Newsletter

Aug 12, 2011

Immigration Inbox: News You Can Use - August 2011

U.S. Immigration

1. Labor Department Temporarily Suspends Prevailing Wage Processing in PERM and H-1B Cases
2. USCIS Changes Timeframes for RFEs
3. State Department Determines Employment Preference Numerical Limit for FY 2011
4. Work Permit Processing Delays Cause Hardship, USCIS Ombudsman Says
5. State Department Announces New Requirement for U.S. Passport Applications
6. USCIS Releases EB-5 Immigrant Investor Statistics
7. State Department Announces Visa Issuance Agreement Between U.S. and Russian Federation

Seyfarth Workforce Authorization Team (SWATeam)

1. Company Held Liable for over $156,000 in Back Wages of H-1B Employee Who Never Worked
2. Labor Department Weighs In on Staggered Dates of Need
3. Labor Department Orders Prince George's County Public Schools To Pay $4.2 Million in Back Wages

1. Labor Department Temporarily Suspends Prevailing Wage Processing in PERM and H-1B Cases

The United States Department of Labor (DOL), Office of Foreign Labor Certification (OFLC), recently announced that it has temporarily suspended processing of Prevailing Wage requests for most case types, including PERM Labor Certifications. The stated reason for the delay is that the DOL must comply with a court order issued in June 2011 by a United States District Court related to the reissuance of Prevailing Wage Determinations for H-2B temporary labor certification applications. In particular, the court order requires the DOL's National Prevailing Wage Center (NPWC) to manually reissue approximately 4,000 prevailing wage determination requests, many of which require determinations of multiple locations. In light of this ruling, the OFLC has dedicated all of its resources to the completion of this task and, consequently, prevailing wage requests for other case types will not be processed at this time. The NPWC anticipates that the redetermination process should be complete by October 1, 2011.

The temporary suspension of non-H-2B prevailing wage requests will have the biggest impact on PERM processing, as a DOL-issued Prevailing Wage Determination is a requirement for the filing of a PERM Labor Certification. A PERM Labor Certification is typically the first step of the employment-based permanent residence process and, importantly, often serves as the basis for H-1B extensions for employees who are nearing the maximum time allowed in their H-1B status. Employers are advised to take precautions to ensure that potential delays in PERM filing do not cause a lapse in the nonimmigrant status of their foreign national employees or an interruption of employment authorization.

Seyfarth Shaw's Business Immigration Group stands ready to assist employers in addressing these issues. We are available immediately with strategic evaluation and advice to ensure that your foreign national workforce is not hurt by this development.

2. USCIS Changes Timeframes for RFEs

U.S. Citizenship and Immigration Services (USCIS) previously gave agency officers the flexibility to determine individual response times for requests for evidence (RFEs) tailored to the circumstances of each case. USCIS released an interim policy memorandum on July 13, 2011, changing the standard timeframes for applicants or petitioners to respond to RFEs because, the agency said, "this delegated flexibility has led to inconsistencies in the RFE process."

USCIS is amending the standard timeframes listed in Appendix 10-9 of the Adjudicator's Field Manual (AFM) to include:

A standard timeframe of 30 days for the Application to Extend/Change Nonimmigrant Status (Form I-539); and
A standard timeframe of 84 days for all other form types, regardless of whether the request is for initial or additional evidence, or whether the evidence is available in the United States or is obtained from overseas sources.

The maximum response time for an RFE may not exceed 12 weeks (84 days), the memo states. However, when an RFE is served by mail, USCIS officers should include additional mailing time for the RFE to reach the applicant/petitioner and for the response to reach USCIS. The standard mailing time established by regulation is three days. As a matter of policy, USCIS has determined that the mailing time should be longer when the applicant or petitioner is residing outside the United States. USCIS amended the AFM accordingly to include appropriate mailing times in addition to standard response times.

The memo does not apply to asylum applications or applications for relief under Section 203 of the Nicaraguan Adjustment and Central American Relief Act.

The memo is available here.

3. State Department Determines Employment Preference Numerical Limit for FY 2011

The Department of State (DOS) has determined the worldwide employment-based preference numerical limit for fiscal year (FY) 2011: 140,000. The per-country limit is fixed at 7 percent of the employment annual limit. For FY 2011, the per-country limit is 25,620. The dependent area annual limit is 2 percent, or 7,320.

The worldwide family-sponsored preference limit for FY 2011 is 226,000. See the DOS's Visa Bulletin for August 2011 for details here.

4. Work Permit Processing Delays Cause Hardship, USCIS Ombudsman Says

The Department of Homeland Security's Ombudsman noted on July 11, 2011, that USCIS in some cases fails to meet its regulatory requirement to process applications for employment authorization in 90 days, and USCIS generally does not issue interim employment authorization documents (EADs). When processing for EADs is delayed, individuals and employers experience adverse consequences.

Applicants experience financial hardship due to job interruption and termination, business operations stall due to loss of employee services, families face suspension of health benefits, and individuals have difficulty renewing driver's licenses. EAD processing delays are exacerbated by the lack of immediate resolution through USCIS' designated venues.

The Ombudsman recommended that USCIS take the following actions to improve EADs processing:

Establish methods at local offices to facilitate immediate resolution;
Establish a uniform processing time goal of 45 days for adjudication and 60 days for issuance of an EAD;
Improve monitoring and ensure real-time visibility through an automated system for tracking processing times;
Follow established internal procedures for issuing interim EADs in cases where background checks are pending; and
Issue replacement EADs with validity dates beginning on the date the old EAD expires.

USCIS currently directs applicants experiencing EAD delays to contact the National Customer Service Center (NCSC) or the local district office, the Ombudsman noted. However, neither venue has the ability to provide direct assistance. USCIS representatives or officers assist individuals with delayed I-765s by submitting service requests or sending e-mails to the National Benefits Center (NBC) or service centers. The Ombudsman noted that USCIS is reviewing the procedures in place and may provide field offices with updated guidance on how to assist individuals with EAD applications pending past 90 days.

While both service requests and e-mails alert the applicable office of a delay, it may take up to 10 or more days for an I-765 to be adjudicated and an EAD to be delivered, the Ombudsman said. Additionally, while customers receive responses to service requests in five days for expedite requests, and 15 days for all other requests, the responses are often "generic and unhelpful," the Ombudsman noted. Sometimes the responses state that an applicant's case is "under review" but do not provide a timeline for issuance of the EAD. Other responses merely state that a decision will be issued in 30 or 60 days, when the application already has been pending past 90 days. "Such responses fail to address the problem because they do not assist the customer in rapidly obtaining an interim or final EAD. The failure to communicate useful information to customers often results in repeated telephone and in-person inquiries causing inefficiencies for USCIS," the Ombudsman said.

USCIS' website also lists alternative contact information, such as e-mail addresses, for service centers and the USCIS Headquarters Office of Service Center Operations. However, before people e-mail those addresses, USCIS advises them to wait 30 days for a response from the NCSC and 21 days for a response from the service centers, "when even one day of delay may lead to financial loss for EAD applicants and business disruption for employers," the Ombudsman said.

The Ombudsman termed a "best practice" the Vermont Service Center's five-day processing time goal for background checks conducted in connection with adjudication of an I-765. Adjudicators e-mail cases to the Background Check Unit (BCU), identifying the form type and marking it as an expedite request in the subject line. The BCU monitors the inbox to ensure that cases are promptly referred to adjudicators and resolved within the specified timeline. With this process, the Ombudsman said, USCIS is able to resolve minor concerns immediately while carefully reviewing cases that involve national security, egregious public safety issues, criminal convictions, or immigration fraud.

The Ombudsman's report is available here.

5. State Department Announces New Requirement for U.S. Passport Applications

The Department of State announced that the full names of an applicant's parent(s) must be listed on all certified birth certificates in order for the certificates to be considered primary evidence of U.S. citizenship. This new documentary requirement applies to all passport applicants, regardless of age. Certified birth certificates missing this information will not be acceptable as evidence of citizenship. This does not affect applications that were submitted or accepted before April 1, 2011.

The announcement is available here. Links to vital records offices state-by-state are available here.

6. USCIS Releases EB-5 Immigrant Investor Statistics

USCIS has released data on EB-5 conditional green card filings and Regional Centers (RCs) designation requests for fiscal year (FY) 2010 and the first half of FY 2011.

The agency noted that, as of June 30, 2011, there are 147 approved regional centers (RCs) operating in 39 states, including the District of Columbia and Guam. Most (90 to 95 percent) of the individual Form I-526 (Immigrant Petition by Alien Entrepreneur) petitions filed each year are filed by those who are investing in RC-affiliated commercial enterprises. There are 83 initial RC proposals pending at USCIS, and nine RC proposals seeking to amend approved RCs.

USCIS figures continue to show a sharp increase in the number of RC filings and EB-5 visa approvals. The agency reported 146 initial RC proposal filings in the first and second quarters of FY 2011, compared to 110 initial filings in all of FY 2010. In the first and second quarters of FY 2011, the agency approved 25 initial RC proposals and denied 11, an approval rate of 69 percent. This was a big increase from FY 2010, when USCIS approved 36 and denied 30 during the entire fiscal year.

USCIS also reported significant increases in individual I-526s and I-829s (Petitions by Entrepreneur to Remove Conditions). In the first and second quarters of FY 2011, USCIS received 1,601 I-526 petitions, compared to 1,955 for all of FY 2010. The increase in the number of I-829 petitions was even more dramatic, with 1,150 received in the first and second quarters. By comparison, USCIS received 768 I-829 petitions in all of FY 2010.

In the first and second quarters of FY 2011, the agency approved 407 I-526 petitions and denied 96, while in all of FY 2010 USCIS approved 1369 and denied 165. USCIS approved 166 I-829 petitions and denied 26 in the first and second quarters, compared to approving 274 and denying 56 for all of FY 2010.

USCIS also reported that although the target processing time for I-526 petitions is 5 months, actual processing times are reaching 5.5 months; however, some in the field have said it is closer to 7 months. USCIS's target processing time for both initial and amended RC proposals is 4 months; the agency reported current processing times of 4.5 months for initial RC filings but only 1 month for amended filings. For I-829 filings, the agency reports that it is beating its target processing time of 6 months; USCIS said current processing time for I-829 filings is 1 month. USCIS said it strives to finalize EB-5 cases within 30 days after responses to requests for evidence (RFEs) are received.

USCIS is on track to approve a record number of EB-5 visas. Its preliminary estimate is that 2,129 EB-5 visas were issued in the first and second quarters of 2011, compared to 1,885 in all of FY 2010. The previous record was 4,218 EB-5 visas issued in FY 2009.

The next EB-5 "stakeholder engagement" meeting will be held on September 15, 2011, at 1 p.m. This engagement will be an opportunity for USCIS to share information on the EB-5 program and address stakeholders' related topics of interest. USCIS is specifically interested in receiving topics related to the Form I-912A, Supplement to Form I-924. The deadline to submit agenda items is August 15, 2011. An open forum for questions and answers (non-case-specific) will be provided at the engagement.

See here for details on registering to attend the engagement either in person or by telephone, and instructions on submitting agenda items.

USCIS's presentation from the most recent engagement is available here.

7. State Department Announces Visa Issuance Agreement Between U.S. and Russian Federation

On July 13, 2011, U.S. Secretary of State Hillary Rodham Clinton and Russian Foreign Minister Sergey Lavrov announced an agreement on the issuance of nonimmigrant business, tourist, private, and humanitarian visas to the Russian Federation, and on business and tourist visas to the U.S., as well as short-term official travel visas to both countries.

The agreement will facilitate travel between the two countries and, DOS said, "benefits the largest segments of our traveling Americans and Russians – business travelers and tourists, traveling both as individuals and in groups, by granting as a rule, on a reciprocal basis, multiple-entry visas valid for 36 months." The agreement also reduces the documentation required.

The new visa validity periods "will allow for expanded contacts and promote greater mutual understanding between our societies," DOS said. This agreement will go into effect after an exchange of diplomatic notes in Moscow.

The DOS announcement is available here.

1. Company Held Liable for over $156,000 in Back Wages of H-1B Employee Who Never Worked

Ganze & Company, an accounting firm in Napa Valley, California, filed a labor condition application (LCA) to hire Kevin Limanseto as an H-1B employee but subsequently decided not to employ him. However, Ganze never informed the government of that change, and Mr. Limanseto complained to the Department of Labor that he had never been paid. Administrative Law Judge William Dorsey noted:

Informing the immigration authorities that the employment has been terminated is the quid pro quo to be relieved of one of the duties the employer promises to fulfill when it signs the labor condition application: the duty to pay the required wage rate. Until it does, the employer remains on the hook for the H-1B worker's wages and benefits. For the price of a postage stamp, the Employer often can absolve itself of further liability.

