News from the Alliance of Business Immigration Lawyers Vol. 7, No. 8A • August 01, 2011
1. Company Held Liable for Back Wages of H-1B Employee Who Never Worked – The failure to prove every element of a bona fide termination left an employer who petitioned for an H-1B worker’s admission liable for the entire period of authorized employment.
2. Labor Dept. Weighs In on Staggered Dates of Need – Can an employer file a single application for temporary employment certification for staggered dates of need? The answer is no.
3. EAD Processing Delays Cause Hardship, Ombudsman Says – When processing for EADs is delayed, individuals and employers experience adverse consequences; the Department of Homeland Security’s Ombudsman has made related recommendations.
4. State Dept. Announces New Requirement for Passport Applications – The full names of an applicant’s parent(s) must be listed on all certified birth certificates for them to be considered primary evidence of U.S. citizenship for all passport applicants, regardless of age.
5. USCIS Releases EB-5 Investor Statistics – U.S. Citizenship and Immigration Services (USCIS) released data on EB-5 filings and regional centers (RCs) for FY 2010 and the first two quarters of FY 2011.
6. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals – The intended audience for the July 6 webinar includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects.
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
1. Company Held Liable for Back Wages of H-1B Employee Who Never Worked
Ganze & Company, an accounting firm in Napa Valley, California, filed a labor condition application (LCA) to hire Kevin Limanseto as an H-1B employee but subsequently decided not to employ him. However, Ganze never informed the government of that change, and Mr. Limanseto complained to the Department of Labor that he had never been paid. Administrative Law Judge William Dorsey noted:
Informing the immigration authorities that the employment has been terminated is the quid pro quo to be relieved of one of the duties the employer promises to fulfill when it signs the labor condition application: the duty to pay the required wage rate. Until it does, the employer remains on the hook for the H-1B worker’s wages and benefits. For the price of a postage stamp, the Employer often can absolve itself of further liability.
In this case, Ganze did not report that Mr. Limanseto was not employed until more than two years later. In addition, Ganze did not pay Mr. Limanseto’s trip home, which is another element of a bona fide termination. The failure to prove every element of a bona fide termination leaves an employer who petitioned for an H-1B worker’s admission liable for the entire period of authorized employment, ALJ Dorsey noted. Therefore, he found that Ganze was liable for wages for the entire period of the LCA, plus interest, among other things. The total amount for which Ganze is liable exceeds $156,000.
The decision, Matter of Limanseto, 2011-LCA-00005, is available here.
2. Labor Dept. Weighs In on Staggered Dates of Need
The Department of Labor’s Office of Foreign Labor Certification recently responded to the question, “Can an employer file a single Application for Temporary Employment Certification for staggered dates of need?” The answer is no.
The Department explained that an application must contain a single date of need for all workers under that application. Under the H-2A program, a date of need is defined as the first date the employer requires the services of H-2A and U.S workers as indicated in the Application for Temporary Employment Certification. The date is not an indication of the first date of need for some workers, but for all the workers who are the subject of the application. The Department said it expects that the filing of an application indicates that the employer has full-time work available for all positions it is requesting for that single start date and that all information reflects the employer’s true need. Changing the date of need for some or all workers invalidates the validity of the labor market test, the Department said, and thereby eliminates the basis for granting the labor certification. In such a case, a different date was not advertised to U.S. workers, particularly those who, if they had been apprised of the later date, could have made themselves available for the job opportunity and therefore made the approval of the certification unnecessary. Where the employer has staggered dates of need, the employer must file a separate application for each date of need.
The Department’s response is available here.
3. EAD Processing Delays Cause Hardship, Ombudsman Says
The Department of Homeland Security’s Ombudsman noted on July 11, 2011, that U.S. Citizenship and Immigration Services (USCIS) in some cases fails to meet its regulatory requirement to process applications for employment authorization in 90 days, and USCIS generally does not issue interim employment authorization documents (EADs). When processing for EADs is delayed, individuals and employers experience adverse consequences. Applicants experience financial hardship due to job interruption and termination, business operations stall due to loss of employee services, families face suspension of health benefits, and individuals have difficulty renewing driver’s licenses. EAD processing delays are exacerbated by the lack of immediate resolution through USCIS’ designated venues.
The Ombudsman recommended that USCIS take the following actions to improve EADs processing:
- Establish methods at local offices to facilitate immediate resolution;
- Establish a uniform processing time goal of 45 days for adjudication and 60 days for issuance of an EAD;
- Improve monitoring and ensure real-time visibility through an automated system for tracking processing times;
- Follow established internal procedures for issuing interim EADs in cases where background checks are pending; and
- Issue replacement EADs with validity dates beginning on the date the old EAD expires.
