For updates on comprehensive Immigration reform, click here.
For updates on ICE Enforcement Activity, click here.
USCIS NATURALIZES FIRST SOLDIER IN MILITARY PILOT RECRUITING PROGRAM
USCIS announced recently it naturalized the first nonimmigrant to enlist in the military under the Defense Department's Military Accessions Vital to the National Interest (MAVNI) pilot recruiting program. The one-year MAVNI pilot program will allow up to 1,000 non-citizens, who do not have permanent resident status but have been here legally for at least two years, to join the Army if they have the needed medical or foreign language and cultural expertise. Dr. Brown* enlisted in the Army in April, and in June, he applied to become a naturalized citizen. One month later, he passed his naturalization test and recited the Oath of Allegiance becoming a citizen of the United States. As a medical professional, Dr. Brown was commissioned as a Captain in the Army Medical Corps on July 3, and will serve in the Army for the next six years. While citizenship is not guaranteed, nonimmigrants who apply under the MAVNI pilot program must undergo the same background checks, security screening and meet all of the general qualifications to become citizens of the United States, as do all other members of the U.S. armed forces who apply for citizenship.
2011 DIVERSITY VISA LOTTERY REGISTRATION BEGINS OCT 2
DOS announces that the opening of the registration period for the DV-2011 Diversity Visa lottery. Entries for the DV-2011 Diversity Visa lottery must be submitted electronically between noon, Eastern Daylight Time (EDT), Friday, October 2, 2009, and noon, Eastern Standard Time (EST), Monday, November 30, 2009.
The DV Lottery program makes available visas to persons meeting simple yet strict, eligibility requirements. A computer-generated, random lottery drawing chooses selectees for DV. Applicants may access the Diversity Visa entry form (E-DV) electronically at www.dvlottery.state.gov beginning October 2. Paper entries are no longer accepted. No Entries will be accepted after noon EST on November 30, 2009.
Natives of the following country are NOT eligible for the DV lottery: BRAZIL, CANADA, CHINA, (mainland born), COLOMBIA, DOMINCAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, POLAND, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
OBAMA ADMINISTRATION TO TACKLE COMPREHENSIVE IMMIGRATION REFORM IN 2010 The Obama Administration recently announced it will not tackle Comprehensive Immigration Reform until 2010 despite hopes from immigration advocates for change this year. The lack of activity or discussion on the immigration issue on Capitol Hill this week confirms this.
Whether reform in the form of an amnesty for the undocumented will become a reality, the Washington Post reports that ‘the biggest debate [may likely be] over how to set levels for the ‘future flow' of immigrant workers. Business advocates will want to see a guest-worker program in place which accommodates economic growth while organized labor backed by American workers desire stronger protections for US jobs and wages. Any appreciable reform must necessarily seriously tackle both issues as well as enforcement, including penalizing US employers who employ illegal workers and those who transgress US Immigration laws. USCIS STILL ACCEPTING H1B PETITIONS
USCIS announced as of August 28, 2009, they received approximately 45,100 H1B cap-subject petitions and 20,000 cap exempt Advance Degree petitions toward FY2010. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits.
Last year, the cap, as in prior years was reached by May and the 65,000 visas were allocated to applicants via lottery. This year, due in large part to the downturn in the economy and wide-scale lay offs, H1B visas remain available. Those still seeking to get in under the cap should begin the application process if they have not yet done so.
U.S. GREEN CARDS AVAILABLE FOR HIGH ASSET INVESTORS
The EB5 Entrepreneur visa program presents a unique opportunity for persons with capital to invest in the US to obtain a green card. Foreign nationals with at least $1 million to invest in a new or existing business or at least $500,000 in an underserved area may obtain lawful permanent residency.
To qualify, foreign investors must demonstrate they have the required capital readily available to invest, the investor's personal assets are at risk, and that at least 10 jobs will be created for legal US workers and/or US citizens by the investment. They must also demonstrate they will be actively engaged in the day to day operation of the business. High asset foreign investors who invest in a designated Regional Center need only establish their investment created either direct or indirect jobs and they will participate in the policy making and major decisions of the business.
Regional Center investment opportunities exists in these and other sectors:
1. New commercial construction projects; 2. Orchards, Vineyards & Mixed Use Agriculture; 3. Entertainment Industry; 4. Rebuilding Communities; 5. Alternative Fuel Programs.
