It was reported that the new actions bring the fiscal year 2011 I-9 audit total to 2,338, surpassing the fiscal year 2010 record of 2,196.
2. USCIS Summarizes Stakeholder Engagement on L-1B Interpretation of ‘Specialized Knowledge’
USCIS reported, among other things, that an overwhelming majority of stakeholders asserted that the existing regulatory definition of “specialized knowledge” and USCIS policy memoranda relating to this issue are “fine as written, and there is no need to issue any new policy memorandum.” Some stakeholders reportedly said that the definition of “specialized knowledge” should be interpreted more broadly than is currently being practiced at the service centers. Stakeholders noted that USCIS is interpreting the definition too narrowly, as evidenced by Requests for Evidence (RFE) and denials that many petitioners are receiving for this category. One stakeholder stated that it appears that USCIS has made a change in its interpretation in recent years without any change in the law. Some stakeholders said that the current interpretation did not meet the needs of employers because it was being too strictly and narrowly interpreted. They suggested that it would better serve employers if there were more flexibility and a broader interpretation of the term. USCIS said it “will provide additional guidance and training to USCIS officers adjudicating L-1B petitions.”
3. House Judiciary Committee Approves Bill To Reauthorize Temporary Nurse Program
The prior H-1C program allowed 500 foreign nurses per year to work in the United States. H.R. 1933 would reduce that number to 300 per year. The bill would benefit about 14 hospitals around the country.
House Judiciary Committee Chairman Lamar Smith (R-Tex.), the bill’s sponsor, praised the Committee vote: “A number of American hospitals have great difficulty attracting nurses. These include hospitals that serve mostly poor patients in inner-city neighborhoods and some hospitals in rural areas. For example, St. Bernard Hospital in Chicago is the only remaining hospital in an area of over 100,000 people and almost all of its patients live in poverty. St. Bernard almost closed its doors in 1992, primarily because of its inability to attract registered nurses. I introduced H.R. 1933 to help St. Bernard and other similar hospitals. The bill reauthorizes the H-1C program for an additional three years. Just as nurses ensure care for the sick, the H-1C program ensures continued care for patients in inner-city and rural communities.”
4. Senate Holds Hearing on DREAM Act of 2011
Secretary Napolitano said the Obama administration “strongly supports the DREAM Act.” She noted that in the closing days of the 111th Congress, the DREAM Act passed the House of Representatives with bipartisan support and fell a few votes short in the Senate. She commended Sen. Durbin and the 34 co-sponsors who have signed onto the bill thus far. She said the DREAM Act would ” allow the Department to devote a greater portion of limited DHS resources to removing individuals who actually pose a risk to public safety or security.” She said the DREAM Act would do this “by providing a firm but fair way for individuals brought into our country as children Р through no fault of their own Р to obtain legal status by pursuing higher education, or by serving in the U.S. Armed Forces for the country where they have grown up and which they consider their home.”
She noted that, as introduced in the Senate, the DREAM Act “establishes a rigorous process for those who entered the United States illegally as children to obtain conditional permanent resident status by proving that they meet several strict requirements.” Those applying for conditional permanent resident status, she said, would also need to submit biometric and biographic data and undergo security and law enforcement background checks and a medical examination. Without the DREAM Act, Secretary Napolitano said, “young people will continue to be caught up in the immigration removal system, siphoning resources away from other, more pressing needs.” She said that it does not make sense from a law enforcement or public safety perspective “to devote limited enforcement resources on young people who pose no threat to public safety, who were brought to this country illegally by no fault of their own and have grown up here, and who want to contribute to our country by serving in the military or going to college.”
5.КК Democrats Reintroduce Comprehensive Immigration Reform Bill
The 679-page bill is similar to legislation introduced by Sen. Menendez and other Democrats in September 2010. Senate Majority Leader Harry Reid (D-Nev.), along with Sens. Patrick Leahy (D-Vt.), Dick Durbin (D-Ill.), Charles Schumer (D-N.Y.), and Kirsten Gillibrand (D-N.Y.), co-sponsored the legislation. The bill includes measures to strengthen border security, enhance worksite enforcement of immigration laws, and requirements that the estimated 11 million undocumented people in the U.S. register with the government, pay taxes, learn English, pay a fine, pass a background check, and wait in line for permanent residence.
