News Update - May 28, 2011

Supreme Court upholds Arizona law on mandatory E-Verify and Illegal hiring licensing penalties; Much controversy now on B-1 in lieu of H-1B visas; U.S.C.I.S. developing proposed rule for mandatory electronic filing of applications.

The Supreme Court by 5-3 decision on the 26th in Chamber of Commerce v. Whiting upheld Arizona's "Legal Arizona Workers Act", which mandates E-Verify and permits the suspension or revocation of business licenses for knowingly employing unauthorized workers, as not being pre-empted by federal immigration law. This is a blow to not only the coalition of business and civil liberties groups which originally brought the suit, but also the Obama administration which supported it.  Eyes are now focused on whether the court's ruling is an indication of how it will vote on SB 1070, the earlier Arizona law which requires the detention and questioning of an individual during routine stops if there is reasonable suspicion that the person is in the United States illegally.  The Ninth Circuit Court of Appeals denied the State of Arizona's appeal in April, and it is widely expected to be soon before the Supreme Court. 

Jack Palmer Jr. v. Infosys Technologies Ltd. Inc. is a complaint filed in February 2011 in the Circuit Court of Lowndes County, Alabama, that Infosys, an extremely large user of H-1B visas, is also abusing the B-1 in lieu of H-1B visa in that, as an employee of Infosys in the United States, he was asked and refused to write welcome letters basically stating that Infosys employees were coming to the United States for meetings rather than work at a job.  In conjunction with the suit, Senator Charles Grassley (R-IA) complained of the practice to the State Department, and the Department replied on May 13, 2011, that it is in the process of discussing with DHS removing or substantially modifying the B-1 in lieu of H guidelines; that this change requires DHS coordination and may require Federal Register notice, and thus may take some time before any change is implemented. 
 
The Chief of the Office of Public Engagement of U.S.C.I.S. said that U.S.C.I.S. is developing a proposed that would mandate e-filing, and on April 8, 2011, the Office of Transformation Coordination and the Office of Public Engagement hosted a stakeholder engagement on the issue.  Stakeholders were apprehensive about specific populations being unable to utilize the new system, including the elderly, illiterate populations, applicants without bank accounts or credit cards, and rural communities. Stay tuned to see how this important issue develops!  

 


The author is a 30+ 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 © 2011 Alan Lee, Esq.

 

Copyright © 2003-2012 Alan Lee, Esq.
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