Badmus

USCIS updated its count of FY2011 cap-subject H-1B petitions and advanced degree cap-exempt petitions receipted. As of July 9, 2010, approximately 24,800 H-1B cap-subject petitions were receipted. USCIS has receipted 10,600 H-1B petitions for aliens with advanced degrees.

AILA InfoNet Doc. No. 10042368.

Categories: Employment Immigration, General |

Department of Labor

Statement by US Secretary of Labor Hilda L. Solis

WASHINGTON — Secretary of Labor Hilda L. Solis today issued the following statement regarding the unauthorized public dissemination of confidential information collected by state agencies in Utah:

“Recent news reports about the dissemination of confidential information about a worker’s legal status are highly disturbing. I am deeply concerned about these reports, and assure the public that the U.S.  Department of Labor will closely follow and work to support the investigation that has been launched by the state of Utah.  No one, regardless of race, gender or ethnic background, should fear that by applying for government benefits or programs, he or she is at risk of having personal information revealed. The unauthorized release of such information is against the law, and the perpetrators should be punished.”

Categories: Legislation and Policy, Employment Immigration, Blogroll, General |

2011 H-1B cap count stands at 22,200 for the regular cap and 9,400 for the master’s cap exemption as of June 11, 2010.

Categories: Employment Immigration, Blogroll |

According to the USCIS, big changes are coming to E-Verify on June 13 that will enhance its usability, security, accuracy and efficiency. The newly redesigned E-Verify features a clean and modern design, easy and intuitive navigation, and clear and simple language. Users must complete a new online tutorial to use E-Verify for new employer verification after June 13.  For more information and to register for the tutorial, click here.

Categories: Employment Immigration, Employer Compliance, General |

Broadgate, Inc., et al v. USCIS, et al
Case number: 1:10cv00941

This Application for Preliminary Injunction and Complaint filed on June 8, 2010 by Greenberg Traurig LLP in the U.S. District Court of the District of Columbia, challenges USCIS’s application of the January 8, 2010, Neufeld Memorandum’s definition of employer-employee relationships, resulting in the denial of H-1Bs filed by IT staffing firms. Judge Gladys Kessler will be hearing the case.

AILA InfoNet Doc. No. 10060830 (posted Jun. 8, 2010)

Categories: Employment Immigration, Employer Compliance, Immigration Litigation and Removal, Blogroll, General |

ALEXANDRIA, Va., June 8 /PRNewswire-USNewswire/ — TechServe Alliance, the national trade association representing the IT services industry, filed a lawsuit today in U.S. District Court in and for the District of Columbia against U.S. Citizenship and Immigration Services (USCIS), Alejandro Mayorkas, Director of USCIS, the Department of Homeland Security (DHS), and Janet Napolitano, Secretary of Homeland Security.

The five count Complaint charges that the government improperly and without any valid legal basis altered long-standing policy that has allowed IT staffing firms to obtain H-1B visas on the same basis as other companies. In an abrupt reversal of its policy without any notice or opportunity for comment and contrary to well settled law, the government now erroneously contends IT staffing firms are not “U.S. employers” and are therefore ineligible to serve as petitioners for H-1B visas. Since implementing this new policy, the agency has been improperly denying petitions of IT staffing firms on that basis. Along with the complaint, TechServe Alliance filed a motion seeking entry of a preliminary injunction barring the agency from continuing to enforce this policy as it was adopted in violation of law.

“USCIS’s actions are a thinly veiled attack on the IT staffing industry and its business model,” observed Mark Roberts, CEO of TechServe Alliance.

In a Memorandum dated January 8, 2010 by Donald Neufeld, Associate Director of Service Center Operations at USCIS (”Neufeld Memo”), USCIS reversed well settled policy, determining that IT staffing firms are not “U.S. employers” under U.S. immigration law and are therefore ineligible to access the H-1B visa program. USCIS arrived at this erroneous determination by arguing that IT staffing firms fail to exercise control over their consultants; summarily concluding there is no employer-employee relationship–an element of the definition of U.S. employer. In doing so, USCIS ignores the fact that IT staffing firms hire, fire, pay and supervise; activities which the applicable regulation as well as other areas of law have long recognized as establishing an employer-employee relationship.

