• February Immigration Alert
  • March 14, 2008 | Authors: Irina B. Plumlee; Julie Wade
  • Law Firm: Gardere Wynne Sewell LLP - Dallas Office

    ARE YOU READY to file new H-1B petitions? April 1, 2008 is the first day of permissible H-1B petitions filing for the upcoming fiscal year. New H-1B petitions filed on or after April 1, 2008 should be eligible to be approved for a U.S. employment start date of Oct. 1, 2008. But you must act fast. Last year, the H-1B cap was reached almost immediately, and H-1B petitions filed within the first two days were subject to a random lottery to determine filing acceptance. Target your H-1B filings for April 1, 2008, and do not delay contacting your immigration counsel if you are interested in hiring a new H-1B worker or changing an F-1/OPT student’s status to H-1B.

    Additionally, don’t forget that H-1B workers already counted against the H-1B cap (such as individuals who previously worked in the U.S. pursuant to valid H-1B status before exhausting their 6-year H-1B time period) are eligible to obtain H-1B status without being subject to the current cap limitation.

    Department of Homeland Security (DHS) Update:

    • The REAL ID Act goes into effect March 31, 2008 and establishes the minimum standards for state-issued driver’s licenses and personal identification cards.  These standards pertain to the information and security features that must be incorporated into each card; an applicant’s identity and immigration status information; and the security guidelines for the offices that produce such cards.  Beginning May 11, 2008, unless a state has obtained an extension, federal agencies will no longer accept a non-compliant state’s driver’s licenses and identification cards as proof of identification.  Individuals from non-compliant states should be prepared to present other acceptable identification, such as a U.S. passport, in order to board federally regulated commercial aircraft.
    • The most recent challenge to the Legal Arizona Workers Act has been dismissed by a federal district judge.  The new law, which went into effect on Jan. 1, 2008, requires Arizona employers to confirm employment eligibility of all new hires through the federal government’s E-Verify Program.  Further, the statute prohibits employers in Arizona from intentionally or knowingly employing unauthorized workers.  Penalties for violations of the law include temporary state business operating license suspension for first violations and could result in permanent revocation of all the employer’s state business licenses for any subsequent violation. 
    • The USCIS has designated the California Service Center as the filing location for H-1B “cap exempt” petitions in the following categories: institutions of higher education and related nonprofit organizations or entities; and nonprofit and governmental research organizations.  Other types of “cap exempt” H-1B filings, such as extension or change of employer application, should continue to be filed with the appropriate Service Center based on employment location.  With H-1B filing season quickly approaching and the anticipated fierce competition for the limited number of H-1Bs, be sure to confirm filing addresses and application fees before sending in your petitions.
    • Applications for extension of employment authorization (EAD Card) should not be filed with the USCIS more than 120 days prior to the current EAD Card expiration.  Filings made outside this new timeframe will be denied as filed prematurely.
    • In an effort to improve application processing times, the USCIS’s Texas Service Center has implemented a new system for adjudicating concurrently filed I-140 Immigrant Petitions and Adjustment of Status Applications.  Now, rather than having different officers review each of the different forms within a filing, one officer will be able to review the filing as a whole.  Applicants may begin seeing requests for evidence (“RFE’s”) referencing more than one application type at a time.
    • Relief may be on the horizon for individuals with long pending Adjustment of Status (green card) applications, otherwise approvable but for the FBI background check completion.  A recent memorandum issued by the USCIS instructs officers to approve such cases where the FBI name check request has been pending for more than 180 days.  The USCIS has the right to take further action, including rescinding the approval, should negative information subsequently be received from the FBI.
    • The USCIS has announced proposed changes to the H-2A temporary agricultural worker program used by U.S. agricultural businesses to meet seasonal and temporary labor needs.  Among the proposed changes: a provision allowing H-2A workers to begin working for a new U.S. employer while waiting for the H-2A change of employer application approval, so long as the new employer is a registered E-Verify System user; and mandating that all H-2A applications be submitted with an approved labor certification application.

    Immigration Enforcement:

    Pursuant to recent U.S. Immigration and Customs Enforcement (ICE) news releases, worksite enforcement operations in California and Utah earlier this month have resulted in the arrests of nearly 200 allegedly unlawful workers. In addition, the Utah company’s human resources director faces criminal charges of encouraging or inducing illegal aliens to remain in the U.S. unlawfully. If convicted, he could receive up to 10 years of jail time for each count. In the government’s latest fiscal year, ICE made nearly 5,000 arrests as a result of worksite enforcement actions and collected more than $31 million in criminal fines, restitutions, and civil judgments.