WHAT FEDERAL GOVERNMENT SHUTDOWN MAY LOOK LIKE

Courtesy of Greg Siskind: By this weekend, the federal government's funding is set to run out and unless there is a breakthrough in negotiations between members of the two parties, we could see a shutdown for the first time in more than 15 years. How will this affect immigration services? While we don't have a lot of experience with government shutdowns in this country, we expect that only "essential" services will continue. That means law enforcement, fire fighting, the military, utilities and prisons. Air travel is considered essential so air traffic controllers and TSAs will continue to work. And so will agencies that are funded by application and user fees. So which immigration services are to be hit? According to AOL News, the State Department will be one of the highest profile agencies to be affected: The U.S. tourism and airline industries reportedly lost millions of dollars after the 1995-96 shutdowns halted visa and passport processing. Approximately 200,000 U.S. passport applications went unprocessed during the shutdowns and 20,000 to 30,000 foreign visa applications were unprocessed. Emergency passport and visa processing should be available during the shutdown. USCIS Service Centers and local district offices should operate as normal because they are funded primarily through application fees. It's not clear yet what's going to happen at the Department of Labor. But it is very possible the iCert portal used for labor certifications and H-1B labor condition applications could be closed during the shutdown and H-1B processing could be delayed. ICE facilities will continue to detain people and the court systems - including presumably immigration courts - will operate as normal. But according to AOL, hiring at these agencies may be frozen: The last shutdown had a number of consequences for law enforcement and public safety operations, including reported cancellation of hiring 400 border patrol agents and cancellation of federal law enforcement recruiting programs. Processing of immigrants and non-immigrants at ports-of-entry should continue, but there could be staffing cutbacks that could cause delays. Of course, we're bound to be surprised by what develops and I'll try to report to readers news as it becomes available. I'd also welcome reports on what people are learning on their own.

PRINCE GEORGE'S COUNTY SCHOOLS CHARGED WITH H-1B VIOLATIONS

According to a press release by the U.S. Department of Labor (DOL), Maryland's Prince George's County Public Schools system was found a willful violator of the H-1B laws and regulations. DOL investigators found that PGCPS illegally reduced the wages of 1,044 foreign teachers hired under the H-1B program by requiring the payment of $4,224,146 in fees. Due to the willful nature of some of the violations, PGCPS has been assessed an additional $1,740,000 in civil money penalties and may be debarred from filing new petitions, requests for extensions or requests for permanent residency for foreign workers under any employment-based visa program. Violations are willful when an employer knew or acted in reckless disregard for whether its actions were impermissible under the law. We are not sure what types of fees the DOL found unlawful that were paid by the employees (whether worker retraining fee, USCIS filing fees or attorney fees) but due to the large amount at stake, litigation by PGCPS may be pursued... The DOL press release can be found here: http://www.dol.gov/opa/media/press/whd/WHD20110357.htm

MAN SENTENCED TO PRISON FOR FAKING H-1B TECH WORKER PETITIONS

From the San Francisco Chronicle: A Concord man was sentenced on Friday to six months in prison and three years of supervised release, for making false statements on 11 applications for high-technology worker visas, United States Attorney Melinda Haag and Patrick Durkin, Special Agent In-Charge of the Diplomatic Security Service announced. Chennupati admitted that between April 1, 2008 and March 3, 2009, he submitted 11 foreign worker petitions to U.S. Citizenship and Immigration Services that contained counterfeit job offer letters from the Gap Corporation, Wells Fargo Bank and Genentech. Chennupati also admitted that he falsely stated on the foreign worker petitions that he had 11 jobs available from these companies. According to the U.S. Attorney's Office, no high-technology worker visas were issued from Chennupati's 11 fraudulent applications. Many of the allegations lodged by critics of the H-1B program regard things already against the law. Better enforcement of existing law and focusing on bad actors is the answer instead of making things ridiculously difficult for the vast majority of employers playing by the rules. Article can be found at: http://www.sfgate.com/cgi-bin/blogs/incontracosta/detail?entry_id=85830

H-1B HEARING TODAY IN THE HOUSE

The House Immigration Subcommittee is holding a hearing on H-1B visas today. The witness list includes USCIS' Donald Neufeld of Neufeld Memo fame, Bo Cooper, a former USCIS general counsel who now practices immigration law, Ron Hira, a professor and well-known H-1B critic and Bruce Morrison, a former Congressman who chaired the House Immigration Subcommittee and has worked privately on immigration advocacy projects over the years. I hope something good will come out of this, like increasing the cap and getting rid of some ridiculous fees (although I doubt it).

