U.S. Immigration & Customs Enforcement Raids Workplaces, Making Numerous Arrests

Posted by Teresa A. CheekOn April 17, 2008In: Immigration, Newsworthy

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U.S. ICE raids Poultry Plants, Doughnut Factory, Mexican Restaurants and Arrests Managers and Hundreds of Workers

I’ve previously posted about the issue of undocumented workers and talked about it a bit at our Annual Employment Law Seminar yesterday, so the AP story in today’s Wilmington News Journal is especially timely. The article
describes the latest raids by the Immigration and Customs Enforcement (ICE) branch of the Department of Homeland Security on workplaces with large numbers of illegal alien employees. The raids included arrests of an owner and 10 managers of one company.

As I said yesterday, one reason that business owners and managers should be paying close attention to this issue is to stay out of jail!

ICE arrested 300 workers for identity theft, document fraud and immigration violations at Pilgrim’s Pride chicken processing plants in five states. The company itself reported identity theft issues to ICE and cooperated in the enforcement action. It uses the E-Verify online database to check the documentation of new employees, and fires employees who do not correct documentation problems. But, as a company spokesperson pointed out, that doesn’t help with cases of outright identity theft. This is at least the fourth round of raids and arrests on poultry plants since 2005.

No charges were filed against the company itself. On the other hand, yesterday’s arrests included the owner and 10 managers of a chain of Mexican restaurants located in four states (New York, Pennsylvania, Ohio and West Virginia), who were charged with employing illegal immigrants. Forty-five restaurant workers were also arrested on immigration charges.

30 people were arrested in a raid of a Houston doughnut factory. Many of the individuals who were arrested were housed in a company dormitory. No word yet on whether owners or managers of the factory will face criminal prosecution.

The article concluded with a report that a grand jury in Atlanta had indicted 10 people from employment agencies there for placing illegal aliens at locations in six states. The agencies were charged with developing a network to “recruit and exploit” illegal workers.

My previous posts on this topic include, "The Safe-Harbor Rule for No-Match Letters," Parts 1, 2, and 3, as well as "Get the Jump on No-Match Letters and Suspicious Documents." Those articles provide you with comprehensive explanations of what No-Match Letters are and how they can impact your business.

The moral of this story is that employers must be proactive in protecting themselves from this type of situation.

If you know or suspect that your workers are using false documents, don’t just sit on your hands and hope for the best. You should sign up for and start using E-Verify for new hires, and use the Social Security Number Verification System (SSNVS) provided by the Social Security Administration to find out the extent to which your current workers’ social security numbers and names do not match Social Security Administration records. Develop a policy for dealing with this issue, including terminating all employees (whether they "appear" to be illegal immigrants or not) who fail to straighten out no-match issues within a reasonable time.

Employers must tread carefully when creating a policy to avoid discrimination issues. Contact me if you’d like some help.

Delaware Appoquinimink School District Prevails In Related-Services Dispute Under IDEA

Posted by Michael P. StaffordOn April 17, 2008In: Newsworthy, Public Sector

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On appeal from a due process hearing decision, the federal District Court in Wilmington, Delaware ruled in favor of the Appoquinimink School District.

The court was asked to review the decision of a due-process hearing panel involving a parentally placed private-school student. The Panel had previously found that the District was obligated to pay for the student's American Sign Language (ASL) interpreter at a local private school, despite his status as a parentally placed private-school student.

The parents of the student initially alleged in their due process complaint that the student had been denied a free appropriate public education (FAPE), while enrolled at the Sterck School (Delaware School for the Deaf). They also claimed that there was no appropriate public placement available because their son required a small class size in order to access his education through an interpreter.

As a remedy, they sought a private placement at public expense, the provision of an ASL interpreter as a related service, and compensatory education.

The Panel rejected the parent's claims of Fair Appropriate Public Education (FAPE) and least-restrictive-enviornment (LRE). The court held that the student could receive a FAPE in one of several available public placements. However, the Panel determined that the School District's refusal to fund the interpreter as a related service was "an abuse of discretion," because the IDEA and Delaware state law did not expressly prohibit the District from funding the interpreter.

