DHS Inspector General Releases Report on Implementation of L-1 Visa Regulations
On August 9, 2013, the Department of Homeland Security (DHS)’s Office of Inspector General (OIG) released a report containing recommendations aimed at improving the L-1 visa program in response to a request from Sen. Charles Grassley for an examination of the potential for fraud or abuse in the program. The L-1 visa program facilitates the temporary transfer of foreign nationals with management, professional, and specialist skills to the United States. For the report, the OIG observed DHS personnel and Department of State consular officials process L-1 petitions and visas. The OIG also interviewed 71 managers and staff in DHS and the Department of State.
The OIG found that although U.S. Citizenship and Immigration Services regulations and headquarters memoranda provide guidance on the definition of specialized knowledge, they are insufficient to ensure consistent application of L-1 visa program requirements in processing visas and petitions. More communication between DHS and the Department of State would improve the processing of blanket petitions, the report says. The OIG determined that program effectiveness would be improved and risks reduced with additional effort in (1) training for U.S. Customs and Border Protection officers to enable them to fill their L-1 gatekeeper role at the northern land border more effectively; (2) improving internal controls of the fee collection effort at the northern land border; (3) more rigorous consideration of new office petitions to reduce fraud and abuse; (4) providing an adjudicative tool that is accessible to all federal personnel responsible for L-1 decisions; and (5) consistently applying Visa Reform Act anti-“job-shop” provisions.
An appendix notes that the top 10 L-1 employers are Tata Consultancy Services Limited, Cognizant Tech Solutions US Corp, IBM India Private Limited, Wipro Limited, Infosys Technologies Limited, Satyam Computer Services Limited, HCL America Inc., Schlumberger Technology Corp., PricewaterhouseCoopers LLP, and Hewlett-Packard Co.
The report, which includes details on the OIG’s recommendations and USCIS’s response, along with appendices containing statistics, is available at http://www.oig.dhs.gov/assets/Mgmt/2013/OIG_13-107_Aug13.pdf.
BALCA Affirms Denial of Labor Cert for Technical Violation in Supervised Recruitment
In Matter of JP Morgan Chase & Co., the Board of Alien Labor Certification Appeals (BALCA) upheld the denial of a labor certification application filed by JP Morgan Chase for a vice president of mergers and acquisition because the company noted that addresses of applicants were included in their resumes instead of listing them in the company’s recruitment report, as required by regulation. The BALCA noted that the regulation required the employer to “state” the addresses of the U.S. workers who applied for the job opportunity on the recruitment report itself and does not permit addresses to be incorporated by reference to other documents within the administrative file. Moreover, the employer appeared to have assumed that all of the applicants stated their address on their resumes, but there were a few resumes where no address was stated.
The BALCA acknowledged that some omissions may not be material to the review of the substance of an application. In this case, however, the BALCA found the reference to the resumes a “wholesale failure to provide an element of a report directly mandated by the regulations.”
The BALCA also noted that the selection of the case for supervised recruitment “puts the employer on notice that special scrutiny is being placed on the application.” Among other things, the recruitment report required under supervised recruitment is more detailed than the recruitment report required under basic labor certification processing. Simply put, the BALCA said, an employer “cannot shift the burden to the [Certifying Officer] to look through resumes to find the addresses of U.S. applicants.”
The decision, 2011-PER-00635, is available here.
State Dept. Sends Guidance to Posts on New Electronic Immigrant Visa Application
The Department of State recently sent a cable to all diplomatic and consular posts providing guidance and describing the timeline for deployment of the new electronic DS-260 (Immigrant Visa Application) and DS-261 (Choice of Address and Agent), which replaces the paper-based DS-230 (Application for Immigrant Visa Registration, parts I and II) and the DS-3032 (Choice of Address and Agent). Worldwide use of the DS-260/261 took effect for new cases on September 1, 2013.
The cable notes, among other things, the availability of software that includes a “biometric oath module” allowing posts to record an electronic fingerprint in lieu of a written signature attesting to the oath administered before every immigrant visa interview.
