Latest Updates in Immigration

• Update on H-1B Cap Count for Fiscal Year 2011

  
  

  As of April 27 2010, approximately 16,500 H-1B cap-subject petitions were filed with the U.S. Citizenship and Immigration Services. Additionally, USCIS has issued receipts for 6,900 H-1B petitions for aliens with advanced degrees.



• State of Arizona Implements A New Controversial Enforcement Law

  
  

  In April 2010, Arizona Governor Jan Brewer, signed a new law which requires state and local law enforcement to check the documents of people they ‘reasonably suspect’ of being in the U.S. illegally. This new law has sparked controversy nationwide and has many avoiding travel to Arizona altogether.



• Supreme Court Requires Defense Attorneys to Advise on Immigration Consequences of Guilty Pleas

  
  

  On March 31, 2010, the U.S. Supreme Court issued a long-awaited decision finding that the Sixth Amendment requires criminal defense attorneys to advise non citizens of the immigration consequences of a guilty plea. The decision in Padilla v. Kentucky, 2010 WL 122274 (2010), arises from a post-conviction proceeding in which Mr. Padilla was trying to vacate his guilty plea based on ineffective assistance of counsel. Mr. Padilla had pled guilty to a drug trafficking charge after he was misadvised by his attorney that the plea would not affect his status as a permanent resident. Based on the Supreme Court’s decision, defense attorneys are now held to a much higher standard when representing non citizen clients.



• Temporary Protected Status (TPS) Available for Haiti

  
  

  On Jan. 15, 2010, Secretary of Homeland Security Janet Napolitano designated TPS for eligible Haitian nationals as a result of the catastrophic earthquake that occurred in Haiti on Jan. 12, 2010.

  
  

  The TPS designation for Haiti went into effect on January 21, 2010 and will remain in effect until July 22, 2011. The 180-day registration period ends on July 20, 2010. The TPS designation means that eligible Haitian nationals will not be removed from the United States and will also be eligible to apply to work in the United States.

  
  

  TPS is available only to those Haitians who resided in the United States on or before Jan. 12, 2010 TPS will not be granted to Haitian nationals who entered the United States after Jan. 12, 2010.

  
  

  Haiti joins El Salvador, Honduras, Nicaragua, Somalia, and Sudan as countries currently designated for TPS.



• U.S. Citizenship and Immigration Services Provide Guidance on "Appropriate" Employer-Employee Relationships for H-1B Purposes

  
  

  A recent USCIS Memo from Associate Director, Donald Neufeld, provides guidance regarding what are acceptable employer/employee relationships for H-1B purposes. Specifically, the memo advises that the key to establishing the relationship between employer and employee is whether the petitioner maintains the ‘right to control’ the ‘when, where and how’ the beneficiary performs the job. The memo distinguishes between ‘right to control’ and ‘actual control’.

  
  

  The memo seeks to clarify the definition of relationship for purposes of self-employed beneficiaries, yet it offers somewhat conflicting guidance on the issue. The memo notes that “USCIS acknowledges that a sole stockholder of a corporation can be employed by that corporation as the corporation is a separate legal entity from its owners and even its sole owner.” However, the memo also states that “an H-1B beneficiary/employee who owns a majority of the sponsoring entity and who reports to no one but him or herself may not be able to establish that a valid employment relationship exists in that the beneficiary, who is also the petitioner, cannot establish the requisite control.” Unfortunately, the memo ultimately provides a narrow interpretation of the definition of employer/employee relationship for H-1B purposes which will likely results in increased requests for evidence and denials of H-1B petitions in non-traditional employment scenarios.

Updated May 6, 2010