News

May 10, 2013

Beware Employers Using Electronic I-9 Programs:  Pre-population of Section 1 Not Allowed

As of May 7, 2013, U.S. employers must use the new I-9 form available at www.uscis.gov under Forms for all new hires and re-verifications.  In a meeting on April 11, 2013 between AILA’s Verification and Documentation Liaison Committee and ICE Homeland Security Investigations (HSI) Worksite Enforcement Unit, ICE confirmed that pre-population of Section 1 of the I-9 form by electronic I-9 programs is not permissible, regardless of whether the employee provided the original information that is pre-populated and regardless of whether the preparer/translator section is completed on the I-9 form.

Prohibiting pre-population by electronic I-9 programs represents a substantial shift in the agency’s position on this issue, which applies to both an employer’s existing and future electronic I-9 forms.

Based on this latest guidance from ICE HSI, we advise our employer clients that continuing to pre-populate Section 1 of the I-9 form carries significant risk.  While AILA will continue to monitor this issue, our best practice guidance to employers at this time is to refrain from using the pre-population feature of an electronic I-9 system.

May 2, 2013

2014 Diversity Visa Lottery Results Are Now Available

On May 1, 2013, the Department of State (DOS) announced the results of the 2014 Diversity Visa lottery results.  If you applied for the 2014 Diversity Visa lottery, you can now check your status online.  You should receive an email from the U.S. government that reminds you to check your status through the DV Entrant Status Check, but the government will not email you the results.

May 2, 2013

Employers Must Use New I-9 Form beginning May 7, 2013

As a reminder, all employers must start using the new I-9 employment eligibility verification form issued by USCIS. Beginning May 7, 2013, all employers must only use the latest I-9 form (with expiration date of 03/31/2016) for all new hires and for all re-verifications of existing employees. Previous versions of the I-9 form cannot be used after May 6, 2013. You can find the new I-9 form with instructions, as well as the latest M-274 Handbook for Employers, at www.uscis.gov under Forms.

May 2, 2013

CBP Starts Rollout of Automated Form I-94 Arrival/Departure Record

As of April 30, 2013, Customs and Border Protection (CBP) started implementing the automated version of Form I-94 at air and sea ports of entry. This implementation will continue throughout the U.S. through May 21. Foreign travelers entering the U.S. at air or sea ports of entry will be able to access their electronic I-94 by visiting www.cbp.gov/I94. Upon inspection at the point of entry, CBP will give foreign travelers a tear sheet with instructions on how to look up and print in paper format their electronic I-94 on this website.  Printing one’s electronic I-94 card in paper format will be critical for many reasons, including for I-9 hiring and reverification purposes and other benefits.

May 2, 2013

BALCA Says Laid-Off U.S. Worker was Rejected for a Lawful, Job-Related Reason

On April 26, 2013, the Board of Alien Labor Certification Appeals (BALCA) found that the U.S. worker’s lack of special skills was a lawful, job-related reason for rejection, and that the employer’s failure to identify the requirements for the U.S. worker’s previous position did not warrant denial.  Matter of Cisco Systems, 4/26/13.

May 2, 2013

BALCA on Documenting Recruitment from Employer’s Website

On April 29, 2013, the Board of Alien Labor Certification Appeals (BALCA) found that where an employer attestation in the recruitment report is submitted as evidence of recruitment on the employer’s website in lieu of dated screenshots, the attestation must be in affidavit form.  Retention of reliable contemporaneous documentation of the status of a web page on the dates attested to in the Form 9089 is essential for an employer to be able to meet the PERM documentation requirement.  Matter of DGN Technologies, 4/29/13.

April 25, 2013

CBP Rejects “Duration of Status” (D/S) for Canadians Without I-94 Cards

On April 10, 2013, the Acting Executive Director of U.S. Customs and Border Protection (CBP) stated in a letter to the American Immigration Lawyers Association (AILA) that CBP does not consider an individual who is admitted as a visitor without an I-94 to have been admitted for an indefinite period of time.  CBP further stated that it may consider inadmissibility grounds when charging the visitor.  CBP has not yet adopted an official position on what triggers the accrual of unlawful presence for foreign nationals admitted as visitors without an I-94.

