1. DOJ’s Office of Special Counsel Lists Employer Best Practices During Worksite Enforcement Audits – The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices released do’s and don’ts for employers facing ICE audits.
2. USCIS Announces Several Thousand EB-5 Green Cards Issued So Far in First Quarter of FY 2012, Releases Latest Stats – Between October and mid-January, 2,364 EB-5 green cards were issued. At that rate, over 9,000 EB-5 visas might be issued this fiscal year, which is very close to the statutory cap of 10,000.
3. New York City’s Newest Full-Service Immigration Office Opens in Queens – The new office, located at 27-35 Jackson Avenue, includes an Application Support Center, a naturalization ceremony room, and interview and file rooms. The hours are 7 a.m. to 3:30 p.m.
4. USCIS Announces 58 Countries Whose Nationals Are Eligible for H-2A and H-2B Participation – In addition to the 53 countries currently on the list, Haiti, Iceland, Montenegro, Spain, and Switzerland were designated for the first time this year.
5. DHS Extends TPS Designation for El Salvador – The 18-month extension will remain in effect through September 9, 2013. The 60-day re-registration period began January 9, 2012, and will remain in effect until March 9, 2012.
6. DOS Launches 90-Day Pilot Program Allowing Online Passport Card Applications – The U.S. passport card costs $30 for current passport book holders, and is valid for land and sea travel to and from Canada, Mexico, the Caribbean, and Bermuda. It is not valid for international air travel.
7. AAO Denies RC Application to Build Resort Suites -The AAO found that the applicant’s proposal was a marketing strategy to attract buyers for vacation suites rather than investors of capital in a new commercial enterprise.
8. China, India Visa Number Priority Cut-Off Dates Move Forward -The China and India cut-off dates continue to move forward, in some cases at a rapid rate.
9. U.S. Consulate in Chennai Stops Processing Immigrant Visa Petitions – The U.S. embassy in New Delhi and U.S. consulate in Mumbai are now the only acceptance centers in India for immigrant visa applications.
10. Justice Dept. Settles with University of California San Diego Medical Center – The Department had alleged that the medical center subjected newly hired non-U.S. citizens to excessive demands for documents to verify their employment eligibility.
11. USCIS Considers Allowing Provisional Waivers for Immediate Relatives – USCIS is considering regulatory changes that will allow certain immediate relatives of U.S. citizens to request provisional waivers before departing the United States for consular processing of their immigrant visa applications.
12. USCIS Seeks Comments on Draft L-1 Templates – In addition to comments on the individual draft templates, USCIS also seeks stakeholder input on broader issues.
13. Pakistani Students Come to U.S. Under Global Undergraduate Exchange Program – Global UGRAD-Pakistan provides an international academic exchange experience at a U.S. college or university for 200 emerging student leaders from underserved demographic groups or geographic areas in Pakistan.
14. Brazil’s ‘Science Without Borders’ Program Sends 650 Students to United States – Brazilian President Dilma Rousseff’s “Science Without Borders” program will support as many as 101,000 outstanding Brazilian students for international study in the areas of science, technology, engineering, and mathematics in the next four years.
15. Firm In The News…
The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices has released the following do’s and don’ts for employers facing audits by U.S. Immigration and Customs Enforcement (ICE):
- Develop a transparent process for interacting with employees during the audit, including communicating with employees that the employer is subject to an ICE audit.
- Provide all workers with a reasonable amount of time to correct discrepancies in their records identified by ICE. Treat all workers in the same manner during the audit, without regard to national origin or citizenship status. This means that all workers with like discrepancies who are asked to present additional documents are provided with the same timeframes and the same choice of Form I-9 documents to present.
- If your workers are represented by a union, inform the union of the ICE audit and determine whether a collective bargaining agreement triggers any obligations.
- Inform employees from whom you seek specific information that you are seeking this information in response to an ICE audit.
