U.S. Citizenship and Immigration Services ("USCIS")

USCIS announced that as of November 27, 2009, approximately 58,900 H-1B cap-subject petitions had been filed. As a reminder, the numerical limitation ("cap") on new H-1Bs for FY2010 is approximately 65,000. The separate cap for foreign nationals who possess a master's degree or higher from a U.S. university is limited to 20,000 H-1Bs per fiscal year. USCIS has already approved a sufficient number of H-1B petitions for individuals with advanced degrees to meet the separate U.S. master's degree cap for FY2010.

• USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions has been received to reach the statutory limits. However, employers are strongly encouraged to file cap-subject and advanced degree petitions as soon as possible to maximize the likelihood of timely H-1B cap filings. Once the H-1B FY2010 cap has been reached (for both cap-subject and advanced degree petitions), no new H-1B numbers will be available until the next fiscal year. 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 U.S. in a "specialty occupation." For most professional positions, the H-1B classification is the only visa category available. Exemptions to the H-1B cap include: H-1B amendment/extension petitions and H-1B transfer (change of employer) petitions.
• USCIS' Fraud Detection and National Security (FDNS) unit has been conducting and continues to conduct on-site visits with employers. FDNS has indicated that its recent efforts focus on preventing and detecting fraud in the H-1B program and that it will conduct up to 25,000 employer site visits in FY2010. Recent FDNS visits have focused on H-1B petitions, but it is anticipated that FDNS will expand the scope of its inspection program to cover other types of immigration categories and benefits.

U.S. Immigration and Customs Enforcement ("ICE")

• On November 19, 2009, ICE announced the issuance of Notices of Inspection (NOIs) to 1,000 employers associated with critical infrastructure, alerting business owners that ICE will audit their hiring records to determine compliance with employment eligibility verification laws. Such notices alert businesses that ICE will be inspecting their hiring records to determine whether they are complying with employment eligibility verification laws and regulations. In connection with such audits, ICE has also been issuing subpoenas to employers, commanding personal appearances and the provision of a list of documents including original I-9 Forms, payroll reports, tax statements and USCIS forms and documents. Penalties for I-9 violations include the imposition of civil and criminal penalties against the employer and/or designated representatives. As background, 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 Labor ("DOL")

• DOL Employment and Training Administration's Office of Foreign Labor Certification recently released quarterly performance data from April 2009 through June 2009 for its PERM Application process. As background, the first step of the employment-based permanent resident ("green card") process involves testing of the U.S. labor market. The employer must obtain DOL approval of the PERM Application for Alien Employment Certification as the first phase of the employment-based green card process. DOL requires that the employer assure the Department that it is not seeking to employ a foreign national when qualified U.S. workers are available to fill the position. In addition, the employer must show that it has not offered wages or working conditions to a foreign national that adversely affect the wages or working conditions of U.S. workers. DOL reports that it is processing and completing only 17% of PERM applications within 6 months of filing. This is in marked contrast to prior years when the DOL would process and complete a majority of PERM cases within a few months of filing. DOL indicates that its low processing and completion rate is due to its increasing integrity activities in light of the declining economy and continued filings by employers. It is anticipated that such audits and lengthy processing times will continue in the upcoming year.

Web Seminar

We are pleased to announce that Fulbright's Immigration Practice will be conducting a web seminar on December 15, 2009, providing a review of the steps to proactively prepare for the possibility of a U.S. Immigration and Customs Enforcement (ICE) audit and/or on-site visit. As indicated above, ICE recently announced the issuance of Notices of Inspection (NOIs) to 1,000 employers associated with critical infrastructure, alerting business owners that ICE will audit their hiring records to determine compliance with employment eligibility verification laws. Register and obtain information on Fulbright's Walking on Thin ICE web seminar..

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; Brenda J. Oliver (202 662 4717 or boliver@fulbright.com) or Benjamin J. Schatz.