http://www.immigration-information.com/forums/blogs/ An immigration discussion forum en Fri, 03 Sep 2010 10:52:40 GMT vBulletin 60 http://www.immigration-information.com/forums/images/misc/rss.jpg http://www.immigration-information.com/forums/blogs/ http://www.immigration-information.com/forums/blogs/ron-gotcher/40-rumor-control-proposed-senate-amendment-hr-4213.html Thu, 10 Jun 2010 21:14:24 GMT For whatever reason, rumors are flying all over the Internet that the end of H1B and EAD employment authorization is at hand. This is complete nonsense. The purported basis for these rumors is an amendment offered in the Senate (S. Amdt. 4319) to a tax bill previously passed by the House (HR 4213).... For whatever reason, rumors are flying all over the Internet that the end of H1B and EAD employment authorization is at hand. This is complete nonsense. The purported basis for these rumors is an amendment offered in the Senate (S. Amdt. 4319) to a tax bill previously passed by the House (HR 4213). As written, this proposal would prohibit companies from filing H1B petitions if the company has laid off any employees in the last year. It would also void all existing H petitions for a company if the company lays off personnel.

Let's put this in context. Microsoft decides to lay off some of its loading dock personnel because they want to outsource that work. Under this proposal, they would then have to terminate all of their H1B engineers. That simply doesn't pass the laugh test.

Like most of Grassley's proposals, this amendment is pure idiocy. I suppose that's what happens when your parents are siblings. This bill has absolutely no chance of ever becoming law. ]]> Ron Gotcher http://www.immigration-information.com/forums/blogs/ron-gotcher/40-rumor-control-proposed-senate-amendment-hr-4213.html http://www.immigration-information.com/forums/blogs/ron-gotcher/39-stick-fork-cir-done.html Wed, 09 Jun 2010 22:09:28 GMT Senate Majority Leader Harry Reid finally acknowledged this week what everyone has known for the last month: CIR is dead. Sen. Reid said that he will not bring CIR up for a vote during this Congress. The good news is that this now opens the door for piecemeal immigration reform legislation. Two bills that were mentioned as likely to be brought up in the next few months are the DREAM Act and AgJobs.

The DREAM Act is a limited amnesty that will benefit children of illegals who have gone through the school system in the US. Under this legislation, they would have to graduate college and then they would be allowed to become lawful permanent residents. Passage of this legislation may turn out to be much more difficult than proponents seem to believe.

The other bill, AgJobs, is a provision that would create a new temporary worker visa category for agricultural workers. This is strongly supported by large farming interests. While most of the principal backers are Republicans, the legislation is also acceptable to Democrats, so it shouldn't have much difficulty passing into law.

Lurking quietly in the background is the visa recapture bill. This legislation is one of the most noncontroversial immigration matters before Congress. It simply recaptures previously allocated visa numbers that were wasted due to INS/CIS malfeasance. If this legislation becomes law, all employment based priority dates for all countries (other than those for "other workers") will become current overnight. ]]> Ron Gotcher http://www.immigration-information.com/forums/blogs/ron-gotcher/39-stick-fork-cir-done.html http://www.immigration-information.com/forums/blogs/ron-gotcher/38-schumer-menendez-draft-outline-cir.html Thu, 29 Apr 2010 15:36:07 GMT Yesterday, Senators Schumer and Menendez released their *draft outline for comprehensive immigration reform. (http://www.imminfo.com/Resources/misc/Senate%20Democrats%20proposal.pdf)* This outline is being circulated in the Senate in the hope of attracting Republican co-sponsors. The first three... Yesterday, Senators Schumer and Menendez released their draft outline for comprehensive immigration reform. This outline is being circulated in the Senate in the hope of attracting Republican co-sponsors. The first three parts of the outline deal with enforcement of existing laws, border security, and removal of illegal entrants and visa overstays. Indeed, the provisions dealing with legal immigration reform are quite cursory.

When a bill is drafted, it will undoubtedly have more robust provisions for legal immigration reform beyond those articulated in the outline. For example, the outline proposes allowing "advanced degree graduates of US colleges and universities" with degrees in science, technology, engineering, and mathematics to apply directly for green cards, provided they have job offers from US employers. The outline also proposes eliminating the single state quota limit. Nothing, however, is said about visa recapture or increasing the quota. Nothing is said about labor certification reform. Earlier outlines have included all of these proposals. Most likely, they will be included in the final legislation.