- Communicate in writing with employees from whom you seek information, and describe the specific basis for the discrepancy and/or what information you need from them. Follow the instructions on the ICE notice and the instructions for the Form I-9 when seeking to correct Form I-9 defects, including the Lists of Acceptable Documents and the anti-discrimination notice.
- Selectively verify the employment eligibility of certain employees based on their national origin or citizenship status based on the receipt of an ICE Notice of Inspection.
- Terminate or suspend employees without providing them with notice and a reasonable opportunity to present valid Form I-9 documents.
- Require employees to provide additional evidence of employment eligibility or more documents than ICE is requiring you to obtain.
- Limit the range of documents that employees are allowed to present for purposes of the Form I-9.
- Treat employees differently at any point during the audit because they look or sound foreign, or based on assumptions about whether they are authorized to work in the U.S.
The list is available at http://www.justice.gov/crt/about/osc/pdf/publications/worksite_enforcement.pdf.
The Department of State issued 2,364 EB-5 green cards between October 1, 2011, and mid-January 2012, U.S. Citizenship and Immigration Services (USCIS) announced at its quarterly EB-5 stakeholders meeting on January 23, 2012. At that rate, over 9,000 EB-5 visas might be issued this federal fiscal year, which is very close to the statutory cap of 10,000.
USCIS refused to discuss what it would do about pending EB-5 petitions if Congress fails to renew the regional center pilot program by September 30, 2012. Approximately 92 percent of I-526 petitions (Immigrant Petition by Alien Entrepreneur) filed each year are filed by investors in regional centers. Historically, about 80 to 85 percent of I-526 and I-829 EB-5 petitions are approved each year. The California Service Center (CSC) now has four teams of EB-5 adjudicators, an increase from one team a year ago. Despite the increased staffing, case adjudication times have not improved because of the increase in case filings.
USCIS also announced that it would defer to state determinations on what constitutes a targeted employment area (TEA) for EB-5 purposes. The agency will check the data behind states’ methodology, however. USCIS did not say whether a single census tract may qualify as a geographic area. USCIS said that would be covered in written materials not yet available publicly, and referred stakeholders to its December 2009 memorandum for further details (available at
USCIS acknowledged that many regional center applications are being held up at headquarters pending resolution of economic methodology issues. The USCIS hopes to resolve those issues soon. USCIS is analyzing all the I-924A forms submitted by regional centers and will draft a report that includes regional center-specific information sometime this year. The USCIS acknowledged growing pains in determining what constitutes a “shovel-ready” project for EB-5 purposes. It hopes to address this issue later this year when it revises the I-924 form to provide greater consistency. К
USCIS also released its latest data on EB-5 filings and regional centers (RCs):
- RC approvals continue to increase. As of January 28, 2012, there are 217 approved RCs operating in 40 states, including the District of Columbia and Guam.К
- The agency reported 41 initial RC proposal filings in the first quarter of fiscal year (FY) 2012, compared to 192 initial filings in all of FY 2011 and 110 initial filings in all of FY 2010. The number of amended RC proposal filings was 17 by the end of the first quarter; there were 86 filings received for all of FY 2011 and 42 filings received for all of FY 2010.
- In the first quarter of FY 2012, the agency approved 14 of the 41 initial RC proposals and denied 22, an approval rate of 39 percent. In FY 2011, when USCIS approved 80 and denied 51, an approval rate of 61 percent. The approval rate of amended RC proposals in the first quarter of FY 2012 was 57 percent, with 4 approvals and 3 denials. By comparison, in FY 2011 USCIS approved 43 amended RC proposals and denied 7, an approval rate of 86 percent.
- USCIS also reported significant increases in individual I-526s and I-829s (Petition by Entrepreneur to Remove Conditions). In the first quarter of FY 2012, USCIS received 1,293 I-526 petitions, compared to 3,805 for all of FY 2011. USCIS received 250 I-829 petitions in the first quarter of 2012. By comparison, USCIS received 2,345 I-829 petitions in all of FY 2011.К
- In the first quarter of FY 2012, the agency approved 1,076 I-526 petitions and denied 222, an approval rate of 83 percent, while in all of FY 2011 USCIS approved 1,563 and denied 11, an approval rate of 93 percent. USCIS approved 1,067 I-829 petitions and denied 46 in all of FY 2011, an approval rate of 96 percent.
