News from the Alliance of Business Immigration Lawyers Vol. 7, No. 3A • March 01, 2011
Headlines:
1. Mayorkas Discusses USCIS Goals for 2011; VIBE System Introduced – The Alliance of Business Immigration Lawyers recommends that clients check their profile and make sure that the major areas are correct to avoid requests for evidence in the future.
2. E-Verify Self-Check Going Live in March – The self-check process is voluntary and available to any individual who wants to check his or her own work authorization status before employment and facilitate correction of errors in federal databases.
3. DOL Posts New FAQ for H-1B, H-1B1, E-3 Programs; Releases New Data – The Office of Foreign Labor Certification has posted a new FAQ for the H-1B, H-1B1, and E-3 programs.
4. DOS Releases New Guidance on L Visas, Specialized Knowledge – DOS noted “concern about the potential for inconsistent adjudicatory standards at different constituent posts,” and said that “clear standards would allow for more consistent adjudication.”
5. New Publications and Items of Interest – New Publications and Items of Interest
6. Member News – Member News
7. Government Agency Links – Government Agency Links
Details:
1. Mayorkas Discusses USCIS Goals for 2011; VIBE System Introduced
On February 17, 2011, Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services (USCIS), held a press conference at which he discussed the agency’s goals for 2011 and a policy review already underway. The agency’s goals and planned activities for 2011 include, among others:
- Piloting the Validation Instrument for Business Enterprises (VIBE) tool, which uses commercially available information from Dun & Bradstreet to validate evidence submitted by companies petitioning to employ a foreign worker in the U.S.
- Promoting consistency in the administration of immigration laws and adjudication policies as part of a comprehensive policy review, and updating policies where necessary
- Issuing precedent decisions from the Administrative Appeals Office on a regular basis
- Combating fraud, including the unauthorized practice of law
- Combating fraud, including the unauthorized practice of law
USCIS has begun beta-testing the VIBE system. USCIS promised that it will give employers an opportunity to respond when the VIBE system leads to agency concerns regarding the business. The Alliance of Business Immigration Lawyers (ABIL) recommends that clients check their profile and make sure that the major areas (company address for example) are correct to avoid requests for evidence in the future. Contact your ABIL attorney for guidance.
The transcript of the press conference is available at http://www.uscis.gov/USCIS/News/2011%20New%20Items/February%202011/transcript_StrategicGoalsInit_2011.pdf.
2. E-Verify Self-Check Going Live in March
The Department of Homeland Security (DHS) is establishing a new self-check process for E-Verify, effective March 18, 2011. The self-check process is voluntary and available to any individual who wants to check his or her own work authorization status before employment and facilitate correction of errors in federal databases (such as those of the Social Security Administration, DHS, and the Department of State) that feed information into the E-Verify process. DHS said E-Verify Self-Check “provides a vehicle for an individual to proactively check work authorization status prior to the employer conducting the E-Verify inquiry.”
DHS noted that when an individual uses E-Verify Self-Check, he or she will be notified either that (1) the information matched the federal databases and the individual would be deemed work-authorized, or (2) there was a “mismatch,” in which case he or she will be given instructions on how to correct the record(s).
The notice announcing the new system and inviting comments, which must be submitted by March 18, 2011, is available at http://www.gpo.gov/fdsys/pkg/FR-2011-02-16/pdf/2011-3490.pdf.
3. DOL Posts New FAQ for H-1B, H-1B1, E-3 Programs; Releases New Data
The Department of Labor’s Office of Foreign Labor Certification (OFLC) has posted a new frequently asked questions (FAQ) document for the H-1B, H-1B1, and E-3 programs. The FAQ discusses, among other things, which visa classifications require the filing of a labor condition application (LCA); the definition of a “specialty occupation”; how to obtain H-1B disclosure information or file an H-1B complaint; details on initiating the hiring and application processes; LCA requirements; prevailing wage issues; notice requirements; working conditions; post-LCA-approval changes; termination of employment; and other issues.
Among other things, the FAQ notes that H-1B complaints should be filed with the local Wage and Hour Division office that has jurisdiction over the physical location of the employer. The OFLC suggests checking the “blue pages” in the telephone book or http://www.dol.gov/whd/america2.htm#Map. The form for filing a complaint (Form WH-4) may be downloaded at http://www.dol.gov/whd/forms/fts_wh4.htm.
The FAQ is available at http://www.foreignlaborcert.doleta.gov/pdf/H1BFAQ021711.pdf.
The OFLC also is now making available quarterly disclosure files covering employer applications processed under the PERM, H-1B, H-2A, and H-2B visa programs. Additionally, the OFLC is publishing a new set of case level data covering employer requests for prevailing wage determinations processed by the OFLC National Prevailing Wage Center, which opened in January 2010 in Washington, DC.
The new data are available at http://www.foreignlaborcert.doleta.gov/quarterlydata.cfm.
4. DOS Releases New Guidance on L Visas, Specialized Knowledge
The Department of State (DOS) released a new cable in January to all diplomatic and consular posts on guidelines for L visa adjudications, particularly in regard to evaluating claims of “specialized knowledge.” DOS noted “concern about the potential for inconsistent adjudicatory standards at different constituent posts,” and said that “clear standards would allow for more consistent adjudication.” The cable adds, however, that “[u]nfortunately, the statutory language defining ‘specialized knowledge’ is not simple or clear.”
