News from the Alliance of Business Immigration Lawyers Vol. 6, No. 12B • December 15, 2010
Headlines:
1. House Passes DREAM Act, Senate Passage Uncertain – Democrats hope to bring the bill to a Senate vote by the end of the Congressional session; if it is not passed by then, prospects are dim for the near future.
2. USCIS Introduces First-Ever Fee Waiver Form – The new form states requirements for documenting a fee waiver request and gives information on the methodology USCIS uses to evaluate the requests.
3. Chipotle’s Fires Scores of Latino Workers in Minnesota – Chipotle’s confirmed that it is fully cooperating with Immigration and Customs Enforcement officials in Minnesota.
4. WHD Orders Companies To Pay Back Wages, Penalties for H-1B Violations – Common violations include the employer’s failure to post notice of the filing of labor condition applications at every worksite where an H-1B worker may be employed, and failure to pay nonimmigrant workers the required wage rate for all nonproductive time caused by conditions related to employment.
5. California Filipino Workers Sue Hospital Over English Requirement – The group alleges that their Filipino languages, including Tagalog, were banned even on breaks, but other workers were allowed to speak languages such as Spanish and Hindi.
6. USCIS Seeks Comments on Petition by Entrepreneur to Remove Conditions – The form is used by conditional resident entrepreneurs who obtained such status through a qualifying investment, to apply to remove conditions on their conditional residence and on that of their spouses and children.
7. New Publications and Items of Interest – New Publications and Items of Interest
8. Member News – Member News
9. Government Agency Links – Government Agency Links
Details:
1. House Passes DREAM Act, Senate Passage Uncertain
The House of Representatives passed H.R. 6497, the DREAM (Development, Relief and Education for Alien Minors) Act on December 8, 2010. Analysts predict, however, that it may not move in the Senate. Senate Majority Leader Harry Reid (D-Nev.) and Sen. Dick Durbin (D-Ill.) said that they hope to bring the bill to a vote in the next few weeks. If it is not passed by then, prospects are dim for the near future.
The DREAM Act, which has a long history, would allow qualified undocumented children to apply for conditional legal immigration status and eventually to obtain permanent residence if they meet certain requirements.
The Congressional Budget Office predicted that enacting the House-passed version of the legislation would increase revenues, on balance, by $1.7 billion over 10 years. See http://www.cbo.gov/ftpdocs/120xx/doc12015/hr6497.pdf.
The text of the bill as introduced in the House is available at http://thomas.loc.gov/cgi-bin/bdquery/z?d111:h.r.06497:. A related statement by Secretary of Labor Hilda Solis is available at http://www.dol.gov/opa/media/press/opa/OPA20101722.htm.
2. USCIS Introduces First-Ever Fee Waiver Form
For the first time, U.S. Citizenship and Immigration Services (USCIS) has introduced a standardized form for requesting waivers of the fees charged for immigration benefit processing. Form I-912, Request for Fee Waiver, became available for use on November 23, 2010, the same day USCIS’s latest fee schedule took effect.
USCIS said it heard concerns expressed in stakeholder meetings that the absence of a standardized form led to confusion about the criteria and standards used to approve waivers. The new form states requirements for documenting a fee waiver request and gives information on the methodology USCIS uses to evaluate the requests. For example, if an applicant can show that he or she is receiving a means-tested benefit and presents evidence to document that claim, the applicant is not required to submit further evidence. USCIS said it will use the same methodology in reviewing all fee waiver requests, whether submitted on the new I-912 or in a written statement generated by the applicant.
The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=2a1c003cf147c210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.
3. Chipotle’s Fires Scores of Latino Workers in Minnesota
Chipotle Mexican Grill reportedly fired an estimated 50 Latino employees recently as a result of an I-9 (work authorization verification) audit. Brad Sigal of the Minnesota Immigration Rights Action Committee said, “An action like this on a mass scale before the holidays is not consistent with the image [Chipotle’s has] cultivated.” In a statement, Chipotle’s confirmed that the company is “fully cooperating with Immigration and Customs Enforcement officials in Minnesota in connection with a document request they have made.”
Back to Top
4. WHD Orders Companies To Pay Back Wages, Penalties for H-1B Violations
The Department of Labor’s Wage and Hour Division (WHD) announced on December 7, 2010, that it had obtained a consent order to recover $638,449 in back wages and interest from Peri Software Solutions, based in Newark, New Jersey, and its owner, Saravanan Periasamy, for H-1B violations. The company sponsored H-1B nonimmigrant programmer analysts to work in various locations in the U.S. The company and its owner also were fined $126,778 in civil money penalties and interest for failing to provide notice of the labor condition applications at each job site and for filing lawsuits against H-1B workers for early cessation of employment. The company and Mr. Periasamy also were debarred from participation in the H-1B program for one year.