The full list of RCs by state is available at http://www.uscis.gov/eb-5centers/.
The next USCIS stakeholder engagement meetings are scheduled for May 1, 2012 (general EB-5 discussion); July 26, 2012 (regional center discussion); and October 18, 2012 (general EB-5 discussion). See
=e0b081c52aa38210VgnVCM100000082ca60aRCRD for additional details on the engagement meetings.
On January 20, 2012, U.S. Citizenship and Immigration Services (USCIS) opened its newest immigration field office in Queens, New York.
The new office, located at 27-35 Jackson Avenue, includes an Application Support Center (which offers fingerprinting and photographic services as part of the application process), a naturalization ceremony room, and interview and file rooms. The hours are 7 a.m. to 3:30 p.m. The Queens office is expected to serve about 500 people each business day.
Approximately 100 employees were transferred to the Queens office from the now-closed Garden City, Long Island, office. USCIS recently opened an additional office in Holtsville, Long Island.
The announcement is available at
U.S. Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security (DHS), in consultation with the Department of State, has identified 58 countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) programs for the coming year. Each countryХs designation is valid for one year from the date of publication.
USCIS generally may only approve H-2A and H-2B petitions for nationals of countries the Secretary of Homeland Security has designated as eligible to participate in the programs. USCIS may approve H-2A and H-2B petitions for nationals of countries not on the list if it is determined to be in the interest of the United States.
In addition to the 53 countries currently on the list, Haiti, Iceland, Montenegro, Spain, and Switzerland were designated for the first time this year.
Effective January 18, 2012, nationals of the following 58 countries are eligible to participate in the H-2A and H-2B programs: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Haiti, Honduras, Hungary, Iceland, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Montenegro, Nauru, the Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Spain, Switzerland, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay and Vanuatu.
This new list does not immediately affect the status of beneficiaries who are currently in the United States in H-2A or H-2B status, unless they apply to change or extend their status.
The notice is available at http://www.gpo.gov/fdsys/pkg/FR-2012-01-18/pdf/2012-870.pdf.
The Department of Homeland Security (DHS) has extended the designation of El Salvador for temporary protected status (TPS) for 18 months from its current expiration date of March 9, 2012. The 18-month extension of the TPS designation of El Salvador is effective March 10, 2012, and will remain in effect through September 9, 2013. The 60-day re-registration period began January 9, 2012, and will remain in effect until March 9, 2012.
DHS determined that an extension is warranted because the conditions in El Salvador that prompted the TPS designation continue to be met. There continues to be a “substantial, but temporary,” disruption of living conditions in El Salvador resulting from a series of earthquakes in 2001, and El Salvador “remains unable, temporarily, to handle adequately the return of its nationals.”
The notice sets forth procedures necessary for nationals of El Salvador (or those having no nationality who last habitually resided in El Salvador) with TPS to re-register and to apply for an extension of their employment authorization documents (EADs) (Forms I-766) with U.S. Citizenship and Immigration Services (USCIS). Re-registration is limited to persons who previously registered for TPS under the designation of El Salvador and whose applications have been granted or remain pending. Certain nationals of El Salvador (or those having no nationality who last habitually resided in El Salvador) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions.
USCIS said it will issue new EADs with a September 9, 2013, expiration date to eligible Salvadoran TPS beneficiaries who timely re-register and apply for EADs under this extension. DHS recognizes that all re-registrants may not receive new EADs until after their current EADs expire on March 9, 2012. Accordingly, the notice automatically extends the validity of EADs issued under the TPS designation of El Salvador for six months, through September 9, 2012, and explains how TPS beneficiaries and their employers may determine which EADs are automatically extended and their impact on the I-9 and E-Verify process.
