Month: February 2008

The following is not legal advice and is only my opinion.  Please consult with a qualified immigration lawyer for  information relating to your unique case.

From our experience and that of other immigration lawyers we have spoken to, there has been an increase in the frequency of PERM application audits for cases filed with the Atlanta Processing Center.

I have a couple of theories on why this may be the case:  (1)  the backlog elimination centers have closed so there is additional available staff; (2)  audits of cases are occurring almost universally in cases where:  a.  the employer’s minimum job requirements exceed the lowest of the SVP code range attributed to the position, which is very frequently the case, b.  the alien has paid for his or her PERM application or a portion thereof (the regulations now require that the employer pay all such expenses in full, there are limited exceptions for cases for which an attorney was hired before the reg was implemented), or c.  there is a foreign-language requirement.  Add other reasons and random audits and one can see why many PERM applications have or will be audited.

The problem with auditing all of these cases is the delay.  Some cases have been pending for six or none months without adjudication.  If such cases are denied, most cannot simply be re-filed because the recruitment efforts will be stale by the time the decision is received.

It seems that most applications that have been audited for the employer’s minimum requirements exceeding the SVP are being especially held up while the DOL determines whether business necessity letters provided in response to the audits are satisfactory, and whether cases where the employer stated that the requirements were “normal” in the application and the certifying officer disagrees according to their odd reading of the regulation and the preamble stating essentially that a position with an SVP of      7 > 8 = 7.

According to a USCIS Press Release the number of employers who have signed up for e-verify now exceeds 52,000.  For an explanation of the e-verify program, please read the USCIS Fact Sheet.

According to an article on nytimes.com:  “Searching for ways to reduce a huge backlog of visa applications, immigration authorities have eased requirements for background checks by the F.B.I. of immigrants seeking to become permanent United States residents, federal officials said Monday.”

The US Department of State has released the Visa Bulletin for March 2008.

Last week, according to a US Immigration and Customs Enforcement News Release:  “U.S. Immigration and Customs Enforcement (ICE) agents executed a federal search warrant yesterday afternoon at a Los Angeles-area computer printer cartridge manufacturing plant, arresting eight current and former company workers on criminal charges and another 130 employees on administrative immigration violations.”

Employers who have concerns about whether their employees are legally permitted to work in the US should contact a qualified immigration attorney.  Services available include reviews of current I-9 forms and H-1B beneficiaries’ Public Information Files.  Some larger organizations may even have lawyers pretend to be potential new hires to see if HR is doing everything right. from the get-go.

Many are predicting that the 65,000 annal quota for H-1B visas that are subject to the cap will be exhausted in a single day.  According to an article on nhbr.com:  “Ironically – or perhaps fittingly – the only day we can catch a glimpse of H-1B visas is April Fool’s Day. Why is that fitting? Because we Americans are foolish to restrict the number of skilled foreign workers who can come to this country each year for temporary assignments in specialty occupations.”

Unfortunately, for employers and foreign professionals the H-1B shortage is no April Fool’s joke.  Wht can you do?  Other than call your congressional representatives which probably won’t do much, I suggest planning now.  Look for alternatives to the H-1B visa or consider whether the beneficiary or employer are exempt from the 65,000 cap.  Just don’t wait until the last minute to get moving.  April 1, 2008 will be the first day the USCIS starts accepting petitions and it may be the last for the 2009 fiscal year.

I think almost everyone has seen the music video by Will.I.Am from the Black Eyed Peas where various artists sing to the words of a Barrack Obama speech.  For anyone who has not, I highly recommend watching it.   It is called  “Yes We Can!” (or “Si Se Puede” in Spanish).

It is by no means an immigration speech but some of you may recall that the words “Si Se Puede” were chanted at the immigration rallies that took place around the country last year.

The video is available on youtube.com, search for “yes we can.”

Almost everyone agrees that John McCain will be this year’s Republican Presidential candidate.  The one issue that could hurt him if he doesn’t tread carefully?  You guessed it:  Immigration.  In an effort to appease the conservative base, he has to be careful not to alienate Hispanics.  The good thing about McCain is that all he has been saying to appease the far right is that he will secure the borders first.  Essentially this is what a version of CIR that failed last year would have done anyway.  Whoever the next President is, he or she won’t stand in the way of CIR.  Now we just need to elect a common-sense Congress who will resolve the immigration issue and take it off the table as such a hot political topic by 2010 or 2012.

According to an article on wsj.com analyzing this issue:  “Republican presidential front-runner John McCain could help swing back to his party a crucial constituency considered lost to Democrats amid a rancorous immigration debate: the Hispanic vote. But Mr. McCain will have to tread carefully as he intensifies a push to win over his party’s right-wing base.”

According to an article on informationweek.com: “This spring, when employers flood the U.S. government with petitions to hire H-1B visa workers, those companies likely will have a new convenience — electronic notification from the Dept. of Homeland Security about whether those applications have been approved.”

Currently, employers, beneficiaries or their representatives can register at uscis.gov to receive Case Status Notifications.  For cases filed using the USCIS Premium Processing Service, Petitioners or their attorneys are also notified via e-mail when cases are approved.

Time to say goodbye (and save a few million dollars!).  According to cnn.com:  “Former Massachusetts Gov. Mitt Romney will suspend his bid for the Republican presidential nomination, GOP sources tell CNN.”

For all who hope for reforming our immigration system in 2009, this is very good news.  McCain, the clear Republican front-runner, and both possible Democratic candidates, all support CIR.