Immigration Update

02/14/2009: Tough Times Ahead for Professional Foreign Workers in EB-Based Nonimmigrant or Immigrant Journeys

The just relased arrests and indictments of eleven people for H-1B frauds by U.S. District Attorney in Iowa may not be taken as an isolated event or incident. It is a signal showing government's determination to crack down abuse of the employment-based nonimmigrant and immigrant proceedings for the purpose of alleged protection of U.S. workers' jobs. This is a union-backed government. Besides, current economic crisis allegedly mandates the government leaders to take an action to protect American workers' jobs. No one will be in surprise to see Senators Durbin and Grassley reintroducing sooner or later their H-1B and L-1 reform legisation which they introduced last year but failed to make it before the last Congress closed at the end of 2008. The H-1B and L-1 reform legislation will mandate the agencies' reinforcement of enforcement activities against the abuse of such visas and tighten the threshold requirements for these visas in a line similar to the TARP-funded employer H-1B rules. Reinforcement of enforcement actions is soon to be made easy because of the two developments. One is reengineering of agencies's filing system and database in a direction of "account" system for each involved employer, each representative, and each alien worker, allowing detection of violation of the rules easy. The USCIS has been pushing such reengineering process in the form of electronization of filing of petitions and applications using "account" system and building such database. The DOL has also been working on such reengineering and is scheduled to implement it beginning from May 2009 for H-1B labor condition application filing using new ETA 9035 form which is designed to accomodate such account system and dababase and from July 2009 for PERM labor certification application filing using new ETA 9089 form which is also designed to accomodate such concept. The other development that makes the government's enforcement activities easy is electronization and data-sharing system among different agencies and their database. Electronization of the processes makes such data sharing available and easy among the related agencies. Expansion of E-Verify programs allows the Social Security Administration to participate in such enforcement process. Timing of release of recent indictment of evelen alleged H-1B visa fraud offenders is in a way not just a coincident.

The Chief of DOL Division of Foreign Labor Certification, Dr. William Carlson, released as recent as February 2, 2009 that in the first quarter (October, November, December 2008) of FY 2009, they completed about 4,500 PERM applications, but in one month of January 2009 alone, they completed about 3,500 applications. But don't get excited about this statistics. He cautioned that the processing times would slow down as they feed into adjudication process investigation of unemployment conditions in various labor markets, increasingly turning cases into so-called "supervised recruitment" process considering worsening labor markets and rising unemployment. When the agency posted the supervised recruitment Q&A on its website quite some time back, we speculated that it was intended to send out a signal that they would increase supervised recruitment cases ahead. It has turned out that it was not just speculation. Worse yet, the Chief stated that once a case is turned into a supervised recruitment track, there is no set processing time implying that it can take time and time. When the PERM system is already clogged bad, the information is indeed depressing. On top of all of these, the newly designated Republican Commerce Secretary who was known to be a H-1B program supporter all of sudden backed out from participation in the Obama administration. Year 2009 may be marked as a difficult year for foreign workers, particularly professional foreign workers.

02/13/2009: Eleven Arrested by ICE for H-1B Visa Frauds After Extensive Investigation of H-1B Visa Petitions

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Source: www.immigration-law.com