Agencies announce efforts to attract foreign entrepreneurial talent to the U.S.
ICE announced that a memorandum of agreement between ICE and a state is not required to operate Secure Communities in that state.
The failure to prove every element of a bona fide termination left an employer who petitioned for an H-1B worker's admission liable for the entire period of authorized employment.
When processing for EADs is delayed, individuals and employers experience adverse consequences; the Department of Homeland Security's Ombudsman has made related recommendations.
Among other things, the maximum response time for an RFE may not exceed 12 weeks (84 days).
Comments will be accepted until September 12, 2011.
The worldwide employment-based preference numerical limit for fiscal year (FY) 2011 is 140,000.
The new agreement concerns the issuance of nonimmigrant business, tourist, private, and humanitarian visas to the Russian Federation, and business and tourist visas to the U.S., as well as short-term official travel visas to both countries.
U.S. Citizenship and Immigration Services (USCIS) released data on EB-5 filings and regional centers (RCs) for FY 2010 and the first two quarters of FY 2011.
Upcoming and recent speaking engagements and recent publications.
1. DHS, USCIS Announce Initiative to Promote Startups and Spur Job Creation
On August 2, 2011, Secretary of Homeland Security Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas announced a series of “policy, operational, and outreach efforts” to fuel the U.S. economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability or those who can create jobs, form startup companies, and invest capital in areas of high unemployment.
The DHS/USCIS announcement noted the following:
USCIS will conduct internal training on the unique characteristics of entrepreneurial enterprises and startup companies and incorporate input from a new series of stakeholder engagements.
The employment-based second preference (EB-2 visa) classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements may be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the U.S. USCIS noted in updated Eb-2 policy guidance that entrepreneurs may obtain an EB-2 immigrant visa if they satisfy the existing requirements, and also may qualify for a national interest waiver under that visa category if they can demonstrate that their business endeavors will be in the interest of the U.S.
In response to previous stakeholder feedback, USCIS has updated its existing FAQs to clarify that an H 1B beneficiary who is the sole owner of the petitioning company may establish a valid employer employee relationship for the purposes of qualifying for an H-1B nonimmigrant visa.
USCIS is “transforming” the EB-5 immigrant investor intake and review process. In May, USCIS proposed extending the availability of premium processing for certain EB-5 applications and petitions, implementing direct lines of communication between applicants and USCIS, and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. After reviewing stakeholder feedback on this proposal, USCIS is developing a “phased plan to roll out these enhancements and is poised to begin implementing the first of these enhancements within 30 days” of August 2, 2011.
As of June 30, 2011, USCIS estimated that the EB-5 program has resulted in more than $1.5 billion in capital investments and created at least 34,000 U.S. jobs.
Premium processing service is being expanded for Form I-140 immigrant petitions for multinational executives and managers.
Finally, USCIS is launching a new series of engagement meetings for entrepreneurs and startup companies. These meetings will focus on soliciting input from stakeholders on how USCIS can address the unique circumstances of entrepreneurs, new businesses, and startup companies through its employment-based policies and regulations. USCIS also seeks feedback on examples of the business lifecycle for entrepreneurial ventures, small businesses, and startups, to include initial funding available, typical organizational structure, ownership structure, and payment of salaries; and examples of typical business plans for entrepreneurs and startups.
2. ICE Declares 'Secure Communities' Mandatory, Not Optional
U.S. Immigration and Customs Enforcement (ICE) Director John Morton sent a letter on August 5, 2011, to governors terminating all existing Secure Communities memoranda of agreement “to clarify an issue that has been the subject of substantial confusion,” which is that “[a memorandum of agreement (MOA)] between ICE and a state is not required to operate” Secure Communities in that state. In recent months, several state and local jurisdictions had signed MOAs before participating, and some states subsequently attempted to rescind their MOAs.
Noting that participation in the program is not optional, ICE said that “[o]nce a state or local law enforcement agency voluntarily submits fingerprint data to the federal government, no agreement with the state is legally necessary for one part of the federal government to share it with another part.” ICE said it plans to continue expanding the program and hopes to achieve nationwide activation by 2013.
Secure Communities uses an already existing federal information-sharing partnership between ICE and the Federal Bureau of Investigation (FBI). For decades, local jurisdictions have shared the fingerprints of individuals who are booked into jails with the FBI to see if they have a criminal record. Under Secure Communities, the FBI automatically sends the fingerprints to ICE to check against its immigration databases. If these checks reveal that an individual is unlawfully present in the U.S. or otherwise removable due to a criminal conviction, ICE takes enforcement action, prioritizing the removal of individuals who present the most significant threats to public safety as determined by the severity of their crime, their criminal history, and other factors, as well as those who have repeatedly violated immigration laws.
