News from the Alliance of Business Immigration Lawyers Vol. 5, No. 6B • June 15, 2009

Headlines:

1. Outlook Grim for India, China Employment-Based Visa Categories – The July cut-off date for the India and China EB-2 categories is January 1, 2000; both could become unavailable in August or September and remain unavailable indefinitely.

2. E-Verify Federal Contractor Rule Delayed Until September 8, 2009 – The effective date to require federal contractors to use the E-Verify system to confirm the work authorization of new hires has been delayed again.

3. DHS Proposes To Expand E-Verify Monitoring and Compliance Efforts – USCIS’s Verification Division has created a Monitoring and Compliance (M&C) Branch.

4. SEVP Posts New Information on Upcoming SEVIS II – With the full deployment of SEVIS II, ICE will retire the original SEVIS system.

5. DOS Proposes Electronic Submission of SEVIS Annual Reports – Annual reports from designated program sponsors assist DOS in oversight and administration of the J-1 visa program.

6. USCIS Ombudsman Reports on Denials of Adjustment of Status Applications Following a Change of Employment – The USCIS Ombudsman has received inquiries stating that the agency is not issuing Notices of Intent to Deny following a change of jobs, as required.

7. Court Orders USCIS To Accept Concurrently Filed Religious Worker, Adjustment Applications – The court ordered USCIS to begin accepting concurrently filed special immigrant religious worker petitions and adjustment of status applications, along with related employment authorization applications.

8. DHS Begins Exit Pilot Test of Fingerprint Collections at Two Airports – DHS has begun collecting digital fingerprints from non-U.S. citizens leaving the U.S. from Hartsfield-Jackson Atlanta International Airport and Detroit Metropolitan Wayne County Airport.

9. DHS Establishes Interim Relief for Widows of U.S. Citizens – DHS has granted deferred action for two years to widow(er)s of U.S. citizens, and their unmarried children under 21 years old, who reside in the U.S. and were married for less than two years before their spouse’s death.

10. ABIL Global: EU Adopts Blue Card for Highly Skilled Foreign Workers – The Council of the European Union has created a fast-track procedure for third-country citizens in highly qualified employment.

11. Recent News from ABIL Members – Recent News from ABIL Members

12. Government Agency Links – Government Agency Links

Details:

1. Outlook Grim for India, China Employment-Based Visa Categories

The July cut-off date for the India and China EB-2 categories is January 1, 2000. The Department of State reports that these categories could become unavailable in August or September and remain unavailable indefinitely. The Department said there is a backlog of at least 25,000 India EB-2 cases awaiting visa numbers. Charles Oppenheim of the Department of State’s Visa Office reportedly stated that without legislative relief, the waiting time for Indian EB-2 applicants may be measured in years, even decades.

Meanwhile, the EB-1 category for India and China is not likely to stay current, although the EB-1 category worldwide is expected to remain current. EB-3 visa numbers worldwide and for India, China, and Mexico are expected to remain unavailable for the remainder of this fiscal year at least. The EB-3 category for India could remain unavailable indefinitely.

The third preference and “other workers” employment categories are unavailable in July.

The Visa Bulletin for July 2009 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4512.html.

2. E-Verify Federal Contractor Rule Delayed Until September 8, 2009

The effective date to require federal contractors to use the E-Verify system to confirm the work authorization of new hires has been delayed again, to September 8, 2009. There is strong bipartisan support for electronic verification of new hires using federal systems, so the Alliance of Business Immigration Lawyers (ABIL) cautions all employers not already using E-Verify to be prepared for it in 2010.

Contact your ABIL attorney for guidance on I-9 audits, transitioning from paper to electronic I-9s, E-Verify training and policies, and related matters. We have many tools and resources available for employers to use in navigating through the new era in employment verification.

For more on this topic, see U.S. Citizenship and Immigration Services’ (USCIS) response to the USCIS Ombudsman on E-Verify: http://www.dhs.gov/xlibrary/assets/uscis_response_cis_ombudsman_recommendation_38.pdf.

