Tag: Immigration

Employers’ Immigration Law Update – September 2014

Jackson Lewis Law firm

ICE Levies $2M Fine against Hotel for I-9 Related Violations

A Salt Lake City-based hotel will have to pay nearly $2 million for hiring unauthorized workers, including illegal aliens. The hotel will avoid criminal prosecution in exchange for its full cooperation with a U.S. Immigration and Customs Enforcement investigation and for taking action to correct its hiring practices. According to the non-prosecution agreement, several lower-level employees and mid-level managers conspired to rehire unauthorized workers amidst an administrative audit of I-9 employee verification forms that began in September 2010. The hotel was notified that 133 employees were not authorized to work in the United States; however, the conspirators created three temporary employment agencies, essentially shell companies, to rehire 43 of the unauthorized, and most of the workers returned under different names using fraudulent identity documents.

$300K for H-2B Violations

According to a Department of Labor announcement, the agency has charged a landscaping company with violating federal law by failing to hire U.S. workers, and for underpaying temporary foreign workers. The company will pay $280,000 in back wages to 80 workers and nine job applicants and $20,000 in civil money penalties.

Immigration Reform Update

With comprehensive immigration reform legislation no longer a realistic possibility for the foreseeable future, advocates for reform have shifted their focus to executive actions the President may take unilaterally to implement changes in immigration policy.

The President reportedly is considering broad use of executive action, granting relief potentially to up to 6 million undocumented individuals, similar to what has been provided under the administration’s Deferred Action to Childhood Arrivals program (DACA).

Building off of DACA, the President has directed the Department of Homeland Security to review the administration’s immigration enforcement policies and recommend additional changes, possibly expanding the deferred action and work authorization to family members of U.S. citizens and lawful U.S. residents. The administration reportedly also is looking at possible changes to current law and regulation that could benefit employers.

Any unilateral action by the administration likely will be controversial.

Owner Liable for H-1B, J-1 Costs

The owner of several medical clinics is personally liable for back wages and the costs of physicians’ H-1B visas and J-1 waivers, the Court of Appeals for the Sixth Circuit has ruled. Kutty v. DOL, No. 11-6120 (6th Cir. Aug. 20, 2014). The Court held Dr. Mohan Kutty and his medical clinics violated H-1B provisions by having physicians cover the costs of their own H-1B visa petitions and related J-1 visa waivers.

Effective September 12, 2014: New Fees for Some Nonimmigrant and Immigrant Visas

Mintz Levin Law Firm

The Department of State (DOS) has revised certain nonimmigrant and immigrant visa fees. DOS has adjusted the visa fees in the following categories:

  1. E visas – treaty/trader and Australian specialty occupation visas decreased to $205 (from $270).

  2. K visas – Fiancé(e) or Spouse of U.S. citizen category visa increased to $265.

  3. Immigrant visa application processing fee based on an approved I-130 Immediate Relative of Family Preference petition increased to $325.

  4. Immigrant visa processing fee based on an approved I-140 employment-based petition decreased to $345 (from $405).

As detailed on the DOS website, the following procedures apply:

  1. DOS will not refund the difference for fees that have been lowered.

  2. If you are applying for a category where the fee has been raised and you have already paid the fee, you are not required to pay the difference between the amount you paid and the new fee as long as your appointment is on or before December 11, 2014.

  3. If you are applying for a category where the fee has been raised, you are required to pay the difference between the amount you paid and the new fee if your appointment is on or after December 12, 2014.

