The new actions bring the FY 2011 I-9 audit total to 2,338, surpassing the FY 2010 record.
USCIS released an executive summary on the L-1B nonimmigrant classification with respect to interpretation of the term “specialized knowledge.”
The Senate Subcommittee on Immigration, Refugees and Border Security held a hearing on the Development, Relief, and Education for Alien Minors (DREAM) Act of 2011 on June 28, 2011.
Among other things, the bill would mandate the use of an employment verification system, establish a federal commission on immigration, and offer an earned path to citizenship for undocumented people already in the United States.
The bill seems likely to pass the House and has already been endorsed by key business associations.
The Department of State is discussing with the Department of Homeland Security removing or substantially modifying the B-1 in lieu of H-1B option.
The Department spoke about the new regulatory amendments that take effect July 15, 2011.
The Ombudsman has provided information in response to reports that USCIS is issuing RFEs in H-2B nonagricultural worker cases that question the claimed “temporary” nature of an employer's business need for foreign labor.
The law mandates that counties, cities, and employers with at least 25 employees use E-Verify to verify the work authorization of new hires, excluding certain seasonal temporary employees.
U.S. Immigration and Customs Enforcement (ICE) has announced special temporary relief until December 31, 2011, for certain F 1 Libyan students who have suffered severe economic hardship as a direct result of the civil unrest in Libya since February 2011.
Noteworthy news, upcoming and recent speaking engagements and recent publications.
1. ICE to Audit 1,000 Employers Nationwide for I-9 Violations
U.S. Immigration and Customs Enforcement (ICE) reported that it is auditing approximately 1,000 U.S. employers of a range of sizes and in every state to ensure compliance with I-9 employment authorization verification procedures. ICE has not specified which companies are affected, but it is expected to be focusing on critical sectors, to include agriculture and food; banking and finance; chemical; commercial facilities; commercial nuclear reactors, materials and waste; dams; defense industrial base; drinking water and water treatment systems; emergency service; energy; government facilities; information technology; national monuments and icons; postal and shipping; public health and health care; telecommunications; and transportation systems.
It was reported that the new actions bring the fiscal year 2011 I-9 audit total to 2,338, surpassing the fiscal year 2010 record of 2,196.[Back to Top]
2. USCIS Summarizes Stakeholder Engagement on L-1B Interpretation of 'Specialized Knowledge'
On June 14, 2011, U.S. Citizenship and Immigration Services (USCIS) released an executive summary of its stakeholder engagement session held in May to discuss issues related to the L-1B nonimmigrant classification, specifically with respect to interpretation of the term “specialized knowledge” and what standards and evidentiary requirements should be followed in determining eligibility for this classification.
USCIS reported, among other things, that an overwhelming majority of stakeholders asserted that the existing regulatory definition of “specialized knowledge” and USCIS policy memoranda relating to this issue are “fine as written, and there is no need to issue any new policy memorandum.” Some stakeholders reportedly said that the definition of “specialized knowledge” should be interpreted more broadly than is currently being practiced at the service centers. Stakeholders noted that USCIS is interpreting the definition too narrowly, as evidenced by Requests for Evidence (RFE) and denials that many petitioners are receiving for this category. One stakeholder stated that it appears that USCIS has made a change in its interpretation in recent years without any change in the law. Some stakeholders said that the current interpretation did not meet the needs of employers because it was being too strictly and narrowly interpreted. They suggested that it would better serve employers if there were more flexibility and a broader interpretation of the term. USCIS said it “will provide additional guidance and training to USCIS officers adjudicating L-1B petitions.”[Back to Top]
3. Senate Holds Hearing on DREAM Act of 2011
The Senate Subcommittee on Immigration, Refugees and Border Security held a hearing on the Development, Relief, and Education for Alien Minors (DREAM) Act of 2011 on June 28, 2011. Sen. Dick Durbin (R-Ill.) opened the hearing. Witnesses included Janet Napolitano, Secretary of the Department of Homeland Security; Arne Duncan, Secretary of the Department of Education; Dr. Clifford Stanley, Under Secretary of Defense for Personnel and Readiness; Ola Kaso, a DREAM Act student; Lt. Col. Margaret Stock, and Steven Camarota, Director of Research for the Center for Immigration Studies.
