By Hector A. Chichoni

For quite some time now, the government has been carrying out immigration enforcement actions which have become a nightmare for employers in the United States. Although this nightmare often results from employers’ lack of compliance; the government shares a great deal of the blame for not providing employers with avenues to resolve those problems. In other words, because of political pressure, the government has created an immigration compliance imbalance by enacting laws which only provide for compliance and enforcement, but no solutions. Moreover, this imbalance can only be resolved by business-smart sweeping changes, which will allow employers to meet their human resource needs, avoid fines, and encourage compliance while protecting the domestic work force.

The following hot-off-the-press immigration information quoted directly from The Washington Post, Associated Press, and Politico, seems to suggest that an immigration reform deal being worked out in Congress will contain proposals that could end the nightmare. If these proposals are enacted, a wide variety of industries, such as hospitality, construction, retail, information technology, agriculture, meatpacking, healthcare, and others will be among the first industries to benefit. In his article, Business, Labor Dispute Holds Up Senate Immigration Proposal (Washington Post, March 22, 2013), David Nakamura states that:

"The AFL-CIO and Chamber of Commerce have agreed to a general framework that would add up to 200,000 new visas per year for a new guest worker program for foreigners. The Chamber has pushed for the workers – who would include maids, waiters, child care workers, home nannies and meat packer — to be paid one step below the median hourly wage scale in their respective industries. But the labor union wants them to be paid one step higher than the median. In the case of a waiter, for example, the difference would be between $8.93 per hour (or $18,600 a year) and $10.61 per hour ($22,100), according to the sources … Randy Johnson, the Chamber’s senior vice president of Labor, Immigration, and Employee Benefits, said in a statement: “Our position has consistently been that the wage issue should be resolved by sticking with current law.  Any temporary worker program would require that an immigrant worker be paid the greater of actual wages being paid to comparable American workers or the prevailing wages.  In some cases, the prevailing wage determination by the U.S. Department of Labor concludes that the employer’s actual wages are less than prevailing. If DOL so determines, then the employer must pay the prevailing wages in order to hire a foreign worker. The requirement to rely on a DOL prevailing wage determination has been in US immigration law since 1990. All the business community is saying is that we want to retain this standard.” Erica Werner, in her article Senate Gang Of 8 Close On Immigration Deal (The Associated Press, March 22, 2013) states that:

"A bipartisan group of senators is nearing agreement on a comprehensive immigration bill that would put illegal immigrants on a 13-year path to citizenship, officials with outside groups keeping up with the talks said Thursday. . . .  The legislation also would install new criteria for border security, allow more high- and low-skilled workers to come to the U.S. and hold businesses to tougher standards on verifying their workers are in the country legally, according to outside groups and lawmakers involved. Together, the measures represent the most sweeping changes in immigration law in decades . . . .   Several officials with outside groups said the biggest remaining areas of disagreement dealt with legal rather than illegal immigration. Top among them was a proposed program to bring in tens of thousands of new immigrants to fill low-skilled jobs. It had been the subject of difficult negotiations between the U.S. Chamber of Commerce and AFL-CIO . . . .  The two sides made substantial progress, including agreeing on a cap of 200,000 visas in the new program, but they continued to disagree on wages for the new workers, according to one official. Senators were mediating offers and counteroffers . . . .  The officials described the status of the discussions on condition of anonymity because they were not authorized to speak publicly about them . . .  The new bill would contemplate a 10-year wait for illegal immigrants already in the U.S. before they could get a green card allowing them permanent residency, senators have said. During that time they would be in a provisional legal status and would not have to return to their home countries as current law requires. Once they got the green card, they would have to wait three years to be able to apply for citizenship, compared to the five-year wait that most green-card holders currently have to abide, outside officials say they've been told. The new three-year wait was first reported by The New York Times. The bill will be lengthy and cover numerous other thorny issues, including mandating a currently voluntary program called E-Verify that helps businesses check their workers' papers, as much as doubling visas that go to high-tech workers, and limiting family-based immigration to put a greater emphasis on skills and employment ties instead."