ARTICLE BY

Barbara Chin
OF
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

CBP Announces Optimized Processing for First-Time Canadian TN and L Applicants

Greenberg Traurig Law firm

U.S. Customs and Border Protection (CBP) has announced optimized processing procedures at fourteen ports-of-entry, including four pre-clearance locations, for Canadian citizens seeking TN or L status for the first time. This initiative is designed to increase customer satisfaction, decrease wait times and allow CBP to effectively deal with increased volume of Canadian TN and L applicants. Although first-time Canadian TN and L applicants may go to other ports for processing, CBP is encouraging applicants to go through one of the designated ports below for optimized processing:

Pre-Flight Inspection Locations

  • Pearson International Airport, Toronto, Ontario

  • Trudeau International Airport, Dorval, Quebec

  • Vancouver International Airport, Richmond, British Columbia

  • Calgary International Airport, Calgary, Alberta

Land Port Locations

  • Highgate Springs Port of Entry, Highgate Springs, Vermont

  • Derby Line Port of Entry, Derby Line, Vermont

  • Alexandria Bay Port of Entry, Alexandria, New York

  • Peace Bridge Port of Entry, Buffalo, New York

  • Rainbow Bridge Port of Entry, Niagara Falls, New York

  • Champlain Port of Entry, Champlain, New York

  • Detroit Canada Tunnel Port of Entry, Detroit, Michigan

  • Detroit Ambassador Bridge Port of Entry, Detroit, Michigan

  • Blaine Peace Arch Port of Entry, Blaine, Washington

  • Sweetgrass Port of Entry,  Sweetgrass Montana

ARTICLE BY

Ian R. Macdonald
OF
Greenberg Traurig, LLP

Department of State Releases October 2014 Visa Bulletin

The bulletin shows slight forward movement in all employment-based preference categories, with the exception of the EB-2 India category, which will remain unchanged.

The U.S. Department of State (DOS) has released its October 2014 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their statuses to that of permanent residents or to obtain approval of immigrant visas at a U.S. embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the October 2014 Visa Bulletin Say?

The October Visa Bulletin shows moderate advancement of the cutoff dates in all of the employment-based categories other than EB-2 India, which will remain unchanged from September because of significant demand in this category.

The cutoff date for F2A applicants from all countries will advance slightly in October.

EB-1: All EB-1 categories will remain current.

EB-2: The cutoff date for applicants in the EB-2 category chargeable to India will remain unchanged at May 1, 2009. The cutoff date for applicants in the EB-2 category chargeable to China will advance by 38 days to November 15, 2009. The EB-2 category for all other countries will remain current.

EB-3: The cutoff date for applicants in the EB-3 category chargeable to India will advance by seven days to November 15, 2003. The cutoff date for applicants in the EB-3 category chargeable to China will advance by 151 days to April 1, 2009. The cutoff date for applicants in the EB-3 category chargeable to the Philippines, Mexico, and the worldwide category will advance by six months to October 1, 2011.

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: April 1, 2009 (forward movement of 151 days)
India: November 15, 2003 (forward movement of seven days)
Mexico: October 1, 2011 (forward movement of 183 days)
Philippines: October 1, 2011 (forward movement of 183 days)
Rest of the World: October 1, 2011 (forward movement of 183 days)

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

The EB-2 category for applicants chargeable to all countries other than China and India has been current since November 2012. The October Visa Bulletin indicates no change to this trend. This means that applicants in the EB-2 category chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through October 2014.

China

The September Visa Bulletin indicated a cutoff date of October 8, 2009 for EB-2 applicants chargeable to China. The October Visa Bulletin indicates a cutoff date of November 15, 2009, reflecting forward movement of 38 days. This means that applicants in the EB-2 category chargeable to China with a priority date prior to November 15, 2009 may file AOS applications or have applications approved in October 2014.

India

The September Visa Bulletin indicated a cutoff date of May 1, 2009 for EB-2 applicants chargeable to India. The October Visa Bulletin indicates a cutoff date of May 1, 2009, reflecting no movement. This means that applicants in the EB-2 category chargeable to India with a priority date prior to May 1, 2009 may file AOS applications or have applications approved in October 2014.

The September Visa Bulletin indicated that the use of potentially “otherwise unused” employment-based visa numbers prescribed by section 202(a)(5) of the Immigration and Nationality Act had allowed the cutoff date in the EB-2 India category to advance rapidly in recent months. The September Bulletin warned that continued forward movement of this cutoff date could not be guaranteed. The October Visa Bulletin indicates no movement of the cutoff date in the EB-2 India category in October in order to regulate demand. It further notes that increased demand will require the retrogression of the cutoff date, possibly in November, to hold number use within the fiscal year 2015 annual limit.

