• Federal Contractors Required to Use E-Verify System of USCIS as of February 20, 2009
  Federal contractors and subcontractors will be required to begin using the U.S. Citizenship and Immigration Services (USCIS) E-Verify system starting February 20, 2009, to verify their employees’ eligibility to legally work in the United States. The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council amended the Federal Acquisition Regulation (FAR) to reflect this change. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States  (http://www.uscis.gov).

• USCIS Publishes Final Religious Workers Regulations 
  
  The final rule on Religious Workers provides for “increased inspections, evaluations, verifications, and compliance reviews of religious organizations.” [72 Fed. Reg. 20442 ; Apr. 25, 2007); (85 IR 3219; December 8, 2008).] 

• Attestations by Facilities Temporarily Employing H-1C Nonimmigrant Aliens as Registered Nurses

• New ESTA Program in Effect for use of Visa Waiver Program (VWP)  
  
  DHS announced that - beginning January 12, 2009 - all foreign nationals that travel to the US under the VWP are now required to obtain an approved travel authorization prior to their trip to the US. To comply with this new regulation, go to www.cbp.gov/esta. Travelers without proper ESTA authorization will not be admitted into the US under the VWP. (13 BIB 1530; December 1, 2008) 

• New ETA Form 9089 to be used for Labor Certifications Prior to Seeking Permanent Residency 
  
  A new Form 9089 should become effective in Spring 2009 which reduces the prospect for clerical error in applications for Labor Certification to be filed prior to petitions for permanent residency based upon employment sponsorship. The current ETA Form, although it expired in March 2008, will be valid until the new form will take effect. (85 IR 3298; December 15, 2008) 

• DOS Proposes Changes to the Exchange Visitor Program Regulations
  
  The Department of State has issued proposed rules amending general provisions of the exchange visitor program. The changes are being proposed in order to provide greater specificity regarding program administration, sponsor obligations, and participant eligibility, according to the Notice of Proposed Rulemaking (NPRM).” (85 IR 3306; December 15, 2008).

•  Lost Wages Awarded to Injured Illegal Worker 
  
  The New York Appellate Court held that employers cannot withhold lost wages of an injured worker later found to be in the US illegally when the employer knew or should have known of the worker’s undocumented status or failed to verify the worker’s eligibility for employment as required by federal law. In that case, the court made clear that the submission of false documentation on the part of illegal aliens could be used as a reason to withhold their lost wages or back-pays only if that conduct directly and actually induced the employer to hire them and the employer did everything required by the law to check their work eligibility. [85 IR 3227; December 8, 2008; Coque v. Wildflower Estates Developers, Inc., 2008 WL 4890005 (N.Y. App. Div. 2d Dep’t Nov. 12, 2008).] 

• Adverse Credibility Determination Not Supported by Substantial Evidence in Persecution Case 
  
  Venezuelan petitioners received a deportation removal order and petitioned the court to stay such order under the U.N. Convention Against Torture (CAT). The Immigration Judge (IJ) ruled that the petitioners lacked credibility regarding their likelihood of future persecution if they were returned to their country. However, the court’s adverse credibility of the applicant was not supported by substantial evidence. The petitioners provided sufficient evidence to prove the prospect of future persecution and were entitled to a rebuttable presumption but the government did not present enough evidence to meet its burden of proof. Therefore, the appellate court vacated the IJ’s decision and remanded the denial of relief with instructions for review.  [13 BIB 1522; December 1, 2008; Marrero-Nava v. U.S. Att’y Gen, 2008 U.S. Ct.App. LEXIS 18069 (11th Cir. Aug. 21, 2008).] 

• Federal Court Decision – Unconscionable Hardship Standard Ruled Improper 
  
  The Immigration Court erred in requiring the foreign nationals  to show that their removal would result in an “unconscionable” hardship to their U.S. citizen children, because the BIA had ruled that the “unconscionable” standard was not appropriate.” [13 BIB 1430; December 1, 2008; Figueroa v. Mukasey, 2008 U.S.App. LEXIS 19241 (9th Cir. Sept. 10, 2008).] 

• AAO Decision – L-1A Petition Denied Where Job Functions Were Not Those of an Executive 
  
  The Court found that a foreign national employed as an intra-company transferee did not have managerial responsibilities typically associated with a manager or an executive where petitioner had only one employee and he was going to supervise only a coordinator paid $1,440 over two quarters. The petition was denied and the appellate court dismissed the appeal. [13 BIB 1434; November 15, 2008; Matter of X, EAC 07 035 52911 (AAO Feb. 28, 2008) (Vermont Service Center).]

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