United States: EB-2 Visas For China And India Move Five Months And Other Immigration Law Updates

July Visa Bulletin; EB-2 for China and India Move Five Months

After months without significant movement in the employment-based immigrant visa preference categories, the July 2011 Visa Bulletin announced a five-month jump for the EB-2 category for Indian and Chinese nationals. Those with priority dates on or before March 8, 2007, will be eligible to apply for adjustment of status—or an immigrant visa—beginning on July 1, 2011. If such an application has already been filed, these individuals will have their applications adjudicated and, if approved, will be granted lawful permanent resident ("green card") status. The EB-3 category moved incrementally for all nationalities.

Employment-Based Preference Category All Chargeability Areas Except Those Listed China—
Mainland Born
India Mexico Philippines
EB-1 Current Current Current Current Current
EB-2 Current March 8, 2007 March 8, 2007 Current Current
EB-3 Oct. 8, 2005 July 1, 2004 May 1, 2002 July 1, 2005 Oct. 8, 2005
Other Workers Nov. 22, 2004 April 22, 2003 May 1, 2002 Nov. 22, 2004 Nov. 22, 2004
EB-4 Current Current Current Current Current

Supreme Court Upholds Arizona's E-Verify Requirement

On May 26, 2011, the U.S. Supreme Court in Chamber of Commerce v. Whiting,1 in a 5–3 decision, upheld the Legal Arizona Workers Act—a law that allows the state to revoke the business licenses of employers that knowingly hire illegal immigrants and requires employers in the state to use E-Verify. The Supreme Court held that Arizona's licensing law is not preempted by the Immigration Reform and Control Act (IRCA); therefore, Arizona may require beneficiaries of state business licenses to use E-Verify, without running afoul of federal immigration law.

Chief Justice John Roberts, writing for the majority, said that the licensing portion of the Arizona law is not preempted by federal law because it falls under the IRCA's savings clause, which permits state "licensing and similar laws." The state law is a "licensing provision" that "fall[s] squarely within the federal statute's savings clause" and "does not otherwise conflict with federal law." The Court also found that the mandatory E-Verify requirement does not conflict with the federal government's employment verification scheme.

The Supreme Court's decision affirmed a U.S. Court of Appeals for the Ninth Circuit 2009 decision in Chicanos por la Causa, Inc. v. Napolitano2—that upheld the Arizona law, rejecting arguments brought by a coalition of business and immigrant rights groups—including the U.S. Chamber of Commerce, Arizona Employers for Immigration Reform and Chicanos por la Causa, Inc., that contended the law was both expressly and impliedly preempted by federal law. The Supreme Court rejected the Chamber of Commerce's argument that the state E-Verify mandate impedes the purpose of the federal government's voluntary employment verification program.

In a dissenting opinion, Justice Breyer joined by Justice Ginsburg maintained that the Arizona law does not fit within the IRCA savings clause because it would broaden the definition of "license" to include articles of incorporation and partnership certificates that are not employment-related licensing systems. Justice Breyer also said the E-Verify mandate was preempted because "by making mandatory that which federal law seeks to make voluntary," the Arizona law stands as an "obstacle" to the purposes and objectives set out by Congress. In a separate dissent, Justice Sonia Sotomayor said that the majority reading of the law "subjects employers to a patchwork of enforcement schemes similar to the one that Congress sought to displace when it enacted IRCA."

The decision did not address Arizona's S.B. 1070, the high-profile Arizona immigration law that requires police to check the immigration status of individuals in certain circumstances. The main provisions of S.B. 1070 were successfully challenged in federal court on constitutional grounds and are on appeal in the Ninth Circuit.

Now that the Supreme Court has appeared to give state E-Verify requirements the green light, it may be anticipated that many localities and states, particularly in the South, may promptly try to enact statutes similar to Arizona's. As discussed below, Alabama enacted a mandatory E-Verify requirement for all employers on June 9, and several bills similar to that upheld by the Supreme Court are pending in Pennsylvania. Based on its decision in Whiting, the Supreme Court has also remanded another long-running immigration preemption case challenging a local Pennsylvania ordinance with similar licensing provisions, described below.

