EB-5 News Archive
for 2009

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U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton announced on November 19, 2009, the issuance of Notices of Inspection (NOIs) to approximately 1,000 employers across the U.S. associated with critical infrastructure, alerting business owners that ICE will audit their hiring records to determine compliance with employment eligibility verification laws.

The businesses served with audit notices were selected for inspection, ICE said, “as a result of investigative leads and intelligence and because of the business’ connection to public safety and national security — for example, privately owned critical infrastructure and key resources.” The names and locations of the businesses were not released “due to the ongoing, law enforcement sensitive nature of these audits.”

Audits involve a comprehensive review of Forms I-9 (Employment Eligibility Verification). Audits may result in civil penalties and lay the groundwork for criminal prosecution of employers who knowingly violate the law. ICE identified I-9 audits as “the most important administrative tool in building criminal cases and bringing employers into compliance with the law.”

Statistics resulting from 654 audits announced in July included:

• ICE agents reviewed more than 85,000 Form I-9s and identified more than 14,000 suspect documents, which was approximately 16 percent of the total number reviewed.
• As of November 19, 2009, 61 NIFs have been issued, resulting in $2,310,255 in fines. In addition, 267 cases are being considered for NIFs.
• ICE closed 326 cases after businesses were found to be in compliance with employment laws or after businesses were served with a Warning Notice in expectation of future compliance.

Some clients are reporting receipt of subpoenas for wage and related records. Relying on inexperienced counsel and self-audits is no longer sufficient. Contact Ivener & Fullmer for guidance in particular cases, including conducting proactive pre-audits.

U.S. Citizenship and Immigration Services has reminded applicants for advance parole (permission to reenter the U.S. after traveling abroad) to apply early. USCIS said that travelers must obtain advance parole if they have been granted temporary protected status or have a pending application for (1) adjustment of status to lawful permanent residence; (2) relief under § 203 of the Nicaraguan Adjustment and Central American Relief Act; (3) asylum; or (4) legalization.

The agency issued a fact sheet (PDF) outlining eligibility requirements, the consequences of traveling without advance parole for affected persons, and the possible consequences of using advance parole after being unlawfully present in the U.S. or to return to the country of claimed persecution.

As of November 20, 2009, approximately 56,900 H-1B cap-subject petitions had been filed, U.S. Citizenship and Immigration Services (USCIS) announced. USCIS has approved sufficient H-1B petitions for those with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of a worker with an advanced degree will now count toward the general H-1B cap of 65,000.

USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions has been received to reach the statutory limit, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

The recent pace of filings suggests that H-1B numbers may be exhausted for this fiscal year very soon. After that, employers will be left with limited alternatives for hiring skilled foreign nationals when U.S. workers are unavailable until filings for the next fiscal year can be made.

For more info, visit USCIS www.uscis.gov

The Department of State has taken the position that those who have applied for a visa that cannot be granted due to a need for further security clearances, or additional documents or information, have been effectively “denied” a visa and must disclose this when completing their ESTA (Electronic System for Travel Authorization) application should they later wish to use the Visa Waiver Program as a visitor while their visa application remains pending. The Alliance of Business Immigration Lawyers warns that this situation can be confusing because the applicants may have been told simply that their applications require further processing rather than that they have been denied, but then they may be refused admission later for misrepresentation if they do not disclose the denial. Such travelers are advised to indicate that they have been refused a visa under INA § 221(g) when completing their ESTA registrations. Those who have completed an ESTA registration without revealing the denial are advised to re-register and indicate the specifics. This is a fluid situation, and the Department’s position is controversial. Consult your immigration attorney for more specific guidance in particular cases.

The new Department of State position was made in consultation with U.S. Customs and Border Protection (CBP), which announced it to the American Immigration Lawyers Association’s (AILA) CBP liaison committee. A public announcement by CBP is awaited.

U.S. Citizenship and Immigration Services recently provided guidance (PDF) on (1) determinations of whether a particular employer falls within the definition of INA § 203(b)(1)(B), thus allowing USCIS to grant, if otherwise approvable, a first preference (EB-1) green card petition filed by that employer on behalf of an outstanding professor or researcher in connection with an offer of employment; (2) procedures for determining whether a labor certification has been filed with a Form I-140 (Immigrant Petition for Alien Worker) during its validity period; and (3) various issues relating to labor certification applications approved by the Department of Labor and filed in support of I-140 petitions.

