Legal Updates

Fall 2007

Recent Developments in Immigration Law: Part 1

Jesse Goldstein, Debra Auerbach Clephane, Kathleen Saenz Poppenger, Vercruysse, Murray & Calzone, P.C.
Presented by the Section’s International Employment Law & Immigration Committee

Government enforcement of immigration laws is once again receiving heightened attention. As a consequence, the days of simple and straightforward rules are becoming just a memory. Today, business and legal professionals must be familiar with technical provisions, increased security measures, cross-agency cooperation, and electronic initiatives that are being developed to address national security concerns.

Year 2007, in particular, has seen several significant policy shifts and a "roller-coaster" of pronouncements by the U.S. Department of Labor ("DOL") the U.S. Department of State ("DOS"), and the U.S. Department of Homeland Security (“DHS”).¹ This article is the first in the two-part series highlighting the major events related to immigration law that have taken place over the last several months.

Major Changes to the Labor
Certification Regulations Labor certification is a required step for many foreign nationals seeking to remain permanently in the United States through their employment. The labor certification is a demonstration to the DOL that the U.S. employer has attempted to hire a U.S. worker for the position, but was unable to locate a qualified and willing individual. In order to make such a showing, the employer must advertise for the position and be able to disqualify all U.S. employment applicants for the reason that they do not meet the position’s minimum requirements.

On July 16, 2007, the DOL enacted regulations that significantly altered several important aspects of the labor certification process. The new regulations impact U.S. employers on several fronts, including the payment fees and the flexibility of labor certification use.

Restriction on Payment of Fees for Labor
Certification Processing Prior to July 16, 2007, the costs of the labor certification process could be borne by either the employer or the foreign national. In contrast, the new rule requires employers to pay all costs of preparing, filing, and obtaining a labor certification. The DOL maintains that the labor certification process is the expense of the employer, and such expense cannot become the responsibility of the sponsored employee.

The new DOL regulation specifically addresses attorney fees associated with labor certification and costs associated with recruitment. Th e change in policy potentially impacts reimbursement contracts already in place between the employer and the sponsored foreign worker. It is critical to review all current and prospective reimbursement agreements for compliance with this new rule.

Limitation on Validity of Approved Labor Certifications
Previously, there were no expiration dates on labor certifi cations, and no time limit within which to file the I-140 Immigrant Petition, which is the next step in the Green Card process. Under the new regulation, all labor certifications approved on or after the eff ective date of the DOL regulation (i.e., July 16, 2007) will expire 180 days from the date of approval. All labor certifications approved before the July 16, 2007 effective date of the regulation will expire 180 days following the effective date of the new regulations, i.e., on January 12, 2008.

Elimination of Substitutions on Labor Certifications
In the past, the DOL and the U.S. Citizenship and Immigration Services ("USCIS") have allowed the substitution of a new employee for the original employee listed on the labor certification. This permitted the employer to utilize the benefit of the approved labor certification to place another qualified foreign worker into the certified position. This ability to substitute was eliminated as of July 16, 2007.

Prohibition of the Sale, Barter or Purchase of Approved Labor Certifications
The DOL has found a high level of fraud in the dealings among employers and employees with respect to approved labor certifications and the substitution of employees in conjunction with barters or sales. The DOL has, therefore, expressly prohibited such activity in its July 16, 2007 regulation.

Debarment from the Labor Certification Program
According to the new rule, if an employer, attorney, or agent connected with a permanent labor certification is involved in either possible fraud or willful misrepresentation, the DOL may suspend the processing of any labor certification application involving that employer, attorney, or agent. Thereafter, the certifying officer may either continue to process some or all of the applications or extend the suspension until completion of any investigation and/or judicial proceeding. Th e new rule also clarifies current DOL procedures for responding to incidents of possible fraud.

An Eventful Summer Regarding Immigrant Visas
Every month, the DOS issues a Visa Bulletin which sets forth the availability of immigrant visas for both family- and employment-based categories. The July 2007 Visa Bulletin initially indicated that employment-based immigrant visas for most categories would be immediately available. However, on the first business day that applications for these visas could be made (July 2, 2007), the DOS announced that no such visas would be available for the remainder of the fiscal year. This action angered and disappointed many foreign workers seeking to adjust their status to that of lawful permanent residents, as well as their employers. In response, the USCIS re-opened the filing period for these applications through August 17, 2007.

Background on Adjustment of Status and the July 2007 Visa Bulletin
"Adjustment of status" is the process by which a foreign national physically present in the United States becomes a U.S. lawful permanent resident. In order to adjust status, an immigrant visa must be "immediately available" to the alien, and only a certain limited number of immigrant visas is available per year. On June 13, 2007, the DOS released the Visa Bulletin for July 2007. According to the Bulletin, beginning with July 2, most employment-based preference categories (some of which had been backlogged for years) would become current, meaning that immigrant visas for these categories would become immediately available. This was projected to be a limited window of opportunity, and many observers predicted that there would be another retrogression in visa availability by the end of August 2007 at the latest.

Based upon this information, many foreign workers rushed to complete their adjustment of status applications, which are lengthy submissions requiring items such as certified translations of birth certifi cates and medical examinations completed by USCIS-approved physicians. Costs for obtaining these items can easily run into the hundreds of dollars per applicant.

On Monday, July 2, 2007, the first business day covered under the July 2007 Visa Bulletin, the DOS suddenly and unexpectedly announced that it had revised the July 2007 Visa Bulletin to reflect that all employment-based immigrant visas had been allocated for fiscal year 2007 and were no longer available. Thus, all employment-based preference categories were no longer current--including several that had been current for a number of years prior to the July Bulletin.

The USCIS immediately issued an announcement on the same day, stating that all applications to adjust status filed by aliens whose priority dates were not current under the revised July Visa Bulletin would be rejected. Therefore, applications mailed to the USCIS on the preceding Friday (June 29, 2007) for delivery on Monday, July 2, 2007, were to be rejected. According to the announcement, no employment-based immigrant visas were to be available until fiscal year 2008, which begins on October 1, 2007.

Reactions to the DOS and USCIS Announcements
As could be expected, many foreign nationals were shocked and angered by the actions of the DOS and USCIS. U.S. Representative Zoe Lofgren (California) commented that "by taking this unprecedented mid-month update, the Departments of State and Homeland Security have seriously undermined the stability and predictability of U.S. immigration law. Thousands of individuals and businesses rely on the monthly bulletins to prepare and plan for the submission of applications."¹ The American Immigration Law Foundation immediately announced plans to file a lawsuit over the issue.

Rescission of the DOS and USCIS Announcements
In response to this overwhelmingly negative reaction, on July 17, 2007, the USCIS announced that it would accept employment-based applications to adjust status through August 17, 2007, for individuals who had current priority dates under the originally-published July Visa Bulletin. Th e USCIS advised that the DOS had withdrawn the revised July Visa Bulletin. In regards to the withdrawal, the USCIS Director commented that "the public reaction to the July 2 announcement made it clear that the federal government’s management of this process needs further review."² As expected, the volume of filings was extremely heavy, easily numbering in the hundreds of thousands. The September Visa Bulletin, released very soon after the August 17 filing deadline, did not list any employment-based preference categories as current, although the retrogression in some categories was more severe than in others.

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