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July Visa Bulletin; EB-2 for China and India Move Five
After months without significant
movement in the employment-based immigrant visa preference categories, the July 2011 Visa Bulletin announced a five-month jump
for the EB-2 category for Indian and Chinese nationals. Those with priority dates
on or before March 8, 2007, will be eligible to apply for adjustment of
status-or an immigrant visa-beginning on July 1, 2011. If such an application
has already been filed, these individuals will have their applications
adjudicated and, if approved, will be granted lawful permanent resident
("green card") status. The EB-3 category moved incrementally for all
Chargeability Areas Except Those Listed
Supreme Court Upholds Arizona's E-Verify Requirement
On May 26, 2011, the U.S. Supreme
Court in Chamber of Commerce v. Whiting,1
in a 5-3 decision, upheld the Legal Arizona Workers Act-a law that allows the
state to revoke the business licenses of employers that knowingly hire illegal
immigrants and requires employers in the state to use E-Verify. The Supreme
Court held that Arizona's licensing law is not preempted by the Immigration
Reform and Control Act (IRCA); therefore, Arizona may require beneficiaries of
state business licenses to use E-Verify, without running afoul of federal immigration
Chief Justice John Roberts, writing
for the majority, said that the licensing portion of the Arizona law is not
preempted by federal law because it falls under the IRCA's savings clause,
which permits state "licensing and similar laws." The state law is a
"licensing provision" that "fall[s] squarely within the federal
statute's savings clause" and "does not otherwise conflict with
federal law." The Court also found that the mandatory E-Verify requirement
does not conflict with the federal government's employment verification scheme.
The Supreme Court's decision
affirmed a U.S. Court of Appeals for the Ninth Circuit 2009 decision in Chicanos por la Causa, Inc. v. Napolitano2-that
upheld the Arizona law, rejecting arguments brought by a coalition of business
and immigrant rights groups-including the U.S. Chamber of Commerce, Arizona
Employers for Immigration Reform and Chicanos por la Causa, Inc., that
contended the law was both expressly and impliedly preempted by federal law.
The Supreme Court rejected the Chamber of Commerce's argument that the state
E-Verify mandate impedes the purpose of the federal government's voluntary
employment verification program.
In a dissenting opinion, Justice
Breyer joined by Justice Ginsburg maintained that the Arizona law does not fit
within the IRCA savings clause because it would broaden the definition of
"license" to include articles of incorporation and partnership
certificates that are not employment-related licensing systems. Justice Breyer
also said the E-Verify mandate was preempted because "by making mandatory
that which federal law seeks to make voluntary," the Arizona law stands as
an "obstacle" to the purposes and objectives set out by Congress. In
a separate dissent, Justice Sonia Sotomayor said that the majority reading of
the law "subjects employers to a patchwork of enforcement schemes similar
to the one that Congress sought to displace when it enacted IRCA."
The decision did not address
Arizona's S.B. 1070, the high-profile Arizona immigration law that
requires police to check the immigration status of individuals in certain
circumstances. The main provisions of S.B. 1070 were successfully challenged in
federal court on constitutional grounds and are on appeal in the Ninth Circuit.
Now that the Supreme Court has
appeared to give state E-Verify requirements the green light, it may be
anticipated that many localities and states, particularly in the South, may
promptly try to enact statutes similar to Arizona's. As discussed below,
Alabama enacted a mandatory E-Verify requirement for all employers on June 9,
and several bills similar to that upheld by the Supreme Court are pending in
Pennsylvania. Based on its decision in Whiting, the Supreme Court has
also remanded another long-running immigration preemption case challenging a
local Pennsylvania ordinance with similar licensing provisions, described
Employers should be aware of the
rapidly changing E-Verify landscape and should conduct periodic audits of sites
in states, counties and cities with mandatory E-Verfiy requirements, to ensure
Supreme Court Remands Hazelton Immigration Law Challenge to
In light of its decision in Chamber
of Commerce v. Whiting, the Supreme Court remanded Hazleton, Pa. v.
Lozano, Pedro, et al.,3
to the U.S. Court of Appeals for the Third Circuit for further consideration.
This case originated in 2006 and concerns an ordinance passed by then-Mayor Lou
Barletta of Hazleton, Pa. The ordinance targeted undocumented immigrants and
penalized landlords who rented to them and employers who hired them. The
ordinance was immediately challenged and in 2007 was blocked by a federal
district court in Pennsylvania. The Third Circuit upheld the lower court's
ruling, finding that the Hazleton ordinance was preempted by the federal government's
exclusive jurisdiction to regulate immigration.
It is unknown at this time how the
Third Circuit will apply the Supreme Court's decision in Whiting to the
Hazleton law, which contains provisions that go far beyond business licensing
requirements. Hazleton's law would not only suspend the licenses of employers,
but also of landlords who rent property to undocumented immigrants. It also
would prohibit businesses from recruiting, hiring, continuing to employ,
permitting, dispatching or instructing anyone who is an "unlawful
worker." The provision would prohibit "harboring," defined as
"letting, leasing, or renting to an illegal alien" in "knowing
or reckless disregard of the fact that an alien has come to, entered, or
remains in the United States in violation of law." It also would make
legal immigration status a "condition precedent" to entering into a
valid lease, and deems as breached any lease with a person lacking lawful
status. The Hazleton ordinance also provides for a private right of action for
citizens to bring a complaint alleging that a local business or landlord is
violating the law.
The Hazleton case warrants
monitoring, as similar legislation has passed or is pending in numerous states
and localities. Whatever the Third Circuit decides is likely to be challenged
again in the Supreme Court.
