3d Cir. Finds Anti-Illegal-Alien Ordinance Unconstitutional

In Lozano v. City of Hazelton, the Third Circuit Court of Appeals ruled that the Hazelton, Pennsylvania ordinances regarding illegal aliens were unconstitutional.  The ordinances, which had been enjoined by a federal court before taking effect, were designed to keep illegal aliens out of the town by penalizing employers who employed them and landlords who rented to them.  The court found that the ordinance conflicted with federal immigration laws and therefore violated the Supremacy Clause. The ordinances operated in part through the sanction of suspending the business license of any person or entity who hired a worker not authorized to work in the U.S.

The court explained that the Immigration Reform and Control Act of 1986 (“IRCA”), the federal law that first prohibited the employment of undocumented workers, was carefully designed to minimize the burdens imposed on both employers (who did not want to be involved in the enforcement of federal immigration laws) and on authorized workers, who might erroneously be perceived as illegal aliens and discriminated against. Accordingly, IRCA limited the types of complaints against employers that the government would investigate, the measures that employers would have to take to assure that workers are authorized to work in the U.S., and the workers to which it would apply (IRCA applies to employees only, not to independent contractors). Congress also included an anti-discrimination provision in IRCA to reduce the burden imposed on authorized workers.

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USCIS to Accept New H-2B Fiscal Year 2009 Petitions, Beginning Now

U.S. Citizenship and Immigration Services (USCIS), has announced that it will re-open the filing period for FY 2009 H-2B petitions:

Although on Jan. 7, 2009, USCIS announced it accepted and approved a sufficient number of H-2B petitions to meet the congressionally mandated annual cap of 66,000, the Department of State received far fewer than expected requests for H-2B visas and as a result, has issued only 40,640 H-2B visas for fiscal year 2009 to date. This means that there are approximately 25,000 visas that may go unused, as they have not been granted. Because of the low visa issuance rate, USCIS is reopening the filing period to allow employers to file additional petitions for qualified H-2B temporary foreign nonagricultural workers.

The normal (non-premium processing) adjudication time frame for H-2B petitions is 60 days. USCIS will make visa numbers available to petitions in the order in which the petitions are filed. However, because H-2B petitions (Form I-129) for fiscal year 2009 visas must be received, evaluated, and adjudicated on or before the fiscal year 2009 deadline of Sept. 30, 2009, USCIS cannot guarantee approval of any H-2B petition on or before the Sept. 30, 2009 deadline. Employers therefore are encouraged to file as soon as possible and to request premium processing by filing a Form I-907 and submitting the $1000 premium processing fee, which will allow for expedited adjudication. See http://www.uscis.gov/premiumprocessing.

To qualify for a fiscal year 2009 H-2B cap number, employers must submit the Form I-129 Petition for a Nonimmigrant Worker to USCIS with all required documents, including an approved Alien Employment Certification from the U.S. Department of Labor that is valid for the entire employment period stated on the petition. The petitioner must also indicate an employment start date before Oct. 1, 2009.

Petitions received on or after Oct. 1, 2009, and/or requesting a starting date on or after Oct. 1, 2009, will be considered towards the fiscal year 2010 H-2B cap and are subject to all eligibility requirements for fiscal year 2010 H-2B filings, including 8 CFR 214.2(h)(6)(iv)(D), which requires that the start date listed on the petition be the same as the starting date authorized on the temporary labor certification.

The H-2B program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs for which there is a shortage of available U.S. workers. Typically, H-2B workers fill labor needs in occupational areas such as education, construction, health care, landscaping, manufacturing, food service/processing, and resort/hospitality services.

More information about the H-2B visa program is available in the USCIS guide, How Do I Hire a Foreign National for Short-Term Employment in the United States (pdf). 

Employer Alert: New I-9 Form

The United States Immigration and Citizenship Service (USCIS), posted this item on Friday:

USCIS Reminds all U.S. Employers of Requirements to Use Revised Form I-9, Employment Eligibility Verification

The revised Form I-9, Employment Eligibility Verification (Rev. 02/02/09), goes into effect today for all U.S. employers. The revision date is printed on the lower right-hand corner of the form.

The interim final rule, published December 17, 2008, in the Federal Register, revised the list of documents acceptable for the Employment Eligibility Verification (Form I-9) process. Employers may no longer use previous versions of the Form I-9.