Employers should be aware of the rapidly changing E-Verify landscape and should conduct periodic audits of sites in states, counties and cities with mandatory E-Verfiy requirements, to ensure compliance.

Supreme Court Remands Hazelton Immigration Law Challenge to Third Circuit

In light of its decision in Chamber of Commerce v. Whiting, the Supreme Court remanded Hazleton, Pa. v. Lozano, Pedro, et al.,3 to the U.S. Court of Appeals for the Third Circuit for further consideration. This case originated in 2006 and concerns an ordinance passed by then-Mayor Lou Barletta of Hazleton, Pa. The ordinance targeted undocumented immigrants and penalized landlords who rented to them and employers who hired them. The ordinance was immediately challenged and in 2007 was blocked by a federal district court in Pennsylvania. The Third Circuit upheld the lower court's ruling, finding that the Hazleton ordinance was preempted by the federal government's exclusive jurisdiction to regulate immigration.

It is unknown at this time how the Third Circuit will apply the Supreme Court's decision in Whiting to the Hazleton law, which contains provisions that go far beyond business licensing requirements. Hazleton's law would not only suspend the licenses of employers, but also of landlords who rent property to undocumented immigrants. It also would prohibit businesses from recruiting, hiring, continuing to employ, permitting, dispatching or instructing anyone who is an "unlawful worker." The provision would prohibit "harboring," defined as "letting, leasing, or renting to an illegal alien" in "knowing or reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law." It also would make legal immigration status a "condition precedent" to entering into a valid lease, and deems as breached any lease with a person lacking lawful status. The Hazleton ordinance also provides for a private right of action for citizens to bring a complaint alleging that a local business or landlord is violating the law.

The Hazleton case warrants monitoring, as similar legislation has passed or is pending in numerous states and localities. Whatever the Third Circuit decides is likely to be challenged again in the Supreme Court.

Alabama Enacts Toughest State Immigration Law Yet

On June 9, 2011, Alabama Gov. Robert Bentley signed into law an immigration bill similar to Arizona's controversial S.B. 1070. The measure goes into effect on September 1, 2011. It prohibits transporting or housing undocumented immigrants, requires immigrants to carry evidence of lawful status and requires police to ask for legal documents if they have "reasonable suspicion" that someone is in the country illegally. The law mandates E-Verify for all Alabama employers and prohibits drivers from transporting undocumented immigrants. Similar provisions were included in Arizona's S.B. 1070, but they were enjoined by a federal judge earlier this year on a federal preemption theory.

The Alabama law also contains a novel provision: requiring public schools to check the citizenship status of their students. The measure does not prohibit illegal immigrants from attending public schools. Lawmakers said the purpose instead is to gather data on how many are enrolled and how the much the state is spending to educate them.

The Southern Poverty Law Center, the National Immigration Law Center and the American Civil Liberties Union announced that they will challenge the law in court. The U.S. Department of Justice has not commented, but is likely to join in any lawsuit opposing the law due to its position that immigration matters—such as those included in the Alabama law—are reserved for the federal government.

E-Verify Launches RIDE Program to Include Driver's License Verification; Starts with Mississippi

On June 13, 2011, U.S. Citizenship and Immigration Services (USCIS) launched the Records and Information from DMVs for E-Verify (RIDE) program. Once fully functional, the RIDE program will enable the E-Verify system to check driver's license information provided by employees against what is contained in state motor-vehicle records. Currently, Mississippi is the only state participating. At this time, 4,336 employers representing more than 9,000 worksites in Mississippi use E-Verify.

