The Bush Administration announced on August 10, 2007, 26 new measures which continue or expand current policies or procedures for stepping up enforcement against employers who hire undocumented workers. Many politicians and leaders have reacted to the announcement according to their respective positions on immigration law and comprehensive immigration reform. Employers should take steps to make sure their employee verification systems are in compliance with State and Federal laws.
The Department of Labor has announced that they are creating an email address for people to report violators of the provisions of the recently-published “no substitution” rule. Employers need to be aware of the fact that starting July 17th employees may not pay any part of the fees, costs and expenses incurred in connection with preparing and filing a labor certification application. An employee can pay the fees and costs for filing the I-140 and adjustment of status. Violation of this rule can have serious repercussions.
In the early morning of July 2, the U.S. State Department indicated that it had received sufficient applications to distribute all of the remaining visa numbers for Fiscal Year 2007, and that the July Visa Bulletin would be amended accordingly. USCIS responded by indicating that all adjustment of status applications that will be filed in July pursuant to the Visa Bulletin will be rejected and returned to the applicant. In essence, not a single application for adjustment of status will be accepted in the month of July.
The joint announcements proved to be a crushing blow to permanent resident applicants who hoped to file for adjustment of status in the month of July. Even if the numbers had retrogressed in August, allowing applicants to file for adjustment of status in July would have provided many benefits. Adjustment applicants can obtain employment authorization and advance parole for themselves and their families, and are eligible for adjustment portability.
Our firm has started a letter-writing campaign to inform our elected officials in Washington about our displeasure with these actions. We encourage employers and permanent resident applicants to send emails and letters, or make phone calls, to their elected officials to register their feelings on this subject.
Not surprisingly, the Senate’s effort to pass comprehensive immigration reform has failed, and it is anticipated that no further action will be taken until 2009. The failure of our elected leaders to address this critically important issue is extremely troubling. While we have some hope that Congress might address some of the specific issues that relate to business immigration law, it has been noted in a New York Times article that the “high-tech” Titans, representatives of leading high-tech firms, were ignored during the recent debate on comprehensive immigration reform. It is therefore very difficult to predict whether Congress would be inclined to consider specific, piecemeal legislation that would create more H-1B or permanent resident visas. The business community should continue to lobby its representatives for legislation that addresses the needs of the business community in the business immigration law arena.
The Senate “compromise”comprehensive immigration reform proposal would radically change employment-based immigration law in the United States. A point system would replace the current approaches to permanent residence, including labor certification, national interest waiver, extraordinary ability applications, etc. In addition, the bill would strip the “dual intent”” provision regarding H-1B visa applications, which would make it much more difficult to obtain H-1B status. Also a new fee of $5,000 will be added to the H-1B application process. Furthermore, the bill does nothing to increase the availability of H-1B visas or eliminate excessive backlogs in employment-based permanent resident processing.
In the face of these changes, the business community has remained relatively silent. Our office encourages our clients, and other members of the business community, to make their voice heard by contacting their elected representatives in Washington and urging them to amend the bill to be more favorable to American employers.
The American Immigration Lawyers Association website (http://www.aila.com)/) provides an easy vehicle for contacting senators and congresspeople. Now is a critical time for employers to act in favor of employment-friendly immigration reform.
More and more District Courts are ruling in favor of plaintiffs who sue to have their long-delayed I-485 application for adjustment of status adjudicated. The U.S. District Court for the Northern District of California granted an adjustment Mandamus action on April 25, 2007. Our office has filed a number of Mandamus actions, and we have achieved some favorable results. Individuals with long-standing adjustment applications should consider the possibility of filing a Mandamus action (which is not appropriate in every case).
USCIS has announced that its proposed fee increases will take effect starting July 30. USCIS had received a number of complaints from immigration lawyers, advocates and even members of Congress. Notwithstanding these complaints, USCIS is moving forward with fee increases. An application for naturalization will increase from $405 to $675. An individual applying to become a legal permanent resident will have to pay more than $1,000, which represents a 155% increase.
After many years, the Department of Labor has finally published its rule regarding the substitution of beneficiaries in the labor certification process. The new rule bans substitutions as of the effective date of the new rule (July 16, 2007). Employers can file substitution requests up to this date.
The new regulation also limits the validity of labor certifications to 180 days; I-140 petitions must be filed within 180 days of the approval of the labor certification. For petitions which were approved before July 16, the 180 days starts to run July 16, 2007.
Finally, the new rule prohibits employees from paying any of the employer’s costs in the labor certification process. Therefore, employees who intend to pay all or part of the employer’s labor certification attorney’s fees should file prior to July 16, 2007. The regulation does not bar employees from paying the fees and/or costs associated with the employee. Our firm will be analyzing whether we can apportion the fees and costs we charge for the labor certification application to distinguish between fees and costs attributable to the employer and those attributable to the employee.
Employers and employees should act quickly if their labor certification application will be impacted by this new regulation.
Our law firm has moved quickly to respond to the substantial advancement in priority dates effective June 1st. Our firm has scheduled “choice appointments” with individuals whose priority dates will be current as of June 1st in order to ensure that applications for adjustment of status can be filed during the month of June in case there is a retrogression in visa numbers. Current clients of Stern & Curray who will have current priority dates in June, or other individuals who would like our assistance in preparing their applications for adjustment of status, should contact our office if they have not yet scheduled a choice appointment.
Earlier today, the President announced that Senate leaders from both parties had come to a compromise on a bill that would be a MAJOR overhaul to the immigration system. Details are still emerging, but among the highlights are:
– Enhanced border security, which must be completed before any guest worker or legalization plan is implemented
– Immediate status for undocumented people here, after payment of a large fine
– Restructuring and reduction of many family based categories
– Additional workplace verification and enforcement
– A merits-based “points” system that would allow immigration based on certain factors
THIS IS NOT A LAW, but is merely a proposal. As you will recall, last year the Senate put together a compromise bill that ultimately died when no compromise could be reached with the House of Representatives. We will see what happens with this one and how it evolves, as debate in the Senate is slated to begin next week. Please see this website for updates concerning legislative progress.
Some of these provisions are very onerous and, in our opinion, unworkable. There is still an opportunity to shape this law. Please contact your congressional representatives in the Senate and the House of Representatives to urge them to pass practical, humane immigration reform that will serve America’s needs. Click on the link below for instructions on contacting your Senators and Representative.