3. DHS Proposes To Expand E-Verify Monitoring and Compliance Efforts

U.S. Citizenship and Immigration Services’ Verification Division has created a Monitoring and Compliance (M&C) Branch, which will seek to “identify potential cases of misuse, abuse, discrimination, breach of privacy, or fraudulent use of SAVE [Systematic Alien Verification for Entitlements] and E-Verify.”

The M&C Branch is developing detailed procedures for both monitoring verification transactions and performing compliance activities on defined non-compliant behaviors. For example, DHS notes, with respect to the misuse of Social Security numbers, M&C will identify when a single social security number is used multiple times for employment authorization verifications through E-Verify. DHS acknowledges that it would not be uncommon for a single individual to be verified several times through E-Verify because one person may hold multiple jobs or change jobs frequently, but it would be unusual for a single individual to hold 30 or 40 jobs simultaneously. M&C has developed procedures for identifying when a certain threshold number of verifications of a single SSN would be likely to indicate misuse. If this threshold is met, M&C may contact or visit an employer to research the issue and determine if there is a system problem the Verification Division needs to correct; a user misunderstanding that requires additional training for the employer; or potentially fraudulent activity that may need to be reported to a law enforcement agency. Information also may be shared with other government agencies.

The management of compliance activities and storage of the supporting information will be handled by the Compliance Tracking and Management System (CTMS). Activities that will be monitored may include:

Fraudulent use of Alien Numbers (A-Numbers) and SSNs by E-Verify users;
Termination of an employee because he receives a tentative nonconfirmation (TNC);
Failure of an employer to notify DHS, as required by law, when an employee who receives a final nonconfirmation (FNC) is not terminated;
Verification of existing employees (as opposed to new hires);
Verification of job applicants, rather than new employees (pre-screening);
Selectively using E-Verify or SAVE for verifications based on foreign appearance, race/ethnicity, or citizenship status;
Failure to post the notice informing employees of participation in E-Verify;
Failure to use E-Verify, consistently or at all, once registered;
Failure of a SAVE agency to initiate additional verification when necessary;
Unauthorized searching and use of information by a SAVE agency user; and
Fraudulent use of visas, permits, and other DHS documents by SAVE users.

DHS also notes that employers are required to post notification of their participation in E-Verify conspicuously for their employees. This notification provides the employees with information concerning their rights and responsibilities regarding E-Verify, including contact information. M&C compliance activities on this front most likely would occur based on a complaint or hotline report, or during a compliance visit researching other potential noncompliance. M&C might also identify potential noncompliance from media reports or tips from law enforcement agencies.

The related proposed rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-11966.pdf. The Privacy Act notice is available at http://edocket.access.gpo.gov/2009/pdf/E9-11967.pdf.

4. SEVP Posts New Information on Upcoming SEVIS II

The Student and Exchange Visitor Program (SEVP) has added a new section to its Web site on the development of the SEVIS II database. SEVIS II supports the application and admission of students and exchange visitors under the F, M, and J classifications. SEVIS II maintains personal information about these foreign nationals and any accompanying dependents. In addition, SEVIS II maintains personal information about officials of approved schools and designated exchange visitor sponsors who host nonimmigrant students and exchange visitors.

For more information, see http://www.ice.gov/sevis/sevisii/index.htm.

5. DOS Proposes Electronic Submission of SEVIS Annual Reports

The Department of State (DOS) has proposed allowing electronic submission of Student and Exchange Visitor Information System (SEVIS) annual reports. Annual reports from designated program sponsors assist DOS in oversight and administration of the J-1 visa program. The reports provide statistical data on the number of exchange participants an organization has sponsored by category. The reports also summarize the activities in which exchange visitors were engaged and evaluate program effectiveness. Program sponsors include government agencies, academic institutions, and private sector entities.

Annual reports currently are completed through SEVIS and then printed and signed by a sponsoring official, and sent to DOS by mail or fax. DOS is working with the Department of Homeland Security to expand SEVIS functions and enable the collection of electronic signatures. Annual reports will be submitted to the Department electronically as soon as the mechanism for doing so is approved and in place, DOS said.

See http://edocket.access.gpo.gov/2009/pdf/E9-12147.pdf.

