USCIS Terminates California EB-5 Foreign Investor Program

The federal government has ended the Victorville, California EB-5 foreign investor program, the first time that USCIS has ended an EB-5 program. According to USCIS, the program was unable to demonstrate that it could meet the criteria to raise funds through the EB-5 program.

Victorville’s application for EB-5 status in June 2009, which enabled the city to solicit loans of $500,000 from foreign citizens, as long as those funds were used to create a minimum of 10 local jobs each. USCIS asked for further information from the city repeatedly, but did not receive more information. The final notice of termination was sent by USCIS on October 20.

Backlog of Immigration Cases Continues to Grow

A new record for the number of immigration cases awaiting review was made this September. At the end of September 2010, there were a total of 261,083 immigration cases awaiting review by the Immigration Courts, according to the Transactional Records Access Clearinghouse (TRAC). This backlog has grown by five percent since the end of June 2010 and is over 1/3 higher than the backlog reported at the end of Fiscal Year 2008. Wait times, however, have declined since the last report released by TRAC (June 2010). The average wait time for pending cases nationally is now 456 days, compared to 459 days at the end of June 2010. California has the longest average wait time (630 days). Massachusetts and Nebraska have the second and third longest average wait times, respectively (Massachusetts – 615 days; Nebraska – 519 days).

New Report Says One in Five Refugees Denied Asylum Due to Late Application Submission

According to a new report, one in five refugees is denied asylum because they did not apply within one year of arriving in the U.S. and missed the 12-month deadline required by Congress. The report states that in 46 percent of applications denied because they were submitted late, the Board of Immigration Appeals provided only one reason for the application’s denial – that it was submitted after the filing deadline.

The report was published by Heartland Alliance’s National Immigration Justice Center and Penn State Law’s Center for Immigrants’ Rights. It is available online at

The one-year deadline law was passed by Congress in 1996 and requires asylum seekers to either establish clearly and convincingly that their applications were filed within one year of their arrival or that their applications were delayed due to extraordinary circumstances.

USCIS Provides Updated Numbers for the Amount of H-1B Petitions Received for Fiscal Year 2011

Yesterday, USCIS provided updated numbers for the amounts of cap-subject H-1B petitions it has received. As of October 15, 2010, approximately 42,800 H-1B cap-subject petitions have been received and receipted. USCIS has also received and provided receipts for 15,700 H-1B petitions for aliens with master’s degrees or higher.

The H-1B standard annual cap is 65,000; the H-1B master’s exemption cap is 20,000. This year’s filing period opened on April 1, 2010. Petitions that are subject to the FY 2011 cap must request an employment start date of October 1, 2010 or after. Any petitions that request start dates prior to October 1, 2010 will be rejected by USCIS.

USCIS Provides Updated H-2B Cap Count

Last week, USCIS provided updated numbers regarding the H2B cap for the second half of Fiscal Year 2011. According to USCIS, as of October 8, the federal agency has received 9,278 petitions toward the 33,000 H-2B cap for the first half of the fiscal year. Another 33,000 H-2B visas will be available for the second half of the fiscal year as well. The current count from USCIS includes 7,875 approved visas and 1,403 petitions that are currently pending.

The H-2B visa program enables U.S, employers to bring foreign nationals to the U.S. to fill temporary non-agricultural positions. Congress has set an annual limit of 66,000 (allocated twice a year) available H-2B visas per year. Unused numbers from the first half of the year will be allocated to the second half of the year; however, any unused numbers from FY 2011 will not roll over into FY 2012.

Office of Foreign Labor Certification Suspends H-2B Regulation Mailbox

The Office of Foreign Labor Certification has temporarily suspended its H-2B regulation mailbox. The mailbox was suspended to ensure no inadvertent or incorrect submissions of comments on the just posted Notice of Proposed Rulemaking (NPRM) on the Wage Methodology for the Temporary Non-agricultural Employment in the H-2B Program. The address, will not currently be active for comment submissions.

The NPRM does, however, include instructions on how interested parties can submit public comments on the proposed rule. Comments can be submitted by visiting or by submitting written comments to Thomas Dowd, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, NW, Room N-5641, Washington, DC, 20210.

Is South Carolina the Next State to Introduce Immigration Enforcement Laws?

Lawmakers in South Carolina are currently investigating potential reforms to their state’s immigration laws. Earlier this week, a congressional judicial subcommittee listened to testimonies at a public hearing. In that hearing, Senator Glenn McConnell, who lead the meeting, commented that the federal government has not adequately enforced immigration laws and that it is now the states’ responsibilities to do so.

“We are determined to do what is necessary to keep people safe in their homes and on the streets of South Carolina…. This law has got to be enforced or this country is going to be overrun,” McConnell said in an interview with a local news station.

The state’s legislature will reconvene early next year and signs lead to it taking up this issue at that time. At the same time, state management of immigration legislation is being taken up by the Supreme Court, which, in November, will review Arizona’s recent legislation that requires companies to use the federal E-Verify program to confirm the employment eligibility of new employees.

ICE Presents Record-Breaking Immigration Enforcement Statistics for FY 2010

Earlier this week, Janet Napolitano, Secretary of the Department of Homeland Security (DHS), and John Morton, Director of U.S. Immigration and Customs Enforcement (ICE), released immigration enforcement statistics that have been achieved under the Obama administration. In their report, the two directors state that the Obama administration has imposed approximately $50 million in fines/sanctions for worksite enforcement violations. Secretary Napolitano also stressed that the Obama administration would continue to enforce immigration laws to employers through I-9 audits, fines, debarments and other enforcement strategies.

“This administration has focused on enforcing our immigration laws in a smart, effective manner that prioritizes public safety and national security and holds employers accountable who knowingly and repeatedly break the law,” said Secretary Napolitano. “Our approach has yielded historic results, removing more convicted criminal aliens than ever before and issuing more financial sanctions on employers who knowingly and repeatedly violate immigration law than during the entire previous administration.”

Key statistics presented include the following:

1) 180 owners, employers, managers and/or supervisors were criminally charged by ICE in FY 2010

2) ICE conducted over 2,200 I-9 audits in FY 2010

3) 97 businesses and 49 people were debarred by ICE in FY 2010

Supreme Court to Hear Case about Arizona E-Verify Law

Later this year, the Supreme Court will hear a case related to an Arizona law that requires the use of E-Verify, the federal online employment eligibility verification system. The case, which will be held December 8, should clarify whether states have the right to mandate the use of such a program. Opponents of the Arizona law claim it infringes on the rights of individuals, while supporters of the law state that the state has the right to monitor and remove business licenses, because it is the entity that provides those licenses.

It is believed that the decision from the Supreme Court will hold weight in more than just the Arizona law that requires the use of E-Verify. It could also provide guidance for states seeking to implement other laws related to immigration enforcement.

Local Communities May Not Be Able to Opt Out of the Secure Communities Program

Recent communication from Immigration and Customs Enforcement (ICE) implies that local communities, even those that chose to opt out, may be required to participate in the Secure Communities program. The program, which enables ICE to use fingerprints collected by state and local law enforcement officials as a means to identify illegal immigrants, is considered by many local law officials to be a detriment to their ability to provide adequate police services to their communities.

Secure Communities was widely considered to be optional and many local communities, including the District of Columbia, San Francisco and Santa Clara County (CA), had chosen to opt out of participation in the program. However, a senior ICE official recently commented that ICE will have access to fingerprints forwarded to FBI from state and local law enforcement officials, regardless of local communities’ wishes to not participate in the program.