April 25, 2013

BALCA Finds That Employer Only Needs to Maintain the PWD

Resolving a panel dispute over whether an employer’s failure to submit a copy of its request for a prevailing wage determination (PWD) is a substantial failure to provide required document, the Board of Alien Labor Certification Appeals (BALCA) found that the explicit requirement that employers maintain the PWD issued implies that employers need not maintain a copy of the request.  It is unreasonable for the Certifying Officer to assume it should be readily available to the employer at the time of audit.  Matter of Sap America, Inc. (April 18, 2013).

April 25, 2013

BALCA Finds Ads Would Not Prevent U.S. Workers from Applying

Noting that the job description was written in plural terms, the Board of Alien Labor Certification Appeals (BALCA) found that the ads clearly included multiple positions, were not misleading, and did not cause confusion that would prevent potential U.S. applicants from applying.  Matter of Microsoft Corp. (April 12, 2013).

April 25, 2013

New Pro-Immigration Legislation Introduced in Michigan

On April 23, 2013, Representatives Tlaib, Singh, Irwin, and Dillon announced the introduction of a package of legislation entitled the “New American Opportunity and Fairness Act.”  This package of legislation has six main sections: (1) providing in-state tuition rates for certain immigrant students, (2) creating a commission to study the impact of the 2008 and 2011 driver’s license laws, (3) establishing an immigrant integration office, (4) allowing Deferred Action for Childhood Arrival (DACA) participants to receive driver’s licenses, (5) allowing DACA participants to receive IDs, and (6) a resolution to urge Congress to raise caps on work visa for advanced-degree holders.

April 22, 2013

Update on H-1B Cap Cases 

USCIS has begun the data entry process for H-1B petitions selected in the lottery. At the AILA spring conference in Washington, D.C. on April 12, 2013, Donald Neufeld, Associate Director of the Service Center Operations (SCOPS) Directorate, stated that data entry for non-premium processing cases will begin after the premium processing cases are entered. Data entry for non-premium cases will likely not be completed until sometime in May, and rejection notices for petitions not selected in the lottery will be sent out thereafter. After a receipt notice is issued by USCIS on a cap case, if desired, a non-premium filed case can be upgraded/converted to premium processing.  This week, ImLaw received its first receipt notices on H-1B cap cases for clients.  Rest assured, if you are a client and we receive a receipt notice from USCIS on your case, we will inform you promptly!

April 22, 2013

Susan Im of ImLaw, PC was recently selected by Corporate INTL Magazine as 2013’s “Immigration Law – Lawyer of the Year in Michigan”.  Corporate INTL Magazine is a monthly business publication distributed to over 70,000 readers each month, including business leaders, professional advisors and providers of finance throughout the world.  Its “Legal Excellence Awards” are given annually to leading lawyers and law firms around the world. Nominations are received from the readership, the magazine’s database of over 300,000 individual partners of law firms, the magazine’s database of over 50,000 in-house counsel of businesses, the magazine’s database of over 250,000 CFOs, CEOs and Directors of public and privately-held businesses, and professionals from the financial community.  Winners are selected by a panel of judges which include senior partners of internationally recognized law firms and accounting firms, the CEO of a large multinational corporation, and the editor of Corporate INTL Magazine.

April 18, 2013

Highlights of initial review of new Senate bill on immigration reform

On April 17, 2013, the bipartisan group of senators known as the “Gang of Eight” introduced S. 744, the “Border Security, Economic Opportunity, and Immigration Modernization Act.” As expected, the bill is clearly a compromise, containing some positive provisions as well as negative ones.  Overall, it is a bill we support as an initial framework for the continued negotiations on needed reforms to our current system.  Please note that this is only a bill; it is not a law and there is no application benefit that can be filed yet for any item contained in this bill.  As we continue to analyze the 844 page bill, below are a few things S.744 proposes, according to our initial review:

1.   H-1B specialty occupation work visas: In the next fiscal year following enactment of the bill into law, increase the quota to a floor of 110,000 and a ceiling of 180,000; increase the U.S. advanced degree exemption to 25,000 but limit it to advanced STEM field (Science, Technology, Engineering and Mathematics) U.S. graduates only; add a mandatory recruitment requirement for all H-1B applications involving a detailed posting on an Internet site designed by the Dept. of Labor; significantly change the current prevailing wage formula to a three-level system (which may lead to an increase in the required wage for H-1B workers in some cases); create a formal 60-day grace period after an H-1B has been terminated from his or her job; and provide Employment Authorization Documents (EADs) for H-4 spouses if their home country offers reciprocal work authorization to spouses of U.S. citizens.  For PERM labor certification cases, will require employers to pay a new $500 fee to be deposited in a new STEM Education and Training account.

2.    Legalization: Allow noncitizens who are unlawfully present and who entered the U.S. before December 31, 2011 to apply for Registered Provisional Immigrant (RPI) status. Applicants would be required to pay a penalty fee and back taxes, and individuals with removal orders and well as those currently in removal proceedings will be able to apply.  Individuals in RPI status would receive work authorization and may travel abroad. They would also become eligible to apply for permanent resident status (green card) after 10 years, and thereafter can apply for naturalization (U.S. citizenship) 3 years after acquiring a green card.  This section of the bill includes generous provisions for DREAMers as well as agricultural workers, including a shorter wait (5 years) before they can apply for green card status with DREAMers being eligible for citizenship immediately after obtaining green card status. Individuals with a conviction for an aggravated felony, a felony, 3 or more misdemeanor offenses, an offense under foreign law if such offense in the U.S. would render him or her inadmissible, and unlawful voting will not be eligible to apply.

3.    Temporary Essential Workers, Non-agricultural and Agricultural: Create a W-1 visa for lesser-skilled workers, a W-2 visa for aliens coming to the U.S. temporarily to perform agricultural services or labor under a written contract, and a W-3 visa for “at-will” workers with an offer of full-time employment in an agricultural occupation.

4.    Employment-Based Immigrants/green card applicants: Create a new Merit-based point system for green card status; exempt the following categories from green card quotas: EB-1 immigrants which include extraordinary ability aliens, outstanding professors and researchers, and multinational transferred managers and executives; foreign nationals who have earned a doctorate degree; physicians who have completed the J-1 two-year foreign residency requirement or obtained a waiver of such requirement; and derivatives of these categories. Eliminate per country quotas for employment-based immigrants.  Add a new “EB-6″ category for certain entrepreneurs immigrating to the U.S.

5.  New Nonimmigrant Invest Visas and Immigrant Visas (green cards):     Create new INVEST nonimmigrant and immigrant visa category for certain qualified entrepreneurs who can meet certain strict investment, job creation and revenue requirements.

6.  Dual Intent recognized for certain F-1 students:     Will recognize the doctrine of “dual intent” for F-1 students pursuing U.S. bachelor’s degree programs or higher.

7.   Increase in Conrad 30 waivers:  Will provide states with increased waivers under their Conrad 30 programs if certain requirements are met.

8.    E-Verify: Require all employers to be E-Verify users in a five-year period.

9.    Family-Based Immigrants: Create a new Merit-based point system for green card status; move the current family-based 2nd preference category (F2A) into the immediate relative classification, making spouses and children of permanent residents “immediate relatives”; eliminate the family-based 4th preference category (F4) for siblings of U.S. citizens; cap the age of eligibility of married sons and daughters of U.S. citizens at 31; and bring back the V visa, which will be expanded to allow individuals with an approved I-130 immigrant petition to live in the U.S.  Eliminate the Diversity Visa (DV) lottery program (those selected in fiscal years 2013 or 2014 will still be eligible to apply however).

10.    New visa categories to encourage tourism:  Create new visa categories to encourage tourism if certain strict requirements are met, including a retiree visa for individuals purchasing a residence(s) with at least $500,000 in cash.

11.    Asylum: Eliminate the one-year filing deadline and authorize asylum officers to grant asylum during credible fear interviews.