The cable states that the Department intends to deploy the DS-260/261 as follows:
- Beneficiaries submitting new cases that arrive at the National Visa Center (NVC) from U.S. Citizenship and Immigration Services (USCIS) on or after September 1 will be instructed to complete the DS-260/261 in lieu of the DS-230/3032. The State Department will update travel.state.gov to reflect this guidance and will remove the PDF versions of Forms DS-230 and DS-3032 from public circulation. If a beneficiary submits a DS-230, NVC will instruct him or her to re-submit a DS-260.
- The State Department will not require DS-260s for beneficiaries of “pipeline” cases already in process at NVC on September 1 if: 1) the case has already been documentarily qualified and sent to scheduling, or 2) NVC receives a single submission of documents that makes a case documentarily qualified. For all other pipeline cases where NVC has occasion to send a “checklist” of missing documents after September 1, NVC will instruct petitioners/agents/beneficiaries to submit the DS-260 along with those missing documents, even if a DS-230 was already on file.
- Those filing petitions locally overseas (with either USCIS or a consular section) on or after September 1 must submit a DS-260 once the petition is approved. Posts should instruct beneficiaries to enter the principal applicant’s DOB in YYYYMMDD format in lieu of an “Invoice ID” on the DS-260 login page.
- For cases filed locally overseas before September 1, if beneficiaries have already submitted a DS-230 or received instruction to do so, the consular post should accept the DS-230. If a consular post has not yet provided beneficiaries instructions on how to submit their applications, the post must require the DS-260. The consular post should not, as a general rule, require the submission of a DS-260 if a valid, signed, unexpired DS-230 is already on file and requiring the DS-260 would result in a 221(g) refusal for an otherwise issuable case.
- For Havana Only: Cuban Family Reunification Parole (CFRP) cases are the lone exception to the scenarios described above. The DS-260 will not allow an applicant whose case is not current to access the DS-260. For now, NVC will continue to solicit and accept Form DS-230 from applicants who opt in to the CFRP program.
Frequently asked questions are available at http://travel.state.gov/visa/immigrants/info/info_5248.html. Instructions are available at http://www.travel.state.gov/visa/immigrants/info/info_5164.html.
USCIS to Conduct I-9 Form Study
U.S. Citizenship and Immigration Services (USCIS) is developing a new version of the I-9 employment eligibility verification form. USCIS plans to propose the revised form and invite public comment. The agency is selecting nine employers for a study to determine how much time it takes employers to complete the revised form.
The study will be administered at USCIS offices in Washington, DC, on September 3, 2013; September 5, 2013; or September 6, 2013, between 8 a.m. and 5 p.m. USCIS announced on August 5, 2013, that interested employers, large and small, were invited to submit a request by August 15, 2013, to volunteer to participate in the study. USCIS said it would randomly selected four large employers and five small employers from all submissions received by the deadline.
USCIS contacted the selected employers by August 23, 2013, to schedule an appointment to participate in the study. At the study, the point of contact for the employer will be asked to play the role of an employer completing Section 2 and/or Section 3 of the Form I-9.
Additional information is available at http://content.govdelivery.com/bulletins/gd/USDHSCIS-858773.
State Dept. Releases Cable, FAQ on DOMA
The Department of State recently released a FAQ and a cable to the field, “Next Steps on DOMA—Guidance for Posts.” The cable notes that beginning immediately, consular officers should review visa applications filed by same-sex spouses in the same manner as those filed by opposite-sex spouses, “unless a specific provision of the federal immigration laws requires a different approach.”
The cable notes that the Visa Office deleted a provision in the Foreign Affairs Manual that defined “marriage” for immigration purposes to mean “only a legal union between one man and one woman as husband and wife,” and the word “spouse” to mean only “a person of the opposite sex who is a husband or a wife.” A same-sex marriage is now valid for immigration purposes “as long as the marriage is recognized in the ‘place of celebration,’” the cable states. Such marriages are valid for immigration purposes “even if the couple intends ultimately to reside in one of the 37 states that do not recognize same-sex marriages.” Same-sex marriages are valid “even if the applicant is applying in a country in which same-sex marriage is illegal.”
