Update 02/09/12

DOJ’s Office of Special Counsel Lists Employer Best Practices During Worksite Enforcement Audits

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices has released the following do’s and don’ts for employers facing audits by U.S. Immigration and Customs Enforcement (ICE):

DO:

• Develop a transparent process for interacting with employees during the audit, including communicating with employees that the employer is subject to an ICE audit.
• Provide all workers with a reasonable amount of time to correct discrepancies in their records identified by ICE.  Treat all workers in the same manner during the audit, without regard to national origin or citizenship status. This means that all workers with like discrepancies who are asked to present additional documents are provided with the same timeframes and the same choice of Form I-9 documents to present.
• If your workers are represented by a union, inform the union of the ICE audit and determine whether a collective bargaining agreement triggers any obligations.
• Inform employees from whom you seek specific information that you are seeking this information in response to an ICE audit.
• Communicate in writing with employees from whom you seek information, and describe the specific basis for the discrepancy and/or what information you need from them.  Follow the instructions on the ICE notice and the instructions for the Form I-9 when seeking to correct Form I-9 defects, including the Lists of Acceptable Documents and the anti-discrimination notice.

DON’T:

• Selectively verify the employment eligibility of certain employees based on their national origin or citizenship status based on the receipt of an ICE Notice of Inspection.
• Terminate or suspend employees without providing them with notice and a reasonable opportunity to present valid Form I-9 documents.
• Require employees to provide additional evidence of employment eligibility or more documents than ICE is requiring you to obtain.
• Limit the range of documents that employees are allowed to present for purposes of the Form I-9.
• Treat employees differently at any point during the audit because they look or sound foreign, or based on assumptions about whether they are authorized to work in the U.S.

USCIS Announces Several Thousand EB-5 Green Cards Issued So Far in First Quarter of FY 2012, Releases Latest Stats

The Department of State issued 2,364 EB-5 green cards between October 1, 2011, and mid-January 2012, U.S. Citizenship and Immigration Services (USCIS) announced at its quarterly EB-5 stakeholders meeting on January 23, 2012.  At that rate, over 9,000 EB-5 visas might be issued this federal fiscal year, which is very close to the statutory cap of 10,000.

USCIS refused to discuss what it would do about pending EB-5 petitions if Congress fails to renew the regional center pilot program by September 30, 2012.  Approximately 92 percent of I-526 petitions (Immigrant Petition by Alien Entrepreneur) filed each year are filed by investors in regional centers.  Historically, about 80 to 85 percent of I-526 and I-829 EB-5 petitions are approved each year.  The California Service Center (CSC) now has four teams of EB-5 adjudicators, an increase from one team a year ago.  Despite the increased staffing, case adjudication times have not improved because of the increase in case filings.

USCIS also announced that it would defer to state determinations on what constitutes a targeted employment area (TEA) for EB-5 purposes.  The agency will check the data behind states’ methodology, however.  USCIS did not say whether a single census tract may qualify as a geographic area.  USCIS said that would be covered in written materials not yet available publicly, and referred stakeholders to its December 2009 memorandum for further details.

USCIS acknowledged that many regional center applications are being held up at headquarters pending resolution of economic methodology issues.  The USCIS hopes to resolve those issues soon.  USCIS is analyzing all the I-924A forms submitted by regional centers and will draft a report that includes regional center-specific information sometime this year.  The USCIS acknowledged growing pains in determining what constitutes a “shovel-ready” project for EB-5 purposes.  It hopes to address this issue later this year when it revises the I-924 form to provide greater consistency.

USCIS also released its latest data on EB-5 filings and regional centers (RCs):