Interested investors should contact us for a consultation.
FEDERAL CONTRACTORS REQUIRED TO USE E-VERIFY AFTER SEPT 8, 2009
USCIS reminds all federal government contractors and subcontractors beginning Sept. 8, 2009, that they are required to use the E-Verify system to verify all employees' eligibility to work in the United States. Department of Homeland Security (DHS) Secretary Janet Napolitano strengthened employment eligibility verification by announcing the Obama Administration's support for the regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization.
E-Verify is a free web-based system operated by DHS in partnership with the Social Security Administration (SSA) which compares information from the Employment Eligibility Verification Form (I-9) against federal government databases to verify workers' employment eligibility.
OCTOBER 2009 VISA BULLETIN NOW AVAILABLE
The October visa bulletin revealed some minor movement in the family based categories and a disappointing lack of progress in the employment based numbers.
We will continue to update you as information becomes available.
GREEN CARD RENEWAL ADDRESS CHANGEEffective immediately, applications to renew or replace a green card must be filed at USCIS’ Phoenix, AZ lockbox at the following address. USCIS, P.O. Box 21262, Phoenix, AZ 85036.
For USPS Express and courier deliveries, use the following address: USCIS, ATTN: I-90, 1820 Skyharbor, Circle S Floor 1, Phoenix, AZ 85034. New forms with the new mailing address are available on USCIS’ website at www.uscis.gov. All green card holders must keep their card on them at all times. Failure to do so is a misdemeanor offense under Immigration law pursuant to section 264(e) of the Act, 8 U.S.C. 1304(E).
AFFIRMATIVE ASYLUM APPLICATION PROCEDURES CHANGE
Effective April 6, 2009, USCIS will no longer forward all affirmative asylum applications to the Department of State for review. DOS hopes to increase the efficiency of its review of asylum applications by this change. The affirmative asylum process allows individuals, who are physically present in the United States, regardless of their manner of arrival and regardless of their current immigration status, to apply for asylum. Previous regulation required USCIS (formerly Immigration and Naturalization Service (INS)) to forward to DOS a copy of each completed asylum application it receives. This practice is no longer in use. Instead, USCIS will send affirmative asylum applications to DOS only when it believes DOS may have country conditions information relevant to the case.
ALL ALIENS ENLISTED IN ARMED FORCES NOW EMPLOYMENT AUTHORIZED
New regulations closed the gap between US armed services personnel with work authorization and those without. Previous, only US citizens and noncitizen nationals of the United
States; lawful permanent resident aliens; and certain nationals of the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau who are admissible as nonimmigrants under the Compacts of Free Association with those nations, were eligible to enlist in the Armed Forces. Since the war in Iraq, US restrictions have relaxed to allow even persons illegally present in the US to enlist where the Secretary of one of the Armed Forces determines that enlistment is vital to the national interest.
Notwithstanding this inclusion, only those enlistees legally present in the US were considered authorized to work with their particular branch of the armed services. The final rule grants employer-specific work authorization to an alien to accept employment with a specific Armed Force prior to completing the enlistment process. An alien is so authorized when the Secretary of an Armed Force determines that the alien's enlistment would be vital to the national interest.
APPLICABILITY DATE FOR E-VERIFY FEDERAL CONTRACTOR RULE EXTENDED
The applicability date of the final rule requiring federal contractors and subcontractors to begin using U.S. Citizenship and Immigration Services’ (USCIS) E-Verify system has been pushed back by six weeks to June 30, 2009.
The amendment will be published in the Federal Register tomorrow. The rule requiring federal contractors and subcontractors to agree to electronically verify the employment eligibility of their employees was first published on Nov. 14, 2008, and went into effect on Jan 19, 2009.
The extension provides the Administration an adequate opportunity to review the entire rule prior to its applicability to federal contractors and subcontractors.
FLOUNDERING US ECONOMY SENDS MANY IMMIGRANTS PACKING
The deepening U.S. economic crisis and tougher immigration enforcement have triggered a dramatic shift in immigration patterns that previously saw millions of Mexican citizens go north for work. Not only are fewer migrants coming to the U.S., many workers have given up and returned home, especially in the heartland states of Guanajuato, San Luis Potosí, Querétaro and Michoacán. The Mexican government reported a sharp decline in the net outflow of Mexican immigrants during the 12 months ending in August, compared with the same period a year earlier. The flow of returning immigrants remained fairly constant in the past two years, with roughly a million coming home, based on quarterly surveys of residents.
