Posted On: March 31, 2009

BALCA reverses denial of Labor Certification

The Board of Alien Labor Certification Appeals (BALCA) recently reversed the final determination
of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Plumber Helper.

The employer, a plumbing services company filed a LC on behalf of an alien worker in April of 2001. The application got caught up in the large number of pre-PERM backlog cases, and as a result the employer did not receive the Recruitment Instructions letter until February of 2007. The letter directed the employer to advertise the offered position in a newspaper of general circulation. The Employer placed an ad in the Houston Northwest Greensheet for the requisite period of time, and also placed an advertisement for the position online. In August of 2007, the director issued a Notice of Findings (NOF) to the employer indicating that the employer must submit proof of advertisement or the application would be denied. In September, the employer submitted a notarized proof receipt indicating that the employer had run the advertisement in the Greensheet. Thereafter, the CO issued its final determination denying certification because the Greensheet did not meet the definition of a newspaper of general circulation. Subsequently, the employer requested BALCA review. The employer indicated in its request that (1) it has used the Greensheet before for advertising purposes and forms were never returned or questioned, and (2) it asked to be permitted to re-advertise if the Greensheet was determined inadequate.

Upon BALCA review, it was determined that the employer was denied an adequate opportunity to timely submit evidence on the issue of whether the Greensheet was a newspaper of general circulation. The employer was not informed of the inadequacy of the newspaper until the director’s final determination. Accordingly, it is the certifying officer’s duty to state the specifics upon which the decision to issue the NOF was made. If the reasons for the denial are not made clear, it cannot rebut with sufficiency nor can it attempt to cure any deficiency. Upon review of the NOF, BALCA determined that it only suggested that the employer submit proof of advertisement to rebut. The CO made it clear in its final determination letter that the newspaper did not meet the regulation requirements, but by that time, it was too late for the employer to submit evidence to rebut the conclusion. Thus, BALCA determined that the NOF was rebutted, and therefore certification should be granted. Accordingly, the final determination of the CO was reversed and the labor certification thereafter granted.

Posted On: March 30, 2009

FYI – Clarification on H-1B Lottery System

Many employers have been questioning whether the regulation governing the “lottery” system will apply to this year’s H-1B cap. The United States Citizenship and Immigration Service (USCIS) has provided that the lottery will apply this year. In accordance with the regulation, the USCIS randomly selects the number of petition’s necessary to reach the cap from petitions received on the final receipt date. This year, it has been confirmed that if USCIS determines that they have received a sufficient number of cases in the first five business days of April to reach the cap, then the "lottery" will be based on petitions received all five days. USCIS will not begin to issue receipts, however, until a determination is made that sufficient H-1B petitions have been received within the first five business days of April, ending April 7, 2009. After the "lottery" is conducted, the USCIS will then issue receipts for those cases which are selected, and the receipts will likely all have the same receipt date, April 8, 2009. All petitions received between April 1, 2009, and April 7, 2009, will have the same receipt date.

If you have any further questions regarding the H-1B lottery system or the H-1B nonimmigrant visa in general, please contact our office.

Posted On: March 27, 2009

Appeal of an Alien of Extraordinary Ability is rejected by Administrative Appeals Office

The Administrative Appeals Office (AAO) recently considered the merits of the petitioner’s appeal on a de novo basis. Accordingly, the appeal was rejected, subsequent motions were rejected and the petition will remain denied.

There were several procedural errors made in the adjudication of this petition. The employment based immigrant visa petition was denied by the Director of the Vermont Service Center (VSC) on August 3, 2004. The petitioner filed a subsequent appeal on September 8, 2004. The director declined to treat the late appeal as a motion and forwarded the matter to the AAO. On October 11, 2005, the AAO rejected the appeal as untimely without rendering a decision as to the merits of the case. On November 9, 2005, the petitioner filed a motion to reopen the AAO’s rejection of his appeal. On June 6, 2006, the director dismissed the motion rather than forwarding it to the AAO for consideration. On December 12, 2007, the petitioner filed a motion to report the director’s decision dismissing his prior motion. The director forwarded the motion to the AAO. Although the issuing director shall have jurisdiction over the motion, given the directors errors throughout the proceedings, the AAO decided that they would consider the merits of the case on a de novo basis.

The issue on appeal is whether the petitioner properly filed the appeal. In order to properly file an appeal, the regulations provide that the affected party must file the complete appeal within 30 days after service of the unfavorable decision. If the decision was mailed, the appeal must be filed within 33 days. The date of filing is not the date of mailing, but the date of actual receipt. According to the facts, the appeal was untimely filed. Although the appeal was untimely, it did meet the requirements of a motion to reopen. The regulations specifically provide that if an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case. Thereafter, the AAO considered the case themselves due to the prior errors committed in this proceeding.

