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Immigration Compliance Group - 2011 Newsletter

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In This Issue

Article One	- What's New with Immigration Reform
Article Two	- Immigration Updates
Article Three	- Other News Bytes

WHAT'S NEW WITH IMMIGRATION REFORM

Frustration Mounting

We desperately need a new paradigm to move Congress to take on immigration reform and fix a system that is stuck in the Dark Ages. President Obama must be bold and lead the way. Pressure is being asserted on him and his Administration to use the power of the executive branch to prevent or defer removals, to revisit current policies and priorities, and to interpret the law as compassionately as possible.

The Immigration Policy Center Reports that the specific requests vary greatly. Senators Richard Durbin (D-IL) and Richard Lugar (R-IN), for instance, last year asked the Department of Homeland Security (DHS) to defer the removal of young people who qualified for legal permanent residence until such time as their legislation, the DREAM Act, became law. In April 2011, nineteen Democratic and Independent U.S. Senators, including Senators Harry Reid (D-NV), Richard Durbin (D-IL), and Kristin Gillibrand (D-NY) reiterated the call to stop the removal of all students who meet the strict requirements of the DREAM Act. While the DREAM Act is frequently invoked, many community groups have also called for exercising prosecutorial discretion in individual cases by declining to put people in removal proceedings, terminating proceedings, or stopping removals in cases where people have longstanding ties to the community, U.S. citizen family members, or other characteristics that merit a favorable exercise of discretion.

What is perhaps most troubling is the apparent disconnect between the President's vision of immigration as a means to "winning the future" and the practical realities of administering the current immigration system. As the Immigration Policy Center has repeatedly documented, there are numerous institutional and structural barriers to immigration reform, but it has never been the case that all reform requires legislative action.

President Obama's insistence that his "hands are tied" by Congressional inaction on immigration has raised questions about how much executive power the President has when it comes to immigration. To this end, top immigration law experts, including former counsels to the agencies that manage immigration, have drafted a legal memo outlining the scope of executive branch authority and examples of its use in the immigration context. Through the exercise of prosecutorial discretion, deferred action, deferred enforced departure, humanitarian parole, and other administrative tools, Presidents have repeatedly shaped the direction of immigration policy-even when the laws are less than favorable.

"Democracy is hard," stated President Obama - well, so is leadership. We need the President to show more leadership on this issue with renewed dedication and commitment of purpose; we're struggling miserably on the immigration front, and need him to make the hard decision to use his executive branch authority that is a part of the democratic process. Countless recommendations exist and are set forth in the above-referenced Memo that merits further serious consideration.

For more on this:

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IMMIGRATION UPDATES

The DHS Spending Bill: Show me the Money!

It is not a surprise to see where the priorities are in the spending bill making its way through the House of Representatives at this time. The House Appropriations Committee passed a Bill last week that will go to the floor of the House possibly this week. We highlight the money trail here:

USCIS: Approximately 1/3 of the requested funding was approved

Fee Reform : The Administration's fee reform effort would receive no funding. The Administration requested $207 million for the processing of refugee and asylum applications, for which there is no charge.
Immigrant Integration: The Administration requested $19.75 million for immigrant integration programs and for the operations of the Office of Citizenship. The Committee rejected the request. In its report on the Bill, the Committee noted that it "supports the efforts of the Office of Citizenship to promote civic education through the naturalization process." Not, apparently, enough to provide funding for this purpose.

Enforcement

While the Committee couldn't find any money for immigrant integration, costs concerns were not a factor in enforcement budgets. Customs and Border Protection got $8.77 billion-$44 million more than the President asked for in his budget, and more than half a billion dollars more than allocated in FY 2011. Within that amount, border security between ports of entry gets $3.62 billion, $191 million more than last year-enough to bring the Border Patrol up to 21,370 agents.

ICE was allocated $5.5 billion, $25.6 million more than the President requested and $84.8 million more than in 2011. Secure Communities got $194 million, $10 million more than the President requested. ICE Detention and Removal operations were awarded $2.75 billion, $26.7 million more than the President asked for, to raise the minimum number of detention bed spaces that ICE must maintain on a daily basis from 33,400 bed spaces to 34,000-and the Committee directs ICE "to intensify its enforcement efforts and fully utilize these resources."

As part of his enforcement-only agenda, Representative Lamar Smith (R-TX) is expected to introduce a bill that would make the use of the E-Verify electronic work authorization verification system mandatory for all businesses in the U.S.

