Legal Issues Impacting Your Business
Social Security No-Match Letters
As you may remember, ICE issued a regulation requiring employers to take certain specific steps to be legally protected when a SS no-match letter was received. A federal judge granted a temporary restraining order preventing ICE and SS from implementing this regulation until Oct. 1. Yesterday, another hearing was held on this matter. The judge decided to extend the injunction for 10 days and expects to issue a ruling within that time regarding whether a permanent injunction should be issued while litigation proceeds on the validity of the regulation. The judge expressed serious concerns about the regulation in several respects. We will keep you updated of progress on this litigation.
Note that enforcement of immigration laws governing employment continues and is on the rise. Employers are strongly cautioned to consider the proposed rule - even though it is not in effect - as a guideline for how ICE would view your actions in the event of a review of your personnel records. We are also examining the many ways in which employers are affected by the increased enforcement and recent legislation by various states to enforce the federal immigration laws. More to come . . .
AOS Receipts
The slew of filings in July and August for permanent residence based on employment offers overloaded the CIS (see next item for details). Because some cases were sent to other service centers for processing, we are experiencing wide ranges of receipt dates. Despite the CIS website that lists certain dates for which they have completed intake, CIS officials have indicated that these represent the "bulk" of the cases receipted and that dates much earlier than those listed are still being processed.
Because CIS has 90 days in which to issue EADs according to regulation, there is reason to believe that receipts will be issued soon (some were filed as early as July 2 and do not have receipts). If cases are not processed within 90 days, we expect CIS will issue guidance about how to proceed to obtain work authorization. Travel documents have no such deadline, however.
Employment-based backlogs
The new fiscal year has begun and the Visa Bulletin (which indicates waiting lines for permanent residence applications) was not as bad as expected. See http://travel.state.gov/visa/frvi/bulletin/bulletin_3800.html
However, at a program Friday, a top CIS administrator (Michael Aytes) indicated that the Service received two and a half years worth of employment-based adjustment of status filings in July-August (320,000 I-485s, 40,000 I-140s, and 400,000 applications for EADs and/or Advance Parole).
It is clear that backlogs will continue and probably worsen as the year goes on. It is critical that Congress allocate more visas (stop counting family members, recoup visas left on the table in years past, or simply authorize more visas) to make the system work.
DOL Backlog Elimination Centers to close soon.
Yesterday DOL announced that the permanent foreign labor certification program's backlog has been eliminated, with nearly 99 percent of cases completed and the remainder awaiting responses from employers. The BECs have begun a transition and shutdown phase and will send remaining cases to their Chicago office. We are checking our cases to make sure they all are either through the BEC or in process. If you have concern about your case status, please let us know.
H-2B Cap Reached Sept. 27
Also yesterday, CIS announced that the H-2B cap (for temporary, seasonal non-agricultural workers) had been reached for the first half of Fiscal Year 2008. This is several weeks earlier than last year, and indicates that the H-2B program must also have more visas to continue as a viable option for employers bringing needed workers to the United States.
Start Planning H-1B Filings Now!
If you plan to file for H-1B for the next fiscal year (Oct. 1, 2008, start date), please plan ahead as much as possible. Filings may not be submitted until April 1. We expect the system to become a "lottery" again unless Congress acts to add H-1Bs.
Remember that jobs on college campuses, by organizations affiliated with an institution of higher education, for certain research-related non-profits, and for doctors who have a "Conrad 30" waiver are exempt from this cap. Transfers are also exempt so long as the person has been "counted" toward the cap (working in a non-exempt position) in the past.
Do you see a "theme" here?
Yes, you are correct - CONTACT CONGRESS. Although everyone agrees that major immigration reform is dead for a while, Congress could still help in a number of ways by:
- Increasing the number of H-1Bs
- Increasing the number of H-2Bs
- Increasing the number of employment-based permanent residence visas (or counting them differently)
You can quickly and easily contact Congress by using the American Immigration Lawyers Association website:
Or if you would like to get more involved by setting up a meeting with your Senators and Representative, we would be glad to help. They can't fix it unless they know its broken. LET THEM KNOW!!!
Lori Chesser