Lastly, Kate Nocera, Manu Raju, and Anna Palmer in their article Senators Hit Late Snag In Immigration Talks (Politico, March 22, 2013), wrote that:

"Under the bipartisan outline of a deal the Gang of Eight reached in January, businesses would be able to hire lower-skilled immigrant workers when Americans were not available or willing to fill jobs. The outline calls for a program for immigrants to fill farm worker positions when Americans are unavailable. It would create a sliding scale based on the economy’s strength, allowing for more lower-skilled immigrants to enter the country in periods of job growth and for fewer foreign low-skilled workers when the economy is sagging."

The reality is that the U.S. Immigration and Customs Enforcement (ICE) will continue to send a very clear message that, for employers, their worst immigration compliance nightmare continues. Therefore, the present immigration compliance situation in our country is unsustainable. As we move towards a solution, Congress and the President will have to forge an agreement on immigration reform.  A reform with sweeping changes, which will try to cure the immigration compliance imbalance that has been created by previous laws and regulations, seems now within reach.  But the devil does not seem to be so much in the detail, but in the deal.

By Hector A. Chichoni

This is a brief report on some of the most recent, and somewhat surprising, decisions issued by the Office of the Chief Administrative Hearing Officer (“OCAHO”)  in connection with the employer sanction provisions of the Immigration and Nationality Act (“INA”), as amended by the Immigration Reform and Control Act of 1986 (“IRCA”).  Although, these decisions do not completely side with employers; they are surprisingly more benign to employers than past decisions. Some of these decisions appear to auger a somewhat “kinder and gentler” course in the application of employer sanction rules and policies with respect to fines. However, the U.S. Immigration and Customs Enforcement (“ICE”)’ continues to initiate high numbers of investigations and audits, and pursue the highest possible fines and penalties available under statute and regulations, regardless of whether such high fines are warranted.

Here are a few examples of recent OCAHO decisions:

In US v. MEMF LLC d/b/a/ Black & Blue Steak & Crab – Buffalo (“MEMF”) (03/01/2013), a case in which a small company had no prior history of violation, no presence of unauthorized workers found at the time of the investigations, ICE determined that the company, although acting in good faith, nonetheless failed to ensure that each of seventy-three hired employees properly completed “section 1 of Form I-9, or failed itself to properly complete section 2.” True to form, ICE sought highest penalties in the amount of $605 for each violation, or a total of $44,165.

In this particular case, OCAHO reduced the fine, finding that:

"MEMF’s point is well taken that most of the statutory factors weigh in its favor. First, the record does not support the government’s finding that the restaurant is a large employer. The memorandum accompanying the government’s submission states unequivocally that the number of employees was 234, but the record makes clear that MEMF never had that many employees during a single time period. Our case law has previously noted the high turnover inherent in the restaurant industry, and in assessing the number of employees has focused on the number that were actually working at a particular time rather than on the aggregate number of total employees and former employees. Cf. United States v. Pegasus Rest., 10 OCAHO no. 1143, 6-7 (2012) (also considering the Small Business Administration standards for code 5812, noninstitutional “eating and drinking places”);United States v. Snack Attack Deli, Inc., 10 OCAHO no. 1137, 7 (2010)." [Emphasis added.]

In other words, the number of employees who must be considered for purposes of calculating fines is the number of employee that actually worked at a particular time rather than “the aggregate number of total employees and former employees.”

OCAHO reduced the fine, concluding that:

"Apart from seriousness, all the other factors are favorable to the employer. The company is small, it acted in good faith, and it had no unauthorized workers or previous history of noncompliance. MEMF did not argue an inability to pay the amount requested but invoked a different nonstatutory factor of equity, and said that the proposed penalty would create an undue hardship for the business and was disproportionate in light of all the favorable factors. Considering the record as a whole in light of all the facts and circumstances, the penalties will be adjusted as a matter of discretion to $450 each or a total of $32,850." [Emphasis added].

