H-1B Cap Update
The H-1B visa is the visa category most used by companies to obtain work authorization for professionals coming from other countries. Under the current law, 20,000 visas may be issued to persons who have obtained a Master’s or higher degree from a U.S. university. 65,000 visas are allocated to other professionals, with 5400 of these visas set aside for Singapore and 1400 for Chile. The result is that only 58,200 regular track H-1B visas are available to most H-1B applicants. The CIS began accepting petitions for Fiscal Year (FY) 2010 H-1B visas from Wednesday, April 1, 2009.
As of May 11, 2009, approximately 45,000 regular track and 20,000 advanced degree track petitions had been filed. USCIS will continue to accept cap subject cases until both quotas are exhausted.
The Western Hemisphere Travel Initiative (WHTI) is a security effort coordinated by the Department of State (DOS) and the Department of Homeland Security (DHS) to tighten security at U.S. border crossings and airports. WHTI already requires that ALL persons arriving in the U.S. by airplane possess a valid passport, including U.S. citizens. A narrow exception to this rule exists for U.S. and Canadian citizens in possession of a special DHS issued travel pass called a NEXUS Air Card and mariners in possession of a U.S. Coast Guard issued “z-card,” also known as a Merchant Mariner Document.
From June 1, 2009, WHTI will apply to land border crossings and sea ports. The start date of this program has been pushed back several times from the original target date of January 28, 2008. When WHTI became effective at airports in 2007, there was huge increase in the number of U.S. citizens applying for a new passport. This resulted in delays of many months to obtain a passport, even under the expedited process. The State Department dramatically increased its staff to assist with these applications, and took steps including the re-hiring of retired foreign service officers to help with the volume. At this time, processing times have returned to normal, with clients requesting the expedite service reporting a processing time of only two weeks. However, the application of the WHTI program to land ports could dramatically increase the wait time to obtain a U.S. passport this summer. As such, anyone planning to obtain a U.S. passport in the next several months should apply as soon as possible in order to avoid any unanticipated delay in obtaining a travel document.
On or after June 1, 2009, the list of acceptable documents for U.S. and Canadian citizens to enter the U.S. by land or by sea will include: a valid passport (or U.S. citizen passport card), a DHS trusted traveler card (includes: SENTRI, NEXUS or FAST cards), an Enhanced Driver’s License (an EDL can be obtained in some U.S. states and Canadian provinces by presenting proof of citizenship), a U.S. military ID card (with proof of military travel orders), a U.S. merchant marine document, or an enhanced native American tribal ID card.
Additional information and related web links can be found on the Department of State’s website at: www.travel.state.gov.
On Wednesday, May 13, 2009 DHS Secretary Janet Napolitano testified on behalf of her agency before the Senate Appropriations Committee regarding the DHS FY 2010 Budget Request. She explained that her agency will pursue a “smart and tough” enforcement policy through its request for $112 million and 80 new positions to support improvements to the E-Verify employment eligibility verification system. Per Secretary Napolitano, “the growth of the E-Verify program will increase the need for monitoring and compliance activities to protect employees from discriminatory practices, safeguard privacy information, and enhance program efficacy.” The DHS press release can be found at: www.dhs.gov. The continuing executive and legislative push to rope employers into the realm of E-Verify continues.
Critics have complained that the E-Verify system subjects new employees and their employers to the immigration equivalent of the DMV, through which all new employees must request permission to work. For participating employers, E-Verify applies equally to citizens and non-citizens alike. At this point in time, E-Verify remains a voluntary program for employers in most states, although its use has been mandated by the state legislature in the states of Arizona, Mississippi, and South Carolina. While many employers have chosen not to use the system, and therefore may not be concerned about how well it does or does not work, there is a strong possibility that E-Verify, or a similar type of system, will become mandatory for all U.S. employers if CIR (Comprehensive Immigration Reform) is passed. As with the current law governing Forms I-9, Congress and the enforcement components of DHS appear to be equally focused on preventing unlawful employment as well as unlawful discrimination against authorized U.S. workers. Increased enforcement and oversight of employer compliance with employment verification laws is likely to grow in importance in the near and long term. Consistent with this push, DHS has announced that its immigration agents will increasingly target the employers, in contrast to past efforts that largely focused on apprehending undocumented workers.
It is important for employers to tread carefully in choosing policies that navigate the narrow path that stays within the boundaries of compliance without violating equally strict anti-discrimination provisions.
The possibility of CIR has been bouncing around for many years now. The most recent attempt, the McCain-Kennedy Immigration Reform Bill, went down in flames in 2007. The components of CIR would include a pathway to normalizing the status of the estimated 10-12 million undocumented persons now living in the U.S., an increased enforcement measure, such as requiring all employers to participate in the E-Verify system, in addition to other specific components, possibly including an increase in green card quota numbers, and special provisions for religious workers and investors who create at least 10 fulltime jobs in the U.S. Even with a national unemployment rate approaching 9%, and rates exceeding 10% in states including Michigan, South Carolina and California, CIR is openly discussed as a possibility in 2009. Reasons given for why this may occur include demographic changes in the make-up of the electorate in swing states, a need to provide better wage and working conditions for U.S. workers by reducing or eliminating the number of persons working in the underground economy, and the importance of eliminating a 10-12 million person variable in the fiscal calculations affecting Social Security and healthcare reform.