The revised list improves the security and effectiveness of the Form I-9 process. The list specifies that expired documents are no longer acceptable forms of identification or employment authorization. Allowing for expired documents makes it more difficult for employers to verify an employee’s identity and employment authorization and compromises the Form I-9 process.


If you haven’t already, employers should download the new I-9 form today for immediate use.

Employer Alert: New I-9 Form Delayed

Employers were mandated to use a revised I-9 form, beginning on February 1, 2009, per the order of the the United States Citizenship and Immigration Service (USCIS).  The I-9 form is the form used to verify an employee’s eligibility to work in the U.S.   USCIS logo

USCIS has changed its mind, and has decided to delay implementation of the new I-9 form to allow time to evaluate whether it is the best approach to take. The new effective date will be April 3, 2009. USCIS has also reopened the public comment period for thirty days, so if you have an opinion about the proposed new form that you’d like USCIS to consider, you have until March 4, 2009 to do so.

USCIS to Require Use of New I-9 Form on February 1, 2009

U.S. Citizenship & Immigration Services (USCIS), will issue a revised I-9 Employment Eligibility Verification Form.  Employers must use the new form on February 1, 2009.  USCIS issued an Interim Final Rule describing what documents can be used as proof of identity and authorization to work in the United States.

The biggest change under the new rule is the new prohibition on accepting expired documents.  Expired documents will no longer be acceptable proof of the right to work. This means that U.S. Passports and List B identity documents, such as driver’s licenses, may not be used for employment verification purposes if they have expired. In the Interim Rule, the USCIS explains that this measure will help prevent the use of counterfeit documents since current documents are more likely to include security features and up-to-date photographs.

The revised form will also include changes in references to various immigration documents (I-551, I-688, I-688A, I-688B, I-766, I-94, I-94A) to conform to current Department of State and USCIS practices with regard to those documents. There will be two new acceptable List A documents: (1) a machine-readable immigrant visa with a temporary I-551 printed notation, and (2) A passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.

The new form and a revised version of the instruction book for completing the form will be available on the USCIS website by February 1. Employers must use the new form for all new employees and for reverification of current employees beginning on that date. The draft of the new form is attached to the Interim Rule.

Immigration Update: H-2B Visa Applications

Do the immigration laws governing H-2B category visas need to be reformed? The U.S. Chamber of Commerce says, “yes.”  USCIS logo According to the Chamber, H-2B workers are employed mostly in landscaping, seasonal hospitality, and seasonal construction businesses, as well as in manufacturing, food packaging and processing, fisheries, and retail.

The United States Citizenship and Immigration Service (USCIS) announced today that yesterday was the “final receipt date” for applications for new H-2B worker petitions for work start dates before April 1, 2009. H-2B visas are for non-agricultural temporary and seasonal workers. Such workers need not possess any special skills.

Congress imposed a cap of 33,000 workers on the number of petitions that may be granted for the first half of 2009. The USCIS will make a random selection from among the petitions that are subject to the cap that were received before July 29, 2008, and will reject all new applications for workers with requested start dates before April 1, 2009. Petitions that are not among those randomly selected will be returned and the associated fees will be refunded.

The cap has been met for the last two years in a row, which the Chamber says is an indication that the current immigration law needs reform. The cap has not been increased since the law creating the H-2B visa category was enacted in 1990.

Legal Update: New I-9 Form . . . Oh, Never Mind

The U.S. Citizenship and Immigration Services (“USCIS”) released the new I-9 form in the end of June.  There weren’t any changes to the form other than the expiration date.  Why bother, you ask?  Good question.  Initially, the Paperwork Reduction Act required it.  Under the Act, all government forms must carry an expiration date.  And the I-9 expired on June 30, 2008. 

But then, last week, it was announced that the “new” form was being retracted.  So, in case you are now twice as confused, here’s the bottom line:  Any I-9 form with a publication date of 06/05/07 or later is acceptable.  Even if the expiration date has passed.  In other words, the expiration dates don’t matter (for now, anyway).  But the publication date does. 

You can download the

You can also download it from the USCIS website (uscis.gov). 

The USCIS site also provides an I-9 form in Spanish.

Now, hang in there, this may be a little tricky.  Despite having it linked from its website, the USCIS will not accept the Spanish version. (Unless you live in Puerto Rico). Why bother posting it on the site, you ask?  Again, good question.  The idea is that you can provide any Spanish-speaking employees with the Spanish version of the form for their reference.  But the English version needs to be the one the employer actually retains.

Whew!  Good thing the Paperwork Reduction Act is here to help.