News Update - February 7, 2009
By Alan Lee, Esq.†‡
H-1B applicants have more chance of approval this year; Department
of Labor projects implementation dates for new H-1B labor condition
application and PERM labor certification forms; and Obama administration
Attorney General considers reversing last minute ineffective assistance
of counsel ruling by Bush administration.
H-1B season is here again, but this time with a twist. From early
indications, it appears that the cap of 65,000 + 20,000 (for U.S.
master's and above advanced degree holders) will hold for some period
of time after the April 1st filing date has passed. In previous
years, the cap has closed immediately after the filing period was
opened leaving many to call the H-1B a lottery application. Many
large companies will not be sponsoring new H-1Bs in the same quantities
that they did in previous years because of the recession. The mood
of America is also being taken into account by large organizations
which are well aware of the outrage that would be felt if they sponsored
appreciable numbers of H-1Bs while laying off U.S. workers at the
same time. A recent proposed amendment to the stimulus package,
H-1B amendment No. 306, would prevent TARP (Troubled Assets Relief
Program) takers from sponsoring H-1Bs. Thus applicants for new H-1B
visas this year can expect to have more chance than in recent years
for H-1B approval if they are able to find a sponsoring employer.
In labor certification news, the Department of Labor has projected
that its new 9035 labor condition application portal will begin
receiving the new form for processing on April 15, 2009, and that
it will continue to accept the old form until May 14, 2009. In addition,
the Department has revised its 9089 PERM labor certification application
form, will begin receiving the new form on its portal on July 1,
2009, and will continue accepting the old form until July 31, 2009.
According to previous indications by the Department, the changes
on the 9035 will be more restrictive, and on the 9089 more constructive.
The new Attorney General, Eric Holder, will reexamine the Compean
case, and all immigration advocates hope that he will reverse this
last midnight ruling of the Bush AG, Michael Mukasey. The Compean
case reversed decades of case law finding that ineffective assistance
of counsel was a valid ground upon which an immigration decision
could be reversed if certain conditions were met. In the Compean
case, Mr. Mukasey wrote that ineffective assistance of counsel cases
would only be granted as a matter of grace in extraordinary circumstances
for harm by lawyers where the conduct was egregious, the alien pursued
the case with due diligence, and the alien suffered prejudice because
of counsel's acts. In his written testimony during his confirmation
process, Mr. Holder stated that he intended to reexamine the decision
as the Constitution guarantees due process of law to those who are
the subjects of deportation proceedings.
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