USCIS reports that more than 80 percent of employees present driver's licenses for I-9 completion; therefore, this tool may be beneficial in helping to improve E-Verify's accuracy and to combat document fraud. The agency's ultimate goal is to extend this program to all state departments of motor vehicles (DMVs) nationwide. This is part of a strategic expansion reported in the Government Accountability Office's December 2010 report. Prior E-Verify, enhancements included the addition of U.S. passports to the photo-matching process in September 2010.

Employers should be aware that full implementation of RIDE will likely lead to a large increase in tentative nonconfirmations due to discrepancies and errors in state motor-vehicle databases.

Five E-Verify Bills Pending in Pennsylvania Legislature

Several pieces of E-Verify legislation are working their way through the Pennsylvania Legislature in Harrisburg. On May 24, 2011, the Pennsylvania Senate passed S.B. 637 (42–7). This bill requires public-works contractors and subcontractors to verify the work authorization of existing employees through the Social Security Number Verification System (SSNVS) and to begin using E-Verify for all new hires 60 days after the bill's enactment. Sanctions for violation of the act include debarment from state contracting for a minimum of 90 days. The Pennsylvania House version, H.B. 379, is awaiting action by the House State Government Committee.

Similarly, H.B. 380—the Construction Industry Employment Verification Act—requires all employers involved in construction trades to verify the work authorization of existing employees through the SSNVS and to begin using E-Verify for all new hires by July 1, 2011. Employers will be required to file annual reports verifying compliance. Failure to comply may result in forfeiture of business licenses and revocation of articles of incorporation.

H.B. 858, known as the Fair Employment Act, would require each entity filing an initial or renewal business registration to provide an affidavit confirming that it has no undocumented workers on staff and that it has enrolled in and is actively using E-Verify. A first-time failure to comply with this requirement would result in suspension of the entity's business license until the affidavit is submitted. The sanction for a second or subsequent failure to comply is a minimum 20-day suspension of the business registration and reporting of the failure to the U.S. Department of Homeland Security.

In addition to legal sanctions, these bills provide for random audits and complaint-based investigations by state agencies. They also contain employment protections for whistleblowers and anti-immigration-related discrimination provisions to protect legal workers—all of which may lead to additional administrative and litigation concerns for employers.

Pennsylvania would have one of the most comprehensive E-Verify legislative programs in the United States if these bills were passed in combination with two other proposals: H.B. 379 and H.B. 355. H.B. 379 would make it unlawful for any Pennsylvania organization or individual, including attorneys, to "knowingly employ or permit the employment" of an undocumented worker; and H.B. 355 would mandate E-Verify for all state agencies and funding recipients. While many states have passed prospective E-Verify requirements, none have so far mandated the SSNVS requirement for existing workers, and none have singled out the construction industry.

USCIS Temporarily Suspends the Use of VIBE in the Processing of H-2A Agricultural Visa Petitions

On June 1, 2011, USCIS announced it was suspending temporarily the use of the Validation Instrument for Business Enterprises (VIBE) for the H-2A agricultural guest-worker program. VIBE relies on company information contained in the Dun & Bradstreet database. If this information does not match information provided by a petitioning employer, the immigration petition will be placed on hold until the records can be rectified. Usage of the tool has significantly slowed processing of all types of business-based visa petitions, which has greatly impacted H-2A employers due to the time sensitivity of agricultural jobs, thus necessitating the temporary suspension. Employers contemplating filing of any type of visa petition may want to review company records in Dun & Bradstreet to ensure that they are correct and up-to-date.

If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.


1. Chamber of Commerce of the United States v. Whiting, 179 L. Ed. 2d 1031 (U.S. 2011).

2. Chicanos por la Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. Ariz. 2009).

3. City of Hazleton v. Lozano, 79 U.S.L.W. (U.S. 2011).

This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.

Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, offers innovative solutions to the legal and business challenges presented by today's evolving global markets. Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, offers innovative solutions to the legal and business challenges presented by today's evolving global markets. The Duane Morris Institute provides training workshops for HR professionals, in-house counsel, benefits administrators and senior managers.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions