U.S. Immigration

1. United States Citizenship and Immigration Services (USCIS) To Revert to Previous I-797 Mailing Practice
2. House Judiciary Committee Approves E-Verify Legislation
3. State Department Estimates Employment-Based Visa Availability
4. Diversity Visa 2013 Registration Begins
5. Department of Labor (DOL) Postpones Revised H-2B Wage Calculations
6. State Department To Conduct On-Site Reviews of Summer Work Travel Sponsors
7. Department of Homeland Security (DHS) Launches 'Study in the States'

Seyfarth Workforce Authorization Team (SWATeam)

1. Social Security Administration (SSA) Inspector General Finds Anomalies in H-1B Workers' Use of Social Security Numbers (SSN)

Recent News from Seyfarth's Immigration Attorneys

---

U.S. Immigration

1. United States Citizenship and Immigration Services (USCIS) To Revert to Previous I-797 Mailing Practice

On October 20, 2011, USCIS Director Alejandro Mayorkas announced in a letter addressed to USCIS Stakeholders that the Service has decided to return to its previous practice of sending the original notice (I-797) to the attorney or accredited representative's address listed on the Form G-28. USCIS will send a copy to the address provided by the applicant or petitioner in the applicable form. The change will take effect in approximately six weeks due to the need to re-program USCIS' system.

2. House Judiciary Committee Approves E-Verify Legislation

On September 21, 2011, the House of Representatives Committee on the Judiciary approved a bill that would mandate E-Verify use by U.S. employers for all new employees. A date for consideration on the House floor has not yet been set.

Among other things, there reportedly was much discussion during markup of the bill about its potential effect on agricultural workers. Rep. Dan Lungren (R-Cal.) said that an E-Verify mandate would "devastate the agricultural industry," and that the issue should be dealt with "in a practical fashion." However, Rep. Howard Berman (D-Cal.) offered an amendment that the committee passed, which closed a loophole that would have allowed agricultural employers of returning seasonal workers to be exempt. Rep. Berman said that would amount to a "laughable de facto amnesty," and Rep. Melvin Watt (D-Cal.) agreed that it would be a "loophole big enough to drive freight trucks, airplanes, and locomotives—all filled with illegal workers—through." Despite closing the loophole, the bill would still give agricultural employers three years to comply.

A provision to preempt states from mandating E-Verify survived. Rep. Smith argued that preemption "is consistent with a common-sense reading of the Constitution" and that "American businesses need one federal standard for E-Verify, not 50 or more laws."

3. State Department Estimates Employment-Based Visa Availability

The October Visa Bulletin from the Department of State's Visa Office notes that employment-based visa availability in the coming months is expected to be "Current" for the employment first preference (EB-1) category; the employment second preference (EB-2) Worldwide, Mexico, and Philippines categories; and the employment fourth and fifth categories. The Department noted that the estimates are subject to fluctuations in demand, but said that categories with a "Current" projection "will remain so for the foreseeable future."

For categories other than those noted above, the bulletin states:

Employment Second:

China and India: The current cut-off date is approaching the most favorable date previously reached for applicants from China and India. The rapid forward movement is intended to generate demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices, which currently accounts for over 85% of all employment-based number use. Once the level of demand increases sufficiently, it may be necessary to slow or stop the cut-off movement, and a retrogression of the cut-offs at some point during the year is a distinct possibility.

Employment Third:

Worldwide: up to one month

China: one to three weeks

India: up to two weeks

Mexico: up to one month

Philippines: up to one month

The October Visa Bulletin is available here.

The November Visa Bulletin is available here.

4. Diversity Visa 2013 Registration Begins

The online registration period for the 2013 diversity visa program (DV-2013) started on Tuesday, October 4, 2011, at noon (EDT) and ends on Saturday, November 5, 2011, at noon (EDT). Entries must be submitted electronically with photographs. There are no fees to enter. The Department of State strongly encourages applicants not to wait until the last week to enter because heavy demand may result in website delays and no applications will be accepted on paper or after the deadline. For fiscal year 2013, the program will make available 50,000 visas to eligible persons from countries with historically low rates of immigration to the U.S.

For DV-2013, natives of the following countries are not eligible to apply: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. For DV-2013, natives of South Sudan and Poland are now eligible.