There is also mention of H and L nonimmigrant visa reform. The outline seems to mirror the legislation introduced last year on this subject. This legislation would prohibit H employers from having more than 50% of their employees on H1B visas. It would also expand the rules that apply to H1B dependent employers out to all employers. While not stated explicitly, it would likely eliminate the present exemptions that H1B dependent employers enjoy for workers with advanced degrees or who make more than $60,000.

The next Congressional recess begins May 28th. By the time Congress leaves for the Memorial Day holiday, we should see a specific legislative proposal. ]]> Ron Gotcher http://www.immigration-information.com/forums/blogs/ron-gotcher/38-schumer-menendez-draft-outline-cir.html http://www.immigration-information.com/forums/blogs/ron-gotcher/37-comprehensive-immigration-reform.html Thu, 11 Mar 2010 19:34:27 GMT The President is scheduled to meet with Senators Schumer and Graham today, along with more than a dozen representatives from interested organizations. The meeting will be to discuss whether and when to bring a comprehensive immigration reform bill up for consideration in the Senate. The Wall Street... The President is scheduled to meet with Senators Schumer and Graham today, along with more than a dozen representatives from interested organizations. The meeting will be to discuss whether and when to bring a comprehensive immigration reform bill up for consideration in the Senate. The Wall Street Journal reported that the two senators, negotiating for their respective parties, have finally reached an agreement on a comprehensive bill. Senator Graham has said that he wants a definite commitment from the President to support the legislation aggressively before he is willing to move forward.

If everyone is in agreement, and all assurances are given, then we may reasonably expect to see legislation introduced in the Senate as early as next week. There should be news reports later today, if not a news conference, on the results of this meeting. We should not have to wait long to learn what happened.

If this meeting does not produce a commitment to begin work on CIR immediately, then we can pretty much write it off until next year, at the earliest. ]]> Ron Gotcher http://www.immigration-information.com/forums/blogs/ron-gotcher/37-comprehensive-immigration-reform.html http://www.immigration-information.com/forums/blogs/ron-gotcher/36-silence-uscis.html Thu, 18 Feb 2010 23:50:32 GMT I participated in today's teleconference hosted by the USCIS on the subject of their recent memo about H1b employer-employee relationships. At the outset, I want to acknowledge that they didn't have to host this conference. They did so because they have received so many complaints from the public. That they did host it shows that they are interested in learning more about the concerns held by the public.

I don't think that they were prepared for the buzz saw that they encountered. The very first person to comment was former Congressman Bruce Morrison, co-author of the 1990 immigration act (the legislation that created the H1b category). He made it very clear that their interpretation in no way reflects Congressional intent. Things rapidly went downhill from there.

When my turn came, I asked if anyone had actually read the legal authorities they cited in their memo. I pointed out that both the DOL and the Supreme Court cited the EEOC Compliance Manual as the best authority on the subject of employer-employee relationships and that document reached the exact opposition conclusion. I had hoped to hear them at least attempt to justify their position, but all I heard was silence. ]]> Ron Gotcher http://www.immigration-information.com/forums/blogs/ron-gotcher/36-silence-uscis.html http://www.immigration-information.com/forums/blogs/ron-gotcher/35-revised-expanded-analysis-uscis-h1b-memo-now-available.html Tue, 16 Feb 2010 20:16:25 GMT We have revised and expanded our four part analysis of the January 8, 2010 USCIS memo on the subject of H1b classification, consulting companies, and employer-employee relationships. You may view the new memo as a PDF document, by *clicking here... We have revised and expanded our four part analysis of the January 8, 2010 USCIS memo on the subject of H1b classification, consulting companies, and employer-employee relationships. You may view the new memo as a PDF document, by clicking here. ]]> Ron Gotcher http://www.immigration-information.com/forums/blogs/ron-gotcher/35-revised-expanded-analysis-uscis-h1b-memo-now-available.html http://www.immigration-information.com/forums/blogs/ron-gotcher/34-february-15-2010-imminfo-newsletter-available.html Tue, 16 Feb 2010 16:21:37 GMT We have just published the February 15, 2010 ImmInfo Newsletter. You may read it by *clicking here (http://imminfo.com/News/Newsletter/2010-2-15/2010-2-15.html)*. If you would like to read past issue, please go to http://imminfo.com/News/newsletter_archives.html. If you would like to subscribe to... We have just published the February 15, 2010 ImmInfo Newsletter. You may read it by clicking here. If you would like to read past issue, please go to http://imminfo.com/News/newsletter_archives.html. If you would like to subscribe to the mailing list for notification of each new issue, please click here and put "subscribe" in the subject line. ]]> Ron Gotcher http://www.immigration-information.com/forums/blogs/ron-gotcher/34-february-15-2010-imminfo-newsletter-available.html http://www.immigration-information.com/forums/blogs/ron-gotcher/33-dol-still-not-issuing-prevailing-wage-findings.html Mon, 08 Feb 2010 21:50:33 GMT On January 1, 2010 the DOL began requiring employers to obtain prevailing wage determinations from the DOL national office. Up until this change, prevailing wage requests were made through state employment services. These offices took between a few days and a few weeks to return a formal prevailing... On January 1, 2010 the DOL began requiring employers to obtain prevailing wage determinations from the DOL national office. Up until this change, prevailing wage requests were made through state employment services. These offices took between a few days and a few weeks to return a formal prevailing wage finding.