Immigrants are going back to fewer jobs where the Mexican economy itself has shrunk. Corruption, weak infrastructure and lack of economic growth (Mexico predicts zero economic growth this year) have traditionally resulted in mass US migration of Mexican immigrants and those from further south of the border seeking work and to earn a living to support family members back home. Mexico reports they have already seen a spike in layoffs and shutdowns at factories. The Mexican government claims it is trying to create employment through street paving projects and other public works jobs, many of those returning immigrants are finding work there just as scarce. The sharp downturn in the US economy has resulted in the worsening of living standards for those lacking education as well as those here illegally as they often compete for the same jobs.
F-1 OPT STATUS AUTOMATICALLY EXTENDED WITH PENDING H1B PETITIONS
An Interim Final Rule (IFR), extends the period of optional practical training by 17 Months for those F-1 Students with STEM Degrees. The rule also expands Cap-Gap relief for all F-1 students with pending H-1B Petitions.
F-1 students who are the beneficiaries of a pending or approved H-1B petition that is subject to the annual cap will automatically have their F-1 status extended to cover the gap in employment authorization between the expiration of their EAD and the H1B start date. The cap-gap extension is automatic for eligible students. No separate application beyond the H1B Petition is needed. Nor will the student receive a new EAD to cover the additional time. Rather, the student will need to have their I-20 page 3 updated by providing the H-1B filing receipt or approval notice.
The updated I-20 is the only proof of continued employment authorization currently available to an affected student. This document serves as proof of continued employment authorization. This automatic extension is terminated upon the rejection, denial, or revocation of the H-1B petition filed on the F-1 student's behalf.
Deferred Enforced Departure and Work Permits Extended for Liberians
USCIS announced the extension of Deferred Enforced Departure and automatically extended through Sept. 30, 2009, employment authorization for Liberian nationals covered under Deferred Enforced Departure (DED). This is in response to President Obama’s recent announcement extending DED through March 31, 2010 for qualified Liberians and those persons without nationality who last habitually resided in Liberia.
DED was scheduled to end for Liberian nationals on March 31, 2009. However, President Obama believed compelling enough reasons existed to continue to defer enforced departure from the United States. The president’s determination continued the exclusion of some individuals from DED, including certain criminals, persons subject to the mandatory bars to Temporary Protected Status, and persons whose removal is in the interest of the United States.
In addition to automatically extending the validity of employment authorization documents for Liberian nationals covered under DED, USCIS will publish a notice in the Federal Register with instructions for these individuals on how to obtain employment authorization for the remainder of the 12-month DED extension, through March 31, 2010.
DOL REVAMPS PERM AND ONLINE LABOR CONDITION APPLICATION
Beginning April 15, 2009, the Department of Labor (DOL) will change its existing online systems used for H-1B, H-2B, and E-3 labor condition applications (LCAs), and its online PERM labor certifications significantly.
The new online system is called iCert and will require US employers and/or their attorneys to create a user account to access the online filing system. From one website portal, an employer and/or their attorney may file both LCAs and PERM applications online.
LABOR CONDITION APPLICATION CHANGES
DOL will continue to accept the use of the current LCA form through May 15 although users may begin accessing the new form on April 15, 2009. Beginning May 15, LCAs can only be filed through the new iCERT system, however, users may still access the old system for online status of pending cases.
The new LCA form requires users to input both the SOC (ONET/OES) code and occupation title and better syncs with the I-129 form in that it asks whether the position is for new employment, continuation of previously approved employment without change with the same employer, a change in previously approved employment, new concurrent employment, a change of employer or an amended petition.
The most notable change to the new filing system is that processing times will increase to as much as 7 business days before a decision is given. The current system generates an instant certification allowing employers and/or attorneys to process cases faster in light of the H1B cap fiasco.
The new system, however, will include official DOL review and certification for each LCA submitted.
PERM APPLICATION CHANGES
DOL will begin accepting its new PERM Form ETA-9089 on July 1, 2009. It will continue to accept the current form, however, through July 31. Beginning August 1, DOL will accept PERM applications filed only through its iCERT system. As with the LCA system, users can check case status for already filed cases after this time using the older system.
