News from the Alliance of Business Immigration Lawyers Vol. 2, No. 5 • May 01, 2006

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Headlines:

1. Immigration Reform Action Stalls in Congress; ‘SKIL’ Bill Introduced – The Senate has failed to pass any immigration reform proposals, including legislation to establish a guestworker program. Sen. John Cornyn, however, has just introduced the “SKIL” (Securing Knowledge Innovation and Leadership) bill.

2. ICE Steps Up Enforcement, Arresting Managers and Over a Thousand Employees of Pallet Company – ICE agents arrested several managers of IFCO Systems North America, Inc. (IFCO), the largest pallet services company in the United States, and many unauthorized workers.

3. State Dept. Proposes to Eliminate Specialty Occupation Distinction for J Trainees – The State Dept. has issued a proposed rule to revise its training program regulations under the Exchange Visitor Program to eliminate the distinction between “non-specialty occupations” and “specialty occupations.”

4. DHS Wants to Mine SSA Data – In an effort to identify undocumented workers and their employers, the DHS is seeking authority from Congress to mine Social Security Administration databases for information.

5. German Emergency/Temporary Passports No Longer Valid for Travel to U.S. Under VWP – As of May 1, 2006, German emergency and temporary passports will no longer be valid for travel to the U.S. under the Visa Waiver Program.

6. Temporary Protected Status Extended for Honduras, Nicaragua – The TPS designation for Honduras and Nicaragua has been extended until July 5, 2007.

7. State Dept. Reports on China, India Visa Availability, “Other Worker” Category Retrogression for May – The State Department has retrogressed the employment third preference “Other Worker” cut-off date.

8. USCIS Establishes Records Verification Directorate – USCIS has established a new National Security and Records Verification Directorate.

9. GAO Recommends Measures to Reduce Visa Wait Times at Consular Posts – The GAO is calling for a comprehensive assessment of staffing requirements for visa operations worldwide.

10. Fewer H-1B Numbers Used Than Expected for FY 2007 So Far – H-1B numbers are being used up more slowly so far than many expected for FY 2007, although early filing is still recommended.

11. Recent Articles & News from ABIL Members – Recent Articles & News from ABIL Members

Details:

1. Immigration Reform Action Stalls in Congress; ‘SKIL’ Bill Introduced

As of press time, the Senate failed to pass any of the sweeping immigration reform proposals we reported on last month, including legislation to establish a guestworker program, although action remains possible this session. Any legalization program that is enacted will put demands on U.S. Citizenship and Immigration Services, generating backlogs. If such a provision becomes law, it will be important to file for permanent residence before such backlogs develop.

It is unclear whether further progress will be possible this session on comprehensive immigration reform, although Senate Majority Leader Bill Frist (R-Tenn.) said he wants the Senate to pass such legislation by Memorial Day. Such legislation then would have to be reconciled with the House of Representatives version in conference committee, and passed by both houses. “It would be a tough conference, candidly, with the House, but we were able to work through the Patriot Act although there were big disagreements,” Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, reportedly said on CNN’s “Late Edition.”

On April 24, President George W. Bush gave a speech in California on immigration reform. Once again, he supported a guestworker program, among other measures. Voice of America quoted President Bush as noting that: “[i]t is really hard to enforce the border with people sneaking across to take jobs. Doesn’t it make sense to have a rational temporary worker plan that says you don’t need to sneak across the border?” He said in his radio address on April 22 that “[i]n the coming weeks, I’ll press Congress to pass comprehensive immigration reform that secures our border, enforces our laws, meets the needs of our economy, and upholds our highest ideals.” The Associated Pressreported on April 26 that at a recent White House meeting convened to help push immigration reform action in Congress, President Bush said he believes undocumented workers should have a chance to obtain legal status without leaving the country but does not endorse such a measure publicly because of opposition from House Republicans. “I understand that he wants to maintain latitude as he heads into negotiations with the House,” said Sen. John McCain (R-Ariz.), who supports that proposal.