USCIS currently directs applicants experiencing EAD delays to contact the National Customer Service Center (NCSC) or the local district office, the Ombudsman noted. However, neither venue has the ability to provide direct assistance. USCIS representatives or officers assist individuals with delayed I-765s by submitting service requests or sending e-mails to the National Benefits Center (NBC) or service centers. The Ombudsman noted that USCIS is reviewing the procedures in place and may provide field offices with updated guidance on how to assist individuals with EAD applications pending past 90 days.
While both service requests and e-mails alert the applicable office of a delay, it may take up to 10 or more days for an I-765 to be adjudicated and an EAD to be delivered, the Ombudsman said. Additionally, while customers receive responses to service requests in five days for expedite requests, and 15 days for all other requests, the responses are often “generic and unhelpful,” the Ombudsman noted. Sometimes the responses state that an applicant’s case is “under review” but do not provide a timeline for issuance of the EAD. Other responses merely state that a decision will be issued in 30 or 60 days, when the application already has been pending past 90 days. “Such responses fail to address the problem because they do not assist the customer in rapidly obtaining an interim or final EAD. The failure to communicate useful information to customers often results in repeated telephone and in-person inquiries causing inefficiencies for USCIS,” the Ombudsman said.
USCIS’ website also lists alternative contact information, such as e-mail addresses, for service centers and the USCIS Headquarters Office of Service Center Operations. However, before people e-mail those addresses, USCIS advises them to wait 30 days for a response from the NCSC and 21 days for a response from the service centers, “when even one day of delay may lead to financial loss for EAD applicants and business disruption for employers,” the Ombudsman said.
The Ombudsman termed a “best practice” the Vermont Service Center’s five-day processing time goal for background checks conducted in connection with adjudication of an I-765. Adjudicators e-mail cases to the Background Check Unit (BCU), identifying the form type and marking it as an expedite request in the subject line. The BCU monitors the inbox to ensure that cases are promptly referred to adjudicators and resolved within the specified timeline. With this process, the Ombudsman said, USCIS is able to resolve minor concerns immediately while carefully reviewing cases that involve national security, egregious public safety issues, criminal convictions, or immigration fraud.
The Ombudsman’s report is available here.
4. State Dept. Announces New Requirement for Passport Applications
The Department of State announced that the full names of an applicant’s parent(s) must be listed on all certified birth certificates for them to be considered primary evidence of U.S. citizenship for all passport applicants, regardless of age.
The announcement is available here. Links to vital records offices state-by-state are available here.
5. USCIS Releases EB-5 Investor Statistics
U.S. Citizenship and Immigration Services (USCIS) released data on EB-5 filings and regional centers (RCs) for fiscal year (FY) 2010 and the first two quarters of FY 2011.
The agency noted that as of June 30, 2011, there are 147 approved regional centers (RCs) operating in 39 states, including the District of Columbia and Guam. Most (90 to 95 percent) of the individual Form I-526 (Immigrant Petition by Alien Entrepreneur) petitions filed each year are filed by those who are investing in RC-affiliated commercial enterprises. There are 83 initial RC proposals pending at USCIS, and nine RC proposals seeking to amend approved RCs.
USCIS figures continue to show a steep increase in the number of RC filings and EB-5 visa approvals. The agency reported 146 initial RC proposal filings in the first and second quarters of FY 2011, compared to 110 initial filings in all of FY 2010. In the first and second quarters of FY 2011, the agency approved 25 initial RC proposals and denied 11, an approval rate of 69 percent. This was a big increase from FY 2010, when USCIS approved 36 and denied 30 during the entire fiscal year.
USCIS also reported significant increases in individual I-526s and I-829s (Petition by Entrepreneur to Remove Conditions). In the first and second quarters of FY 2011, USCIS received 1,601 I-526 petitions, compared to 1,955 for all of FY 2010. The increase in the number of I-829 petitions was even more dramatic, with 1,150 received in the first and second quarters. By comparison, USCIS received 768 I-829 petitions in all of FY 2010.
In the first and second quarters of FY 2011, the agency approved 407 I-526 petitions and denied 96, while in all of FY 2010 USCIS approved 1369 and denied 165. USCIS approved 166 I-829 petitions and denied 26 in the first and second quarters, compared to approving 274 and denying 56 for all of FY 2010.
USCIS also reported that although the target processing time for I-526 petitions is 5 months, actual processing times are reaching 5.5 months; however, some in the field have said it is closer to 7 months. USCIS’s target processing time for both initial and amended RC proposals is 4 months; the agency reported current processing times of 4.5 months for initial RC filings but only 1 month for amended filings. For I-829 filings, the agency reports that it is beating its target processing time of 6 months; USCIS said current processing time for I-829 filings is 1 month. USCIS said it strives to finalize EB-5 cases within 30 days after responses to requests for evidence (RFEs) are received.
