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Annually, the United States government issues a maximum of 55,000 green cards through a computer-generated random lottery drawing. Applications for the DV 2010 random lottery will be accepted October 2, 2008 through December 1, 2008. Paper entries will not be accepted, eligible participants may access the electronic Diversity Visa entry form (E-DV) to apply during this period.

These green cards are only available to those eligible participants from countries with low rates of immigration to the United States. For DV-2010, persons born in Hong Kong SAR, Macau SAR, Taiwan, Russia and Kosovo are eligible. No countries have been removed from the list of eligible countries for DV- 2010.

Natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the U.S. in the previous five years: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

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The United States Department of Homeland Security’s (DHS), United States Citizenship and Immigration Services (USCIS) Ombudsman issued a press release informing the public about the status of FBI name checks and the projected processing times for applicants filing for Naturalization . The Ombudsman is an independent office of DHS which reports directly to the DHS Deputy Secretary. The Ombudsman is responsible for assisting individuals and employers in resolving problems with the USCIS and identifying areas in which individuals and employers have problems in dealing with the USCIS.

FBI name checks are just one of several security screening tools used by the USCIS for individuals seeking immigration benefits in the U.S. The USCIS Ombudsman had identified FBI name check delays at one of the major hurdles to improved customer service at USCIS in his 2008 and 2007 Annual Reports to Congress. Fortunately, Congress responded and provided the necessary funding for USCIS and the FBI to complete a larger percentage of FBI name checks in a timely manner. USCIS met its April 2, 2008 goal by processing all name checks pending more than two years by July 2008. As of August 12, 2008, there were 95,449 FBI name checks pending, compared to 269,943 name checks pending as of May 6, 2008. Additionally, there were 61,817 name checks pending more than six months, compared to 185,162 pending for more than six months as of May 6, 2008. Although there is a sufficient backlog still to be processed, the USCIS is significantly making progress in an effort to improve service for those seeking U.S. immigration benefits.

According to the USCIS, naturalization application processing will take an average of 10-12 months nationally by the end of this month. Previously, USCIS estimated processing times of 16-18 months, then 14-16, then later to 13-15 months. The delay in processing is due to the enormous amount of applications that were submitted during the summer of 2007. Three million naturalization applicants were submitted to the USCIS compared to the 1.8 million submitted the previous year. Overall, the USCIS seems to be making considerable progress compared to past years.

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Chinese Specialty Cook.”

In the aforementioned case, the employer filed a LC on behalf of an alien worker. The significant facts of the case were: the alien signed the application on November 19, 2005; the employer’s attorney signed the application on December 13, 2005; the employer’s president signed the application on December 3, 2006; and the employer ran advertisements in a newspaper of general circulation on May 7, 2006 and May 14, 2006, and all of these facts were indicated within the application for labor certification. The CO denied certification because the advertisements used for recruitment did not occur within the requisite timeframe. The PERM regulations clearly state that advertisements for recruitment must occur at least 30 days, but no more than 180 days, prior to the date the application was filed.

The CO received request for reconsideration from the employer’s attorney. In response, the employer’s attorney submitted evidence indicating that advertisements were run in a newspaper and a journal for three consecutive days in June of 2005. Additionally, the employer’s attorney mistakenly had filed the labor application with the State Workforce Agency rather than directly with a federal Certifying Officer, and had to re-file with the latter. The employer’s attorney confessed error in the timing of the advertisements, but urged that they did in fact advertise, and did not receive any responses. The employer’s attorney alleged that the error was procedural. After reviewing the request, the CO denied reconsideration. The employer requested BALCA review.

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The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the PERM filing date and vacated the Certifying Officer’s (CO) denial of the application.

