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  1. DHS REPORT CARD

    by , 06-10-2008 at 11:10 AM (Greg Siskind on Immigration Law and Policy)
    As part of its roll out of the Executive Order on E-Verify mentioned yesterday, DHS Secretary Michael Chertoff and Department of Commerce Secretary Carlos Gutierrez have issued a joint press release giving an update on where the Administration is in achieving the 26 goals outlined last August.

    The Border Fence

    Approximately 330 miles of fencing have been completed. DHS believes it is on track to complete 670 miles of fencing by the end of this calendar year.

    Border Patrol staffing

    The number of Border Patrol agents has increased from 9,800 in fiscal year 2002 to a current number of 16,471 with an increase of more than 5,000 in the last year.

    Chertoff believes that the border will be "secure" by the Border Patrol's definition sometime in 2011, perhaps earlier.

    Apprehensions

    The number of apprehensions has decreased, but the White House argues that this is because the enforcement measures recently enacted are having the effect of reducing the number of attempts to enter the country.

    Violence at the border

    In this fiscal year, there have been 744 incidents of violence against Border Patrol agents, a 26% over last year.

    Western Hemisphere Travel Initiative

    Slated to go in to effect at land and sea ports in June 2009. The initiative has already been implemented at airports and there has been close to 100% compliance. 200,000 applications have been received for the new pass-card being issued by the State Department beginning this month.

    REAL ID

    Washington state has begun issuing REAL ID-compliant licenses. New York has announced a plan to issue compliant licenses. "Other states are on the way to doing so as well" (no actual number is provided, however).

    E-Verify

    Approximately 10% of new hires in the country are now run through E-Verify. 70,000 employers are currently enrolled. DHS claims that 99.5% are verified instantaneously [editor's note - critics point out that this figure only includes DHS non-confirmations and not Social Security Number non-confirmations, something that appears to be a much bigger problem].

    With respect to the recent Executive Order mandating federal agencies require contractors to use an electronic verification system designated by DHS, DHS designates E-Verify. Hundreds of thousands, perhaps millions, or workers will be covered by the order. Whether subcontractors will be covered will be determined when the regulation is written.

    The Office of Management and Budget has just concluded its review of a proposed rule amending the federal acquisition regulation to implement the executive order.

    Worksite Enforcement

    90 employers convicted on criminal charges in the last year.

    Legal Immigration facilitation

    OPT rule released extending practical training from 12 to 29 months for student in science, technology, engineering and math fields working with an employer using E-Verify.

    New H-1B rule prohibiting the filing of duplicate H-1B petitions by a single US employer for the same worker.

    Employment Authorization Document validity period in adjustment cases increasing from one to two years beginning later this month.

    H-2Bs - The Deaprtment of Labor porosed a rule addressing various "bureaucratic and ineffeciency concerns." DHS  announced that yesterday it sent over to OMB a new proposed rule which would propose significant changes "designed to increase the effectiveness and attractiveness" of the H-2B program. The rule "eliminates certain regulatory barriers, adds protection for foreign workers, and increases efficiency and coordination." Most significantly, it would change the definition of temporary employment to recognize that some H-2B employment could last up to three years. Under the change, employers would now only need to show that a job is expected to last no more than three years rather than the current one year.
  2. EMPLOYMENT AUTHORIZATION DOCUMENTS IN ADJUSTMENT CASES TO BE VALID FOR TWO YEARS

    by , 06-10-2008 at 10:42 AM (Greg Siskind on Immigration Law and Policy)
    I'm going through the ten page transcript from yesterday's DHS press briefing on the new executive order and found this little nugget:Secretary Chertoff: I'm
    also pleased to announce that we will be extending the validity period of the
    employment authorization documents that we
    issue to individuals who are waiting adjustment of status to lawful permit
    residence or as its colloquially phrased,
    the green card.

     

    Currently, adjustment
    applications are granted employment authorization documents with only a one
    year maximum validity.
    Beginning later this month, we'll start issuing these documents with a two-year
    validity period for aliens who
    are waiting adjustment of status if their application is expected to be pending
    for more than a year.

     

    This, again, is
    eliminating a persistent source of frustration for workers who are here, who
    have a pending adjustment
    application but have to go and renew their employment documents every single
    year. It's going to cut
    the paperwork there.
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    I'll have a more complete summary of the remarks posted here shortly.
  3. DHS ANNOUNCES PROPOSED RULEMAKING IMPLEMENTING E-VERIFY EXECUTIVE ORDER

    by , 06-10-2008 at 08:01 AM (Greg Siskind on Immigration Law and Policy)
    Here is the text:

    DHS Designates E-Verify as Employment Eligibility Verification System for All Federal Contractors
                            Release Date: June 9, 2008






           




    For Immediate Release

    Office of the Press Secretary

    Contact: 202-282-8010

    The Department of Homeland Security today designated E-Verify,
    operated by U.S. Citizenship and Immigration Services in partnership
    with the Social Security Administration, as the electronic employment
    eligibility verification system that all federal contractors must use
    as required by Executive Order 12989, as amended. E-Verify is a free
    Internet-based system that allows enrolled employers to confirm the
    legal status of new hires within seconds.

    "A large part of our success in enforcing the nation's immigration
    laws hinges on equipping employers with the tools to determine quickly
    and effectively if a worker is legal or illegal," said Homeland
    Security Secretary Michael Chertoff. "E-Verify is a proven tool that
    helps employers immediately verify the legal working status for all new
    hires."