The bill also includes a mandatory employment verification system, and enforcement measures such as additional resources for the Border Patrol; expanded penalties for passport and document fraud; new requirements for the Department of Homeland Security to track entries and exits at the border; rules governing detention to ensure that U.S. citizens are not unlawfully detained; and new criminal penalties for fraud and misuse of Social Security numbers.
A “Standing Commission on Immigration, Labor Markets, and the National Interest” would be created as part of the bill to evaluate labor market and economic conditions and recommend numerical limits for employment-based visa programs to Congress.
The bill received broad praise from immigrants’ rights groups, who stressed the importance of addressing all aspects of the nation’s broken immigration system instead of focusing on standalone measures such as an E-Verify mandate.
6. Sen. Lamar Smith Introduces Mandatory E-Verify Bill
Opponents of the bill argue that there are not enough U.S. workers available to fill the estimated 8 million jobs held by undocumented workers, 90 percent of which are non-agricultural. Statements from SEIU, the National Immigration Law Center, and others echoed the idea that an E-Verify mandate without a path to legalization for undocumented workers already in the United States would undermine the U.S. economy.
7. DOS Speaks on J-1 Summer Work Travel Interim Final Rule
The transcript is available at
8. ‘B-1 in Lieu of H-1B’ Option Under Threat
The probe comes on the heels of a lawsuit filed by an Infosys employee alleging that Infosys has been misusing the B-1 visa program. After the lawsuit was filed, Sen. Chuck Grassley (R-Iowa) sent a letter on April 14, 2011, to Secretary of State Hillary Clinton and Secretary of Homeland Security Janet Napolitano demanding an investigation. The Department of State responded on May 13, and Sen. Grassley issued a comment on May 25. The Department of State said, “We are in the process of discussing with [the Department of Homeland Security] removing or substantially modifying the B-1 in lieu of H guidelines, which State first proposed eliminating in a 1993 Federal Register notice.” The letter says such a change “requires DHS coordination and may require Federal Register notice, thus it may take some time before…any change is implemented.”
9. NLRB Updates Immigration Status Procedures During NLRB Proceedings
Supplementing earlier guidance (GC 02-06, available at
The memo notes that NLRB discriminatees, witnesses, or voting-eligible employees may be taken into custody by immigration officials. In addition, immigration status may be inextricably intertwined with an unfair labor practice, such as where immigration threats or related conduct are the basis of the unfair labor practice allegation. Or the issue may be as simple as an employee volunteering information about immigration status or asking NLRB officials for immigration advice or assistance.
NLRB officials “should not provide immigration advice,” the memo notes. “Resolution of these issues is best addressed when employees can obtain immigration advice through their union or from an independent immigration attorney.” NLRB officials may refer interested persons to the list of accredited immigration services providers maintained by the Department of Justice and found at http://www.justice.gov/eoir/statspub/raroster.htm. The memo notes that individuals sometimes are mistaken about their immigration status and NLRB officials should not assume that immigration status information volunteered by an unrepresented person is correct.
The memo also notes that in certain cases where immigration status is of particular significance, the agency may decide to seek the assistance of one of the three immigration agencies (U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, or U.S. Customs and Border Patrol) to advance the effective enforcement of the NLRA. Such agencies may assist in providing visa remedies, deferring immigration actions during the pendency of the NLRB proceeding, and/or releasing individuals from custody or providing access to witnesses in custody.
10. How to Protect Personal Data in Redesigned Green Card
USCIS provides a foil envelope encasing the new card, and advises permanent residents to keep the card in the envelope at all times to prevent unwanted wireless communication with the RFID chip. Because the RFID chip can be scanned by any RFID scanner within a reasonable distance, the envelope is needed to block the effective range of the chip, reducing the possibility that personal data may be electronically “pick-pocketed.”
CBP has implemented “Ready Lane” pilot programs at various ports of entry, including El Paso and Donna, Texas, and Otay Mesa, California. RFID technology expedites travel across the land border because CBP officers do not have to manually enter traveler information during the primary inspection. Thus, RFID-enabled travel documents reduce the time it takes to process travelers at the border.