There is still no sign that Republicans who now control the Judiciary Committee (having jurisdiction over immigration) will attempt to seriously address any legal or illegal immigration reform to fix the broken system. Despite billions of dollars being spent on immigration enforcement, and enforcement "benchmarks" set in the last round of immigration reform, legislative efforts having been largely met, the Republicans continue to call for yet more enforcement. They continue to move the goalpost.

For more information on this subject, we link to, "E-Verify without Reform Cannot Succeed," and listen to a recording of a National Immigration Forum briefing for reporters on the E-Verify program. See the USCIS Transformation: Proposed Rule for Mandatory E-Filing.

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The H-1B Visa's Fall from Grace

This is an insightful article published by Forbes that addresses why tech companies are sending fewer employees to the US

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The H-1B 2012 Cap and the H-1B Visa in a Nutshell

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ICE announces expanded list of STEM (science, technology, engineering, and math) degree programs

ICE) announced on 5/12/2011 an expanded list of science, technology, engineering, and math (STEM) degree programs that qualify eligible graduates on student visas for an Optional Practical Training (OPT) extension. The new list of acceptable degree programs eligible for OPT extension includes more than 30 new fields. This list includes: environmental science, pharmaceutics and drug design, neuroscience, mathematics and computer science, medical informatics, and other previously omitted programs. This revision of the list of the designated degree programs significantly increases the number of students who may benefit from additional practical experience in the United States after the completion of their study.

Under the OPT program, foreign students who graduate from U.S. colleges and universities are able to remain in the U.S. and receive training through work experience for up to 12 months. Students who graduate with one of the newly-expanded STEM degrees can remain for an additional 17 months on an OPT STEM extension.

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USCIS Centralizes Filing of Form I-130 petition - to take effect August 15, 2011

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USCIS Ombudsman Shares Concerns with the VIBE Program

The CIS Ombudsman's report provided an update and voiced some concerns regarding the Validation Instrument for Business Enterprises (VIBE) tool. VIBE is intended to assist USCIS with verifying the information on businesses provided by the employers filing immigration-related petitions.

When adjudicating employment-based visa petitions, USCIS relies, in part, on information submitted by the petitioning employer to determine eligibility for petition approval. The VIBE program is intended to allow adjudicators to verify the accuracy of the employer's information through comparison with data commercially available, such as Dun & Bradstreet. The information accessible to the Immigration Services Officer (ISO) through the VIBE program includes: company ownership and legal status, number of employees, financial standing, date of establishment, and physical address.

The Ombudsman's report stated that they are receiving feedback on the increased issuance of RFEs, as well as notices of intent to deny (NOIDs) for businesses that operate under trade names (DBA's) that are not registered and employers who use mailing addresses on their immigration petitions that differ from their official business addresses of record.

The Ombudsman's office is working with USCIS to resolve these matters. Employers need to be aware of the use of VIBE and should make sure that their business records are up to-date, including the registration of any trade name/s or EIN #s that correctly reflect your trade name and address.

At this time, almost all immigrant and nonimmigrant employment-based classifications are included in the VIBE program. Those not covered are petitions requesting EB1, Extraordinary Ability; EB2, National Interest Waiver; EB5, Immigrant Investors; and nonimmigrant P and O classifications.

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USCIS Launches Citizenship Public Education and Awareness Initiative

The initiative will run during the summer across the country on more than 250 radio stations, 400 websites, and through national and local print advertisements, in this first phase of a planned multi-year effort. Messages will run in Spanish, English, Chinese and Vietnamese - languages spoken in the top 10 countries of origin for permanent residents. Nearly 8 million permanent residents are currently eligible to apply for citizenship and most reside in California, New York, Texas and Florida.

The initiative will promote awareness of the rights, responsibilities, and importance of United States citizenship, and the free resources available to permanent residents and immigrant-serving organizations. Immigrants will be invited to learn more about citizenship and direct them to the USCIS Citizenship Resource Center, a one-stop web portal offering free educational tools to support immigrants and immigrant-serving organizations.

We link to CIS Live Streaming.

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Questions about Same or Similar Occupational Classifications under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21)

USCIS released Q&A April 2011 providing further guidance and analysis concerning the "same or similar occupational classification" as used in the American Competitiveness in the Twenty-First Century Act of October 2000 (AC21). The job flexibility provisions referred to as the AC21 adjustment-of-status (AOS), or I-485, portability are important to many and often extremely confusing to interpret.

