NEWS ITEM ONE: 

NOTICE TO EMPLOYERS:  H-1B VISAS ARE STILL AVAILABLE

As of September 25, 2009, approximately 46,700 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

NEWS ITEM TWO: 

IMMIGRATION UPDATE

The U.S. Department of Homeland Security is currently attempting to convince Congress to make E-Verify, the voluntary Internet-based employment verification system, mandatory for all employers in the United States.

COMMENTARY

E-VERIFY:

What is E-Verify?  E-Verify is an Internet-based system that allows an employer, using information reported on an employee's Form I-9, to determine the eligibility of that employee to work in the United States.  For most employers, the use of E-Verify is voluntary and limited to determining the employment eligibility of new hires only.  There is no charge to employers to use E-Verify.  The E-Verify system is operated by the U.S. Department of Homeland Security in partnership with the Social Security Administration.

Agencies across the federal government as of September 8, 2009, started ordering all federal contractors to use E-Verify to verify whether their employees are eligible to work in the U.S.  [Source:  http://online.wsj.com/article/SB125236773673291025.html]

E-Verify, the often-criticized electronic system for checking workers’ immigration status, is apparently here to stay.  President Obama’s chief of Citizenship and Immigration Services, Alejandro Majorkas, defended the system on September 16, 2009, as the government continues to expand its use.  http://feetin2worlds.wordpress.com/2009/09/16/e-verify-seems-here-to-stay-obamas-immigration-chief-vouches-for-status-verification-system/

E-Verify is mandatory for employers in some states, including Mississippi and Arizona. 

The system has its critics.  Among the criticisms are the following: 

1.  The system may or may not be able to handle a surge in queries, especially if more private employers are required to use it.

2. Employers are required to notify individuals who receive a tentative non-confirmation. The employee has eight federal working days to contact SSA to correct their records.  http://www.nextgov.com/nextgov/ng_20090916_2327.php

Eight days is a small window to correct any discrepancies.  The employer would have the burden to make these corrections. 

3.  According to nextgov.com, about .03 per cent of the “tentative nonconfirmation” results contest the determination successfully.  This would yield 24,000 erroneous results annually, a figure deemed too high by critics.    

The question becomes, will E-Verify become mandatory for private employers?  This is an issue employers need to monitor.  The 2010 appropriations bill provides $5.4 billion to fund DHS's employment verification activities. 

The present E-Verify system may become even more advanced.  Senator Schumer (D-NY) has stated repeatedly that E-Verify does not “go far enough” and made clear in several occasions that he favors a hi-tech employment verification system which employs biometric identifiers such as fingerprints, eye scans, and more.  Similarly, Secretary Napolitano, who believes E-Verify is a “smart, simple and effective tool” has also made clear, in agreement with Sen. Schumer that “we need to continue to work to improve E-Verify, and we will.” 

http://www.flemploymentlawblog.com/2009/07/articles/us-senate-approved-several-amendments-dealing-with-immigration-enforcement-not-included-in-the-2010-homeland-security-appropriations-bill-hr-2892/

USCIS also recently redesigned its website.  Hector A. Chichoni has an excellent theory that one of the purposes of the redesign was to provide a more powerful platform to handle a surge in E-Verify related queries.  [See:  http://www.miamiherald.com/business/story/1299177.html]

Thank you for being a loyal Law Office of John M. Manley Member.


Sincerely,

Law Office of John M. Manley

GREETINGS

NEWS ITEM ONE: 

NOTICE TO EMPLOYERS:  H-1B VISAS ARE STILL AVAILABLE

As of September 18, 2009, approximately 46,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn

NEWS ITEM TWO: 

IMMIGRATION UPDATE

Here are the most recent developments in U.S. Immigration:

1.  USCIS Web Site Redesign

2.  Immigration Officials Consider Fee Increases

3.  No New Efforts from the White House

COMMENTARY

1.  USCIS Web Site Redesign:

USCIS has redesigned its website.  In addition to its bilingual features it appears to be more customer service friendly.  An applicant or his attorney can now sign up to receive case updates from USCIS.  You can choose to receive these updates in the form of an email or even in the form of a text message.  Given that wireless customers have to pay to send and receive text messages, I would recommend using the email option for case updates. 

USCIS has an FAQ for its redesigned site.  Almost all of the questions and answers relate to the case update issue.  If you would like to read this FAQ, you can access the following link:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=a3d556a6d4ce3210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD

2.  Immigration Officials Consider Fee Increases

“Alejandro Mayorkas, the new director of the U.S. Citizenship and Immigration Services, said during a visit to Los Angeles on Wednesday that "financial challenges" have caused the agency to consider potential fee increases but no decision has been made.  The agency is facing a $118-million revenue shortfall this year in part because applications for citizenship and skilled worker visas are below projections, according to officials.”  [Source:  The Los Angeles Times  http://www.latimes.com/news/local/la-me-immig24-2009sep24,0,1871688.story]

As previously noted, the H-1B cap has not yet been met.  Last year, the cap filled in the first 10 days or so of April.  We are in the midst of a recession, and companies are all downsizing.  So, it should come as no surprise that USCIS is losing income from reduced filings.  We should also keep in mind that USCIS seems to challenge every application right now.  USCIS has hired new adjudicators and the number of Requests for Evidence has skyrocketed.  Companies are filing fewer applications for employees, and yet face a barrage of Requests for Evidence for applications when they do file.