The new form allows employers to include DBA information as well as requires additional information about its current employees in the area of intended employment. The new form allows users to input more academic degree informationand allows for three alternative education degree requirements. Most notably, the new form includes the famous "Kellogg’s Language" asking the employer if it is willing to accept any suitable combination of education, experience or training which must be typed in manually in the current form. If the employer has had any recent layoffs, the system will prompt the user to provide detailed information concerning the layoffs.
USCIS TO RESUME PREMIUM PROCESSING OF I-140 PETITIONS MARCH 2, 2009
USCIS will begin accepting the Form 1-907 , Request for Premium Processing Service, on March 2, 2009 for forms I-140 on behalf of beneficiaries who meet the following requirements:
• Are the beneficiary of a form I-140 petition filed in a preference category that has been designated for premium processing service;
• Have reached the 6th year statutory limitation of their H-1B stay, or will reach the end of their 6th year of H-1B stay within 60 days of filing;
• Beneficiaries who are only eligible for a further H-1B extension upon approval of their Form I-140 petition under the provisions of AC21 Section 104(c)1 ; and
• Those who are ineligible to extend their H-1B status under section AC Section 106(a) of AC21
Those who believe they are eligible must submit a copy of the approved labor certification, I-94s and H or L approval notices and a copy of the I-140 Petition or receipt notice. The PP filing fee is $1000.00.
US MILITARY - PATH TO CITIZENSHIP
The Secretary of Defense authorized the military services to recruit up to 1,000 legal immigrants whose skills are "vital the to the national interest." This includes nurses, doctors, and experts in certain languages with associated cultural backgrounds. To be eligible, the applicant must meet the following criteria:
• Be in one of the following categories at time of enlistment:
1. asylee, refugee, Temporary Protected Status (TPS), or
2. nonimmigrant categories: E, F, H, I, J, K, L, M, O, P, Q, R, S, T, TC, TD, TN, U, or V
• Been in valid status in one of those categories for at least two years immediately prior to the enlistment date. (Recruits do not have to be in the same category as the one held on the date of enlistment); and
• If eligible on the basis of a non immigrant category at time of enlistment not have had any single absence from the United States of more than 90 days during the two year period immediately preceding the date of enlistment.
The army is particularly interested in recruits who are proficient in languages, and are willing to enlist for four years of active duty. Since September 11, 2001, about 43,000 members of the Armed Forces have attained their citizenship while serving in th military as a result of the July 22, 2002 Executive Order.
USCIS recently announced that Federal contractors and subcontractors will be required to begin using the it's E-Verify system starting May 21, 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.
The policy enforces a rule that has been in place since 1996 and will ensure that the federal government does business with companies that only have a legal workforce. This new rule will require contractors to agree to use the E-Verify system to confirm employment eligibility for those hired during a contract term, as well as its current employees who perform contract services for the federal government within the United States. The rule takes effect May 21, 2009.
Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. They will also need to begin using the E-Verify system to confirm that all of their new hires and their employees directly working on federal contracts are authorized to legally work in the United States.
MORE THAN 100,000 US EMPLOYERS NOW USE E-VERIFY
U.S. Citizenship and Immigration Services (USCIS) announced today that more than 100,000 employers have signed up to participate in E-Verify, the online system allows employers to quickly and effectively verify employment eligibility of newly-hired employees.
The Bratton Corp., a construction products supplier from Kansas City, Mo., employing about 200 people in Kansas City and Pasadena, Calif., is the 100,000th employer to participate in E-Verify.
Employers have run more than two million queries through the system since October 2008, and have been able to automatically verify more than 18 million workers’ eligibility since 1997. USCIS has launched major enhancements since E-Verify’s inception to improve the accuracy of the system’s automatic confirmation processes, including verifying naturalized citizens directly with USCIS records.
Plans are underway to enhance the system further including amending the list of acceptable identity documents workers may present to employers to verify employment eligibility and adding passport data and photos to the system to reduce identity theft.
Beginning in January 2009, the federal government will also require that certain federal contracts contain a clause requiring the contractor and certain subcontractors to use E-Verify to verify employment eligibility for its workers and subcontracted employees.
15 states now require certain employers to participate and comply in some manner with a federal work authorization verification program. The program is administered in partnership with the Social Security Administration.
