There’s a big shift that’s taken place with immigration policy with the GOP at the helm in the House; namely John Boehner (R-Ohio) and extremist Steve King (R-Iowa), who will likely chair the House Subcommittee on Immigration.  It has been speculated, in the new Congress, that Lamar Smith (R-TX) the current Ranking Member of the House Judiciary Committee will be named chair of that committee.

House Republications have already said that they will focus on border security and immigration enforcement over any future immigration reform. King favors changes to birthright citizenship to keep US-born children of illegal immigrants from receiving citizenship and argues more states should pass immigration crackdowns like Arizona’s SB 1070.  He has also pushed for more border enforcement and an electrified fence along the border to keep illegal immigrants out and has stated, “We do that with livestock all the time”.  Boehner will set a good deal of the agenda, and is likely to follow some of the plans mentioned in the Pledge to America that was released in September.

This most certainly will be a challenging shift from how current Speaker Nancy Pelosi (D-CA), and how other leading Democrats handled immigration issues.  Particularly, we can expect proposals that increase penalties for immigration-related crimes and make the removal of immigrants with criminal convictions easier.  Add to this the fact that both Smith and King have supported proposals that authorize state and local law enforcement officers to enforce immigration laws; and lastly, it’s been said that we can expect increased scrutiny of DHS enforcement practices by Congress and increases in funding for both border and interior enforcement.

For more on this, we link to the AILA Advocacy article released today.

As reported by AILA (The American Immigration Lawyers Association), the Department of State (DOS) Visa Office has confirmed at the March 24, 2010, AILA/DOS Liaison meeting that the Kentucky Consular Center (KCC) has commenced verification of information contained in nonimmigrant visa petitions received from the USCIS (AILA InfoNet Doc. 10072868). Verification of information includes telephonic contact with petitioners related to factual aspects contained in the petition.

Background:

On November 17, 2007, DOS instructed consular posts that they must verify the details of approved NIV petitions through the Petition Information Management Service (PIMS) via the Consular Consolidated Database (CCD). Consular officers access the details of approved nonimmigrant visa petitions through the CCD in a PIMS report, which links an approved petition to a base petitioner record allowing superior tracking of NIV petitioner and petition information. The electronic PIMS record created by the KCC is the primary source of evidence used by consular officers to determine nonimmigrant visa (NIV) petition approval. In addition to the information submitted by the petitioner on the I-129, many of the PIMS reports also contain information from DOS’ Fraud Prevention Unit (FPU). The FPU performs research on petitioners, and as part of a pilot project, the FPU, on a random basis, verifies factual aspects related to the beneficiaries and their proposed U.S. employment.

Petitioner Reviews:

AILA has been advised that lack of information on the petitioner in the USCIS Computer Linked Information Management System (CLAIMS) system has resulted in DOS’ decision to create a base petitioner record as part of the PIMS report for all first time petitioners. To create this base petitioner record, the KCC verifies petitioner information contained in the petition including, but not limited to, review of the company website, company contact information, and use of Google earth to confirm that an office exists in an appropriate physical location. Once the base petitioner record is complete, the KCC will not normally re-verify the petitioner information for two years.

Beneficiary Reviews:

The DOS has also informed the AILA DOS Liaison Committee that the KCC has initiated a pilot program for verifying information related to beneficiaries and proposed U.S. employment. These checks are completed at random and are primarily completed through telephonic contact with petitioners. The telephonic contact by KCC is unannounced and should be anticipated to occur shortly after the petition is transferred to the KCC from the USCIS.

Once the review is completed, the findings of the beneficiary review are normally finalized within two days and available to consular officers. Consular officers are instructed to review the report, question the beneficiary regarding any discrepancies, and request that the KCC correct any information if a finding was in error. If the discrepancies were not in error, the consular officer will provide additional information to the KCC to update their report to include any additional incriminating evidence discovered during the course of the nonimmigrant visa interview.

The FPU has designated 15 contractors who have been authorized by the DOS to conduct these telephonic beneficiary reviews with petitioners. These contractors are authorized to contact the Petitioner and may request to speak to an authorized official. They will then ask a series of questions verifying certain information contained in the approved nonimmigrant visa petitions.

These include, but are not limited to:

1. Whether the petitioner, in fact, submitted the petition;

2. When was the petitioner incorporated

3. Where was the physical location of the petitioner

4. Number of employees

5. Names of shareholders

6. Location of Attorney of Record

7. General information regarding the petitioner’s operations and business plan

We’d like to provide employers with the following information and tips in handling these inquiries:

Request the name of the KCC contractor and confirm the credentials of the contractor with the KCC [(606) 526-7500] prior to providing any information.

