American Recovery and Reinvestment Act Places Certain Prohibitions Regarding the Hiring of H-1B Workers

Early last week, President Obama signed the American Recovery and Reinvestment Act into law. The act, a massive spending bill that allocates nearly $800 billion in federal funds and tax cuts to aid the country in recovering from the current economic slump. As part of the act, limitations have been placed on recipients of funds from the Troubled Assets Relief Program or certain other federal funds from; these recipients will be severely restricted in their ability to hire new H-1B temporary workers.

According to the act, recipients of these funds must be considered “H-1B Dependent” employers. Under current H-1B dependent regulations, employers are prohibited from displacing U.S. workers during the 90-day period before and after filing H-1B petitions. In addition, they are prohibited from placing an H-1B worker with another employer that has displaced a U.S. worker within a 90 day period before and after that job placement.

Finally, the employer is required by law to take what is called “Good Faith Steps” to recruit U.S. workers for jobs they propose to fill with an H-1B worker; any U.S. worker who applies for and is at least equally qualified for the position must be hired over the proposed H-1B worker.

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DHS Publishes Final Rule Regarding Employment Authorization/Verification of Aliens in the Armed Forces

The Department of Homeland Security (DHS) has amended its regulations regarding employment authorization for aliens that are enlisted in the U.S. Armed Forces. In a final rule published recently, DHS states its final rule will provide for employer-specific employment authorization for some aliens that are lawfully enlisted in the U.S. Armed Forces and those whose enlistment the Secretary of Homeland Security considers vita to the national interest of the U.S.

In addition, the final rule adds the military identification card as an acceptable document for establishing employment eligibility and identity in the completion of Form I-9, the Employment Eligibility Verification form. Note that this card is only valid as verification when the Armed Forces is using the card as a means to verify employment eligibility of aliens that are lawfully enlisted in the U.S. Armed Forces.

This rule became effective on February 23, 2009.

Obama Voices Interest In Comprehensive Immigration Reform

In a recent interview on the Univision Spanish-language radio show, Piolin por la Manana (Piolin in the Morning), President Obama informed host Eddie “Piolin” Sotelo that he soon intends to address the topic of comprehensive immigration reform.

“It’s going to take some time to move that forward, but I’m very committed to making it happen,” said Obama. In addition, Obama commented to Sotelo that his administration intends to start the process of drawing up new legislation for comprehensive immigration reform over the next several months.

Sotelo, a well-known radio host in the Latino community was a strong supporter of the last attempt at comprehensive immigration reform, the Kennedy-McCain Bill of 2007.

Regional Center Proposals Under the Immigrant Investor Pilot Program to Expire

Earlier this week, USCIS posted a reminder that Regional Center provisions related to the EB-5 Immigrant Investor Pilot program will expire at midnight on March 6, 2009. This expiration date will affect all Regional Center proposals and some Forms I-526, the Immigrant Petition for Alien Entrepreneurs, and Forms I-485, the Application to Register Permanent Residence or Adjust Status, related to Regional Centers’ reliance on indirect job creation analyses.

The previous five-year extension of the Immigrant Investor Pilot Program was set to expire on October 1, 2008; however legislation approved just before that date extended the program until march of this year. If this ‘sunset’ date is not extended again, those affected Regional Center sponsors and some Regional Center affiliated I-526 petitioners will no longer be able to benefit from indirect job creation after March 6. In addition, no new Regional Center proposals will be accepted by USCIS as of March 7, 2009.

Fencing Between U.S. and Mexico Near Complete, Faces Issues

The Department of Homeland Security (DHS) has nearly completed fencing along the United States’ southwest border, a key component of the Secure Border Initiative, and the federal organization is now moving forward with the technological aspects of the initiative, says representatives of DHS. The final 66 miles of the fence will be completed in the next few months, says DHS, leading to a total of 670 miles of fencing between the U.S. and Mexico. The next step in the process is to begin utilizing sensors, cameras and control towers along the border to monitor activity.

The technology component of the Secure Border Initiative will include towers that have radar stations, day and night cameras and data feeds from sensors in the ground that will enable DHS to monitor movements and actions near the fence between the two nations. These towers will be powered by solar energy and electricity when possible. While there are some issues with these new towers, DHS says, the issues are minor and the federal organization sees them as manageable.

This spring DHS border patrol agents will test two towers in the Tucson, AZ are. Deployment will continue after the successful testing of these two stations with a complete installation aimed for 2011 or 2012.

The Secure Border Initiative is not without its opponents, however, and some of those are within the U.S. government. The Government Accountability Office has voiced its concerns that the program is over budget and is facing massive scheduling delays. GAO has presented a letter to the U.S. Congress detailing these problems and its suggestion for ways to better use funds allotted for this program. In addition, the Secure Border Initiative may face opposition from the new secretary of DHS, Janet Napolitano. When governor of Arizona, Napolitano was not a supporter of the border fence initiative and may now use her newest station to hinder the progress of the controversial initiative.

Secretary of Homeland Security Publishes Countries Eligible for H-2B Program

Late last year, the Department of Homeland Security (DHS) published a final rule, “Changes to Requirements Affecting H-2B Nonimmigrants,” which gave the Secretary of Homeland Security the power to publish a list of ‘designated’ countries whose residents could be beneficiaries of H-2B visas in the U.S. The initial list, recently published, lists countries that are essential for the H-2B program’s success and have vocalized their cooperation in the repatriation of any of their residents that have received final orders of removal from the U.S. Under current regulations, only nationals of the countries on this list (or those that have made special arrangements with DHS) may apply for and be approved for H-2B status.

Residents of the following countries are eligible to participate in the H-2B program:

Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Indonesia, Israel, Jamaica, Japan, Mexico, Moldova, New Zealand, Peru, Philippines, Poland, Romania, South Africa, South Korea, Turkey, Ukraine and the United Kingdom.

Please note that this notice and the above list will not affect the immigration status of any nonimmigrant’s currently in the U.S. under H-2B status.

U.S. Senate Passes SCHIP Act, Which Will Remove 5-Year Waiting Period for Permanent Residents

Last week, the U.S. Senate voted in favor of the Children’s Health Insurance Program Reauthorization Act of 2009, which had been approved by the House of Representatives a week prior. The bill, which President Obama is expected to sign, will renew and expand the State Children’s Health Program, also known as SCHIP. SCHIP is a federal program that gives matching funds to states to provide health insurance for the children of families that make too much to qualify for Medicaid, but not enough to afford private health insurance.

The Act also includes a provision that would repeal the five-year waiting period for legal immigrants. Today, permanent residents of the U.S. are required to wait five years before they are eligible for Medicaid or SCHIP. Once signed into law, this act will remove that waiting period provision and will open up the children of permanent residents to be eligible to receive this federally-funded health insurance coverage.