Developments Affecting the EB-3 Employment-Based Category

China

The September Visa Bulletin indicated a cutoff date of November 1, 2008 for EB-3 applicants chargeable to China. The October Visa Bulletin indicates a cutoff date of April 1, 2009 reflecting forward movement of 151 days. This means that applicants in the EB-3 category chargeable to China with a priority date prior to April 1, 2009 may file AOS applications or have applications approved in October 2014.

India

The September Visa Bulletin indicated a cutoff date of November 8, 2003 for EB-2 applicants chargeable to India. The October Visa Bulletin indicates a cutoff date of November 15, 2003, reflecting forward movement of seven days. This means that EB-3 applicants chargeable to India with a priority date prior to November 15, 2003 may file AOS applications or have applications approved in October 2014.

Rest of the World

The September Visa Bulletin indicated a cutoff date of April 1, 2011 for EB-3 applicants chargeable to the worldwide category. The October Visa Bulletin indicates a cutoff date of October 1, 2011, reflecting forward movement of 183 days. This means that applicants in the EB-3 category chargeable to the worldwide category with a priority date prior to October 1, 2011 may file AOS applications or have applications approved in October 2014.

Developments Affecting the F2A Family-Sponsored Category

The September Visa Bulletin indicated a cutoff date of April 22, 2012 for F2A applicants from Mexico. The October Visa Bulletin indicates a cutoff date of July 22, 2012, reflecting forward movement of 91 days. This means that applicants from Mexico with a priority date prior to July 22, 2012 will be able to file AOS applications or have applications approved in October 2014.

The September Visa Bulletin indicated a cutoff date of January 1, 2013 for F2A applicants from all other countries. The October Visa Bulletin indicates a cutoff date of February 1, 2013, reflecting forward movement of 31 days. This means that F2A applicants from all other countries with a priority date prior to February 1, 2013 will be able to file AOS applications or have applications approved in October 2014.

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. See the October 2014 Visa Bulletin in its entirety at the DOS website.

ARTICLE BY

Eric S. Bord
Lisa Stephanian Burton
Tracy Evlogidis
Malcolm K. Goeschl
Eleanor Pelta
A. James Vázquez-Azpiri
OF
Morgan, Lewis & Bockius LLP

October Visa Bulletin – Some Gains in the EB-3 Category, but Near Future Bleak for EB-2 India

Greenberg Traurig Law firm

The Department of State released its October Visa Bulletin today.  On a positive note, the EB-2 category for Chinese nationals has made a five week gain, from October 8, 2009 to November 15, 2009; and the EB-3 category for skilled workers/professionals for Chinese nationals has jumped five months, from November 1, 2008 to April 1, 2009.  The EB-3 category will advance six months for nationals of “all other countries” from April 1, 2011 to October 1, 2011; whereas it will only move forward a week for Indian nationals from November 8, 2003 to November 15, 2003.  Elsewhere, the EB-2 category for Indian nationals remains at May 1, 2009 and, unfortunately, this category is likely to retrogress over the next several months because of a spike in demand.  This is grim reading for Indian nationals who account for a large percentage of highly-skilled workers seeking permanent residence in the United States.  Indeed, based on current retrogression dates for Indians in the EB-3 category, priority dates are moving forward one week every month, which translates to a wait time of more than forty years.