1. Contact our office to advise us of the telephonic contact by the KCC contractor.
2. Do not speak with government agents or contractors without a witness present.  Both the witness and the interviewee should prepare notes of what questions were asked and label them “Privileged and Confidential/Prepared at the Direction of Counsel,” and submit them to our office for review and retention.
3. Retain complete copies of your I-129 petitions and supporting documents in a confidential file maintained by the designated company official for easy access during a contractor call.
4. Never guess at the answer to a question about the petition.  If the employer is unsure about some requested information, the employer should indicate that he/she will follow up with the KCC contractor to provide accurate information after such information is obtained.

Employers are reminded that the investigations conducted by the KCC are separate and apart from the investigations conducted by the Fraud Detection and National Security Unit (FDNS) of the Department of Homeland Security (DHS).  DHS will continue to conduct its own fraud investigations using the FDNS unit.  FDNS conducts site visits of petitioning employers in an effort to combat fraudulent petitions.  Employers are reminded to contact our office if they receive a site visit from a Department of Homeland Security contractor.

The Obama Administration is considering ways that it could act without Congressional approval  – some options to provide immigration relief, should comprehensive immigration reform legislation not pass.

In an internal memo to Alejandro N. Mayorkas, the Director of USCIS, from the Offices of Chief Counsel and Policy and Strategy lay out some suggestions that USCIS might undertake within the current structure of the law without having to wait for Congress to pass legislation. Some of the key suggestions include the following:

1. Provide work authorization for H-4 dependent spouses if the H-1 applicant has an application for permanent residence and has extended beyond the 6 year limit. Currently H-4 dependents have to wait for the filing of an I-485 application to get work authorization, however, that can’t be done unless the priority date is current.

2. Expand the ‘dual intent” doctrine to non-immigrants such as TN’s, F-1, O and P and E visa holders. This could be especially helpful for applicants in TN status (such as registered nurses) who have delayed filing an I-140 petition because of concerns about traveling since TN is not currently a “dual intent” status.

3. Create a grace period ranging from 45 to 90 days for most of the non-immigrant categories. This would be especially helpful for H-1B applicants who wish to do an H-1B transfer if they lose a job and soon find a new job.  Currentf law holds the person to be “out of status” and subjects the H-1B applicant to returning to their home country to get a new visa stamped.

4. Eliminate unlawful presence (3 year and 10 year bar) for adjustment of status applicants. This would allow applicants who are subject to the bar on re-entry to freely travel and re-enter the U.S. to resume their application.

5. Expand premium processing to all employment-based cases. USCIS noted that they do not have a current backlog in cases so they are equipped to expand their premium processing unit.

6. Utilize deferred inspection to applicants whose removal is not in the public interest. This allows a “stay” in the U.S. to buy time for the applicant to have some form of legislative relief in the future.

7. Expand the EB-5 investor visa program. This program provides permanent residence to foreign nationals who invest in a U.S. business that creates at least 10 jobs, however, the program has been underutilized. The USCIS views this program as an important tool to revitalize the U.S. economy.

8. Extend work authorization on EADs when an extension is filed. This would allow automatic 240-day work authorization for an applicant who files an EAD extension before the current one expires. Currently the renewed EAD must be approved by the time the current one expires for the foreign national to continue to lawfully work.

USCIS believes these options are immediately at their disposal or can be quickly implemented through notice in the Federal Register based upon current authority. There is no word yet whether USCIS will implement these suggestions.

Supporters of comprehensive immigration reform are certain to welcome any effort by the Obama administration to unilaterally open pathways to citizenship for many currently in the country illegally. But the draft is also sure to outrage immigration-restriction groups.

Christopher Bentley, a USCIS spokesperson, said that internal memos help the agency “do the thinking that leads to important changes; some of them are adopted and others are rejected” and that “nobody should mistake deliberation and exchange of ideas for final decisions.”

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DHS finalized a regulation that provides greater flexibility for employers to electronically sign and store I-9 forms, which are used by U.S. Immigration and Customs Enforcement (ICE) to verify employment eligibility-eliminating the need for paper filing and streamlining efforts to ensure a legal workforce nationwide.

Employers—who complete and retain the Form I-9 (Employment Eligibility Verification)—may sign the form electronically and retain the form in an electronic format.

More in the final rule:

1)  DHS will allow competing paper and electronic systems:  This clarifies that an employer moving to an electronic system need not create digital images/data related to historical paper forms. However, from some employer’s perspective monitoring two distinct verification systems for compliance may be too difficult a logistical challenge. These particular employers have elected to go entirely electronic to take advantage of the ability to monitor compliance and provide for electronic reminders. We strongly recommend that employers should continue to approach converting paper I-9s to electronic images very carefully, first discussing the benefits as well as the concerns (in particular audit related and privilege issues) with their immigration attorneys.