ATTORNEY GENERAL DECLARES IMMIGRANTS HAVE NO CONSTITUTIONAL RIGHT TO COUNSEL BEFORE BEING DEPORTED
On January 7, 2009, in Matter of Compean, 24 I & N Dec. 710 (A.G. 2009), US Attorney General Michael Mukasey declares immigrants, asylum seekers, and all others in removal (deportation) proceedings do not have any right under statute or the Constitution to representation by a lawyer before they can be ordered deported.
According to the Attorney General, because there is no legal or constitutional right to a lawyer, immigrants do not have the right to legal counsel and thus no right to complain or request a new hearing when their lawyer is incompetent or fraudulent. In certain circumstances, however, a motion to reopen may be appropriate.
While the decision on its face appears to be a gutting of prior protections, in actuality it overrules prior protections only to the extent that it found ineffective assistance of counsel to not be a deprivation of due process of law. It nevertheless preserves the practice of granting reopening of a case due to "deficient performance of counsel" on similar grounds as prior caselaw except that in Compean, the grounds and procedure for such motions have been clarified to a greater degree.
The AG’s decision requires that the error be "eggregious" and not simply "ordinary error". The decision is only controlling as to matters before the Board of Immigration Appeals and not to cases presented at the Federal Appeals level such as the 9th Circuit. There ineffective assistance of counsel is still considered a deprivation of due process allowing for relief.
To read the Attorney General's deicsion, click here
TRAFFICKING AND IMMIGRANT CRIME VICTIMS GET RELIEF!
Both the House and the Senate unanimously passed the "William Wilberforce Trafficking Victims Protection Act of 2008" (TVPRA) which reauthorizes the Trafficking Victims Protection Act of 2000. This was a long and hard-fought battle with many challenging issues. The Act contains notable provisions improving protections and services for victims of human trafficking and immigrant victims of crimes. They include:
Increased transparency in federal anti-trafficking grants
Shifting adjudication from DOJ to DHS on law enforcement cooperation requirements for T (trafficking) and U (victims of criminal activity) visas and their subsequent applications for lawful permanent residence
Expanding protection of family members of adult trafficking victims including allowing unmarried minor siblings and parents and allowing for the parole for these qualified family members of a victim with continued presence.
Broadening the T-visa physical presence requirement to allow for those having arrived in the U.S. to participate in an investigation or prosecution
Extending T and U nonimmigrant status beyond expiration in exceptional circumstances and for those with pending applications for lawful permanent residence
Authorizing employment for those with a bona fide U non immigrant visa applications
Exempting T visa holders whose trafficking victimization occurred when they were minors from proving ongoing cooperation in order to obtain permanent residence
Waiving the good moral character requirement for T-visa holders applying for lawful permanent residence if the disqualifications are incident to the act of trafficking
Commissioning a report of Vermont Service Center regarding funding, training, supervision, staff retention, protection of VAWA confidentiality provisions, and processing times
This information is made available through Legal Momentum's Immigrant Women's Program. To read the full text of the TVRPA, click here.
USCIS MAKES MAJOR STRIDES DURING 2008
U.S. Citizenship and Immigration Services reports that it has made much progress this year by hiring and training new employees, decreasing application processing times for naturalization, refugee, and asylum applications, and decreasing the backlog of pending FBI name checks. Here is a summary USCIS’s improvement in 2008:
1) The average processing time for naturalization applications received in 2007 is now 9-10 months, a major decrease from the projected16-18 months. By the end of 2009, USCIS hopes to have this processing time down to five months.
2) USCIS hired 2,058 new employees increasing its workforce by 24%.
3) USCIS employees conducted naturalization interviews on weekends, after normal business hours and have traveled to additional locations to help reduce processing times.
4) USCIS and the FBI worked to eliminate all pending name checks more than two years old and reduced the number of cases waiting for a name check from 35,000 to less than 37, 000. The agency hopes to eliminate all name checks pending for more than six months by early 2009.
5) USCIS admitted more than 60,000 refugees from all over the world, the highest level of admissions since 2001. This includes about 13, 800 Iraqi refugees. USCIS officers were deployed to 71 countries to interview over 100,000 refugee applicants.
6) The USCIS Asylum Division completed more than 47,000 asylum applications.
7) More than 92,00 employers are currently using E-verify, a system used to verify work eligibility and social security numbers of new employees. This year more than 6.6 million employment verification queries were run.
The USCIS will continue to work towards providing more timely service in 2009.
