News from the Alliance of Business Immigration Lawyers Vol. 5, No. 10A • October 01, 2009
Headlines:
1. USCIS Says Fees May Rise – A decline in revenue from a decrease in applications could lead to higher application fees.
2. Labor Dept. Issues FAQ on LCAs – The Department issued a FAQ about the new iCERT Portal and the newly redesigned ETA Forms 9035 and 9035E.
3. ABIL Alert: Be Prepared for Surprise Enforcement Site Visits – Employers should prepare for unannounced, random immigration-related worksite inspections.
4. USCIS Announces New Web Site Design – USCIS says its redesigned Web site, in English and Spanish, is more customer-centric.
5. Interim EADs Issued to Salvadorans – Interim work authorization documents will be issued to Salvadoran TPS beneficiaries who have not yet received a final action on re-registration applications that have been pending for more than 90 days.
6. Global Entry Program Now Available at Detroit Airport – Global Entry allows pre-screened, approved, registered travelers to use automated kiosks to receive expedited processing upon arrival.
7. Missouri Plant Pays $450K Fine for Hiring Undocumented Workers – A Missouri poultry-processing plant where 136 undocumented workers were arrested in 2007 recently paid a $450,000 administrative fine as a result of a worksite enforcement investigation.
8. ABIL Global: Turkish Immigration – AMS Visas – An AMS visa is applicable to many categories of “assembly and maintenance” work, including computer software and hardware, complex machinery, energy equipment, manufacturing equipment and more.
9. Publications and Items of Interest – Publications and Items of Interest
10. Recent News from ABIL Members – Recent News from ABIL Members
11. Government Agency Links – Government Agency Links
Details:
1. USCIS Says Fees May Rise
Alejandro Mayorkas, the new director of U.S. Citizenship and Immigration Services, said recently that the agency has received a significantly lower number of applications lately and that the resulting decline in revenue could lead to higher application fees. At a press conference in Albuquerque, New Mexico, on September 24, 2009, Mr. Mayorkas said there is a $118 million budget shortfall and that he has asked for Congress’s help. “The potential fee increase is not something that is taken lightly. We understand very well its impact upon the community. In my personal view, it would be something of [a] last resort.”
Mary Giovagnoli, director of the Immigration Policy Center, noted that an increase in fees could result in even fewer applicants. “Congress has been really reluctant to revisit this whole idea that we shouldn’t be trying to finance our immigration system basically solely on the backs of applicants. I think the agency and the applicants are both kind of caught between a rock and [a] hard place.”
Fee increases were imposed two years ago, but a budget gap remains. For more on the drop in applications and its effect on USCIS’s budget, see http://www.abqjournal.com/news/state/apimmigrationfees09-14-09.htm. A news article about Mr. Mayorkas’ press conference is posted at http://www.abqjournal.com/news/state/apimmigfeesmayorkas109-24-09.htm. A USCIS Q&A on paying immigration fees and what types of payment are accepted is available at http://www.uscis.gov/files/article/Check_Instructions.pdf. For more guidance on how to pay immigration fees, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3850a99ba78af110VgnVCM1000004718190aRCRD&vgnextchannel=7d316c0b4c3bf110VgnVCM1000004718190aRCRD.
2. Labor Dept. Issues FAQ on LCAs
The Department of Labor recently issued frequently asked questions (FAQ) about the new iCERT Portal and the newly redesigned ETA Forms 9035 and 9035E. Topics discussed include how to correct an invalid federal employer identification number after denial of a labor condition application (LCA) on that ground; filing on behalf of a new company created through a merger, acquisition, or sale; what contact information to enter for employer point of contact; how to enter a prevailing wage survey on the new LCA; and how to withdraw an LCA after receiving certification via the iCERT Portal.
The FAQ is available at http://www.foreignlaborcert.doleta.gov/pdf/FAQ_iCERT_090909_%20FINAL_Elissa_090909.pdf. A press release is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/FY%2009/September%202009/website_redesign.pdf.
3. ABIL Alert: Be Prepared for Surprise Enforcement Site Visits
As part of the Department of Homeland Security’s stepped-up enforcement efforts that include increased audits of businesses to detect immigration and labor law violations, employers are reporting random, unannounced visits by the Fraud Detection and National Security Division (FDNS) of U.S. Citizenship and Immigration Services. FDNS inspectors often use a script of questions and ask to speak with an employer representative and any foreign workers. FDNS is also using what it learns to add fraud indicators to its database in an effort to identify patterns and potential fraud during adjudications.
The Alliance of Business Immigration Lawyers (ABIL) recommends that employers prepare for immigration-related worksite inspections by developing and implementing robust compliance policies, auditing their I-9s and H-1B public access files, and planning in advance how to respond when immigration agents visit. ABIL recommends designating an immigration compliance officer, who should contact immigration counsel immediately upon an FDNS site visit, and implementing an investigation response plan in advance that includes everyone from upper management to receptionists. Contact your ABIL attorney for help in preparing for potential onsite FDNS inspections.