Secretary Napolitano said the Obama administration “strongly supports the DREAM Act.” She noted that in the closing days of the 111th Congress, the DREAM Act passed the House of Representatives with bipartisan support and fell a few votes short in the Senate. She commended Sen. Durbin and the 34 co-sponsors who have signed onto the bill thus far. She said the DREAM Act would “allow the Department to devote a greater portion of limited DHS resources to removing individuals who actually pose a risk to public safety or security.” She said the DREAM Act would do this “by providing a firm but fair way for individuals brought into our country as children – through no fault of their own – to obtain legal status by pursuing higher education, or by serving in the U.S. Armed Forces for the country where they have grown up and which they consider their home.”
She noted that, as introduced in the Senate, the DREAM Act “establishes a rigorous process for those who entered the United States illegally as children to obtain conditional permanent resident status by proving that they meet several strict requirements.” Those applying for conditional permanent resident status, she said, would also need to submit biometric and biographic data and undergo security and law enforcement background checks and a medical examination. Without the DREAM Act, Secretary Napolitano said, young people will continue to be caught up in the immigration removal system, siphoning resources away from other, more pressing needs.” She said that it does not make sense from a law enforcement or public safety perspective “to devote limited enforcement resources on young people who pose no threat to public safety, who were brought to this country illegally by no fault of their own and have grown up here, and who want to contribute to our country by serving in the military or going to college.”[Back to Top]
4. Democrats Reintroduce Comprehensive Immigration Reform Bill
Sen. Robert Menendez (D-N.J.) and six other Democrats reintroduced the Comprehensive Immigration Reform Act of 2011 (S. 1258) on June 22, 2011, a bill that would mandate the use of an employment verification system, establish a federal commission on immigration, and offer an earned path to citizenship for undocumented people already in the United States.
The 679-page bill is similar to legislation introduced by Sen. Menendez and other Democrats in September 2010. Senate Majority Leader Harry Reid (D-Nev.), along with Sens. Patrick Leahy (D-Vt.), Dick Durbin (D-Ill.), Charles Schumer (D-N.Y.), and Kirsten Gillibrand (D-N.Y.), co-sponsored the legislation. The bill includes measures to strengthen border security, enhance worksite enforcement of immigration laws, and requirements that the estimated 11 million undocumented people in the U.S. register with the government, pay taxes, learn English, pay a fine, pass a background check, and wait in line for permanent residence.
The bill also includes a mandatory employment verification system, and enforcement measures such as additional resources for the Border Patrol; expanded penalties for passport and document fraud; new requirements for the Department of Homeland Security to track entries and exits at the border; rules governing detention to ensure that U.S. citizens are not unlawfully detained; and new criminal penalties for fraud and misuse of Social Security numbers.
A “Standing Commission on Immigration, Labor Markets, and the National Interest” would be created as part of the bill to evaluate labor market and economic conditions and recommend numerical limits for employment based visa programs to Congress.
The bill received broad praise from immigrants’ rights groups, who stressed the importance of addressing all aspects of the nation’s broken immigration system instead of focusing on standalone measures such as an E Verify mandate.
The bill would also alter several visa programs, including the H-2A agricultural guest worker program and the EB-5 investor visa program.[Back to Top]
5. Sen. Lamar Smith Introduces Mandatory E-Verify Bill
House Judiciary Committee Chairman Lamar Smith (R-Tex.) recently introduced the “Legal Workforce Act” (H.R. 2164), a bill that would require all businesses to verify the legal status of workers using the online E-Verify system. The bill seems likely to pass the House and has already been endorsed by key business associations, including the U.S. Chamber of Commerce, the National Restaurant Association, the National Association of Home Builders, and the National Federation of Independent Business.
Opponents of the bill argue that there are not enough U.S. workers available to fill the estimated 8 million jobs held by undocumented workers, 90 percent of which are non-agricultural. Statements from SEIU, the National Immigration Law Center, and others echoed the idea that an E-Verify mandate without a path to legalization for undocumented workers already in the United States would undermine the U.S. economy.[Back to Top]
6. 'B-1 in Lieu of H-1B' Option Under Threat
Amid reports that U.S. consulates (particularly in India) are cracking down on B-1 visa applications when they suspect the person may be “working” in the U.S., the Department of State and U.S. Immigration and Customs Enforcement are reportedly investigating Infosys Technologies Ltd. with respect to allegations that it may be using short-term B-1 visas for employees who should be subjected to the more difficult H-1B visa process. Infosys said it “received a subpoena from a grand jury in the United States District Court for the Eastern District of Texas. The subpoena requires us to provide information to the grand jury regarding our sponsorships for, and uses of, B-1 business visas.”
