News from the Alliance of Business Immigration Lawyers Vol. 6, No. 6B • June 15, 2010

Headlines:

1. USCIS Proposes Changes in Fees, Large New Fee for EB-5 Regional Center Applications – A new proposed fee rule would increase the average application and petition fees by a “weighted average” of approximately 10 percent, and would establish a hefty new fee of $6,230 for an application for regional center designation under the EB-5 Immigrant Investor Pilot Program.

2. USCIS Redesigns E-Verify Online Interface; Employers Required To Complete Tutorial – Users are required to complete a free 20-minute tutorial the next time they login before using the new interface.

3. Lawsuit Challenges H-1B Memo on Employer-Employee Relationship – The group filing the lawsuit argues that denials are being issued under the memo’s guidance for beneficiaries whose visa applications were approved previously under the regulatory criteria.

4. ICE Proposes New IMAGE Application – Upon enrollment and commitment to the Department of Homeland Security’s “best hiring practices” program, participants are deemed “IMAGE Certified.”

5. DHS Outlines Best Hiring Practices – Among other things, DHS recommends that employers make a good-faith effort to correct and verify the names and Social Security numbers of the current workforce.

6. New Publications and Items of Interest – New Publications and Items of Interest

7. Recent News From ABIL Members – Recent News From ABIL Members

8. Government Agency Links – Government Agency Links

Details:

1. USCIS Proposes Changes in Fees, Large New Fee for EB-5 Regional Center Applications

A new proposed fee rule would increase the average application and petition fees by a “weighted average” of approximately 10 percent, and would establish a hefty new fee of $6,230 for an application for regional center designation under the EB-5 Immigrant Investor Pilot Program.

“Understanding the unique importance of naturalization,” U.S. Citizenship and Immigration Services (USCIS) said it is not proposing a naturalization application fee increase. The proposed rule would establish several other new fees, however, including for individuals seeking civil surgeon designation ($615) and recovery of the cost of processing immigrant visas granted by the Department of State ($165). Among others, the Immigrant Petition for Alien Worker (Form I-140) fee would increase from $475 to $580; the Petition for a Nonimmigrant Worker (Form I-129) fee would increase from $320 to $325; and the Application for Employment Authorization (Form I-765) fee would increase from $340 to $380.

The rule also proposes to raise the fee for premium processing from $1,000 to $1,225, calculated by using the percentage increase in inflation according to the Consumer Price Index for urban consumers (CPI-U) since the fee’s inception in 2001. The final rule will establish the amount based upon the latest published monthly CPI before the final rule publication. DHS also proposes to specify that it will use the CPI–U to calculate all future inflation-based fee adjustments and will publish a notice in the Federal Register annually (if applicable) to adjust this fee.

The proposed fee structure reduces fees for several individual applications and petitions, including the Application to Extend/Change Nonimmigrant Status (Form I-539) and the Application to Adjust Status From Temporary To Permanent Resident (Form I-698).

Written comments must be submitted by July 26, 2010, using a method set forth in the proposed rule. The proposed fee rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-13991.pdf. USCIS’s announcement, which includes a table of current and proposed fees, is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=269d3d5d65919210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=a36b3d5d65919210VgnVCM100000082ca60aRCRD&vgnextchannel=5b33aca797e63110VgnVCM1000004718190aRCRD.

A transcript of USCIS’s related press conference is available at http://www.uscis.gov/USCIS/News/2010%20News%20Items/June%202010/PenPadTranscript9Jun10.pdf.

2. USCIS Redesigns E-Verify Online Interface; Employers Required To Complete Tutorial

Effective June 13, 2010, U.S. Citizenship and Immigration Services (USCIS) has redesigned its E-Verify online interface. Users are required to complete a free 20-minute tutorial the next time they log in before using the new interface.

Among other things, USCIS has instituted a “1-2-3” step process to help employers verify an employee’s work authorization.

Details on the E-Verify redesign, including links to “how-to” videos, are available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=7b9895c2f9cc8210VgnVCM100000082ca60aRCRD&vgnextchannel=7b9895c2f9cc8210VgnVCM100000082ca60aRCRD. Information about the “1-2-3” step process is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=6f542b0851cb8210VgnVCM100000082ca60aRCRD&vgnextchannel=7b9895c2f9cc8210VgnVCM100000082ca60aRCRD.