To use Ready Lane, travelers should follow three simple steps as they approach a U.S. land port of entry with their RFID-enabled green card: (1) stop at the entry to the inspection lane and wait for a signal to move forward; (2) remove the green card from its protective envelope and hold it up with the flat front face of the card toward a window on the driver’s side. The RFID chip will be read automatically while the vehicle proceeds to the inspection booth; and (3) stop at the inspection booth and be prepared to present documents for all travelers in the vehicle to the CBP officer.
11. USCIS Ombudsman Issues Advice to Employers on Documenting the ‘Temporary’ Nature of H-2B Work
The Ombudsman explained that employers seeking to participate in this program must establish to USCIS’s satisfaction that their need for temporary non-agricultural services or labor is either seasonal, due to a peakload need, intermittent, or a one-time occurrence. While temporary needs of a significant length may be approved as a one-time occurrence, the petitionerХs business need must be temporary, such as 10 months or less, the Ombudsman said. H-2B workers are commonly employed in the landscaping, hotel, recreation, and forestry industries based upon seasonal need.
To establish seasonal need, the Ombudsman noted, petitioners must show that the service or labor is related to a season of the year by an event or pattern that recurs annually. “It is recommended that petitioners also specify the period(s) of time during each year in which they do not need the services or labor,” the Ombudsman said.
H-2B petitions are by their nature time sensitive, and petitioners are on tight time schedules for filing their submissions with the Department of Labor (DOL) and USCIS. Delays in submission or processing can have serious financial consequences for employer petitioners.
To minimize the likelihood of receiving an RFE, the Ombudsman suggested that petitioners may want to support their initial submissions to USCIS with additional documentation “that clearly demonstrates that a specific work need covered by the petition is temporary, tied to a predictable peakload period or is seasonal, and will reoccur annually on the same or similar cycle.”
USCIS told the Ombudsman that it also would be helpful to include with the H-2B petition:
The Ombudsman’s update is available at http://www.dhs.gov/files/publications/gc_1305648318975.shtm.
On June 13, 2011, U.S. Citizenship and Immigration Services (USCIS) launched “Records and Information from DMVs for E-Verify (RIDE),” a new feature that allows the agency’s E-Verify program to validate the authenticity of Mississippi driver’s licenses used by employees as Form I-9 identity documents.
More than 80 percent of employees present driver’s licenses to establish their identities when undergoing the I-9 employment authorization verification process. By enabling E-Verify to compare driver’s license data against state records, USCIS said, RIDE will improve E-Verify’s accuracy and help combat document fraud while observing safeguards to protect employees’ personal data. “RIDE helps combat document fraud by enabling E-Verify to confirm the authenticity of an additional identity document,” USCIS said. For example, previously, if an employee presented a driver’s license to establish his or her identity and a Social Security card to establish his or her authorization to work, E-Verify would only have been able to confirm the validity of the Social Security card. RIDE enables E-Verify employers in Mississippi to confirm the validity of both documents.
The new E-Verify RIDE feature builds on existing technology and infrastructure that the Mississippi Department of Public Safety (MDPS) and other state public safety departments use in conjunction with the American Association of Motor Vehicle Administrators. Mississippi is the first state to partner with USCIS to implement RIDE.
Currently, 4,336 employers representing more than 9,000 worksites in Mississippi use E-Verify. Nationwide, more than 269,000 employers at over 900,000 worksites are enrolled in the E-Verify program.
USCIS’s announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=304cadec01a80310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.
North Carolina Governor Beverly Purdue signed HB 36 into law on June 23, 2011. The new law mandates that counties, cities, and employers with at least 25 employees use E-Verify to verify the work authorization of new hires. The law does not apply to seasonal temporary employees who are employed for 90 or fewer days during a consecutive 12-month period.
The law specifies that the Commissioner of Labor may subpoena employment records relating to “the recruitment, hiring, employment, or termination policies, practices, or acts of employment” as part of an investigation of a valid complaint.
The text of the ratified bill is available at http://www.ncga.state.nc.us/Sessions/2011/Bills/House/HTML/H36v7.html.
