Vol. VII, Issue 20 - July 20, 2010
Tuesday, July 6, the Department of Justice, with the support of the
Obama Administration, filed a lawsuit against Arizona to challenge the
state’s new immigration law, SB-1070, which was passed back in April 23,
2010. In its brief, the Department stated, “the Constitution and
federal law do not permit the development of a patchwork of state and
local immigration policies throughout the country.” The Department
further stated that SB-1070 would place considerable burdens on federal
agencies by diverting federal resources away from high-priority targets,
such as aliens with criminal record, and those associated with
terrorism, drug smuggling and gang activity. The law’s enforcement
provisions would result in harassment and detention of foreign visitors
and legal immigrants, as well as U.S. citizens, who cannot readily prove
their citizenship status. U.S. Attorney General, Eric Holder,
emphasized, “Setting immigration policy and enforcing immigration laws
is a national responsibility.” The law is viewed as exceeding
constitutional boundaries by usurping the federal government’s authority
to make and enforce immigration laws. The Department requested a
preliminary injunction to enjoin enforcement of the law, which is set to
go into effect on July 29, 2010.
The Arizona law, viewed by both
critics and proponents to be among the broadest and most stringent
immigration measure ever passed, would require police to check the
immigration status of anyone they lawfully stop or arrest if they
reasonably suspect them to be an alien who is in the country illegally.
The law would grant police broad powers to detain aliens suspected of
being in the country unlawfully. It would also criminalize an
immigrant’s failure to carry immigration documents and grants Arizona
residents the right to sue state and local agencies and officials for
strict enforcement of SB-1070. Critics of the legislation argue that the
law promotes racial profiling, while proponents claim that the Arizona
law merely enforces existing federal immigration law.
Thursday, July 15, U.S. District Court Judge Susan Bolton heard oral
arguments for the first of seven lawsuits against Arizona. The lawsuit
was brought by Phoenix police officer, David Salgado, who argued that
the new law would require him to use racial profiling in determining who
is and is not an illegal alien. He stated that his failure to do so can
subject him to termination of employment or lawsuits by those who claim
their immigration status check was motivated by their race and
ethnicity. Although she did not rule on whether to dismiss the lawsuit
or enjoin the law from taking effect, she is scheduled to hear arguments
this week in the other lawsuits, including the one brought by the
Department of Justice.
For more information on the Department of Justice lawsuit, please visit the DOJ website at http://www.justice.gov/opa/pr/2010/July/10-opa-776.html.
H-1B Program Cap Count Update
H-1B program allows U.S. businesses to employ foreign workers to
perform services in specialty occupations that require technical
expertise in specialized fields, such as scientists, engineers, or
The FY 2011 cap amount for the regular H-1B
visa category is 65,000. However, not all H-1B petitions are subject to
this cap. Up to 20,000 H-1B petitions are exempt under the H-1B
advanced degree exemption. This exemption applies to petition
beneficiaries who have obtained a U.S. master’s degree or higher.
According to the July 9, 2010 USCIS cap count, 24,800 regular H-1B
petitions and 10,600 advanced degree H-1B petitions have been accepted
or are still pending.
For more information on the H-1B program, eligibility and filing requirements, please visit the following USCIS websites: H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models and H-1B Fiscal Year (FY) 2011 Cap Season
H-2B Program Cap Count Update
H-2B Temporary Non-agricultural Workers Program permits U.S. employers
to fill temporary nonagricultural jobs by bringing foreign workers to
the United States. The current statutory cap on the H-2B visa category
is 66,000 employments per fiscal year. This cap amount is divided
equally between the two halves of the fiscal year; 33,000 visas are
reserved for the first half of the fiscal year (October 1 to March 31)
and another 33,000 are reserved for the second half (April 1 to
September 30). Although there is no carry-over of unused employment
spots from one fiscal year to another, unused cap numbers from the first
half of the fiscal year can be filled during the second half of the
Not all H-2B petitions are subject to the statutory
cap amount. In general, H-2B workers who apply to extend their stay are
exempt from the cap. Likewise, the spouse and children of H-2B workers
who qualify under the H-4 nonimmigrant classification are exempt from
the cap. Further, H-2B workers who apply for the employment as fish roe
processors, fish roe technicians and/or fish roe processing supervisors,
or perform labor or services in the Commonwealth of Northern Mariana
Islands and/or Guam between November 28, 2009 until December 31, 2014
are exempt from the statutory cap.