Among other things, the guidance clarifies that government agencies do not qualify as “private” employers for outstanding professors and researchers, and generally do not fit within the definition of § 203(b)(1)(B) unless the government agency is shown to be a U.S. university or institution of higher learning. The guidance notes that government agencies that do not fit the definition under § 203(b)(1)(B) may have other available immigration avenues to offer permanent employment to professors or researchers. For example, the guidance notes, assuming all of the eligibility requirements for that visa preference category have been met, a government agency may request an “alien of extraordinary ability” green card classification under INA § 203(b)(1)(A).

The guidance also discusses the 180-day validity period for approved labor certifications that have an ending validity date that falls on a Saturday, Sunday, or federal holiday. USCIS said that it will accept the filing of I-140 petitions on the next business day where the supporting labor certification validity period ends on a Saturday, Sunday, or federal holiday.

In August and September 2009, the U.S. Citizenship and Immigration Services (USCIS) ombudsman received complaints about H-1B cases with incorrectly denied labor condition applications (LCA/ETA-9035) filed with the U.S. Department of Labor (DOL). The ombudsman said that LCA processing delays and errors at the DOL, when coupled with USCIS’s current H-1B petition initial filing requirements, “are prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions.” Untimely H-1B petition filings lead to problems, the ombudsman noted, including: (1) the potential loss of employees’ legal status; (2) business operation disruptions due to the loss of continuity in the employment of key employees; and (3) economic loss to employees in the form of lost wages and costs of travel overseas because of the loss of status.

The ombudsman said that USCIS has the authority to mitigate these effects. The ombudsman recommended that USCIS: (1) reinstate its previous practice of temporarily accepting an H-1B petition (Form I-129) supported by proof of timely filing of an LCA application with the DOL, and issue a Request for Evidence (RFE) whereby the H-1B petitioner later provides the certified LCA; and (2) establish a temporary policy under which USCIS would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly rejected.

On November 5, 2009, USCIS announced that it would temporarily accept H-1B petitions filed without LCAs that have been certified by the DOL for a 120-day period, through March 4, 2010. USCIS noted, however, that it will only accept such H-1B petitions if they are filed at least seven calendar days after the LCAs were filed with the DOL and include evidence of these filings. The only acceptable evidence of filing is a copy of the DOL’s e-mail giving notice of receipt of the LCA.

Petitioners who seek to take advantage of this temporary flexibility in the normal filing procedures for H-1B petitions must wait until they receive a request for evidence (RFE) before they submit the DOL-certified LCA to USCIS in support of the H-1B petition, USCIS said. The agency will give petitioners 30 calendar days within which they must send in a DOL certified LCA in response to the RFE. USCIS will only approve H-1B petitions that include certified LCAs. (PDF)

The ombudsman’s report, “Temporary Acceptance of Labor Condition Applications (LCAs) for Certain H-1B Filings,” was released on October 23, 2009, and is available (PDF).

The Department of Labor (DOL) has announced that the H-1C program, established under the Nursing Relief for Disadvantaged Areas Reauthorization Act, will sunset on December 21, 2009. Congress has not reinstated the program and, absent further legislative action, will no longer accept H-1C attestations from hospitals. The DOL said that questions about the H-1C program should be addressed to tlc.chicago@dol.gov.

The Department of Labor has published an interim final rule (PDF) extending the transition period application filing procedures implemented under the December 2008 H-2A final rule. The application filing procedures under the extended transition period apply to all employers with dates of need before June 1, 2010.

U.S. Citizenship and Immigration Services has released a fact sheet (PDF) on public charge determinations. The agency noted that although an individual who is likely at any time to become a public charge is inadmissible to the U.S. and ineligible to become a legal permanent resident, receiving public benefits does not automatically make an individual a public charge. The fact sheet outlines benefits that could make a noncitizen inadmissible as a public charge if other criteria are met, and also lists benefits that are for special purposes rather than income maintenance and therefore not subject to public charge consideration, such as Medicaid, Food Stamps, the Children’s Health Insurance Program, foster care and adoption assistance, job training programs, and emergency disaster relief.