The Petitioner filed an employment based immigrant visa petition on behalf of an alien with extraordinary ability, a Chinese Opera artist. To be eligible to qualify for the visa, the regulation provides that an alien have extraordinary ability in the sciences, arts, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. The term “extraordinary ability” means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor. The regulation at 8 C.F.R. § 204.5(h)(3) indicates that an alien can establish sustained national or international acclaim through evidence of a one-time achievement (that is, a major, internally recognized award). Barring the alien’s receipt of such an award, the regulation outlines ten criteria, at least three of which must be satisfied for an alien to establish the sustained acclaim necessary to qualify as an alien of extraordinary ability. The AAO provided that in determining whether the petitioner meets a specific criterion, the evidence itself must be evaluated in terms of whether it is indicative of or consistent with sustained national or international acclaim.

Upon review of the petition, the AAO considered the evidence submitted by the petitioner for nine of the ten criteria. After a thorough review of each piece of evidence, the AAO ultimately denied the appeal. There were various problems with this petition. All documents that were submitted for review along with their English translations were insufficient. The translated English documents were not certified as required by the regulations, and as such the AAO could not afford the documents any weight in its evaluation of the evidence. Additionally, other evidence tended to show that the alien performed locally rather than nationally or internationally, and that many competitions he entered were restricted to the youth. In addition, the published material submitted about the alien was not sufficient as the materials were not specifically about the alien, and there was no evidence presented that the publications constituted major media. The petitioner also submitted several letters of recommendation regarding his talent and expertise in the field. The AAO responded to the letters by stating that talent in one’s field is not necessarily indicative of artistic contributions of major significance, and that although the alien earned the admiration of those providing letters, there was nothing to demonstrate that his work has had major significance in the field at large.

In conclusion, the petitioner failed to demonstrate receipt of a major, internationally recognized award, or that he meet at least three of the regulatory criteria. The burden of proof rested with the petitioner, and the petitioner was unable to sustain that burden. Accordingly, the AAO stated that even if the petitioner’s appeal and subsequent motions were not rejected, the petition would have remained denied.

Posted On: March 26, 2009

GAO Report unveils significant vulnerabilities in the Department of State’s Passport Issuance Process

The United States Government Accountability Office (GAO) conducted an investigation from May 2008 through March 2009 which showed that terrorists or criminals could steal an American citizen’s identity, use basic counterfeiting skills to create fraudulent documentation for that identity, and obtain a genuine U.S. passport from the Department of State (DOS). The GAO conducted their investigation by using “basic counterfeiting skills.”

The same GAO investigator was able to easily obtain four passports issued by the DOS under four different names. The first passport was applied for in a United States Postal Service (USPS) office in Virginia in July of 2008. The investigator used a counterfeit West Virginia driver’s license, and a counterfeit New York birth certificate, along with the passport application form. The first passport was issued 8 days after the application was submitted for review. The GAO investigator applied for the second passport in August of 2008 at the State’s regional Washington, D.C. passport issuing office. The GAO investigator used a genuine District of Columbia (DC) identification card obtained with fraudulent documentation, and a counterfeit New York birth certificate, along with the passport application form. Surprisingly enough, the passport was issued to the investigator that same day. In October of 2008, the investigator applied for another passport in a USPS office located in Maryland. The investigator submitted a counterfeit West Virginia driver’s license, and a counterfeit New York birth certificate. The submitted passport application contained the Social Security Number (SSN) of a fictitious 5-year-old child, which was obtained from a prior investigation. Once again, another passport was issued to the investigator based on the documentation submitted only 7 days later. The final passport issued as a result of this investigation was in December 2008 from a USPS office in Maryland. The investigator submitted a counterfeit Florida driver’s license, and a counterfeit New York birth certificate. The passport form contained the SSN of a deceased individual. And again, the passport was thereafter issued only 4 days after the documentation was submitted for review.

After the investigation, the GAO briefed DOS officials on the results. DOS officials admitted that the findings expose a major vulnerability in DOS’s passport issuance process. According to DOS officials, the department’s ability to verify information submitted by passport applicants is hampered by limitations to its information sharing and data access with other agencies at the federal and state levels. This is the same problem that was identified after the tragic events that took place on September 11, 2001, eight. Additionally, they said that they do not currently have the ability to conduct real-time verification of the authenticity of birth certificates presented by passport applicants, and to make matters worse, there are other difficulties with verifying the authenticity of drivers’ licenses.

The DOS officials stated that to improve the current passport fraud detection capabilities, they would need greater cooperation and support from other agencies at both the federal and state levels, and the ability to access other agencies’ records in real time.