3. Lawsuit Challenges H-1B Memo on Employer-Employee Relationship

A group of IT staffing firms and associations has filed a lawsuit challenging a memo issued in January 2010 by Donald T. Neufeld, Associate Director of Service Center Operations for U.S. Citizenship and Immigration Services (USCIS), that provided guidance on determining employer-employee relationships for H-1B purposes.

The firms, Broadgate Inc., Logic Planet Inc., DVR Softek Inc., and trade associations TechServe Alliance and American Staffing Association, filed the lawsuit on June 8, 2010, in the U.S. District Court for the District of Columbia. Among other things, the suit alleges that the memo is arbitrary and capricious and not authorized by law or under USCIS’s statutory and regulatory authority. The group argues that denials are being issued under the memo’s guidance for beneficiaries whose visa applications were approved previously under the regulatory criteria.

“IT staffing is a lawful business model that greatly benefits the U.S. economy, U.S. businesses and U.S. workers. The government should not be allowed to attack the industry by circumventing the rulemaking process and reversing long-standing policy by decree,” said Mark Roberts, chief executive officer of TechServe Alliance.

The Neufeld memo is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf. A Q&A on the Neufeld memo is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3d015869c9326210VgnVCM100000082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190aRCRD.

4. ICE Proposes New IMAGE Application

U.S. Immigration and Customs Enforcement (ICE) has filed a 60-day notice for a new information collection application with the Office of Management and Budget for the ICE Mutual Agreement between Government and Employers (IMAGE) program, which is the outreach and education component of the Office of Investigations (OI) Worksite Enforcement program.

According to ICE, IMAGE “is designed to build cooperative relationships with the private sector to enhance compliance with immigration laws and reduce the number of unauthorized aliens within the American workforce.” Under this program, ICE partners with businesses representing a cross-section of industries. A business initially completes and prepares an IMAGE membership application so that ICE can properly evaluate the company for inclusion in the IMAGE program. ICE noted that the information provided by the company “plays a vital role in determining it suitability for the program.”

As part of IMAGE, ICE and U.S. Citizenship and Immigration Services (USCIS) provides education and training to the company on proper hiring procedures, fraudulent document detection, use of the E-Verify employment eligibility verification program, and anti-discrimination procedures. Employers seeking to participate in IMAGE must agree to:

Complete a self-assessment questionnaire;
Enroll in E-Verify;
Enroll in the Social Security Number Verification Service;
Adhere to IMAGE Best Employment Practices;
Undergo an I-9 audit conducted by ICE; and
Review and sign an IMAGE partnership agreement with ICE.

Upon enrollment and commitment to the Department of Homeland Security’s “best hiring practices” program (see the next article in this issue), participants are deemed “IMAGE Certified,” a distinction DHS said it believes will become an industry standard. DHS said that it also intends to use the results of the IMAGE program and participation in IMAGE by partners in industry to guide the agency in shaping future worksite enforcement policy and legislation.

Additional information is available at http://www.ice.gov/partners/opaimage/. The notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-14042.pdf. Comments will be accepted for 60 days until August 10, 2010, and should be sent to the person named in the notice.

5. DHS Outlines Best Hiring Practices

As part of the ICE Mutual Agreement between Government and Employers (IMAGE) program (see the previous article in this issue), DHS recommends the following “best hiring practices”:

Use E-Verify to verify the employment eligibility of all new hires.
Use the Social Security Number Verification Service (SSNVS) and make a good-faith effort to correct and verify the names and Social Security numbers of the current workforce.
Establish a written hiring and employment eligibility verification policy.
Establish an internal compliance and training program related to the hiring and employment verification process, including completion of the I-9 form, how to detect the fraudulent use of documents in the verification process, and how to use E-Verify and SSNVS.
Require the I-9 and E-Verify process to be conducted only by an individual who has received appropriate training, and include a secondary review as part of each employee’s verification “to minimize the potential for a single individual to subvert the process.”
Arrange for annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in the I-9 process.
Establish a procedure to report to ICE credible information of suspected criminal misconduct in the employment eligibility verification process.
Establish a program to assess subcontractors’ compliance with employment eligibility verification requirements. Encourage contractors to incorporate IMAGE Best Practices and when practicable incorporate the verification requirements in subcontractor agreements.
Establish a protocol for responding to letters received from federal and state government agencies indicating that there is a discrepancy between the agency’s information and the information provided by the employer or employee (for example, “no-match” letters received from the Social Security Administration).
Establish a tip line mechanism (e.g., inbox, e-mail) for employees to report activity relating to the employment of unauthorized workers, and a protocol for responding to employee tips.
Establish and maintain appropriate policies, practices, and safeguards against use of the verification process for unlawful discrimination, and to ensure that U.S. citizens and authorized workers do not face discrimination with respect to hiring, firing, or recruitment or referral for a fee because of citizenship status or national origin.
Maintain copies of any documents accepted as proof of identity and/or employment authorization for all new hires.