In U.S. v. El Azteca Dunkirk, Inc. (“El Azteca”)(03/13/2013), which also involved a small restaurant with no history of prior violations, ICE sought high penalties of $11,000 for twenty violations (substantive violations of failure to enter proper List A, B, or C documents in section 2 and bad faith), for all past and present employees. Moreover, ICE alleged that illegal conduct on the part of the owners had taken place, but offered no evidence.

In this particular case OCAHO stated that “the facts recited in the memorandum may support an assertion that the violations are serious, but they do not support a finding of bad faith.” Moreover, OCAHO further explained that “the government has the burden of proof to demonstrate the existence of any aggravating factor by a preponderance of the evidence, see United States v. Carter, 7 OCAHO no. 931, 121, 159 (1997), and that burden has not been met with respect to the assertion of bad faith.”

OCAHO concluded that:

"The record here does not support enhancement of the government’s baseline penalties on the bases requested. Were I approaching the question de novo, a somewhat higher penalty would be assessed, but here there is no compelling reason not to give the company the benefit of the government’s original baseline penalty without the enhancements. In view of the minimal fine assessed no payment schedule will be established … El Azteca Dunkirk is liable for twenty violations of 8 U.S.C. § 1324a(b) and is directed to pay penalties in the amount of $2200." [Emphasis added.]

In US v. Seven Elephants Distributing Corp. (“Elephant”)(03/18/2013), a case in which OCAHO found that an employer’s copying of documents and attaching them to a form I-9, cannot “substitute for properly completing section 2 of an I-9 form.” Elephant’s failure to complete section 2 of the I-9s, a substantive violation, was aggravated by the fact that seven unauthorized workers were found in connection with the inspection. Yet, OCAHO reduced the fines in its decision stating that:

"The penalties the government requested are very near the maximum permissible, and appear disproportionate to the current size and status of the employer. As explained in United States v. Pegasus Restaurant., Inc., 10 OCAHO no. 1143, 7 (2012), proportionality is critical to setting penalties, and penalties so close to the maximum should be reserved for more egregious violations than are shown here, United States v. Fowler Equipment Co., 10 OCAHO no. 1169, 6 (2013). They will accordingly be adjusted to an amount closer to the mid-range of permissible penalties. For the most serious violation, that in Count I, the penalty will be assessed at $600. For the seven violations in Count II that involve the I-9s of unauthorized workers, the penalties will be assessed at $500 each. For the remaining twenty-six violations in Count II the penalties will be assessed at $400 each. The total penalty is $14,500." [Emphasis added].

In U.S. v. Siam Thai Sushi restaurant, d/b/a Four Siamese Company, Inc. (“Siam”)(03/27/2013), a case in which ICE found the employer had committed serious violations (made substantive errors) and lacked good faith for failing to complete a Form I-9 for each employee, OCAHO decided that “neither the fact that an employer’s I-9s are missing nor that they are defective is sufficient to show a lack of good faith.” And that:

"[The] penalty should be sufficiently meaningful to accomplish the purpose of deterring future violations, United States v. Jonel, Inc., 8 OCAHO no. 1008, 175, 201 (1998), without being “unduly punitive” in light of the respondent’s resources, United States v. Minaco Fashions, Inc., 3 OCAHO no. 587, 1900, 1909 (1993). Here, while Siam Thai’s violations are considered serious, most of the statutory factors weigh in its favor. Yet ICE’s proposed penalty of $935 per violation is close to the maximum permissible fine. Based on the totality of the circumstances reflected in the record as a whole and, in particular, on the respondent’s circumstances and resources, the proposed penalty will be modified to an amount closer to the mid-range of possibilities. The penalties will be set at $500 each for the eleven I-9s prepared in March and April of 2009, $450 for the I-9 prepared in September of 2009, and $400 each for the six I-9s prepared in June and July of 2010, resulting in a total of $8350." [Emphasis added].

In other words, although the government was seeking high fines for “serious violations” due to  incomplete and missing I-9s forms, because Siam is a “mom and pop” operation, OCAHO reduced the fines in accordance to Siam’s “circumstances and resources” to an “amount closer to the mid-range of possibilities.”

Although many employers may be relieved at the OCAHO’s recent willingness to be measured in its application of fines and penalties, or gone soft on fines, it still remains true that compliance is always better.  ICE can be expected to persist in its effort to extract the highest possible penalties.