4. USCIS Announces New Web Site Design
U.S. Citizenship and Immigration Services (USCIS) says its redesigned Web site, in English and Spanish, is more customer-centric, providing users with a “one-stop shop” for immigration services and information.
Before the redesign, users described the USCIS Web site as “frustrating” and “hard to navigate.” The new “Where to Start” tool, located on the top left of the homepage, allows for direct navigation to information.
By clicking on the first drop-down menu, users have the opportunity to choose who they are from a number of options. After selecting who they are, clicking on the second drop-down menu allows them to select what they want to do.
USCIS says the “Where to Start” tool will take users to the information they want without having to search the entire site. Applicants for citizenship may also follow the progress of their cases online, and receive notifications via e-mail or text messages when their application status changes.
The USCIS Web site is at http://www.uscis.gov/portal/site/uscis. A related fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/FY%2009/September%202009/Where%20to%20Start%20Fact%20Sheet_ckn%2016Sept09.pdf.
5. Interim EADs Issued to Salvadorans
USCIS announced that interim Employment Authorization Documents (EADs) will be issued to Salvadoran temporary protected status (TPS) beneficiaries who have not yet received a final action on their re-registration applications and whose re-registration applications have been pending for more than 90 days.
Initially, the expiration date for Salvadoran EADs was March 9, 2009. USCIS automatically extended the EAD validity period to September 9, 2009. USCIS said that issuance of the interim EADs will allow TPS beneficiaries to continue working while the agency completes processing of their re-registration applications.
USCIS said it has already processed over 99.5 percent of the Salvadoran re-registration applications for the current TPS designation period ending September 9, 2010. This includes a substantial number of re-registration applications filed after the re-registration period closed. A small number of pending re-registration applications are still under review by USCIS and awaiting further information from the applicants.
Any applicant who receives an interim EAD must still respond to any USCIS requests, including for additional evidence, documents, or biometric/fingerprint appointments. To maintain employment authorization through September 9, 2010, an applicant had to respond to any USCIS requests and resolve all issues so that a new EAD could be provided.
For more information, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5de2eb7cf98c3210VgnVCM100000b92ca60aRCRD&vgnextchannel=a2dd6d26d17df110VgnVCM1000004718190aRCRD.
6. Global Entry Program Now Available at Detroit Airport
Global Entry, U.S. Customs and Border Protection’s (CBP) new clearance system for international air passengers, is now open at Detroit Metropolitan International Airport.
Global Entry allows pre-screened, approved, registered travelers (including U.S. citizens, lawful permanent residents of the U.S. and citizens of certain other countries) to use automated kiosks to receive expedited processing upon arrival at Detroit Metropolitan Airport.
Global Entry participation is voluntary. Participants must possess a machine-readable U.S. passport or permanent resident card, pay a non-refundable $100 application fee, submit an online application, and complete an interview at a CBP enrollment center.
“Detroit is a major international gateway, especially for flights from Asia and Europe, as well as a hub airport for Delta, the world’s largest airline,” said airport authority CEO Lester Robinson. “We treasure our international passengers and this added convenience provided by [CBP] is one more customer service we can highlight when marketing our airport and our region.”
Global Entry is now available at Miami, Atlanta, Los Angeles, Chicago, Sea-Tac, Dallas, Newark, San Francisco, Boston, Orlando, Honolulu, Las Vegas, Orland-Sanford, Philadelphia, San Juan and Fort Lauderdale, as well as Detroit.
The Detroit announcement is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/09182009_4.xml. Additional information on the Global Entry program (including enrollment application) is available at http://www.cbp.gov/xp/cgov/travel/trusted_traveler/global_entry/.
7. Missouri Plant Pays $450K Fine for Hiring Undocumented Workers
A Missouri poultry-processing plant where 136 undocumented workers were arrested in 2007 recently paid a $450,000 administrative fine as a result of a worksite enforcement investigation conducted by U.S. Immigration and Customs Enforcement (ICE). George’s Processing, Inc., paid the fine on September 11, 2009, as part of a settlement agreement.
ICE said it will use the funds to promote future law enforcement programs and activities in worksite enforcement. During a May 2007 enforcement action at the George’s plant in Cassville, Missouri, ICE agents administratively arrested 136 undocumented workers from Mexico and Guatemala. Twenty-eight of those workers were criminally prosecuted for various immigration violations, including falsely claiming U.S. citizenship. Two of the company’s hiring personnel subsequently were convicted of harboring undocumented workers and inducing them to remain in the United States.
George’s Processing, Inc., headquartered in Springdale, Arkansas, employs 4,000 workers at its three poultry processing facilities in Arkansas, Missouri, and Virginia.
The USCIS announcement is available at http://www.ice.gov/pi/nr/0909/090915springfield.htm.
