Please join us for our tenth annual spring seminar addressing current topics of interest for professionals involved in employment-based immigration.
USCIS began accepting cap-subject petitions on April 1, and will likely reach both caps by April 7.
USCIS discussed targeted employment areas, among other things.
The U.S. Supreme Court denied certiorari in several recent cases relating to local ordinances aimed at undocumented persons
The total penalty sought was $21,598.50, which was reduced to $9,450.
DOS plans to conduct on-site inspections of J-1 internships and training programs.
7.DOL Adds Q&A to FAQ Re Notification and Consideration of Laid-Off U.S. Workers for PERM Labor Certification Applications
An employer must make a reasonable, good-faith effort to notify each potentially qualified U.S. worker who has been laid off during the six months preceding a PERM application whenever a relevant job opening exists, and invite the worker to apply.
New office address, upcoming and recent speaking engagements, publications, and what you may have missed.
1. KILP Annual Spring Seminar is Tuesday, April 29, 2014 – Register Now![Back to Top]
2. Next Steps for H-1B Petitions for FY 2015
On April 1, 2014, the U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions subject to the fiscal year (FY) 2015 cap. Cases will be considered accepted on the date that USCIS receives a properly filed petition with the correct fee. USCIS will not rely on the date that the petition is postmarked.
The congressionally mandated cap on H-1B visas for FY 2015 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.
USCIS anticipates receiving more than enough petitions to reach both caps, but will continue accepting petitions until April 7, 2014.
The agency said it will use a random selection process to meet the numerical limit. Given some reported courier-related delivery delays, the agency has also said that in some instances duplicate petitions will be accepted.
Due to the high level of premium processing receipts anticipated, USCIS has temporarily adjusted its current premium processing practice. To facilitate the prioritized intake of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases no later than April 28, 2014. USCIS guarantees a 15-calendar-day processing time.
USCIS will continue to accept Form I-907, Request for Premium Processing Service, with fee, concurrently with the Form I-129, Petition for Nonimmigrant Worker, while premium processing is unavailable. Petitioners may also upgrade a pending H-1B cap petition to premium processing once USCIS issues a receipt notice.
While the Form I-797 receipt notice indicates the date USCIS received the premium processing fee, the 15-day processing period will begin no later than April 28, 2014, as noted above. This allows for USCIS to take in the anticipated high number of filings, conduct the lottery to determine which cases meet the cap, and prepare the volume of cases for premium and regular processing.
The 15-day processing period for premium processing service for H-1B petitions that are not subject to the cap, or for any other eligible classification, continues to begin on the date the request is received.[Back to Top]
3. 3.USCIS Holds Teleconference with EB-5 Stakeholders
U.S. Citizenship and Immigration Services (USCIS) held a teleconference on February 26, 2014, with EB-5 stakeholders. Nicholas Colucci, the new director of USCIS’s Immigrant Investor Program Office, led the teleconference.
Among other things, USCIS said that it is now adjudicating I-924 regional center petitions and I-526 alien entrepreneur petitions in the Washington, DC, field office, but that it continues to adjudicate I-829 removal of conditions and I-485 adjustment of status petitions at the California Service Center for the time being.
USCIS also said it is moving toward greater use of its Electronic Immigration System (ELIS) and has implemented it for intake of I-526 petitions. The agency said it plans to offer webinars on the features of the document library, which allows regional centers to provide electronic versions of certain documents.
USCIS noted that regional center geographic area expansion must be contiguous to approved geographic areas. USCIS said it reviews such expansions on a case-by-case basis to determine whether the expansion will promote economic growth, frequently focusing on the supply chain and labor pool.
Targeted employment areas (TEAs) have been a hot topic for EB-5 stakeholders. USCIS noted that a TEA need not be singular and a new commercial enterprise can be principally located in, doing business in, and creating jobs in a collection of TEAs.
USCIS also confirmed that a high unemployment TEA must be established by a letter from an authorized body of the government of the state in which the new commercial enterprise is located, certifying that the geographic or political subdivision of the metropolitan statistical area, or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business, has been designated a high unemployment area.
As of February 1, 2014, USCIS had approved approximately 440 regional centers. The agency said the average processing time for both regional center cases and direct EB-5 cases is 11 months, but that processing may take longer temporarily due to staffing issues. The agency also said it is planning new EB-5 regulations and a policy guidance manual.
The list of EB-5 regional centers by state is available at http://www.uscis.gov/general-keywords/eb-5. This article is based on multiple reports; USCIS has not yet released a summary of the teleconference.[Back to Top]
4. Supreme Court Denies Certiorari in Local Ordinance Cases
The U.S. Supreme Court denied certiorari on March 3, 2014, in several recent cases relating to local ordinances aimed at undocumented persons.
In City of Hazleton v. Lozano, the U.S. Court of Appeals for the Third Circuit had held that local ordinances in the city of Hazleton, Pennsylvania, prohibiting the knowing harboring of undocumented persons in rental housing or hiring them, was unconstitutional.
