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Friday, October 22, 2010

EB-l Strategy Necessary for Chinese and Indian Extraordinary Ability Professionals Part 2

By Charles M. Miller

In Part I. The USCIS Ombudsman 2010 Report gave discouraging news to Indian nationals who were registered as EB-3 professionals or skilled workers predicting "that many thousands of green card applicants of Indian nationality will be waiting years, if not decades. for the approval of their green card cases. " Attorney Charles M Miller forecasted that the same fate was shared by professionals who are Chinese nationals. In Part 2, we explore the nature of the EB-2 and EB-3 backlogs.

The plight of Indian and Chinese-born immigrant registrants is highlighted by remarks made by Charles Oppenheim, Chief of Immigrant Visa Control and Reporting Division at the U.S. Department of State (DOS). His office produces the annual Report of the Visa Office,issues the Visa Bulletin and updates, collects information and statistics from all consular posts for the Visa Office. Mr. Oppenheim was a guest speaker at a recent meeting of the American Immigration Lawyers Associations District of Columbia Chapter meeting. AILA InfoNet Doc.No. 10100165. (Posted 10/01/10).

Mr. Oppenheim described the demand for employment-based visa numbers. The USCIS processes 90% of employment-based immigration cases through adjustment of status.
Beginning in 2008, USCIS Service Centers started to pre-adjudicate cases and request visa numbers, requesting more employment-based visa numbers. This may be attributed to the fact that some registrants in the EB-2 and EB-3 categories were single when their petitions were filed, but they are now married and have children when their priority dates are becoming current. On the average, each immigrant visa case requires 2.5 visa numbers, while in the past the demand was typically one immigrant for each employment-based petition.

Moreover, the employers of EB-3 beneficiaries from India and China have been filing upgraded cases under the EB-2 category. This increases the demand for visa numbers allocated to the EB-2 category for Indian and Chinese nationals.

For these reasons Mr. Oppenheim forecasted that the EB-2 and EB-3 China categories would move slowly over the balance of 2010, e.g. by one or two weeks at a time for the next few Visa Bulletins. He projected that EB-2 India is expected to remain unchanged or to move very slowly forward (by a week or so). This is mainly a result of EB-3 Indian applicants (there are approximately 60,000 pending cases) transferring their priority dates into the EB-2 category and are thus taking visa numbers. Mr. Oppenheim thought that EB-3, India would similarly move very slowly over the next few Visa Bulletins - perhaps by one or two weeks at a time.

In contrast, EB-I China/India cases are not currently subject to the per country quota, because of the cross-over in that category of otherwise unused numbers from other countries. This has allowed 5,000- 6000 visa numbers to be allocated to India and China EB-l when approximately 2,800 would be the normal limit. The remaining unused EB-l numbers "fall down" into the EB-2 categories. That has allowed approximately 20,000 EB-2 numbers for India and nearly 6,500 for China. The availability of these numbers "fall across" strictly in priority date order, not by
country.

Tuesday, October 5, 2010

Is Employer Certification an Inevitable Component of Comprehensive Immigration Reform?

There any number of variations of potential future legislation that might be called “Comprehensive Immigration Reform.” However there is one certainty in every one of these pieces of potential legislation—increased compliance requirements for employers in regards to immigration-related laws. Now it seems that the idea of a CEO certification of immigration law compliance has found favor on both sides of the aisle in the Senate.

As part of the failed immigration reform compromise efforts in 2007, Senator Jeff Sessions, an advocate for strong Homeland Security worksite enforcement measures, introduced S. 1348, which would have amended INA Section 274A to provide for the Homeland Security Secretary to require certification if there is "reasonable cause" to believe that an employer was in noncompliance with the employment verification provisions of the Immigration and Nationality Act. The Sessions Amendment provided for auditing methodology and recordkeeping standards.

Now the Democrats have followed suit. Senators Menendez and Leahy introduced the Comprehensive Immigration Reform Act of 2010 (S. 3932) with almost identical provisions to the Sessions Amendment, as follows:


Comprehensive Immigration Reform Act of 2010

TITLE III, Worksite Enforcement;

Unlawful Employment of Aliens

Section 301(e), Unlawful Employment of Aliens;
compliance;

Section 301(e)(5) ORDER OF INTERNAL REVIEW
AND CERTIFICATION OF COMPLIANCE.-
If the Secretary has reasonable cause to believe that an
employer has failed to comply with this section, the
Secretary is authorized, at any time, to require that
the employer certify that it is in compliance with this
section, or has instituted a program to come into compliance.
Within 60 days of receiving a notice from the Sec-
retary requiring such a certification, the employer's
chief executive officer or similar official with respon-
sibility for, and authority to bind the company on,
all hiring and immigration compliance notices shall
certify under penalty of perjury that the employer is
in compliance with the requirements of subsections
(c)(1) through (c)(4), pertaining to document
verification requirements, and with subsection (d),
pertaining to the System (once that system is imple-
mented with respect to that employer' according to
the requirements of subsection (d)(1)), and with any
additional requirements that the Secretary may pro-
mulgate by regulation pursuant to subsections (c) or
(d) or that the employer has instituted a program to
come into compliance with these requirements. At
the request of the employer, the Secretary may ex-
tend the 60-day deadline for good cause. The Sec-
retary is authorized to publish in the Federal Reg-
ister standards or methods for such certification, re-
quire specific recordkeeping practices with respect to
such certifications, and audit the records thereof at
any time, this authority shall not be construed to
diminish or qualify any other penalty provided by
this section.

Attorney Chuck Kuck and I have recently concluded that such measures are inevitable, in our article, “The Case for the Inevitable: National Compliance Auditing Standards”, as follows:

"The time has come, not only for national model standards for immigration compliance auditing, but also for the use of competent attorney auditors, who follow generally-accepted methodology and principles The active use of a compliance program including immigration compliance auditing conducted by external attorney auditors, can also provide Sarbanes-Oxley immigration law compliance for corporate management. The authors recommend a federal requirement for an annual employer immigration compliance certification requirement, supported by attorney auditing, according to generally-accepted national standards. It is our hope that such an immigration compliance auditing reform proposal will set the groundwork for comprehensive immigration reform."

The advantage to such a federal employer certification program is that the largest companies in America would need to adopt compliance programs and administer them in an efficient manner. Such an atmosphere of compliance in America's top companies would allow the DHS Worksite enforcement efforts to focus on companies' annual reporting based on the reporting of independent external attorney auditors rather than the current policy of IRCA inspections which rely on document-by-document auditing.