After the GAO briefed the DOS regarding their investigation, the four fraudulently obtained U.S. passports were identified and revoked. The DOS indicated that it would study the matter further to determine what steps would be appropriate to improve passport issuance procedures.

Posted On: March 25, 2009

USCIS released UPDATED Form I-9 EMPLOYER HANDBOOK

The United States Citizenship and Immigration Service (USCIS) recently released the updated version of the Form I-9 Employer Handbook.

The handbook provides the basic steps involved with a new hire, including the forms that must be completed, what documents are acceptable and step-by-step directions on how to correctly complete Form I-9.

The handbook also explains the reason we have Form I-9 for employment eligibility, mentions unlawful discrimination and penalties for prohibited practices, and discusses the E-Verify online program component for interested employers.

The handbook also provides the most current Form I-9, which may be printed and copied by all employers.

The MVP Law Group recommends that all employers download the I-9 Employer Handbook as a reliable tool for assisting with I-9 compliance. If your company needs assistance with I-9 compliance, please do not hesitate and contact our office to discuss how we may help!

Posted On: March 24, 2009

Administrative Appeals Office Processing Times

The Administrative Appeals Office (AAO) released its time report on March 18, 2009 with updated processing times for all types of cases accepted by its Office.

If you filed an appeal, please review the link below to determine the applicable processing time associated with your case.

Administrative Appeals Office

If your case is out-side of the normal range listed and you need assistance, feel free to contact our office.

Posted On: March 24, 2009

Updated Service Center Processing Times

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Centers were released on March 17, 2009 with processing dates as of January 31, 2009.

If you filed a petition with one of the Service Centers, please review the links below to determine the applicable processing time associated with your particular case.

California Service Center
National Benefits Center
Nebraska Service Center
Texas Service Center
Vermont Service Center

If your petition is out-side of the normal range listed, contact USCIS. (1-800-375-5283)
If you would like our assistance, feel free to contact our office.

Posted On: March 23, 2009

EAWA and its effect upon H-1B petitions (TARP RECIPENTS)

The United States Citizenship and Immigration Service (USCIS) recently released some guidance regarding the Stimulus Bill, which contains the “Employ American Worker Act” (EAWA) and its effect upon the H-1B visa petition.

If the company was a recipient of the funds distributed through the Trouble Asset Relief Program (TARP), EAWA prevents an employer from displacing qualified U.S. workers when participating in the H-1B visa program. Under EAWA a company is considered an “H-1B dependent employer” and must make additional attestations to the Department of Labor (DOL) when filing the Labor Condition Application (LCA).

According to the guidance distributed by the USCIS, employers must attest to the following additional requirements on the LCA:
• It has taken good faith steps to recruit U.S. workers (defined as U.S. citizens or nationals, lawful permanent resident aliens, refugees, asylees, or other immigrants authorized to be employed in the United States (i.e., workers other than nonimmigrant aliens) using industry-wide standards and offering compensation that is at least as great as those offered to the H-1B nonimmigrant;
• It has offered the job to any U.S. worker who applies and is equally or better qualified for the job that is intended for the H-1B nonimmigrant;
• It has not “displaced” any U.S. worker employed within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing. A U.S. worker is displaced if the worker is laid off from a job that is essentially the equivalent of the job for which an H-1B nonimmigrant is sought; and
• It will not place an H-1B worker to work for another employer unless it has inquired whether the other employer has displaced or will displace a U.S. worker within 90 days before or after the placement of the H-1B worker.

The USCIS stated that companies who received TARP funds should know who they are and should act accordingly when filing an H-1B nonimmigrant visa petition. Meaning they should comply fully with the new limitations on hiring skilled foreign workers. USCIS is working with the Department of Treasury to identify all recipients of TARP funds.

EAWA applies to all H-1B petitions filed on or after February 17, 2009. EAWA does not apply to H-1B extensions of stay with the same employer or to those changing status from some other authorized work status to that of H-1B.

In response to EAWA, the USCIS has redesigned Form I-129, H-1B Data Collection Supplement, to include a section on EAWA attestation requirements. (page 13 of Form I-129) Although it is short notice to those employers who already have H-1B FY 2010 petitions packaged for filing, the USCIS stressed the importance of utilizing the updated form for filing H-1B visa petitions for FY 2010. They advised that if Form I-129 indicates that the petitioner is subject to EAWA and the LCA does not contain the requisite attestations, then the petition will be denied.

As immigration law is already complex is nature, it is important to have an attorney experienced in the field, who is ready and willing to help when changes occur. Contact the MVP Law Group if you have any further questions regarding EAWA and its effect on your company.

