Month: October 2010

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.

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).

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 www.immigrantjustice.org/oneyeardeadline.

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.

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.

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.

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,
H-2B.Regulation@dol.gov 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 www.regulations.gov 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.

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

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.