In City of Farmers Branch v. Villas at Parkside Partners, the U.S. Court of Appeals for the Fifth Circuit had held that local ordinances in the city of Farmers Branch, Texas, prohibiting the knowing harboring of undocumented persons in renting housing in the city, was unconstitutional.
Information about Hazleton is available at http://www.scotusblog.com/case-files/cases/city-of-hazleton-v-lozano/. Information about Farmers Branch is available at http://www.scotusblog.com/case-files/cases/city-of-farmers-branch-v-villas-at-parkside-partners/.[Back to Top]
5. OCAHO Reduces Employer's Fines for I-9 Violations
The Department of Justice’s Office of the Chief Administrative Hearing Officer (OCAHO) recently reduced fines imposed on New Outlook Homecare, LLC, for violations related to the Form I-9, Employment Authorization Verification. The complaint filed by U.S. Immigration and Customs Enforcement (ICE) alleged that New Outlook failed to ensure that employees properly completed section 1 of the I-9 and that the company failed to properly complete sections 2 or 3 of the form for 22 employees. One of the charges was subsequently dropped because it was for the owner of New Outlook, for which no I-9 was required.
The total penalty sought was $21,598.50, which OCAHO reduced to $9,450. New Outlook characterized the violations as minor clerical errors, but OCAHO said there were “serious substantive errors” in the completion of section 2 of the forms. Section 2 for all but three employees was blank. The forms contained no signatures attesting that New Outlook had examined documents to verify the employees’ identities and authorization to work in the United States. OCAHO noted that case law confirms that such failures constitute serious violations.
ICE had calculated a baseline penalty in accordance with internal agency guidance that sets a penalty of $935 for each violation when the employer’s error rate exceeds 50 percent. An ICE auditor stated that the government mitigated the penalty by 5 percent based on New Outlook’s status as a small business, but aggravated the penalty based on the seriousness of the violations. ICE initially aggravated the fine by 5 percent based on a lack of good faith, but later treated this factor as neutral, as it did the remaining statutory factors: the absence of any history of previous violations and the absence of unauthorized workers.
OCAHO found that although the violations were serious, penalties at or near the maximum permissible “should be reserved for more egregious violations than have been demonstrated here.” Penalties should be sufficiently meaningful to deter future violations but should not be “unduly punitive” in light of the respondent’s resources, OCAHO said. Given the nature of the business and considering the record as a whole “in light of the general public policy of leniency toward small entities,” OCAHO adjusted the penalties “closer to the midrange of permissible penalties,” setting the fines at $450 per violation, for a total of $9,450.
The decision is available at http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Looseleaf/Volume10/1210.pdf.[Back to Top]
6. State Dept. Announces J-1 On-Site Inspections
The Department of State recently emailed J-1 exchange visitor sponsors to announce that it plans to conduct on-site inspections of J-1 internships and training programs. The visits may be both planned and unannounced. J-1 inspectors may want to speak with responsible officers, supervisors, employees, trainees, and interns, and to inspect facilities, housing, and health insurance arrangements. Inspectors also may review signed Forms DS-7002, Training/Internship Placement Plan, for interns or trainees.[Back to Top]
7. 7.DOL Adds Q&A to FAQ Re Notification and Consideration of Laid-Off U.S. Workers for PERM Labor Certification Applications
The Department of Labor’s Employment and Training Administration has added a new question and answer (Q&A) to its frequently asked questions (FAQ). The new Q&A concerns notification and consideration of laid-off U.S. workers for PERM labor certification applications.
The new Q&A asks, “How does an employer demonstrate that it notified and considered laid-off U.S. workers for the job opportunity listed on the ETA Form 9089?” The answer notes that some employers have misconstrued the regulations to require only that they inform workers when laid off that the employer may have future positions and inviting the worker to monitor the employer’s job postings and apply, rather than their actively notifying and considering the laid-off workers. In fact, the Q&A notes, misapplication of the regulatory requirements will result in denial of a PERM application. The employer must make a reasonable, good-faith effort to notify each potentially qualified worker who has been laid off during the six months preceding the application whenever a relevant job opening exists and invite the worker to apply.
The Q&A notes that an employer who files multiple labor certifications can satisfy its responsibilities under the relevant regulation by notifying each laid-off worker (in the manner chosen by the worker) at least once a month that a list of current relevant job openings is maintained electronically on a website operated by the employer. “Simply informing a laid-off worker to monitor the employer’s website for future openings and inviting the worker, if interested, to apply for those openings, will not satisfy the employer’s regulatory obligation to notify all of its potentially qualified laid-off U.S. workers of the job opportunity,” the Q&A states.
The Q&A adds that an employer must maintain documentation showing that it has met its notice and consideration requirements, including copies of all relevant letters, e-mails, faxes, Web pages (including those listing details of the relevant job openings and applications by laid-off workers for those openings), and other contemporaneous documents that show when and how notice and consideration was given. In addition, an employer must obtain and maintain written documentation that a laid-off worker has declined to receive notices, requested discontinuation of the notices, or refused to give or update contact information.