According to the Panel, "[i]n the rational exercise of discretion, [the District] should provide a sign-language interpreter as a related service, and liability continues over the parents' unilateral placement." (The full Panel decision can be found on the Delaware Department of Education's website, linked here: Appoquinimink Sch. Dist., DE DP 06-11).

The District Court gets it right

The School District and the Delaware Department of Education appealed the decision to the federal court, located in Wilmington, Delaware. The Honorable Joseph J. Farnan, Jr. decided the case on appeal. They argued that they were under no obligation to fund the student's interpreter because of the separate, more limited, set of entitlements given to parentally placed private-school students by the Individuals with Disabilities Education Act (IDEA).

Specifically, the IDEA obligates districts to spend a proportional share of their federal Part B funds on the provision of related services to parentally-placed students who attend private schools located with their boundaries. The nature of the related services provided is determined through meaningful consultations with representatives of the private schools, the point of which is to identify the greatest area of need.

The court agreed, concluding that the Panel committed an error of law by ordering the School District to fund the interpreter. "Where, as here, the District has provided the child with a FAPE and the parents elect to place the child in private school, no liability continues on the part of the District for the payment of that child's cost of education, including special education and related services," because parentally placed private-school students have no "individual right to receive to receive some or all of the special education and related services that the child would receive if enrolled in a public school." Judge Farnan's full decision can be found on the District Court's website.

The Court also noted that the costs of the student's interpreter were more than ten times greater then the entire amount of the District's proportional share of Part B funds.

Finally, the Court held that that the Panel exceeded its authority in holding the District responsible for the interpreter once it had determined that the student was parentally placed in the private school, because the IDEA expressly states that complaints concerning the provision of services to parentally placed private-school students are not subject to due process procedures.

This was a notable victory for Appoquinimink School District and will be important precedent for future Delaware cases involving special education and school law.

[Editor's Note: Mike Stafford, the author of this post, is too modest to to note that he and Scott Holt, a partner in the YCS&T Employment Law Department, represented the School District in this case and were instrumental in seeing the case to victory. Well done, Mike and Scott!!]

Do You Wear a Flag Pin?: Keep Political Speech Out of the Office

Posted by Maribeth L. MinellaOn April 17, 2008In: Employee Handbooks, Public Sector

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At the democratic debate held last night at Philadelphia's own Constitution Center, Senator Barack Obama was asked why he did not wear an American flag pin in his lapel. While that may be an appropriate question for a presidential candidate, what happens if the issue sparks a political debate around the water cooler?

Can work and politics mix?

Probably not. That's not to say that talking politics at work is unlawful--it's just not a good idea. Politics bring strong emotions that may have no place in the office. Political debates can be loud, distracting, and offensive to colleagues. Let's face it, if you can't talk about who you're going to vote for at a dinner party with friends without stirring the pot, you should definitely think twice about doing it at work.

In fact, an employee's political actions at work can have harsh consequences. Employees should keep in mind that they could be disciplined - even terminated - for promoting their political views in the workplace.

The bottom line is that private employers have a lot of latitude when it comes to what an employee can and cannot say at work; private-sector employees essentially have no constitutional free-speech rights in the workplace.

This is not to say that employers have free reign to control their employee's viewpoints, or to force their own viewpoints upon employees. For example, a Tennessee state statute makes it unlawful for an employer to require an employee to vote a certain way to keep their employment or to threaten an employee with disciplinary action if he does not vote for a certain candidate or party. Notwithstanding Tennessee's unique law, an employer who discriminates against an employee for his political views can be subject to legal liability.

So what's the bottom line? Employees and employers need to be sensitive this election season. Calling employees together to watch the speech of one candidate shouldn't happen. Taking adverse actions against an employee because he expresses his view in favor of a candidate is certainly ill-advised. And management should not send out a memo or an e-mail in support of a political candidate. In short, pause before you ask your colleague where his flag pin is.

Thank You to Everyone Who Attended the Annual Employment Law Seminar

Posted by Barry M. WilloughbyOn April 16, 2008In: Family Medical Leave, Jerks at Work, National Defense Authorization Act (NDAA), YCST

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Our Annual Seminar for Employers was held today at the Chase Center on the Riverfront in Wilmington, Delaware. The attendance at the seminar was our best ever, with more than 130 of Delaware's best human resource professionals, labor relations specialists, senior managers, and small business owners.