USCIS BACKS DOWN FROM TEACHING HOSPITALS AFFILIATION ISSUES

USCIS is retreating from its recently changed policy challenging the affiliations of America's teaching hospitals with America's medical schools. For the 10+ years that non-profit institutions could claim H-1B cap exemptions if they had affiliations or were otherwise related to colleges or universities, hospitals that trained doctors in their residency and fellowship programs - programs that are usually run in close coordination with a medical school - have been able to work outside the normal H-1B caps. And that makes sense since we depend on these teaching hospitals to supply this country with our doctors. That's why Medicare actually underwrites the salaries paid to medical residents. Plus, we've got a massive shortage of doctors so subjecting teaching hospitals to H-1B caps works against resolving this crisis. After complaints started quickly coming in from around the country, USCIS has apparently gotten the message and announced that while it works out a more formal policy position, it will revert back to previous policy. Here is the announcement: U.S. Citizenship and Immigration Services (USCIS) announced today, in response to recent stakeholder feedback, that it is currently reviewing its policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS is temporarily applying interim procedures to H-1B non-profit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education. Effective immediately, during this interim period USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education – absent any significant change in circumstances or clear error in the prior adjudication – and, therefore, exempt from the H-1B statutory cap. However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education. Petitioners may satisfy this burden by providing USCIS with evidence such as a copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption. Furthermore, USCIS suggests that petitioners include a statement attesting that their organization was approved as cap-exempt since June 6, 2006. USCIS emphasizes that these measures will only remain in place on an interim basis. USCIS will engage the public on any forthcoming guidance. March 16, 2011 Courtesy of owr own Greg Siskind.

2012 H-1B FILING SEASON STARTS

The H-1B filing season for the 2012 cap year has started. The first day to file for an October 1, 2011 start date is April 1, 2011. Since the proposed registration has not yet been implemented, we are still filing based on the same system.
Last year the H1B quota was not used up in April and visas remained available until just a few weeks ago in late January. I doubt the cap will be hit this year on the first day or any time during the first month but believe that it’s better to play it safe at least in regard to the cases you know about.
Therefore, employers wishing to file for employees should prepare to do so now, because we can never foresee in advance how fast the quota will move and how many numbers will be used. Since these petitions cannot be filed immediately any more (they require a certified LCA to be filed), all steps must be completed prior to filing.
If you are interested in filing an H-1B petition or would like additional information, please visit our office webpage at: http://www.visalaw.com/atlanta.html or email me at kweinstock@visalaw.com.
For our doctor or physician clients, please check out our new site: http://www.physiciansimmigration.com.

USCIS PROPOSES H-1B REGISTRATION SYSTEM

USCIS is publishing tomorrow a proposed rule that could save U.S. businesses more than $23 million over the next 10 years by establishing an advance registration process for U.S. employers seeking to file H-1B petitions for foreign workers in the H-1B category.
The proposed electronic system would minimize administrative burdens and expenses related to the H-1B petition process—including reducing the need for employers to submit petitions for which visas would not be available under the statutory visa cap. While the filing fees are returned to employers if their application is not accepted, this proposed rule would eliminate the need for these employer to pay attorney fees and go through the administrative burdens (such as filing and posting the LCA -- Labor Condition Application) if they are not selected for processing.
Under the proposed rule, employers seeking to petition for H-1B workers subject to the cap would register electronically with USCIS. This process would take an estimated 30 minutes to complete. Before the petition filing period begins, USCIS would select the number of registrations predicted to exhaust all available cap visas. Employers would then file petitions only for the selected registrations.
The proposed rule was posted at the federal register today at:
http://www.ofr.gov/OFRUpload/OFRData/2011-04731_PI.pdf
This is followed by a 60-day comment period that will allow the general public to provide input on the proposed system. I am sure AILA as well as other organizations will contribute to the comments. The comment period runs for 60 days, beginning March 3, 2011, and ending on May 2, 2011. Formal comments should be filed through http://www.regulations.gov.