• RC approvals continue to increase.  As of January 28, 2012, there are 217 approved RCs operating in 40 states, including the District of Columbia and Guam.
• The agency reported 41 initial RC proposal filings in the first quarter of fiscal year (FY) 2012, compared to 192 initial filings in all of FY 2011 and 110 initial filings in all of FY 2010.  The number of amended RC proposal filings was 17 by the end of the first quarter; there were 86 filings received for all of FY 2011 and 42 filings received for all of FY 2010.
• In the first quarter of FY 2012, the agency approved 14 of the 41 initial RC proposals and denied 22, an approval rate of 39 percent.  In FY 2011, when USCIS approved 80 and denied 51, an approval rate of 61 percent.  The approval rate of amended RC proposals in the first quarter of FY 2012 was 57 percent, with 4 approvals and 3 denials.  By comparison, in FY 2011 USCIS approved 43 amended RC proposals and denied 7, an approval rate of 86 percent.
• USCIS also reported significant increases in individual I-526s and I-829s (Petition by Entrepreneur to Remove Conditions).  In the first quarter of FY 2012, USCIS received 1,293 I-526 petitions, compared to 3,805 for all of FY 2011.  USCIS received 250 I-829 petitions in the first quarter of 2012.  By comparison, USCIS received 2,345 I-829 petitions in all of FY 2011.
• In the first quarter of FY 2012, the agency approved 1,076 I-526 petitions and denied 222, an approval rate of 83 percent, while in all of FY 2011 USCIS approved 1,563 and denied 11, an approval rate of 93 percent.  USCIS approved 1,067 I-829 petitions and denied 46 in all of FY 2011, an approval rate of 96 percent.

The next USCIS stakeholder engagement meetings are scheduled for May 1, 2012 (general EB-5 discussion); July 26, 2012 (regional center discussion); and October 18, 2012 (general EB-5 discussion).

The full list of RCs by state is available at http://www.uscis.gov/eb-5centers/.

DOS Launches 90-Day Pilot Program Allowing Online Passport Card Applications

On January 24, 2012, the Department of State’s Office of Passport Services launched a 90-day pilot program allowing adult U.S. citizens living in the United States and Canada to apply for a passport card online.  Those applying online are not required to mail in their current passport book.  The wallet-sized U.S. passport card costs $30 for current passport book holders, and is valid for land and sea travel to and from Canada, Mexico, the Caribbean, and Bermuda.  It is not valid for international air travel.

To participate in the program, applicants must currently possess a valid 10-year U.S. passport book with at least 12 months of validity remaining, upload an acceptable digital photograph, and make an online payment in U.S. dollars via Pay.gov.  Applications accepted through the program will be subject to the same adjudication standards as in-person or mail-in applications.

The Department of State began producing the passport card in 2008 in response to travel document requirements imposed by the Western Hemisphere Travel Initiative.  Since then, more than 4.5 million cards have been issued.

China, India Visa Number Priority Cut-Off Dates Move Forward

The Department of State’s Visa Bulletin for February 2012 shows that the China and India cut-off dates continue to move forward, in some cases at a rapid rate.

For February, the China employment-based second preference cut-off date has advanced a year to January 1, 2010.  Also for February, the China employment-based third preference cut-off date is December 1, 2004, advancing a month and a half from January’s cut-off date, when it was October 15, 2004.  The third preference “Other Workers” category remains unchanged at April 22, 2003.

For February, the India employment-based second preference cut-off date is January 1, 2010, also advancing a year.  Also for February, the India employment-based third preference cut-off date is August 15, 2002, advancing a week from January’s cut-off date.  The third preference “Other Workers” category for India in February is August 15, 2002, a two-week advance from January.  The Visa Office explained in the February bulletin:

China and India: Reports from U.S. Citizenship and Immigration Services (USCIS) indicate that the rate of new filings for adjustment of status in recent months has been extremely low.  This fact has required the continued rapid forward movement of the cut-off date, in an attempt to generate demand and maximize number use under the annual limit.  Once the level of new filings or USCIS processing increases significantly, it will be necessary to slow or stop the movement of the cut-off.  Readers are once again advised that an eventual need to retrogress the cut-off date is also a distinct possibility.

Also, in the January bulletin, the Visa Office noted:

The China and India Employment Second preference cut-off date has been advanced at a rapid rate in recent months.  As previously noted, this action was intended to generate significant levels of new filings for adjustment of status at U.S. Citizenship and Immigration Services (USCIS) offices.  USCIS has reported that the rate of new filings is currently far below that which they had anticipated, prompting an even more aggressive movement of the cut-off date for January and possibly beyond.  While this action greatly increases the potential for an eventual retrogression of the cut-off at some point during the year, it also provides the best opportunity to utilize all numbers available under the annual limit.