The probe comes on the heels of a lawsuit filed by an Infosys employee alleging that Infosys has been misusing the B-1 visa program. After the lawsuit was filed, Sen. Chuck Grassley (R-Iowa) sent a letter on April 14, 2011, to Secretary of State Hillary Clinton and Secretary of Homeland Security Janet Napolitano demanding an investigation. The Department of State responded on May 13, and Sen. Grassley issued a comment on May 25. The Department of State said, “We are in the process of discussing with [the Department of Homeland Security] removing or substantially modifying the B-1 in lieu of H guidelines, which State first proposed eliminating in a 1993 Federal Register notice.” The letter says such a change “requires DHS coordination and may require Federal Register notice, thus it may take some time before…any change is implemented.”[Back to Top]
7. DOS Speaks on J-1 Summer Work Travel Interim Final Rule
On June 20, 2011, a Department of State spokesperson answered a question about an interim final rule, effective July 15, 2011, that amends regulations on the J-1 Summer Work Travel (SWT) program. The spokesperson noted that given the size of the program, with approximately 120,000 college and university student participants in 2010, the Department has decided to “enhance safeguards,” including:
- A pilot program for six countries (Belarus, Bulgaria, Moldova, Romania, Russia, and Ukraine) aimed at thwarting the potential for abuse of summer work travel participants who come from those countries; and new program-wide regulations designed to strengthen and clarify current program oversight and administration requirements
- A special e-mail address and a toll-free telephone number, available 24 hours per day and 7 days per week, to enable students to have ready, direct contact with the Department about program complaints or issues
- Department of State welcome letters and program brochures provided to each program participant to better inform them about what to expect in the Summer Work Travel program
- An “aggressive and proactive” system to monitor sponsors better, including ongoing data analysis, complaint tracking, and on-site visits to sponsors to fully assess their compliance with, and the effectiveness of, the new regulations
- Closer scrutiny of visa applications of potential SWT program participants from the pilot program countries. Consular officers refuse visas to those applicants who do not demonstrate that they are eligible for visas, including compliance with the pilot program’s conditions
8. USCIS Ombudsman Issues Advice to Employers on Documenting the 'Temporary' Nature of H-2B Work
U.S. Citizenship and Immigration Services’ (USCIS) Ombudsman has provided information in response to reports that USCIS is issuing Requests for Evidence (RFEs) in H-2B nonagricultural worker cases that question the claimed “temporary” nature of an employer’s business need for foreign labor.
The Ombudsman explained that employers seeking to participate in this program must establish to USCIS’s satisfaction that their need for temporary non-agricultural services or labor is either seasonal, due to a peak load need, intermittent, or a one-time occurrence. While temporary needs of a significant length may be approved as a one-time occurrence, the petitioner’s business need must be temporary, such as 10 months or less, the Ombudsman said. H-2B workers are commonly employed in the landscaping, hotel, recreation, and forestry industries based upon seasonal need.
To establish seasonal need, the Ombudsman noted, petitioners must show that the service or labor is related to a season of the year by an event or pattern that recurs annually. “It is recommended that petitioners also specify the period(s) of time during each year in which they do not need the services or labor,” the Ombudsman said.
H-2B petitions are by their nature time sensitive, and petitioners are on tight time schedules for filing their submissions with the Department of Labor (DOL) and USCIS. Delays in submission or processing can have serious financial consequences for employer petitioners.
To minimize the likelihood of receiving an RFE, the Ombudsman suggested that petitioners may want to support their initial submissions to USCIS with additional documentation “that clearly demonstrates that a specific work need covered by the petition is temporary, tied to a predictable peak load period or is seasonal, and will reoccur annually on the same or similar cycle.”
USCIS told the Ombudsman that it also would be helpful to include with the H-2B petition:
- Signed work contracts, letters of intent from clients, and monthly invoices from previous calendar year(s) clearly depicting the type and regularity of work that was, or will be, performed during each month of the requested period of need.
- Summarized monthly payroll records/reports over the past two calendar years that clearly identify and separately distinguish the petitioner’s permanent employee staff from its temporary H-2B staff in the requested occupation.
- Any other documentation (e.g., work schedules, company provided housing, transportation records) that evidences the cyclical trend of seasonal temporary hires, and that clearly reveals gap periods that fall between such seasons.