Meanwhile, Sen. John Cornyn (R-Tex.) has just introduced the “SKIL” (Securing Knowledge Innovation and Leadership) bill shortly. Among other things, the SKIL bill would increase the annual H-1B cap from 65,000 to 115,000, and exempt certain professionals from the H-1B and immigrant visa caps. The bill also would raise the latter cap from 140,000 to 290,000. A pre-certification program would be created for employers filing multiple applications with no history of abuse. Pre-certification would allow such employers to file their applications on a separate, more streamlined, track.

The Alliance of Business Immigration Lawyers signed a letter supporting the SKIL bill that is being circulated by the Compete America Coalition. “Being able to recruit and retain foreign-born talent — including those who are educated in U.S. universities — is critical to our nation’s ability to remain competitive, and we encourage you to support this legislation and enact reforms this year,” the letter says. For more information, or to add your organization’s name to the letter, e-mail [email protected] (Sandra Boyd, Vice President, Human Resources Policy, National Association of Manufacturers), and include information on how the organization should be listed and clear permission to add it to the letter. For more information, see http://www.competeamerica.org/.

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2. ICE Steps Up Enforcement, Arresting Managers and Over a Thousand Employees of Pallet Company

U.S. Immigration and Customs Enforcement (ICE) agents arrested seven current and former managers of IFCO Systems North America, Inc. (IFCO), the largest pallet services company in the United States headquartered in Houston, Texas, pursuant to criminal complaints issued on April 19, 2006. The managers were charged with conspiring to transport, harbor, and encourage and induce unauthorized workers to reside in the United States for commercial advantage and private financial gain. The conspiracy charge carries a penalty of up to 10 years in prison and a fine of up to $250,000 for each worker with respect to whom the violation takes place, ICE explained. Two other IFCO employees were arrested on criminal charges relating to fraudulent documents.

In addition to the criminal arrests, ICE agents conducted “consent” searches or executed criminal search warrants at more than 40 IFCO plants and related locations in 26 states that resulted in the apprehension of approximately 1,187 undocumented IFCO employees.

According to a government affidavit filed in the Northern District of New York, the investigation began in February 2005 when ICE agents received information that IFCO workers in Guilderland, New York, were witnessed ripping up their W-2 tax forms and that an IFCO assistant general manager had explained that these workers were undocumented, had fake Social Security cards and did not intend to file tax returns.

Subsequent investigation revealed that IFCO officials transported undocumented employees to and from work, paid rent for their housing, and deducted money from their monthly paychecks to cover these expenses. Former IFCO employees also said it was common practice for IFCO to hire workers who lacked Social Security cards or produced bogus identification cards.

The affidavit also alleges that IFCO officials knowingly hired an undocumented worker who was an informant for ICE. In numerous recorded conversations, IFCO officials reimbursed this person for obtaining fraudulent identity documents for other undocumented employees, used the person to recruit other unauthorized workers, and advised the person and other undocumented employees on how to avoid law enforcement detection, the affidavit alleges.

Meanwhile, DHS Assistant Secretary Julie Myers’ op-ed, “Expect More Arrests,” was published in USA Today on April 26, 2006. Ms. Myers said DHS is bolstering its criminal investigations against employers who hire unauthorized workers. For many employers, she said fines had become just another cost of doing business. “More robust criminal cases against unprincipled employers are a much more effective deterrent than fines. The prospect of 10 years in federal prison or a federal forfeiture carries much sharper teeth. We believe this is the future of worksite enforcement,” Ms. Myers said.

Additional information on the case is available at http://www.dhs.gov/dhspublic/display?content=5547.

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3. State Dept. Proposes to Eliminate Specialty Occupation Distinction for J Trainees

The Department of State is proposing to revise its training program regulations under the J nonimmigrant exchange visitor program to eliminate the distinction between “non-specialty occupations” and “specialty occupations.” Also, a new 12-month “intern” program is proposed to permit recent foreign graduates of degree-granting post-secondary accredited educational institutions to come to the United States to pursue work-based learning experiences in the fields in which they received their degrees.