In Count I of the Complaint, TechServe Alliance contends the Neufeld Memo amends an existing legislative rule allowing the Secretary of Homeland Security to issue the rule only after a notice-and-comment rulemaking process has been properly conducted in accordance with the Administrative Procedure Act (APA). The APA requires federal agencies to provide notice and an opportunity for interested parties to comment and have those comments considered prior to issuing final rules and regulations. Because USCIS failed to conduct such a process in accordance with the APA, TechServe Alliance seeks entry of a preliminary injunction barring the agency from enforcing its rule and vacating the Neufeld Memo. Count II sets forth a claim under the Regulatory Flexibility Act in light of the government’s failure to conduct the required analysis of the rule’s impact on small entities, Count III sets forth a claim that the regulation exceeds USCIS’s statutory and regulatory authority, and Counts IV & V assert the Neufeld Memo is arbitrary and capricious and not authorized by law.

“IT staffing is a lawful business model that greatly benefits the U.S. economy, U.S. businesses and U.S. workers. The government should not be allowed to attack the industry by circumventing the rulemaking process and reversing long-standing policy by decree. Because of their vast power to destroy lives and businesses, government institutions should be required to rigorously comply with applicable law and process. USCIS, DHS and its leadership failed to meet the most minimal standards of compliance with the law. Despite wide spread objection and outrage over the policy enunciated in the Neufeld Memo on both substantive and procedural grounds, USCIS and DHS have failed to rescind this policy. Accordingly, we were left with no choice but to defend the industry against these unfair, ill-conceived, and unauthorized actions and seek equitable relief from the Courts,” stated Roberts.

Alongside TechServe Alliance, the American Staffing Association and IT staffing firms Broadgate, Inc., Logic Planet, Inc. and DVR Softek Inc. are also plaintiffs in the action.

Categories: Employment Immigration, Employer Compliance, Immigration Litigation and Removal, Blogroll, General |

The U.S. Department of Labor has unveiled a new tool to help employers and others understand how to comply with requirements under the H-1B visa program, which allows for the temporary employment of foreign workers in the U.S. in certain specialty occupations.

An online “advisor,” available at http://www.dol.gov/elaws/h1b.htm, describes the program’s standards and provides detailed information about employers’ and workers’ rights and responsibilities. It outlines notification requirements, monetary issues, worksite issues, recordkeeping, worker protections and enforcement. “The Labor Department’s goal is to provide employers and the public with user-friendly information regarding both rights and responsibilities under the H-1B program,” said Secretary of Labor Hilda L. Solis. “The new online advisor harnesses technology to help take the mystery out of the new rules, and it offers an important resource to workers and employers alike.”

The H-1B nonimmigrant visa classification was created under the Immigration and Nationality Act to help employers who cannot obtain needed skills and abilities from the U.S. workforce by authorizing the employment of qualified individuals who are not otherwise authorized to work in the U.S. The act establishes certain standards to protect similarly employed U.S. workers from being adversely affected by the employment of foreign workers under the H-1B program, as well as to protect H-1B workers themselves. Responsibilities for the H-1B visa program are shared among the Labor Department’s Office of Foreign Labor Certification and the department’s Wage and Hour Division, the U.S. Department of Homeland Security’s U.S. Citizenship and Immigration Service and the U.S. Department of State. The new advisor tool focuses solely on compliance with the requirements enforced by the Wage and Hour Division. The tool does not review the process for participating in the program or for invoking H-1B visa portability.

The H-1B Advisor is one of a series of Employment Laws Assistance for Workers and Small Businesses, or “elaws,” advisors developed by the Labor Department’s Office of the Assistant Secretary for Policy, working with other department agencies, to help employers and employees understand federal employment laws. To access the set of advisors, visit the elaws website at http://www.dol.gov/elaws/. To learn more about the Labor Department’s role in administering the Immigration and Nationality Act and the H-1B visa program, visit the department’s Office of Foreign Labor Certification website at http://www.foreignlaborcert.doleta.gov and its Wage and Hour Division site at http://www.dol.gov/whd/.

Categories: Employment Immigration, Employer Compliance, Blogroll, General |

U.S. Citizenship and Immigration Services (USCIS) recently announced that it has redesigned the Permanent Resident Card—commonly known as the “Green Card”—to incorporate severalmajor new security features. The Green Card redesign is the latest advance in USCIS’s ongoing efforts to deter immigration fraud. State-of-the-art technology incorporated into the new card prevents counterfeiting, obstructs tampering, and facilitates quick and accurate authentication. Beginning today,USCIS will issue all Green Cards in the new, more secure format.