To be eligible for the DV program, a person must be a native of one of the listed countries and must meet either the education or work experience requirement of the program. Entrants must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education, or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.

The Department of Labor's "O*Net OnLine" database, which will be used to determine qualifying work experience, is available here.

The submission site is here. A successfully registered entry will result in a confirmation screen showing the entrant's name and a unique confirmation number. The entrant must print this confirmation screen and retain the confirmation number. Starting May 1, 2012, entrants will be able to check the status of their DV-2013 entries by returning here, Entrant Status Check, and entering the unique confirmation number and personal information. Entrant Status Check will be the sole means of informing entrants of their selection for DV-2013, providing instructions on how to proceed with an application if selected, and notifying entrants of their appointment for an immigrant visa interview. The Department of State warned that it will be unable to provide an entry confirmation number if it is lost.

The Department of State released "official" instructions in English and "unofficial" instructions in Albanian, Polish, Romanian, Russian, and Uzbek. The English instructions are available here.

For more information, see here.

5. Department of Labor (DOL) Postpones Revised H-2B Wage Calculations

The Department of Labor's Employment and Training Administration (ETA) has postponed for 60 days the effective date for the final rule on wage methodology for the H-2B temporary nonagricultural employment program. The effective date will be November 30, 2011. DOL said the delay will permit various courts involved in ongoing litigation concerning the rule's implementation to determine the appropriate venue for resolution of all claims and allow the DOL to avoid the possibility of administering the H-2B program under potentially conflicting court orders.

The DOL explained that it published a final rule on January 19, 2011, revising the wage methodology for the H-2B program and setting the effective date of the wage rule as January 1, 2012. On June 16, 2011, in response to a challenge, the U.S. District Court for the Eastern District of Pennsylvania invalidated that date and ordered the DOL to announce a new effective date within 45 days. In response to that order, the DOL issued a notice of proposed rulemaking on June 28, 2011, which proposed that the wage rule take effect 60 days from the date of publication of a final rule. After a period of public comment, the DOL published a final rule on August 1, 2011, which set the new effective date for the wage rule as September 30, 2011, without altering the substance of the rule. With the new postponement, the effective date is now set for November 30, 2011.

The announcement is available here.

6. State Department To Conduct On-Site Reviews of Summer Work Travel Sponsors

The Department of State announced on September 23, 2011, that it plans to conduct on-site reviews of Summer Work Travel Program sponsors to evaluate regulatory compliance. The program provides foreign college and university students the opportunity to work and travel in the U.S. during their extended academic break (summer vacation) for up to four months.

The Department explained that on April 26, 2011, it published an interim final rule governing the Summer Work Travel category under the Exchange Visitor Program. In that rulemaking, the Department set forth its three-step approach to addressing a number of concerns regarding sponsor administration of this program:

1. The Department adopted a pilot program in January 2011 to enhance protections for foreign nationals from Belarus, Bulgaria, Moldova, Romania, Russia, and the Ukraine.
2. The Department issued the interim final rule, which incorporated many of the concepts of the pilot program into the overall Summer Work Travel Program regulations.
3. The Department intends to conduct on-site reviews to monitor sponsor performance, to assess category-wide regulatory compliance, and to consult with sponsors about implementation of the interim final rule.

Close monitoring of Summer Work Travel sponsors during the summer of 2011 resulted in the Department's modifying its plans for the on-site reviews. Specifically, the Department evaluated all Summer Work Travel sponsors' compliance with program regulations regarding the maintenance of current and accurate records in the Student and Exchange Visitor Information System (SEVIS) from September 1, 2009, through August 30, 2010. It also reviewed Summer Work Travel-related complaints for the 2011 summer season and monitored the media for additional reports of program problems. As a result of these efforts, the Department determined that it will not visit sponsors based solely on their size, but instead "will conduct compliance reviews of those designated sponsors whose compliance with the relevant Exchange Visitor Program regulations deserve closer examination by the Department."