This might be the real reason for the potential fee increase:   “And the agency is preparing for the possibility of legislation that could result in millions of undocumented immigrants applying for legalization, Mayorkas said.  Already, he said, the agency has more than 130 support centers throughout the nation ready to accept more than 6 million applications.” 

[Source:  The Los Angeles Times  http://www.latimes.com/news/local/la-me-immig24-2009sep24,0,1871688.story]

If The White House and USCIS expect 6-12 million illegal aliens to voluntarily register themselves with the agency, the government will need a lot more than increased filing fees.  In my opinion, USCIS will need billions of dollars to administer this goal.  After war in the Middle East, the Economic Stimulus Plan, projected costs surrounding Health Care Reform, how would the White House raise money for this task?      

3.  No New Efforts from the White House

This section is self-explanatory.  Regarding immigration, the same president who tried to juggle a half dozen major policy initiatives in his first few months in office now seems unsure of his ability to -- as he told Univision's Jorge Ramos in an interview last weekend -- "solve every problem at once."

[http://www.cnn.com/2009/POLITICS/09/25/navarrette.obama.immigration/

GREETINGS

NEWS ITEM ONE: 

NOTICE TO EMPLOYERS:  H-1B VISAS ARE STILL AVAILABLE.

As of August 14, 2009, approximately 45,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed.  USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

NEWS ITEM TWO: 

IMMIGRATION REFORM UPDATE

President Barack Obama on Thursday (August 20, 2009) managed to undo some of the damage he did recently with immigrants’ rights advocates — who were angered when Obama said in Mexico (on August 10, 2009) that immigration reform would have to wait until after health care and energy bills

passed congress.  What about the reform legislation?  In the above mentioned August 20 meeting, according to participants, Senator Chuck Schumer (D-N.Y.) will introduce and hold hearings on a major immigration bill this fall.  [http://www.politico.com/news/stories/0809/26308.html#ixzz0PErrI5HC]

COMMENTARY

The next question becomes, what views or goals does Senator Chuck Schumer have with regard to immigration?

Senator Charles Ellis Schumer is the senior U.S. Senator from the State of New York, serving since 1999. In November 2006, he was elected to the new post of Vice Chairman of the Senate Democratic Caucus.  In this position, he is the third-ranking Democrat in the Senate. [http://en.wikipedia.org/wiki/Chuck_Schumer]

The Senator was born in New York in 1950.  His parents, Abraham Schumer and Selma Rosen were also born in New York.  Senator Schumer earned a Juris Doctor from Harvard Law School in 1974.  He passed the New York State Bar in 1975 but never practiced law, entering politics instead [http://en.wikipedia.org/wiki/Chuck_Schumer]. 

He serves on six committees in the Senate.  The Senator is Chairman of the Subcommittee on Immigration, Refugees, and Border Security.  The Senator, on June 24, 2009 gave a major address on immigration reform and outlined the following seven principles[http://schumer.senate.gov/new_website/record.cfm?id=314990]

1.      Illegal immigration is wrong, and a primary goal of comprehensive immigration reform must be to dramatically curtail future illegal immigration.

2.      Operational control of our borders--through significant additional increases in infrastructure, technology, and border personnel--must be achieved within a year of enactment of legislation.

3.      A biometric-based employer verification system—with tough enforcement and auditing—is necessary to significantly diminish the job magnet that attracts illegal aliens to the United States and to provide certainty and simplicity for employers.

4.      All illegal aliens present in the United States on the date of enactment of our bill must quickly register their presence with the United States Government—and submit to a rigorous process of converting to legal status and earning a path to citizenship—or face imminent deportation.

5.      Family reunification is a cornerstone value of our immigration system.  By dramatically reducing illegal immigration, we can create more room for both family immigration and employment-based immigration.

6.      We must encourage the world’s best and brightest individuals to come to the United States and create the new technologies and businesses that will employ countless American workers, but must discourage businesses from using our immigration laws as a means to obtain temporary and less-expensive foreign labor to replace capable American workers; and finally

7.      We must create a system that converts the current flow of unskilled illegal immigrants into the United States into a more manageable and controlled flow of legal immigrants who can be absorbed by our economy.

The focus of these principles is clearly to reduce the flow of illegal immigration.  That is an honorable goal.  The mechanics of reaching this goal seems to be stated in the Senator’s fourth principle:  illegal aliens must quickly register their presence with the United States Government—and submit to a rigorous process of converting to legal status and earning a path to citizenship—or face imminent deportation.  To put this into historical context, we should examine the last major effort by U.S. Citizenship and Immigration Services to register foreigners.     

