Check out the new HLG web-site.  We are excited about this new site which provides up to date information about our firm as well as numerous resources which we believe you may find useful including: a log-in to check the status of your pending case, step by step guides, checklists, an event calendar and various other items of interest. And, where else can you find a site that contains quotes from such a diverse group as Bono, Bob Marley, Mother Theresa, and FDR.

The Lincoln Journal Star is reporting that there has been a significant decline in the number of cases being processed by Lincoln’s regional Immigration and Citizenship Services Center (also known as the Nebraska Service Center). Director Jerry Heinauer comments that he isn’t sure how much of a decline in receipts is attributable to the economy and how much is attributable to a corresponding decline in the number of people who want to move to the United States. The total volume for the 19 different types of cases processed by the Nebraska Service Center has fallen drastically from the 750,000 range to the 600,000 range, consequently putting doubt on the job security of the 650 federal employees and 300 contract workers currently employed by the Center. The average monthly flow is approximatly 50,000, down 30,000 from the typical average of 80,000 from previous years. Although it is difficult through these numbers to draw conclusions from one year’s immigration traffic pattern, as is stated by the Lincoln Journal Star, “there are other clues to the connection between the service center’s results and the extent to which the image of the United States may be fading as an immigration destination for the time being.” For full article see: http://journalstar.com/news/local/article_df5c958e-c27f-11de-89da-001cc4c03286.html

As of July 10, 2009, approximately 44,900 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

As evidence of ICE’s new comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce, ICE has announced today a $40,000 fine settlement reached with the Krispy Kreme Doughnut Corporation for I-9 violations and for violations of the Immigration and Nationality Act. ICE conducted an I-9 inspection of Krispy Kreme after receiving information from the Ohio Butler County Sheriff’s Office which revealed the company had employed dozens of illegal aliens at one of their doughnut factories in Cincinnati.

Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual’s identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.”Employers have a responsibility to hire men and women who are authorized to work in the United States and fines are an important component of ensuring their compliance,” said Brian Moskowitz, special agent in charge of the ICE Office of Investigations in Michigan and Ohio. “ICE will use the legal tools at its disposal to address those who neglect or falter in their corporate responsibilities.”

Last week, ICE announced as part of their new initiative that 652 businesses around the country would be audited to determine their compliance with the immigration laws.

A recent Administrative Law Judge (ALJ) decision, Administrator, Wage & Hour Div. v. Itek Consulting, Inc. 2008-LCA-00046 (5/6/09), found an H-1B employer, Itek Consulting Inc. liable for back wages for periods of time when the employee was in nonproductive status. In its decision, the ALJ references the pertinent part of the Regulations, writing “Employers are required to pay H-1B workers on the date on which the worker “enters into employment” with the employer. 20 C.F.R. § 655.731(c)(6). Employers are required to pay H-1B employees the required wage for both productive and nonproductive time. Employment-related nonproductive time, or “benching,” results from lack of available work or lack of the individual’s license or permit. 8 U.S.C. § 1182(n)(2)(c)(vii); 20 C.F.R. § 655.731(c)(7)(i). An employer need not pay wages for H-1B visa workers in nonproductive status due to conditions unrelated to employment or which render the employee unable to work. 20 C.F.R. § 655.731(c)(7)(ii).”These Regulations are particularly important given the state of the economy and the fact that many employees are now on the bench.The ALJ also found that an employee did not need a SSN to begin work, only evidence of having applied for one, to be considered in an employment-related nonproductive status requiring payment. And that only pay reported to IRS met requirements as evidence of payment of prevailing wage.  For full decision see: http://www.oalj.dol.gov/Decisions/ALJ/LCA/2008/WAGE_and_HOUR_DIVISI_v_ITEK_CONSULTING_INC_2008LCA00046_(MAY_06_2009)_114836_CADEC_SD.PDF

The Dept. of Labor’s Administrative Review Board (ARB) has released a decision, reversing the Administrative Law Judge’s (ALJ) decision, finding that Pegasus Consulting Group, an IT consulting company, had “willfully violated the INA’s H-1B wage requirements”, by failing to comply with the H-1B program’s requirements. The ARB found that the evidence presented showed that Pegasus knew of its obligation to pay its H-1B employees in non-productive status or to terminate their employment. This knowledge and their failure to comply with these requirements, showed a “knowing failure” to comply with the H-1B wage requirements and, therefore, a “willful” failure to comply.” As such, the ARB found Pegasus liable of willfully violating the INA and assessed civil penalties (on top of the back wages the ALJ already previously assessed) in the amount of $5000. For full decision see: http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/LCA/05_086.LCAP.PDF

This decision is telling, particularly for IT consulting companies whose employees are in non-productive status. The holding shows that even if a company relies on an employment contract, which Pegasus did in their argument, and did take some steps towards compliance, this is not enough to protect a company from being assessed civil penalties for noncompliance.

Based upon information obtained from the recently filed lawsuit, Fragomen vs. Chao  (DOL) it is expected by many experts, that PERM cases facing an audit by the DOL will be delayed by over 1 year as the DOL attempts to follow through on its promise to audit all PERM applications filed by Fragomen.  For all of the other filers using the DOL system, it is certainly hoped that someone at the DOL will soon come to their senses, recognize the foolishness of their ways, stick their tail between their legs and stop this nonesense. We will update our readers as more news becomes available.

The October Visa Bulletin has been released.

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Please be advised that AILA, the American Immigration Lawyers Association, has just released the following announcement.

“We are hearing from multiple sources that, on Monday or Tuesday of next week, State Department plans to issue a revised Visa Bulletin for July 2007. This revised Bulletin would retrogress some or all of the employment-based categories, very likely to the point of unavailable. Reports from AILA members about unusual levels and types of activities by USCIS indicate a particular push to adjudicate employment-based adjustments currently in the pipeline so as to exhaust visa numbers for fiscal year 2007.

If this is accurate, Adjustment of Status cases (I-485 cases) filed in July will all be rejected and returned to us and no AOS (I-485 cases) could be filed in July. It would also effectively cancel all Immigrant Visa appointments at US Consulates. We will provide further updates as they become available.

HLG Immigration Alert

Everyone wants us to put on our genie’s hat, gaze into our crystal ball, and try to predict what is going to happen in the next few months. So here it goes…

Congress is set to debate CIR in May. HLG thinks that there is a reasonable chance that one house of Congress passes CIR in the May/June timeframe. And that the other house of Congress passes another CIR in June/July. With some negotiation, a compromise CIR bill could be on the president’s desk by the middle of the summer – say July.

In addition, we are also actively courting the bridge legislation that we’ve mentioned many times. HLG was privy to a meeting that took place just this week with a senior staffer in an important Senator’s office. The challenge here is to find the right must-pass legislation that can serve as a host.

Putting this all together HLG is slightly raising our latest estimate. We’re willing to print that there is a 60% chance that either CIR or Bridge legislation is passed and signed by the President by August 1. Whenever a bill is passed it will likley take an additional 30-60 days before the first visas are issued.