9. North Carolina Governor Signs E-Verify Bill
North Carolina Governor Beverly Purdue signed HB 36 into law on June 23, 2011. The new law mandates that counties, cities, and employers with at least 25 employees use E-Verify to verify the work authorization of new hires. The law does not apply to seasonal temporary employees who are employed for 90 or fewer days during a consecutive 12-month period.
The law specifies that the Commissioner of Labor may subpoena employment records relating to “the recruitment, hiring, employment, or termination policies, practices, or acts of employment” as part of an investigation of a valid complaint.[Back to Top]
10. ICE Authorizes Employment Eligibility for Certain Libyan Students
U.S. Immigration and Customs Enforcement (ICE) has announced special temporary relief until December 31, 2011, for certain F-1 Libyan students who have suffered severe economic hardship as a direct result of the civil unrest in Libya since February 2011.
ICE has published a notice in the Federal Register suspending certain regulatory requirements to allow eligible Libyan F-1 students to obtain employment authorization, work an increased number of hours during the school term, and, if necessary, reduce their course load while continuing to maintain their F-1 student status.
Approximately 2,000 F-1 students from Libya are enrolled in schools in the U.S. This relief applies only to students who were lawfully present in the U.S. in F-1 status as of February 1, 2011, and enrolled in an institution certified by ICE’s Student and Exchange Visitor Program (SEVP). The notice applies to both undergraduate and graduate students, as well as elementary school, middle school, and high school students. The notice, however, applies differently to elementary school, middle school, and high school students, as discussed in the notice.[Back to Top]
11. 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:
- USCIS Service Center processing times online: https://egov.uscis.gov/cris/jsps/ptimes.jsp
- Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm
- Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html
12. New Publications and Items of Interest
Immigration enforcement actions in 2010. The Department of Homeland Security’s Office of Immigration Statistics has published “Immigration Enforcement Actions: 2010.” The short annual report, which presents information on the apprehension, detention, return, and removal of foreign nationals during 2010, notes, among other things, that DHS returned 476,000 foreign nationals to their countries of origin in 2010 without a removal order. Mexican nationals accounted for 83 percent of the 516,992 aliens apprehended in 2010. The next leading countries were Guatemala, El Salvador, and Honduras. Those four countries accounted for 94 percent of all apprehensions.
Immigrant skills in U.S. metro areas. A new report by the Brookings Institution’s Metro Policy Program, “The Geography of Immigrant Skills: Educational Profiles of Metro Areas,” finds that immigrants in the U.S. who have a bachelor’s degree now outnumber those without a high school diploma. In 1980, just 19 percent of immigrants aged 25 to 64 held a bachelor’s degree, the report notes, and nearly 40 percent had not completed high school. By 2010, 30 percent of working-age immigrants had at least a college degree and 28 percent lacked a high school diploma. The report also notes that 44 of the nation’s 100 largest metropolitan areas are high-skill immigrant destinations, in which college-educated immigrants outnumber immigrants without high school diplomas by at least 25 percent. These destinations include Washington, DC, and large coastal metro areas like San Francisco. The 30 low-skill destinations, in which the relative sizes of these immigrant skill groups are reversed, include many in the border states of the West and Southwest, as well as in the Great Plains.
The report argues that a pragmatic approach to immigration “should include a more flexible admissions system to respond to labor market changes.” With the United States at a critical point in both immigration policy and economic trajectory, the report notes, “policymakers should carefully weigh options to provide support for immigrant workers at all skill levels to keep the United States globally competitive.”[Back to Top]
13. Klasko News
News and Noteworthy
H. Ronald Klasko (Ron) and William A. Stock (Bill) were selected by Human Resource Executive magazine as two of the top 20 lawyers for immigration law in the United States. This list was compiled by Lawdragon, a Los Angeles based networking site for lawyers and clients, in order to identify the leading corporate employment lawyers in America for 2011. Congratulations!
Bill was elected to the Executive Committee of the American Immigration Lawyers Association. In May, he was nominated for the position of National Secretary, a primary representative of AILA. The results of the election were announced at the AILA National Conference in San Diego. Bill, along with the Board of Governors, leads the national AILA organization.
