Alerts and Updates

Recent Developments in Immigration Law

October 2007

United States Citizenship and Immigration Services Updates

Social Security "No-Match" Regulation Update

On October 10, 2007, the federal district court for the Northern District of California granted a preliminary injunction blocking implementation of the Department of Homeland Security's (DHS) rule regarding Social Security no-match letters, which was to take effect on September 14, 2007. The injunction is to remain in effect until the court makes a final decision. The government will likely appeal the decision, but a final decision will probably not be made before the end of the year.

The final rule will affect millions of employees, and the Social Security Administration (SSA) had planned to begin sending letters to nearly 150,000 employers.

In granting the injunction, the court determined that the plaintiffs, which included both unions and business groups, had raised sufficient concerns regarding the no-match process such that injunctive relief was appropriate to prevent irreparable harm. These concerns include the possible termination of lawfully employed workers based on incorrect SSA records. The court further held that the threat of criminal prosecution included in the no-match rule's "safe harbor" provision reflects a major change in DHS policy, and that DHS failed to follow mandated administrative requirements to effect the change.

H-2B Crisis for Seasonal, Temporary Workers

The H-2B cap was closed on the first day of the government's new fiscal year this year, October 1, 2007, thereby leaving many businesses without the ability to bring workers to the United States for the winter season. This lack of H-2B visas will leave many industries without sufficient staff to run their businesses and cause harm through the drop of clientele for surrounding businesses in affected communities.

A letter has been sent from more than 500 businesses, and 100 national, state and regional organizations, calling on the Senate and the House of Representatives to renew and again provide relief for the H-2B visa program, known as the "Save Our Small and Seasonal Business Act of 2007" (S. 988/H.R.1843). Please be sure to contact your local U.S. senators and representatives to express how this situation will affect your businesses and/or communities.

Department of State Updates

2009 Diversity Visa "Green Card" Lottery Program Begins

On October 3, 2007, the U.S. Department of State (DOS) began accepting applications for the 2009 Diversity Visa Program. Through this program, 50,000 permanent resident visas are available each year. Applications are randomly selected from lottery entrants who meet the minimum eligibility requirements. The 2009 Diversity Visa Program entry deadline is December 2, 2007, at noon EST. For more information, visit http://travel.state.gov/visa/immigrants/types/types_1318.html.

Employment-Based Immigrant Visa Availability Update

The November Visa Bulletin issued by DOS showed significant movement forward in some of the employment-based (EB) categories for immigrant visa (green card) availability.

EB-1

All countries: Current

EB-2

India: April 1, 2004 (no forward movement)
China: January 1, 2006 (no forward movement)
All other countries: Current

EB-3

India: April 22, 2001 (no forward movement)
Mexico: April 22, 2001 (no forward movement)
China: September 1, 2001 (no forward movement)
Philippines: August 1, 2002 (no forward movement)
All other countries: August 1, 2002 (no forward movement)

For a link to the current Visa Bulletin and listing of all categories, including family-based immigrant visa categories, please visit the Department of State website at: http://www.travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.

The new cut-off dates are effective on November 1, 2007. At that time, foreign nationals either may file their application for adjustment of status to permanent residence or may apply for an approval of their immigrant visa at a U.S. consular post abroad, if their immigrant visa priority date is before the cut-off date in their category outlined above.

Lengthy EB-quota immigrant visa backlogs continue to prevent many foreign workers who qualify under EB-3 classification from securing final green card approval for many years. Indian and Chinese nationals continue to experience the greatest delays.

DOS has indicated that some forward movement of the dates may be possible for December 2007.

Duane Morris is working with clients with current priority dates to gather the documentation and prepare applications for those now eligible to apply for permanent residence.

Department of Labor Updates

The Department of Labor (DOL) has announced that, as of September 30, 2007, it has completed nearly 99% of its backlog in processing cases filed under the Traditional and Reduction in Recruitment styles of Permanent Labor Certification applications. DOL confirmed that the remaining applications are awaiting responses from employers and expects to complete all processing in December.

For many employers, this means the end of their leftover applications and the exclusive use now of the PERM-style labor certifications. While this is good news because of the quicker processing being experienced in PERM cases, it also means the end of some employees' "safe haven" for the extension of H status based solely on long-pending labor certifications. Employers should therefore start the labor certification process for employees well in advance of the fifth year of H status for their workforce.

For Further Information

If you have any questions about this Alert or would like more information, please contact one of the attorneys in our Immigration Law Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.