U.S. Customs and Border Protection (CBP) today published an interim final rule in the Federal Register to automate Form I-94, Arrival/Departure Record. Effective on April 26, 2013, the rule streamlines the admissions process for individuals lawfully visiting the United States.

Readers of our alerts would recall that CBP had announced on 03/21/2013 that it has submitted to the Federal Register a rule that would automate Form I-94 Arrival/Departure Record to streamline the admissions process for individuals lawfully visiting the United States.

Form I-94 provides international visitors evidence they have been lawfully admitted to the U.S. which is necessary to verify alien registration, immigration status, and employment authorization. The automation means that affected visitors will no longer need to fill out a paper form when arriving to the U.S. by air or sea, improving procedures and reducing costs.

It is expected that once the process is fully implemented, it will facilitate security and travel while saving CBP an estimated $15.5 million a year.

Travelers wanting a hard copy or other evidence of admission will be directed to www.cbp.gov/I94* to print a copy of an I-94 based on the electronically submitted data, including the I-94 number from the form, to provide as necessary to benefits providers or as evidence of lawful admission. (www.cbp.gov/I94 ).

CBP’s technology and automation to the passenger processing environment, records of admission will now be generated using traveler information already transmitted through electronic means. This change should decrease paperwork for both the officer and the traveler.

If you wish to obtain additional information in connection with this post, please contact Hector A. Chichoni at: 305.960.2277 or at hchichoni@duanemorris.com.

This post does not constitute legal advice for, or establish an attorney-client relationship with, the reader. 

The  March Visa Bulletin has been released by the Department of State. Chinese nationals in the EB-2 category will experience a one month advancement from January 15, 2008 to February 15, 2008; while Indian nationals remain at September 1, 2004, which has not changed since the end of 2012. In the meantime, Mexican, Filipino, and nationals from all other areas of chargeability remain current through March 2013.

All of those in the EB-3 category will see advancements in their priority dates. China, Mexico, and all other chargeability areas will see a two month advancement, while India will advance only eight days. Filipino nationals will advance ten days.

As always, due to the fear of retrogression, its vitally important that I-485 applications be filed in the first month of visa availability. If your priority date is current or will become current based on the March 2013 visa bulletin, please contact our office.

For additional information regarding the Visa Bulletin, or any other immigration matters, please contact Valentine at 215-979-1840 or at vbrown@duanemorris.com.

On January 29, 2013, Senator Orrin Hatch (R-UT) introduced Senate Bill 169, The Immigration Innovation Act of 2012 (“I-Squared Act”). The I-Squared Act includes a number of proposals that if enacted will benefit U.S. businesses and highly-educated and skilled foreign workers by easing many of the most common juggernauts in the current system, including the H-1B cap and backlogs in the EB-2 and EB-3 preferences.

The most fundamental change the I-Squared Act proposes would be to the H-1B category, which is available to those seeking employment in professional positions. The I-Squared Act proposes to increase the H-1B cap from 65,000 to 115,000, with the further option of an increase to 300,000 visas annually. The I-Squared Act would also make individuals with a Master’s degree or higher from an U.S. university completely exempt from the H-1B cap. Additionally, dependents of H-1B workers, those currently holding H-4 status, would be eligible to apply for work authorization.

The I-Squared Act proposes changes to the employment based preference system which could reduce, if not eliminate persistent, unbearably long backlogs. The bill proposes exempting the following individuals from the 180,000 numerical cap on employment-based green cards:

1. Dependents of employment-based immigrant visa recipients;
2. Advanced degree holders (from US universities) in the sciences, technology, engineering, or mathematics (STEM) fields;
3. Persons with extraordinary ability;
4. Outstanding professors and researchers

Removing these individuals from the quotas would reduce the waiting period for those still subject to limits. Lastly, the Act would abolish the annual per-country limits for employment-based green cards; thus creating an even playing field for all individuals despite their country of origin. This would be especially beneficial for natives of India, China, Mexico, and the Philippines, who must wait years for green cards due to the stong demand from their fellow nationals.