This section of law allows certain aliens to change or port the offer of employment on which their adjustment of status application (green-card) is based from one job to another job as long as both jobs are in the same or similar occupational classification

The Q&A clarifies that the USCIS will not focus on whether the change in position is a promotion, demotion, or a lateral move. When USCIS officers decide if two jobs are similar enough to qualify for portability under AC21, they consider the following:

Job duties of both positions
SOC codes
They look at the wages associated with each position

The Q&A states that the USCIS officers look at the totality of the circumstances when making the decision regarding AC21 eligibility. As explained in the USCIS answer to Question #3 in the Q&A, the analysis is not a simple comparison of SOC codes. It is not a requirement that certain digits in the codes match each other. The job duties need to be reviewed in addition to the codes.

The Q&A emphasizes that the USCIS has instructed its officers to consider substantial discrepancies in the wages of the two positions as a factor in deciding whether to deny a pending I-485 application as not qualifying for AC21 portability.

When portability is requested prior to I-140 approval, USCIS is within their right to review the I-140 for whether it was approvable at the time of filing. If it was not approvable at the time of filing, the I-140 and I-485s can both be denied, even after portability to a "same or similar" position.

It is our continued recommendation that clients do not attempt portability based on a pending I-140 Petition. We recommend using AC21 portability only when an I-140 has been approved and I-485 applications have been pending for at least 180 days.

Should you have questions whether or not you qualify for AC 21 portability, please call our office to discuss further.

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When will Kumar Get his Green-card

An Animated version of Presenting PERM Labor Certification to a Client

…Sound Familiar?!

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Family-Based Visa Retrogression: What is it and what is the Impact?

On March 15, 2011, the USCIS Ombudsman hosted a teleconference that featured an interview with two U.S. Department of State (DOS) officials, Charlie Oppenheim of the Visa Office (VO), and Andrew Hayden of the National Visa Center (NVC), while USCIS officials listened in on the call. The VO is responsible for publishing the monthly Visa Bulletin. The NVC collects immigrant visa application forms, Affidavits of Support, and fee payments for U.S. Embassies and Consulates.

Retrogression occurs when the cut-off dates that determine visa availability move backward instead of forward. The cut-off dates for nearly all family preference categories and nearly all countries retrogressed significantly in January 2011.

At the beginning of each month, each consular office reports the total number of documentarily qualified immigrant visa applicants to the VO. Documentarily qualified applicants are those individuals who have obtained all documents required to meet the formal visa application requirements as specified by their consular office, and, for those applicants, the consular office has completed the necessary processing procedures.

For more, we link here

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OTHER NEWS BYTES

2012 Physical Therapist NPTE Testing Dates are as Follows

Here is the schedule for the administration of the PT National Physical Therapy Exams in 2012:

January 30, 2012
March 29, 2012
July 2, 2012
July 31, 2012
October 23, 2012

The Department of State has updated the Foreign Affairs Manual (AM) to reflect the fact that B1/B2 applicants ought to be given visas to come to the US to take the NPTE exam. Therefore, those of you who have previously been denied visitor visas for this reason should reapply for a B1/B2 interview.

Applicants will still need to prove non-immigrant intent, i.e. that the applicant maintains a non-US residency and intends to leave the US at the conclusion of their visit to the US. Failure to prove nonimmigrant intent remains a valid reason for the Consular/Embassy official to deny the B1/B2 application.

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USCIS Launches I-9 Central

USCIS has launched I-9 Central, a new online resource center dedicated to the #1 accessed form on USCIS.gov: Form I-9, Employee Eligibility Verification. This free, easy to-use website provides employers and employees simple one-click access to resources, tips and guidance to correctly complete Form I-9 and better understand the Form I-9 process.

We also recommend the Immigration Compliance Group Employer Resource Center at:

www.I-9Audits.com

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As always, we welcome your feedback. If you are interested in becoming an Immigration Compliance Group client, please call our office at 562 612.3996 or email info@immigrationcompliancegroup.com, and request a consultation. We handle a broad range of business related immigration matters and have an active employer compliance practice and consult on proper I-9 Form best practices, auditing, training, and work with our clients to develop compliant immigration policies and procedures.

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Why Work with Immigration Compliance Group?

Immigration Compliance Group provides employer compliance consulting services on proper I-9 (Employment Eligibility Verification) management, auditing and training. We regularly represent clients from all industries in developing effective I-9 policies and compliance programs that illustrate good faith attempts to comply with all relevant immigration laws and instill a climate of corporate compliance, before one of the five government agencies involved with enforcement knocks on your door. We additionally specialize in complex business visas for investors, multinational managers, specialized professionals and outstanding individuals in the areas of Information Technology, Healthcare, Arts and Entertainment, amongst most other industries.