12.       Fraud: Make it a crime to knowingly defraud an immigrant or hold oneself out as an attorney or BIA accredited representative when one is not authorized to do so. Require the identification of individuals who assist immigrants with the completion of forms and empower the Attorney General with injunctive authority to act against an unscrupulous “immigration service provider” at the federal level.

April 16, 2013

Read Susan Im’s latest guest editorial on immigration reform published on mLive:

http://www.mlive.com/opinion/grand-rapids/index.ssf/2013/04/americas_immigration_system_is.html#incart_river

April 15, 2013

Bill Introduced in Michigan Legislature to Modify the MICA Act

A bill has been introduced in the Michigan Legislature which would modify the Michigan Immigration Clerical Assistant (MICA) Act.  Currently, MICA places strict limitations on what immigration-related services individuals who are not attorneys and not representatives of federally recognized nonprofit organizations can provide and what can be charged for those services.  It also allows people who are harmed by those who engage in unauthorized practice of immigration law to recover damages in court and to prosecute for criminal violations.  The new bill would retain the civil consumer protections and criminal penalties and would also allow individuals harmed to obtain three times their actual damages in court.  These modifications to MICA stand to benefit immigrant communities who are often preyed on by “notarios” or other individuals engaging in the unauthorized practice of immigration law.

April 9, 2013

H-1B cap for FY 2014 hit within 5 days – a clear indication that the cap is antiquated and needs adjusting now to the true workforce needs of U.S. employers operating in fiercely competitive, global economy. Check out AILA’s video and contact your local congressional office to voice your support for business immigration reform now:  http://www.aila.org/content/default.aspx?docid=43973&utm_source=Recent%20Postings%20Alert&utm_medium=Email&utm_campaign=RP%20Daily

April 9, 2013

USCIS will Implement Customer Identity Verification at local USCIS Field Offices

On Monday, May 6, 2013, USCIS will implement Customer Identity Verification (CIV) in its local field offices. Individuals will now be required to submit biometric data, specifically fingerprints and photographs, when appearing at USCIS offices for interviews or to receive evidence of an immigration benefit. According to USCIS, the CIV process will help to defend against threats to national security and protect customers from identity fraud by enhancing the agency’s ability to verify identity.  To learn more about USCIS’s new CIV process, visit  http://go.usa.gov/T3rw.

April 9, 2013

“Gang of Eight” Senators working on a comprehensive immigration reform bill

Four Republican and four Democratic Senators, including Senator John McCain (R-Ariz.), Senator Chuck Schumer (D-N.Y.), Senator Marco Rubio (R-Fla.) and Senator Richard Durbin (D-Ill.) are reportedly working very hard on a comprehensive immigration reform bill to present as early as the end of this week. Key elements of the Gang of Eight’s discussions include proposals to dramatically increase the number of H-1B visa numbers for professionals from the current limit of 65,000 with additional 20,000 for those that hold U.S. Master’s degrees as well as a path to eventual citizenship for the estimated 11 million undocumented foreign nationals in the U.S.  Final agreements and negotiations will not be easy, however, we look forward to reviewing this legislation once introduced, particularly in light of USCIS’s announcement of the cap being reached as of April 5, 2013.  Susan Im will be travelling to Washington, D.C. this week to participate in AILA’s Lobby Day, where she will attend scheduled meetings with Congressional offices throughout the State of Michigan, advocating for the urgent need for immigration reform.  If Susan hasn’t reached out to you yet, and you are a U.S. employer client willing to sign a letter stating why your company is in favor of immigration reform, please let Susan know as soon as possible – she would love to hear from you and, moreover, would love to take a signed letter from your company with her to D.C.!

April 8, 2013

H-1B Cap Already Hit as of April 5, 2013 with 124,000 petitions

As expected, on April 5, 2013, USCIS announced that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will no longer accept H-1B petitions subject to the FY 2014 cap or the advanced degree exemption. USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2014 cap-subject petitions received through April 5, 2013.  ImLaw just received news that USCIS apparently conducted the random lottery on Sunday, April 7 and that 124,000 H-1B cap petitions were received as of the end of business day, April 5.   As soon as we receive further news on the H-1B cases actually selected for processing by USCIS, we will promptly inform you.