A requirement that sponsors complete an individualized Form DS-7002 Training/Internship Placement Plan for each trainee and intern prior to issuing a Form DS-2019 to the trainee or intern is also proposed. The Department plans to publish a notice regarding the design of the proposed Form DS-7002, soliciting public comment regarding all recordkeeping, reporting, and data collection units.

The proposed regulation would require that trainees have at least three years of previous related work experience in their occupational fields before being eligible to participate in the Exchange Visitor Program. The regulation also would require that trainees have a minimum TOEFL (Test of English as a Foreign Language) score of 550 or its equivalent.

The Department will accept comments on the proposed regulation from the public until June 6, 2006. Comments should be sent to the office designated in the supplementary information to the proposed rule, which is available at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-4946.pdf.

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4. DHS Wants to Mine SSA Data

The Department of Homeland Security (DHS), in an effort to identify undocumented workers and their employers, is seeking authority from Congress to mine Social Security Administration databases for information on Social Security numbers that do not match names, GovExec.com reported on April 20, 2006. “One of the key challenges that supports illegal migration is abuse of our Social Security system and the Social Security document,” DHS Secretary Michael Chertoff said at a news conference. “We’ve been urging Congress to pass legislation, now before the Senate, that would grant the Department of Homeland Security some carefully crafted access to Social Security no-match data so we can detect those employers who are systematically employing workers, despite the fact that there’s an obvious mismatch between the names and the Social Security numbers in question.”
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5. German Emergency/Temporary Passports No Longer Valid for Travel to U.S. Under VWP

As of May 1, 2006, German emergency and temporary passports are no longer valid for travel to the U.S. under the Visa Waiver Program, the U.S. Embassy in Germany reported. Holders of these passports who intend to travel to or through the United States must either obtain a regular German passport for Visa Waiver Program travel, or obtain a visa.

Additional information is available at http://www.usembassy.de/germany/visa/vwp_faqs.html and http://germany.usembassy.gov/germany/temporary_passports.html.

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6. Temporary Protected Status Extended for Honduras, Nicaragua

The temporary protected status (TPS) designation for Honduras and Nicaragua has been extended until July 5, 2007. Given the large numbers affected, many re-registrants may not receive an extension sticker or new employment authorization document (EAD) until after their current EADs expire on July 5, 2006. Accordingly, the validity of EADs issued under the TPS designations has been extended automatically until January 5, 2007. The notices explain how TPS beneficiaries and their employers may determine which EADs are automatically extended. The 60-day re-registration period began on April 1, 2006, and will remain in effect until June 1, 2006. To facilitate processing, applicants are strongly encouraged to file as soon as possible.

The notices are available at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-4685.pdf (Honduras) and http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-4686.pdf (Nicaragua).

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7. State Dept. Reports on China, India Visa Availability, “Other Worker” Category Retrogression for May

The Department of State noted in its Visa Bulletin for May 2006 that continued heavy demand for visa numbers (particularly for adjustment of status cases at U.S. Citizenship and Immigration Services offices) has brought allocations close to the 5,000 annual numerical limit for “other worker” green cards in the employment-based third preference category. The Department said it has been necessary as a result to retrogress the employment third preference “Other Worker” cut-off date in an effort to limit future demand. If the annual limit is reached, it will become necessary to make the category unavailable for the remaining months of the fiscal year, the Department said.

The Department also noted that there has been a significant amount of forward movement in the China-mainland born and India employment first and second preference cut-off dates during recent months. This was done in an effort to generate demand for numbers. It cannot be assumed, the Department warned, that these cut-off dates will continue to advance at this pace during the remainder of the fiscal year. “It remains to be seen how heavy the demand for visa numbers by applicants from those areas will be in the coming months,” the Department said.

The latest Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_2868.html.

