Arizona

A federal judge has blocked the State of Arizona from implementing the most controversial provisions of its new immigration law, including a provision that would have required police officers to check the immigration status of individuals suspected of being undocumented and a provision that would have made it a state crime to fail to carry immigration documents. Other portions of the law will take effect as scheduled on July 29.

Federal District Judge Susan R. Bolton has issued a preliminary injunction that prohibits the State of Arizona from implementing several key portions of S.B. 1070, its new and controversial immigration law. The judge determined that the U.S. government is likely to succeed in its argument that certain provisions of the state statute are preempted by federal immigration law.

Judge Bolton’s order blocks Arizona from requiring law enforcement officers to check the immigration status of persons reasonably suspected of being undocumented, and from making it a crime to fail to carry immigration documents. The judge also blocked a provision that would have made it a crime for a foreign national to seek or perform work without employment authorization and a portion of the law that would have allowed police officers to arrest an individual without a warrant if there was probable cause to believe that person had committed an offense rendering him or her removable from the United States.

Judge Bolton did not enjoin the entire law, however, and several of its provisions will now take effect as scheduled on July 29. These include portions that strengthen existing state laws against the knowing or intentional employment of unauthorized foreign nationals, as well as a provision limiting the solicitation of day labor. Other portions of the law will be implemented as well, including a provision that prohibits state agencies and officials from limiting the enforcement of federal immigration law and provisions that criminalize the act of harboring an undocumented foreign national during the commission of a crime or inducing an undocumented individual to come to or live in Arizona.

In the wake of today’s ruling, court challenges to the state statute will now go forward, though Arizona could appeal the preliminary injunction. Fragomen is closely monitoring the lawsuits against S.B. 1070 and will issue further Client Alerts as developments occur.

Source: Fragomen

The Department of Homeland Security

The Department of Homeland Security is finalizing the legal requirements for employers who wish to perform the Form I-9 Employment Eligibility Verification process electronically.

On July 22, 2010, the Department of Homeland Security (DHS) will publish the regulation finalizing the requirements for employers who wish to electronically complete, sign, and store the Form I-9 Employment Eligibility Verification instead of completing and retaining the paper forms. Congress first authorized the use of electronic I-9s in October 2004. A DHS interim final regulation on electronic I-9s was promulgated in June 2006 that had the force of law and took effect immediately. The interim final regulation provided the standard for data retention and retrieval, electronic signature authenticity, and data security and integrity.

DHS accepted public comments to the interim regulation for 60 days post publication. The final rule, to be published on July 22, 2010, reiterates and clarifies some of the requirements in the interim final regulation, and amends other provisions in response to public comments received in 2006. For example, the final rule reaffirms that employers will not be required to use a specific technology to complete and store I-9 information, so long as the system they use ensures accessibility and they are able to produce a reasonable facsimile or copy of the I-9. The final rule will also relax the audit trail requirement from the interim rule so that employers no longer have to keep records of when the information is accessed or viewed. Instead, an audit trail will only need to include information on the the initial completion and any subsequent modification to the I-9. The final rule will also relax the interim rule’s requirement to provide a transaction record to the employee at the time the electronic I-9 is created. Under the rule to be published tomorrow, the employer may “provide or transmit a confirmation of the transaction only if an employee requests it . . . within a reasonable period of time.” Finally, the final rule will remove the mandate that the electronic storage system be searchable “by any data element,” requiring only an indexing system that “permits the identification and retrieval for viewing or reproducing of relevant documents and records maintained in an electronic storage system.”

Fragomen attorneys will monitor closely any further guidance from DHS on the promulgation of the final rule. In the meantime, please contact the Fragomen professional with whom you work if you have any questions about the final rule, or if you would like to know more about Fragomen’s electronic I-9 system and the Fragomen I-9 Service Center.

United States: August Visa Bulletin

The Department of State (DOS) has released the August Visa Bulletin, its projection of immigrant visa availability for the coming month. In August, priority date cut-offs for all nearly all employment-based preference categories and countries will advance, some substantially. These advancements are consistent with DOS’s earlier predictions that priority dates would continue to progress for the remainder of this fiscal year, which ends on September 30.

In the employment-based second preference (EB-2), priority dates will advance by five months for India and by fourteen weeks for China, to March 1, 2006, and remain current for all other countries. In the employment-based third preference (EB-3) subcategory for professionals and skilled workers, cut-off dates will advance by nine and one-half months for most countries, to June 1, 2004. However, EB-3 professional and skilled worker cut-off dates will advance more modestly by approximately five weeks for India (to January 1, 2002) and China (to September 22, 2003). The EB-3 other worker subcategory will also make substantial advancements of seven months for India (to January 1, 2002) and eleven months and one-half months for all other countries (to May 15, 2002). All EB-3 subcategories will remain unavailable for Mexico through the end of the fiscal year.