Employment Based Category

All Other Countries

China

India

Mexico

Philippines

EB-1

Current

Current

Current

Current

Current

EB-2

Current

10/08/2009

05/01/2009

Current

Current

EB-3 Skilled Workers/Professionals

04/01/2011

11/01/2008

11/08/2003

04/01/2011

04/01/2011

EB-3 Other Workers

04/01/2011

07/22/2005

11/08/2003

04/01/2011

04/01/2011

 

ARTICLE BY

Ian R. Macdonald
 
OF 
Greenberg Traurig, LLP

DOL Institutes Enhanced Password Requirements for Permanent Case Management System (PERM) Users

Greenberg Traurig Law firm

Effective August 25, 2014, the Department of Labor (DOL) has instituted enhanced password requirements for Permanent Case Management System (PERM) users. In the next 90 calendar days, current PERM users will be required to update existing passwords to meet the new security criteria. In addition, all PERM users will be required to update their passwords every 90 days. The DOL sends reminder emails on the 75th, 80th, 85th, 88th, 89th, and 90th day. Users may also choose to update their password at any time prior to expiration. Should the password expire, the user will be required to re-activate the account by identifying himself or herself and answering a secret question correctly. The DOL will send a temporary password for the user to access the PERM account and set up a new password.

The new password must meet the following criteria: 1) 8-15 characters, 2) one special character, 3) one upper case letter, 4) one lower case letter, 4) one number, and 5) no recycling of a prior password used in the past 12 passwords. For detailed instructions regarding the new password rollout, you can review the DOL’s Quick Start Guide.

ARTICLE BY

Emily R. Liss
 
OF 
Greenberg Traurig, LLP

DOL Institutes Enhanced Password Requirements for Permanent Case Management System (PERM) Users

Greenberg Traurig Law firm

Effective August 25, 2014, the Department of Labor (DOL) has instituted enhanced password requirements for Permanent Case Management System (PERM) users. In the next 90 calendar days, current PERM users will be required to update existing passwords to meet the new security criteria. In addition, all PERM users will be required to update their passwords every 90 days. The DOL sends reminder emails on the 75th, 80th, 85th, 88th, 89th, and 90th day. Users may also choose to update their password at any time prior to expiration. Should the password expire, the user will be required to re-activate the account by identifying himself or herself and answering a secret question correctly. The DOL will send a temporary password for the user to access the PERM account and set up a new password.

The new password must meet the following criteria: 1) 8-15 characters, 2) one special character, 3) one upper case letter, 4) one lower case letter, 4) one number, and 5) no recycling of a prior password used in the past 12 passwords. For detailed instructions regarding the new password rollout, you can review the DOL’s Quick Start Guide.

ARTICLE BY

Emily R. Liss
 
OF 
Greenberg Traurig, LLP

Department of State Releases September 2014 Visa Bulletin

Morgan Lewis logo

The bulletin shows continued forward movement in the EB-2 India category while the cutoff dates in most other employment-based categories remain unchanged.

The U.S. Department of State (DOS) has released its September 2014 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their statuses to that of permanent residents or to obtain approval of immigrant visas at a U.S. embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the September 2014 Visa Bulletin Say?

After several months of significant movement in both directions, the September Visa Bulletin shows no movement in any of the employment-based categories other than continued forward movement in the EB-2 India and EB-3 Philippines categories. Such continued forward movement in the EB-2 India category cannot be guaranteed; once significant demand in this category occurs, the cutoff date is likely to once again retrogress.

The cutoff date for F2A applicants from all countries will advance significantly in September.

EB-1: All EB-1 categories will remain current.

EB-2: The cutoff date of January 22, 2009 for applicants in the EB-2 category chargeable to India will advance by slightly more than three months to May 1, 2009. The cutoff date of October 8, 2009 for applicants in the EB-2 category chargeable to China will remain unchanged. The EB-2 category for all other countries will remain current.

EB-3: The cutoff date of November 8, 2003 for applicants in the EB-3 category chargeable to India will remain unchanged. The cutoff date of November 1, 2008 for applicants in the EB-3 category chargeable to China will also remain unchanged. The cutoff date of June 1, 2010 for applicants in the EB-3 category chargeable to the Philippines will advance by 10 months to April 1, 2011. The cutoff date of April 1, 2011 for applicants chargeable to Mexico and the Rest of the World will remain unchanged.