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8. USCIS Establishes Records Verification Directorate

U.S. Citizenship and Immigration Services (USCIS) announced on April 10, 2006, that it has established a new National Security and Records Verification Directorate. This new Directorate is made up of two divisions formerly embedded within the Domestic Operations Directorate, the Fraud Detection and National Security (FDNS) Division and the Records Division, along with a new Verifications Division.

FDNS functions as USCIS’s law enforcement liaison and handles the agency’s intelligence work, fraud detection and, as part of the new Directorate, the national security cases previously handled in Domestic Operations. The Records Division handles the storage and retrieval of close to 100 million immigration records, virtually all paper-based. The new Verification Division now encompasses the Basic Pilot and SAVE (Systematic Alien Verification for Entitlements) volunteer employment and status verification programs, which allows participating employers to confirm the employment eligibility of newly hired employees.

The National Security and Records Verification Directorate will be led by Acting Associate Director Janis Sposato, a 31-year veteran of the Department of Justice and the Department of Homeland Security, and the former Deputy Associate Director of the Domestic Operations Directorate.

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9. GAO Recommends Measures to Reduce Visa Wait Times at Consular Posts

The U.S. Government Accountability Office (GAO)’s new report, Border Security: Reassessment of Consular Resource Requirements Could Help Address Visa Delays, notes that applicants have faced extensive wait times at some consular posts. New post-9/11 security requirements have increased delays. Additional factors, the GAO said, may include a resurgence in visa demands and facility limitations at some posts, as well as a lack of needed personnel. Although the Department of State has increased hiring of consular officers, the GAO called for a comprehensive assessment of staffing requirements for visa operations worldwide. The report includes statistics on maximum wait times for temporary business and tourism visa interview appointments; the longest is at the post in Chennai, India, with a maximum wait time of 168 days. The full text of the report is available at http://www.gao.gov/new.items/d06542t.pdf.
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10. Fewer H-1B Numbers Used Than Expected for FY 2007 So Far

As noted in last month’s issue, U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B filings under the fiscal year 2007 cap beginning on April 1, 2006. H-1B numbers are being used up more slowly so far than many expected, although filing as early as possible is still recommended. As of April 24, 2006, USCIS reported that only 12,713 standard H-1B numbers and only 2,358 advanced degree H-1Bs have been allocated.

For more on proposed H-1B legislation, see the first article in this issue.

To monitor the count, see http://www.uscis.gov/graphics/services/tempbenefits/cap.htm.

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11. Recent Articles & News from ABIL Members

ABIL co-sponsors seminar on labor certification. The Alliance of Business Immigration Lawyers will co-sponsor a seminar with the Association of the Bar of the City of New York on “Labor Certification Fundamentals and Best Practice Under the New PERM System to Benefit Your Client and Your Immigration Practice,” on Wednesday and Thursday, May 10-11, 2006, from 6 to 9 p.m. at the New York City Bar, 42 West 44th Street. The program chair is Cyrus D. Mehta; moderators include H. Ronald Klasko and Stephen Yale-Loehr. Among the faculty are ABIL members Charles H. Kuck, Edward R. Litwin, and Angelo A. Paparelli. For more information or to register, call (212) 382-6663 or see https://www.nycbar.org/CLE/show_course.php?cnameid=1213.
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News from the Alliance of Business Immigration Lawyers Vol. 2, No. 4 • April 01, 2006

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Headlines:

1. Immigration Reform Action Heats Up in Congress – The Senate is poised to debate and seek compromise on a variety of sweeping immigration reform proposals.

2. USCIS Notifies Employers of Filing Changes – USCIS announced changes to the filing locations for foreign worker petitions.

3. USCIS Issues Sample H-2B Attestation – USCIS has issued a sample H-2B returning worker attestation for employers to follow when filing petitions including returning H-2B workers.

4. State Dept. Announces Changes in Earliest Issuance Dates for F, M Visas – Students applying for certain initial-entry visas now may be issued these visas up to 120 days before the program start date; the State Dept. also announced a plan to allow initial-entry students to apply for admission to the U.S. up to 45 days before their program start dates.