ICE noted that “Secure Communities imposes no new or additional requirements on state and local law enforcement,” and that “the federal government, not the state or local law enforcement agency, determines what immigration enforcement action, if any, is appropriate.”[Back to Top]
3. Company Held Liable for 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.[Back to Top]
4. EAD Processing Delays Cause Hardship, Ombudsman Says
The Department of Homeland Security’s Ombudsman noted on July 11, 2011, that U.S. Citizenship and Immigration Services (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.[Back to Top]
5. 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 U.S. 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.[Back to Top]
6. USCIS Submits Revision of Basic Pilot Verification MOU to OMB for Review
U.S. Citizenship and Immigration Services (USCIS) submitted for Office of Management and Budget review the memorandum of understanding (MOU) to participate in the Basic Pilot Employment Eligibility Program (E Verify). USCIS is encouraging comments, which will be accepted until September 12, 2011.
USCIS estimates that 125,015 respondents will complete the MOU, and that 521,134 employers will register to participate in the program.[Back to Top]
7. DOS 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.[Back to Top]
8. DOS 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.[Back to Top]
9. USCIS Releases EB-5 Investor Statistics
U.S. Citizenship and Immigration Services (USCIS) released data on EB-5 filings and regional centers (RCs) for fiscal year (FY) 2010 and the first two quarters 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 steep 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 (Petition 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.[Back to Top]
10. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online: https://egov.uscis.gov/cris/jsps/ptimes.jsp
Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm
Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html
11. New Publications and Items of Interest
E-Verify Webinars. U.S. Citizenship and Immigration Services is offering a series of free webinars on the employment verification process and E-Verify. Several are scheduled for late August.
“Trusted employers” and boosting the economic contribution of employment-based immigration. In its recently released report, “Eight Policies to Boost the Economic Contribution of Employment-Based Immigration,” the Migration Policy Institute (MPI) recommends many solutions to enhance economic growth and competition through employment-based immigration reform. MPI’s report suggests enabling governments to differentiate between higher and lower-risk employers through a preapproval system. The idea is to reward such employers with “simplified application procedures or similar benefits. For example, a “trusted employer” concept would allow employers with demonstrated processes, resources, and tracking systems in place to comply with U.S. immigration laws to spend less time on repetitive paperwork and more time on their most critical goals – creating jobs and growing the economy. MPI notes, “Employers are central to immigration systems.”
New USCIS data reports webpage. U.S. Citizenship and Immigration Services (USCIS) is posting online new data reports on agency performance in a broad range of data and operational areas. USCIS said the reports were prepared at the request of agency stakeholders. The agency’s Office of Performance and Quality has released 10 data sets. Several will be updated periodically, including processing times and performance data for the Application for Naturalization (Form N-400), performance data for the Application to Register Permanent Residence or Adjust Status (Form I-485), and the total number of receipts and approvals by quarter and year to-date for all form types. The webpage also includes data on employment-based benefit requests, such as a quarterly report on temporary agricultural worker (H-2A) performance data by state and company.
Analysis of H.R. 2164, the Legal Workforce Act. The National Foundation for American Policy has released a policy brief, “We Should Trust, But Not E-Verify: An Analysis of H.R. 2164,” which argues that “H.R. 2164, the Legal Workforce Act, would make the American workplace less free, ensnare U.S. workers in government agency errors, expand the size and role of government and is likely to be ineffective in reducing the illegal immigration population in the United States.” Among other things, the policy brief notes that the Congressional Budget Office (CBO) estimated that mandating E-Verify nationwide would increase federal spending by approximately $6 billion from 2009 to 2013 and by about $12 billion from 2009 to 2018. The brief states that the CBO estimated the 2008 bill would lead to a decline of $17 billion in tax revenue over 10 years, caused primarily by pushing undocumented workers into the underground economy.[Back to Top]
12. Klasko News
Upcoming Speaking Engagements
On September 16, 2011, Elise Fialkowski (Elise) will be a panelist on “Denver Nuggets of Gold: Where Taxation and Immigration Meet” at the 2011 AILA Fall Conference in Denver. This panel will discuss the intended and unintended tax consequences of immigration benefits. Topics will include:
- Tips for Reading those Tax Documents
- Income Tax Rules for Tax Residents and Noncitizens
- When Do you Have to Withhold for NIVs?