The Department is asking consular sections to identify what types of marriages are available for same-sex couples in-country and to update the visa reciprocity tables.
Also, the cable notes that beginning “immediately,” same-sex spouses and their children are equally eligible for nonimmigrant derivative visas. Same-sex spouses and their children (“stepchildren of the primary applicant when the marriage takes place before the child turns 18”) can qualify as derivatives where the law permits issuance of the visa to a spouse or stepchild without being named on a petition (or if a petition is not required). This includes Diplomat (A), Commonwealth of the Northern Mariana Islands transitional worker (CW), treaty trader/investor (E), international organization employee (G), temporary worker (H), information media representative (I), intracompany transferee (L), North Atlantic Treaty Organization (NATO), extraordinary ability (O), entertainer and athlete (P), religious worker (R), and North American Free Trade Agreement (TN – Trade National) visa categories. If an applicant is otherwise qualified, the cable states, “he/she may be issued a derivative visa starting now.”
Among other things, the cable also notes that many same-sex couples live abroad in countries where they are unable to marry. Starting immediately, same-sex partners of U.S. citizens may apply for fiancé(e) nonimmigrant K-1 visas to wed in the United States, the cable states. Once the union is contracted in a state permitting same-sex marriage, the foreign spouse may apply for adjustment to legal permanent resident status through U.S. Citizenship and Immigration Services (USCIS), or the U.S. citizen may file an I-130 with USCIS. A significant portion of same-sex partners intending to immigrate to the United States may use fiancé(e) visas, the cable notes.
The cable, which also includes talking points for posts responding to public and media inquiries, is available at http://travel.state.gov/pdf/Next_Steps_On_DOMA_Guidance_For_Posts_August_2013.pdf. The FAQ is available at http://travel.state.gov/visa/frvi/frvi_6036.html.
OSC Discourages Pre-Population of I-9 Forms
The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently responded to a query about whether pre-population of employee information in section 1 of the Form I-9, Employment Eligibility Verification, is permissible. The query stated that U.S. Immigration and Customs Enforcement had said that pre-population is impermissible.
The OSC’s response noted that the I-9 instructions state that the employee must complete and sign section 1. Someone may assist the employee if he or she is unable to complete the form.
The OSC said that it discourages employers from pre-populating section 1 with previously obtained employee information. The agency noted that this increases the likelihood of including inaccurate or outdated information, which could lead an employer to reject documents presented or demand specific documents. This is particularly true, the OSC noted, if the employer does not provide an opportunity for the employee to review the information that was pre-populated and build in a method for making corrections. Further, the OSC noted, a mismatch could result if the employer uses outdated information to submit an E-Verify query.
The OSC’s response, which includes additional details, is available here.
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:
Rankings and Listings
We would like to congratulate H. Ronald Klasko (Ron) and William A. Stock (Bill) for again having been selected by their peers for inclusion in the 20th Edition of The Best Lawyers in America 2014 in the field of immigration law. Because no fee or purchase is allowed, inclusion in Best Lawyers is considered an extraordinary honor. Again, congratulations on being selected by your peers for inclusion in The Best Lawyers in America.
News and Noteworthy
Ron was appointed chair of the EB-5 investor committee of the American Immigration Lawyers Association. It is his fourth appointment to chair the committee.
Upcoming Speaking Engagements
Daniel B. Lundy (Dan) will discuss “What’s Next? EB-5 Trends and Developments” at the CDFA/IIUSA Intro EB-5 Finance WebCourse on September 19. Dan will review trends and developments related to the EB-5 Program and highlight some important statistics to consider when using this form of financing. Topics being discussed include capital and job formation, actions taking place at the U.S. Citizenship and Immigration Services (USCIS), the federal agency that administers the program, and legislative reforms that could affect the program.