U.S. Immigration and Customs Enforcement (ICE) has announced special temporary relief until December 31, 2011, for certain F-1 Libyan students who have suffered severe economic hardship as a direct result of the civil unrest in Libya since February 2011.
ICE has published a notice in the Federal Register suspending certain regulatory requirements to allow eligible Libyan F-1 students to obtain employment authorization, work an increased number of hours during the school term, and, if necessary, reduce their course load while continuing to maintain their F-1 student status.
Approximately 2,000 F-1 students from Libya are enrolled in schools in the U.S. This relief applies only to students who were lawfully present in the U.S. in F-1 status as of February 1, 2011, and enrolled in an institution certified by ICE’s Student and Exchange Visitor Program (SEVP). The notice applies to both undergraduate and graduate students, as well as elementary school, middle school, and high school students. The notice, however, applies differently to elementary school, middle school, and high school students, as discussed in the notice.
An ICE fact sheet is available at http://www.ice.gov/news/library/factsheets/libyan-student-employment.htm. The Federal Register notice is available at http://www.gpo.gov/fdsys/pkg/FR-2011-06-10/pdf/2011-14482.pdf.
EU Blue Card and Dutch Migrant Scheme
The European Union (EU) Blue Card is a residence and work permit for highly skilled non-EU/EER nationals, so-called third-country nationals. The EU Blue Card does not provide full access to the EU labor market as such, but only to the labor market of the EU Member State that has issued the EU Blue Card.
The implementation date of the European Directive on the EU Blue Card (2009/50/EG) was June 19, 2011. The Netherlands has implemented the EU Blue Card in the Dutch Immigration regulations.
What are the characteristics of the EU Blue Card? There are two main requirements: a salary threshold and a diploma of a post-secondary higher education program that lasted at least three years. The salay threshold is 1.5 times the average gross annual salary in the concerned EU member state. In the Netherlands the threshold is EUR 60,000. Before an application can be submitted, first the diploma must be recognised by a Dutch organization called International Credential Evaluation (http://www.idw.nl), which specializes in validating diplomas. A decision on an EU Blue Card application may take up to 90 days.
The Dutch highly skilled migrant program, the Knowledge Migrant Scheme (KMR), will coexist beside the EU Blue Card. Compared to the KMR Scheme, the EU Blue Card procedure is laborious and slow. The KMR Scheme involves a salary threshold only, no skills or education test. The current salary thresholds are EUR 50,619 gross per annum for those aged 30 or over, and EUR 37,121 for those under the age of 30. The processing time for the visa is 2 weeks and for the residence card is 4 weeks.
The EU Blue Card, on the other hand, offers the advantage of some kind of intra-EU mobility after 18 months. The EU Blue Card holder may move, after this period, to another EU Member State for the purpose of employment under the conditions as set out by the EU Blue Card, without first having to request a visa.
Another advantage of the EU Blue Card is that absence of the EU Blue Card holder from the territory of the EU, for a period shorter than 12 consecutive months and up to a total of 18 months, will not interrupt the cumulations of 5 years of legal and continuous residence, after which a long-term (permanent) residence permit may be applied for.
A final note: the United Kingdom, Ireland and Denmark are not participating in the adoption of the EU Blue Card Directive and are not bound by it, or subject to its application.
New Netherlands Legislation
The Employment of Foreigners Act (EFA) demands work authorization for any type of work by a foreign national (non-EU/EEA/Swiss) for companies or individuals in The Netherlands. Non-compliance may result in administrative fines. The applicable amounts are:
There is no maximum amount; the fine is calculated mathematically on the basis of the number of employees in violation, regardless of how many hours they have worked or what their position in the company was. The EFA prescribes that every violation will be fined, without previous warning.
In case of secondment, both the seconding company and the client that actually employs the foreign worker will be fined; they are both separately liable and payment by one company does not liberate the other. In case of contracted work, even multiple companies can be fined; every company in the chain of contracts, from the principal to the last subcontractor, is liable for the same offense and will be fined the same amount.