The hiring practices and related information are available at http://www.ice.gov/partners/opaimage/.

6. New Publications and Items of Interest

Recommendations on waivers of inadmissibility. The U.S. Citizenship and Immigration Services Ombudsman has released recommendations on processing waivers of inadmissibility. The Ombudsman found that challenges in the current waiver process often discourage applicants from applying, and that immigration attorneys are often reluctant to advise their clients to enter into the waiver process. Among other things, the Ombudsman noted that limited access to information about processing times frustrates applicants; there is no standard process for applicants in urgent situations who are seeking expedited processing; discrepancies in interpretation of the extreme hardship standard lead to a lack of uniformity in decision-making; and predictability and transparency are critical because many applicants perceive the waiver application process as high-risk because it involves departure from the U.S. and a waiver denial may result in a lengthy bar on reentry.

The Ombudsman said it recognizes that USCIS has made improvements to this process, including the implementation of the I-601 Waiver Adjudication Program at the Ciudad Juarez Field Office (CDJ) in March 2007, which significantly improved caseload management. In addition, USCIS recently implemented an Ombudsman proposal to issue more specific Requests for Evidence. USCIS also revised the I-601 and developed a quality assurance pilot and a new standard operating procedures checklist to promote standardization in adjudications.

The Ombudsman recommends that USCIS:

centralize the I-601 adjudication process;
allow applicants to concurrently file the I-601 and the Form I-130, Petition for Alien Relative;
prioritize the finalization of the USCIS overseas case management system (currently in development) to provide for accurate statistical reporting of I-601 applications, allowing for posted processing times, and enabling I-601 applications processed at CDJ to be tracked via the case status online feature on the USCIS Web site;
publish clear filing instructions to guide customers in need of expedited I-601 processing;
increase coordination between Department of State consular officers and USCIS adjudicators at CDJ who work with the I-601; and
Allow USCIS employees to request digitized Alien Files upon receipt of interview schedules, amending CDJ’s current office policy.

The report is available at http://www.dhs.gov/xlibrary/assets/cisomb_waivers_of_inadmissibility_recommendation.pdf.

Positive impact of immigrants. The Migration Policy Institute has released a report, The Impact of Immigrants in Recession and Economic Expansion, by economist Giovanni Peri from the University of California at Davis. The report finds that “immigration unambiguously improves employment, productivity, and income,” but that this involves adjustments that are more difficult during downturns. The report’s results suggest that in the long run, immigrants do not reduce native employment rates, but they do increase productivity and hence average income. In the short run, the report finds that immigration may slightly reduce native employment and average income because the economic adjustment process is not immediate. The long-run gains to productivity and income become significant after seven to 10 years. The report also finds that the short-run impact of immigration depends on the state of the economy. When the economy is growing, new immigration creates jobs in sufficient numbers to leave native employment unharmed, even in the relative short-run and even for less-educated native workers. During downturns, the economy does not appear to respond as quickly, the report notes. New immigrants have a small negative impact on native employment in the short run.

The report is available at http://www.migrationpolicy.org/pubs/Peri-June2010.pdf.

7. Recent News From ABIL Members

William Reich (bio: https://www.abil.com/lawyers/lawyers-reich.cfm) was quoted in comments on the new Arizona law mandating that police question anyone suspected of being in the U.S. illegally. He said the practice amounts to racial profiling, noting that “[i]t’s one thing to tighten the borders. It’s another thing to squeeze people who are working here, paying taxes and performing work Americans don’t want to do.” He noted that “[w]e can’t solve the problem of those [estimated 10 to 12 million undocumented people] already here. There’s no way to expel [all of] them.” The article is available at http://www.dolanmedia.com/view.cfm?recID=599894 (Dolan Media Newswire, quoting the Daily Record).

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) appeared on the Bob Edwards show on June 14, 2010, to discuss the constitutionality of the new Arizona immigration law and its implications. Details are at http://www.bobedwardsradio.com/bes/.

8. 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/bulletin/bulletin_1360.html