2)  The final rule reaffirms that employers will not be required to use a specific technology to complete and store I-9 information, so long as the system they use ensures accessibility and they are able to produce a reasonable facsimile or copy of the I-9.

3)  The final rule will also relax the audit trail requirement from the interim rule so that employers no longer have to keep records of when the information is accessed or viewed. Instead, an audit trail will only need to include information on the the initial completion and any subsequent modification to the I-9.

4)  The final rule will also relax the interim rule’s requirement to provide a transaction record to the employee at the time the electronic I-9 is created. Under the rule to be published tomorrow, the employer may “provide or transmit a confirmation of the transaction only if an employee requests it . . . within a reasonable period of time.” Finally, the final rule will remove the mandate that the electronic storage system be searchable “by any data element,” requiring only an indexing system that “permits the identification and retrieval for viewing or reproducing of relevant documents and records maintained in an electronic storage system.”

5) Indexing does not require all fields:   The final rule identifies that not all of the “data element(s)” must be searchable, but that the system must provide a sense of “searchability” consistent with the amended 8 CFR Sec. 274a.2(e)(6).

More information about I-9 forms and Employment Eligibility Verification is available on the U.S. Citizenship and Immigration Services website at www.uscis.gov/I-9.

For further guidance on the electronic signing and storage of the I-9, and the changes to the current regulations to assist businesses in complying with the requirements of the law, please visit www.ice.gov or view the Federal Register at www.gpoaccess.gov.

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What can Immigration Solution do for you?

Our firm’s years of experience and knowledge with employer compliance and worksite enforcement issues can assist your business in offsetting the extent of sanctions and other ICE enforcement threats.  Because of this, employer compliance is becoming more complex and enforcement (investigations and audits) is increasing.

In order to effectively deal with these issues and avoid the very severe consequences for non-compliance, employers must take the time to develop a strategy and be prepared in advance with an Immigration Compliance Program. Immigration Solutions has created a package of services and solutions to assist you with your compliance procedures that can be tailored to your specific needs and concerns.  Contact our office should you wish to discuss your audit, training and compliance needs.

At a time when the prospects for immigration overhaul seem most dim, supporters have unleashed a secret weapon: a group of influential evangelical Christian leaders.

For more on this, read the story.

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If this is your first time visiting us, Immigration Solutions provides US and global visa services to individuals and employers throughout the USA and abroad.  We specialize in business immigration and have a depth of experience in the IT, healthcare, arts & entertainment sectors, amongst others.  We additionally provide employer compliance consulting services on proper I-9 (Employment Eligibility Verification) auditing, training, and work with our clients to develop compliant immigration policies and procedures.  We offer these services, as well, to government contractors and advise on FAR E-Verify enrollment and compliance issues.

You can access the Immigration Solutions free monthly news and podcast for July 2010 here.

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As reported by the Legal Action Center (AILA).  Broadgate et al. v. USCIS et al., No. 1:10cv00941 (D.C.D. filed June 8, 2010)

Three employers (software developers and IT services firms) and two not-for-profit trade associations are challenging the Neufeld memo in federal district court. The plaintiffs allege that USCIS issued the memo in violation of the Administrative Procedure Act’s notice and comment requirements; that USCIS failed to perform a Regulatory Flexibility Act analysis; that the memo is inconsistent with existing regulations addressing the employee-employer relationship and the term “contractor” and conflicts with the plain language of the INA; and that it is arbitrary and capricious. Plaintiffs ask the court to preliminarily and permanently enjoin USCIS from implementing the memo.

AILA sent a detailed letter to USCIS Chief Council, Roxana Bacon, in which it expressed concern about the substance of the January 8, 2010 H-1B memo and noted that its issuance was in violation of the Administrative Procedures Act’s notice and comment requirements. The letter primarily focuses on recent USCIS decisions that unlawfully find that individuals with controlling or substantial interests in a petitioning U.S. company or its foreign parent company cannot — in most cases — be a beneficiary of a nonimmigrant or immigrant employment-based petition.

We will continue to keep you posted on this topic.

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USCIS Proposes Fee Increase

USCIS has published a Proposed Rule in the Federal Register to increase immigration fees.  The cost of applying for a green card will increase from $930 to $985.  The application fee for a family petition (I-130) will be $420, up from $355.  The cost of an I-140 employment-based petition will rise over $100 and premium processing fees will increase by 22.5%.  The application for employment authorization would increase to $380 from $340. A separate fee for fingerprints and other biometrics with many applications would increase to $85 from $80.  Among several new fees, officials said, will be a $6,230 charge for foreigners proposing to invest $500,000 or more in businesses to create jobs in the United States.