For more than a month now, the DOL has required employers to process all such requests through their national office. Thirty eight days into this new system, no one has reported receiving a prevailing wage finding. Some attorneys have reported that they just received returns of their requests. In almost all cases, the requests were returned for reasons that made no sense. No one, however, has received a formal prevailing wage finding.

For those who are planning to file PERM applications, know that you must have a formal prevailing wage finding before you can begin recruiting. Take into account the fact that it may take the DOL 60 days or longer to provide that finding. ]]> Ron Gotcher http://www.immigration-information.com/forums/blogs/ron-gotcher/33-dol-still-not-issuing-prevailing-wage-findings.html http://www.immigration-information.com/forums/blogs/ron-gotcher/32-uscis-annouces-will-re-issue-corrected-approval-notices-some-cases.html Wed, 03 Feb 2010 15:52:07 GMT The following was posted on the USCIS web site:

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) is alerting customers of certain Notices of Approval (Forms I-797) issued between Jan. 20 and Jan. 27, 2010, with incorrect or missing information. The form types impacted are Petition for Nonimmigrant Worker (Form I-129) and Application to Extend/Change Nonimmigrant Status (Form I-539).

USCIS has started mailing new approval notices with corrected information to affected I-129 petitioners and I-539 applicants. Petitioners and applicants who received incomplete or incorrect approval notices should not attempt to use them. USCIS estimates that approximately 500 incorrect Notices of Approval (Forms I-797) were issued.

These are examples of errors on the approval notices of affected petitioners and applicants:

For Form I-129, petitioners who requested multiple unnamed beneficiaries were issued an approval notice that lists only one unnamed beneficiary.

For Form I-539, some applicants were issued an approval notice with no validity dates listed. If you know or believe that your Notice of Approval was issued with incorrect or missing information, and you do not receive a revised Notice of Approval by Monday, Feb. 8, please contact USCIS at:

Service Center Type of Processing Email Address

California Service Center Regular csc-ncsc-followup@dhs.gov
Premium csc-premium.processing@dhs.gov
Vermont Service Center Regular vsc.ncscfollowup@dhs.gov
Premium vsc-premium.processing@dhs.gov

Please include “Approval Notice Error” in the subject line of the email. Petitioners and applicants may also call the National Customer Service Center at 1-800-375-5283 for assistance. ]]> Ron Gotcher http://www.immigration-information.com/forums/blogs/ron-gotcher/32-uscis-annouces-will-re-issue-corrected-approval-notices-some-cases.html http://www.immigration-information.com/forums/blogs/ron-gotcher/31-important-update-aila-regarding-newark-jfk-airports.html Tue, 02 Feb 2010 22:14:47 GMT The American Immigration Lawyers Association published the following update a short time ago:

AILA/CBP Liaison Practice Alert : H-1B Admissions at Newark, NJ Airport

Cite as "AILA InfoNet Doc. No. 10020237 (posted Feb. 2, 2010)"


AILA CBP Liaison Committee Practice Alert
H-1B Admissions – Newark, New Jersey Airport
(2/2/2010)

The AILA U.S. Customs and Border Protection (“CBP”) Liaison Committee received reports from AILA members that CBP inspectors at the Newark, New Jersey airport port of entry were apparently assisting in an investigation involving certain H-1B nonimmigrants from India and certain H-1B petitioner companies. The inspectors’ questions focused on who the individuals worked for, how their pay was computed, who paid their salary, their job duties, and what they were paid. In some cases, the individuals were subjected to expedited removal and visa cancellation.


