Federally-Funded Grants Available for Public Service Organizations Working in Immigration-Related Employment Discrimination

This week the Justice Department announced that it will be providing grant funds for public education programs regarding immigration-related employment discrimination. The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC), a section of the Justice Department’s Civil Rights Division, has just announced that it aims to fund programs created and managed by public service and other organizations that provide information services to employers and employees that may be victims of immigration-related employment discrimination.

The Immigration and Nationality Act clearly prohibits discrimination in hiring, firing, and recruiting or referring for a fee in the workplace on the basis of citizenship status or national original for all citizens and non-citizens that are authorized to work in the U.S. The deadline for grant applications is April 26, 2009. Last year, the Justice Department awarded grants in amounts ranging form $40,000 to $100,000 to 11 organizations across the country.

USCIS Will Start Accepting H-1B Petitions for FY 2010 on April 1, 2009

USCIS announced late last week that it will begin accepting H-1B petitions for the Fiscal Year 2010 cap on April 1, 2009. All petitions will be considered accepted by USCIS on the date that the federal organization receives the petitions in the mail, not on the date the petitions are postmarked. Up to 65,000 H-1B petitions will be issued for Fiscal Year 2010. The first 20,000 H-1B petitions that are filed on behalf of applicants that have received masters’ degrees or higher from U.S. institutions of higher learning will be exempt from the annual cap.

Please note that petitions for H-1B employment in institutions of higher education or related nonprofit entities, or at nonprofit research organizations or governmental research organizations may be exempt from this annual cap. Requests for H-1B employment in these types of organizations may be submitted for either Fiscal Year 2009 or Fiscal 2010 and will not count toward the annual cap.

In addition, please note that USCIS will continue to process petitions filed to extend the amount of time a current H-1B worker can remain in the U.S., change the terms of employment for a current H-1B worker, allow current H-1B workers to change their employers, or allow current H-1B workers to concurrently work in a second H-1B position.

CIS Ombudsman Calls for Changes to Strengthen the EB-5 Immigrant Investor Program

A report from the Citizenship and Immigration (CIS) Services Ombudsman provides a series of recommendations for USCIS to stabilize and strengthen the Employment Creation EB-5 immigrant visa program. This program, which allocates 10,000 immigrant visas under the EB-5 category each year, currently only issues 1,000 or less of these visas per year. This underutilization of the program, the Ombudsman comments, is caused by multiple determinants. The published recommendations could potentially strengthen the program.

The following recommendations were made by the CIS Ombudsman:

(1) Finalize regulations to implement the special 2002 EB-5 legislation, which would give certain subgroups of EB-5 investors a clear pathway to fix deficiencies in their previously submitted applications.

(2) Publish Standard Operating Procedures for Form I-526, the Immigrant Petition by Alien Entrepreneur, and Form I-829, the Petition by Entrepreneur to Remove Conditions, that would specifically direct EB-5 adjudicators to not reconsider or re-adjudicate the indirect job creation process in cases at Regional Centers where there is no clear error or the evidence of fraud.

(3) Categorize more EB-5 Administrative Appeals Office decisions as “precedent/adopted” decisions in order to give relevant individuals a more clear understanding of how existing USCIS regulations relate to “given factual circumstances.”

(4) Increase the amount of formal rulemaking that would create rules that would promote stakeholder and investor confidence in the EB-5 adjudication process and in the consistency of that process.

(5) Create an inter-governmental advisory group that would consult on domestic business, economic and labor concerns related to EB-5 cases.

(6) Implement a special handling package option (with a fee) that would give EB-5 investors an option to request a more speedy adjudication of their EB-5 applications.

(7) Make the review and processing of all Regional Center EB-5 petitions/applications a priority to support the immediate creation and preservation of jobs in the U.S. (8) Create a program that would promote the EB-5 program internationally.

The CIS Ombudsman was established by the Homeland Security Act of 2002 and provides an independent analysis of problems faced by individuals and employers with U.S. immigration issues. The Ombudsman analyzes these issues and proposes potential changes that might alleviate these issues. The goal of this report is to make suggestions that can be immediately implemented to strengthen the overall U.S. economy.

