U.S. Citizenship and Immigration Services (“CIS”)

• As of June 25, 2009, the H-1B Fiscal Year Cap for 2010 remains opened. To date, CIS has received approximately 44,400 H-1B petitions counting toward the H-1B FY cap, which is set at 65,000, and it continues to accept petitions subject to the general cap. CIS has also received approximately 20,000 petitions for the separate U.S. advanced degree cap, but it continues to accept petitions under this category. Note: Petitions for foreign nationals holding advanced degrees may still be filed under the regular H-1B cap for FY 2010, with the earliest start date being October 1, 2009. As background, the H-1B category is designed for foreign professional workers holding a university degree, and it authorizes the foreign professional to work in the United States in a “specialty occupation.” For many professional positions, the H-1B classification is the only visa category available. Exemptions to the H-1B cap include: H-1B amendment/extension petitions, H-1B transfer (change of employer) petitions, and H-1B petitions filed by higher educational institutions and related non-profit entities.
• On June 22, 2009, CIS announced that it will once again offer Premium Processing service for most Form I-140 Immigrant Worker petitions. Like all matters for which the Premium Processing service is available, CIS will guarantee a review of the I-140 petition within 15 calendar days for additional $1,000 government filing fee. For the past year, I-140 Premium Processing had only been available for immigrant petitions filed on behalf of a very narrow category of foreign nationals who were reaching or who had reached the six-year maximum time period in H-1B status. Demand for the newly-available service may prove to be low, however, given the relatively quick processing of I-140 petitions during the past few months, as well as employers’ current economic conditions.
• On June 3, 2009, CIS announced that the implementation of the final rule requiring federal contractors and subcontractors to begin using its E-Verify system has been delayed until September 8, 2009. Under the new applicability date, any solicitations that occur prior to September 8, 2009 would not contain the contract clauses that the rule would impose. As previously indicated, the rule mandates a modified version of the E-Verify/Basic Pilot program – requiring reverification of the workforce and creating vicarious liability for subcontractors – for most federal contractors and subcontractors.
• It is also expected that CIS will soon release an updated version of Form I-9, Employment Eligibility Verification. The new version will replace the current version, which is set to expire on June 30, 2009. Until then, employers should continue to use the current version. Employers must use Form I-9 to verify the identity and employment eligibility of all new employees (including U.S. citizens) at the time of hire.

U.S. Department of Homeland Security (“DHS”)

• On June 10, 2009, DHS asked the U.S. District Court for Northern California for an extension to file response briefs to a motion for summary judgment in the no-match litigation. The motion indicated that DHS is evaluating numerous options, including whether to maintain the rule in its current form, or to seek amendment or repeal. As background, on August 10, 2007, the DHS published its final rule regarding specific procedures employers should follow upon receipt of written notice from the Social Security Administration (SSA) or DHS regarding a “mismatch” or “no match” of an employee's name and that employee’s Social Security number, immigration status, or employment authorization document presented for employment eligibility verification purposes. U.S. employers are responsible for completion and retention of Form I-9 for each individual they hire for employment in the United States, including citizens and noncitizens. On the form, the employer must review the employment eligibility and identity document(s) presented by the employee and record the document information on Form I-9. The new rule states that if discrepancies with a Social Security number, immigration status, or employment authorization document cannot be resolved within 93 days of the notice to the employer by following prescribed procedures, employers must terminate the employment of the respective employee(s). During this period of time, employers are to attempt to resolve the discrepancy by reviewing their own records, requesting affected employees to confirm their information, directing the employees to resolve the discrepancy with the appropriate government agency, and/or repeating the Form I-9 employment eligibility verification process. If the affected employee's identity and work eligibility cannot be adequately (re)verified, the employer must terminate the individual's employment or risk liability for knowingly hiring or continuing to employ unauthorized persons. Note that these procedures do not safeguard against liability when an employer has actual knowledge that an employee is not authorized to work. The final rule was expected to take effect 30 days after publication on September 14, 2007; however, in August 2007, several groups requested that the same court referenced above enjoin the regulation. In October 2007, a federal judge granted such preliminary injunction, and the case has been in litigation since such time.

U.S. Department of Labor (“DOL”)

• DOL is working on administrative and system enhancements that will impact processing of PERM Labor Certification Applications and H-1B Labor Condition Applications. With regard to PERM Applications (first step of the employment-based green card process for most cases), DOL anticipates: (1) issuing larger-scale supervised recruitment by October 1, 2009; and (2) centralizing processing of all prevailing wage determinations. Most recent DOL statistics regarding PERM processing reflect about 58,000 applications currently pending; of these, 54% are under final review, 38% are in audits, 6% are on appeal, and the remainder are awaiting business existence or other miscellaneous checks.
• DOL had earlier announced that it would be transitioning to a new iCert portal for PERM applications in September 2009; however, DOL now indicates that the PERM section of the iCert portal will take longer to complete than anticipated and will not be ready for deployment until after September 2009. An exact launch date is still unknown at this time.
• In connection with the H-1B/Labor Condition Application iCert portal, DOL anticipates deployment of the new portal system on July 1, 2009. The Labor Condition Applications that are filed with DOL relate to the prevailing wage determination and attestations made by employers for H-1B filings. Employers should expect that processing of the Labor Condition Applications will be delayed (current processing of these applications is generally made in one day). The delay in the processing of these applications will affect the timing of H-1B petitions. Employers seeking H-1B transfer/change of employer petition filings should expect that an additional period of up to two weeks may be required in the preparation of these filings for submission to CIS.

This article was prepared by Fulbright's Immigration Practice Group. Should you have any questions concerning the above or any other employment-based immigration matter, please do not hesitate to contact Cindy Kang, Partner and Head of the Immigration and Nationality Practice Group (214 855 7499 or ckang@fulbright.com); Jacquelyn P. Maroney (512 536 2420 or jmaroney@fulbright.com); Brenda J. Oliver (202 662 4717 or boliver@fulbright.com) or Benjamin J. Schatz (512 536 4519 or bschatz@fulbright.com). Thank you.