AUGUST PRIORITY DATE CUT-OFFS

In August 2010, priority date cut-offs for the employment-based immigrant categories will be as follows:

EB-1

Current for all countries.

EB-2

China – March 1, 2006
India – March 1, 2006
All other countries – current.

EB-3 Professionals and Skilled Workers

China – September 22, 2003
India – January 1, 2002
Mexico – Unavailable.
All other countries – June 1, 2004

EB-3 Other Workers

Mexico – Unavailable.
India – January 1, 2002
All other countries – May 15, 2002

EB-5

Current for all subcategories and countries.

Source: Fragomen

Arizona

The United States Department of Justice (DOJ) filed a lawsuit today in an effort to invalidate Arizona’s immigration law, broadly arguing that the law is preempted by federal law and that the enforcement of U.S. immigration law is the responsibility of the federal government. DOJ has requested a preliminary injunction to block the implementation of the law before it takes effect on July 29.

Arizona’s law, the Support Our Law Enforcement and Safe Neighborhoods Act, gives the police broad power under state law to check the legal status of any person they reasonably suspect of being in the United States without authorization, and criminalizes unlawful presence by non-citizens. Critics of the law have charged that it authorizes discriminatory racial and ethnic profiling. The law was amended shortly after it was enacted in an unsuccessful attempt to address some of these criticisms by narrowing the new police powers to some extent. Included in DOJ’s court filings are statements from the Chiefs of Police of Phoenix and Tucson, stating that the law will hamper their ability to effectively police their communities.

Meanwhile, a federal lawsuit filed by a coalition of labor and advocacy groups led by the American Civil Liberties Union (ACLU) continues to progress through the early stages of litigation. While the plaintiffs in that case have also requested a preliminary injunction to prevent the law from taking effect, it remains unclear whether the Federal District Court for the District of Arizona will rule on their request before the implementation date. The Court will listen to oral arguments in that case on July 22.

Source: Fragomen

July Visa Bulletin Shows

The Department of State (DOS) has released the July Visa Bulletin, its projection of immigrant visa availability for the coming month. Next month, there will an eight-month advancement in the priority date cut-off for the second employment-based preference category (EB-2) for India, to October 1, 2005. In the third employment-based preference category (EB-3) for professionals and skilled workers, cut-off dates will advance more modestly, by one month for India, to November 22, 2001, and by just over seven weeks for all other countries except Mexico, to August 15, 2003. DOS is predicting continued priority date advancement for most employment-based categories and countries through the end of the fiscal year.

JULY PRIORITY DATE CUT-OFFS

In July 2010, priority date cut-offs for the employment-based immigrant categories will be as follows:

EB-1

Current for all countries.

EB-2

China – November 22, 2005.
India – October 1, 2005.
All other countries – current.

EB-3 Professionals and Skilled Workers

China – August 15, 2003.
India – November 22, 2001.
Mexico – Unavailable.
All other countries – August 15, 2003.

EB-3 Other Workers

Mexico – Unavailable.
All other countries – June 1, 2001.

EB-5

Current for all subcategories and countries.

VISA AVAILABILITY PROJECTIONS THROUGH THE REMAINDER OF FY 2010

DOS has also made estimates of the movement of immigrant visa priority dates through the remainder of the Fiscal Year 2010, which ends on September 30, 2010. By that time, the agency estimates that cut-off dates could advance to the following projected dates:

EB-1
Current.

EB-2
China and India – March or April 2006.

EB-3
China – October through December 2003.
India – February 2002.
Mexico – Unavailable.
All other countries – June through September 2004.

EB-5
Current.

Foreign nationals should bear in mind that these date ranges are estimates only. Immigrant visa availability could change with fluctuations in demand, and retrogression or unavailability in a category is possible before the end of the fiscal year.

United States: USCIS Unveils Tool to Verify Immigration Petitioners

U.S. Citizenship and Immigration Services (USCIS) will soon launch a pilot program that will use Dun & Bradstreet databases to verify the business information of employers who submit immigration petitions, the agency announced to stakeholders on Thursday. A new electronic tool – the Verification Instrument for Business Enterprises (VIBE) – is intended to help combat immigration fraud, as well as eventually minimize duplicative requests for petitioners’ business data.

VIBE will be used to verify a petitioner’s ownership, date of establishment, current address, number of employees, business activities, and relationship with other entities, among other information. Where there are discrepancies between VIBE and the information contained in a petition, the employer will be issued a request for evidence (RFE) or a notice of intent to deny (NOID) and given an opportunity to explain the discrepancy or provide additional information. At least initially, the system will not replace the paper documentation that employers submit with their petitions, though one of the goals of the program is to ultimately reduce the need for frequent petitioners to submit extensive business documentation with each filing.