The cable notes that a worker is considered to be serving in a capacity involving specialized knowledge with respect to a company if he or she “has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.” The cable acknowledges that the definition contains undefined terms and elements of circular reasoning.
Given the lack of statutory clarity, the cable notes that determinations of specialized knowledge often depend on the consular officer’s expertise on a case-by-case basis. The cable, which outlines criteria that posts may use in making such adjudications, is available at http://travel.state.gov/pdf/Guidance_on_L_Visas_and_Specialized_Knowledge-Jan2011.pdf.
5. New Publications and Items of Interest
AAO on precedent decisions. The Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services recently released a presentation, “Administrative Appeals Office: Precedent Decisions.” The presentation discusses the nuts-and-bolts of what a precedent decision is and is not, and how precedent decisions are published. The presentation also briefly discusses the history of the publication of immigration-related precedent decisions. As noted above in the first article, the AAO plans to publish more precedent decisions in the future.
The presentation is available at http://www.uscis.gov/USCIS/Laws/AAO/AAO%20DHS%20Precedent%20Decision%20Process%20Print%20Version.pdf.
U.S. citizenship test – wrong answers? An article in the February 23, 2011, issue of Slate magazine online discusses incorrect answers on the U.S. citizenship test. For example, the article notes that question 36 asks the applicant to name two members of the President’s Cabinet. One of the possible answers listed is “Vice President”; although the vice president is a Cabinet-level officer, he is not a member of the President’s Cabinet because only unelected heads of executive departments are considered as such, and the Vice President is elected. The article is available at http://www.slate.com/id/2286258/pagenum/all/#add-comment.
6. Member News
Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm?c=US) has published an editorial, “Unconstitutional Arizona-Style Laws Are a Bonanza to Lawyers,” in the February 23, 2011, issue of the Atlanta Journal-Constitution. Mr. Kuck noted that such a law in Georgia would “increase taxes on every resident of Georgia by increasing government regulation, create unfunded mandates for every county and city in Georgia, and create new private rights of action against every Georgia polity, resulting in hundreds of lawsuits that will drain taxpayer coffers and result in little, if any, real change in illegal immigration.” The editorial is available at http://www.ajc.com/opinion/pro-con-does-georgia-850454.html (scroll down).
Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm?c=US) has published a new blog entry. “EAWA Has Sunset” notes that Congress has not passed legislation to extend the “Employ American Workers Act,” which created additional attestation requirements for employers filing H-1B visa petitions who received funds through the Troubled Asset Relief Program (TARP) or under section 13 of the Federal Reserve Act. Mr. Mehta called EAWA “a blatant exercise in American protectionism.,” and said, “Thank goodness that the EAWA has sunset so that the best and brightest from all over the world, especially foreign students who have graduated from American universities, can be employed like other H-1B workers at institutions that need their talent to recover from the Great Recession, and thrive and prosper.” The blog is available at http://cyrusmehta.blogspot.com/2011/02/eawa-has-sunset.html.
Mr. Mehta will serve as program chair for PLI Basic Immigration Law 2011, to be held on March 17, 2011, in New York and via Webcast. This program will explain the basic concepts of U.S. immigration law and procedure, and reflect current developments and trends, including developments relating to Arizona’s immigration law. Attendees will receive a course handbook with articles by leading practitioners and sample documents and forms. For more information, see http://www.pli.edu/Content.aspx?dsNav=N:4294966198-164&ID=99843.
Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm?c=US) has published several new blog entries. “Immigration ICE Storms Are Brewing: 7 Steps Employers Must Take Now” discusses an article Mr. Paparelli co-wrote on precautions employers should take in a time of heightened inspections. The blog, which includes tips for employers, is available at http://www.nationofimmigrators.com/i-9s/immigration-ice-storms-are-brewing-employers-must-take-shelter/. “Time for Congress To Streamline the H-1B Process” discusses the hodgepodge of the current H-1B process and recommends changes. For example, Mr. Paparelli argues that eliminating the labor condition application (LCA) review by the Department of Labor would shave seven days off the time it takes before USCIS can adjudicate an H-1B petition, since this is the time Congress provided the DOL to “certify” the LCA. This savings of time, he says, is especially important each year in March “when every day counts as employers scramble to file their H-1B petitions by April Fools’ Day in order to fall within the woefully small H-1B annual quota.” The blog is available at http://www.nationofimmigrators.com/immigration-reform/time-to-streamline-the-h-1b-visa/index.html.
Mr. Paparelli was recently quoted in Human Resource Executive Online. In an article published on February 15, 2011, on keeping foreign Ph.D. graduates in the U.S., Mr. Paparelli suggested that U.S. efforts to remain competitive would be better served by a market-based H-1B system rather than Congress setting an arbitrary, fixed number. “Why have a quota on additional bright people in this country when the market [for talent] is [tight]?” he asked. The article is available at http://www.hreonline.com/HRE/story.jsp?storyId=533330181.
Mr. Paparelli and Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) will present in a Webinar, “U.S. Investment Visas and Green Cards for Foreign Clients – A Webinar for Corporate and Tax Lawyers,” to be held on Tuesday, March 8, 2011. They will discuss the advantages and disadvantages of the various visa options for entrepreneurs, along with tax and corporate law considerations. For more information, see http://www.martindale.com/Communities/Connected_Pulse/Member_Events/2011/foreign_entrepreneurs_immigration_options.aspx.
7. 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