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Immigration Law Update

January 19, 2009
Immigration Advisory

1. 2010 H-1B Visas

2010 H-1B visas for individuals not currently in H-1B status will likely be in high demand and run out before fiscal year 2010 begins on October 1, 2009. The 2009 H-1B visa cap for individuals not currently in H-1B status was reached within the first five days applications were accepted. Employers may first apply for H-1B visas on April 1, 2009 with a start date of October 1, 2009. This H-1B cap limitation does not apply to extensions of H-1B status or those obtaining H-1B status to teach at colleges, universities, related nonprofit or government research organizations or J waiver physicians. If your company has potential H-1B candidates working on post-education employment authorization that will expire prior to October 1, 2010, please contact us to prepare the H-1B petitions for these individuals as soon as possible to secure an available visa.

2. USCIS Revises Form I-9

On December 17, 2008, United States Citizenship and Immigration Services (USCIS) published an interim final rule revising the Form I-9, Employment Eligibility Verification Form. The rule is effective February 2, 2009.

Most significantly, the interim final rule prohibits the use of expired documents as acceptable forms of identification. The interim final rule also removes Forms I-688, Temporary Resident Card, I-688A, Employment Authorization Card and I-688B, Employment Authorization Card from List A. USCIS no longer issues these cards, and all cards in circulation have expired. The interim final rule adds to List A foreign passports containing certain machine-readable immigrant visas and passports from the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI) with valid Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association between the United States and the FSM or RMI. The interim final rule also includes technical updates and corrections.

The revised Form I-9 will be available on the USCIS website prior to February 2, 2009. Employers must use the revised Form I-9 for all new hires and reverifications beginning February 2, 2009. The current version of the Form I-9 (dated 06/05/2007) will no longer be valid for use as of that date. Employers are not required to have current or former employees complete the revised Form I-9.

3. Changes to Document Requirements at Land and Sea Ports of Entry

Beginning January 31, 2009, border crossers will be asked for citizenship and identity documents when entering the U.S. through land or sea ports of entry. U.S. and Canadian citizens should no longer expect that an oral declaration alone will be sufficient to prove identity and citizenship when entering the U.S. This change is a step towards full implementation of the Western Hemisphere Travel Initiative in June 2009. Beginning June 1, 2009, travelers will be required to present an approved travel document to enter the U.S. at land and sea ports of entry. Approved travel documents include a passport, passport card, a NEXUS, SENTRI or FAST traveler program card, or enhanced driver's license. An approved travel document is already required when arriving to the U.S. by air.

4. Changes to H-2A Program

The H-2A program allows foreign workers to enter the U.S. to fill temporary agricultural jobs. Recent changes to the program include:

  • Employers are required to notify USCIS when an H-2A worker fails to report to work within five work days of the employment start date, when the agricultural labor or services for which the H-2A workers were hired is completed more than 30 days earlier than the end date stated on the H-2A petition, or when the H-2A worker leaves the worksite or is terminated prior to completion of the labor or services for which he or she was hired.
  • Extends the time period for employers to respond to a notice of noncompliance with the notification requirements from 10 days to 30 days.
  • Allows employers to file a petition using a copy of the previously approved temporary labor certification to replace an H-2A worker who fails to report to work or who leaves.
  • Authorizes denial or revocation of an H-2A petition where the employer knows or should reasonably know that the H-2A worker was paid or agreed to pay prohibited fees as a condition of obtaining H-2A employment. Employers can avoid denial or revocation by establishing that the worker was reimbursed for the prohibited fees prior to filing the petition; the fees have not yet been paid and the agreement to pay was terminated; or where the prohibited fee was collected or agreed to by a recruiter and the petitioner notified DHS within two workdays of finding out about the agreement or payment.
  • Requires employers whose petitions have been denied or revoked based on payment of prohibited fees to demonstrate that H-2A workers have been reimbursed or cannot be located as a condition of approval of H-2A petitions filed within one year of the denial or revocation.
  • Allows H-2A workers to remain in the U.S. for an additional 30-day period if a petition is revoked based on revocation of the temporary labor certification.
  • Allows H-2A petitions to include unnamed beneficiaries for those workers who are outside of the U.S., regardless of the number of beneficiaries on the petition or whether the temporary labor certification named the beneficiaries. Beneficiaries who are in the U.S. and applying for a change of status or extension of H-2A status much be named in the petition.
  • Eliminates the requirement that workers petitioned for by a U.S. employer all be processed at the same consulate or apply for admission at the same port of entry.
  • Extends the amount of time an H-2A worker may remain the U.S. after the end of employment from 10 days to 30 days.
  • Reduces the time an H-2A worker who has spent three years in the U.S. must reside and be physically present outside of the U.S. before he or she is eligible to re-obtain H-2A status from six months to three months.
  • Allows H-2A workers who change employers to begin work with the new H-2A employer upon filing of the new H-2A petition if the new employer uses E-Verify.
  • Eliminates the ability for employers to file an H-2A petition without an approved temporary labor certification.
  • Permits approval of H-2A petitions only for nationals of certain countries. The list of countries will be printed annually in the Federal Register. The current list of 28 counties includes Mexico, Canada, and Jamaica.
  • Establishes a land-border exit pilot system. H-2A workers admitted through a port of entry participating in the program must also exit through a participating port of entry.

For more about these or any other immigration or work authorization matters, contact Kimberly A. Clarke at 616/336-6441 or Nina G. Thekdi at 248/567-7406.

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