The employer, an independent school district filed a pre-PERM ETA form 750A application for permanent alien labor certification on October 24, 2004 for the position of Middle School Teacher. The work location was East Houston Intermediate School and the job description involved the language “teach middle school students…” Subsequently, on January 11, 2006, the employer filed a ETA form 9089 under PERM for the same Alien for the position of Elementary School Teacher. The work location for this application was Hilliard Elementary School, and the job description involved the language “teach elementary school students…” On the ETA form 9089, the employer indicated that it was seeking to utilize the filing date from the pre-PERM application, the date of October 24, 2004. Thereafter, the employer received a letter from the Dallas Backlog Elimination Center (BEC) in reference to the pre-PERM application. The BEC gave the employer several options to pursue. The employer responded by withdrawing 20 pre-PERM application, one of which was the present application, because applications had also been filed under PERM and were pending. In January, the following year, the employer received a letter granting certification on the PERM application. The date of acceptance was that of the newly filed PERM application, January 11, 2006. The employer requested that the CO reconsider the earlier pre-PERM application filing date. A request for additional information was issued to the employer, and the employer promptly replied. The CO subsequently denied the motion because the job descriptions, job titles, and job locations in the ETA form 750A and form 9089 were not identical. Regulations require that job descriptions be identical in order for the employer to retain the filing date from an earlier pending pre-PERM application. The CO forwarded the matter to BALCA for review.

Upon BALCA review, it was determined that the CO’s letter denying reconsideration stating that the application had been denied was clearly in error, and that there had been no intent to de-certify the application, leaving the remaining issue of whether the CO correctly determined the filing date for the PERM application.

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination

of a Certifying Office (CO) denying labor certification (LC) for an alien worker for the position of “Home Health Aide.”

In the aforementioned case, the employer, a private household filed a LC on behalf of an alien worker. The CO denied certification of the application on four grounds. The PERM regulations require that employers file completed applications for Permanent Employment Certification. The employer failed to make selections for the following questions on the ETA Form 9089: Section C-6 (Year commenced business); C-7 (Employer FEIN); F-3 (Skill level); and K-5 (Job 3 title). Subsequently, the Employer filed a request for reconsideration. In requesting reconsideration, the Employer asserted that she completed Sections C-6 and C-7 and no further information or explanation was given. After reviewing the request, the CO denied reconsideration. The CO stated that the employer’s request for reconsideration did not overcome all deficiencies noted in the determination letter. The employer requested BALCA review.

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In light of the Fragomen audit, the Department of Labor (DOL) has recently issued many documents on the topic of attorney/agent consideration of U.S. workers under the permanent labor certification program . Attorneys/agents and foreign workers do not have a designated role in the PERM recruitment process. It is the responsibility of the DOL to ensure that no foreign worker obtains a certified labor application based on an employment offer if there are U.S. workers that are able, willing, qualified and available to fill the proffered position. Additionally, an employer must make an attestation that if admitted; the foreign workers will not adversely affect the working conditions of similarly situated U.S. workers.

The purposes of the documents issued by the DOL are to clearly define and regulate the role of an attorney/agent in the consideration of U.S. workers under the PERM program. The DOL has long held the view that good faith recruitment requires that an employer’s process for considering U.S. workers who respond to certification-related recruitment closely resemble the employer’s normal consideration process. In most situations, the normal hiring process does not involve a role for an attorney/agent in assessing the qualifications of the applicants. The DOL has clearly specified the types of actions prohibited by attorneys/agents under the regulations, which include: (1) receiving resumes and applications of U.S. workers who respond to the employer’s recruitment efforts; and (2) participation in the interviewing of U.S. worker applicants. However, if the attorney/agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed, then the attorney/agent may act accordingly. In addition, the attorney/agent may provide advice throughout the consideration process on any and all legal questions concerning compliance with governing statutes, regulations and policies. It is the sole responsibility of the employer to conduct recruitment in good faith.

If the DOL finds evidence of improper attorney, agent or foreign worker involvement in the recruitment/consideration process, the DOL will audit and may subsequently require supervised recruitment to further investigate the employer’s recruitment efforts or potential debarment from immigration related programs.

