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Obama Commits to Immigration Reform in 2009 - April 10, 2009

Somewhat surprisingly, the Obama administration has stated that immigration reform will be on the plate this year - at least for debate.


Given the election cycle, many believe that if reform does not happen this year, it would not happen until 2011. Stay tuned.


H-1B Cap NOT Reached


In another surprise, only about half of the "regular" H-1B visa allotment was filled in the initial filing period (April 1 - 7). Therefore, all applicants for H-1Bs who filed in this window will have their cases adjudicated (and granted if found eligible). Interestingly, almost the entire allotment of 20,000 H-1Bs for persons who earned U.S. master's degree were received during this same period. This shows that the demand for H-1Bs is tied to high skill levels.

What does this mean? First, if you have a potential employee for whom you could not apply during the initial filing period (whether bachelor's or master's degree - or Ph.D. for that matter), you can still apply until the cap is reached. CIS will announce the last day of that they will take cases and will conduct a lottery to award H-1Bs received on that day.

Second, anyone who was in valid OPT status when the H-1B was filed will automatically be allowed to continue working through September 30 (unless the case is denied before then) even if the EAD expires before that date ("cap gap" work authorization).

Finally, it means that the H-1B program is working as it should. When the economy is down, employers are less likely to seek foreign talent to fill positions. Critics of the program maintain that H-1Bs are used to find "cheap labor" rather than needed skills. If this was true, employers would be more likely to seek H-1Bs in economic downturns so as to save on wages.

New I-9 and Employer Handbook

As noted last week, the new I-9 form went into effect April 3. CIS also has published a new Employer Handbook.


The major change is that expired documents are no longer acceptable for I-9 purposes. This includes U.S. Passports or the new Passport Card.


The handbook clarifies many issues, such as when to re-verify an employee with an expiring document, and has been re-drafted to be more user-friendly.


However, CIS received numerous complaints about specific situations that are not covered in the form or handbook, but decided to proceed without amendment to address these items. Employers are again left with guesswork about how to correctly fill out this one page form.


Now is a good time to re-examine your I-9 policies to make sure they conform with the new rules and to review your I-9 procedures and training.


ICE Signals New Direction in Work Site Enforcement


Janet Napolitano, Secretary for the Department of Homeland Security, delayed a series of planned raids at the end of March to assess how and when the operations were being conducted. Sources say that this move signals a coming change in work site enforcement priorities that will focus on more on the employer and less on the worker.


This could mean more administrative audits or more management prosecutions - it is too early to tell. In the only major work site operation carried out so far under this Administration, several workers were arrested, but were later released and given work permits. This is a big change from the treatment of workers in Postville, Iowa, where most of the people released on humanitarian grounds following the raid of May 12, 2008, are still without work authorization and in ankle bracelets. Still, these actions are confusing.

In Other News - for Employers

As part of the economic stimulus bill, Congress extended the HIPAA privacy and security requirements to "business associates". "Business associates" are individuals and entities that access health information in the course of providing services to a health care provider, health plan, or health care clearinghouse. Examples of clients who are business associates include information technology providers, attorneys, accountants, banks, collection agencies, third party administrators, and consultants. Previously, these business associates were only contractually obligated to comply with the HIPAA privacy regulations. Now they are required to comply not only with the privacy regulations but also the security regulations. Additionally, government enforcement efforts can now be directly targeted at the business associate.