5. Reminders Issued on Eve of New H-1B Filing Period – USCIS issued reminders of important regulatory requirements in anticipation of the agency’s acceptance of H-1B filings under the fiscal year 2007 cap beginning on April 1, 2006.

6. Cut-Off Dates Advance in Several Employment Preference Categories – Cut-off dates for the China and India employment-based first preference (EB-1) categories have advanced six months.

7. Labor Dept. Releases FAQs on Labor Certifications – The Department of Labor has released guidance on procedures for requesting a duplicate labor certification when the original has been lost or misplaced.

8. New Report Counters Perception That H-1B Workers Harm U.S. Labor – The National Foundation for American Policy released a policy brief countering the perception that the entry of skilled H-1B professionals harms native U.S. workers.

9. DHS Releases Report on L-1 Visa Fraud; Other Reports Rebut Allegations – The Department of Homeland Security’s Inspector General’s controversial new report charges that the L-1 program is vulnerable to fraud in several respects.

10. GAO Issues Report on Benefit Fraud – The GAO’s new report recommends that USCIS implement additional internal fraud controls and best practices, and develop a strategy for implementing a sanctions program.

11. Recent Articles & News from ABIL Members – Recent Articles & News from ABIL Members

Details:

1. Immigration Reform Action Heats Up in Congress

As of press time, the full Senate is debating and seeking compromise on a variety of sweeping immigration reform proposals, including border enforcement measures, work authorization verification provisions, and a temporary worker plan. The Judiciary Committee marked up the legislation on March 27, 2006. Sen. Bill Frist (R-Tenn.) said the goal is to pass a bill by April 7, which would have to be reconciled with the House version. The timeline remains uncertain, however, because the legislation continues to generate controversy among lawmakers torn between the appeal of get-tough measures and concerns about alienating Latino voters.

During the mark-up on March 27, the Judiciary Committee passed a variety of amendments. Among the more noteworthy are amendments to create a temporary worker program, which President George Bush has long sought, and to apply a one-year limit on an initial L visa if the worker is coming to open a new office in the U.S., after which the worker would have to submit evidence supporting the viability of the office before applying for an extension of L status. New F-4 student visa provisions also were approved that would, among other things, raise the application fee from $1,000 to $2,000.

The National Association of Manufacturers weighed in with a letter to the Senate recommending that “[a]ny new legislation should include a market-based cap on H-1B visas; exemptions from EB caps for an expanded group of workers that are needed for their knowledge or contributions to innovation in fields like science, technology, engineering and mathematics (STEM); and…a direct path to green cards for STEM advanced degree graduates of U.S. universities.” Meanwhile, the American Civil Liberties Union and an assortment of other groups from both sides of the political aisle, including privacy rights groups, opposed a provision that would mandate the use of the Basic Pilot employment verification database by all United States employers to verify the work-eligibility of both current employees and future hires, which the organizations said would lead to privacy violations and a national identification system.

Some of the enforcement-related proposals that the Judiciary Committee did not pass included making unlawful presence in the U.S. a felony and criminalizing those who aid the undocumented. Sen. Hillary Clinton (D-N.Y.) had opined that such provisions would “literally criminalize the Good Samaritan and probably even Jesus himself.” The proposed legislation sparked some of the largest protests in U.S. history. “I’ve been on the force 38 years and I’ve never seen a rally this big,” said Louis Gray, Jr., incident commander at the March 25 rally held in Los Angeles, at which an estimated 500,000 people turned out.

The earlier text of the various pieces of the proposed legislation can be found at http://thomas.loc.gov (type the bill number in the search field): H.R. 4437 (Sensenbrenner bill); S. 1438 (Cornyn-Kyl bill); S. 2454 (Frist bill) (PDF available at http://frist.senate.gov/_files/031706bill.pdf); and S. 1033 (Kennedy-McCain bill). A PDF of the unnumbered Specter bill is available at http://www.aila.org/content/default.aspx?docid=18639.