- Tax Considerations for AOS and Tax Consequences of Approval
- When, Why and How to Amend Returns
- International Estate Tax Issues
- Tax Returns and Good Moral Character
For more information on these topics, write to Elise at email@example.com.
Elise will serve as a panelist on “Comprehensive I-9 Question and Answer Session,” the final session of a webinar series sponsored by LawLogix on Wednesday, September 21 at 11:30 am EST. This session will be devoted exclusively to answering questions gathered from the first two webinars in this series. The panelists will also field additional questions throughout the webinar and provide the latest updates on I-9 enforcement policies and practices. To register for this free webinar, click here.
In the News
William A. Stock (Bill) was quoted in the Philadelphia Daily News regarding AILA’s report entitled “Immigration Enforcement Off Target: Minor Offenses With Major Consequences.” This report is based on a compilation of 200 cases nationwide of immigrant clients who were arrested by local law enforcement and eventually detained by ICE. For more on this report, please contact Bill at firstname.lastname@example.org.
Recent Speaking Engagements
On August 24, Elise served as a panelist on “Back to the Basics: An Introductory Guide to the Form I-9,” part one of a three part webinar series sponsored by LawLogix. This session explored fundamental I-9 concepts and offered a “how-to” guide on completing sections 1, 2, and 3 of the Form I-9. The Back to the Basics webinar series focuses on helping HR practitioners understand the fundamentals of Form I-9 preparation and learn the basics for completing an I-9 correctly. For more information on I-9s, please contact Elise at email@example.com.
On August 16, 2011, H. Ronald Klasko (Ron) participated in “How to Successfully Navigate the Back End of the EB-5 Process for Both Individual Investors and Regional Centers,” the last part of a webinar series sponsored by the Alliance of Business Immigration Lawyers (ABIL) and Invest in the USA. The three-part webinar series was developed to help guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The series explains immigration options and offer practical real-world strategies. A recording of each session is available for purchase. For more information and to purchase, click here.
On August 12, 2011, Ron discussed “EB-5 and USCIS Policy/Law Update” at the 1st Annual EB-5 International Investment & Economic Development Forum in Seattle. Ron discussed how USCIS is currently implementing new processing for EB-5 cases and reviewing all EB-5 policy, with more changes likely to come soon. Ron also discussed what these changes mean for the EB-5 Program and what other changes can be expected in the future.
On August 5, 2011, Ron discussed “A Guide to EB-5 Investment” at the Archbishop Edward A. McCarthy Pastoral Center in Miami Shores, Florida. Ron talked about regional center vs. individual EB-5 petitions, tips for forming a regional center EB-5 and alternatives to forming a new regional center, considerations in filing Forms I-526 and I-829, and dealing with the hot issues of material change and TEA designation. For more information on the EB-5 program, visit www.eb5immigration.com or write to Ron at firstname.lastname@example.org.
Ron was the keynote speaker at the 2011 EB-5 Investment Summit: Dealmakers Conference on July 29, 2011. This one day dynamic EB-5 investment summit featured expert speakers and VIP guests from the U.S., China, and Korea to provide a comprehensive overview on the federal EB-5 regional center immigrant investors’ visa program in Asian and Chinese markets.
On July 22, 2011, Elise presented on worksite enforcement and employer compliance at the Pennsylvania Bar Institute seminar entitled “Immigration Law for the General Practitioner” in Philadelphia. The presentation was broadcast live throughout Pennsylvania. Her talk focused on increased enforcement by government agencies including Immigration Customs and Enforcement, the Department of Justice Office of Special Counsel and the Department of Labor. Elise highlighted recent trends and provided guidance and strategies for employers to minimize potential liability. For more information on worksite compliance, write to Elise at email@example.com.
Jennifer Hermansky (Jen) and Kate Kalmykov (Kate), along with other co-authors, published the chapter “Immigration and Naturalization” in the American Bar Association’s reference book Developments in Administrative Law and Regulatory Practice 2010. The chapter reviews important developments in immigration law in 2010 and is available for purchase at http://apps.americanbar.org/abastore. Jen discussed developments at the Board of Alien Labor Certification Appeals and the impact of the Supreme Court decision Padilla v. Kentucky. Kate discusses the impact of the December 2009 Neufeld memorandum on EB-5 adjudications.[Back to Top]