December 2009 Newsletter
The law firm of Klasko, Rulon, Stock & Seltzer, LLP is pleased to present our December 2009 newsletter covering immigration topics that are of interest to our clients.
- ICE Workplace Audits Stepped Up – ICE has stepped up audits of companies' hiring records to determine compliance with employment eligibility verification laws.
- USCIS Reminds Applicants for Travel Documents To Apply Early – USCIS issued a fact sheet outlining eligibility requirements, the consequences of traveling without advance parole for affected persons, and the possible consequences of using advance parole after being unlawfully present in the U.S. or to return to the country of claimed persecution.
- USCIS Updates H-1B FY 2010 Cap Count – The recent pace of filings suggests that H-1B numbers may be exhausted for this fiscal year very soon.
- State Dept. Cautions Waiver Travelers To Disclose Visa Delays as Denials – Certain travelers are advised to indicate that they have been refused a visa under INA § 221(g) when completing their ESTA registrations.
- USCIS Issues Guidance on I-140 Issues and Labor Certifications – The guidance notes, among other things, that government agencies have multiple immigration avenues for offers of permanent employment to professors or researchers.
- USCIS Temporarily Accepts Incorrectly Denied LCAs for Certain H-1B Cases – USCIS announced that it would temporarily accept certain H-1B petitions filed without LCAs that have been certified by the DOL for a 120-day period, through March 4, 2010.
- USCIS Releases Fact Sheet on 'Public Charge' Determinations – The agency noted, among other things, that receiving public benefits does not automatically make an individual a public charge.
- December Visa Bulletin Notes Reinstatement of Certain Religious Workers and Investor Pilot Program Categories – The two categories have been extended through September 30, 2012.
- SEVP Announces New Mailing Address, Phone Number – The Student and Exchange Visitor Program office has a new mailing address.
- NEXUS Frequent Border Crossing Enrollment Center Moves – The center has moved from International Falls, Minnesota, to Fort Frances, Ontario, Canada.
- January Visa Bulletin Shows Slight Movement for Eb-2 and Eb-3 Categories and Gives Projections for Movement through FY 2010 – The Department of State announced its projected cut-off dates for fiscal year 2010, showing movement in both the Eb-2 and Eb-3 categories.
- USCIS to Implement "Self-Check" Option for Foreign Nationals in E-Verify – USCIS has announced the foreign nationals will be able to verify employment authorization before applying for a job.
- Government Agency Links
- A Message from Our Chairman
- Klasko News – Upcoming and recent speaking engagements, publications, and more.
1. ICE Workplace Audits Stepped Up
As Klasko reported on November 20, 2009, U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton announced on November 19, 2009, the issuance of Notices of Inspection (NOIs) to approximately 1,000 employers across the U.S. that associated with critical infrastructure. The announcement alerted the business owners that ICE will audit their hiring records to determine compliance with employment eligibility verification laws.
The businesses served with audit notices were selected for inspection, ICE said, "as a result of investigative leads and intelligence and because of the business' connection to public safety and national security -- for example, privately owned critical infrastructure and key resources." The names and locations of the businesses were not released "due to the ongoing, law enforcement sensitive nature of these audits."
Audits involve a comprehensive review of Forms I-9 (Employment Eligibility Verification). Audits may result in civil penalties and lay the groundwork for criminal prosecution of employers who knowingly violate the law. ICE identified I-9 audits as "the most important administrative tool in building criminal cases and bringing employers into compliance with the law."
Statistics resulting from 654 audits announced in July included:
ICE closed 326 cases after businesses were found to be in compliance with employment laws or after businesses were served with a Warning Notice in expectation of future compliance.
- ICE agents reviewed more than 85,000 Form I-9s and identified more than 14,000 suspect documents, which was approximately 16 percent of the total number reviewed.
- As of November 19, 2009, 61 NIFs have been issued, resulting in $2,310,255 in fines. In addition, 267 cases are being considered for NIFs.
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2. USCIS Reminds Applicants for Travel Documents To Apply Early With The Holidays Coming
U.S. Citizenship and Immigration Services has reminded applicants for advance parole (permission to reenter the U.S. after traveling abroad) to apply early. USCIS said that travelers must obtain advance parole if they have been granted temporary protected status or have a pending application for (1) Form I-485 adjustment of status to lawful permanent residence; (2) relief under § 203 of the Nicaraguan Adjustment and Central American Relief Act; (3) asylum; or (4) legalization.