Our many thanks to The Honorable Mary Pat Thynge, who spoke candidly about the federal mediation process. Her comments were direct and insightful for everyone, including for the attorneys!

Another thanks to all of the attendees who completed and submitted a survey at the end of the day. We're looking forward to reviewing your comments. Our objective is to make the seminar as effective and enjoyable as possible. Your opinion really tells us what we can do to better to maximize the client experience. We are especially interested to learn what topics most interest you for future seminars. If you were in attendance today but did not have an opportunity to submit an evaluation, just let us know and we'll send you one that can be completed and returned electronically--no stamp necessary!

Again, thank you to all of our clients, colleagues, and new friends, who gave us your attention and participation for a very full day on a variety of employment-law topics.

For the Chronically Absent: Step-by-Step Guide on How to Call in Sick When You're Not

Posted by Molly DiBiancaOn April 16, 2008In: Absenteeism, Just for Fun

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sick-day-handbook.jpgPosted on wikiHow.com is a comprehensive guide for calling out off work without raising suspicions. wikiHow.com is a reader-authored and -edited website that offers tutorials and instructions for just every topic imaginable. The article is titled, "How to Call in sick When You Just Need a Day Off."

Far be it from me to tell you how to use this, um, "thorough resource." Maybe you envision posting it on your intranet as comic relief. (After all, laughter can improve the workplace).

Or, maybe you want to know the tricks of the trade (the faker trade, that is), so you can spot the fakers when you see them.

Or, for all I know, you may want to take these tips for a test run and use them the next time you need a mental health day.

Who am I to judge?

Regardless of how this "guide" is utilized, it does cover just about everything one needs to know in executing an escapism plan. For example, there is a list of alternative "calling methods." Including, calling your boss early in the morning so your voice is rough, thus giving you additional credibility.

There are also various "things to do and say" while on the phone, such as "make your vomit sound real," and how to give yourself a case of the temporary sniffles by, basically, self-induced water torture.

And, for those of who make it in to work only to decide that the Macy's sale really would be a better use of your time, there are ways to "fake sick at work," thereby enabling you to make a clean escape.

Once you make that escape or that early morning phone call, the article cautions that you should heed certain warnings so as not to foil the plan. A personal favorite from the warnings list:

It's important that your boss thinks you are sick in your bed. Blaring music or a loud TV can destroy that image, as can thousands of screaming fans at a footbal game. If you're out of the house, you might want to call from your car. But be sure the engine and air condititioner are turned off.

The article ends with some sage words of advice:

"All in all, the best thing to do is never pretend to be ill, not only is it dishonest and deceitful, if you are found out you could face disciplinary action and, even worse, you can lose your job."


USCIS Update on H-1B Petitions: Random Selection Process

Posted by Molly DiBiancaOn April 14, 2008In: Immigration

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U.S. Citizenship and Immigration Services (USCIS) today conducted the computer-generated random selection processes on H-1B petitions, to select which H-1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication. If approved these H-1B petitions will be eligible to receive an H-1B visa number.

USCIS conducted two random selections, first on petitions qualifying for the 20,000 "master's or higher degree" (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap.

The approximately 163,000 petitions received in the first five days of the eligible filing period for FY 2009 (April 1 through April 7, 2008) were labeled with unique numerical identifiers. USCIS has notified the appropriate service centers which numerical identifiers have been randomly selected, so each center may continue with final processing of the petitions associated with those numerical identifiers.

Petitioners whose properly filed petitions have been selected for full adjudication should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives. As previously announced, duplicate filings will be returned without the fee. The total adjudication process is expected to take approximately eight to ten weeks.

For cases selected through the random selection process and initially filed for premium processing, the 15-day premium processing period begins today (April 14), the day of the random selection process.

USCIS has "wait-listed" some H-1B petitions, meaning they may possibly replace petitions chosen to receive an FY-2009 cap number, but that subsequently are denied, withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition. USCIS will send a letter to the wait list petitioners to inform them of their status.

USCIS expects that for each of these wait-listed petitions, it will either issue a receipt notice or return the petition with fees within six to eight weeks.