The notice is available at http://www.gpo.gov/fdsys/pkg/FR-2012-01-11/pdf/2012-143.pdf.
On January 24, 2012, the Department of State’s Office of Passport Services launched a 90-day pilot program allowing adult U.S. citizens living in the United States and Canada to apply for a passport card online. Those applying online are not required to mail in their current passport book. The wallet-sized U.S. passport card costs $30 for current passport book holders, and is valid for land and sea travel to and from Canada, Mexico, the Caribbean, and Bermuda. It is not valid for international air travel.
To participate in the program, applicants must currently possess a valid 10-year U.S. passport book with at least 12 months of validity remaining, upload an acceptable digital photograph, and make an online payment in U.S. dollars via Pay.gov. Applications accepted through the program will be subject to the same adjudication standards as in-person or mail-in applications.
The Department of State began producing the passport card in 2008 in response to travel document requirements imposed by the Western Hemisphere Travel Initiative. Since then, more than 4.5 million cards have been issued.
The notice is available at http://www.state.gov/r/pa/prs/ps/2012/01/182345.htm. To apply for the passport card using the online application, go to http://travel.state.gov/passport/ppt_card/ppt_card_5648.html.
U.S. Citizenship and Immigration Services (USCIS) recently published an Administrative Appeals Office (AAO) decision affirming denial of a proposal for a regional center designation. The AAO found that the applicant’s proposal was a “marketing strategy to attract buyers for vacation suites rather than investors of capital in a new commercial enterprise.”
Specifically, the AAO said that the evidence incontrovertibly established that the applicant proposed that “investors” would purchase a vacation suite as either a “primary residence,” “second home,” or “investment property.” The AAO affirmed the California Service Center director’s determination that such a real estate purchase of a private residence, even if still under construction, “is not an at-risk investment of capital that can be credited with direct or indirect job creation.” The purchase of individual residential suites by alien “investors,” even if concentrated in one resort complex, is also not the type of “pooled investment” concept Congress envisioned for the regional center program, the AAO noted. In summary, the AAO said:
[T]he applicant has proposed an investment plan whereby alien investors would make independent, passive, personal real estate investments that garner them no equity ownership in a new commercial enterprise. Instead of presenting a plan for a pooled equity investment of capital into a new commercial enterprise, the applicant has merely put forth a marketing strategy to attract sufficient buyers to fund later phases of development. This plan does not meet the letter or spirit of [the law and regulations] designed to encourage pooled investments in a new commercial enterprise benefitting a geographic region.
The April 26, 2011, decision is available at
The Department of State’s Visa Bulletin for February 2012 shows that the China and India cut-off dates continue to move forward, in some cases at a rapid rate.
For February, the China employment-based second preference cut-off date has advanced a year to January 1, 2010. Also for February, the China employment-based third preference cut-off date is December 1, 2004, advancing a month and a half from January’s cut-off date, when it was October 15, 2004. The third preference “Other Workers” category remains unchanged at April 22, 2003.
For February, the India employment-based second preference cut-off date is January 1, 2010, also advancing a year. Also for February, the India employment-based third preference cut-off date is August 15, 2002, advancing a week from January’s cut-off date. The third preference “Other Workers” category for India in February is August 15, 2002, a two-week advance from January. The Visa Office explained in the February bulletin:
China and India: Reports from U.S. Citizenship and Immigration Services (USCIS) indicate that the rate of new filings for adjustment of status in recent months has been extremely low. This fact has required the continued rapid forward movement of the cut-off date, in an attempt to generate demand and maximize number use under the annual limit. Once the level of new filings or USCIS processing increases significantly, it will be necessary to slow or stop the movement of the cut-off. Readers are once again advised that an eventual need to retrogress the cut-off date is also a distinct possibility.
