for inspection as a result of investigative leads and intelligence and because of the business connection to public safety and national security.
An Audit involves a comprehensive review of Form I-9s, which an employer is required to complete and retain for each individual hired in the United State. An Audit may result in civil penalties and lays the groundwork for criminal prosecution of an employer who knowingly violates the law.
STATISTICS SINCE THE IMPLEMENTATION OF THE NEW ICE WORKSITE ENFORCEMENT STRATEGY ON APRIL 30, 2009:
* 45 businesses and 47 individuals debarred; For comparison: 0 businesses and 1 individual were debarred during the same period in 2008;
* 142 Notices of Intent to Fine (ITF) totaling $15,865,181; For comparison: 32 NIF totaling $2,355,330 in all of 2008;
* 45 Final Orders totaling $798,179; For comparison: 8 Final Orders totaling $196,523 during the same period in 2008;
* 1,897 cases initiated; For comparison: 605 cases initiated in the same period of 2008;
* 1,069 Form I-9 Inspections; For comparison: 503 Form I-9 Inspections in all of 2008.
In July 2009, ICE issued 654 NOIs to businesses nationwide in the largest operation of its kind before today.
STATISTICS RESULTING FROM THE 654 AUDITS ANNOUNCED IN JULY 2009:
* More that 85,000 Form I-9s were reviewed and more than 14,000 suspect documents were identified (approximately 16% of the total number reviewed);
* 61 NIFs have been issued, resulting in $2,310,255 in fines. 267 cases are currently being considered for NIFs;
* 326 cases were closed after businesses were found to be in compliance with employment laws or after businesses were served with a warning notice in expectation of future compliance.
Little Change in Employment Based Visa Numbers for December 2009
The U.S. State Department has now published the Visa Bulletin for the month of December 2009 - the only change is with Third Preference India which has inched forward by 8 days to 05-01-2001 - whereas the rest of the Bulletin remains the same. First Preference for all countries continues to be current and Second Preference for the world also remains current. No change for Second Preference China - remains on 04-01-2005 and India also remains at 01-22-2005. Third Preference for all countries except India is stagnant at 06-01-2002.
Approval for January 2009 PERM filing
On 11-09-2009, an approval for a PERM filing in January 2009 was received - it appears Department of Labor is starting to make some progress in moving the PERM cases. This may be in large part due to the drop in number of cases which have been filed. However, the progress in adjudicating Audited PERM cases is still very slow.