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Apr 12, 2011

Immigration Inbox: News You Can Use - April 2011

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U.S. Immigration

1. USCIS Issues Work Authorization and Advance Parole on Single Card for Adjustment Applicants
2. Export Controls Attestation Requirement Started February 2011
3. USCIS Director Mayorkas Discusses Goals for 2011; VIBE System Introduced
4. USCIS Proposes Rule on Registration Requirement for H-1B Petitioners
5. DOS Releases New Guidance on L Visas, Specialized Knowledge
6. New Mumbai U.S. Consulate To Open Later in 2011; H and L Interviews Limited in Meantime
7. Obama Won’t Support DOMA in Court Challenges: Business Immigration Implications
8. USCIS Announces Relief for Japanese, Pacific Nationals Stranded in U.S. Following Quake, Tsunami

Seyfarth Workforce Authorization Team (SWATeam)

1. Labor Dept. Board Rules Against Company for Failing to Pay H-1B Worker for Travel Time
2. E-Verify Self-Check Going Live in March
3. DOL Posts New FAQ for H-1B, H-1B1, E-3 Programs; Releases New Data

U.S. Immigration

1. USCIS Issues Work Authorization and Advance Parole on Single Card for Adjustment Applicants 

U.S. Citizenship and Immigration Services (USCIS) announced that it is now issuing employment and travel authorization on a single card for certain applicants filing an Application to Register Permanent Residence or Adjust Status (Form I-485). USCIS said the new card “represents a significant improvement from the current practice of issuing paper Advance Parole documents.”

The card appears similar to the current Employment Authorization Document (EAD) but includes text that reads, “Serves as I-512 Advance Parole.” A card with this text serves as both an employment authorization and advance parole document.

An applicant may receive this card when he or she files an Application for Employment Authorization (Form I-765) and an Application for Travel Document (Form I-131) concurrently with or after filing the I-485. USCIS said it will continue to issue separate EAD and advance parole documents when warranted. Employers may accept the new card as a List A document when completing the Employment Eligibility Verification (Form I-9).

USCIS noted that, as with the current advance parole document, obtaining the combined card allows an adjustment applicant to travel abroad and return to the U.S. without abandoning the pending adjustment application. Upon returning to the U.S., the applicant must present the card to request parole through the port-of-entry, and the decision to parole the individual is made at the port-of-entry. Those who have been unlawfully present in the U.S. and subsequently depart and seek re-entry through a grant of parole may be inadmissible and ineligible to adjust their status, USCIS warned.

The USCIS notice, released on February 11, 2011, is available here.

2. Export Controls Attestation Requirement Started February 2011

As of February 20, 2011, employers must fill out the export controls attestation in Part 6 of the new edition of the Petition for a Nonimmigrant Worker (Form I-129). The form is used to file nonimmigrant petitions for employees in categories such as H-1B, L-1 and O-1. The new edition has a revision date of November 23, 2010.

The employer must certify, with respect to any technology to which the employee will have access on the job, that a license from the Departments of Commerce or State is not required to release the technology to the foreign national (or, in the rare case that a license is required, the employer will restrict the beneficiary’s access to the technology until a license is obtained). To properly complete the new I-129 form, an employer must first classify the technology or technical data that will be released to or be accessed by a prospective foreign national employee to determine whether an export license may be required.

3. USCIS Director Mayorkas Discusses Goals for 2011; VIBE System Introduced

On February 17, 2011, Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services (USCIS), held a press conference at which he discussed the agency’s goals for 2011 and a policy review already underway. The agency’s goals and planned activities for 2011 include, among others:

  • Piloting the Validation Instrument for Business Enterprises (VIBE) tool, which uses commercially available information from Dun & Bradstreet to validate evidence submitted by companies petitioning to employ a foreign worker in the U.S.
  • Promoting consistency in the administration of immigration laws and adjudication policies as part of a comprehensive policy review, and updating policies where necessary
  • Issuing precedent decisions from the Administrative Appeals Office on a regular basis
  • Combating fraud, including the unauthorized practice of law
  • Expanding outreach efforts for E-Verify, which is currently expanding at a rate of approximately 1,300 new employers per week

USCIS has introduced the VIBE system. USCIS promised that it will give employers an opportunity to respond when the VIBE system leads to agency concerns regarding the business. In light of VIBE’s broad impact and the processing delays that may result, Seyfarth recommends that employers check the information contained on their D&B profile, verify that the information is current and accurate, and contact D&B to correct any mistakes.

