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H-1B update and New Attorney!

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H-1B update and New Attorney!

Dear Clients:

The following is an update on breaking news in immigration law and related information.

H-1B Cap Reached

As expected, CIS received more than the allotted 65,000 "regular cap" cases and 20,000 "master's cap" on the day applications closed. Therefore, no new (first time) H-1B filings may be made for the 2009-2010 fiscal year UNLESS they are for exempt jobs (those located on college campuses, physicians with Conrad 30 waivers, and those in certain non-profit or governmental research institutions or non-profits affiliated with colleges or universities).

This year, CIS took all filings made during the first 5 business days (April 1 - 7) of the fiscal year. They will now proceed to choose the 20,000 master's cap cases that they will process. After this selection is made, they will put the master's applications that were not selected into the regular cap pool and select 65,000. All selections will be made on a random basis.

Those not selected will be sent back the filing fee and the full filing.

Be sure to let your Congressmen know how this situation is adversely affecting the global competitiveness of your business (details at the end).

OPT Extended in Certain Limited Situations

Many foreign students are working on "optional practical training" (OPT) for the 12 months following graduation and their companies sponsor them for H-1B in hopes of winning the lottery.

Two problems exist in this scenario:

(1) If the student's OPT runs out before Oct. 1, there is a "cap gap" and the student must stop work and re-enroll in school or go home to await H-1B processing or

(2) if the student is not chosen in the H-1B lottery, the employment ends at the expiration of the OPT with no chance for extension.

Immigration & Customs Enforcement ("ICE"), the agency charged with regulating foreign students (go figure), has announced a new rule effective immediately to address (somewhat) these two problems.

First, the rule allows a student working on OPT whose H-1B application has been accepted for processing in the lottery to continue to work after the OPT expires up to the Oct. 1 start date of the new fiscal year PROVIDED THAT the I-129 form (H-1B petition) requested "change of status."

This rule, while somewhat helpful, is problematic in that if there was going to be a cap gap, the I-129 would likely not have been checked for "change of status" as the student would not have been eligible for a change of status when the petition was filed. CIS, the agency in charge of adjudicating the I-129s, has been contacted and has pledged to try to come up with a solution - perhaps allowing petitioners chosen to amend the applications. We will keep our fingers crossed.

Second, the rule allows students in OPT to apply for an extension of 17 months IF the following is true:

- The student has a job offer in science, engineering, technology or math (as defined in a list they have devised)

- The company at which the student is working is registered, using and is in good standing with the E-Verify electronic employment verification system.

While ICE appears to be open to discussion about what jobs should be on this list (public comments will be accepted on the rule, which may be revised in the future, until June 9), the requirement for a company to sign up for E-Verify just to keep a good foreign student worker is a new twist and one that may prevent this rule from being very helpful. See below for more info on E-Verify.

If the student qualifies for the OPT extension, he or she goes to the Designated School Official to request the extension recommendation on the I-20, and then files an I-765 ($340 filing fee). In a departure from prior rules, the student may continue to work for up to 180 days after the initial OPT expiration even if the I-765 is not approved if the extension was timely filed.

If the OPT is extended, it effectively gives the student a second chance at the H-1B lottery, but it would not guarantee that the student could continue to be employed by the company given the uncertain nature of the H-1B program. It would also possibly give the employer time to file a PERM application if that makes sense in the particular job and in light of the long waiting lines for green cards.

E-Verify - To Register or Not to Register - That is a Real Question

The E-Verify program is meant to help employers determine if a new hire is eligible to work in the United States. Is a way for employers to access the Social Security Administration ("SSA") and CIS databases after completing an I-9 for a new hire and get "immediate" (within 3 federal government business days) confirmation that the hire is authorized.

It sounds really good, but there are some problems.

First, the SSA database has something like 7.8 million data errors and was not meant to be used to verify employment. The most common error is listing newly-naturalized citizens as unauthorized to work.

Second, E-Verify cannot detect use of a legitimate SS card by someone else (unless the photo-recognition tool is available - which it is not for all hires). Therefore, even if the hire is cleared by E-Verify, the person may not in fact be authorized to work.

Third, about 7% of all queries cannot be answered "immediately". If there is not an immediate confirmation, a tentative non-confirmation is issued, which can be challenged by the employee. SSA and CIS are to get back to the employer within 10 federal government business days with a final confirmation or non-confirmation after information is submitted to challenge the tentative non-confirmation. The employee is not to be terminated during this review. E-Verify cannot be used for pre-hire screening either. Therefore, an employer may be training an employee who will ultimately not be confirmed to work.

Finally, the Memorandum of Understanding that the employer must sign with E-Verify allows the government to inspect records, including all employment records, to confirm compliance with E-Verify. This provision arguably negates the employer's Fourth Amendment rights against unreasonable search and seizure.

However, E-Verify does have certain benefits, such as ICE considers employers who are registered for and properly using E-Verify to be "good employers" and gives them the benefit of the doubt in cases of confirmed unauthorized employment. Remember that Swift was never prosecuted as a company after the infamous 2006 raids, presumably in part because it was using E-Verify (then the "Basic Pilot" program).

A copy of the MOU is attached for your review. If you are interested in registering or exploring E-Verify more thoroughly, we would be happy to assist.

Social Security No-Match Rule Back in Play

In late March, ICE published a notice that it has (in its view) satisfied the federal judge's concerns about its original no-match regulation and expects to put the rule into effect after the 30-day comment period (April 25) and the hearing to dissolve the court's injunction against implementation (June 20). Hold your breath for more developments. In any case, no-match letters will not be mailed before the end of June. We will update you on the status of the regulation and how to comply, but as of now, the rule is substantially the same as it was published last August.

Welcome to Nikki Mordini!

The Davis Brown Immigration Department would like to welcome Nikki Mordini, who joined us Monday as an attorney focusing on removal/deportation,criminal and family law. She has three years experience in these areas with another firm. Prior to law school she was a advocate for domestic abuse victims. We are thrilled to have her as part of our team.

Our department now numbers 11 members: Lori Chesser, senior attorney and chair; Amy Landwehr, senior attorney (focusing on business immigration and international adoption); Denise Claton, attorney (focusing on PERM applications); Nikki Mordini, attorney (focusing on removal/deportation, criminal and family issues); Barb Waldron, paralegal; Kerry Ruth, paralegal; Gina Johnson, paralegal (fluent in Spanish); Natalie Rivera, administrative assistant (fluent in Spanish); Robin Hanson, administrative assistant and database guru; Stacie Miller, administrative assistant and billing guru; and Ben Johnson, clerical assistant.

Look for G-28s that we will be sending to clients with pending cases so that we can change our address with the Service Centers and local offices. You will be asked to sign the G-28s to indicate the address change and send them back in the envelopes provided. We will send them to CIS or ICE per their instructions so that your mail will have the best chance of reaching us in a timely manner.