The USCIS fact sheet outlined eligibility requirements, the consequences of traveling without advance parole for affected persons, and the possible consequences of using advance parole after being unlawfully present in the U.S. or to return to the country of claimed persecution.
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3. USCIS Updates H-1B FY 2010 Cap Count
As of December 11, 2009, USCIS is reporting that approximately 62,900 H-1B cap-subject petitions had been filed. USCIS also has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000.
Based on the numbers periodically released by USCIS, the firm is predicting that the H-1B cap may be reached before or around the Christmas holiday. As of November 13, just over 55,000 of the 65,000 H-1B petitions available for this fiscal year (from now until October 1, 2010) have been used. Approximately 7,900 petitions have been filed in the last 4 weeks alone. As reported by Ron Klasko, USCIS officials on a panel at a NY AILA Conference informed the audience that the pace of H-1B filings had increased significantly in the past two weeks - about 2000 petitions were received in the short week before Thanksgiving alone.
Complicating matters is the new iCERT system used by the Department of Labor (DOL) to process labor condition applications (LCAs). The DOL originally anticipated that it could take up to seven business days to certify the LCA under the iCert system. However, the system has experienced problems that result in LCA certification delays. The most prevalent problem of the new system is the denial of LCAs when the DOL cannot verify the employer's Federal Employment Identification Number (FEIN). This occurs even on LCAs filed by employers who regularly submitted applications on the old system with no issues. Upon the receipt of an LCA denial notification from the DOL employers are instructed to provide the DOL with proof of the FEIN number through a specified email address. Once the employer locates this documentation and sends it to the DOL, it is taking up to ten additional business days to resolve the FEIN problem. Once the employer receives confirmation from the DOL that the FEIN issue has been resolved, they can then resubmit the LCA through the iCert system. This resubmission is, once again, subject to the seven day processing time.
Based on these LCA delays and the pace of H-1B filings with USCIS, employers should contact the firm immediately if they wish to sponsor an H-1B cap-subject employee for this fiscal year. After the H-1B numbers are exhausted, employers will be left with limited alternatives for hiring skilled foreign nationals when US workers are unavailable. Once the H-1B cap is met, the earliest an employer can file for an H-1B petition will be April 1, 2010 for a position with a start date of October 1, 2010.
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4. State Dept. Cautions Waiver Travelers To Disclose Visa Delays as Denials
The Department of State has taken the position that those who have applied for a visa that cannot be granted due to a need for further security clearances, or additional documents or information, have been effectively "denied" a visa and must disclose this when completing their ESTA (Electronic System for Travel Authorization) application should they later wish to use the Visa Waiver Program as a visitor while their visa application remains pending. This situation can be confusing because the applicants may have been told simply that their applications require further processing rather than that they have been denied, but then they may be refused admission later for misrepresentation if they do not disclose the denial. Such travelers are advised to indicate that they have been refused a visa under INA § 221(g) when completing their ESTA registrations. Those who have completed an ESTA registration without revealing the denial are advised to re-register and indicate the specifics. This is a fluid situation, and the Department's position is controversial. Consult a Klasko attorney for more specific guidance in particular cases.
The new Department of State position was made in consultation with U.S. Customs and Border Protection (CBP), which announced it to the American Immigration Lawyers Association's (AILA) CBP liaison committee. A public announcement by CBP is awaited.
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5. USCIS Issues Guidance on I-140 Issues and Labor Certifications
U.S. Citizenship and Immigration Services recently provided guidance on (1) determinations of whether a particular employer can sponsor an outstanding professor or researcher for a green card in connection with a permanent offer of employment; (2) procedures for determining whether a labor certification has been filed with a Form I-140 (Immigrant Petition for Alien Worker) during its validity period; and (3) various issues relating to labor certification applications approved by the Department of Labor and filed in support of I-140 petitions.