2011 – 2012 Executive Committee
Upcoming Speaking Engagements
On July 22, 2011, Elise Fialkowski (Elise) will be presenting on worksite enforcement and employer compliance at the Pennsylvania Bar Institute seminar entitled “Immigration Law for the General Practitioner” in Philadelphia. The presentation will be broadcast live throughout Pennsylvania. Her talk will focus on increased enforcement by government agencies including Immigration Customs and Enforcement, the Department of Justice Office of Special Counsel and the Department of Labor. Elise will highlight recent trends and provide guidance and strategies for employers to minimize potential liability. For more information on worksite compliance, write to Elise at firstname.lastname@example.org.
Ron will be the keynote speaker at the 2011 EB-5 Investment Summit: Dealmakers Conference on July 29, 2011. This one day dynamic EB-5 investment summit will have expert speakers and VIP guests from the U.S., China, and Korea to provide a comprehensive overview on the federal EB-5 regional center immigrant investors’ visa program in Asian and Chinese markets. For more information on the EB-5 program, visit www.eb5immigration.com or write to Ron at email@example.com.
Ron will be speaking at The Archbishop Edward A. McCarthy Pastoral Center and at the IIUSA EB-5 International Investment & Economic Development Forum in the coming weeks.
Recent Speaking Engagements
On July 14, 2011, Elise was a speaker at Lehigh University for a program hosted by the Global Village for Future Leaders of Business and Industry. The Global Village is a cross cultural program bringing together future leaders from over forty different countries. In her presentation, Elise discussed immigration laws and regulations affecting students, scholars, employees, business people and investors. For more information on this program, write to Elise at firstname.lastname@example.org.
Elise attended the Texas Service Center/Nebraska Service Center Business Representatives Conference in Dallas, TX on July 13, 2011. Elise, along with other immigration legal representatives, had the opportunity to meet the staff of these two Service Centers and share information on various immigration related topics. Her visit to Dallas also included a tour of the Lewisville Lockbox facility. For more information, contact Elise at email@example.com.
On July 12, 2011, Ron discussed “Options for Developers Seeking Capital Under the EB 5 Program” at the Pennsylvania Bar Institute’s CLE Conference Center in Philadelphia, Pennsylvania. With traditional sources of capital unavailable, the EB-5 immigrant investor program has attracted substantial interest among commercial real estate developers. Specifically, many real estate developers have chosen to form “regional centers” to attract foreign investors willing to invest $500,000 for the opportunity to obtain green cards for them and their family members. The number of regional centers has expanded to over 100 in just the last couple of years. In Pennsylvania alone, EB-5 capital has been used to help finance the Comcast Center, the Pennsylvania Convention Center expansion, the Navy Yard and countless other projects. For more information on the EB-5, visit www.eb5immigration.com or write to Ron at firstname.lastname@example.org.
On July 6, 2011, Ron discussed “EB-5 Regional Center Applications and Project Pre approval Petitions,” the second part of a webinar series sponsored by ABIL and IIUSA. This timely three-part webinar series will help guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The series explains immigration options and offers practical real-world strategies. The third session entitled “How to Successfully Navigate the Back End of the EB-5 Process for Both Individual Investors and Regional Centers” will be on August 16, 2011 and the first session entitled “Visa Options for Individual Investors: E & L Nonimmigrant Visas; EB-5 Green Cards Through Direct Investments or Regional Centers” was held on April 13, 2011. For more on this webinar series, please contact Ron at email@example.com.
Ron spoke at the AILA National Conference from June 15–18, 2011 in San Diego, California. Ron presented on the panels “Recent Developments and Strategic Considerations in Dealing with Lawful Status and Unlawful Presence” and “Dealing with Difficult RFEs: Appellate Remedies and Litigation.”
Ron and Bill participated at the NAFSA 2011 Annual Conference in Vancouver, British Columbia from May 29–June 3, 2011. Ron spoke on “Solutions for Violations of Status” for foreign students, including the sections of the law that can assist students rectify previous violations of status. Ron, as Chair of the Healthcare Institution Interest Group, also conducted meetings at the conference for this interest group. Bill, in his capacity as a Regulatory Ombudsman, participated in the “RegBud Roundtables” and met with students and scholars and answered questions. He also manned the RegBud booth and met with NAFSA members.
Ron and Jennifer Hermansky (Jen) published “Federal Court Review of Denial of Employment-Based Petitions: When Exhaustion is not Required” in the 12th edition of AILA’s Immigration Practice Pointers. The article discusses strategies for seeking review of denials of business immigration cases before the USCIS Administrative Appeals Office (AAO) and the federal courts. To request a copy of this article, please email Jen at firstname.lastname@example.org.[Back to Top]