USCIS NATURALIZES 186 SERVICE MEMBERS IN IRAQ
More than 43, 000 members of the U.S. military service have become naturalized citizens since the "War on Terrorism" began in 2003. About 6,000 of these naturalizations have taken place overseas "in far reaching corners of the world from Afghanistan to Djibouti," says U.S. Citizenship and Immigration Services Director, Jonathan Scharfen. Recently, on November 4, 2008, Scharfen administered the Oath of Allegiance to 186 members of the military service in Iraq. The naturalization ceremony honored all U.S. military veterans and those that continue to serve in the armed forces as well. USCIS hopes to eliminate the need for overseas naturalization by processing military naturalization cases before deployment.
USCIS offers job opportunities to severely wounded or disabled soldiers through the Wounded Warrior Recruitment Program.
SEVEN COUNTRIES ADDED TO VISA WAIVER PROGRAM LIST
The Bush Administration today announced that the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, and South Korea have been added to the list of countries whose citizens do not require a visa to visit the U.S. These countries have traditionally had fewer citizens seeking to enter the United States compared to other countries. Each of these nations already allow American citizens to travel to their countries visa-free.
NEW TN STATUS VALID FOR 3 YEARS VS. 1 YEAR
In a smart move, the Department of Homeland Security (DHS) amended its regulations to allow Canadian and Mexican citizens who seek temporary entry to the United States as professionals pursuant to the TN classification under NAFTA to remain for 3 years versus 1 year. This will eliminate the need for those in TN status to renew their applications every year.
This final rule also allows otherwise eligible TN nonimmigrants to be granted an extension of stay in increments of up to three years instead of the current maximum of one year. From the Federal Register / Vol. 73, No. 201 / Thursday, October 16, 2008.
CIUDAD JUAREZ LAUNCHES ONLINE INQUIRY SYSTEM
The U.S. Consulate General in Ciudad Juarez now offers an inquiry system for attorneys with clients processing at that location. The U.S. Consulate General in Ciudad Juarez processes all immigrant visa cases from Mexico as well as non-immigrant and American citizen services.
The new system will hopefully allow the Consulate to quickly respond to inquiries while giving attorneys a quick and secure way of communicating with the Consulate. The online system is meant to eliminate the new for more arduous communications between the parties including phone, fax or regular mail. It is expected that an response to an email inquiry will be received within 5 business days. This service has already been in effect for many other consulates and has proven to work well in most cases.
The new online system is for attorneys representing clients only. Family members or applicants wishing to make an inquiry should continue to use the Consulate\'s call center at 1-900-476-1212 if calling from the United States or 01-900-849-4949 if calling from Mexico.
H1B UPDATES AND ALTERNATIVES TO THE H1B VISA
USCIS reported that they received well over 90,000 new H1B Petitions this year. Each year, only 65,000 H1B visas are available despite the great demand. While most of those selected for an H1B number have received a receipt notice, many have not received the I-797 Receipt notice, which most likely means they did not make it in under this year's cap. Those who can verify that USCIS has cashed their filing fee checks but who have not yet received a notice may still count themselves in the running for an H1B number. USCIS has indicated it will begin to return H1B packets with the uncashed checks this week for all unsuccessful applicants.
Those who were not fortunate enough to get in under the cap should not lose hope but should review other alternatives to the H1B visa includnig the J-1 Management Trainee visa. For those workers who have earned a Master's Degree or higher, or whose positions require at least a Bachelor's degree plus 5 years of progressively responsible experience, may qualify under the EB2 Visa category for an immigrant visa which has no backlogs. Other viable alternatives include an E2 Investor visa, L1A or L1B IntraCompany Transferee visa and even an F-1 Student Visa. Our office has successfully assisted many individuals in procuring these alternative visas in the past.
NEW DRIVERS LICENSE REQUIREMENTS TO COMBAT IDENTITY THEFT & TERRORISM
The U.S. Department of Homeland Security (DHS) announced today a final rule establishing minimum security standards for all state-issued drivers’ licenses and identification cards. The rule is to guarantee uniform standards concerning the integrity and reliability of drivers’ licenses and i.d. cards and increase security at drivers’ license and identification card production facilities.
States will be required to verify proof of the identity and U.S. citizenship or legal status of an applicant to ensure that those unlawfully present in the U.S. cannot obtain REAL ID licenses; verify the source documents provided by the applicant; ensure information and security features are incorporated into each card, as well as ensure appropriate safeguards as to the security standards for all offices issuing licenses and identification cards.
