May 13, 2011
- H-1B Cap Update as of May 06, 2011--Still Plenty Left
- Obama's Speech on Comprehensive Immigration Reform from El Paso, TX
- June 2011 Visa Bulletin Released: EB-2 Dates for India and China Jump to October 15, 2006
- Update on DOMA and Immigration Benefits: Courts and DOJ At Odds
- USCIS Launches I-9 Central on their Website To Guide Employers and Employees
- ICE Updates STEM List, More Degrees Eligible for OPT Extension
- H-1B Audit News
H-1B Cap Update as of May 06, 2011--Still Plenty Left
According to the most recent USCIS update, the Service has received 10,200 cap-subject H-1B petitions and 7,300 exempt petitions to date for Fiscal Year 2012. These are for jobs beginning on or after October 1, 2011.
USCIS will continue to accept petitions until it has reached it's cap limit of 65,000--the first 20,000 applications for beneficiaries with Master's degrees are exempt from this cap. The relatively slow rate of application has been a continuing trend over the past few years. At the height of the program's popularity, the cap was reached in less than a day. We will keep you apprised of the cap counts as the year progresses.
Obama's Speech on Immigration Reform from El Paso, TX
On May 10, Obama spoke from the bordertown of El Paso on the importance of fixing our nation's broken immigration system. The highly-anticipated speech detailed what the administration has accomplished already in terms of border security and used this as a starting point for comprehensive reform. Border security has long been the right's contention with reform: many had argued that border security was the biggest concern--something that had to be dealt with before more substantial policy reform could take place. Obama made it clear that bipartisan support and cooperation across the aisle is the only way true immigration reform can happen, and he once again urged that legislators work together to pass reforms such as the DREAM Act.
The president articulated his vision of a reformed system encompassing four major actions: 1. Continued emphasis on border security, 2. Holding employers accountable for exploitation of undocumented workers, 3. Holding those who entered the US illegally accountable for their actions (making them admit they broke the law, forcing them to pay fines and taxes, and ensuring they don't get to "cut" the line for legalization), and 4. Broad immigration policy reform, including making it easier for the best and brightest to start businesses in the US, helping families stay together, and not punishing young immigrants for their parents' actions. View Full Transcript
June 2011 Visa Bulletin Released: EB-2 Dates Jump to October 15, 2006 for Both India and China
The State Department has released the June 2011 visa bulletin which includes a jump in dates for the EB-2 category. Both India and China have moved forward to October 15, 2006. This constitutes the second large jump in two months after unused visa numbers from the EB-1 category were reallocated.
View Full June 2011 Visa Bulletin.
Update on DOMA and Immigration Benefits: Courts and DOJ at Odds
On April 26, 2011, in the Matter of Paul Wilson Dorman, Attorney General Eric Holder vacated the decision of the Board of Immigration Appeals to deport a man who has a same-sex civil union with a US citizen. He remanded the case to the Board specifically for the purpose of determining the constitutionality of the Defense of Marriage Act (DOMA), as it relates to obtaining benefits under the Immigration and Nationality Act (INA). The decision was not released or publicized until May 05, 2011, however.
On May 06, a New Jersey judge postponed a man's deportation hearing, citing Holder's decision in the Dorman case. The man in question, Henry Velandia, had legally married his American citizen spouse Josh Vandiver in Connecticut and subsequently applied for a marriage-based green card. His application for permanent residency was denied due to DOMA's definition of "marriage," however, and Velandia was put into removal proceedings. The government notably allowed the adjournment of the case.
Judge Riefkohl postponed Velandia's case until December 2011 in order to give Holder and the appeals court time to determine if immigration benefits can in some cases be granted to foreigners with same-sex American citizen spouses. He said that there was a possibility that the definition of "marriage" could be changed or amended in the ensuing months as the BIA re-examines the Dorman case. The underlying issue here is of course the constitutionality of DOMA itself.
Read the New York Times Article on Velandia's Hearing Postponement.
However, on May 08, 2011, the DOJ cautioned that it would continue to enforce DOMA despite Holder's actions in the Dorman case and the subsequent postponement of the Velandia case. This suggests that deportations can and will continue in other immigration cases involving same-sex couples, at least for the time being.
Read the New York Times Article on DOJ's Response.
USCIS Launches I-9 Central on Their Website To Guide Employers and Employees
Today USCIS launched a resource center on its website to help guide employers and employees, providing tips and answers to frequently asked questions. The site contains step-by-step instructions for filling out the I-9 form and details the rights and responsibilities of both employers and employees. Visit I-9 Central here.
ICE Updates STEM List, More Degrees Eligble for OPT Extension
In the wake of Obama's speech in El Paso which referenced the need to keep the best and brightest minds in America, ICE expanded its list of Science, Technology, Engineering, and Math degree programs which will qualify eligible students for Optional Practical Training (OPT) extensions. The additions, which include Neuroscience, Environmental Science, Management Science, and Mathematics and Computer Science, will allow eligible candidates with degrees in these fields to work and stay in the US longer after they graduate. The OPT program allows highly-skilled foreign graduates to work in their specialized fields to extend their post-graduate training. It also allows them added time to look for jobs in their fields to get H-1B visa which would allow these bright graduates to work and live in the US for longer stretches of time as part of the temporary non-immigrant worker program.
View the full updated STEM list.
H-1B Audit News
In Administrator, Wage and Hour Div., USDOL v. Integrated Informatics, Inc., the Administrative Review Board ruled that even if it is a company's policy not to compensate its employees for travel time, a company policy is not among the exceptions to an H-1B employer's obligation to pay H-1B nonimmigrant workers their wages.
The complainant in this case was required to travel from Georgia to Florida to install equipment at a client site for his employer, Integrated. While he was paid for the two days of installation, he was not paid for the 2 days of travel to get there and back. Furthermore, the travel days were banked as part of personal time taken off from work. The ARB ruled that Integrated should have paid the complainant for four days of work as opposed to just the two required for installation.
Disclaimer: This publication is a service to our clients and friends. It is designed only to give general information on the developments actually covered. It is not intended to be a comprehensive summary of recent developments in the law, treat exhaustively the subjects covered, provide legal advice, or render a legal opinion.