Among other things, the guidance clarifies that government agencies do not qualify as "private" employers for outstanding professor and researcher petition purposes, unless the government agency is shown to be a U.S. university or institution of higher learning. The guidance notes that government agencies that do not fit the new definition may have other available immigration avenues to offer permanent employment to professors or researchers. For example, the guidance notes, assuming all of the eligibility requirements for that visa preference category have been met, a government agency may request an "alien of extraordinary ability" green card classification.
The guidance also discusses the 180-day validity period for approved labor certifications that have an ending validity date that falls on a Saturday, Sunday, or federal holiday. USCIS said that it will accept the filing of I-140 petitions on the next business day where the supporting labor certification validity period ends on a Saturday, Sunday, or federal holiday.
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6. USCIS Temporarily Accepts Incorrectly Denied LCAs for Certain H-1B Cases
With the implementation of the new iCert system used for filing labor condition applications (LCAs), many employers experienced denied LCA applications when their federal employer identification (FEIN) numbers didn't match the numbers in the Department of Labor's database. In August and September 2009, the U.S. Citizenship and Immigration Services (USCIS) ombudsman received complaints about H-1B cases with incorrectly denied labor condition applications (LCA/ETA-9035) filed with the U.S. Department of Labor (DOL). The ombudsman said that LCA processing delays and errors at the DOL, when coupled with USCIS's current H-1B petition initial filing requirements, "are prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions." Employers are required to obtain a certified LCA as a precondition to filing an H-1B petition with USCIS. Untimely H-1B petition filings lead to problems, the ombudsman noted, including: (1) the potential loss of employees' legal status; (2) business operation disruptions due to the loss of continuity in the employment of key employees; and (3) economic loss to employees in the form of lost wages and costs of travel overseas because of the loss of status.
The ombudsman said that USCIS has the authority to mitigate these effects. The ombudsman recommended that USCIS: (1) reinstate its previous practice of temporarily accepting an H-1B petition (Form I-129) supported by proof of timely filing of an LCA application with the DOL, and issue a Request for Evidence (RFE) whereby the H-1B petitioner later provides the certified LCA; and (2) establish a temporary policy under which USCIS would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly rejected.
On November 5, 2009, USCIS announced that it would temporarily accept H-1B petitions filed without LCAs that have been certified by the DOL for a 120-day period, through March 4, 2010. USCIS noted, however, that it will only accept such H-1B petitions if they are filed at least seven calendar days after the LCAs were filed with the DOL, and the H-1B petitions include evidence of these filings. The only acceptable evidence of filing is a copy of the DOL's e-mail giving notice of receipt of the LCA.
Petitioners who seek to take advantage of this temporary flexibility in the normal filing procedures for H-1B petitions must wait until they receive a request for evidence (RFE) before they submit the DOL-certified LCA to USCIS in support of the H-1B petition, USCIS said. The agency will give petitioners 30 calendar days within which they must send in a DOL certified LCA in response to the RFE. USCIS will only approve H-1B petitions that include certified LCAs.
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7. USCIS Releases Fact Sheet on "Public Charge" Determinations
U.S. Citizenship and Immigration Services released a fact sheet on public charge determinations. The agency noted that although an individual who is likely at any time to become a public charge is inadmissible to the U.S. and ineligible to become a legal permanent resident, receiving public benefits does not automatically make an individual a public charge. The fact sheet outlines benefits that could make a noncitizen inadmissible as a public charge if other criteria are met, and also lists benefits that are for special purposes rather than income maintenance and therefore not subject to public charge consideration, such as Medicaid, Food Stamps, the Children's Health Insurance Program, foster care and adoption assistance, job training programs, and emergency disaster relief.
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8. December Visa Bulletin Notes Reinstatement of Certain Religious Workers and Investor Pilot Program Categories
The Department of State's Visa Bulletin for December 2009 notes that legislation in October extended the employment fourth preference "Certain Religious Workers" and employment fifth preference "Investor Pilot Program" green card categories for three years, through September 30, 2012.
Other employment-based categories generally have not budged since November's Bulletin, with the exception of the India third preference and "Other Workers" categories, which both advanced one month, to May 1, 2001.
The December 2009 Visa Bulletin is available at: http://www.travel.state.gov/visa/frvi/bulletin/bulletin_4587.html.
The January 2010 Visa Bulletin is available at: http://travel.state.gov/visa/frvi/bulletin/bulletin_4597.html.
