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LATEST NEWS:

JANUARY 2009 VISA BULLETIN [No. 4, Volume IX]:

The DOS has released the Visa Bulletin for January 2009, with more dismal news for India and China, which are subject to "per-country" limitations. These countries are encountering only marginal advances in the Second Preference, Employment-based category, hiving progressed only one month in the past two calendar months. Third Preference, likewise remains, stagnant for the "All World" countries, while India and China are showing modest advances after the substantial retrogression at the end of the last visa year (September 2008). In the January 2009 Visa Bulletin, the State Department has declined to make any predictions as to the future advances in Employment-based categories. All family-based categories are substantially backlogged and are still generally showing only marginal advancements of less than one month per calendar month.

The DOL Has Adopted Long-Waited New H-2b Regulation

The ETA of the DOL amended its procedures for the issuance of labor certifications to employers sponsoring H-2B nonimmigrants for admission to perform temporary nonagricultural labor or services and the procedures for enforcing compliance with attestations made by those employers. This Final Rule re-engineers the application filing and review process by centralizing processing and by enabling employers to conduct pre-filing recruitment of United States (U.S.) workers. In addition, the rule enhances the integrity of the H-2B program through the introduction of post-adjudication audits and procedures for penalizing employers who fail to comply with program requirements. This rule also makes technical changes to the regulations relating to both the H-1B program and the permanent labor certification program to reflect operational changes stemming from this regulation. The migration of Prevailing Wage Determination procedures for H-1 and E-3 visas will become effective on January 1, 2010 for cases filed on or after that date, and for cases filed prior to that date, a PWD will be valid to 10/01/2010.

Although Congress has conferred the statutory authority to enforce H-2B program requirements on the DHS, recent discussions between DHS and the DOL have yielded an agreement for the delegation of H-2B enforcement authority from DHS to the DOL. This Final Rule contains the Wage and Hour Division (WHD) regulations establishing the H-2B enforcement procedures that the DOL will institute pursuant to that agreement. Separately, this Final Rule institutes conditions and procedures for the debarment of employers, attorneys, and agents participating in the H-2B foreign labor certification process. This Final Rule is effective January 18, 2009.

Chamber of Commerce Sues DHS Over Federal Contractor E-Verify Rule ©

Cited as "AILA InfoNet Doc. No. 08122341 (posted Dec. 23, 2008)"

On December 23, 2008, the US Chamber of Commerce filed a Complaint with the U.S. District Court of Maryland, southern District. The suit challenges DHS's recently promulgated rule that requires federal contractors and sub-contractors to enroll in E-verify.

Amendment of Regulations

The Department of Homeland Security (DHS) has recently amended its regulations to allow an increased period of admission and extension of stay for Canadian and Mexican citizens who seek temporary entry to the United States as professionals pursuant to the TN classification, as established by NAFTA. The final rule increases the maximum allowable period of admission for TN non-immigrants from one year to three years, and allows otherwise eligible TN non-immigrants to be granted an extension of stay in increments of up to three years instead of the current maximum of one year, and corresponding status periods for TD non-immigrants family members. This rule will reduce the administrative burden of the TN classification on USCIS, and will ostensibly ease the entry of eligible professionals to the United States.

DHS Expands US-VISIT Rule to Include LPRs in Final Rule Publication

The DHS established the United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT) in 2003 to verify the identities and travel documents of aliens. Aliens subject to US-VISIT may be required to provide fingerscans, photographs, or other biometric identifiers upon arrival at the United States. Currently, aliens arriving at a United States port of entry with a nonimmigrant visa, or those traveling without a visa as part of the Visa Waiver Program, are subject to US-VISIT requirements with certain limited exceptions. This final rule expands the population of aliens who will be subject to US-VISIT requirements to nearly all aliens, including lawful permanent residents. Exceptions include Canadian citizens seeking short-term admission for business or pleasure under B visas and individuals traveling on A and G visas, among others. This final rule is effective January 18, 2009.