6. USCIS Ombudsman Reports on Denials of Adjustment of Status Applications Following a Change of Employment

The U.S. Citizenship and Immigration Services (USCIS) Ombudsman has received inquiries stating that the agency is not issuing Notices of Intent to Deny following a change of jobs, as required by the American Competitiveness in the 21st Century Act (AC21) and USCIS policy guidance, but instead is immediately denying pending Form I-485 (Application to Register Permanent Residence or Adjust Status) applications.

If a foreign national is: (1) the beneficiary of an approved Form I-140 (Petition for Immigrant Worker); and (2) has a Form I-485 pending for 180 days or more, he or she is eligible to change to a same or similar position. If the underlying approved I-140 is withdrawn, and no evidence of a new qualifying offer of employment was submitted, then USCIS must issue a Notice of Intent to Deny the pending I-485.

However, the ombudsman noted that USCIS may deny the I-485 in cases of portability (the ability to change jobs) before first issuing a Notice of Intent to Deny in certain limited circumstances. These include, for example, where the beneficiary is ineligible for the benefits of the I-485 by statute, or the I-140 is withdrawn before the I-485 was pending for 180 days.

If you think your case was erroneously denied, the ombudsman asks that you forward a description of the problem using DHS Form 7001 with the subject line, “AC21 Evidence of Immediate Denial.” Include a copy of your denial notice, detailed information about the reasons for the immediate denial, and, if appropriate, evidence that you submitted a Motion to Reopen or Reconsider. “If we consider your case to be an erroneous denial, we will forward it directly to USCIS for further review,” the ombudsman states.

For more information, including links to USCIS Interoffice Memoranda further clarifying USCIS processing of these cases, see http://www.dhs.gov/xabout/structure/gc_1221837986181.shtm#1.

7. Court Orders USCIS To Accept Concurrently Filed Religious Worker, Adjustment Applications

In Ruiz-Diaz v. U.S., Washington District Court has found that the bar against concurrent filings on behalf of religious workers for adjustment of status is invalid and unenforceable. The court ordered U.S. Citizenship and Immigration Services to begin accepting concurrently filed special immigrant religious worker petitions and adjustment of status applications, along with related employment authorization applications.

The case is available at http://www.aila.org/content/default.aspx?docid=29247.

8. DHS Begins Exit Pilot Test of Fingerprint Collections at Two Airports

The Department of Homeland Security (DHS) has begun collecting digital fingerprints from non-U.S. citizens departing the U.S. as part of a pilot program at Hartsfield-Jackson Atlanta International Airport and Detroit Metropolitan Wayne County Airport.

Non-U.S. citizens leaving from Detroit and Atlanta airports should expect to have their fingerprints collected before boarding their flights. U.S. Customs and Border Protection (CBP) officers will collect fingerprints at the boarding gate from non-U.S. citizens departing from Detroit; U.S. Transportation Security Administration (TSA) officers will collect fingerprints at security checkpoints from non-U.S. citizens departing from Atlanta. The pilot tests are expected to continue through early July. US-VISIT plans to begin implementing new biometric exit procedures based on these pilots for non-U.S. citizens departing the U.S. by air within the next year.

Non-U.S. citizens departing the U.S. from all other ports of entry will continue to follow current exit procedures, which require travelers to return their paper Form I-94 (Arrival-Departure Record) or I-94W (for Visa Waiver Program travelers) to an airline or ship representative.

Since 2004, the U.S. Department of State (DOS) and U.S. Customs and Border Protection (CBP) have collected biometrics from most non-U.S. citizens between the ages of 14 and 79, with some exceptions, when they apply for visas or arrive at U.S. ports of entry. The US-VISIT program has simultaneously worked to create a congressionally mandated automated biometric exit capability, which these pilots are testing.

For more information, see http://www.dhs.gov/ynews/releases/pr_1243605893203.shtm.

9. DHS Establishes Interim Relief for Widows of U.S. Citizens

The Department of Homeland Security (DHS) has granted deferred action for two years to widows and widowers of U.S. citizens, and their unmarried children under 21 years old, who reside in the U.S. and were married for less than two years before their spouse’s death.