WHD said common violations include the employer’s failure to post notice of the filing of labor condition applications at every worksite where an H-1B worker may be employed, and failure to pay nonimmigrant workers the required wage rate for all nonproductive time caused by conditions related to employment, such as lack of assigned work, lack of a permit, or studying for a licensing exam.
In another recent case, the Law Offices of Sergio Villaverde PLLC, a New York City law firm, was disqualified from the H-1B program for a period of two years for willfully violating prevailing wage requirements. The firm also has been ordered to pay a penalty of $2,250 and to pay one employee back wages totaling $31,954.
In 2003, the firm hired a nonimmigrant attorney from India as a full-time legal assistant and filed an H-1B labor condition application to allow the attorney to work legally in the U.S. An investigation by the WHD’s New York District Office determined that the firm paid the legal assistant less than the required prevailing wage from January 1, 2004, to June 30, 2006. In a recent decision and order, Labor Department Administrative Law Judge Jonathan Calianos ruled that the firm, having advertised its expertise in immigration law, willfully violated the H-1B prevailing wage requirements.
The WHD press release on the Peri Software case is available at http://www.dol.gov/whd/media/press/whdpressVB3.asp?pressdoc=Northeast/20101207.xml. The press release on the Villaverde case is available at http://www.dol.gov/whd/media/press/whdpressVB3.asp?pressdoc=Northeast/20101209.xml.
5. California Filipino Workers Sue Hospital Over English Requirement
Fifty-two medical workers have accused Delano Regional Medical Center in California of discriminating against them because, they allege, they were the only group singled out under a requirement that they speak only English, even on breaks. The group alleges that their Filipino languages, including Tagalog, were banned but other workers were allowed to speak languages such as Spanish and Hindi. The group seeks to join a Kern County federal court complaint filed in August by the Equal Employment Opportunity Commission (EEOC) concerning enforcement of a rule at the hospital requiring workers to speak English. The EEOC has accused the hospital of creating a hostile working environment for Filipinos.
A news report about the suit is available at http://news.yahoo.com/s/ap/20101207/ap_on_bi_ge/ca_filipino_nurses_discrimination.
6. USCIS Seeks Comments on Petition by Entrepreneur to Remove Conditions
During a 60-day period that ends on January 31, 2011, U.S. Citizenship and Immigration Services is seeking comments on whether to revise the Petition by Entrepreneur to Remove Conditions (Form I-829). The form is used by conditional resident entrepreneurs who obtained such status through a qualifying investment, to apply to remove conditions on their conditional residence and on that of their spouses and children.
Written comments may be submitted via one of the methods outlined in the notice, which is available at http://edocket.access.gpo.gov/2010/pdf/2010-30143.pdf.
7. New Publications and Items of Interest
Delays in immigration court decisions. The Transactional Records Access Clearinghouse (TRAC) has released a new report showing that during fiscal year 2010, immigration courts took 20 percent longer to act on cases than they did the previous fiscal year. The average number of days it took to dispose of cases decided during FY 2010 was 280 days, which was 47 days longer on average than completion times for FY 2009. It took the longest time to complete those cases in which the court granted some form of relief. Completion times for relief cases took an average of 696 days, or roughly 23 months in FY 2010, which was 39 days longer than the average time spent in FY 2009. Cases in which the presiding judge issued a removal order took the shortest amount of time, an average of 140 days. This was still 17 percent longer than the time similar cases took in 2009. Voluntary departures orders took an average of 323 days, an increase of only 3 days over times during FY 2009.
The report, which analyzes TRAC’s analysis of case-by-case data it obtained under the Freedom of Information Act from the Executive Office for Immigration Review covering the period through September 27, 2010, is available at http://trac.syr.edu/immigration/reports/244/.
8. Member News
Cyrus Mehta’s (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) new blog entry, “DREAM Act and the Polls,” discusses prospects for the House-passed bill in the Senate, urges a “yes” vote, and discusses new Gallup poll results showing that 54 percent of Americans support the DREAM Act. The blog is available at http://cyrusmehta.blogspot.com/2010/12/dream-act-and-polls_10.html.
Mr. Mehta participated as a panelist on PERM labor certification issues at the American Immigration Lawyers Association’s New York Chapter 13th Annual Immigration Symposium on December 1, 2010.
Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) has published a new blog entry, “DOL’s Immigration Dereliction – The Continuing Perils of Hilda and Her PERM,” which discusses Secretary of Labor Hilda Solis’s facing “still-unanswered questions” about the labor certification process, labor shortages, and PERM. The blog is available at http://www.nationofimmigrators.com/?p=373. Mr. Paparelli may be followed on Twitter at http://twitter.com/angelopaparelli.
9. 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