The NY Times reports that Alejandro Mayorkas, director of  USCIS, said the fee increase was necessary because declining applications for documents in the past two years had lowered revenues and left his agency — which is 90% financed by fees — with a budget shortfall of about $200 million for the coming fiscal year.

The increases come as Congress has put off immigration legislation and an Arizona law that makes it a state crime to be in the country illegally goes into effect July 29.

The timing makes Clarissa Martinez wonder what message the fee increases sends to immigrants trying to take a legal path into the country.  “It begs the question of Congress: If we want these people to take these steps, we have to make sure that we’re not pricing them out of their reach,” said Martinez, director of immigration and national campaigns for the National Council of La Raza, a Hispanic civil rights group.

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Partisan haranguing took place yesterday with the Senate Democrats’ release of their version of a 26-page comprehensive immigration reform Draft for overhauling the nation’s immigration laws entitled “Conceptual Proposal for Immigration Reform“.  The Republicans immediately attacked it and criticized the Democrats for taking a partisan approach.

The draft includes a proposal to create a process to legalize an estimated 12 million undocumented immigrants in the United States and overhaul U.S. visa programs to bring foreign workers into the country to meet business needs. It also calls for a new visa class specifically for provisional workers.

Meanwhile, White House Press Secretary Robert Gibbs said the president telephoned some Republican senators this week to ask them to support immigration reform. The calls were to keep a promise he made to Sen. Lindsey Graham, R-S.C, stating “We are going to need both Republicans and Democrats”.  However, Democratic leaders appear increasingly to be laying the groundwork to bring an all-Democratic immigration reform bill to the Senate floor.

Rep. Sheila Jackson Lee, D-Texas, said lawmakers will not be intimidated by Graham’s threats to walk away from negotiating other legislation if immigration reform advances.

“I will say to him, ‘So what?’ ” she said. “We will not be intimidated by you.”

As we’ve all expected, the stage is set for quite a dramatic and compelling uphill road where immigration reform is concerned.  We will continue to report on this regularly.

President Obama on Friday strongly criticized restrictive immigration legislation pending in Arizona, calling for a federal overhaul of the nation’s laws instead.

Speaking at a naturalization ceremony for 24 active duty service members in the Rose Garden, Obama said that failure to enact immigration reforms would open the door to “irresponsibility by others. That includes, for example, the recent efforts in Arizona, which threaten to undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and their communities that is so crucial to keeping us safe,” Obama said.

Arizona Gov. Jan Brewer, who faces a tough election battle and growing anger in the state over illegal immigrants, scheduled an afternoon news conference Friday to announce her decision.

The sweeping measure would make it a crime under state law to be in the country illegally. It would also require local police officers to question people about their immigration status if there is reason to suspect they are in the country illegally.

Obama indicated that he is monitoring the Arizona bill for civil rights and other implications, and said,  “If we continue to fail to act at a federal level, we will continue to see misguided efforts opening up around the country.”

Arizona has an estimated 460,000 illegal immigrants and is the state with the most illegal border crossings, with the harsh, remote desert serving as the gateway for thousands of Mexicans and Central Americans.

Unfortunately — in the President’s remarks, he didn’t offer a timetable for trying to pursue an overhaul of immigration laws in Congress.  Earlier this month, the Senate majority leader, Harry Reid, retreated from a promise he made to those attending an immigration rally in Las Vegas, where he had suggested Congress would start work on an immigration overhaul soon. Within days of the rally, he indicated that the Senate wouldn’t be able to take up the issue during the calendar period extending until the Memorial Day break. And it may even be a longer wait for advocates, because Congress will be tied up this summer with a Supreme Court confirmation battle heading into the midterm election cycle.

How much longer? — is the question being asked ….

For more on this

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Immigration Impact Reports

The positive impact of Sunday’s rally on the mall for immigration reform is already in evidence.  Yesterday, after months of pressure, Senators Schumer and Graham finally released their blueprint for immigration reform and President Obama immediately pledged to help push bipartisan legislation forward. Next was Senator Reid who promised to make time for legislation on the floor this year and Senator Leahy also pledging his support. It’s hardly a coincidence that these statements all came days before the rally, which organizers predict will bring tens of thousands of people to Washington for an interfaith prayer service, three hours of speeches, and a peaceful march for change.

Cynics may ponder whether these are simply more empty promises, but that would ignore just how hard it is to get commitments from politicians on anything relating to immigration. The prospect of thousands of people calling you out on national TV has a way of focusing the political mind.

Immigration Solutions will re-visit this topic on Sunday.

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