U.S. Citizenship and Immigration Services (USCIS) will suspend adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for reassessment of immigration status was the death of a U.S. citizen spouse before the second anniversary of the marriage. Additionally, U.S. Immigration and Customs Enforcement (ICE) will defer initiating or continuing removal proceedings, or executing final orders of removal against qualified widow(er)s and their eligible children.

USCIS will also consider favorably requests for humanitarian reinstatement where previously approved petitions for widow(er)s had been revoked because of the law. DHS said it will soon issue guidance on how to apply for this relief.

While the directive provides a short-term arrangement for widow(er)s of deceased U.S. citizens, the agency noted that legislation is required to amend the definition of “immediate relative” in the Immigration and Nationality Act to permit surviving spouses to remain indefinitely after the U.S. citizen spouse dies, enabling them to seek permanent resident status.

The DHS notice is available at http://www.dhs.gov/ynews/releases/pr_1244578412501.shtm.

10. ABIL Global: EU Adopts Blue Card for Highly Skilled Foreign Workers

The Council of the European Union has created a fast-track procedure for issuing a special residence and work permit, the “EU Blue Card,” for third-country citizens in highly qualified employment. Under the rules set by the directive, EU Blue Card holders will enjoy equal treatment with nationals of the member state issuing the Blue Card regarding:

working conditions, including pay and dismissal;
freedom of association;
education, training, and recognition of qualifications;
a number of provisions in national law regarding social security and pensions;
access to goods and services, including procedures for obtaining housing, information and counseling services; and
free access to the entire territory of the member state concerned within the limits provided for by national law.

Following its publication in the Official Journal of the EU, the member states will have two years to incorporate the new provisions into their domestic legislation.

The announcement is available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/misc/107989.pdf.

11. Recent News from ABIL Members

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) spoke on a panel, “Demoted, Restructured or Fired: Representing Your Clients In A Recession Era and How To Practice Ethics In A Crisis,” at the 2009 Upper Midwest Immigration Conference: “Maximizing The Act,” held in Bloomington, Minnesota, on April 30, 2009.

Mr. Mehta also spoke on business ethics at the American Immigration Lawyers Association’s (AILA) Annual Conference in Las Vegas, Nevada, on June 6, 2009.

At the AILA Conference, Sharon Mehlman (bio: https://www.abil.com/lawyers/lawyers-mehlman.cfm) moderated the USCIS Open Forum and also presented on liaison issues for the AILA Leadership Institute. She received an award from AILA for outstanding liaison work.

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) spoke on four panels at the AILA Conference. On June 4, Mr. Yale-Loehr moderated a panel on E nonimmigrant investor visas. On June 5, he spoke at a luncheon seminar sponsored by CanAm enterprises on EB-5 immigrant investor green cards. On June 6, he spoke at an advanced panel on EB-5 issues. Also on June 6, he led a lunch meeting of Invest In the USA (IIUSA), a trade association of EB-5 regional centers.

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) is ending his term as AILA President as of June 4, 2009, and Bernard Wolfsdorf (bio: https://www.abil.com/lawyers/lawyers-wolfsdorf.cfm) is beginning his.

Mr. Kuck’s immigration blog is available at http://www.immigration.net/blog. His podcast is available on iTunes (“The Immigration Hour” – see http://www.apple.com/search/ipoditunes/?q=immigration+hour).

H. Ronald Klasko (bio: https://www.abil.com/lawyers/lawyers-klasko.cfm) addressed members of NAFSA: Association of International Educators on “Advanced Immigration Issues for Academic Healthcare Institutions” at its annual meeting in Los Angeles recently. His talk included the latest information on obtaining visas and resident status for faculty, researchers, medical personnel, and staff members. At the same conference, Mr. Klasko also spoke on worksite compliance. His talk, “100 Percent Compliance with Immigration, Form I-9, and E-Verify Rules,” detailed how universities and research institutions with federal contracts are subject to the new E-Verify compliance rules. Over 7,000 NAFSA members, from universities and teaching hospitals around the world, attended the annual meeting.

Mark Ivener (bio: https://www.abil.com/lawyers/lawyers-ivener.cfm) spoke at the AILA Conference on June 4, 2009, on “Marketing Your Brains Out, Without Losing Your Mind.”

12. 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