There is no indication yet on how these proposals will fit into the big picture for immigration reform. But whether it is a stand alone bill or included in a comprehensive bill, it will be good news for employers and immigrants who are stuck in our broken system.

For more information or any other immigration matters, please contact Valentine at 215-979-1840 or at vbrown@duanemorris.com.

U.S. Embassy officials in China have announced that they will implement a new visa fee collection system as of March 14, 2013 for all US visa issuing posts in China. The implementation of the new system will nullify all U.S. Visa Fee Receipts that have been purchased and remain unused as of March 14, 2013 as they will no longer be accepted nor will refunds be offered.

It is advised that all current CITIC Visa Fee Receipts are used before their expiration on March 14, 2013. Visa applicants with plans on attending a visa application appointment in China on or after March 14th, should wait to pay the required fees until the new system has been implemented to avoid any issues.

This change signals that the U.S. Mission in China may be preparing to implement the same, new user interface system that has recently been adopted by various U.S. Embassies and Consulates across the globe. The  new system is expected to be gradually implemented for all US missions abroad. It will allow applicants from all over the world to utilize a single online source to pay all applicable fees, complete Form DS-160, and schedule their visa application appointments.

For additional information regarding new or changing visa application procedures, or any other immigration matter, contact Valentine at 215-979-1840 or at vbrown@duanemorris.com.

Starting on November 1, 2012 Taiwanese passport holders are eligible to visit the United States without a visa for up to 90 days for business or pleasure.  The Department of Homeland Security (DHS) has recently announced the designation of Taiwan into the Visa Waiver Program (VWP), which will allow for the streamlining of travel for eligible Taiwan passport holders.  The announcement supports President Obama’s Executive Order on travel and tourism, directing federal agencies to expand our nation’s ability to attract and welcome visitors, while maintaining strong security standards.

 In deciding to add Taiwan to the program, the White House stated that  the U.S. and Taiwan have a long-standing economic partnership and it expects that Taiwan’s participation in the VWP will not only stimulate tourism, but enable the two to work together to maintain the highest level of security.  During the VWP designation process, DHS has determined that Taiwan is in compliance with key security and information-sharing requirements, such as enhanced law enforcement and security-related data sharing with the U.S., timely reporting of lost and stolen passports, and the maintenance of high counterterrorism, law enforcement, border control, aviation, and document security standards

 The VWP permits visa-free travel to the United States for eligible travelers visiting the U.S. for a time period of 90 days or less for purposes of business or tourism.  There are currently 36 countries that participate in the VWP and have accounted for 18.3 million visits to the U.S. in fiscal year 2011.  In fiscal year 2011, Taiwan nationals alone have accounted for 243,186 of the visitors to the U.S.   To utilize the VWP, eligible travelers are required to apply for advanced authorization through the Electronic System for Travel Authorization (ESTA). 

 VWP entrants should be careful to follow all program requirements as any infraction will cause the VWP entrant to be barred from using the program in the future. Infractions may include overstaying the allowable time period, failing to provide complete immigration and arrest histories on the ESTA application, or working in the US while on VWP.

  For additional information regarding VWP, visit www.dhs.gov or contact Valentine at 215-979-1840 or at vbrown@duanemorris.com.

On September 28th, United States District Court Judge Sharon Lovelace Blackburn upheld the most controversial sections of the immigration law enacted in Alabama earlier this year in a lawsuit brought by the US Department of Justice challenging the law on preemption grounds. Alabama HB56, was signed into law in June after Republicans won a supermajority in the State Legislature in the 2010 mid-term elections. It was challenged by the Obama administration as well as by civil rights groups. Both have vowed to appeal the ruling as it contradicts prior rulings by other federal courts that have considered similar laws in other states.

