Hunton Immigration and Nationality Law Blog : Immigration Lawyer & Attorney : Hunton & Williams Law Firm : Workplace Enforcement, Immigration Visas

U.S. Citizenship and Immigration Services (USCIS) announced this afternoon that as of December 21, 2009, it has received sufficient H-1B petitions to reach the statutory cap for Fiscal Year 2010 (10/1/2009 through 9/30/2010).  The H-1B cap applies only to petitions for new employment, and generally does not affect H-1B sponsors who request extensions or a change of employers.  Petitions that were received by USCIS on December 21st are subject to a random selection process and some will ultimately be rejected.  Employers who wish to sponsor an H-1B worker should contact Hunton & Williams to determine whether an exemption from the cap may be available or to develop the best strategy for mitigating the effects of the cap being reached. 

H-1B petitions for Fiscal Year 2011 may be submitted as early as April 1, 2010, for employment beginning on October 1, 2010.

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On November 19, 2009, U.S. Immigration and Customs Enforcement (ICE) announced it would serve 1,000 Notices of Inspection on U.S. employers whose business activities affect "critical infrastructure" (i.e., public safety and national security).  ICE agents will review I-9 forms, which all U.S. employers must use to verify employees' identity and U.S. work authorization.

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As of December 14, 2009, foreign nationals who apply for immigrant visas or adjustment of status are no longer required to receive the Human Papillomavirus (HPV) vaccination.  CDC will continue to require vaccination for mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, Haemophilus influenzae type B, and hepatitis B.  Others will be required only if a public health need exists at the time, and the vaccine is (a) age-appropriate and recommended by the Advisory Committee on Immunization Practices for the general U.S. population; and (b) against a disease that could cause an "outbreak" or has been eliminated (or is being eliminated) in the United States.  For additional information, please refer to the Federal Regulations.

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On November 2, 2009, the Centers for Disease Control of the U.S. Department of Health and Human Services issued a final rule removing HIV infection from the list of "communicable diseases of public health significance," effective January 4, 2010.  The rule means that HIV-positive foreign nationals will no longer be inadmissible to the United States or require waivers in order to be approved for nonimmigrant or immigrant visas.  It also means HIV testing will no longer be part of immigration medical exams.  The entire rule may be read here.

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U.S. Citizenship and Immigration Services announced today that as of October 25, 2009, it had received all of the available 20,000 master's cap petitions, and approximately 52,800 petitions under the regular cap.  Although a total of 65,000 petitions are allowed each fiscal year, this figure includes 6,800 petitions that are reserved under treaties between the United States and Chile and Singapore.  Thus, less than 5,500 regular H-1B petitions are remaining for Fiscal Year 2010.  With more than 6,000 petitions filed during the four week period leading up to October 25th, it seems that the H-1B cap could be reached before November 25, 2009.  In light of new Department of Labor procedures that can result in preliminary steps taking several weeks to complete before an H-1B petition may be submitted, companies must identify workers that require H-1B sponsorship and commence the process as quickly as possible. Please click here for general information about the H-1B cap.

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The Supreme Court's docket for its 2009-10 term includes two key immigration cases that will affect immigrants' access to legal counsel and the federal court system.  In Padilla v. Kentucky, which is set for October 13, the Court will decide whether a criminal defense attorney must advise a foreign-born client on how a criminal case will affect the client's immigration status, and what remedies the client may seek if an attorney gives incorrect advice.  In Kucana v. Holder, which is set for November 10, the Court will decide whether federal appeals courts have jurisdiction to review certain decisions by the Board of Immigration Appeals.  More information on both cases, including copies of filed briefs, is available at the American Bar Association's public website, located here. 

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On October 7, 2009, the Department of Homeland Security officially rescinded its August 2007 rule establishing "safe-harbor procedures" for employers who receive Social Security no-match letters.  These procedures never went into effect because a federal court in California issued a preliminary injunction against the rule after the AFL-CIO and other organizations filed suit.  The rescission reinstates the former rule on what constitutes "constructive knowledge" on the part of an employer that an employee is working without authorization.  The final rule, as published in the Federal Register, may be read here.

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On September 28, 2009, DHS again extended the deadline for states to request an exemption from compliance with the REAL ID regulations, this time from October 11, 2009 to December 1, 2009.  The REAL ID Act of 2005 prohibits Federal agencies from accepting a driver's license or personal identification card for any official purpose unless the license or card has been issued by a State meeting the requirements of the Act.  In 2008, all States requested an extension of the original May 11, 2008 compliance date, and are now required to comply by January 1, 2010 unless an additional extension is requested by the new deadline.  REAL ID requires the use of digital photographs, signatures and machine readable features such as a bar code on all licenses and cards.  States must also access Federal databases to check identity and legal status prior to issuing a license or card, and electronically share personal information with all other States.

Many States have indicated that they will be unable to comply with REAL ID, claiming, among other things, that the requirements are largely ineffective and too costly to implement without any federal funding.  DHS Secretary Janet Napolitano, who had been critical of the REAL ID as Governor of Arizona, has been supportive of recent legislation that would repeal those provisions of REAL ID which are most objectionable to States, and provide some federal funding for implementation of the essential security upgrades that would still be required.

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US Immigration and Customs Enforcement (ICE) fined a Missouri poultry plant $450,000 for I-9 violations following a worksite enforcement investigation.  ICE arrested more than 130 employees who were not authorized to work in the United States.  As part of the settlement, the company agreed to train its human resource personnel on how to avoid hiring undocumented workers, and to establish a compliance program to ensure that its hiring and employment practices are consistent with US law.  In addition to the I-9 paperwork violations and violations for knowingly employing undocumented workers, two of the company's employees were convicted of harboring undocumented workers and inducing illegal aliens to remain in the United States.

With increased worksite investigations, employers should periodically conduct internal I-9 audits, and review its compliance procedures with appropriate personnel to minimize any type of fines that could be assessed in the event of a government investigation.

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