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: November 1, 2008 (no movement)
India: November 8, 2003 (no movement)
Mexico: April 1, 2011 (no movement)
Philippines: April 1, 2011 (forward movement of 10 months)
Rest of the World: April 1, 2011 (no movement)

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

The EB-2 category for applicants chargeable to all countries other than China and India has been current since November 2012. The September Visa Bulletin indicates no change to these categories. This means that applicants in the EB-2 category chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through September 2014.

China

The August Visa Bulletin indicated a cutoff date of October 8, 2009 for EB-2 applicants chargeable to China. The September Visa Bulletin indicates no change to this cutoff date. This means that applicants in the EB-2 category chargeable to China with a priority date prior to October 8, 2009 may file AOS applications or have applications approved in September 2014.

India

The August Visa Bulletin indicated a cutoff date of January 22, 2009 for EB-2 applicants chargeable to India. The September Visa Bulletin indicates a cutoff date of May 1, 2009, reflecting forward movement of 99 days. This means that applicants in the EB-2 category chargeable to India with a priority date prior to May 1, 2009 may file AOS applications or have applications approved in September 2014.

The September Visa Bulletin notes that the use of potentially “otherwise unused” employment-based visa numbers prescribed by section 202(a)(5) of the Immigration and Nationality Act has allowed the cutoff date in the EB-2 India category to advance rapidly in recent months. The Visa Bulletin warns that continued forward movement of this cutoff date in upcoming months cannot be guaranteed, and no assumptions should be made until the dates are formally announced. Once there is a significant increase in demand in this category, it will be necessary to retrogress the cutoff date, possibly as early as November, to hold numbers within the fiscal year 2015 annual limit. 

Developments Affecting the EB-3 Employment-Based Category

China

The August Visa Bulletin indicated a cutoff date of November 1, 2008 for EB-3 applicants chargeable to China. The September Visa Bulletin indicates no change to this cutoff date. This means that only applicants in the EB-3 category chargeable to China with a priority date prior to November 1, 2008 may file AOS applications or have applications approved in September 2014.

India

The August Visa Bulletin indicated a cutoff date of November 8, 2003 for EB-2 applicants chargeable to India. The September Visa Bulletin indicates no change to this cutoff date. This means that only EB-3 applicants chargeable to India with a priority date prior to November 8, 2003 may file AOS applications or have applications approved in September 2014.

Rest of the World

The August Visa Bulletin indicated a cutoff date of April 1, 2011 for EB-3 applicants chargeable to the Rest of the World. The September Visa Bulletin indicates no change to this cutoff date. This means that only applicants in the EB-3 category chargeable to the Rest of the World with a priority date prior to April 1, 2011 may file AOS applications or have applications approved in September 2014.

Developments Affecting the F2A Family-Sponsored Category

The August Visa Bulletin indicated a cutoff date of March 15, 2011 for F2A applicants from Mexico. The September Visa Bulletin indicates a cutoff date of April 22, 2012, reflecting forward movement of 404 days. This means that applicants from Mexico with a priority date prior to April 22, 2012 will be able to file AOS applications or have applications approved in September 2014.

The August Visa Bulletin indicated a cutoff date of May 1, 2012 for F2A applicants from all other countries. The September Visa Bulletin indicates a cutoff date of January 1, 2013, reflecting forward movement of 245 days. This means that worldwide, F2A applicants with a priority date prior to January 1, 2013 will be able to file AOS applications or have applications approved in September 2014.

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. To see the September 2014 Visa Bulletin in its entirety, please visit the DOS website.

ARTICLE BY

Eric S. Bord
Lisa Stephanian
Burton
Tracy Evlogidis
Malcolm K. Goeschl
Eleanor Pelta
A. James Vázquez-Azpiri
 
OF
Morgan, Lewis & Bockius LLP

E-Verify Update and Improvements

Poyner Spruill Law firm

​E-Verify has been operational since 1997 as part of a Basic Pilot Program to assist employers to verify electronically that a newly hired employee is authorized to work in the US.  A number of states have made use of E-Verify mandatory, including North Carolina which requires that employers with 25 employees to have been enrolled in E-Verify by July 1, 2013.