Judge Blackburn's ruling upholds provisions requiring police officers to request immigration documentation from anyone they suspect to be undocumented, and that all Alabama public schools from Grades K to 12 receive confirmation of immigration status from parents of all children attending.  The ruling also upholds provisions of the law that allow contracts to become void if entered into with an undocumented immigrant, and that criminalize the act of an undocumented immigrant’s application for a driver’s license or a license plate.  The law also includes criminal penalties for individuals who give rides to undocumented immigrants, and enables private citizens to report law enforcement officers and offices which do not enforce the law properly

The Judge’s ruling was more lenient regarding business owners and employers, as sections were blocked that penalize individuals who hire undocumented immigrants or encourage them to stay in-state to work.  The judge issued a preliminary injunction against several sections of the law, agreeing with the government’s case that they may be pre-empted federal law. She blocked a broad provision that outlawed the harboring or transporting of undocumented immigrants and another that barred undocumented immigrants from enrolling in or attending public universities.

Alabama Governor Robert Bentley, applauded the ruling, stating that the jurisdiction now has “the strongest immigration law in the country.”  Advocates on behalf of immigrants, such as America’s Voice Education Fund, are on the other hand indignant about the ruling, stating that it is the federal government’s job to determine immigration law and policy, and that the states only make matters worse by enforcing rules and laws that play to American’s fears rather than their strengths and best interests between one another.

We will have more in depth information on the E-Verify and business-related provisions of the Alabama law in future blog posts.

For more information on this or any other immigration topic, please contact Valentine Brown at vbrown@duanemorris.com

DHS recently published its first in an ongoing series of regulations aiming to change immigration benefit filings from paper to electronic.  Finally, the agency will join the 21^st Century!. The switch to electronic filing, known for the record as “USCIS Transformation,” will greatly assist the government in its processing of over six million immigrant benefit applications which are filed each year.  Through this electronic system, applicants will be given accounts containing status information regarding various cases they may have; they will also be able to respond to USCIS requests for information through these accounts, receive other communications and decisions from the government, and update their own personal information as needed.

The new regulation implementing the change from paper to electronic applications submission revises over fifty parts of Homeland Security regulations contained in Code of Federal Regulations Title Eight.   The public is invited to comment on these regulations, and may do so until October 28^th.  USCIS also extends on its website an invitation to the public to participate in “outreach” engagement sessions to foster communication between the government and the people (especially USCIS customers as well as the agency’s federal partners) regarding this new change. 

The first “transformation” regulation will officially go into effect on November 28^th.  And the first application to  be converted is the I-539. This form is used to extend visitor visas, student visas and dependent visas such as F-2, H-4, M-2 and L-2 as well as to change to one of these statuses. However, electronic filing will only be available for B, F, J, and M users of the form at first.  The transformation in this instance will enable e-filing for primary benefit seekers and their dependents as well as for attorneys and other accredited representatives.  It will also enable individual accounts to track multiple cases, facilitate electronic payment and evidence submission, and allow for the checking of one’s case status online. 

USCIS then aims in 2012 to enable online applications for those Forms I-102 (replacement of a lost I-94), I-131 (travel documents), I-765(work authorization documents), I-821, and I-824 (consular notification of visa petitions); customers may also have access to electronic fee waivers, as well as automated eligibility reviews through these applications.  Unfortunately the I-129 is not among one of the forms slated for conversion to electronic filing in 2012, however this may be a good thing as USCIS will have a long opportunity to perfect the system with less complicated application before converting the I-129 with all of its intricacies.

For a prototype view of what the new system will look like, click here.

For more information on electronic filing or any other immigration questions, contact Valentine Brown at 215 979 1840 or vbrown@duanemorris.com

The California DREAM Act (AB 130), makes undocumented immigrant college students eligible for previously unavailable privately funded scholarships for attendance at community colleges, state colleges, and public universities in California.. AB 130 passed through  the California Senate in mid-July, and was favored as it would not cost taxpayers anything.  The passage of AB 130 was a major victory for immigrants, as previous versions of the California DREAM Act were approved three times before by the state legislature, but then vetoed by former Governor Arnold Schwarzenegger each time. 

