DHS Mandates ESTA for VWP Travelers

• The Department of Homeland Security (DHS) issued a notice indicating that effective January 12, 2009 all non-immigrants traveling to the U.S. under the Visa Waiver Program (VWP) must obtain an approved travel authorization from the Electronic System for Travel Authorization (ESTA) to receive permission to travel before embarking on an air or sea carrier for travel to the U.S. Travelers must electronically provide to the U.S. Customs and Border Protection (US CBP) the information currently collected on the Form I-94W through the ESTA website located at https://esta.cbp.dhs.gov (85 IR 3075; 11/17/2008).

Administrative Review Board (ARB) Rejects Employee Retaliation Claims Under the Parameters of the H-1B Visa Classification

• Kersten v. LeGarde, Inc., ARB Case No. 06-111, ALJ Case No. 2005-LCA-017 (ARB; 10/17/2008). The ARB affirmed an Order of the Department of Labor (DOL) granting summary decision for the employer finding that there had been no violation of the Immigration and Nationality Act under allegations that the employer had supplied incorrect or false information on the Labor Condition Attestation (LCA), that the employer failed to pay the plaintiff the higher of the prevailing or actual wage, that the employer did not provide the same working conditions as it did U.S. workers, that the employer required the plaintiff to pay all or part of the USCIS filing fee, and that the employer retaliated or discriminated against the plaintiff for disclosing information and cooperating in an investigation. In the hearing before the administrative law judge the employer successfully argued that the plaintiff was time barred on some of its claims and that the employer had failed to prove retaliation (85 IR 3076; 11/17/08).

DHS and DOJ Signed a Visa Waiver Program with South Korea

• The Department of Homeland Security (DHS) signed an agreement with the Republic of Korea together with a Memorandum of Understanding regarding the Visa Waiver Program (VWP) (85 IR 3101; 11/17/08).

DHS Publishes Supplemental Final Rule for Social Security Number “No Match Letters”

• DHS issued a supplemental final rule regarding "Safe Harbor" procedures available to employers who received a “No-match Letter” from the Social Security Administration or a “Notice of Suspect Document” from the DHS either of which casts doubt on the employment eligibility of an employee [73 Fed. Reg. 63843 (October 28, 2008)]. The rule remains blocked by the Class Action lawsuit in the District Court of Appeals for the Ninth Circuit until the Court decides either to dissolve the injunction against the enforcement of the rule or decides that the rule is legal (85 IR 2878; 11/03/08).

Anti-Discrimination Enforcement Under the “Safe Harbor Rule”

• The Department of Justice (Office of Special Counsel) issued a notice clarifying when it may find reasonable cause to believe that employers following the “Safe Harbor” procedures under the new rule have engaged in unlawful discrimination in violation of the anti-discrimination provision of the Immigration and Nationality Act. [73 Fed. Reg. 63993 (October 28, 2008)]; (85 IR 2878; 11/03/2008).

Qualification of U.S. Applicants in the Labor Certification Application Process

• The Labor Certification Application process under the Program Electronic Review Management System (PERM) permits rejection of a U.S. worker candidate only upon proper documentation that there are not sufficient U.S. workers who are able, willing, qualified and available at the time of application at the place where the foreign national is applying to perform the work. Rejecting U.S. workers from lacking skills necessary to perform the duties of the occupation where such workers are capable of acquiring the skills during a reasonable period of on-the-job training it is not lawfully job related reason for rejection. Troublesome areas for employers interviewing candidates arise when reasons for disqualification of an applicant include: (i) an over-qualified candidate; (ii) poor work references; (iii) inability to verify work history; (iv) pre-hire performance tests; (v) excessive travel distance to the worksite; (vi) non-smoker requirements; and (vii) subjective requirements such as incompetence, tardiness and untrustworthiness (85 IR 3068; 11/17/08).

A Requirement for a Bachelor’s Science Degree in Computer Science and Four Years of Experience Were Unduly Restrictive Job Requirements When Coupled with the Employers Requirement for 26 Programming Languages

• The application for Labor Certification filed by the employer was rejected by the Certifying Officer on the grounds that the employer failed initially to offer the prevailing wage, that the requirement of the experience with 26 programming languages is not justified, and that the employer failed to justify the relevancy of the job experience stated in the application which determination was upheld by the Board of Alien Labor Certification Appeals (BALCA) (Matter of New Jersey Business & Industry Association, BALCA Case No. 2008-INA-00052, 2008-WUL 4771909) (October 28, 2008) (85 IR 3092; 11/17/08).
   

Significant Revisions to the Religious Worker Visa (R-1)

• The USCIS announced significant revisions to the Special Immigrant and Non-Immigrant (R-1 Religious Worker visa classification rules) providing for increased inspections, evaluations, verifications and compliance reviews of religious organizations. Individuals seeking to enter the U.S. through the non-immigrant classification must provide a Consular Officer with an approved Form I-129 Petition. After the Immigration Service has verified that the petitioner and the job offer are legitimate the visa application may be processed (85 IR 3136; 11/24/08).

Visa/Waiver Program (VWP) Expands to Include New Countries

• The final rule adds the Czech Republic, Estonia, Hungary, Latvia, The Republic of Korea, and the Slovak Republic to the list of countries authorized to participate in the VWP (85 IR 3137; 11/24/08).

South Carolina Illegal Immigration Reform Act

• All employers in South Carolina must either participate in the E-Verify System or only hire employees that possess or qualify for a South Carolina Drivers License or Identity Card as determined by the Department of Labor, Licensing and Regulation. The law takes effect incrementally beginning January 1, 2009 for state contractors and July 1, 2009 for private employers (85 IR; 11/03/08).

Sources: IR-Interpreter Releases; IB-Bender’s Immigration Bulletin; American Immigration Lawyers Association Monthly Journal; AILA - American Immigration Lawyer’s Association