The Modern Migration Policy Act, expected to enter into force some time in 2011, introduces another set of administrative financial penalties in addition to the ones noted above. Under this new law, companies will have a duty to inform the Dutch Immigration and Naturalization Service about all relevant changes; must commit to careful recruitment of highly skilled migrants; and must keep any relevant piece of information with respect to the foreign worker on record for a period of 5 years after the employment has ended.
Violations may result in the following administrative sanctions, to be imposed on the company:
Many foreign entrepreneurs want to start businesses or invest in the United States. Other wealthy individuals want green cards to live in the United States, but may be hesitant because of real or perceived immigration obstacles. Real estate developers and companies seeking capital for development projects are increasingly looking for EB-5 capital from foreign investors. Several visa options exist, and each has advantages, disadvantages, and limits.
A three-part webinar series, presented by the Alliance of Business Immigration Lawyers (ABIL), of which Cyrus Mehta is a member, and co-sponsored by Invest In the USA, the association of EB-5 regional centers, helps guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects. Each 90-minute webinar in the series explains immigration options and offers practical real-world strategies:
All participants will receive a file with the PowerPoint presentation, relevant articles, and resources before each session, as well as a recording of the webinar. The cost is $89 for an individual session or $249 for all three sessions, live or recorded. To register, go to: https://securec9.ezhostingserver.com/abil-com/abil_webinar_signup.cfm. For more information, contact Lauren Anderson at email@example.com or visit http://abil.com.
Cyrus D. Mehta. was presented with the 2011 Michael Maggio Memorial Pro Bono Award for his outstanding efforts in providing pro bono representation in the immigration field. Mr. Mehta has most recently been Chair of the American Immigration Lawyers Association’s (AILA) National Pro Bono Committee (2009-2011) and past Co-Chair of the AILA New York Chapter Pro Bono Committee (2007-2010). Under his leadership, AILA launched its first Annual Conference Pro Bono Clinic in San Diego, California, in 2011. In collaboration with the New York City Bar Association, Mr. Mehta and the AILA New York City Chapter launched the New York City Immigrant Advocacy Initiative to provide brief service clinics on a regular basis. Also in partnership with the New York City Bar, Mr. Mehta and the AILA Chapter joined with Legal Aid to create the Varick Street N.Y. Immigration Court project to represent detained immigrants. Mr. Mehta also currently serves on the Board of Directors of Volunteers of Legal Services, Inc. (VOLS), whose mission is to provide pro bono civil legal services to benefit poor people in New York City. With his assistance, VOLS has expanded its pro bono efforts to reach immigrant children and their parents in the public school system. His acceptance remarks may be viewed at http://cyrusmehta.blogspot.com/2011/06/ethical-basis-for-pro-bono.html
Mr. Mehta was quoted by FINS Technology (part of the Wall Street Journal Digital Network) in an article on June 24, 2011, “American Dream Fades for H-1B Hopefuls.” He noted that the H-1B process “is costly, fees have gone up, employers have to pay lawyers’ fees, and there are far more compliance issues.” The article is available at http://it-jobs.fins.com/Articles/SB130652363641519729/American-Dream-Fades-for-H-1B-Hopefuls?link=FINS_hp.
On June 18, 2011, Mr. Mehta participated on a panel at the American Immigration Lawyers Association annual conference in San Diego entitled Advise and Advocate Without Crossing the Line.
Mr. Mehta was listed as a most highly regarded individual by International Who’s Who of Corporate Immigration Lawyers 2011, http://www.whoswholegal.com/news/analysis/article/28997/most-highly-regarded-firms-corporate-immigration-2011/. Mr. Mehta was also ranked (Band 2) and the firm, Cyrus D. Mehta & Associates, PLLC (Band 3) by Chambers USA 2011, http://www.chambersandpartners.com/USA/Editorial/36792#per_280125.
http://cyrusmehta.com/CyrusMehta/wp-content/uploads/2016/01/CyrusDMehta_WebLogo_2016.png 0 0 Cyrus Mehta http://cyrusmehta.com/CyrusMehta/wp-content/uploads/2016/01/CyrusDMehta_WebLogo_2016.png Cyrus Mehta2011-07-03 00:00:002016-08-22 17:36:37July 2011 Immigration Update