The Department said the on-site reviews will focus on evaluating the overall program administration and the effectiveness of the modifications to sponsors' program administration resulting from implementation of the interim final rule and the pilot program. A primary goal of these reviews is to assess whether the sponsors have been able "to comply and remain in continual compliance with all provisions of Part 62" (22 CFR 62.3(b)(1)). To this end, the reviews will focus on sponsor compliance with the pilot program guidelines and participant monitoring requirements, maintenance of accurate SEVIS records, and sponsors' relationships with third parties they have engaged to assist in carrying out the core programmatic functions inherent in the administration of exchange visitor programs (i.e., screening, selection, orientation, placement, monitoring, and the promotion of mutual understanding). Other areas of interest may include sponsors' roles in assisting participants in finding suitable housing; decision-making processes (including the numbers of participants accepted); self-imposed compliance mechanisms; procedures for handling student participant problems (including finding new jobs for those whose pre-arranged placements were unsatisfactory); and policies for refunding deposits or payments to student participants.

Sponsors who are not included in these reviews and wish to comment should e-mail their comments and concerns to the Department here.

The notice is available here.

7. Department of Homeland Security (DHS) Launches 'Study in the States'

On September 16, 2011, Secretary of Homeland Security Janet Napolitano and Immigration and Customs Enforcement (ICE) Director John Morton announced an initiative to streamline the international student visa process for foreign students seeking to study in the U.S. The "Study in the States" initiative is "a key component of a government-wide effort to encourage the best and brightest foreign students to study and remain in the U.S.," a DHS media release said.

DHS noted that more than 1.1 million active nonimmigrant students and exchange visitors and their dependents study in U.S. universities, exchange programs, and training opportunities. Study in the States will examine regulatory changes, expand public engagement between the government and academia, and provide a central online information hub for DHS and its agency partners to provide current and prospective students with updated and relevant visa requirements in a user-friendly format.

DHS said that the Study in the States website is intended to be an innovative, interagency portal that will include:

• Interactive and accessible information, allowing prospective and current students to visually navigate steps of the student visa process on their own "Road Map to Success."
• Links to social media websites, such as Facebook and Twitter, disseminating relevant visa requirements and information to international students, exchange visitors, and the academic community.
• A blog with posted videos, public service announcements, relevant news, requirements, helpful tips, and success stories.

DHS said that Study in the States builds on other new policies intended to encourage talented students from other countries to study and work in the U.S. For example, earlier this year, DHS announced an extension to science, technology, engineering and math (STEM) degrees for international student studies, allowing graduates of a STEM degree to remain in the U.S. through Optional Practical Training (OPT) for up to 29 months after graduation.

For example, earlier this year DHS announced that international students graduating with science, technology, engineering or math (STEM) degrees are allowed to remain in the U.S. through Optional Practical Training (OPT) for up to 29 months after graduation (an increase of 17 months over the standard 12-moth OPT grant).

For more information on the initiative, see here.

The announcement is available here.

A fact sheet is available here.

---

Seyfarth Workforce Authorization Team (SWATeam)

1. Social Security Administration (SSA) Inspector General Finds Anomalies in H-1B Workers' Use of Social Security Numbers (SSN)

The Social Security Administration's Office of the Inspector General (OIG) released a report in September on H-1B workers' use of Social Security Numbers (SSNs) that could result in more close monitoring of status violations by H-1B workers and potential liability for H-1B employers.

Based on the results of the review, the OIG estimated that about 7,131 (18%) of the 38,546 H-1B workers to whom the SSA assigned an SSN in 2007 may have used their SSNs for purposes other than to work for their approved employer. This estimate included about 4,433 (11%) H-1B workers who had posted wages during the audit period from an employer other than their DHS-approved employer. The estimate also included about 2,698 (7%) H-1B workers who had no posted wages from 2007 through 2009.

The OIG noted that unauthorized work by H-1B workers weakens SSN integrity and may require that the agency pay future benefits to individuals who misuse an SSN to work in the U.S. In addition, the OIG noted, H-1B workers who do not work for their approved employer "could pose a risk to homeland security, because they may obtain employment in sensitive areas."

The OIG also commented on a recent DHS study reporting that about 21% of the H-1B petitions it examined involved fraud or technical violations. The types of fraud identified included counterfeit or forged documents, storefront or shell businesses, no bona fide job offer, and misrepresentation of H-1B status. DHS subsequently clarified field guidance and instituted employer site visits to reduce alleged fraud and abuse in the H-1B visa program.

