OUTSIDE THE BOX THINKING, DELIVERING CUTTING EDGE SOLUTIONS!

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After an investigation conducted by U.S. Immigration and Customs Enforcement (ICE), the Social Security Administration’s Office of Inspector General, the Missouri State Highway Patrol, the U.S. Marshals Service and the U.S. Department of Agriculture, a Missouri poultry processing plant paid $450,000 in fines as part of a settlement agreement for hiring illegal aliens.

As a result of the 2007 poultry plant investigation, ICE administratively arrested 136 illegal alien workers from Mexico and Guatemala within the plant in Cassville, MO. Two of the company’s hiring personnel were convicted of harboring illegal aliens and inducing them to remain in the U.S.

An additional provision of the settlement agreement provides that the company has to establish a compliance program to ensure that its employment procedures are in accordance with U.S. immigration laws. Additionally, the company has to train its human resource managers and employees on how to avoid hiring an illegal workforce.

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Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Centers were released on September 14, 2009 with processing dates as of July 31, 2009.

If you filed a petition with one of the Service Centers, please review the links below to determine the applicable processing time associated with your particular case.

California Service Center

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The Department of State has released its latest Visa Bulletin. The October 2009 visa bulletin still shows employment based third preference (EB-3) visas as oversubscribed while the employment based second preference (EB-2) is current for all areas of chargeability except for China and India.

Click here to view the October 2009 Visa Bulletin.

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The United States Citizenship and Immigration Service (USCIS) recently announced that the 8/7/2009 revision of Form I-9, which is currently located on the USCIS website will remain valid until 8/31/2012.

U.S. employers should no longer be using outdated versions of Form I-9. However, the Service has indicated that employers may use versions 8/7/2009 or 2/2/2009 of Form I-9 until 8/31/2012. The revision date is located in the bottom right hand corner of the form.

The updated Form I-9 is available in English and Spanish via the USCIS website. Instructions for completing Form I-9 have also been made available by the USCIS. Additionally, the USCIS has provided a 1-800 number that employers may use to order updated Form I-9 if they do not have online access.

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Beginning September 8, 2009, all Federal Contractors and Subcontractors who enter into contracts on and after September 8, 2009 must be enrolled in the online E-Verify work authorization program.

The E-Verify program is a free optional web based employment verification program that verify’s employee’s employment eligibility by submitting key information from Form I-9 into the online database.

The purpose of the program is to deter unauthorized individuals from attempting to work, while at the same time helping employers to avoid contributing to an unauthorized workforce.

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On September 4, 2009, the United States Citizenship and Immigration Service (USCIS) updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of August 28, 2009, 45,100 H-1B cap subject nonimmigrant visa petitions have been accepted by USCIS. The Service has advised that they will continue to accept petitions until the cap is reached.

Additionally, the Service has reported that they received 20,000 advanced degree H-1B petitions. Although the limit on advanced degree petitions is 20,000, past experience has tended to show that not all petitions received are approvable.

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The Department of Labor (DOL) Wage and Hour Division has recently issued an H-1B Employee Questionnaire that covers issues dealing with H-1B employment such as wages and deductions, working conditions, termination, and more…

This questionnaire has been sent via email by the DOL to an H-1B Employee, and provides that its purpose is to determine whether the particular company is being compliant with the H-1B rules and regulations.

It also provides that receipt of the questionnaire does not imply that the particular company has violated any law. H-1B employees who receive the questionnaire via email are strongly encourage to promptly respond.

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The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Office Clerk, General.”

The employer filed a LC which was accepted for processing on October 16, 2006. Form ETA 9089 provided that the State Workforce Agency (SWA) job order had been placed from September 5, 2006 until October 6, 2006. On August 10, 2007, the CO denied labor certification because the application was filed less than 30 days after the end of the job order. The Employer then submitted a request for review, requesting that its previous SWA job order, commencing on August 22, 2006, be used instead of the job order placed on September 5, 2006. Accordingly, in October of 2008, the CO thereafter denied reconsideration on the ground that the employer’s evidence did not support a changing of the SWA job orders.

The CO then forwarded the case to BALCA. The Employer filed a Statement of Intent to Proceed with the appeal, but did not file an appellate brief. The CO filed a brief arguing that its decision should be affirmed by the Board.
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The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Computer Software Engineer, Applications.”

The employer filed a LC on behalf of an alien worker and in June of 2007, thereafter the CO issued an Audit Notification letter requesting among other documents, its Notice of Filing. The Employer complied with the request; however the Notice of Filing failed to provide the rate of pay for the proffered position. In March of 2008, the CO issued a letter denying certification. In April of 2008, the Employer submitted an appeal to the Board, but failed to provide any argument as to the failure to provide the rate of pay. The CO issued a letter of reconsideration affirming the denial and provided that the grounds for denial were valid because of a violation of 20 C.F.R. § 656.10(d)(4), which requires that the Notice of Filing provide a rate of pay.

The CO then forwarded the case to BALCA. The Employer filed a Statement of Intent to Proceed, but did not file an appellate brief. The CO filed a letter brief arguing that its decision should be affirmed by the Board.

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According to a recent AILA Liaison Committee meeting, I-485, Adjustment of Status applicants who intend to file for their second or subsequent I-131 reentry permit should file with 30 days or less remaining on the previous valid I-131 document…otherwise an RFE will most likely be issued asking for the valid travel document before a new I-131 is issued to the applicant…

For more information, do not hesitate to contact our office at (240) 390-0600

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