News Update - February 7, 2009H-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.
† The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004. ‡ This article © 2009 Alan Lee, Esq.
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Copyright © 2003-2012 Alan Lee,
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