In addition, the House immigration subcommittee held a hearing on March 30 to discuss raising the H-1B cap. In other congressional news, a House panel approved a variety of measures to reform and strengthen management of the Department of Homeland Security. An amendment to merge the Customs and Border Protection and Immigration and Customs Enforcement agencies was withdrawn after an agreement to hold a hearing on the subject. A report by the DHS’s Inspector General on the proposal is available at http://www.dhs.gov/interweb/assetlibrary/OIG_06-04_Nov05.pdf. The DHS reform legislation has been sent to the full House Committee on Homeland Security for consideration. More details are available at http://www.govexec.com/dailyfed/0306/031606c1.htm.

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2. USCIS Notifies Employers of Filing Changes

On March 24, 2006, U.S. Citizenship and Immigration Services (USCIS) announced changes to the filing locations for two popular employer-sponsored immigration forms. Beginning April 1, 2006, employers filing a Petition for a Nonimmigrant Worker (Form I-129) should mail it to the Vermont Service Center. Also beginning April 1, 2006, employers filing an Immigrant Petition for an Alien Worker (Form I-140) should mail it to the Nebraska Service Center. Employers should file any accompanying forms at these same centralized locations.

USCIS explained that these changes mark the first phase of an initiative to use centralized filing and “bi-specialized” adjudication. USCIS plans to align similar workloads between two “sister” service centers. After April 1, the Vermont and California Service Centers will process all I-129s and related dependent applications, and the Nebraska and Texas Service Centers will process all I-140s and related permanent residence applications. Applicants and petitioners should note that the filing location for the form type is not necessarily the Service Center that will decide the case; the “sister” service center may perform the actual processing. Applicants will be sent a receipt notice from the service center that will process their cases.

USCIS will continue to process cases received before April 1 using pre-existing procedures. Once the amended filing instructions take effect on April 1, the agency will not reject any I-129s or I-140s sent to the incorrect service center. Instead, USCIS will accept the filing, redirect it to the correct location, and honor the initial receipt date. The new filing locations do not affect other aspects of the forms’ instructions and do not change the forms themselves. USCIS will continue to honor previous versions of the forms.

Additional details, such as information on premium processing and where to file dependent applications when the principal application has already been filed, are included in a USCIS fact sheet available at http://uscis.gov/graphics/publicaffairs/factsheets/BiSpecPh01_24Mar06FS.pdf.

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3. USCIS Issues Sample H-2B Attestation

U.S. Citizenship and Immigration Services (USCIS) issued a sample H-2B returning worker attestation on March 16, 2006, for employers to follow when filing petitions including returning H-2B workers. Petitions for returning H-2B workers do not count toward the congressionally mandated biannual H-2B cap. The H-2B category is for temporary nonprofessional workers.

To qualify as a returning worker, a worker must have counted against the H-2B numerical cap during any one of the three fiscal years before the fiscal year of the approved start date of the H-2B petition. For example, to qualify as a returning worker for fiscal year 2006, a worker must have counted against the H-2B cap between October 1, 2002, and September 30, 2005.

The sample attestation is available at http://www.uscis.gov/graphics/formsfee/forms/files/H2B_Attestation.pdf.

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4. State Dept. Announces Changes in Earliest Issuance Dates for F, M Visas

The Department of State (DOS) recently announced that persons applying for initial-entry F-1, F-2, M-1 and M-2 visas now may be issued these visas up to 120 days before the program start date as listed on their I-20s, although such students may not enter the U.S. more than 30 days in advance of the beginning of studies. These changes apply only to initial-entry students; continuing students may apply for new F or M visas at any time, as long as they have been maintaining student status and their SEVIS records are current. Continuing students may enter the U.S. at any time before their classes start.

The DOS also announced a plan to allow initial-entry students to apply for admission to the U.S. up to 45 days before their program start dates, although the Department of Homeland Security (DHS) must publish a regulation to implement this change. The Department of State said it would notify posts when the DHS does so. Until then, posts were instructed to continue informing initial-entry students that they may not enter the U.S. more than 30 days before their program start dates.

