Client Alert

Immigration News - June 29, 2006

June 29, 2006

By Paul Hastings Professional

* USCIS Updates H-1B Count for U.S. Advanced Degree Graduates * ICE Publishes Regulations Governing Electronic Retention of Employment Eligibility Verification (Form I-9) * SAVE THE DATE - Important Immigration Seminar on September 27 and 28

USCIS Updates H-1B Count for U.S. Advanced Degree Graduates

United States Citizenship and Immigration Services (USCIS) has recently updated its website to reflect that, as of June 23, 2006, it had received 11,918 H-1B petitions that, if approved, would count against the FY 2007 cap on H-1Bs issued to graduates of U.S. advanced degree programs.  There is an annual cap of 20,000 on H-1Bs for graduates of U.S. advanced degree programs, but USCIS intends to accept 21,000 FY 2007 cap-subject filings to account for withdrawals and denials.  As noted in our earlier Client Alert, the 65,000 cap for regular FY 2007 H-1B filings was reached on May 26, 2006.

The USCIS update included an important note that the 11,918 number only includes "receipted" petitions – petitions that have both been physically delivered to USCIS and have been logged into the USCIS database.  USCIS estimates that, as of June 23, 2006, it had approximately 800 unreceipted Form I-129s awaiting data entry that it believes will count against the FY 2007 advanced degree cap.
Employers seeking to file an H-1B petition under the FY 2007 U.S. advanced degree H-1B cap should do so as soon as possible.  At the reported filing rate, the exemption for U.S. advanced degree holders will be exhausted far earlier than it has been in previous years.  This exemption may not remain available even through the summer.  Moreover, the USCIS reports on cap-subject H-1B usage may not be fully reliable.  Just a few weeks ago, USCIS reported on May 25th that there were still nearly 12,000 FY 2007 H-1B cap numbers remaining and then announced just days later that the FY 2007 H-1B cap had been reached on May 26th.  It is therefore very difficult to judge the accuracy of the U.S. advanced degree H-1B count published on the USCIS website.

ICE Publishes Regulations Governing Electronic Retention of Employment Eligibility Verification (Form I-9)

United States Immigration and Customs Enforcement (ICE) has published an interim rule amending Department of Homeland Security (DHS) regulations to implement Public Law 108-390, which provides that employers who are required to complete and retain Forms I-9, Employment Eligibility Verification, may sign and retain these forms electronically.  Under the Immigration and Nationality Act (Act), all United States employers must use Form I-9 to verify the employment eligibility and identity of employees hired to work in the United States, including U.S. citizens.

Completed Forms I-9 are not filed with the federal government.  Instead, the completed I-9 form is retained by the employer.  Employers are required to retain Forms I-9 in their own files for three years after the date of hire of the employee or one year after the date that employment is terminated, whichever is later.  The failure properly to complete and retain the Forms I-9 subjects the employer to civil fines.

As authorized by Public Law 108-390, which became effective on April 29, 2005, this interim rule permits employers to complete, sign, and store Forms I-9 electronically, as long as certain performance standards are met.  The rule also permits employers to scan and store existing Forms I-9 electronically, in compliance with such standards.  Under the terms of the interim rule, both the employer and the employee have the option of signing the I-9 form electronically.  Where employers do choose to store I-9s electronically, the rule requires employers to have reasonable controls in place to ensure that the I-9 data is secure and accurate, and to ensure that I-9s can be accessed with the same level of reliability as where I-9s are stored in paper format.  The regulations further specify that the completed I-9 form must be printable on request, and that the quality of the image must be sufficient to ensure the I-9 form is legible.  The standards also allow for data compression and formatting and permit the use of multiple electronic systems.

In conjunction with this interim rule, DHS is upgrading the downloadable PDF version of Form I-9 to enable employers and employees to sign and save the executed Form I-9 electronically.

An employer that is currently complying with the recordkeeping and retention requirements is not required to take any additional or different action to comply with the revised rules.  The revised rules simply offer an additional option and provide guidance for employers who choose to complete or store I-9s electronically.

SAVE THE DATE - Important Immigration Seminar on September 27 & 28

The Global Personnel Alliance (GPA) and Paul Hastings will sponsor a seminar on Global Immigration and Employment Issues, to be held in Washington, D.C. on September 27 & 28.  The seminar will focus on the major developments over the past year and will feature speakers from Capitol Hill, the Department of Labor and the Department of Homeland Security.  Registration information will be distributed shortly.

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