IndiaPost.com - June 2008 immigration update

Immigration Bar Expresses Concern Regarding DOL Announcement of PERM Audits of Large Immigration Law Firm

On June 2, 2008, the DOL announced that it has begun auditing all permanent labor certification applications filed by Fragomen, Del Rey, Bernsen & Loewy LLP. The firm is the largest immigration law firm in the US. The DOL alleged that "in at least some cases the firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified US workers."

The DOL press release further notes that the audits will determine which, if any, applications should be denied or placed into department-supervised recruitment because of improper attorney involvement in the consideration of US worker applicants.

In a Q&A that was later issued by the DOL, the DOL specifically indicated that several recruitment forms drafted by some of the Fragomen attorneys instructed their clients that '"after interview, should any of the applicants appear to be qualified for the position, please contact a Fragomen attorney immediately to further discuss the candidate's background as it relates to the requirements stated for said position,' or some variation thereof."

The American Immigration Lawyers Association (AILA) wrote a letter to the Secretary of Labor, Elaine L. Chao, raising serious concerns about DOL's interpretation of the labor certification process. The AILA letter notes that while there is a DOL rule prohibiting attorneys from participation in the interviewing and consideration of candidates elicited during the PERM recruitment process, it should not prevent the role of an attorney in counseling employers during the PERM recruitment, a highly structured process governed by detailed regulations and complex administrative case law.

The AILA letter further points out that there has always been a recognition by the DOL of the role of the attorney in advising employers regarding what elements on those resumes they could or could not take into account when considering applicants.

Indeed, in the traditional pre-PERM labor certification process, State Workforce Agencies would send applicant resumes to the employer's attorney. There has developed a general consensus within the immigration bar in support of AILA's concern regarding DOL's re-interpretation of the role of attorneys in the labor certification process via a press release.

DHS Issues Supplemental Q&A on OPT Interim Rule for F-1 Students The Department of Homeland Security (DHS) issued supplemental questions and answers (Q&A) on an interim final rule, effective April 8, 2008, that extends the maximum period of optional practical training (OPT) from 12 months to 29 months for F-1 students who have completed a science, technology, engineering, or mathematics (STEM) degree and accept employment with employers enrolled in U.S. Citizenship and Immigration Services' (USCIS') E-Verify employment verification program. Currently, F-1 students who have been enrolled on a full-time basis for at least one full academic year in a certified college, university, conservatory, or seminary are eligible for 12 months of OPT to work for a U.S. employer in a job directly related to the student's major area of study.

Among other things, the supplemental Q&A notes that on April 18, 2008, USCIS announced an e-mail notification process allowing a petitioner whose pending H-1B petition on behalf of an F-1 student was randomly selected to receive an H-1B visa number for fiscal year (FY) 2009 to request change of status in lieu of consular processing, as originally indicated on the petition.

Because some FY 2009 H-1B petitions for these students already may have been approved for consular processing when USCIS published this e-mail notification process, the Q&A asks: Can the petitioner still request change of status? The answer is yes. The Q&A states that the petitioner should send an e-mail to the USCIS service center that issued the approval, using the designated e-mail address (below).

Such requests must include the H-1B receipt number, as well as the petitioner's and the beneficiary's names. If the H-1B petition and change of status application are pending, the change of status request should be submitted to the center within 30 days of the receipt notice.

In addition to including the receipt number and the name of the petitioner and beneficiary, the Q&A notes, the request also should include the beneficiary's date of birth, I-94 (Arrival/Departure Record) number, and Student and Exchange Visitor Information System (SEVIS) number.

On June 1, 2008, a number of organizations opposed to the H-1B visa program have sued the Bush administration for issuing the 17-months extension of optional practical training to foreign born graduates of US University in a federal court in New Jersey.

The organizations have argued that the administration would exceed its legal authority by extending the optional practical training from 1 year to 29 months. The law suit has been filed by Immigration Reform Law Institute and joined by the Programmers Guild and other groups, charging that the Administration's decision in April 2008 to extend the work period for students under the optional practical training provision is a little more than an effort to get around the H-1B cap limit.

US Citizenship and Immigration Services (USCIS) plans to propose disallowing concurrent filings of the I-485 (Application to Register Permanent Residence or Adjust Status) with the I-140 (Immigrant Petition for Alien Worker), and instead mandate that a worker applying for adjustment of status be the beneficiary of an approved immigrant petition before filing the adjustment application.

The Department of Homeland Security made this and other regulatory announcements in its semiannual regulatory agenda published May 5, 2008 (http://edocket.access.gpo.gov/ua080505/pdf/ua080506.pdf), which listed a targeted publication date of June 2008 for this proposed rule. Significant delays in publication dates listed in the semiannual regulatory agenda are common.

(To be continued)