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July Immigration Updates Including August Visa Bulletin

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July Immigration Updates Including August Visa Bulletin

July 15, 2009

USCIS Announces H-1B Numbers Still Available

About 20,000 Fiscal Year H-1B visas remain available. The government recently related that as of July 10, 2009, it has received approximately 44,900 H-1B cap-subject petitions counted towards the H-1B quota of 65,000. Approximately 20,000 petitions qualifying for the advanced degree cap exemption have been filed. USCIS relates it will continue to accept both cap-subject petitions and advanced degree petitions.

Visa Retrogression Continues--August Visa Bulletin

Significant advances for EB-2 Chinese and Indian nationals. The government's recently released August Visa Bulletin shows movement of three years for Chinese and Indian national employees in the EB-2 preference category. These employees have been stuck in the long visa retrogression queue. Employees must have priority dates which are "current" both as of the date (1) they file an adjustment of status application and (2) the government adjudicates the pending application for adjustment of status. For Chinese and Indian nationals, visas are available for priority dates of October 1, 2003, advancing almost three years from January 1, 2000. EB-3 third preference remains unavailable for all foreign national employees. To access the State Department's Visa Bulletin for August, please click here. We will plan to provide a more comprehensive analysis on what visa retrogression means for employers and affected employees after the start of the government's new fiscal year, which commences October 1, 2009.

Congressional and Agency Developments on E-Verify and Social Security Mismatch Letters

• E-Verify Mandatory Starting September 8, 2009 for federal contractors. After significant delays in implementing mandatory use of E-Verify, the government's electronic employment verification system, Department of Homeland Security (DHS) Secretary Janet Napolitano announced that DHS intends to move forward with requiring all federal contractors to use e-Verify starting September 8, 2009. Congress passed legislation extending the general E-Verify program, which is mostly optional, for at least two years. Starting September 8, employers who employ federal contractors and subcontractors must use E-Verify. This is consistent with the Obama Administration's effort to direct its focus to the employer's immigration compliance efforts rather than targeting the foreign national employees.

• Major Increase in Government I-9 Audits. Also consistent with the Administration's compliance mission, DHS recently announced that it will audit the I-9 forms at 652 companies. The list of companies is not public at this point, but some companies have made the news in this connection. The list is comprised of companies about whom the government had some information or indication of non-compliance and is not a random audit. We would anticipate that many of the employers would have been contacted already.

• Comfort Level for Employers on No-Match Letters. Secretary Napolitano also provided a final word on when employers receive "mis-match" letters from the Social Security Administration. She recently rescinded a hotly contested regulation that could have led to employers firing workers whose name and Social Security numbers on earnings reports don't match information in the Social Security database in order to protect themselves for being held to have employed illegal workers rather than wait and rely on evidence presented by the workers. As we have previously reported, employers challenged that regulation in federal court and successfully delayed implementation.

DV Lottery 2010 Status Check on the DOS Website

• The government has announced a link to the Electronic Diversity Visa Entrant Status Check on the DOS website for DV-2010. Accessing this link should provide information on the status of Diversity Visa cases.

As always, please contact us with strategic planning questions.

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