In addition, the OIG noted, the Department of Justice has pursued criminal charges in some H-1B fraud cases. In one case, six individuals pled guilty to participating in a criminal conspiracy with the owner of a consulting firm to obtain H-1B visas for ineligible or unqualified individuals. All six individuals admitted that they had secured cash-paying jobs from unapproved employers instead of working for the consulting firm. In another case the OIG discussed, U.S. Immigration and Customs Enforcement agents arrested 11 individuals accused of H-1B visa fraud. This investigation involved companies that did not always have jobs available for H-1B workers, which placed the workers in non-pay status after they arrived in the U.S. These companies and workers also allegedly submitted false statements and documents to support their H-1B visa petitions, the OIG noted. Because the subject of the OIG report involved immigration enforcement and visa-related issues, the OIG said it planned to share the report with the DHS and State Department Offices of Inspector General.

The OIG recommended that SSA contact DHS to offer to establish a data match agreement to assist DHS's efforts to identify and reduce the number of H-1B workers who may use their SSNs for purposes other than to work for their approved employer. SSA agreed with that recommendation.

The OIG report, "H-1B Workers' Use of Social Security Numbers," is available here.

---

Recent News from Seyfarth's Immigration Attorneys

Angelo Paparelli was quoted in the Los Angeles and San Francisco Daily Journals on October 21 in an article titled, "Obama Administration Deports Record Number of Illegal Immigrants."

Angelo Paparelli spoke on October 20 in Washington DC at the First Annual Conference of USCIS Ombudsman on "How Blogging can Influence the Immigration Public Policy Debate." The Agenda for the event is available here. The USCIS Ombudsman's Office will publish its report of the proceedings on its Home Page.

Angelo Paparelli was quoted in the Daily Journal on October 18 in an article titled, "Hiring Foreign Workers Proves More Time-consuming, Costly."

On October 17th, Nici Kersey spoke at the Mid-Year Meeting of the National Association of Professional Background Speakers (NAPBS), where she serves as Co-Chair of the Government Identity Verification Systems (GIVS) Best Practices Sub-Committee and as Chair of the Immigration Sub-Committee of the Government Relations Committee. Nici, together with Co-Chair Chuck Salvia, gave a presentation entitled "How to Avoid Hiring Unauthorized Workers: Beyond the SSN Trace" in Orlando, FL.

Angelo Paparelli co-authored an article in Who's Who Legal on September 30, titled, "Global Mobility Management -- A Primer for Chief Legal Officers and HR Executives."

Jason Burritt gave a presentation to members of the Association of Chartered Accountants in the United States (ACAUS) on September 21 with respect to U.S. immigration issues for Australian nationals. Jason provided an overview of the temporary and permanent visa options for Australian nationals as well as the naturalization process.

Leon Sequeira was quoted in Employment Law360 and BNA's Daily Labor Report discussing problems with the H-2A temporary farm worker visa program. [subscription required].

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

"Legislatively Required, Bureaucratically Enabled Immigration Deaths" can be found here.

"Journalism's Immigration Challenge" can be found here.

"Immigration's Defining Moment — Do You Know Employment When you See It?" can be found here.

"Suffer the Children: Immigration Heartlessness and Hypocrisy" can be found here.

"Immigration, Cheesy Style," a guest blog by Nici Kersey, can be found here.

Upcoming Presentations:

Dyann DelVecchio and Jason Burritt will present at a Breakfast Briefing in our New York City office on November 17, 2011, on the topic, "Immigration Law - Eyes to the Sky, Feet in the Gutter."

Angelo Paparelli will address in-house corporate employment counsel on "Developments in U.S. Immigration Enforcement against Employers," at Seyfarth Shaw's 2011 Advanced Labor and Employment Law Conference, to be held November 8, 2011 at the City Club on Bunker Hill, 333 S. Grand Avenue, 54th Floor, Los Angeles, CA 90071-1558. Attendance is limited to in-house corporate employment counsel and is by invitation only. There is no charge for this event. If you have any questions, please contact Sarah Guigliano at sguigliano@seyfarth.com.

By: Angelo Paparelli, Jason Burritt, and John Quill

Angelo Paparelli is a partner in Seyfarth's Los Angeles Downtown office, Jason Burritt is an associate in the New York office and John Quill is senior counsel in the Boston office. If you would like further information, please contact your Seyfarth Shaw LLP attorney, Angelo Paparelli at apaparelli@seyfarth.com, Jason Burritt at jburritt@seyfarth.com, John Quill at jquill@seyfarth.com or any Business Immigration attorney on our website.