The deadline for states to comply with REAL ID is Dec. 31, 2009. Some states are expected to be compliant well before that time. The new Driver’s Licenses and state-issued ID cards will be required to enter federal facilities and buildings, to board commercial aircraft, and to enter other secured facilities.
DHS will make approximately $360 million available to States to assist with REAL ID implementation - $80 million in dedicated REAL ID grants and another $280 million in general funding as part of the Homeland Security Grant Program.
DOCUMENT AND ID FRAUD
In a recent DHS Press Release, the government addressed the growing problem Americans face from document fraud. In a Public Opinion Strategies poll taken last year more than 80 percent of the American public favored secure identification to prevent terrorism and identity theft.
Identity theft has increased by nearly 800 percent from 2000 to 2006, according to the Federal Trade Commission. U.S. Immigration and Customs Enforcement agents in ongoing raids at job sites made 863 criminal arrests during various worksite enforcement operations in fiscal year 2007. Of these, more than 500 people were criminally charged with crimes relating to federal and state document fraud. The Identity and Benefit Fraud Unit also made 1,211 criminal arrests for document fraud related charges. The U.S. Secret Service made 4,348 arrests last year for identity theft or financial fraud crimes, accounting for approximately $690 million in actual fraud loss to individuals and financial institutions. In a sampling of Secret Service identify theft cases from 2000 to 2006, fraudulent drivers’ licenses were used 35 percent of the time.
With these statistics, you cannot afford not to protect yourself. KROLL FRAUD SOLUTIONS, the number one risk management consultant company in the world used by governments and corporations across the globe can protect you and your loved ones by providing 24 hour credit monitoring, notifying you daily with credit alerts for any potential unauthorized activity, as well as valuable credit Restoration services for as little as $12.95* per month for you and your spouse. *$9.95 per month when you sign up for a life events legal plan. For more information, click here.
WHAT HAPPENS DURING AN ICE RAID
Being caught in an ICE (US Immigration &Customs Enforcement) raid whether you are legally present in the U.S. or not can be quite a scary experience. ICE is the enforcement arm of US Citizenship &Immigration Service. Over the past several years, ICE has been actively targeting companies and neighborhoods where foreign nationals are typically known to work or reside. Consequently, the raid is one of the most effective tools employed by ICE today. The elements of surprise, intimidation and shock are successfully employed to catch companies in particular off guard.
Armed ICE agents surround the premises, effectively sealing all exits and routes of escape. The supervising agent serves the search warrant on either the receptionist or other company representative and alerts other agents that entry has been made. Once the warrant has been served, the agents by law may gain entry.
ICE may demand that no one be allowed to leave without permission. Employees are usually then corralled into contained areas for questioning. While people are being questioned, ICE are usually searching the premises for evidence to either incriminate or relieve the employer from liability. Often, employees do not have their immigration documents on them, however, Human Resources personnel can retrieve copies from their I-9 files or family can be contacted to bring the original documents to the company to exonerate those that are legally present and employed.
ICE agents are empowered to arrest employees who are unable to prove legal status and take them to various detention centers to initiate removal (deportation) proceedings. ICE agents are also empowered to share incriminating evidence on employers and staff members with appropriate Federal agencies and officials to initiate criminal and civil actions for violation of US Labor and immigration laws.
During the interrogation process, it is not uncommon for employees to be grilled by ICE agents regarding their immigration status, how he or she got the job, whether any company representatives assisted in procuring false documents, whether the company had actual or constructive knowledge of the person's undocumented status and how many other undocumented employees work at the facility. In exchange for a work permit, the employee may be asked to work as an informant or provide information about the Company and its hiring practices.
Companies who have been notified that they are under scrutiny by ICE or any other Federal agency should contact their counsel to see if they are available to assist during a raid or to help prevent a raid by ensuring the Company is following US law and maintains proper documentation.
I-140s FOR EXPIRING LABOR CERTS MUST BE RECEIVED BY FRIDAY, 1/11/08
The DOL rule establishing a 180-day validity period for labor certifications approved before July 16, 2007, sets January 12, 2008, as the expiration date for those labor certifications, and establishes that an I-140 must be filed with the USCIS prior to the expiration of the labor certification. USCIS Service Center Operations (SCOPS) has informed AILA that all I-140s must be received by the Service Centers by close of business (5pm) on Friday, January 11, 2008 in order to qualify under the DOL January 12, 2008 cutoff.