After inquiring with CBP headquarters (“HQ”) about these incidents, the CBP Liaison Committee was advised by HQ that several of these cases involved companies under investigation by U.S. Immigration and Customs Enforcement (“ICE”) and/or U.S. Citizenship and Immigration Services (“USCIS”) for ongoing fraud. CBP HQ noted that they use as much advance information as possible to target specific individuals who warrant additional inspection. HQ also noted that recent enforcement cases reviewed ranged from simple documentary deficiency to visa/petition fraud. Upon an inadmissibility finding, the determination to either allow the applicant to withdraw his or her application for admission or to subject the applicant to expedited removal is based on “the totality of the circumstances and reviewed on a case by case basis.” In the Newark enforcement actions, CBP Newark worked closely with USCIS – Fraud Detection and National Security (“FDNS”) and the Department of Labor – Office of Investigations. CBP HQ stated that those questioned were offered the opportunity to contact their consulate and that CBP officers contacted the petitioner and/or current employer when clarification was needed. CBP HQ confirmed that they screen ALL employment-based visa holders to determine admissibility and ensure compliance with entry requirements.


In addition, on January 27, AILA members attending a CBP meeting in the Newark, New Jersey area were informed that a new policy has been instituted at Newark Airport. This policy involves conducting random checks for returning H-1B, L-1, and other employment-based visa holders. Based upon the initial check, if the person’s admissibility is questionable, then he or she will be sent to secondary inspection for further interview. In some cases, if CBP discovers discrepancies in previously filed petitions, then the applicant may be asked to withdraw his/her application for admission into the United States or be subject to expedited removal.


During that same local CBP meeting, attendees were advised that if CBP discovers that a returning Lawful Permanent Resident has a post-1998 conviction, the Lawful Permanent Resident may be detained. The Newark airport port of entry has adopted a mandatory detention policy for crimes that were committed after 1998. In the event that CBP cannot get a copy of the conviction record in twenty-four hours, the person may be released. The only exceptions are that CBP will release a Lawful Permanent Resident for humanitarian reasons; extenuating circumstances such as if the foreign national is traveling with children and there is no one to pick up the children; or when the person is a sole provider for United States Citizen or Lawful Permanent Resident children. Please refer to the CBP Committee advisory as to the detention of returning Lawful Permanent Residents. (AILA InfoNet Doc. No. 09100122).


Individuals with pending I-751 petitions returning to the United States via the Newark airport port of entry, who have a I-751 filing receipt documenting that an I-751 has been properly filed or an ADIT Legal Permanent Resident stamp, will be sent to secondary inspection for further interview to verify the validity of the I-751 Petition. It is unclear if CBP will undertake a substantive review of the I-751 Petition.


In all cases, attorneys should remind their clients to thoroughly prepare for their trip to the United States and their inspection upon application for admission by reviewing all pertinent documents to their petition and to consider carrying evidence to support the assertions made in the petition filed on their behalf by their employer. Similarly, employers must be prepared for telephone inquiries from CBP officers at ports of entry to confirm the assertions made in any nonimmigrant petition and supporting documentation. Finally, employers must be advised that the government may review information in any public venues such as websites and other media for consistency with petition content. Thus, keeping such public information accurate and current is essential.


Note the new fraud related language added to I-797 approval notices –



NOTICE: Although this application/petition has been approved, DHS reserves the right to verify the information submitted in this application, petition, and/or supporting documentation to ensure conformity with applicable laws, rules, regulations, and other authorities. Methods used for verifying information may include, but are not limited to, the review of public information and records, contact by correspondence, the Internet, or telephone, and site inspections of businesses and residences. Information obtained during the course of verification will be used to determine whether revocation, rescission, and/or removal proceedings are appropriate. Applicants, petitioners, and representatives of record will be provided an opportunity to address derogatory information before any formal proceeding is initiated.


Please do not forget to contact the CBP port director to follow up on case problems at a particular port. In addition, as needed, file complaints through the CBP complaint process referenced on InfoNet. (AILA InfoNet Doc. No. 09090364). ]]> Ron Gotcher http://www.immigration-information.com/forums/blogs/ron-gotcher/31-important-update-aila-regarding-newark-jfk-airports.html http://www.immigration-information.com/forums/blogs/ron-gotcher/30-icert-remains-down-fifth-consecutive-day.html Tue, 02 Feb 2010 16:47:43 GMT The Department of Labor's iCert portal remains unavailable for the fifth consecutive day, and sixth out of the last seven. Someone should suggest to the DOL that they stop using Programmer's Guild members to do their upgrades and import some competent H1b nonimmigrants instead. This has gotten entirely out of hand. We realize that they are a government agency and use substandard labor, but this has gotten absurd. ]]> Ron Gotcher http://www.immigration-information.com/forums/blogs/ron-gotcher/30-icert-remains-down-fifth-consecutive-day.html http://www.immigration-information.com/forums/blogs/ron-gotcher/29-has-uscis-just-given-delinquent-h1b-employers-bullet-proof-defense-lca-claim.html Mon, 25 Jan 2010 22:50:54 GMT The new USCIS H1B memo appears to be a godsend for H1B employers that do not comply with LCA requirements. Should the Department of Labor now come after them for back pay, they need only proffer the USCIS memorandum for the proposition that they are not “employers” after all. Since they are not employers, at least in the eyes of the USCIS, they are not subject to the LCA regulations.