The February 2012 bulletin notes that those categories with a “Current” projection will remain so for the foreseeable future.  The Visa Office estimates that other employment-based categories not discussed above could also advance by up to one month per month in the near future, including the Worldwide, Mexico, and Philippines categories, depending on demand.

U.S. Consulate in Chennai Stops Processing Immigrant Visa Petitions

As of January 1, 2012, the U.S. Consulate General in Chennai, India, is no longer processing immigrant visa petitions.  The U.S. embassy in New Delhi and U.S. consulate in Mumbai are now the only acceptance centers in India for immigrant visa applications.  Applicants currently in the process of petitioning for an immigrant visa may e-mail ChennaiIVU@state.gov for clarification of their status.

USCIS Considers Allowing Provisional Waivers for Immediate Relatives

U.S. Citizenship and Immigration Services (USCIS) announced on January 9, 2012, that it intends to change its current process for filing and adjudicating certain applications for waivers of inadmissibility filed in connection with an immediate relative immigrant visa application.

Specifically, USCIS is considering regulatory changes that will allow certain immediate relatives of U.S. citizens to request provisional waivers before departing the United States for consular processing of their immigrant visa applications.  A person would be able to obtain such a waiver only if a Petition for Alien Relative, Form I-130, is filed by a U.S. citizen on his or her behalf and that petition has been approved, thereby classifying the person as an “immediate relative” for purposes of the immigration laws, and he or she demonstrates that the denial of the waiver would result in extreme hardship to the U.S. citizen spouse or parent “qualifying relative.”  The qualifying relative for purposes of the waiver is not necessarily the immediate relative who filed the immigrant visa petition on the relative’s behalf.

USCIS Seeks Comments on Draft L-1 Templates

U.S. Citizenship and Immigration Services (USCIS) seeks comments on draft request for evidence (RFE) templates for Forms I-129: L-1 intra-company transferee (blanket petition, L-1A manager or executive, L-1A new office (first year), and qualifying relationship/ownership and control/doing business.

In addition to comments on the individual draft templates, USCIS also seeks stakeholder input on broader issues:

1. What are the top five issues you have with RFEs in the classifications that are currently under review?
2. What improvements can be made to the current RFE process in these classifications?
3. What types of evidence are frequently unavailable for these classifications when requested, and why? What evidence could be submitted as an alternative?

USCIS said it is also reviewing RFE templates for these categories:

• E-12 Outstanding Professor and Researcher immigrants
• E-13 Multinational Executive and Manager immigrants
• F Student nonimmigrants
• M Vocational Student nonimmigrants
• J Exchange Visitor nonimmigrants
• L Intra-company Transferee nonimmigrants
• O Extraordinary Ability or Achievement nonimmigrants.

Justice Dept. Settles with University of California San Diego Medical Center

The Department of Justice reached an agreement on January 4, 2012, with the University of California San Diego Medical Center, resolving a complaint filed on December 6, 2011, alleging that the medical center failed to comply with proper employment eligibility verification processes for noncitizens authorized to work in the United States.

Specifically, the Department’s complaint alleged that the medical center subjected newly hired non-U.S. citizens to excessive demands for documents to verify their employment eligibility but did not require the same of U.S. citizens.

Under the terms of the settlement agreement, the medical center agreed to implement new employment eligibility verification policies and procedures that treat all employees equally regardless of citizenship status.

In addition, the medical center agreed to pay a civil penalty of $115,000, conduct supplemental training of its human resources personnel on their responsibilities to avoid discrimination in the employment eligibility verification process, and work with the Department to ensure compliance with proper employment eligibility verification processes across all University of California campuses, medical centers, and facilities.

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

Klasko News

Associate Joins Firm

Klasko Immigration Law Partners, LLP, is pleased to announce that Daniel B. Lundy has recently joined the Firm.

Daniel B. Lundy (Dan), an Associate in the Firm’s Philadelphia office, focuses his practice on both employment-based and family-based immigration. A member of the firm’s EB-5 immigrant investor practice, Mr. Lundy has successfully represented numerous immigrant investors in their EB-5 petitions and applications, including investors seeking permanent residence through investment in their own businesses and investors seeking permanent residence through investments into USCIS approved Regional Centers.  Mr. Lundy also represents developers and others who seek to use foreign investment funds under the EB-5 program to fund their projects, either through the formation of a Regional Center or by joining with an existing Regional Center.  Mr. Lundy works with various securities lawyers, economists, business plan writers and other professionals in the preparation and filing of Regional Center designation and Regional Center amendment applications.  Mr. Lundy is experienced in reviewing Regional Center and project business plans, economic reports, securities offering documents, and corporate documents for compliance with the EB-5 program requirements, and in consulting and advising clients on the specific immigration requirements of the EB-5 program.

