July 2006 Newsletter
Hot Immigration Topics for Summer 2006

July 19, 2006
By Robert D. Aronson

DEAR CLIENTS AND FRIENDS:

I am writing this Newsletter on a day when the thermometer is approaching 100 degrees, thereby slowing the pace of activity to a slow crawl. But the summer heat has not led to a slowdown in new immigration-related developments that affect many of our clients, and it is in this light that I am writing this Newsletter for our community of clients, colleagues, and friends.

IMMIGRATION REFORM DEVELOPMENTS

Certainly, the biggest ongoing story concerns legislative efforts to reform our entire immigration system. I have related in earlier Newsletters, the Senate and House of Representatives have passed substantially divergent proposals for Comprehensive Immigration Reform. Whereas the House version focuses on border security and internal enforcement measures, the Senate proposal seeks to redesign and enlarge the legal immigration benefits policies of the United States in the belief that any truly effective immigration reform initiative can only succeed if it holistically addresses all three legs of the immigration puzzle – internal enforcement/security, border protection, and immigration benefits.

At present, both Houses of Congress are conducting highly publicized open forums in various communities nationwide on the subject of immigration reform. In my own possibly jaundiced opinion, these hearings are being heavily manipulated to substantiate the opinions of partisans on each side of the immigration divide, and certainly appear to be a ploy to postpone passage of immigration reform legislation until after the Congressional elections this coming November.

As immigration reform gets bogged down in endless debate, there is a major possibility that Congress will pass certain piecemeal initiatives to assist the business community, such as H-1B cap relief, expansion of the employment-based immigrant visa quotas, and certain student-related initiatives aimed disproportionately at those studying in the high-tech academic disciplines (the so-called STEM academic areas of Science, Technology, Engineering, and Mathematics). While much of the media coverage has focused on illegal immigration, it is becoming widely acknowledged that legal immigration substantially benefits U.S. national/economic interests, and that the current employment-based immigration system is non-responsive to legitimate business demands. Accordingly, it may be an “easy sell” for the Congress to take a limited, piecemeal approach to liberalize certain relatively non-controversial aspects of legal immigration of service to the business community. Should this indeed transpire, the Congress may weasel out of the far more challenging dilemmas of a Guest Worker Program and Earned Legalization, thereby postponing yet again the resolution of how to handle this nation’s illegal immigration population.

PERM/LABOR CERTIFICATION APPLICATION DEVELOPMENTS

Since its introduction in March 2005, we have had a great deal of success in getting approvals of Labor Certification Applications filed under the PERM procedures. Essentially, this new Labor Certification Application system is a computer-based filing procedure that generally allows for expedited processing of applications, although it does raise the specter of employer audits and denials. At present, Labor Certification Applications filed under PERM for corporate personnel are generally being processed within 45-75 days; PERM-based Labor Certifications for university faculty are rather consistently being processed within 30-45 days.

The main problem encountered thus far in the PERM Program is that the system itself is so unforgiving. The Department of Labor processes these applications based upon its own software programs rather than through an individualized, personal review system. It is as though all positions need to conform to procrustean, preordained molds, and while we have generally been able to accommodate our applications to the inflexibilities of this new system, there are certain instances that simply do not neatly conform to the Department of Labor’s processing system. We, along with my colleagues in the immigration bar, have been urging the Department of Labor to reintroduce access to a real human person for nonstandard Labor Certification cases.

Labor Certification Applications filed before March 28, 2005, are being processed under the old Reduction in Recruitment (RIR) Procedures at two large Backlog Elimination Centers located in Philadelphia and Dallas. At its height, these two Centers had a backlog of roughly 363,000 pending applications. As part of its review process, the Department of Labor issues what is known as a 45-day letter which essentially is a notification to the parties that the Labor Certification file has come up for processing and gives the employer a 45-day window to register its desire for the case to go forward under the old processing system. On July 11, 2006, the Department of Labor released an announcement that all pending cases should by now have received the 45-day letter.

The Department of Labor has unfortunately denied a number of pending Labor Certification Applications under a claim that it did not receive any employer response to these 45-day letters. In a large number of instances, the Department of Labor simply did not send out these letters, meaning that cases have recurrently been denied without just cause; in other instances, an employer may have responded in a timely manner, but the response statement was not properly received at the Department of Labor.

The Department of Labor has now owned up to the fact that it has erroneously denied a number of Labor Certification Applications and through a new rule has given all employers a 30-day window of time to request the continuation of the processing of a case filed under the old Reduction in Recruitment program. This 30-day window of time starts either from the date a Labor Certification Application is denied or from July 10, 2006, whichever is later.