The DOS’s announcement, which also includes information on J visas, is available at http://travel.state.gov/visa/laws/telegrams/telegrams_2843.html.

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5. Reminders Issued on Eve of New H-1B Filing Period

U.S. Citizenship and Immigration Services (USCIS) issued reminders of important regulatory requirements in anticipation of the agency’s acceptance of H-1B filings under the fiscal year 2007 cap beginning on April 1, 2006. H-1B petitioners should keep these requirements in mind to avoid delays in processing and possible requests for evidence.

USCIS noted that if work is to be performed in more than one location, H-1B petitioners must provide a detailed itinerary of the dates and places where the work will be performed. For example, a labor contractor or consultant who hires H-1B workers to work at client sites must provide in advance an itinerary with the dates and places where the worker will perform services for the clients.

Also, in situations in which an H-1B worker is changing to an employer other than the one for which the initial H-1B petition was approved, the worker must demonstrate that he or she performed work for the original petitioning employer for a “significant length of time.” If the H-1B worker is processing abroad, USCIS will work with the Department of State to ensure that the same level of scrutiny is applied to consular-processed H-1Bs.

The reminder notice is available at http://uscis.gov/graphics/publicaffairs/statements/H1Bnotice_24Mar06PN.pdf.

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6. Cut-Off Dates Advance in Several Employment Preference Categories

The Department of State announced in the April Visa Bulletin that cut-off dates for the China employment-based first preference (EB-1) category have advanced six months, to January 1, 2004. The India EB-1 category also has moved ahead six months, to January 1, 2005. Six-month advances are also noted in the employment-based second preference category (EB-2) for both China (January 1, 2003) and India (July 1, 2002). All other EB-1 and EB-2 categories remain Current. The full text of the April Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_2847.html.
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7. Labor Dept. Releases FAQs on Labor Certifications

The Department of Labor has released guidance on procedures for requesting a duplicate labor certification when the original has been lost or misplaced. The guidance is available at http://workforcesecurity.doleta.gov/foreign/pdf/perm_faqs_3-20-06.pdf. Other recent FAQs on labor certifications are available at http://workforcesecurity.doleta.gov/foreign/pdf/perm_faqs_2-21-06.pdf and http://workforcesecurity.doleta.gov/foreign/pdf/perm_faqs_2-14-06.pdf. The full set of PERM FAQs in PDF format is available for download at http://workforcesecurity.doleta.gov/foreign/ (scroll to Quick Links).
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8. New Report Counters Perception That H-1B Workers Harm U.S. Labor

The National Foundation for American Policy released a policy brief countering the perception that the entry of skilled H-1B professionals harms native U.S. workers. The brief discusses common misconceptions and fallacies that affect people’s understanding of high-skilled immigration, and research showing no negative impact of H-1B professionals on native workers’ opportunities and wages. The policy brief, H-1B Professionals and Wages: Setting the Record Straight, is available at http://www.nfap.com/researchactivities/articles/NFAPPolicyBriefH1BProfessionalsAndWages0306.pdf.
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9. DHS Releases Report on L-1 Visa Fraud; Other Reports Rebut Allegations

The Department of Homeland Security’s Inspector General’s new report, Review of Vulnerabilities and Potential Abuses of the L-1 Visa Program, charges that the L-1 program is vulnerable to fraud in several respects. For example, adjudicators “find it difficult to be confident” that a firm truly intends to use an imported worker in a managerial or executive capacity as claimed. Also, “specialized knowledge” is so broadly defined that adjudicators “believe they have little choice but to approve almost all petitions.” Further, adjudicators have little ability to evaluate the substantiality of foreign operations, and the program encompasses petitioners who do not yet have their first U.S. office and permits petitioners to transfer themselves to the U.S. The report makes several recommendations, including that U.S. Citizenship and Immigration Services (USCIS) establish a procedure to obtain overseas verification of pending H and L petitions by Department of State officers; that USCIS explore with U.S. Immigration and Customs Enforcement whether experienced criminal investigators assigned abroad could check the bona fides of L petitions submitted by petitioners in the countries in which the officers are assigned; and that USCIS seek “legislative clarification” of various terms, concepts, and criteria used in the L program.