NSEERS, INS Special Registration) was a system for registration of certain non-citizens within the United States, initiated in September 2002 as part of the War on Terrorism.  As of May 2003, 82,581 individuals had complied with the domestic portion of the program. Of these people, at least 13,153 were put into deportation proceedings.  Although the program originally included a requirement for the remainder to reregister annually, this was later eliminated by the Department of Homeland Security. [http://en.wikipedia.org/wiki/Special_Registration#Results_of_the_program]

As an attorney practicing immigration law at this time I experienced Special Registration first hand.  The program taxed an already burdened system.  Why did DHS eliminate the re-registration requirement?  Special Registration did not meet its objectives of catching any terrorists and also administering it was a huge burden to DHS.  Almost 83,000 special registrants over burdened the system.  Senator Schumer wants an estimated 12 million illegal aliens to register themselves with DHS.  What resources would DHS have to administer this? 

In addition, the Senator calls the process ‘rigorous.’  With rigorous standards, not many aliens would qualify.  If a foreigner does not qualify, would he volunteer to go to DHS and register himself?  This will put him into removal proceedings immediately.  If 500,000 applicants feel that they have a shot at obtaining legal status and register, this leaves 11.5 million foreigners in the same position as before.  This will not accomplish the stated objectives.  DHS may not even have the resources to process the hypothetical 500,000 registrants.     

We do not have any specific guidelines, but the mechanics of the Senator’s fourth principle seem flawed.  Creating a pathway to citizenship could also be a political land mine for the Democrats.  This country is in the middle of a deep recession.  The U.S. military still has commitments in Afghanistan and Iraq.  The health care reform issue represents a huge battle for the administration.  Would the White House and leading Democrats have the broad consensus of support to make fundamental changes in immigration?  Why not start small?  Why not start by eliminating the H-1B cap?  Specialized workers are essential to any economic recovery.  Why limit their numbers?  This would be my advice to Congress:  take it one small step at a time.  Combining large fundamental changes in one broad package will not work in today’s political landscape. 

GREETINGS

NEWS ITEM ONE: 

NOTICE TO EMPLOYERS:  H-1B VISAS ARE STILL AVAILABLE.

As of July 10, 2009, approximately 44,900 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

NEWS ITEM TWO: 

Washington, D.C.  On June 25, 2009 the President, Vice President, and key cabinet members met with a bipartisan group of Senate and House leaders representing the spectrum of opinion on immigration. 

Since this time, we have had very little input on this issue from The White House.   The official White House web site for immigration (http://www.whitehouse.gov/issues/immigration/) lists these two items as the new developments in immigration:

• The President signed the Children’s Health Insurance Program Reauthorization Act, which provides quality health care to 11 million kids – 4 million who were previously uninsured -- and removes barriers preventing legal immigrant children from being covered.
• The American Recovery and Reinvestment Act provides over $400 million in funds to strengthen security and infrastructure for ports of entry on the Southwest border.

I was interested as to why the White House put these two items as the opening items on the web page in the “Progress” section.  Are these new items or developments? 

For the Children’s Health Insurance Program Reauthorization Act, when clicking through the various links, I saw that President Obama had signed this bill on February 4, 2009.  This is hardly current news.  

The American Recovery and Reinvestment Act of 2009 appears to have gone into law on January 6, 2009.  The DHS web link (http://www.dhs.gov/xopnbiz/recovery.shtm#one) has a Policy and Guidance Memo dated May 15, 2009.  The Recovery Act has its own web site as well:  http://www.recovery.gov/.  I see nothing of note on this site for immigration purposes. 

Why would the White House list these two items under the Progress section of their immigration web site?  This information is both stale and dated by this point.  The White House seems to want to convey a message that we are making progress on the immigration issue.  However, since the June 25, 2009 meeting with Senate and House leaders I cannot find any new information on White House progress in this arena. 

At the risk of sounding negative, I do not see how the Obama Administration would make any progress on immigration.  The Administration has commenced the Economic Stimulus Plan.  This plan requires a huge financial commitment from U.S. taxpayers.  President Obama recently has geared up for an all-out battle on U.S. health care reform.  If health care reform were to pass (Democratic leaders in the U.S. House of Representatives reached a deal on Wednesday July 29, 2009), this would also require another huge financial commitment from U.S. taxpayers.  The U.S. still has heavy military commitments in both Iraq and Afghanistan.  Will the Administration have anything left in the tank for immigration?  At this point, I would not bet on it.  The current business immigration system has considerable flaws.  We are not retaining some of the best and brightest foreign talent in our labor market.  Making changes will take a broad consensus of support in both the House and Senate.  After tackling the recession and health care, would the White House have enough support to make changes in the immigration system?