“Redesigning the Green Card is a major achievement for USCIS,” said Director Alejandro Mayorkas. The new security technology makes a critical contribution to the integrity of the immigration system.”

The enhanced features will better serve law enforcement, employers, and immigrants, all of whom look to the Green Card as definitive proof of authorization to live and work in the United States. Among the benefits of the redesign: Secure optical media will store biometrics for rapid and reliable identification of the card holder. Holographic images, laser engraved fingerprints, and high resolution micro-images will make the card nearly impossible to reproduce. Tighter integration of the card design with personalized elements will make it difficult to alter the card if stolen. Radio Frequency Identification (RFID) capability will allow Customs and Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data. Finally, a preprinted return address will enable the easy return of a lost card to USCIS.

In keeping with the Permanent Resident Card’s nickname, it will now be colored green for easy recognition. USCIS will replace Green Cards already in circulation as individuals apply for renewal or replacement.

Categories: Employment Immigration, Family Immigration, Medical Professionals, Blogroll, General |

April 22, 2010 H-1B Cap Count

As of April 22, 2010, approximately 16,025 H-1B cap-subject petitions were filed. Additionally, USCIS has receipted 6,739 H-1B petitions for aliens with advanced degrees.

Categories: Employment Immigration, Blogroll |

SAN DIEGO - A San Diego-area French bakery, along with its owner and a manager, are charged in a 16-count indictment unsealed Wednesday resulting from an investigation by U.S. Immigration and Customs Enforcement (ICE) into allegations the business knowingly hired undocumented workers. The French Gourmet, Inc, of San Diego, Calif., together with its president and one of the company’s managers, are accused in the indictment handed down by a federal grand jury here April 15. The indictment alleges the defendants conspired to engage in a pattern or practice of hiring and continuing to employee unauthorized workers, a misdemeanor, in addition to 14 felony counts, including making false statements and shielding undocumented alien employees from detection.

Also named in the indictment are the bakery’s owner, Michel Malecot, 52, and a company manager, Richard Kauffman, 51, both of San Diego. The men are charged with 12 felony counts for making false statements and shielding undocumented alien employees working at the bakery from detection. They were arraigned Wednesday. If convicted, Malecot and Kauffman face a maximum of five years in prison and a $250,000 fine on each count. The indictment also seeks criminal forfeiture of proceeds gained from the corporation’s unlawful activities.

“Employers have a responsibility for maintaining the integrity of their workforce,” said Mike Carney, acting special agent in charge for ICE Office of Investigations in San Diego, “This indictment shows ICE’s commitment to holding businesses accountable when they repeatedly ignore immigration laws as it relates to their workforce. The goal of our enforcement effort is two-fold, first to reduce the demand for illegal employment and, second, to protect job opportunities for the nation’s lawful workforce.”

According to the indictment, the company’s managers, including Malecot and Kauffman, certified on the firm’s Employment Verification Forms (I-9) that the documents they examined appeared to be genuine, and to the best of the their knowledge, the employees listed on the I-9 were eligible to work in the United States. The managers then put the illegal workers on the company’s payroll and paid them by paycheck until they received “no match” letters from the Social Security Administration (SSA) advising that the Social Securitynumbers being used by the employees did not match the names of the rightful owners of those Social Security numbers.

After receiving the “no match” letters, The French Gourmet, Inc., then allegedly conspired to pay the undocumented employees in cash until the workers produced a new set of employment documents with different Social Security numbers.  In May 2008, ICE agents executed a federal search warrant at The French Gourmet and arrested 18 undocumented workers. During the searches, ICE agents seized employee and payroll records as evidence in the criminal case.

In 2009, ICE implemented a comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce. Under this strategy, ICE is focusing its resources on auditing and investigating employers suspected of knowingly employing illegal workers. The goal of the enforcement strategy is to promote national security, protect critical infrastructure and ensure fair labor standards. ICE is using all available criminal and administrative tools, including civil fines and debarment, to penalize and deter illegal employment. In fiscal year 2009, ICE worksite investigations resulted in a total of 410 criminal arrests, including 114 management personnel.

ICE Press Release

Categories: Employment Immigration, Employer Compliance, Immigration Litigation and Removal, Blogroll |