Bill will speak with students at Temple University in Philadelphia regarding post-OPT options on September 24, 2013. Check out the events calendar on our website for more information on this talk.
” Post-doctoral fellows and other young scientists often find themselves between a rock and hard place when it comes to U.S. immigration law. Not only are employer sponsored petitions often difficult to come by, but the visa backlog means even those with an employer sponsored petition may find themselves waiting for many years. This presentation will address the specific issues faced by post-docs and young scientists in the immigration context, and discuss both the non-immigrant and green card options available under current law. For more information, click here.
Elise A. Fialkowski will present at a Pennsylvania Bar Institute (PBI) course on October 3, 2013 on worksite enforcement issues including I-9 compliance, audits, LCA enforcement and proactive strategies to reduce liability. For more information, contact Elise at firstname.lastname@example.org.
Ron will visit the Wharton Business School of the University of Pennsylvania on Tuesday, October 8, 2013. He will discuss topics of interest to entrepreneurial business students.
Ron will participate at the 27th Annual AILA Central Florida Chapter Seminar in Clearwater Beach, Florida on October 11 and 12. Ron will be a panelist on “The Lawyer’s Role in Business & Employment Visa Selection,” a session that will discuss self-sponsored H’s, L visas for start ups, strategies using spouse as primary visa holder, activities permissible without employment authorization, among other related topics.
Bill will speak at a seminar sponsored by the Biomedical Postdoctoral Programs of the University of Pennsylvania on Tuesday, October 22, 2013. He will discuss current issues in H-1B Visas, J Visas, – O-1 Visas, the Green Card application, and potential changes to the permanent residence status.
Elise will present at the Advanced Corporate Immigration Law Conference hosted in conjunction with the New Jersey Institute for Continuing Legal Education (NJICLE) on October 23, 2013. Elise will serve as a panelist on “Hot Topics – Compliance and Ethics for Corporations” and will address the latest developments and advanced issues in Immigration law, including legislative and regulatory changes, developing an I-9 and E-verify compliance program, determining best practices to verify new employees, dealing with remote employees, among other topics.
Recent Speaking Engagements
Ron spoke on “Options for Developers Seeking Capital Under the EB-5 Program” for EB-5 Investment Report Magazine’s educational Dialogue Series webcast on September 17, 2013. Ron discussed what a regional center is and how to create one and also explained different investment models, differences between individual EB-5 and regional center EB-5, the USCIS application process and more. For more information, click here for the event page or contact Ron at email@example.com to see if EB-5 is an option for you.
On September 3, 2013, Ron and Bill presented at the Practicing Law Institute’s 46th Annual Immigration & Naturalization Institute program in New York, NY. Ron presented “Challenges to Entrepreneurs Coming to the United States” and Bill spoke on “The Ever Evolving World of PERM and LCA Processing.”
Dan presented “Employment-Based Immigration: EB-5 from Start to Finish,” a program sponsored by Pincus Professional Education in Fort Lauderdale, FL on August 29, 2013. Dan, along with other instructors, provided an overview of the EB-5 program and addressed the requirements of each step in the process, leading to successful investments and permanent resident status for foreign nationals. For more information, contact Dan at firstname.lastname@example.org.
“The Golden Door Finally Opens for Same-Sex Couples,” an article authored by Matthew T. Galati, was published in the The Legal Intelligencer on August 21, 2013. In this article, Matt analyzes the impact of the supreme courts June 2013 decision in United States v Windsor which declared unconstitutional section three of the defense of marriage act. Matt also discusses the history of immigration laws as applied to homosexual aliens and advises on recent same sex marriage licenses issues by county officials in Pennsylvania. For a copy of the article, contact Matt at email@example.com.
What You May Have Missed
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September 18, 2013 by H. Ronald Klasko
- KILP Attorneys Help Local Church Prevail over USCIS’ Illegal Regulation
September 17, 2013 by William Stock
- Perspectives on the China Market
September 4, 2013 by H. Ronald Klasko