    President George W. Bush has amended Executive Order 12989 in order
    to direct all federal departments and agencies to require contractors,
    as a condition of each future federal contract, to agree to use an
    electronic employment eligibility verification system - designated by
    the Secretary of Homeland Security - to verify the employment
    eligibility of all persons hired during the contract term and all
    persons performing work within the United States on the federal
    contract.

    In response to this Executive Order, Secretary Michael Chertoff
    today designated E-Verify as the system of choice to ensure that the
    federal government only does business with companies that agree to
    verify the legality of their new hires and further, that the specific
    employees tapped to perform contract services in the United States for
    the federal government are authorized to work in this country. Federal
    departments and agencies within the executive branch are already
    enrolling with E-Verify to check the status of all new hires within the
    federal workforce. Agencies responsible for federal acquisition
    regulations (FAR) will send a Notice of Proposed Rulemaking (NPRM) to
    the Federal Register today soliciting public comment on proposed
    changes to these regulations. Comments will be accepted for 60 days.

    More than 69,000 employers currently rely on E-Verify to determine
    that their new hires are authorized to work in the United States.
    Employers have run more than 4 million employment verification queries
    so far in fiscal year 2008. Of those queries, 99.5 percent of qualified
    employees are cleared automatically by E-Verify.

    To view the Executive Order, please visit www.whitehouse.gov.
  4. JULY VISA BULLETIN RELEASED

    by , 06-10-2008 at 07:37 AM (Greg Siskind on Immigration Law and Policy)
    Little movement in the family numbers (except that the Family 2B date actually moved backwards by six weeks).

    On the employment side, no changes in the EB-1 and EB-2 numbers. Indian and Chinese nationals are still stuck at April 1, 2004 in the EB-2 category.

    The big news is in the EB-3 category for skilled workers which is now unavailable. In June, folks with priority dates earlier than March 2006 (except for China, India and Mexico) were being processed. For at least July and probably until September, no cases are going to be completed. The EB-3 category for other workers (those who are not skilled or professional) is still available for those with priority dates before January 1, 2003.

    You can see the Bulletin here.
  5. DOL Should Revisit the Attorney's Role in PERM

    by , 06-10-2008 at 04:40 AM (Joel Stewart on PERM Labor Certification)
    DOL has worked hard to create PERM, a streamlined process to apply for labor certification and is rightfully attempting to maintain integrity in the system, however, the do's and dont's of attorney participation in the PERM process need to be reviewed to determine a proper balance between right and wrong.

    The PERM rule states, "The alien and/or the alien's agent and/or attorney may not interview or consider U.S. workers for the job offered to the alien, unless the agent and/or attorney is the employer's representative [who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the alien, but which do not involve labor certifications.]" The section prohibits only interviewing or considering U.S. workers. It does not prohibit representation of the employer throughout the rest of the process. On the contrary, attorneys need to be involved in numerous ways, as long as they do not violate the prohibition to "consider" U.S. workers.

    It appears that attorneys should assist their clients to review labor certification applications in their entirety, including analysis of the proposed job offer, comparison with DOL data on the O*Net, application for prevailing wage & review of legality of job offer with respect to federal, state and local law; advise employers on methods of notice & recruitment to comply with the PERM rule, including intricate rules and policy statements found in the PERM Rule, Frequently Asked Questions, Liaison Minutes, Stakeholder Statements, General Administrative Letters, warnings regarding typographical errors and computer glitches, and other official memoranda which may have the force of law. (See HealthAmerica, 2006-PER-1, July 18, 2006); Advise on the process of contacting U.S. workers, a process that requires regular, systematic and specific contact with workers that is not normal in most industries, such as combinations of telephone calls, certified letters, e-mails, telegrams and/or courier deliveries, and which imposes unusual burdens of proof, such as reasonable time frames to respond to workers (generally less than 14 days), documentation that must or should be requested (including when and how they may be requested), responsibility to inquire beyond the face of the resume, to determine whether a worker appears qualified by a combination of education, experience or training, to obtain references from third parties, and maintain of extensive documentation in case of an audit; Review of workers and their qualifications may impact on the wage offer.

    The rules surrounding wage offers and ranges are extremely complicated, depending on the prevailing wage, the date the alien was hired (if already in the position), the current salary offer (which may be higher than the prevailing wage), and the possibility of earning a wage higher than the entry level wage based on years of service. The attorney would also determine whether the SWA selected the correct SOC code (and according to some observers, whether the code selected by the SWA has any legal effect on the PERM application), whether the OES wage is correct, up-to-date and properly applied, whether another method of determining prevailing wage may or should be used, whether the ambiguous standards for determining PW were properly applied by the SWA, including the proper application of Appendix A for Professional Positions, the proper use of the "worksheet" for adding points for licenses, supervision, foreign language or other special requirements, and interpretation and application of the guidelines for four wage levels, from entry level to fully trained.

    Employers have to follow strict rules to determine qualifications of workers, including whether they are legal U.S workers, meet the minimum requirements, and are able, willing, qualified and available. Each of these words are terms of art that have special legal meaning. Decisions made by employers must meet requirements for objectivity under BALCA, whether tests and methods of evaluation are acceptable and fair, when and how the employer may contact the workers after the interview, whether the employer may ask the worker to provide references, and how to prepare the results of recruitment report to be retained for five years.

    DOL decisions, including pre-PERM decisions by BALCA, regarding attorney involvement have not acknowledged the simple fact that attorneys must and should represent their clients throughout the labor certification process (except for the fact that attorneys may not consider or interview U.S. workers). Now is a good time for stakeholders to discuss these issues with DOL.
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