The transcript of the press conference is available here.

Seyfarth’s One Minute Memo discussing VIBE can be found here.

4. USCIS Proposes Rule on Registration Requirement for H-1B Petitioners

The Department of Homeland Security has proposed to amend its regulations on petitions filed on behalf of H-1B workers . The rule proposes to require employers seeking to petition for H-1B cap-subject workers to first file electronic registrations with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period.

USCIS estimated that the proposed rule could save U.S. businesses more than $23 million over the next 10 years by minimizing administrative burdens and related expenses. The agency said the registration system would save employers the effort and expense of filing H-1B petitions, as well as labor condition applications, for workers who would be unable to obtain visas under the statutory cap. USCIS estimated that the registration process would take 30 minutes to complete.

Under the proposed rule, if USCIS anticipates that the H-1B cap will not be reached by the first day upon which H-1B petitions may be filed for a particular fiscal year, USCIS would notify all registered employers that they are eligible to file H-1B petitions on behalf of the beneficiaries named in the selected registrations. USCIS would continue to accept and select registrations until the H-1B cap is reached. On the other hand, if USCIS anticipates that the H-1B cap will be reached by the first day upon which H-1B petitions may be filed for a particular fiscal year, USCIS would close the registration before such date and randomly select a sufficient number of timely filed registrations to meet the applicable cap.

USCIS proposes to allow only those petitioners whose registrations are randomly selected to file H-1B petitions for the cap-subject prospective worker named in the registration. USCIS would create a waitlist containing some or all of the remaining registrations, based on USCIS statistical estimates of how many more registrations may be needed to fill the caps should the initial pool of selected registrations fall short. USCIS would notify the employers of those registrations placed on the waitlist when and if they are eligible to file an H-1B petition. Employers whose registrations were neither randomly selected to file petitions nor placed on the waitlist would receive notification that they were not selected to file petitions in that fiscal year.

Written comments must be submitted by May 2, 2011. This means that the final rule will not take effect until the 2012 H-1B filing season at the earliest.

The proposed rule is available here.

The USCIS announcement is available here.

A related fact sheet is available here.

5. DOS Releases New Guidance on L Visas, Specialized Knowledge

The Department of State (DOS) released a new cable in January to all diplomatic and consular posts on guidelines for L visa adjudications, particularly in regard to evaluating claims of “specialized knowledge.” DOS noted “concern about the potential for inconsistent adjudicatory standards at different constituent posts,” and said that “clear standards would allow for more consistent adjudication.” The cable adds, however, that “[u]nfortunately, the statutory language defining ‘specialized knowledge’ is not simple or clear.”

The cable notes that a worker is considered to be serving in a capacity involving specialized knowledge with respect to a company if he or she “has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.” The cable acknowledges that the definition contains undefined terms and elements of circular reasoning.

Given the lack of statutory clarity, the cable notes that determinations of specialized knowledge often depend on the consular officer’s expertise on a case-by-case basis. The cable, which outlines criteria that posts may use in making such adjudications, is available here.

6. New Mumbai U.S. Consulate To Open Later in 2011; H and L Interviews Limited in Meantime

A new U.S. Consulate is being constructed for Mumbai and is scheduled to open later in 2011. No new H and L appointments are being made at the current Mumbai Consulate, which has limited interview capabilities due to aging infrastructure. New H and L interviews may be scheduled at other U.S. Consulates in India or at the U.S. Embassy in New Delhi.

For more information, see here.

7. Obama Won’t Support DOMA in Court Challenges: Business Immigration Implications

The Justice Department announced in February that based in part on the recommendation of Attorney General Eric Holder, President Barack Obama has determined that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional and will no longer defend it in court.

Many people in same-sex marriages file business immigration applications because they have no alternative. Their applications may be backlogged due to numerical limitations. This issue is also important from a business immigration perspective because many beneficiaries of both I-140 immigrant visa petitions and nonimmigrant visa petitions may be in same-sex marriages that have been legally recognized in other countries and some states within the U.S., but they cannot avail of derivative status, such as H-4 or L-2 (which also carries with it work authorization privileges) or even derivatively obtain permanent residence with the principal.