Update

Currently there are over 530,000 employers nationwide enrolled in E-Verify.  Statistically, the program has grown rapidly as has its accuracy, having verified close to 24 million cases.  Of those, 98.81% have been confirmed as employment authorized.  The US Citizenship and Immigration Services (USCIS) graphic below provides E-Verify’s latest statistics:

E-verify

The Monitoring and Compliance Branch (M&C Branch) was created by the USCIS in 2009 to ensure E-Verify is being used properly.  Its main function is to monitor and guide E-Verify participants by phone, email, desk reviews and site visits.  This unit does not fine employers, but does refer cases of suspected misuse, abuse or fraud to Immigration Customs and Enforcement (ICE) and the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).  There has been an uptick in complaints to the OSC resulting in some sizeable settlements.  All settlement agreements described on the OSC website have one thing in common: all employers participated in E-Verify and the OSC became involved, for the most part, by the USCIS referring the employer to OSC.  Thus, it is noteworthy that participation in E-Verify alone does not protect an employer from enforcement action and penalties.

Recent Improvements to E-Verify System

E-Verify has announced some needed improvements to its system to assist employers who, in doing so, will hopefully not attract M&C Branch attention:

  • Duplicate Case alert now notifies the employer if a social security number  matches any other social security number entered for an existing case with the past 30 days.
  • The user’s name no longer auto-fills: it must now be completed each time to ensure accuracy, providing a prompt to validate or update email and phone number whenever the user’s password expires, which is every 90 days.
  • An employee whose information is entered in E-Verify resulting in a tentative nonconfirmation will receive email notification if they provide their email address on the Form I-9.
  • There is a new photo tool that will display any photo on record with E-Verify, enabling the user to compare it to the photo ID being presented.
  • E-Verify now verifies a driver’s license as to authenticity by matching the data entered by the user against participating state motor vehicle department records. Currently, North Carolina does not participate in this so-called RIDE system.
  • If E-Verify detects fraudulent use of a social security number, it prevents that number from being used more than once.
  • Notices generated by E-Verify are now available in 18 languages.
  • There are monthly webinars in Spanish for employers.
  • E-Verify screens for typographical errors and requires employers to correct them.
  • The Further Action Notice that is generated after a Tentative Nonconfirmation from the Department of Homeland Security includes instructions on how to correct immigration records after resolving the Tentative Nonconfirmation on E-Verify.
  • Updated Further Action Notices are also no longer pre-populated, but are easy to complete.
  • Customer support has been improved and includes an “E-Verify Listens” link that can be accessed by the E-Verify user while in the E-Verify system to assist with E-Verify completion.

While the system is not perfect, it is increasingly pervasive and increasingly “user friendly.”  Further, employers have a strong incentive to use E-Verify properly to avoid settlements generated by  enforcement actions that appear to be directly linked to E-Verify misuse, abuse and fraud.

ARTICLE BY

Jennifer G. Parser
OF
Poyner Spruill LLP

Update on USCIS Processing Time for I-526, I-829 and I-924 Petitions

Greenberg Traurig Law firm

On July 17, 2014, USCIS released updated processing times for EB-5 related petitions. The following chart provides the average processing times for cases being adjudicated by the Immigrant Investor Program Office (IPO), as May 31, 2014:

Form Processing Timeframe
as of May 31, 2014

I-526, Immigrant Petition by Alien Entrepreneur

 13.2 months

I-829, Petition by Entrepreneur to Remove Conditions

 7.9 months
I-924, Application for Regional Center 5.4 months

USCIS reminds I-526 applicants that case status can be checked online at www.uscis.gov or through an email to USCIS.ImmigrantInvestorProgram@uscis.dhs.gov.

Article By:

Ali Brodie
Of:
Greenberg Traurig, LLP