Final Rule Regarding H-2A Program Is Published in Federal Register

Feb 12, 2010: Today, the Department of Labor published a final rule in the Federal Register regarding the labor certification process under the H-2A Temporary Agricultural Worker program. The goal of this final rule is to strengthen protections for both U.S. and foreign workers and to ensure the integrity of the H-2A visa program. This new rule takes effect March 15, 2010.

"This new rule will make it possible for all workers who are working hard on American soil to receive fair pay while at the same time expand opportunities for U.S. workers," said Hilda L. Solis, U.S. Secretary of Labor. "The actions that we have taken through this rulemaking also will enable us to detect and remedy different forms of worker violations."

This final rule will ensure that U.S. workers engaged in the same occupation and for the same employer as a foreign H-2A worker should not receive a lesser wage than the foreign worker, regardless of the date of hire, according to the Department of Labor. Additionally, it will create a national electronic job registry where job orders will be posted through half of the relevant H-2A contract period. Finally, the final rule creates new safety measures to ensure that employers do not shift recruitment fees, visa fees, border crossing fees and other fees required by the U.S. government to the H-2A worker.

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DHS Reports a Decrease in the Number of Illegal Immigrants Living in the United States

Feb 10, 2010: According to new data provided by the U.S. Department of Homeland Security (DHS), there are now less illegal immigrants living in the U.S. than there were two years ago. In the estimates provided by DHS, roughly 10.8 million illegal immigrants lived in the U.S. in January of this year; in 2007, that number was just about 12 million.

While there are doubts about the accuracy of the data provided by DHS, most experts agree that the number of illegal immigrants has indeed dropped. Some believe this is due to less undocumented persons entering the U.S.; others contest that the reason for this drop is because more illegal immigrants are leaving the U.S. Two causes for this decrease in numbers were cited: first, the current economic has led to less economic opportunity in this country for illegal immigrants, and second, an increase in enforcement has limited the amount of undocumented persons entering and remaining in the U.S.

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USCIS Issues Additional Guidance Regarding EAWA to Employers Filing H-1B Petitions

Feb 06, 2010: Earlier this week USCIS published additional guidance regarding the Employ American Workers Act (EAWA) for employers wishing to file H-1B petitions on behalf of skilled workers. EAWA was passed to make sure that companies that received federal funds under the Troubled Asset Relief Program (TARP) (or section 13 under the Federal Reserve Act) did not engage in hiring that would displace U.S. workers. Under EAWA, companies that received federal funding and wish to hire a new H-1B worker are categorized as “H-1B dependent employers,” and must make additional statements to the U.S. Department of Labor regarding their attempts to recruit U.S. workers in their Labor Certification Applications.

After the enactment of EAWA, USCIS revised Form I-129, the Petition for Nonimmigrant Worker, to include a question specifically asking employers if they received funding from TARP or section 13 of the Federal Reserve Act.

It should be noted that EAWA only applies to new H-1B hires and not to H-1B petitions for the changing of status of an employee currently working for an employer under another visa category. Additionally, EAWA does not apply to H-1B petitions seeking extensions of H-1B status for an employee to continue working for the same employer.

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Secretary of State Clinton Indicates Potential Changes in U.S. Immigration Policy toward Haitian Nationals

Feb 02, 2010: Earlier this week, Secretary of State Hillary Clinton indicated that the U.S. may allow an increase in Haitian immigration to the United States, in the wake of the devastation caused by the recent earthquake in that country. While the Secretary of State did not announce an official change in immigration policy, she did imply that the U.S. would be open to accepting greater amounts of immigrants from Haiti. “We are certainly looking at that and will have more to say later,” Clinton recently said at a news conference on the effects of the earthquake in Haiti.

One potential proposal, according to Lavinia Limon, the president of the U.S. Committee for Refugees and Immigrants, would be to speed up the cases of people currently approved to enter the U.S., enabling them to legally and safely enter the U.S. and escape their circumstances in their native country.

Presently, very recent changes in immigration legislation, including the extension of temporary legal status to Haitians currently in the U.S. has led to the suspension of deportation of certain Haitians. More changes may be imminent in the near future.

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