Such people, along with their employers, should be advised about the paradigm shift in the administration’s position on DOMA, and the potential to challenge existing Department of Homeland Security (DHS) policy in litigation, which the Department of Justice will no longer oppose. Even if an affected individual chooses not to litigate, it is expected that someone will eventually challenge DHS policy, and if it succeeds it will benefit everyone in the same situation.

On the other hand, given the uncertainty regarding the timing and nature of final judicial action on this subject, it would be extremely risky for same-sex married couples to affirmatively seek immigration benefits in reliance on this announcement. It could even be risky for same-sex couples to marry in reliance on the announcement, if the current status of one of the spouses depends on showing a foreign residence and no intent to abandon it (such as with a B-1/B-2 visitor or F-1 student).

The Attorney General’s statement is available here.

8. USCIS Announces Relief for Japanese, Pacific Nationals Stranded in U.S. Following Quake, Tsunami

U.S. Citizenship and Immigration Services announced on March 11, 2011, the following relief for Japanese and other nationals from the Pacific stranded in the U.S. due to the earthquake and tsunami disasters in Japan:

This advisory is for Japanese and other foreign nationals from the Pacific stranded in the United States due to the earthquakes and tsunami devastation. If you have exceeded or are about to exceed your authorized stay in the U.S. you may be permitted up to an additional 30 days to depart.

Visitors traveling under the Visa Waiver Program (VWP):

Visitors traveling under a nonimmigrant visa:

The announcement is available here.

Additional immigration relief options are available on the Special Situations Web page here.

Seyfarth Workforce Authorization Team (SWATeam)

1. Labor Dept. Board Rules Against Company for Failing to Pay H-1B Worker for Travel Time

The Department of Labor’s Administrative Review Board (ARB) ruled on January 31, 2011, against a medical software company, Integrated Informatics, Inc., for failing to pay an H-1B nonimmigrant computer programmer for two days of traveling for a work project. The ARB rejected the company’s argument that it had a policy of withholding payment for travel. “Even accepting as true that Integrated’s policy is not to compensate its employees for travel time, a company policy is not among the exceptions to an H-1B employer’s obligation to pay H-1B nonimmigrant workers their wages,” the ARB said.

2. E-Verify Self-Check Going Live in March

The Department of Homeland Security (DHS) has established a new self-check process for E-Verify, effective March 18, 2011. The self-check process is voluntary and available to any individual who wants to check his or her own work authorization status before employment and facilitate correction of errors in federal databases (such as those of the Social Security Administration, DHS, and the Department of State) that feed information into the E-Verify process. DHS said E-Verify Self-Check “provides a vehicle for an individual to proactively check work authorization status prior to the employer conducting the E-Verify inquiry.”

DHS noted that when an individual uses E-Verify Self-Check, he or she will be notified either that (1) the information matched the federal databases and the individual would be deemed work-authorized, or (2) there was a “mismatch,” in which case he or she will be given instructions on how to correct the record(s).

DHS is releasing the E-Verify Self Check service in phases. The service is currently offered only to users that maintain an address and are physically located in Arizona, Colorado, the District of Columbia, Idaho, Mississippi, or Virginia. The availability of E-Verify Self Check will be limited for the initial launch as the service is tested and improved upon based on the outcomes of the initial implementation.

The notice announcing the new system and inviting comments, which must be submitted by March 18, 2011, is available here.

3. DOL Posts New FAQ for H-1B, H-1B1, E-3 Programs; Releases New Data

H-1B, H-1B1, and E-3 programs. The FAQ discusses, among other things, which visa classifications require the filing of a labor condition application (LCA); the definition of a “specialty occupation”; how to obtain H-1B disclosure information or file an H-1B complaint; details on initiating the hiring and application processes; LCA requirements; prevailing wage issues; notice requirements; working conditions; post-LCA-approval changes; termination of employment; and other issues.

Among other things, the FAQ notes that H-1B complaints should be filed with the local Wage and Hour Division office that has jurisdiction over the physical location of the employer. The OFLC suggests checking the “blue pages” in the telephone book or click here. The form for filing a complaint (Form WH-4) may be downloaded here.

The FAQ is available here.

The OFLC also is now making available quarterly disclosure files covering employer applications processed under the PERM, H-1B, H-2A, and H-2B visa programs. Additionally, the OFLC is publishing a new set of case level data covering employer requests for prevailing wage determinations processed by the OFLC National Prevailing Wage Center, which opened in January 2010 in Washington, DC.

The new data are available here.