Alabama Enacts Toughest State Immigration Law Yet
On June 9, 2011, Alabama Gov. Robert
Bentley signed into law an immigration bill similar to Arizona's controversial
S.B. 1070. The measure goes into effect on September 1, 2011. It prohibits
transporting or housing undocumented immigrants, requires immigrants to carry
evidence of lawful status and requires police to ask for legal documents if
they have "reasonable suspicion" that someone is in the country illegally.
The law mandates E-Verify for all Alabama employers and prohibits drivers from
transporting undocumented immigrants. Similar provisions were included in
Arizona's S.B. 1070, but they were enjoined by a federal judge earlier this
year on a federal preemption theory.
The Alabama law also contains a
novel provision: requiring public schools to check the citizenship status of
their students. The measure does not prohibit illegal immigrants from attending
public schools. Lawmakers said the purpose instead is to gather data on how
many are enrolled and how the much the state is spending to educate them.
The Southern Poverty Law Center, the
National Immigration Law Center and the American Civil Liberties Union
announced that they will challenge the law in court. The U.S. Department of
Justice has not commented, but is likely to join in any lawsuit opposing the
law due to its position that immigration matters-such as those included in the
Alabama law-are reserved for the federal government.
E-Verify Launches RIDE Program to Include Driver's License
Verification; Starts with Mississippi
On June 13, 2011, U.S. Citizenship
and Immigration Services (USCIS) launched the Records and Information from DMVs for E-Verify
(RIDE) program. Once fully functional, the RIDE program will enable the
E-Verify system to check driver's license information provided by employees
against what is contained in state motor-vehicle records. Currently,
Mississippi is the only state participating. At this time, 4,336 employers
representing more than 9,000 worksites in Mississippi use E-Verify.
USCIS reports that more than 80
percent of employees present driver's licenses for I-9 completion; therefore,
this tool may be beneficial in helping to improve E-Verify's accuracy and to
combat document fraud. The agency's ultimate goal is to extend this program to
all state departments of motor vehicles (DMVs) nationwide. This is part of a
strategic expansion reported in the Government Accountability Office's December
2010 report. Prior E-Verify, enhancements included the addition of U.S.
passports to the photo-matching process in September 2010.
Employers should be aware that full
implementation of RIDE will likely lead to a large increase in tentative
nonconfirmations due to discrepancies and errors in state motor-vehicle
Five E-Verify Bills Pending in Pennsylvania Legislature
Several pieces of E-Verify
legislation are working their way through the Pennsylvania Legislature in
Harrisburg. On May 24, 2011, the Pennsylvania Senate passed S.B. 637 (42-7). This bill requires public-works
contractors and subcontractors to verify the work authorization of existing
employees through the Social Security Number Verification System (SSNVS) and to
begin using E-Verify for all new hires 60 days after the bill's enactment.
Sanctions for violation of the act include debarment from state contracting for
a minimum of 90 days. The Pennsylvania House version, H.B. 379, is awaiting action by the House State Government
Similarly, H.B. 380-the Construction Industry Employment Verification
Act-requires all employers involved in construction trades to verify the work
authorization of existing employees through the SSNVS and to begin using
E-Verify for all new hires by July 1, 2011. Employers will be required to file
annual reports verifying compliance. Failure to comply may result in forfeiture
of business licenses and revocation of articles of incorporation.
H.B. 858, known as the Fair Employment Act, would require
each entity filing an initial or renewal business registration to provide an
affidavit confirming that it has no undocumented workers on staff and that it has
enrolled in and is actively using E-Verify. A first-time failure to comply with
this requirement would result in suspension of the entity's business license
until the affidavit is submitted. The sanction for a second or subsequent
failure to comply is a minimum 20-day suspension of the business registration
and reporting of the failure to the U.S. Department of Homeland Security.
In addition to legal sanctions,
these bills provide for random audits and complaint-based investigations by
state agencies. They also contain employment protections for whistleblowers and
anti-immigration-related discrimination provisions to protect legal workers-all
of which may lead to additional administrative and litigation concerns for
Pennsylvania would have one of the
most comprehensive E-Verify legislative programs in the United States if these
bills were passed in combination with two other proposals: H.B. 379 and H.B. 355. H.B. 379 would make it unlawful for any
Pennsylvania organization or individual, including attorneys, to
"knowingly employ or permit the employment" of an undocumented
worker; and H.B. 355 would mandate E-Verify for all state agencies and funding
recipients. While many states have passed prospective E-Verify requirements,
none have so far mandated the SSNVS requirement for existing workers, and none
have singled out the construction industry.
USCIS Temporarily Suspends the Use of VIBE in the Processing
of H-2A Agricultural Visa Petitions
On June 1, 2011, USCIS announced it was suspending temporarily the use of the
Validation Instrument for Business Enterprises (VIBE) for the H-2A agricultural
guest-worker program. VIBE relies on company information contained in the Dun
& Bradstreet database. If this information does not match information
provided by a petitioning employer, the immigration petition will be placed on
hold until the records can be rectified. Usage of the tool has significantly
slowed processing of all types of business-based visa petitions, which has
greatly impacted H-2A employers due to the time sensitivity of agricultural
jobs, thus necessitating the temporary suspension. Employers contemplating
filing of any type of visa petition may want to review company records in Dun
& Bradstreet to ensure that they are correct and up-to-date.
For Further Information
If you have any questions about this
Alert, please contact any of the attorneys in our Employment, Labor,
Benefits and Immigration Practice Group or the attorney in the firm with whom
you are regularly in contact.
Disclaimer: This Alert has been
prepared and published for informational purposes only and is not offered, or
should be construed, as legal advice. For more information, please see the
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