I very much doubt that this will work. I am certain that the DOL will litigate this issue to the Supreme Court, if necessary. As soon as there is judicial precedent, the CIS memo will get flushed, as it deserves. ]]> Ron Gotcher http://www.immigration-information.com/forums/blogs/ron-gotcher/29-has-uscis-just-given-delinquent-h1b-employers-bullet-proof-defense-lca-claim.html http://www.immigration-information.com/forums/blogs/ron-gotcher/28-dol-icert-system-shut-down-day.html Thu, 14 Jan 2010 16:28:32 GMT The DOL has announced that they will be taking their iCERT portal down from Wednesday, January 20th at approximately 6:00 AM EST until Thursday January 21st at 6:00 AM EST for scheduled maintenance. When the system comes back on-line, users will be able to submit prevailing wage requests on-line,... The DOL has announced that they will be taking their iCERT portal down from Wednesday, January 20th at approximately 6:00 AM EST until Thursday January 21st at 6:00 AM EST for scheduled maintenance. When the system comes back on-line, users will be able to submit prevailing wage requests on-line, rather than use the present mail in system.

This means that it will not be possible to file labor condition applications (LCA) during the time that the system is down. ]]> Ron Gotcher http://www.immigration-information.com/forums/blogs/ron-gotcher/28-dol-icert-system-shut-down-day.html http://www.immigration-information.com/forums/blogs/ron-gotcher/26-dhs-site-visits.html Mon, 11 Jan 2010 23:31:08 GMT We have received a number of phone calls from adjustment of status applicants, informing us that someone from DHS came around for a site visit. In every case, it turned out to be a routine H1B site visit. Coincidentally, in each case our client not only held H1B status, but was also an applicant for adjustment of status.

AOS applicants who have these kinds of site visits should not read anything special into them. The DHS is trying to validate their fraud profile and to do this, they are committed to conducting more than 25,000 H1B site visits each year.

There is nothing nefarious about these visits. If someone visits your place of employment, it is just to gather data. It does not mean that you or your employer are suspected of doing anything wrong. You should not worry if this happens to you.

The purpose of the site visit program is to verify the underlying facts set forth in the H1B petition. They want to make sure that there is a real job and a real workplace. They want to verify that the workplace is appropriate for the type of job involved. They also want to try to verify income. ]]> Ron Gotcher http://www.immigration-information.com/forums/blogs/ron-gotcher/26-dhs-site-visits.html http://www.immigration-information.com/forums/blogs/ron-gotcher/25-india-eb3-movement-based-cis-aos-report.html Thu, 07 Jan 2010 19:54:10 GMT Assuming that no new AOS applications are found, and there is no legislative relief, I've put together a chart of projected India EB3 priority date movement based only on the CIS adjustment of status report. I've done this because so many people have asked questions about specific priority dates. The following is a rough approximation of the India EB3 cutoff date movement based on known, existing demand:

Fiscal Year 2010 - India EB3 should advance to around April, 2002.
Fiscal Year 2011 - India EB3 should advance to around August, 2002.
Fiscal Year 2012 - India EB3 should advance to around November, 2002.
Fiscal Year 2013 - India EB3 should advance to around February, 2003.
Fiscal Year 2014 - India EB3 should advance to around May, 2003.
Fiscal Year 2015 - India EB3 should advance to around August, 2003.
Fiscal Year 2016 - India EB3 should advance to around November, 2003.
Fiscal Year 2017 - India EB3 should advance to around December, 2003.
Fiscal Year 2018 - India EB3 should advance to around March, 2004.
Fiscal Year 2019 - India EB3 should advance to around May, 2004.
Fiscal Year 2020 - India EB3 should advance to around July, 2004.

Please understand that these are just very, very rough approximations of Visa Bulletin cutoff date movement based on known factors. Actual movement may be faster or slower, depending upon the actual demand presented at the time. Also, I very firmly believe that we will see legislative relief that will make all cutoff dates "current" in the very near future. More than anything else, I've prepared this to answer the daily questions I receive "My priority date is India EB xx/xx/xxxx. When will it become current?" ]]> Ron Gotcher http://www.immigration-information.com/forums/blogs/ron-gotcher/25-india-eb3-movement-based-cis-aos-report.html