USCIS is on track to approve a record number of EB-5 visas. Its preliminary estimate is that 2,129 EB-5 visas were issued in the first and second quarters of 2011, compared to 1,885 in all of FY 2010. The previous record was 4,218 EB-5 visas issued in FY 2009.
The next EB-5 “stakeholder engagement” meeting will be held on September 15, 2011, at 1 p.m. This engagement will be an opportunity for USCIS to share information on the EB-5 program and address stakeholders’ related topics of interest. USCIS is specifically interested in receiving topics related to the Form I-912A, Supplement to Form I-924. The deadline to submit agenda items is August 15, 2011. An open forum for questions and answers (non-case-specific) will be provided at the engagement. Click here for details on registering to attend the engagement either in person or by telephone, and instructions on submitting agenda items.
USCIS’s presentation from the most recent engagement is available here.
6. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals
Many foreign entrepreneurs want to start businesses or invest in the United States. Other wealthy individuals want green cards to live in the United States, but may be hesitant because of real or perceived immigration obstacles. Real estate developers and companies seeking capital for development projects are increasingly looking for EB-5 capital from foreign investors. Several visa options exist, but each has advantages, disadvantages, and limits.
A three-part webinar series, presented by the Alliance of Business Immigration Lawyers (ABIL) and co-sponsored by Invest In the USA, the association of EB-5 regional centers, helps guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects. Each 90-minute webinar in the series explains immigration options and offers practical real-world strategies:
- Session 1: Visa options for individual investors: E and L nonimmigrant visas; EB-5 green cards through direct investments or regional centers, was held on April 13. (A recording of the webinar is available for purchase.) Moderated by Bernard P. Wolfsdorf. Presenters: Kehrela Hodkinson, Mark Ivener, and Stephen Yale-Loehr.
- Session 2: EB-5 regional center applications and project pre-approval petitions, was held July 6 at 3 p.m. (ET). (A recording of the webinar is available for purchase.) Moderated by Laura Danielson. Presenters: Bryan Funai, H. Ronald Klasko, and Steve Trow.
- Session 3: How to successfully navigate the back end of the EB-5 process for both individual investors and regional centers, to be held August 16 at 3 p.m. (ET). Moderated by Steve Clark. Presenters: H. Ronald Klasko, Robert Loughran, and Stephen Yale-Loehr.
All participants will receive a file with the PowerPoint presentation, relevant articles, and resources before each session, as well as a recording of the webinar. The cost is $89 for an individual session or $249 for all three sessions, live or recorded. For more information, click here. To register, click here. For more information, contact Lauren Anderson at email@example.com or visit https://abil.com.
7. New Publications and Items of Interest
“Trusted employers” and boosting the economic contribution of employment-based immigration. In its recently released report, “Eight Policies to Boost the Economic Contribution of Employment-Based Immigration,” the Migration Policy Institute (MPI) recommends many solutions to enhance economic growth and competition through employment-based immigration reform. MPI’s report suggests enabling governments to differentiate between higher and lower-risk employers through a preapproval system. The idea is to reward such employers with simplified application procedures or similar benefits. For example, a “trusted employer” concept would allow employers with demonstrated processes, resources, and tracking systems in place to comply with U.S. immigration laws to spend less time on repetitive paperwork and more time on their most critical goals – creating jobs and growing the economy. MPI notes, “Employers are central to immigration systems.”
The report is available here.
New USCIS data reports webpage. U.S. Citizenship and Immigration Services (USCIS) is posting online new data reports on agency performance in a broad range of data and operational areas. USCIS said the reports were prepared at the request of agency stakeholders. The agency’s Office of Performance and Quality has released 10 data sets. Several will be updated periodically, including processing times and performance data for the Application for Naturalization (Form N-400), performance data for the Application to Register Permanent Residence or Adjust Status (Form I-485), and the total number of receipts and approvals by quarter and year-to-date for all form types. The webpage also includes data on employment-based benefit requests, such as a quarterly report on temporary agricultural worker (H-2A) performance data by state and company.
USCIS said it will continue to add more data sets to the webpage in the future, which is available here.
8. Member News
Charles Kuck was quoted on Bloomberg on July 19, 2011. Commenting on Georgia’s new immigration law and related Enforcement Review Board, unique to Georgia, which was created to ensure compliance and impose penalties, Mr. Kuck said, “This is a radical privatization of government power. There was no evidence presented, not even anecdotal evidence, that there was a problem that needed to be solved.” He likened the new board to a “mini-McCarthy panel.” The article is available here.
Angelo Paparelli has posted several new blog entries: “Revenue-Raising Immigration: The $$$ Visa,” and “Race to the Work Permit: Revitalizing Depressed American Cities Through State Immigration Initiatives.”
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
Department of Labor processing times and information on backlogs
Department of State Visa Bulletin
Visa application wait times for any post