The Department of Labor expects to process all Labor Certification Applications filed under the old procedures by September 30, 2007, although naturally this date might slip. Thereafter, all Labor Certification Applications will be processed under the PERM Procedures at the regional processing facilities located in either Chicago or Atlanta.

H-1B CAP STRATEGIES:
ADVANCED DEGREE PROFESSIONALS & WORKING “AT” AN EXEMPTED ENTITY

The Congress created a limited relief from the H-1B quota by making available 20,000 extra H-1B visas to aliens holding Master’s Degrees or above from U.S. universities. Given that the “normal” H-1B cap for FY 2007 was reached on May 26, 2006, this Master’s Degree carve-out represents the only opportunity for H-1B approval for petitions subject to the H-1B quota.

As of July 12, 2006, U.S. Citizenship and Immigration Services (USCIS) announced that it had processed 16,008 H-1B petitions filed for Advanced Degree Professionals. Even this figure is quite imperfect, and there is an expectation that this handful of remaining numbers will get used up within the next few days. Once this occurs, there will be no H-1B visa numbers available for cap-subject filings until October 1, 2007.

Given our own high involvement with academic and research employers, we are able to exempt many of our H-1B Petitions from the quota. In particular, university and nonprofit, university-affiliated employers (as well as J-1 waivered physicians) do not fall within the H-1B quota, meaning that petitions filed on behalf of this cohort of foreign nationals are still being processed and approved.

On June 5, 2006, the USCIS issued a very important and favorable Memorandum stating that the H-1B cap exemption would extend to foreign nationals working “at” university or nonprofit university-affiliated institutions, even if the H-1B beneficiary is technically employed by a for-profit employer. This means that many for-profit research groups or faculty practice groups are now exempted from the H-1B cap provided that the H-1B beneficiary actually works on the premises of a university or non-profit, university-affiliated facility, presumably even on a part-time basis.

ASYLUM REFORM

The Office of the Ombudsman within the Department of Homeland Security issued a recommendation in March 2006 to revise the adjudication procedures for asylum applicants. Under current procedures, asylum applications are initially reviewed by an immigration examiner for a “credible fear” adjudication, which essentially is an initial hearing as to whether there may be a meritorious claim for a well-founded fear of persecution. If an alien passes this “credible fear” test, the case is then reviewed by an Asylum Officer who is specifically trained in the complex law of asylum and background country conditions so as to provide some level of assurance that the adjudication of this very important claim for immigration benefits is being handled in a dispassionate, objective manner.

The Ombudsman’s report basically advocated for the transferal of the credible fear determination to immigration inspectors within Customs and Border Protection. In short, it would lump asylum claims into the entire admissions process, thereby broadening the authority of an immigration inspector to deny admission quickly and rather effortlessly to a potential asylum applicant. The concern here is that in the interest of administrative efficiency, this approach would deprive an alien claiming a well-founded fear of persecution an elementary degree of due process protection – specifically, the right to be heard before an objective examiner.

I was in attendance this past May at a meeting chaired by USCIS Director Emilio Gonzalez, in which he forthrightly stated that the Ombudsman’s report “would never see the light of day.” On June 20, 2006, Mr. Gonzalez issued a public memorandum emphatically and unequivocally rejecting the Ombudsman’s recommendation, claiming that it would irrevocably erode the integrity of the asylum system and that under no circumstances should administrative efficiency override the basic decency of giving individuals fleeing persecution the right to a decent hearing on the merits.

So, kudos and thanks to you, Mr. Gonzalez.

EMPLOYER VERIFICATION RESPONSIBILITIES

Since the enactment of the Immigration Reform and Control Act (IRCA) of 1986, employers have been required to verify the employment eligibility of new hire employees through their completion of the I-9 Employment Verification Application. Essentially, this requires an employer to make a good-faith determination of a new hire’s employment eligibility. An employer can rely upon the facial validity of a new hire’s documents, but is not required to check out the legality of a new employee’s immigration status against any government databases. However, an employer will have an affirmative obligation to take corrective action if placed upon either actual or constructive notice regarding the employment/immigration ineligibility of an employee.

The government is currently testing out a pilot program known as the Systematic Alien Verification for Entitlements (SAVE). Once fully implemented, it will require employers to tap into databases administered by the Social Security Administration (SSA) and the Department of Homeland Security (DHS) that will indicate any immigration irregularities for job applicants.