In the latest effort to pass the Act, Assemblyman Gil Cedillo split the measure into two bills, respectively known as AB 130 and AB 131.  Now the latter bill is under consideration, and it is here where the majority of the Act’s weight—and its controversy—truly lies.Specifically, AB 131 would allow undocumented students to access Cal Grants (the state’s financial aid) and would allow these same individuals to qualify for Board of Governors fee waivers at community colleges, which would allow students in low-income families to have their tuition waived.  AB 131 would also allow for undocumented students in the University of California system to gain eligibility for university grants. 

Lawful permanent residents and U.S. citizens would still have priority over undocumented students for Cal Grants under the bill.  Due to the nature of the economy at present, undocumented individuals would likely not see much grant money given their low priority, but the bill’s provision for them still marks an improvement for them regarding student financial rights, especially as these immigrants now have more of a stake in California’s tuition equity.Bills such as AB 131 benefit from a history of prior similar legislation benefiting undocumented aliens.  Specifically, the 2001 state law AB 540 allows students who graduated California high schools to pay in-state tuition regardless of their immigration status. 

Today, undocumented immigrant students still reap the benefits available from AB 540, as over three thousand such individuals are enrolled in the Cal State system with the help from the ten-year old law.  It is the success of such older laws which drive immigrants today to push for other measures such as AB 131, which will extend ever more financial protections for them so that they may build more secure futures for themselves and their families in the United States.

Advocates on the federal level continue to push for the big DREAM Act which would provide undocumented students who graduated from US high schools with a path to legal permanent residence. 

 For more information on  foreign student issues or any other immigration questions, please contact Valentine Brown at vbrown@duanemorris.com.

On August 2nd, USCIS Director Alejandro Mayorkas and Secretary of Homeland Security Janet Napolitano delineated a number of initiative ideas to increase investment and bolster the nation’s economy.  These initiatives aim to streamline visa adjudications for certain categories of immigrant entrepreneurs and to  draw immigrants from around the world to invest their energy, ideas, and talents to work and grow American employment, as well as stimulate entrepreneurship.   

It has been about six months since the inception of Startup America, an initiative executed by the White House to accelerate growth for America’s entrepreneurs.  Startup America serves as one key focus of the President’s Council on Jobs and Competitiveness, which seeks to establish the United States as the primary innovator, competitor, and contributor to the world’s economy.  T USCIS has now contributed the following proposals to the Startup America initiative. Many are in the proposal stage and will be made official USCIS policy sometime in the future. We will keep you updated as the various programs come on line. 

EB-2 National Interest Waivers: First, the national interest waiver for the EB-2 visa (which covers aliens of exceptional ability in the arts, sciences, or business) is accessible now to immigrant entrepreneurs who can show  that their business efforts will be in the United States’ national interest. We will have an upcoming blog post on the details of this change, as it may be very beneficial for many immigrants stuck in EB-3 who would like to start their own businesses. 

H-1Bs for Business Owners: Second, H-1B visas are now being made available to entrepreneurs with an ownership stake in their own companies, if an alien in question can show that his company has an independent right to control its employment.  USCIS has provided updated guidance to all of its Service Centers for adjudication of these types of petitions. We will be keeping you updated as the developments and adjudication trends unfold in the coming months.  

More Access for EB-5 Applicants: Third, USCIS  will be streamlining the EB-5 immigrant investor process by extending the availability of premium processing for EB-5 applications, establishing direct lines of communication between the applicants and USCIS, and providing applicants with an opportunity to speak before a panel of USCIS experts to resolve any issues regarding a given application. There is no time line in place for these improvements. We would not advise any investor to hold their breath, as it could be a while to put these proposals into place.

Premium Processing for Intra-Company Transferee I-140s: Fourth,  USCIS is looking to expand its premium processing service to I-140 petitions for multinational executives and managers.  Premium Processing allows employers to expedite the processing of their petitions as long as there exists no fraud, evidentiary deficiencies, or concerns regarding national security.  Unfortunately, there is no date set yet for the implementation of this service.

Finally, the Office of Public Management plans to hold a series of meetings to field issues of importance for foreign entrepreneurs and start-up companies.  Such meetings will give USCIS information regarding how such groups may be eligible for certain employment-based visa categories.  The first of these meetings was held last week on August 11^th.  In a similar vein, USCIS is hosting Conversations with the Director, which involves a series of small group meetings with Director Mayorkas to discuss important immigration issues pertinent to communities across the United States.  The first of these meetings occurred earlier this week on August 15^th, and addressed economic development and the EB-5 investor program.