April 8, 2013

CBP Announces Rollout of Automated I-94 Process to begin April 30

On April 2, 2013, Customs and Border Protection (CBP) announced their plan to begin the I-94 automation process on April 30.  Foreign nationals arriving in the U.S. by air or sea only who need to prove their legal admission and status to employers, schools/universities or government agencies will be able to access their I-94 arrival/departure record information online.  On April 30, 2013, CBP will no longer require international nonimmigrants arriving to the U.S. by air or sea to complete a paper Form I-94 Arrival/Departure Record upon arrival to the U.S. by air or sea.  Foreign nationals desiring evidence of their admission will be to visit www.cbp.gov/I94 to print a copy of an I-94 based on the electronically submitted data, including the I-94 number. We highly recommend that all individuals go online to print such evidence of the I-94 since USCIS will continue to require applicants to submit a paper copy of the I-94 form when requesting certain immigration benefits.  Moreover, other government agencies such as the Secretary of State in Michigan and Dept. of Motor Vehicle (DMV) offices in other states, still require a paper I-94 form for driver’s license applications. Furthermore, nonimmigrants who are authorized to work in the U.S. will still need to present a paper I-94 form to their employers during the I-9 employment eligibility verification process. CBP anticipates that the automated process will save the agency an estimated $15.5 million a year.  Since advance information is only transmitted for air and sea travelers, CBP will still issue a paper I-94 form at land border ports of entry.

CBP will phase-in the I-94 form automation at air and sea ports of entry through April and May.  With the new process, a CBP officer will stamp the travel document of each arriving nonimmigrant traveler.  The admission stamp will show the date of admission, class of admission, and the date until which the traveler is admitted.  Foreign nationals previously issued a paper I-94 form will have to surrender it to the commercial carrier or to CBP upon departure.  If foreign nationals did not receive a paper I-94 form, CBP will record their departure electronically via manifest information provided by the carrier or by CBP.

Implementation will begin on April 30 at five pilot ports of entry and will continue to the remaining ports of entry over a total of four weeks.  In the first week, implementation will begin at Charlotte, Orlando, Las Vegas, Chicago, and Miami.  In the second week, implementation will continue at New York, Boston, Buffalo, Baltimore, Detroit, Atlanta, Tampa, Puerto Rico, Miami, Chicago, New Orleans, and Houston.  The third week will include San Francisco, Tucson, El Paso, Seattle, Portland, Los Angeles, San Diego, and Laredo.  Finally, in the fourth week, all remaining airports and seaports will implement the new policy.

April 1, 2013

Effective Date of New I-9 Still Unclear

USCIS has still not provided clear guidance as to whether the last day an employer can use prior versions of the Form I-9 is May 7 or May 8 of 2013.  Our best practice guidance to employers is to begin using the new Form I-9 as soon as possible and certainly no later than May 7, 2013.

April 1, 2013

DOJ Settles Immigration-Related Employment Discrimination Claim

On March 25, 2013, the DOJ reached an agreement on a settlement with a Georgia pecan supplier for discriminating against work-authorized non-U.S. citizens by requiring specific & more documents than necessary when completing Form I-9, while not imposing similar requirements of U.S. citizens.  Under the terms of the agreement, the company will pay $500 in civil penalties and be subject to monitoring of its employment eligibility verification practices for a period of one year.

April 1, 2013

BALCA Chooses Size of Circulation Over Newspaper’s Address

On March 19, 2013, BALCA rejected the argument that the regulations require the employer to use a newspaper whose business address is within commuting distance of the area of employment, and upheld the use of a newspaper that has a wider circulation in the area of intended employment.  The regulation requires that the employer use the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers.  Matter of Wal-Mart Stores Inc. (March 19, 2013).

April 1, 2013

OCAHO Finds Failure to Complete Section 2 of I-9 a Substantive Violation

On March 18, 2013, OCAHO reduced fines but found that copying documents is not a satisfactory substitute for properly completing section 2 of an I-9 form, and that failure to properly complete the section 2 attestation is a substantive (not technical) violation.