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Immigration Customs Enforcement (ICE) officers have increasingly been conducting workplace raids that can have a significant impact on an employer and its workers. In a news release issued by ICE, seven companies have been notified that they will be considered for debarment from federal contracting because each of the companies has been found to be unlawfully employing persons without employment authorization.

Julie Myers, Homeland Security Assistant Security for ICE, indicated that by using debarment in appropriate circumstances, the federal government can avoid working with businesses that employ an illegal workforce. She commented in the news release that “debarment” is yet another tool that they believe will further ensure compliance with U.S. immigration employment laws.

The Federal Acquisition Regulations (FAR) provide that contractors may be considered for debarment if they have been found to have either knowingly hired an unauthorized worker or continue to employ an alien who is or becomes unauthorized.

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Every year, thousands of U.S. citizens petition the U.S. Citizenship and Immigration Services (USCIS) to allow their foreign fiancé to come to the United States under a K-1 visa . Under a K-1 visa, the foreign national must marry the petitioner within 90 days of arriving in the United States, or they must leave. After marriage, the foreign national utilizing the K-1 visa may adjust their temporary immigration statute to that of permanent residence in order to obtain the immigration benefits associated with the permanent resident status.

Once a foreign national arrives in the U.S., the Social Security Administration (SSA), under the Social Security Act, is required to assign Social Security Numbers (SSN) to “aliens at the time of their lawful admission to the United States either for permanent residence or under other authority of law permitting them to engage in employment in the United States…” Federal law authorizes K-1 visa holders to work incident to their visa status, enabling K-1 visa holders to have SSNs. Additionally, the Code of Federal Regulations requires that K-1 visa holders who seek employment must also apply for an Employment Authorization Document (EAD) with the USCIS. However, the requirement of obtaining an EAD before marriage has been relaxed due to time processing delays. Once the foreign national arrives in the U.S., they only have 90 days to marry or return to their foreign country. The normal processing time for the issuance of an EAD card can range anywhere from 2-5 months depending on the service center, therefore, the USCIS began issuing K-1 visas without the requirement of first obtaining an EAD card. The non-issuance of EADs is ultimately were the problem lies, where the fraud is consummated.

The Social Security Administration’s policy of issuing SSNs to K-1 visa holders without requiring that they present an EAD, creates opportunities for misuse. There is concern that having an SSN makes it easier for K-1 visa holders who do not marry to remain in the country after their immigration status expires. Based on the sample analysis conducted by the Office of the Inspector General (OIG), an estimated 371 SSNs were assigned during the audit period to K-1 visa holders who did not marry their American petitioner and remained in the U.S. beyond the date USCIS authorized.

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The United States Citizenship and Immigration Services (USCIS) recently completed a multi-year redesign of the naturalization test. The major goal of the redesign process is to ensure that naturalization applicants have uniform, consistent testing experiences nationwide, and to provide a fair and meaningful naturalization process. The USCIS believes that the newly designed test will help encourage citizenship applicants to learn and identify with the basic values we all share as Americans.

To accomplish their goals, USCIS piloted a new test with an overhauled English reading and writing section, as well as new history and government questions in several sites across the country. The feedback from the pilot program was used to finalize testing procedures, reading and writing prompts and new history and government questions.

Naturalization applicants will begin taking the redesigned test on October 1, 2008. To determine whether you will take the current or redesigned test, please refer to the chart provided by the USCIS.

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In a Leadership Journal entry issued by the Acting Director of the U.S. Citizenship and Immigration Services (USCIS), several rule changes to the H-2B program were proposed. Little about the program has changed to accommodate employers’ needs or improvement in worker protections. The Department of Homeland Security (DHS) is proposing to amend its regulations affecting temporary non-agricultural workers within the H-2B nonimmigrant classification and their U.S. employers. In order to better serve those participating in the program, they propose measures to remove unnecessary limitations, prevent fraud and abuse, and ultimately protect foreign workers.

The entry indicated that the proposed modifications would:

 Relax the current limitations on the ability of U.S. employers to petition for unnamed workers;

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