At present, however, employers simply have an obligation to conduct a good-faith review of a new hire’s documents, which once accomplished, provides an employer “safe harbor” in the event that the employee lacks valid immigration status. The issue of concern to many employers is what signal constitutes constructive notice so as to require additional checks and/or inquires of an employee’s status.

U.S. Immigration and Customs Enforcement (ICE) has issued a proposed rule that would find an employer to have constructive knowledge of an employee’s unauthorized immigration status upon issuance of a “No Match” letter from the Social Security Administration (SSA). Such letters are issued when the name of the employee and a Social Security number does not match SSA records. Under the proposed regulation, any employer receiving a “No Match” letter must 1) take specific steps to resolve any discrepancy within 14 days of receipt of the letter; 2) complete a new Form I-9 within 60 days of receipt that the discrepancies cannot be corrected; and 3) verify the new information within 63 days of the letter’s receipt. Failure to take these corrective steps could result in employer sanctions should the employee indeed be found to lack the appropriate employment authorization.

The problem to this approach is that the SSA database is riddled with errors, resulting in the erroneous issuance of many “No Match” letters. The policy thus far has been to regard “No Match” letters as requiring corrective steps solely by the individual; now, this proposed rule would create additional obligations to employers to recheck and verify the employment eligibility of their employees. Again, this is a proposed rule that is yet to be implemented, but it is a matter of some potential concern to the employer community.

SOME FINAL PERSONAL THOUGHTS

Each year, our firm handles immigration cases for foreign nationals drawn from 85-100 different countries. We are committed to our clients not just for their immigration needs, but for their overall welfare.

We are obviously in a highly unsettled period of war, conflict, and disruption in many parts of the world. I think that by its nature, immigration to this country has an ameliorative effect that reduces suspicion and tensions among various ethnic groups if for no other reason than immigration subjects various communities to the melting pot phenomenon that characterizes and enriches life in the United States.

In particular, as we currently witness a flare-up of conflict and strife, I just want to express my own prayers for the safety and welfare of family and friends of clients living in countries or regions experiencing conflict and war.

I would like to publicly welcome two new members to our staff. Sarah Stensrud has been hired as an Associate Attorney. Prior to law school, she worked within this firm for three years as a Legal Assistant, during which time she demonstrated a strong commitment to client needs and an ardent thoroughness in her approach to work. As an Attorney, she will be handling a combination of traditional corporate and physician-related immigration matters. Our second new hire is Jennifer Johnson, a recent graduate of Northwestern University who gained considerable international experience, including a stint in the Political Section of the U.S. Embassy in El Salvador.

Our firm’s softball team in the league organized by the Minnesota State Bar Association continues to exhibit a remarkable degree on ineptitude in that we have lost every game thus far by a considerable margin. However, we have splendid uniforms and our opposition is duly impressed by our enthusiasm and level of participation. I like to think that our level of athletic ineptitude is more than counterbalanced by our intellectual prowess and professional excellence.

My colleague in the firm, Dinesh Shenoy, gave a very fine presentation on law office management at the Annual Conference of the American Immigration Lawyers Association (AILA), and has become a recurrently invited speaker at programs for the legal bar on various topics of immigration law.

I remain quite active this summer with various speaking engagements dealing with immigration legal developments. I have also undertaken an effort to meet with major corporate and university clients – most of whom are located in regions oftentimes distant from Minneapolis – to conduct workshops and discussions so as to ensure that the stakeholders in the immigration process are fully conversant with current laws and procedures. I also remain heavily involved in lobbying efforts principally aimed at beneficial legislation for International Physicians. As a member of the Board of two major immigrant and refugee rights organizations, I continue to be actively engaged in efforts to seek passage of Comprehensive Immigration Reform. I continue to believe that we have a very meaningful opportunity to pass major new legislation that will redesign our immigration system to better meet existing realities, and I hope to participate in this effort in a constructive manner.

As always, I would value your comments on this newsletter and, more generally, on your interactions with our firm. I hope you are having a good summer.

Cordially,

ROBERT D. ARONSON

This memorandum is one of a series of communications prepared as a general public service to our clients and friends. The information herein presented is not intended nor should it be utilized as legal advice on any specific situation. Furthermore, given the rapid pace of change, the veracity of this information is constantly subject to modification and/or reversal. Rather, this piece represents a good faith attempt to orient clients and other interested parties served by Aronson & Associates to current immigration developments. This piece in no manner supercedes the need to seek competent legal advice when engaged in activities carrying possible immigration-related consequences.