Also, in the January bulletin, the Visa Office noted:
The China and India Employment Second preference cut-off date has been advanced at a rapid rate in recent months. As previously noted, this action was intended to generate significant levels of new filings for adjustment of status at U.S. Citizenship and Immigration Services (USCIS) offices. USCIS has reported that the rate of new filings is currently far below that which they had anticipated, prompting an even more aggressive movement of the cut-off date for January and possibly beyond. While this action greatly increases the potential for an eventual retrogression of the cut-off at some point during the year, it also provides the best opportunity to utilize all numbers available under the annual limit.
The February 2012 bulletin notes that those categories with a “Current” projection will remain so for the foreseeable future. The Visa Office estimates that other employment-based categories not discussed above could also advance by up to one month per month in the near future, including the Worldwide, Mexico, and Philippines categories, depending on demand. The Visa Bulletin for February 2012 is available at http://www.travel.state.gov/visa/bulletin/bulletin_5640.html.
As of January 1, 2012, the U.S. Consulate General in Chennai, India, is no longer processing immigrant visa petitions. The U.S. embassy in New Delhi and U.S. consulate in Mumbai are now the only acceptance centers in India for immigrant visa applications. Applicants currently in the process of petitioning for an immigrant visa may e-mail ChennaiIVU@state.gov for clarification of their status.
The Department of Justice reached an agreement on January 4, 2012, with the University of California San Diego Medical Center, resolving a complaint filed on December 6, 2011, alleging that the medical center failed to comply with proper employment eligibility verification processes for noncitizens authorized to work in the United States.
Specifically, the Department’s complaint alleged that the medical center subjected newly hired non-U.S. citizens to excessive demands for documents to verify their employment eligibility but did not require the same of U.S. citizens.
Under the terms of the settlement agreement, the medical center agreed to implement new employment eligibility verification policies and procedures that treat all employees equally regardless of citizenship status. In addition, the medical center agreed to pay a civil penalty of $115,000, conduct supplemental training of its human resources personnel on their responsibilities to avoid discrimination in the employment eligibility verification process, and work with the Department to ensure compliance with proper employment eligibility verification processes across all University of California campuses, medical centers, and facilities.
The Department’s announcement is available at http://www.justice.gov/opa/pr/2012/January/12-crt-006.html.
U.S. Citizenship and Immigration Services (USCIS) announced on January 9, 2012, that it intends to change its current process for filing and adjudicating certain applications for waivers of inadmissibility filed in connection with an immediate relative immigrant visa application.
Specifically, USCIS is considering regulatory changes that will allow certain immediate relatives of U.S. citizens to request provisional waivers before departing the United States for consular processing of their immigrant visa applications. A person would be able to obtain such a waiver only if a Petition for Alien Relative, Form I-130, is filed by a U.S. citizen on his or her behalf and that petition has been approved, thereby classifying the person as an “immediate relative” for purposes of the immigration laws, and he or she demonstrates that the denial of the waiver would result in extreme hardship to the U.S. citizen spouse or parent “qualifying relative.” The qualifying relative for purposes of the waiver is not necessarily the immediate relative who filed the immigrant visa petition on the relativeХs behalf.
USCIS’s notice of intent, published in 77 Fed. Reg. 1040 (Jan. 9, 2012), is available at http://www.gpo.gov/fdsys/pkg/FR-2012-01-09/pdf/2012-140.pdf. КCDMAХs related blogК ТWhat The Proposed Provisional Waiver Rule Means For Those Facing 3- Or 10- Year BarsУ is available at http://cyrusmehta.blogspot.com/2012/01/what-proposed-provisional-waiver-rule.html
U.S. Citizenship and Immigration Services (USCIS) seeks comments on draft request for evidence (RFE) templates for Forms I-129: L-1 intracompany transferee (blanket petition, L-1A manager or executive, L-1A new office (first year), and qualifying relationship/ownership and control/doing business.
In addition to comments on the individual draft templates, USCIS also seeks stakeholder input on broader issues:
- What are the top five issues you have with RFEs in the classifications that are currently under review?
- What improvements can be made to the current RFE process in these classifications?