April 1, 2013

OCAHO Finds That Missing and Defective I-9s Do Not Equal a Lack of Good Faith

On March 18, 2013, OCAHO reduced fines, finding that based on the respondent’s circumstances and resources, the proposed penalty was modified from being close to the maximum permissible fine, to an amount closer to the mid-range of possibilities.  There must be evidence pointing to culpable behavior beyond the fact that a high number of the Forms I-9 are missing or contain deficiencies.  A failure of compliance based on ignorance of the law is accordingly insufficient to establish bad faith.  (U.S. v. Siam Thai, 3/18/13.

April 1, 2013

OCAHO Reduces Fines as ICE Provided No Evidence of Bad Faith

On March 13, 2013, OCAHO reduced the fines, finding that a low rate of compliance may not be used to increase a penalty based upon the good faith criterion, and that while the violations are serious, they do not translate to a finding of bad faith.  OCAHO case law has long held that in order to support a finding of bad faith, there must be evidence of culpable conduct that goes beyond the mere failure of compliance with the verification requirements.  U.S. v. El Azteca, 3/13/13.

April 1, 2013

Unpublished AAO Decision Overturns L-1B Denial, Finding Beneficiary Possesses Specialized Knowledge

In an unpublished, non-precedent (non-binding) decision dated March 15, 2013, the AAO sustained an L-1B appeal, finding that a beneficiary does not need to develop the product or technology in which he claims to have specialized knowledge in order to have “special” knowledge.  The statutory definition of specialized knowledge is comprised of two equal but distinct subparts and the beneficiary and the proffered position may satisfy either prong of the definition.  Specialized knowledge can be based upon “special knowledge of the company or product and its application in international markets” or “an advanced level of knowledge of processes and procedures of the company.”

April 1, 2013

Unpublished AAO Decision Finds Senior Sales Engineer Does Possess Specialized Knowledge

In an unpublished, non-precedent decision dated March 1, 2013, the AAO sustained an L-1B appeal, finding that the petitioner submitted detailed and credible evidence of the beneficiary’s specialized knowledge of the company’s proprietary technologies and products in the rail industry and that the beneficiary’s knowledge is also considered “special” within the company.  The knowledge is special as the product itself is patented, proprietary, or otherwise exclusive to the petitioner, such that it is not widely known in the industry.  In addition, the technologies are of significant complexity, such that the knowledge required to perform the beneficiary’s duties is not easily transferrable to others in the field.

April 1, 2013

Unpublished AAO Decision Finds First-Line Supervisor Qualified for L-1A

In another unpublished, non-precedent decision, AAO sustained appeal, finding that the first-line supervisor qualified for L-1A status.  The decision stated that the definition of duties for a project manager for IT workers should be based on the evidence and not pre-conceived impressions.  USCIS should focus on applying the status and regulations to the facts presented.  When the evidence establishes that the beneficiary supervises and controls the work of professional employees and possesses authority to recommend personnel actions, he is qualified for L-1A.  The petitioner need only establish that the beneficiary devotes more than half of his time to managerial duties.

March 21, 2013

New Form I-9 for Employers

U.S. Citizenship and Immigration Services (USCIS) published a new Form I-9, Employment Eligibility Verification, which is available for immediate use by employers. Effective March 8, 2013, employer should begin using the new Form I-9 for all new hires and all necessary re-verifications of existing employees.  Until May 8, 2013, however, employers may continue to use the previously accepted versions of Form I-9 (Rev.02/02/09)N and (Rev. 08/07/09). After May 7, 2013, all employers must use the newly revised Form I-9 for each new hire and each required I-9 reverification of an existing employee.  The new Form I-9 has several new features, including new fields and a new format to reduce errors. The instructions to the form also more clearly describe the information employees and employers must provide in each section. The new Form I-9 with updated instructions is available online at www.uscis.gov under Forms.