The new Q&A is available at http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#recrep2.[Back to Top]
8. 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:
9. Klasko News
Philadelphia Office Relocating
Our Philadelphia office will be moving to a new location effective May 5, 2014. Our new address is:
1601 Market Street
Philadelphia, PA 19103
Of course, you can always find us online at www.klaskolaw.com. Please also visit our practice specific websites:
Upcoming Speaking Engagements
On April 24 and 25, Elise A. Fialkowski will attend PBI’s 20th Annual Employment Law Institute seminar at the Pennsylvania Convention Center. Elise will speak on “Immigration Law 101, What Every Employment Lawyer Should Know.” More than ever, immigration is a topic that needs to be addressed by employment counsel. This session will provide an overview of immigration law in the United States including: the US immigration system, current trends and developments; employment based immigration/sponsorship requirements; key visa categories and procedures; nonimmigrant (temporary) visas; immigrant (permanent) visas; naturalization; immigration enforcement and employer sanctions; and corporate immigration policies and best practices.
H. Ronald Klasko (Ron) will be speaking at the Invest in Texas Initiative conference on “Immigration Due Diligence Training for EB-5 Projects” on May 6, 2014. For more information on the program, write to Ron at firstname.lastname@example.org.
William A. Stock (Bill) will be presenting at Thomas Jefferson University in Philadelphia on May 12 to scholars and researchers regarding immigration options available to them.
Ron will be speaking at the 5th Annual EB-5 Boot Camp in Los Angeles on May 14. For more information, click here.
Recent Speaking Engagements
Ron was at the Wharton School of the University of Pennsylvania on Thursday, April 3 and discussed visa and permanent residence options with MBA students. For more information on this program, click here.
On April 2, Ron was a panelist for an American Bar Association sponsored webinar on the EB-5 visa. “EB-5 Visas and Foreign Investments in Real Estate as a Capital Source: What Your Developer Client Needs to Know,” covered legal issues surrounding the EB-5 program, including benefits of using EB-5 capital over traditional capital sources, how to structure an EB-5 offering, SEC requirements, enforcement, and how to structure an effective EB-5 escrow, among other topics. For more information on the EB-5 visa option, visit www.eb5immigration.com.
Bill conducted an immigration information session with students at Temple University in Philadelphia on March 31, 2014. To view the PowerPoint used at this program, click here.
Bill was at Duke University on Thursday and Friday, March 20 and 21, 2014. On March 20, Bill spoke to undergraduate international students about working in the US and employment options. On Friday, Bill discussed immigration options available to Duke’s resident postdocs and graduate students.
Bill presented at AILA’s MidWest Regional Conference in Chicago on March 14. Bill served as a panel member on “Lessons from InfoSys and Other Compliance Issues,” a session that explored the impact of InfoSys on B-1 programs and other corporate compliance issues, DOL enforcement and H-1B-related class actions, and current trends in I-9 enforcement and compliance.
Elise participated at the AILA Philadelphia Chapter’s 2014 CLE Conference on March 14, 2014. Elise was a panelist on “Keeping Employers “Compliant”: Preparing for Agency Investigations: FDNS and DOL Wage & Hour.” For more information on this program, write to Elise at email@example.com.
Ron spoke at the Los Angeles County Bar Association’s EB-5 Symposium in Los Angeles, CA on March 8. Ron presented “Federal Court Review of I-526/I-924 Adjudications.” For information on the EB-5 visa option, visit www.eb5immigration.com.
Bill was at the 11th Annual AILA New England Immigration Law Conference on March 7 and was a panelist on the “Hot Topics & Government Updates” session.
On February 28, Bill participated at the 2014 AILA Federal Court Immigration Litigation CLE Practicum in Las Vegas, NV. Bill, AILA 2nd Vice President, was a panelist on “Challenging Benefits Adjudications in Federal Court” and discussed utilizing federal court as a way of challenging erroneous or improper USCIS adjudications on petitions and benefits applications.
Matthew Galati (Matt) spoke at the Manhattan School of Music in New York, NY on Thursday, January 30, 2014 at a program organized by the Manhattan School of Music and the Center for Music Entrepreneurship (CME). Matt presented an immigration primer and discussed nonimmigrant and immigrant visa options for professionals and entrepreneurs in the arts. Contact Matt at firstname.lastname@example.org to request a copy of this presentation.
Matt has authored and published several articles recently. The latest, “3 Visa Options Explained” was published in the April 2014 issue of Florida Realtor Magazine. In this article, Matt examines visa options available for international homebuyers. The article is available at http://browndigital.bpc.com/publication/?i=201925 (p.24).
“Can Immigrant Investors Remedy Long Processing Times?” was published in The Legal Intelligencer on March 19, 2014. In this article, Matt explains how USCIS’ lengthy Form I-829 processing times are in violation of statutory and regulatory law, and offers suggestions to hold the government accountable. To read the full article, click here.
“Count ‘Em Up: Understanding Strategies for Documenting EB-5 Job Creation” was published in EB-5 Investors Magazine on February 26, 2014. In this publication, Matt discusses strategies for documenting job creation for common inputs to EB-5 Regional Centers’ job calcul
- April 2014 Newsletter (PDF)
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