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9. SEVP Announces New Mailing Address, Phone Number
The Student and Exchange Visitor Program office has a new mailing address. All correspondence should be mailed to: Student and Exchange Visitor Program, Attn: (Branch Name or Job Title), SEVP MS 5600, DHS/ICE, 500 12th Street, SW; Washington, DC 20598-5600. The new main telephone number is (703) 603-3400. E-mail addresses have not changed, so inquiries may be sent to SEVP via its previous e-mail address or via SEVIS.Source@dhs.gov. Also, the ICE Web site (http://www.ice.gov) layout has been updated, including the SEVP pages.
For a "faster resolution and response," SEVP recommends the following:
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10. NEXUS Frequent Border Crossing Enrollment Center Moves
U.S. Customs and Border Protection announced that the enrollment center for U.S. Customs and Border Protection's frequent border crossing program (NEXUS) moved on November 30, 2009, from International Falls, Minnesota, to Fort Frances, Ontario, Canada. The NEXUS Enrollment Center is now located at 301 Scott Street, Fort Frances, Ontario, Canada P9A 1H1. The hours of operation are Monday and Wednesday, 9 a.m. to 4 p.m., and Thursday, 11 a.m. to 7 p.m.
The NEXUS program allows pre-screened, low-risk travelers to be processed with less delay by U.S. and Canadian officials at designated highway lanes at high-volume border crossing locations. Approved applicants are issued a photo identification/proximity card. Participants present their NEXUS card and make a declaration. They are then released, unless chosen for a more stringent inspection.
Both the U.S. and Canada must approve an individual's application. Denial of an application by either country will prevent an individual from participating in the NEXUS program. NEXUS is a bi-national program and applicants need to complete only a single application form, which can be filled out online, mailed, or faxed.
Qualified applicants are required to come to a NEXUS Enrollment Center for an interview. Interviews can be scheduled online using the Global Online Enrollment system located on the NEXUS Web site.
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11. January Visa Bulletin Shows Slight Movement for Eb-2 and Eb-3 Categories
The Department of State issued its January 2010 Visa Bulletin. The new visa bulletin reveals little movement across employment-based immigration categories. The employment-based first preference (EB-1) category will remain current for all nationalities. Cut-off dates in the EB-2 category will remain stalled at January 22, 2005 for India, while they will advance slightly for China (May 1, 2005). The EB-2 category will remain current for all other countries.
The Eb-3 category cutoff for skilled workers is June 22, 2001 for India and July 1, 2002 for Mexico. The cutoff for China, Philippines, and all other countries is August 1, 2002. The cutoff for Eb-3 unskilled workers is June 1, 2001.
The January 2010 Visa Bulletin also stated that based on current indications of demand, the best case scenarios for cut-off dates which will be reached by the end of FY-2010 are as follows:
China: July through October 2005
India: February through early March 2005
Worldwide: April through August 2005
China: June through September 2003
India: January through February 2002
Mexico: January through June 2004
Philippines: April through August 2005
Please be advised that the above date ranges are only estimates which are subject to fluctuations in demand during the coming months. The actual future cut-off dates cannot be guaranteed, and it is possible that some annual limits could be reached prior to the end of the fiscal year.
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12. USCIS to Implement a Self-Check Option in E-Verify
U.S. Citizenship and Immigration Services Director Alejandro Mayorkas announced at a press conference on December 10, 2009, that the agency plans to incorporate a self-check option in the E-Verify system some time in 2010. The capability is intended to allow workers to verify their employment authorization before applying for a job. Eight days are allowed currently to address a "tentative nonconfirmation"; Mr. Mayorkas said the new capability will give workers time to correct any errors before they apply for a job, without having to meet an eight-day deadline.
Mr. Mayorkas also noted that the Verification Initiative for Business Enterprise (VIBE) Web-based program is expected to be launched in spring 2010. In a letter sent to Sen. Charles Grassley on November 10, 2009, outlining the VIBE program and discussing other issues, Mr. Mayorkas said that VIBE will use "commercially available data from [Dunn and Bradstreet] to validate and verify information submitted by organizations that petition to employ alien worker." Mr. Mayorkas said his agency believes VIBE "will provide adjudicators with a tool to accurately verify the financial viability and current level of business operations for employment-based petitions.