~From USCIS Press Release

Some Might Consider It Ironic: EEOC Found to Have Violated the Overtime Exemption of the Fair Labor Standards Act ("FSLA")

Posted by Molly DiBiancaOn April 14, 2008In: EEOC Suits & Settlements, Fair Labor Standards Act (FLSA)

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An arbitrator found that the EEOC violate the FLSA by misclassifying as exempt its investigators and mediators.

The arbitration was a result of a greivance intially filed in February 2003 by the American Federation of Government Employees (AFGE) National Council of EEOC Locals, No. 216 on behalf. EEOC had classified these employees as exempt under the Fair Labor Standards Act (FLSA), thereby excusing itself from having to pay these employees for working overtime.

The Union's post-arbitration brief can be found here.

Delaware District Court Awards Summary Judgment to Employer in Age Discrimination Case Brought by EEOC

Posted by Molly DiBiancaOn April 13, 2008In: Age (ADEA), EEOC Suits & Settlements, Reduction in Force (RIF), YCST

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The U.S. District Court in Wilmington, Delaware awarded summary judgment to BE&K Engingeering Company, finding that the EEOC had failed to show that a 54-year-old engineer, who was laid off during a reduction in force, was replaced by someone significantly younger.

EEOC argued that in a reduction-in-force situation, the ADEA prima facie case analysis should be relaxed. The Commission contended that the EEOC only needs to show that BE&K retained several significantly younger engineers while terminating a member of the protected class.

"The analysis is not that simple," Magistrate Judge Mary Pat Thynge wrote, as she rejected EEOC's argument. She cited a district court decision stating that when considering whether an employer gave preferential treatment to younger employees during a RIF, a court must consider "the terminated employee's 'fungibility' or usefulness to the employer in comparison to other employees."

Here, the six younger engineers that EEOC cited as "similarly situated" to the terminated engineer were all employed on long-term projects at the time of the RIF, the court emphasized. The EEOC argued that all engineers were expected to perform the same tasks and easily could be swapped between projects. Significantly, the court rejected the contention, finding that it "fails to address the adverse business costs and impact on future projects when senior engineers are placed on jobs that require only entry-level qualifications."

This case demonstrates the Court's continued respect for the need of businesses to make decisions based on the economic realities of the workplace.

The full decision, EEOC v. BE&K Eng'g Co., can be found at Magistrate Judge Thygne's website.

Monday Humor: From the Lighter Side of the Cubicle

Posted by Molly DiBiancaOn April 13, 2008In: Just for Fun

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Yes, it's here again. Another Monday. But fear not. We know that a little humor can go a long way to starting the week off right. April is, after all, National Stress Awareness Month, giving you even another reason to lighten up.

One certain source of stress is competition in the workplace. Just ask Katharine Hepburn and Barbara Streisand who, on April 14 ,1968, had to share the Best Actress Award at the Academy Awards following a tie between the two superstars.

Not that this is a reason to celebrate for most of us, but Tuesday brings Tax Day. And if the thought of writing a check to the IRS makes you wax poetic for the days when a dollar went much farther, maybe I should remind you that, the first McDonald's opened on April 15, 1955 in Des Plaines, Illinois. One dollar could buy quite a few hamburgers then, given the going rate per burger was 15 cents!

Then, on Wednesday, start your day with steak and eggs, or, more appropriately, with eggs benedict. This classic choice is particularly appropriate in light of the fact that April 16th is National Eggs Benedict Day.

Thursday, April 17, is the birthday of another classic, the Ford Mustang. If life in the fast lane isn't what you had in mind this week, just hang in there until Friday. Then you can end the week with some in-office entertainment with International Jugglers Day on April 18. The possibilities are endless, really.

Have a great week!

Better Late than Never: EEOC Issues Proposed Amendment to Regs for Disparate Impact Claims of Age Discrimination

Posted by Molly DiBiancaOn April 13, 2008In: Age (ADEA), EEOC Suits & Settlements

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In response to Smith v. City of Jackson, the EEOC has issued proposed regs addressing disparate impact claims brought under the Age Discrimination in Employment Act (ADEA).