USCIS officers are expected to begin using VIBE in the adjudication of selected immigrant and nonimmigrant visa petition types next month, with full implementation of the system to occur later this year. Fragomen will be closely monitoring the roll-out of VIBE and will issue further Client Alerts as adjudication trends emerge.

Source: Fragomen

United States: GAO Conducts Study on H-1B Program, Seeks Employer Participants

The U.S. Government Accountability Office (GAO) is currently conducting a study of the H-1B program and is seeking interviews with some H-1B employers to gather information on their use of the program. In the last several weeks, organizations in a variety of industries have been contacted by GAO staff members asking for their participation in the study. Involvement in the study is voluntary.

According to information provided by GAO officials, the study is being conducted as part of a forthcoming report to Congress on the impact of the H-1B cap on the competitiveness of U.S. technology companies. The report will apparently focus the effect of the cap on costs facing U.S. technology companies, the ability to recruit top talent, incentives to outsource jobs overseas, and incentives to invest in research and development in the United States.

Employers selected for the study are typically contacted by phone and asked whether they are willing to be interviewed. The initial phone contact is usually followed by an e-mail that describes the function of the GAO generally and the objective of the study. In some cases, employers may also be provided with a list of questions about their workforce and H-1B employees, including:

• The number of U.S. employees;
• The number of current and past H-1B workers;
• The occupations or fields in which H-1B foreign nationals are employed and the percentage of H-1B employees in these occupations or fields;
• The source of the employer’s H-1B workers, including whether current H-1B employees were already living in the United States when hired and whether the employer primarily hires H-1B workers after their graduation from U.S. universities or as lateral H-1B hires from other U.S. employers;
• The percentage of the employer’s current and former H-1B workers who have degrees from U.S. universities; and
• If the employer is engaged in research and/or product development, the number of employees engaged in this work and the number of R&D or product development staff who are current or former H-1B workers.

Apparently, these questions are for discussion only and do not require a written response. The GAO has stated that it does not expect exact numbers in response to the questions.

Fragomen is monitoring the roll-out of the GAO study and will provide additional updates as developments occur. If you have any questions about the study, please contact your designated Fragomen professional.

Source: Fragomen

United States: June Visa Bulletin

The Department of State has released the June Visa Bulletin, its projection of immigrant visa availability for the coming month. Next month, there will be modest advancements in priority date cut-offs for the third employment-based preference category (EB-3) for professionals and skilled workers. Cut-off dates will advance by three weeks for India, to October 22, 2001, and by two months, to June 22, 2003, for China and all other countries except Mexico, which is unavailable. In the second employment-based preference category (EB-2), the priority date cut-off for China will advance by two months, to November 22, 2005, but will remain unchanged for India and current for all other countries.

In June 2010, priority date cut-offs for the employment-based immigrant categories will be as follows:

EB-1

Current for all countries.

EB-2

China – November 22, 2005.
India – February 1, 2005.
All other countries – current.

E-3 Professionals and Skilled Workers

China – June 22, 2003.
India – October 22, 2001.
Mexico – Unavailable.
All other countries – June 22, 2003.

EB-3 Other Workers

Mexico – Unavailable.
All other countries – June 1, 2001.

EB-5

Current for all subcategories and countries.

For general information on how the Department of State determines immigrant visa availability and gauges demand for employment-based immigrant visas, click here and here.

Source: Fragomen

United States: H-1B Cap Numbers Remain Available, But Rate of Filings Increases

H-1B cap numbers remain available for employment in Fiscal Year 2011 but the rate of petition filings has increased sharply, as the latest cap statistics from U.S. Citizenship and Immigration Services (USCIS) show. As of April 22, the agency had received 16,025 filings against the 65,000 standard cap and 6,739 filings against the cap exemption of 20,000 for holders of U.S. advanced degrees, for a total of 22,764 filings. This is an increase of 3,364 cap-subject petitions since the last count on April 15, and represents a much bigger uptick in filings than was seen between April 8 and April 15, when just 300 new cap filings were reported.

USCIS has also updated its H-2B cap count for the second half of Fiscal Year 2010. As of April 21, the agency had received H-2B filings on behalf of 24,110 H-2B beneficiaries for the second half of the current fiscal year, against a beneficiary target of 47,000 for the period. Of these, 22,565 beneficiaries had been approved and 1,545 were pending. The 47,000 beneficiary target is USCIS’s estimate of the number of H-2B beneficiaries it will need to meet the 33,000 half-year cap for H-2B nonimmigrants. The agency accepts filings for more than enough beneficiaries to meet the cap because a certain number of cases will be denied, rejected or withdrawn, and some H-2B petitioners will ultimately employ fewer H-2B workers than originally requested.

Source: Fragomen