Mr. Lundy is admitted to the bar in the State of New York, the U.S. Courts of Appeals for the First, Second, Third, Fourth, Fifth, Seventh and Eleventh Circuits, and the U.S. District Courts for the Southern and Eastern Districts of New York.  Mr. Lundy is a graduate of Hunter College (B.A., 2000) and Fordham University School of Law (J.D. 2006).  He is a member of the New York County Lawyer’s Association and American Immigration Lawyers Association (AILA).

Save the Date: 2012 Annual Spring Seminar is April 24!

Mark your calendars for Klasko Immigration Law Partners’ annual Spring Seminar to be held on Tuesday, April 24, 2012 from 9:30 am – 1:00 pm at The Union League of Philadelphia.

Topics will include:

• USCIS Policies and Practices
• Prevailing Wages
• EB-2 and EB-3 Quota Issues
• University/Hospital Roundtable
• Corporate Roundtable
• FATCA, FBAR, and HEART tax issues, and Abandonment of Permanent Residence
• Worksite Enforcement Update
• And much more!

We invite professionals involved in employment-based immigration to attend! There is no cost for this program.  Registration details forthcoming.

Revamped EB-5 Website Launched

We are pleased to announce the launch of our expanded EB-5 website.  We believe it provides the most information available on all aspects of the EB-5 program.  Among the improvements include:

• A new section for developers and business owners seeking capital;
• An introduction to new members of our expanding EB-5 team;
• An expanded list of articles and PowerPoints;
• Expanded links to other EB-5 resources;
• A listing of services provided to regional centers, investors, developers and other lawyers;
• An expanded EB-5 news section;
• Timelines and flow charts.

If you have any suggestions or feedback about the EB-5 website, please contact Ron Klasko at rklasko@klaskolaw.com.

Upcoming Speaking Engagements

11. Ronald Klasko (Ron) will be speaking at the Los Angeles County Bar Association CLE on EB-5 on Saturday, February 11.

William A. Stock (Bill) will be speaking at Hershey Medical Center on February 22 and Penn State University on February 23, 2012.

Elise A. Fialkowski will present an immigration workshop at Drexel University on February 29.

Recent Speaking Engagements

Bill gave 3 presentations at Duke University over two days.  He spoke to MBA students at the Fuqua School of Business on Wednesday, February 8 about visa and permanent residence options.  On February 9, he spoke with postdocs and international students at respective sessions about immigration options available to them.  For more information on these programs, contact Bill.

Ron served as a panelist for two sessions at the South Florida AILA CLE on February 9 &10, 2012 in Miami, Florida. Ron was a panel member on “When can your client use the B-1 visa” and “EB-5-Where are We Now?” For more information on either of these topics, write to Ron at rklasko@klaskolaw.com.

Ron presented a seminar at Carnegie Mellon University on February 6.  He discussed various permanent residence options including family, asylum, lottery, investment (EB-5) and employment as routes to a green card.  For more on permanent residence options available to you, contact Ron.

On January 27, Bill presented on a panel titled “When the Government Comes Calling – Verification and Audits in the Nonimmigrant Context” at the AILA Midyear Conference in Herradura, Costa Rica.  The panel reviewed the post-petition approval verification and audit regimes of USCIS, DOL, and DOS.  The panel also provided guidance on being prepared for calls and visits from a government agency.

Elise presented at the 10th Washington International Education Conference in Washington, DC on Tuesday, January 24, a conference sponsored by the Washington International Education Council.  Elise spoke to embassy officials, university administrators and DSOs about student visa applications, recertification, as well as site visits, audits and inspections of student and scholar programs.  For more information, write to Elise at efialkowski@klaskolaw.com.

Recent Publications

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 © 2011 Alliance of Business Immigration Lawyers and Klasko Immigration Law Partners, LLP.  All rights reserved.

Related Information:

• February 2012 Newsletter (PDF)