For more information on any of these topics, please contact Valentine Brown vbrown@duanemorris.com.

On August 18^th, DHS made public a new interagency process designed to ensure that resources are focused on the current administration’s greatest enforcement priorities.  Involved in the process is the collaboration of DHS and DOJ officers and attorneys, including representatives of DHS and EOIR, as well as the DOJ’s Office of Immigration Litigation, in working together to identify low-priority removal cases that should be considered for an exercise of discretion.  Such review will occur on a case-by-case basis and will take into consideration cases that are at various stages of enforcement proceedings, including charging and hearing phases as well as the period after a final order of removal has been entered.  The DHS-and DOJ-based group will also provide guidance to prevent low-priority cases from entering the system on a case-by-case basis.  Resources conserved through this process will be applied to higher priority removal matters. 

DHS Secretary Janet Napolitano announced the unveiling of the abovementioned process specifically through a letter, dated August 18^th, addressed to Senator Dick Durbin.  Napolitano mentioned that the initiation of this new process was an implementation of ideas asserted in a memorandum of June 17^th prepared by ICE Director John Morton.  This memorandum addressed several factors for ICE agents to consider in deciding whether to exercise prosecutorial discretion, weighing mitigating factors for aliens such as lawful permanent resident status, U.S. military service, and evidence of serious mental or physical disabilities against aggravating factors such as risks to national security, serious felons, and repeat offenders (especially those in an immigration violation context). 

Napolitano added that inspiration for the August 18^th measure also arose from President Obama’s admonishments that it is a waste of resources to enforce against low-priority matters, such as aliens who have been in the United States since their youth and know no other home.  The ideals enacted in this measure ensure that resources are more effectively preserved to enforce against threats to the safety of the American public.  More particularly, through a more proper employment of resources, immigration judges will be able to more swiftly address higher priority immigration matters, and federal enforcement agencies will be able to address border security matters more readily.  On the whole, these recently-enacted measures aim to streamline the prioritization of national security matters so that federal resources may be best used for enforcement against our country’s greatest threats, as well as for protection of those seeking to build a constructive future in the United States.

The cutoff date for EB-2, India, is expected to advance in May 2011. This advancement will occur in the U.S. Department of State (DOS) Visa Bulletin for May 2011. The Visa Bulletin for May 2011 will be published in early to mid April 2011.

Charlie Oppenheim, Chief, Immigrant Visa Control and Reporting Division, U.S. Department of State, informed the American Immigration lawyers Association of a dramatic reduction in the use of EB-1 numbers. He stated:

“[US]CIS says they have seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”

It is impossible to predict just how much advancement there will be, but we will know in mid April. If a priority date becomes current on May 1, 2011, the foreign national may submit his or her I-485 application any time after May 1, 2011 and will be immediately eligible for permanent residence as long as the priority date stays current.

We will keep you updated on any additional developments.

Today USCIS announced that in light of recent complaints regarding changes in adjudication standards with regard to H-1B cap exemptions for  non-profit entities related to institutions of higher education, that it will respect prior cap-exempt designations while it revisits the issue.

In a press release, USCIS stated “Effective immediately, during this interim period USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education – absent any significant change in circumstances or clear error in the prior adjudication – and, therefore, exempt from the H-1B statutory cap. However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education.” 

In order to receive the benefit of the prior determination, H-1B Visa Petitioners should provide USCIS with the following evidence:

• A copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments)
• A copy of the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006,
• Copies of any documentation that was submitted in support of the claimed cap exemption.
• A statement signed by the responsible officer attesting that their organization was approved as cap-exempt since June 6, 2006. 

USCIS emphasizes that these measures will only remain in place until additional guidance to petetitioners can be drafted and disseminated. USCIS promised to engage stakeholders in the process of reviewing current practice and developing new adjudication standards.

Stay tuned for more developments on this important issue.