8. ABIL Global: Turkish Immigration – AMS Visas
Hans is a software technician working for Finance Software, GmbH, which produces highly specialized banking software products. Finance Software has signed a major contract to produce, install, and customize its software for a Turkish bank. Because the software products are very complex and must be customized on site, Hans must spend several months in Turkey for installation work. Does Hans need a work permit in Turkey? Fortunately not, but instead he will need to obtain an Assembly and Maintenance Service (AMS) visa.
Under Turkish immigration law, under certain conditions a work permit is not needed if an employee of a foreign entity engages in assembly and maintenance service work in Turkey for the benefit of a receiving Turkish company if the equipment subject to maintenance and installation services was imported to Turkey. An AMS visa is applicable to many categories of “assembly and maintenance” work, including computer software and hardware, complex machinery, energy equipment, manufacturing equipment and more, as evaluated on a case-by-case basis. Obtaining such a visa should be attempted whenever feasible given the difficulty and length of time it takes to obtain a work permit.
Documents required for filing an AMS visa application at a consular post vary somewhat from post to post, but generally include a petition, an invitation letter from the Turkish company, a sending employer letter, a visa application form, and ID photos. Additional documents requested by the post often may include a round-trip ticket, several months of the applicant’s personal bank account records, the applicant’s personal tax records, a diploma, and insurance coverage in Turkey. In the event that either the employing company or the customer company is not well known, the consular post may require additional documents regarding the companies.
An AMS visa generally is issued for up to 90 days. While working in Turkey pursuant to an AMS visa, employees should continue to be paid by the foreign entity that sent them. An AMS visa allows the employees to work only in the designated locality for the Turkish company, as designated within the scope of the visa. Although the application considers a request for a single or multiple entry visa, in practice, the Foreign Ministry issues only single entry visas. Additionally, an AMS visa is only issued once per year per employee. Therefore, if the employee departs Turkey during this initial 90-day period, he or she will not be able to re-enter Turkey in AMS visa status for one year.
If an AMS visa is issued for fewer than 90 days, and the assembly/maintenance work persists beyond the duration of the visa, lawful stay may be extended at the discretion of the government, but generally for no longer than a total of 90 days. Authorization to remain based on AMS grounds will be in the form of a specialized residency permit. This application is filed at the Foreigner’s Division of the Police Department in the locality where the work is being done.
Although Turkish visa regulations do not provide many options for employment-based visas outside of the work permit regime, the AMS visa is a common option used by companies.
9. Publications and Items of Interest
U.S. Citizenship and Immigration Services has issued the E-Verify Supplemental Guide for Federal Contractors. The guide discusses regulations affecting federal contractors; instructions for verifying new and existing employees; E-Verify enrollment and participation as a federal contractor; enrollment instructions for certain organizations that qualify as exceptions; qualifying contracts, exemptions, and exceptions; subcontractors, independent contractors, and affiliates; and information for designated agents.
The guide is available at http://www.uscis.gov/USCIS/E-Verify/Federal%20Contractors/Supplemental%20Guidance%20for%20Federal%20Contractors%20082709%20FINAL.pdf. Other E-Verify guidance includes the E-Verify User Manual for Employers, available at http://www.uscis.gov/files/nativedocuments/E-Verify_Manual.pdf, and the E-Verify User Manual for General Users, Program Administrators and Designated Agents, available at http://www.uncp.edu/hr/employment/E-VerifyUserManual.pdf.
10. Recent News from ABIL Members
Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) was quoted recently in the Los Angeles Daily Journal in “U.S. Colleges Grapple With Worker Status Verification.” Mr. Paparelli noted that, “In addition to new hires, employers are trying to understand what to do about existing employees.” He said that the expansion of the system is likely to create pressures on the E-Verify database.
In the same article, Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) noted that “now so many companies and institutions around the country, big and small, nonprofit, and for-profit, colleges and others are having to become more of an immigration policeman than they did under the old system.”
Mr. Yale-Loehr was quoted in “Congress Re-Evaluates Fast-Track Visa Program,” published on September 22, 2009, by China Daily. Mr. Yale-Loehr said he thinks the chances of the EB-5 program ending are “remote,” noting that Sen. Patrick Leahy (D-Vt.), chairman of the Judiciary Committee, and others have spoken in favor of making the program permanent. “With their support the chances of getting permanency is high,” he said. The article is posted at http://www.chinadailyusa.com/2009/september/21/congress-re-evaluates-fast-track-visa-program.html.
Charles Kuck recently posted a blog on the possible increase in USCIS fees and suggestions for meeting the agency’s budget. Among other things, Mr. Kuck noted, “This last week we submitted a 3,000 page (30 lb.) response to an RFE (see the picture above), which alleged that an Accountant was not a professional position! Director, what is the deal with your Service Centers? Is there simply too little to do and too many employees?” The blog is posted at http://immigration.net/blog/.
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/processTimesDisplay.do
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