The Inspector General’s report, including USCIS’s responses to the Inspector General’s recommendations, is available at http://www.dhs.gov/interweb/assetlibrary/OIG_06-22_Jan06.pdf.

The National Foundation for American Policy issued a report on the L visa program that questions aspects of the Inspector General’s recommendations and counters claims of widespread abuse. That report, Understanding L-1 Visas and the Recent OIG Report, is available at http://www.nfap.com/researchactivities/articles/NFAPPolicyBriefUnderstandingL1Visas0306.pdf.

The Global Personnel Alliance (GPA) reiterated in a rebuttal to the Inspector General’s report that there is no widespread evidence of L program misuse and noted that the Inspector General’s office did not speak to any users of the L-1 program. Had it done so, GPA said, it would have found that L-1 users have had petitions rejected for incorrect or unclear reasons and have been subjected to repeated requests for additional supporting evidence and required to make trips overseas to satisfy consular officers’ skepticism. The report also notes that smaller businesses, such as those started by a handful of managers and executives sent to the U.S. to expand operations, provide much of the new employment available to U.S. workers. The GPA’s report, Mixed Messages in DHS Office of Inspector General’s Report on L-1 Program, is available at http://www.aila.org/content/fileviewer.aspx?docid=18810&linkid=143200. For more on the importance of small business to American enterprise and invention, see Inventors, Inventions, and Innovative Small Business, http://www.sba.gov/advo/factsinventors06_03.pdf.

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10. GAO Issues Report on Benefit Fraud

The U.S. Government Accountability Office (GAO)’s new report, “Immigration Benefits: Additional Controls and a Sanctions Strategy Could Enhance DHS’s Ability to Control Benefit Fraud,” recommends that U.S. Citizenship and Immigration Services implement additional internal fraud controls and best practices, and develop a strategy for implementing a sanctions program that includes a mechanism for assessing the effectiveness and considering the costs and benefits of sanctions, including their deterrence value. The GAO report, Immigration Benefits: Additional Controls and a Sanctions Strategy Could Enhance DHS’s Ability to Control Benefit Fraud, is available at http://www.gao.gov/new.items/d06259.pdf.
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11. Recent Articles & News from ABIL Members

ABIL co-sponsors seminar on Global Migration Issues. While members of the Academy of Business Immigration Lawyers are in London to attend their semi-annual meeting, they will co-sponsor a seminar, “Managing Global Mobility,” with British American Business Inc. (BABi). The seminar will be held on April 20, 2006, at the Marriott Hotel, Grosvenor Square, London, from 2:00 to 5:30 p.m. Panels will address Effective Global Migration Management – An Essential Element for Competitive Success; Compensation, Benefits and Tax Planning for International Assignments; and Global Immigration Systems – Similarities and Differences. ABIL moderators and faculty will include Angelo A. Paparelli, Steven Trow, H. Ronald Klasko, Laura Danielson, and Bryan Funai. The program chair is Kehrela Hodkinson. For additional information and to register, call +44 20 7493-0381 or see http://www.babinc.org/events/loneventcalendar.html.

ABIL co-sponsors seminar on labor certification. The Alliance of Business Immigration Lawyers will co-sponsor a seminar with the Association of the Bar of the City of New York on “Labor Certification Fundamentals and Best Practice Under the New PERM System to Benefit Your Client and Your Immigration Practice,” on Wednesday and Thursday, May 10-11, 2006, from 6 to 9 p.m. at the New York City Bar, 42 West 44th Street. The program chair is Cyrus D. Mehta; moderators include H. Ronald Klasko and Stephen Yale-Loehr. Among the faculty are ABIL members Charles H. Kuck, Edward R. Litwin, and Angelo A. Paparelli. For more information or to register, call (212) 382-6663 or see https://www.nycbar.org/CLE/show_course.php?cnameid=1213.

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