March 21, 2013

President Obama signs Reauthorization of Violence against Women Act (VAWA)

The newly passed legislation creates and expands federal programs to assist local communities with law enforcement and to aid victims of domestic and sexual abuse. On immigration issues, the bill contains fixes including the survival of the VAWA petition for children of deceased self-petitioners and the extension of protections under the U visa in regards to children who age-out while waiting for applications to be processed. It also provides for training for law enforcement officers on U and T visas which grant critical protections for immigrant survivors of crime and human trafficking.

March 21, 2013

March 21, 2013

Provisional Stateside Waiver Applications can now be filed with USCIS

Beginning March 4, certain immigrant visa applicants who are the spouses, children and parents of U.S. citizens (immediate relatives), who have been unlawfully present in the United States, can begin applying for provisional unlawful presence waivers through a new stateside process with USCIS.

March 11, 2013

Read Susan Im’s latest article on immigration reform: http://www.grbj.com/blogs/5-diversity/post/76256-would-immigration-reform-create-jobs-and-innovation

February 26, 2013

Visa Office Update on Priority Dates and Demand

On January 31, 2013, AILA members discussed the Visa Bulletin, visa demand , and predictions for the remainder of FY2013 with Charlie Oppenheim of the Department of State’s Visa Office.  These notes are Mr. Oppenheim’s impressions at this time, and are subject to change based on usage or new developments.  The India EB2 cutoff date continues to see very little forward movement due to upgrades (EB3 to EB2 while maintaining the earlier priority date).  Looking at the current 2004 cutoff dates, EB2 India could easily reach the annual limit.  However, the fall down from EB1 could allow for more numbers to be used for EB2 India.  Current numbers indicate that there are approximately 42,000 India EB2 cases in line with priority dates prior to May 2010.  There are 12,000 India EB3 cases with priority dates before January 2004.  EB-2 India demand continues to be very high, and it is possible that the cutoff date may be retrogressed during this fiscal year.  India EB3 has 44,000 cases with priority dates before August 2007, which have been pre-adjudicated, though final approval and visa issuance has not taken place due to priority date retrogressions over the past several years.  Worldwide EB3 has 42,000 pre-adjudicated cases with priority dates before March 2007.  Family-based numbers are moving faster this year than in years past (in part to ensure unused FB numbers are not lost), so the movement in the FB cases are projected to move slowly in the March Visa Bulletin.

February 21, 2013

Read Susan Im’s Letter to the Editor on Immigration Reform:

http://www.mlive.com/opinion/grand-rapids/index.ssf/2013/02/letters_to_the_editor_american.html#incart_river

February 21, 2013

BALCA Discusses Substantially Equivalent Alternative Requirements

BALCA upheld the Certifying Officer’s denial, rejecting the 3-to-1 argument and finding that one year of experience (with or without a degree) equals one year for SVP purposes, and a Bachelor’s degree equals two years for SVP purposes.  Matter of Telcordia Technologies, 2/6/13.

February 21, 2013

BALCA on Travel Requirements and Multi-Position Notices of Filing

BALCA held that although the use of a plural in the job title indicated that the Notice of Filing was for multiple positions, it did not give any contextual cues that would signify that the travel requirement only applied to some of the positions.  Matter of Oracle, 2/6/13.

February 21, 2013

DOJ Settles with Healthcare Staffing Company for Immigration-Related Unfair Employment Practices

On February 8, 2013 the DOJ reached a settlement agreement with Avant Healthcare Professionals resolving allegations that the company posted discriminatory job advertisements on the internet.  According to the investigation, Avant was impermissible preferring foreign-trained individuals over U.S. workers.  Under the terms of the settlement agreement, Avant agreed to pay $27,750 in civil penalties, to change its internal policies and procedures, and to be subject to reporting and compliance monitoring requirements for a period of three years.

February 7, 2013

Comprehensive Immigration Reform on the Horizon

Optimism continues to grow for comprehensive immigration reform (CIR) to occur in 2013.  President Obama announced his plan for CIR, a bipartisan group of eight senators released their CIR framework, and a bipartisan group of eight representatives is also reportedly working on their own immigration proposal.  Not since 2007 has there been this level of momentum and discussion about immigration reform – we are hopeful that Congress can come together this year to fix our broken immigration system.