It has been three years since the Supreme Court issued its decision in Smith v. City of Jackson, 544 U.S. 228 (2005). In Smith, the Court held that the ADEA authorizes claims of disparate-impact discrimination. The EEOC had taken this position long before the Court's decision.

The Court also held that the appropriate standard for determining the lawfulness of a contested practice is whether the practice can be justified by a "reasonable factor other than age" (the "RFOA test"). This was a departure from the more stringent, "business-necessity" requirement maintained by the EEOC. The new proposed regulation would reflect the City of Jackson decision. The proposed regulation also clarifies that the employer has the burden to show that a RFOA actually exists.

The text of the Notice of Proposed Rulemaking can be found in the March 31, 2008, edition of the Federal Register.

USCIS Releases Preliminary Number of FY 2009 H-1B Cap Filings

Posted by Molly DiBiancaOn April 10, 2008In: Immigration

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For background about the quickly developing H-1B events, see our prior posts here and here.

U.S. Citizenship and Immigration Services (USCIS) today made a preliminary estimate that approximately 163,000 H-1B petitions were received during the filing period. More than 31,000 were for the advanced-degree category.

The lottery-based selection process will begin next week with the selection of the 20,000 petitions under the advanced degree exemption. Those petitions not selected from the advanced-degree category will join the random selection process for the cap--subject to the 65,000 limit.

Blogs In the Workplace

Posted by William W. BowserOn April 10, 2008In: Age (ADEA), EEOC Suits & Settlements, Social Media in the Workplace

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It's 2008, do you know where your employees blog? Employers who fail to stay current with the popularity of blogging or who do not have a solid blogging policy in their Employee Handbook put themselves at a great disadvantage. Read on for some key points on the "whys" and the "hows" of a valid and comprehensive blogging policy.

Today’s Wall Street Journal features an article on blogger Heather Armstrong. Heather is most famous for being fired for writing about her co-workers on her blog, www.dooce.com. In fact, a blogger is “dooced” when he or she is terminated for blog comments.

Today, Heather is a full-time blogger writing mostly about her family life. Her blog is incredibly popular, receiving over a thousand hits each month. Her husband even quit his job to work on selling advertising for the blog.

The article causes one to think about just what risks employee run blogs pose for the workplace and how problems can be avoided.

Breach of confidentiality. A blogger may reveal confidential information about your company, including trade secrets. For example, a blogger complaining about a project assignment may, without thinking about the implications, reveal details of a new product that's under development. Or an accounting department blogger complaining about having to work an all-nighter on a big stock deal may inadvertently be revealing insider information.

Defamation. The freewheeling culture of blogging may encourage people to say things online that could defame their employer, management, co-workers, customers, or competitors.

Harassing or otherwise offensive content. Imagine, for example, a situation in which an employee with a disability is being accommodated with a modified work schedule in compliance with the Americans with Disabilities Act. The employer has properly responded to inquiries about the arrangement by saying only that the company is handling the individual's situation in accordance with federal law. A blogger complains that that "slacker" is being allowed to come and go as he pleases while the rest of the department suffers for it and speculates about the person's possible medical condition.

Or imagine a blogger spreading completely speculative rumors that a recently promoted colleague got the job by performing sexual favors for the boss. Conversation that shouldn't go unaddressed in the workplace can be extremely difficult to curb when it occurs anonymously in cyberspace.

Inappropriate content. Such content can range from postings that are disrespectful to your company to those that are completely unrelated to employment but may still reflect on you.

It's important that you cover blogging in your Internet or electronic communications policy. The policy should prohibit disparaging the company or its employees, customers, or competitors either by name or implication. As with your other policies, it should be communicated to employees when they're hired and periodically thereafter. It also should caution them that they must avoid creating the impression that the views expressed on a blog are anything more than personal opinions.

Following are some points you may want to cover in your blogging policy:
1. Persons who broadcast information regarding the company or its employees, customers, or competitors must make clear that views expressed in the blog are theirs alone and don't represent the views of their employer.

2. In blogging, as in any other communication, employees must respect the company's confidentiality and proprietary information. Employees should be reminded of the confidentiality provision in the employee handbook and, if they're required to sign confidentiality agreements, of their commitments under those agreements.

3. Employees who have questions about the blogging guidelines should direct their questions to a designated company official who will serve as the authority on the policy and on helping them understand how it applies to their situations.