- What types of evidence are frequently unavailable for these classifications when requested, and why? What evidence could be submitted as an alternative?
USCIS said it is also reviewing RFE templates for these categories:
- E-12 Outstanding Professor and Researcher immigrants
- E-13 Multinational Executive and Manager immigrants
- F Student nonimmigrants
- M Vocational Student nonimmigrants
- J Exchange Visitor nonimmigrants
- L Intracompany Transferee nonimmigrants
- O Extraordinary Ability or Achievement nonimmigrants
Information and instructions are available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=95e92d40ee989210VgnVCM100000082ca60aRCRD&vgnextchannel=95e92d40ee989210VgnVCM100000082ca60aRCRD. The draft templates are available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=a6aafa4b01b38210VgnVCM100000082ca60aRCRD&vgnextchannel=a6aafa4b01b38210VgnVCM100000082ca60aRCRD.
13. Pakistani Students Come to U.S. Under Global Undergraduate Exchange Program
The Department of State’s Bureau of Educational and Cultural Affairs announced that 100 students from Pakistan have arrived in the United States and participated in the Global Undergraduate Exchange Program’s (Global UGRAD-Pakistan) orientation in Washington, DC, from January 3-7, 2012.
Launched in 2010, Global UGRAD-Pakistan provides an international academic exchange experience at a U.S. college or university for 200 emerging student leaders from underserved demographic groups or geographic areas in Pakistan. The undergraduate students participate in one semester of non-degree study in the United States. Half of the 200 participants arrived in August 2011 for the fall semester. While in the United States, participants take part in local community service projects, engage in cultural enrichment activities, and complete a U.S. studies course.
The spring 2012 Global UGRAD-Pakistan Fellows will be placed at 71 accredited two- and four-year higher education institutions in 34 states. The Department said that through their programs of study and integration into U.S. communities, Global UGRAD-Pakistan students gain a broader, more nuanced knowledge of the United States, which will help them to increase mutual understanding between the United States and Pakistan in the future.
The Global UGRAD-Pakistan program is a part of the Department’s Global Undergraduate Exchange Program, a scholarship program enabling students worldwide to study for one semester or academic year at colleges and universities across the United States. The program is administered by the cooperating agency, the International Research & Exchanges Board (IREX).
The announcement is available at http://www.state.gov/r/pa/prs/ps/2012/01/180144.htm. Additional information about the Global Undergraduate Exchange Program is available at http://exchanges.state.gov/ugrad.html. Information about the Pakistan program is available at http://www.irex.org/project/global-undergraduate-exchange-program-pakistan-global-ugrad-pakistan.
14. Brazil’s ‘Science Without Borders’ Program Sends 650 Students to United States
The Department of State announced on January 5, 2012, that 650 Brazilian students arrived in the United States in the first week in January to study in over 100 U.S. universities in 42 states. These students are the first wave of participants in Brazilian President Dilma Rousseff’s “Science Without Borders” scholarship program to come to U.S. classrooms.
Last year, President Barack Obama announced the “100,000 Strong for the Americas” initiative to increase international study with a target of 100,000 students from Latin America and the Caribbean studying in the United States, and a reciprocal 100,000 students from the United States studying in the Latin American and Caribbean regions.
Additionally, President Rousseff’s “Science Without Borders” program will support as many as 101,000 outstanding Brazilian students for international study in the areas of science, technology, engineering, and mathematics in the next four years. Up to half of them will study in the United States. The Department said, “Our partnership with Brazil continues to grow and this investment through educational exchanges will continue to benefit our societies for generations to come.”
15. Firm In The News
Cyrus D. Mehta, and his colleague, Gary Endelman, published an article “Why We Can’t Wait: How President Obama Can Erase Immigrant Visa Backlogs with the Stroke of A Pen, in Bender’s Immigration Bulletin, January 1, 2012. A reprint of this article is available at http://www.ilw.com/articles/2012,0201-endelman.shtm.