For more information on the H-2B Program, eligibility and filing requirements, please visit the following USCIS websites: H-2B Temporary Non-Agricultural Workers and Cap Count for H-2B Nonimmigrants.
The New 2010 Final Rule for H-2A Program
March 15, 2010, the new 2010 Final Rule for the H-2A Temporary
Agricultural Worker’s Program became effective. The enactment of the
2010 Final Rule was motivated by the Department of Labor’s conclusion
that the 2008 Final Rule provisions dealing with wages and protections
for temporary foreign and domestic workers needed improvement. The H-2A
program permits U.S. employers to bring foreign workers to the United
States to fill temporary agricultural jobs for which U.S. workers are
not available. The H-2A nonimmigrant visa classification applies
only to temporary or seasonal agricultural labor or services in the
On July 8, 2010, the Department of Labor (DOL)
announced that the new National Electronic Job Registry is now
operational for the public to access H-2A job postings by the DOL
through the internet. Public access to the job registry will be
available through the iCERT Visa Portal System at http://icert.doleta.gov.
The job registry is part of the DOL’s efforts to fulfill its regulatory
obligations under the Final Rule and to uphold its commitment to
government transparency and public access to information.
Some of the key provisions of the 2010 Final Rule include:
- Restoring the use of the USDA Farmer Labor Survey as the means to
determine accurate and fair wage for farm and livestock workers,
resulting in increased wages. The 2008 Final Rule used a wage formula
that produced inaccurate wage information and resulted in a decrease of
wages of over $1.00 per hour for workers throughout the program.
- Employers must provide documentation to the DOL establishing their
compliance with the requirement of searching for qualified U.S. workers
before bringing in foreign H-2A workers.
- Employer-provided housing for H-2A workers must be inspected and
approved as safe and healthy quarters prior to the issuance of labor
- Employer-provided transportation must meet Federal standards for
vehicle safety, vehicle insurance and driver licensure standards.
- Provide public access to H-2A job orders through a national electronic job registry.
18-Month Extension Temporary Protected Status for El Salvador
U.S. Citizenship and Immigration Services (USCIS) extended the
Temporary Protected Status (TPS) for El Salvador from the current
deadline of September 9, 2010 to March 9, 2012. The extension enables
current El Salvadoran TPS beneficiaries to re-register during the
re-registration period (July 9 - September 7, 2010) and apply for a new
Employment Authorization Document (EAD). USCIS will automatically extend
existing EADs held by El Salvadoran TPS beneficiaries for a period of
6-months ending in March 6, 2011. The 6-month EAD extension will prevent
lapse in employment authorization during the re-registration process.
Eligible TPS beneficiaries who wish to re-register must file both the
I-821, Application for Temporary Protected Status, and I-765,
Application for Employment Authorization.
For more information on the TPS extension and re-registration filing requirements, please visit the following USCIS websites: 18-Month Extension of Temporary Protected Status for El Salvador and Temporary Protected Status Designated Country - El Salvador.
6-Month Extension of Temporary Protected Status Registration Period for Haiti
U.S. Citizenship and Immigration Services (USCIS) extended the
Temporary Protected Status (TPS) registration period deadline for Haiti
from July 20, 2010 to January 18, 2011. The 18-month TPS designation for
Haiti began on January 21, 2010 and will last until July 22, 2011. TPS
designation only applies to Haitians who have continuously resided in
the United States since January 12, 2010. TPS does not apply to Haitians
who arrived in the Unites States after January 12, 2010. TPS applicants
must file both the I-821, Application for Temporary Protected Status,
and I-765, Application for Employment Authorization.
For more information on the TPS registration extension and filing requirements, please visit the following USCIS websites: USCIS Announces Six Additional Months for Haitian Nationals to Seek Temporary Protected Status and TPS Designated Country - Haiti.