4. As with all communications, persons communicating through blogs are expected to treat the company and it employees, customers, and competitors with respect.

5. The company may ask that certain topics not be disclosed for confidentiality or legal compliance reasons, and employees are expected to honor those requests.

6. Employees are responsible for ensuring that their blogging activity doesn't interfere with their work commitments, and they should be familiar with the company's other policies regarding Internet use, which also apply to blogs.
The benefit of a blogging policy is that it puts your employees on notice of the standards of conduct that apply to blog postings. If you then learn that an employee has violated the policy, you can address the situation through the normal disciplinary process. Before imposing discipline, however, remember that state laws differ and certain types of communications may be protected under state and federal law. You might consider consulting counsel before taking any disciplinary action.

New Castle County Reaches Settlement with AFSCME Local 459

Posted by Sheldon N. SandlerOn April 10, 2008In: Union and Labor Issues

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New Castle County’s blue-collar union ratified a three year contract, which provides for no cost-of-living increases in the next two years. The News Journal’s story on the settlement is located here. T

he agreement was reached after over a year of negotiations and reflects the tough economic times faced by New Castle County and other governments in Delaware. See our earlier post.

Bill Bowser and I will be discussing the state of public sector negotiations on April 16 at our Department’s Annual Seminar.

To register, contact Marie Willey at 571-4751. Cost is $95. Lunch is provided.

Young Conaway's John Paschetto Publishes a(nother) Great Legal-Writing Article

Posted by Molly DiBiancaOn April 10, 2008In: YCST

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Young Conaway's own John Paschetto, a partner in our Business Planning Group, received a bit of well-deserved attention in the blogosphere today. John's excellent article about best practices in proofreading was published in The Practical Lawyer. The article, titled Beyond Redlines And Spell-Check: Proofreading Tips From The Dark Ages can be accessed via the firm's website here.

The Legal Writing Profs Blog was the first to post on the quality of the article:

Don't you just hate it when you have e-mailed, filed, or otherwise dispatched some piece of writing, only to spot a glaring error that you overlooked? Or if your job description includes reviewing the work of others (ahem, legal writing profs, I am talking to you), don't you sometimes wonder how those writers could have missed seeing obvious errors?

Either way, you will enjoy reading an article by Delaware attorney John J. Paschetto, published in the February 2008 issue of The Practical Lawyer magazine, Beyond Redlines and Spell-Check: Proofreading Tips from the Dark Ages. Paschetto explains the difference between editing and proofreading, and he identifies many of the common forms of errors that writers tend not to see when reviewing their own work. He explains the advantages of proofing in stages, and he offers several low-tech strategies for catching and correcting such errors, including a checklist that illustrates his suggested method at work.

The (new) legal witer jumped in with a compliment, too.

In it, he explains the difference between editing and proofreading, advocates proofreading in stages, and offers valuable tips to increase the efficiency and effectiveness of your proofreading.

Of course, those of us who have been lucky enough to have their work edited by John, would attest that words like "great" and "excellent" fall far short. John has turned many first-year associates into real, live legal writers! And speaking as one of them, I think "miraculous" is probably the better adjective.

Congratulations to our Writing Guru In Residence!

H-1B Cap Reached After Just 7 Days

Posted by Molly DiBiancaOn April 9, 2008In: Immigration

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As expected, the US Citizenship and Immigration Service (USCIS) announced yesterday that it has received enough H-1B petitions, which are issued to temporary workers, to meet the cap for fiscal year 2009. The cap was reached just one week after the application period opened. The 20,000 H-1B cap for holders of advanced degrees has also been reached.

Before running the random selection process, USCIS will complete initial data entry for all filings received during the filing period ending on April 7, 2008. Due to the high number of petitions, USCIS is not yet able to announce the precise day on which it will conduct the random selection process. USCIS will reject, and return filing fees for all cap-subject petitions not randomly selected, unless found to be a duplicate. USCIS will handle duplicate filings in accordance with the interim final rule published on March 24, 2008 in the Federal Register.

The agency will conduct the selection process for “advanced degree” exemption petitions first. All “advanced degree” petitions not selected will be part of the random selection process for the 65,000 limit.