For more on E-Verify, please visit the firm's worksite compliance website: http://www.worksite-compliance.com/e-verify.php.
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13. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:
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14. Message from Our Chairman
My partners and I would like to extend a sincere "Thank You" during this holiday season. We are truly grateful for our loyal clients. We have always tried to show our appreciation for the trust you place in us by being responsive to your needs and by going the extra mile, and we intend to continue to do so in 2010. At this time, we also wish to thank our devoted and exceptionally talented staff, including our lawyers, paralegals and secretaries, who take such pride at being the best in what they do.
On behalf of all of us here at Klasko, Rulon, Stock & Seltzer, LLP, I wish our colleagues and clients all the blessings of this holiday season and a happy, healthy and successful 2010.
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15. Klasko News
New Associate Joins Firm
KRSS would like to welcome Jennifer Hermansky (Jen), who has joined the Firm as an Associate in our Philadelphia office. Jen will focus her practice on both employment-based and family-based immigration matters.
Jen is currently admitted to practice law in Pennsylvania and is a member of the American Immigration Lawyers Association (AILA). A graduate of Drexel University (B.S., summa cum laude, May 2005), Jen also received her law degree from Drexel University's Earle Mack School of Law (J.D., cum laude, May 2009). While in law school, Jen was invited to become an inaugural member of the Moot Court Board and competed at New York University's annual immigration moot court competition. Jen actually has a long history at KRSS. She first started working with the firm's partners as an intern in 2003, and later joined KRSS as a Legal Assistant prior to entering law school. While in law school, Jen served as a law clerk at the Firm and did excellent work for us on several important and innovative cases.
Jen has experience in a wide range of immigration matters, including nonimmigrant visas, labor certification applications, employment-based and self-sponsored immigrant petitions, family-sponsored immigrant petitions, waivers of inadmissibility, and federal court litigation for immigration issues.
November 26th marked a special birthday for the Firm's Managing Partner, H. Ronald Klasko (Ron). In commemoration of this event, the Philadelphia Eagles mascot, Swoop, paid a surprise visit to the firm's offices to help us celebrate. Swoop brought several gifts of Eagles paraphernalia for Ron, and did not leave before giving everyone in the office an autographed photo of himself and an enthusiastic high five.
Elise Fialkowski (Elise) and Kate Kalmykov (Kate) collaborated on a recent article in the Nation's Restaurant News entitled, "Immigration compliance vital to avoid fines, criminal sanctions." This article discusses the Department of Homeland Security's new approach to worksite enforcement actions. It discusses how DHS will now seek criminal penalties in addition to civil penalties in their crackdown of employers who employ unauthorized aliens. The article also discusses the agency's intention to audit the I-9, Employment Eligibility Verification Forms, of employers across the country. In their article, Elise and Kate offer valuable advice to employers in the restaurant industry on the importance of being proactive and taking action before a government audit or investigation is initiated — the most effective way of mitigating criminal liability, reducing civil liabilities and saving both time and money. Here is a copy of their article in its entirety.
Suzanne Seltzer (Suzanne) authored a timely article for The Legal Intelligencer this month entitled "Last Call for 2010 H-1Bs." In this article, Suzanne provides an analysis of this year's usage of the H-1B cap, notes that the H-1B cap is likely to be met by the end of the calendar year, and stresses the fact that, if the current H-1B quota is not sufficient even in this economy, it is likely to never be sufficient without legislative fix. To request a copy of this article, write to Suzanne at firstname.lastname@example.org.
Recently, Ron has been busy writing articles for a number of different publications. Listed below are some of Ron's most recent articles:
- "The Impact of the Four Precedent Decisions on EB-5 Practice"
- "Strategies for Documenting Lawful Source of EB-5 Invested Funds With Reference to ‘Documents to Prove Lawful Source of Invested Funds'"
- "Advising Clients on Regional Center vs. Individual EB-5 Petitions"
- "Tools for Foreign Buyers"
To request a copy of any of these articles, contact Ron at email@example.com.
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Disclaimer/Reminder: This newsletter does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed. Copyright © 2009 Alliance of Business Immigration Lawyers and Klasko, Rulon, Stock & Seltzer, LLP. All rights reserved.
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