In this case, Ganze did not report that Mr. Limanseto was not employed until more than two years later. In addition, Ganze did not pay Mr. Limanseto's trip home, which is another element of a bona fide termination. The failure to prove every element of a bona fide termination leaves an employer who petitioned for an H-1B worker's admission liable for the entire period of authorized employment, ALJ Dorsey noted. Therefore, he found that Ganze was liable for wages for the entire period of the LCA, plus interest, among other things. The total amount for which Ganze is liable exceeds $156,000.

The decision, Matter of Limanseto, 2011-LCA-00005, is available here.

2. Labor Department Weighs In on Staggered Dates of Need

The Department of Labor's Office of Foreign Labor Certification recently responded to the question, "Can an employer file a single Application for Temporary Employment Certification for staggered dates of need?" The answer is no.

The Department explained that an application must contain a single date of need for all workers under that application. Under the H-2A program, a date of need is defined as the first date the employer requires the services of H-2A and U.S workers as indicated in the Application for Temporary Employment Certification. The date is not an indication of the first date of need for some workers, but for all the workers who are the subject of the application.

The Department said it expects that the filing of an application indicates that the employer has full-time work available for all positions it is requesting for that single start date and that all information reflects the employer's true need. Changing the date of need for some or all workers invalidates the validity of the labor market test, the Department said, and thereby eliminates the basis for granting the labor certification. In such a case, a different date was not advertised to U.S. workers, particularly those who, if they had been apprised of the later date, could have made themselves available for the job opportunity and therefore made the approval of the certification unnecessary. Where the employer has staggered dates of need, the employer must file a separate application for each date of need.

The Department's response is available here.

3. Labor Department Orders Prince George's County Public Schools To Pay $4.2 Million in Back Wages

An investigation by the DOL's Wage and Hour Division found Maryland's Prince George's County Public Schools (PGCPS) system in violation of the H-1B temporary foreign worker visa program.

DOL investigators found that PGCPS illegally reduced the wages of 1,044 foreign teachers hired under the H-1B program by requiring them to use their own money to pay a $500 anti-fraud fee to the Department of Homeland Security, as well as a $1,000 attorney's fee and a $3,500 placement fee. DOL held that under federal law, the school district should have paid those fees.

"All employers, including school systems, are required to follow the law. That includes the legal duty to pay every teacher hired the full wages he or she is owed," said Nancy J. Leppink, acting administrator of the Wage and Hour Division.

Due to the willful nature of some of the violations, PGCPS also was assessed $100,000 in civil money penalties and was debarred for two years from filing new petitions, requests for extensions, or requests for permanent residence for foreign workers under any employment-based visa program. DOL noted that "[v]iolations are willful when an employer knew or acted in reckless disregard [of] whether its actions were impermissible."

Some H-1B employers may be unaware of which fees they must pay andwhich fees an H-1B worker may pay. The DOL's news release is available here.

Recent News from Seyfarth's Immigration Attorneys

Angelo Paparelli, an immigration partner in our Los Angeles and New York offices, was recently selected to the Los Angeles and San Francisco Daily Journal "Top Labor & Employment Attorneys List," which honors 75 leading Labor & Employment attorneys in the state of California. Mr. Paparelli was chosen by the editorial staff of the Daily Journal, and the list was published in a special issue of the publication. He was honored at a reception held in Los Angeles on July 12.

In addition, Mr. Paparelli has posted several new blog entries on his Nation of Immigrators public policy blog.

"Race to the EAD: Revitalizing Depressed American Cities Through State Immigration Initiatives" can be found here.

"Revenue-Raising Immigration: The $$$ Visa," can be found here.

"Immigration Thought Leadership - Needed Now More Than Ever" can be found here and here.

In addition, his latest co-authored article has been published:

"Informational Abundance and Scarcity in Immigration Worksite Enforcement," New York Law Journal (June 22, 2011), which can be found here.

By: Angelo Paparelli, James King, Jason Burritt and Gabriel Mozes

Angelo Paparelli is a partner in Seyfarth's Los-Angeles Downtown office, James King is a partner in the Atlanta office, Jason Burritt is an associate in the firm's New York office, and Gabriel Mozes is counsel in the Boston office. If you would like further information, please contact your Seyfarth Shaw LLP attorney, Angelo Paparelli at apaparelli@seyfarth.com, James King at jking@seyfarth.com, Jason Burritt at jburritt@seyfarth.com, Gabriel Mozes at gmozes@seyfarth.com or or any Business Immigration attorney on our website.