USCIS REACHES H-2B CAP FOR SECOND HALF OF FISCAL YEAR 2008
USCIS announced today that the H-2B Cap for the second half of FY2008 has been reached. Applicants for temporary labor must wait until next year to file applications for temporary or seasonal help for FY2009 which begins on October 1, 2009. The reaching of the H-2B cap for temporary and seasonal workers poses a huge problem for many employers, particularly those in the farming and agricultural industry who rely heavily on this labor force in order to produce. Theme parks and ski resorts also use the H-2B program to procure adequate staff.
The H-2B program is heavily proscribed and requires employers to demonstrate to both US Department of Labor and USCIS that the need for labor is only temporary, to fill a peakload or seasonal need and that the employees will not be part of the regular labor force. Applicants have a narrow window of opportunity in which to file and meet all requirements for approval.
DOCUMENTING TIMELY DEPARTURE FROM THE U.S.
An applicant applying for admission to the U.S. or for lawful permanent residency may be required to prove that he or she did not overstay at any time in the past. This can be quite challenging if the applicant failed to keep track of their timely departures in the past. Even for those who do not believe they will apply for lawful permanent residency should be prepared to keep evidence of all entries and departures in case they change their minds. While typically, USCIS relies on its own information, often due to lags in data collection and gathering, CBP the Agency charged with collecting departure information from departing non-US citizens and permanent residents, this information is not in their system. This does not prevent them from requesting this information from an Applicant to prove that they are not inadmissible.
Evidence such as airline tickets, flight manifests, travel itineraries, entry stamps from one's home country in their passports can serve as the requisite documentation for this purpose. Documenting timely departure can make a difference between approval of one's application for a subsequent entry or work visa as well as an application for permanent residency.
ORAL DECLARATIONS NO LONGER SATISFACTORY TO ESTABLISH CITIZENSHIP AND IDENTITY
From the Department of Homeland Security
Bureau of Customs and Border Protection
Effective January 31, 2008, US., Canadian and Bermudian citizens entering the United States at land or sea ports-of-entry must establish their identity and citizenship by way of documentary evidence such as a birth certificate or passport to enter the U.S. In the past, in certain limited circumstances, U.S. Customs and Border Protection (CBP) Officers were empowered to admit a person claiming to be a U.S. citizen on the basis of an oral declaration. CBP is now amending its field guidance procedures to instruct CBP officers that proving citizenship based only on an oral declaration will no longer be allowed.
Effective January 31, 2008, all travelers will be expected to present documents proving citizenship, such as a birth certificate, and government-issued documents proving identity, such as a driver's license, when entering the United States through land and sea ports of entry.
DOL REGULATIONS ELIMINATE SUBSTITUTION OF BENEFICIARIES AND MORE
On May 17, the Department of Labor issued regulations which eviscerate the current Labor Certificate Program with substantial changes. We summarize these changes below:
1) Prohibits an employer from substituting a new beneficiary in an approved labor certification (PERM application);
2) Mandates the validity period of an approved labor certification application to only 180 days. If the employer fails to file an immigrant visa petition with the USCIS within 180 days after the PERM application is approved, it is void;
3) Prohibits the beneficiary from paying attorneys fees for a labor certification or a PERM application including the cost of preparing, filing and obtaining certification.
From the Federal Register, "The rule prohibits the sale, barter or purchase of permanent labor certifications and applications. In addition, this rule requires employers to pay the costs of preparing, filing and obtaining certification. An employer's transfer to the alien beneficiary of the employer's costs incurred in the labor certification or application process is strictly prohibited. The rule makes clear an alien may pay his or her own legitimate costs in the permanent labor certification process, including attorneys' fees for representation of the alien. The rule also reinforces existing law pertaining to the submission of fraudulent or false information and clarifies current DOL procedures for responding to incidents of possible fraud. Finally, the rule establishes procedures for debarment from the permanent labor certification program. Consistent with the proposed rule, the provisions in this Final Rule apply to permanent labor certification applications and approved certifications filed under both the Program Electronic Review Management (PERM) program regulation effective March 28, 2005, and prior regulations implementing the permanent labor certification program. This rule also clarifies the Department's ''no modifications'' policy for applications filed on or after March 28, 2005, under the new, streamlined PERM process."