E-Verify Requirement for Federal Contractors and Subcontractors Postponed Again

The new E-Verify requirement, that would have required certain federal contractors and subcontractors to electronically verify the employment eligibility of their employees using the government’s E-Verify online system, has once again been postponed. The rule, which was originally postponed from January 15, 2009 to February 20, 2009 has now been pushed back again. The initial postponement was caused by federal court litigation that sought to make it an invalid rule. The Obama administration, in response to concerns over the E-Verify requirement, have asked for additional time to review the requirement. The rule is now postponed until May 21, 2009 and may not be implemented at all, based on the results of the executive review of the requirement and the E-Verify program.

Until that date, participation by businesses, including federal contractors and lay companies, in the E-Verify program remains voluntary. The only exception to this is for employers with businesses in states that have laws requiring the use of the E-Verify program.

Senate Passes Omnibus Appropriations Bill, Extends EB-5 and E-Verify Programs

On March 9, the U.S. Senate passed the Fiscal 2009 Omnibus Appropriations bill by a voice vote. This bill, which was passed by the House of Representatives in late February is expected to be signed into law by President Obama shortly. In relation to immigration, the appropriations measures in the bill include a provision to extend the EB-5 regional center program and the E-Verify basic pilot program, both until September 30, 2009.

Important to note, however, is that the appropriations bill did not include extensions for the Religious Worker or Conrad 30 (J-1 waiver) programs. It is possible that these programs will be extended in an additional measure sometime in the future.

USCIS Updates Reference Materials for Naturalization Test

This week, USCIS updated reference material for individuals seeking naturalization. Included in the update are a number of publications, documents and reference material. These updates include the following:

1) An updated Guide to Naturalization: Included in the updated guide is a document revision that reflects the new requirement that applicants are required to submit Form N-400, the Application for Naturalization, to a USCIS lockbox for processing. The English version of this publication is available online at http://www.uscis.gov/natzguide.

2) The Citizen’s Almanac: USCIS has update the Citizen’s Almanac, to include a new message from the director of USCIS. An English version of this publication is available online at: http://www.uscis.gov/files/nativedocuments/M-76.pdf.

3) Naturalization Tests: USCIS has additionally updated its reference material for the new naturalization test. Included in this update of materials are new study versions of the test, available online in English (www.uscis.gov/files/nativedocuments/100q.pdf), Spanish (www.uscis.gov/files/nativedocuments/100q_spanish.pdf), Chinese (www.uscis.gov/files/nativedocuments/100q_chinese.pdf), Tagalog (www.uscis.gov/files/nativedocuments/100q_Tagalog.pdf ) and Vietnamese (www.uscis.gov/files/nativedocuments/100q_Vietnamese.pdf).

4) Additional updated materials include flash cards (www.uscis.gov/files/nativedocuments/M-623_red.pdf), a civics lesson study book (www.uscis.gov/files/nativedocuments/M-638_red.pdf), and vocabulary lists for the English reading test (http://www.uscis.gov/files/nativedocuments/reading_vocab.pdf), and the English writing test (http://www.uscis.gov/files/nativedocuments/writing_vocab.pdf).

Microsoft’s General Counsel Provides Insight Into the Effect of Lay-Offs on Its H-1B Program

On March 3, Bradford Smith, General Counsel for Microsoft Corp., responded to Sen. Charles Grassley’s request for more information about the company’s plans to eliminate up to 5,000 jobs over the next 18 months.

The full text of Smith’s response is online at: http://microsoftontheissues.com/cs/blogs/mscorp/archive/2009/03/03/microsoft-responds-to-senator-grassley.aspx.

Highlights of the letter include Smith’s statement that the lay-offs planned by Microsoft will occur here in the U.S. and throughout the world, with the largest amount of lay-offs occurring in Washington State (where the largest amount of Microsoft employees work). Smith reiterated that lay-offs would affect U.S. and non-U.S. citizens alike and employees inside the U.S. and throughout the world.

In addition, in his letter, he reinforced Microsoft’s belief and support of the H-1B program, stating the importance of companies like Microsoft being able to continue recruiting exceptional talent from throughout the world:

“H1-B employees have always accounted for less than 15 percent of Microsoft’s U.S. workforce, the level that is used in immigration law to determine whether a company is “H-1B dependent.” Nonetheless, the ability to tap into the world’s best minds has long been essential to our success. Although they are a small percentage of our workforce, H-1B workers have long made crucial contributions to Microsoft’s innovation successes and to our ability to help create jobs in this country. We are confident this will continue to be true in the future.”

Smith also commented in his letter that Microsoft does not plan to reduce significantly the proportion of H-1B employees in its workforce after this planned lay-off of 5,000 employees.