Posted On: March 20, 2009

Guidance on Changing to and Extending B-1/B-2 Status

When a citizen of another country wishes to travel to the United States for
business or pleasure,
there are specific visas that are available for those individuals. The B-1, Business visa is for those interested in traveling to the U.S. to consult with business associates, to attend conventions/conferences, and to negotiate a contract, etc. In other words, the B-1 visa is intended for those applicants traveling to the U.S. temporarily for business related purposes. The B-2, Pleasure/Visitor/Tourist visa is for those who plan to travel to the U.S. for recreational purposes including tourism, to visit with friends and family, and to obtain medical treatment, etc.

When changing status to B-1 Business visitor, it is important that the applicant document the business activity to be performed, the exact length of time needed to complete the business activity, and the applicant’s intent to depart the United States at that time. This documentation may be established by submitting an itinerary, a brochure of scheduled business events, or evidence of a roundtrip airline ticket, etc. This change of status can only be granted for up to 364 days, so it is extremely important to carefully document the exact length of time needed to complete the activity.

When changing status to B-2 Pleasure visitor, which is also only granted for a period up to one year, it is extremely important to fully explain why a full year should be granted.
Additionally, if an applicant wishes to extend his/her B-1/B-2 status, the extension period is limited to six months. Please note that the maximum of six months will only be granted if the applicant initially requested it on Form I-539.

The Vermont Service Center (VSC) has advised that if the adjudication of the extension petition is taking more than six months, and the beneficiary has not departed the U.S., it is recommended that they interfile a new I-539 prior to the expiration of the beneficiary’s I-94 Arrival/Departure record.

The VSC has also advised that it will approve extensions for a period of less than six months if there is a co-applicant child that will reach the age of twenty-one (21) during the requested time frame. In other words, all applicants will only be extended until the day before the child’s twenty-first birthday.

For more information on B-1/B-2 Status, please contact
our office!

Posted On: March 19, 2009

Extending H-1B Status beyond the Regulatory Six-Year Limitation Period

The H-1B nonimmigrant visa program is designed to allow alien beneficiaries to enter the country and begin working for a U.S. employer for a period of three years. The sponsoring employer or a new employer may renew the H-1B visa for another period of three years. In other words, the Immigration and Nationality Act (INA) regulations clearly allow for the recipient of an H-1B visa to be in H-1B status for a total initial period of six years. The alien beneficiary may then return to his/her home country, remain there for one year, and only then will they be eligible to apply for another H-1B nonimmigrant visa.

However, there are ways to extend H-1B visa status beyond the six year limit. The Vermont Service Center (VSC) Liaison Committee has provided the following guidance for extending H-1B status beyond the six year limitation. If the alien beneficiary has completed one of the following conditions, they are eligible for an extension beyond the sixth year as long as one of the listed conditions have been met prior to the alien’s requested start date:

(1) 365 days or more have passed since the filing of any application for labor certification; and the labor certification, if approved, has not been revoked, is unexpired, or has been timely filed with an EB petition within the labor certification’s validity period; or
(2) 365 or more days have passed since the filing of an EB immigrant petition that is still pending; or
(3) The alien is the beneficiary of an approved EB immigrant petition and is not able to file an adjustment of status application or, if such application has already been filed, is unable to adjust status due to the unavailability of an immigrant visa number.

Additionally, If an alien beneficiary has time remaining under the regulatory H-1B six-year limitation period, the employer may file an H-1B extension petition requesting to recapture the remaining amount of time, plus a one-year extension pursuant to AC21 § 106. The one-year extension will be granted provided that:

(1) A labor certification is unexpired at the time of filing the extension petition, and
(2) The labor certification or the I-140 petition was filed at least 365 days prior to the date the alien will exhaust 6 years of H-1B status pursuant to 8 CFR § 214(g)(4); and
(3) The extension petition is otherwise approvable

Additionally, alien beneficiaries are eligible for a three year H-1B extension beyond the sixth year limitation period pursuant to AC21 § 104 as long as the alien is the beneficiary of an APPROVED I-140 petition AND is INELIGIBLE for an immigrant visa abroad because no visa numbers are available at the time the H-1B extension petition is filed.

For more information on the H-1B nonimmigrant visa program or if you have any questions regarding extending H-1B status, please contact our office to schedule a consultation.

Posted On: March 18, 2009

Labor Department To Implement New Online Application System

The Department of Labor will soon implement a new integrated online system – known as the iCert Portal – through which employers will submit applications for permanent labor certification, labor condition applications (LCAs) and other applications for immigration-related DOL programs. In addition, the agency will introduce new editions of Form ETA-9089, the PERM labor certification application, and Form ETA-9035, the labor condition application. When fully implemented, the new system will replace the existing LCA and labor certification application systems. DOL will implement the new LCA and PERM application systems with 30-day transitional periods, when both the existing system and the new online portal will be operational simultaneously.

The new iCert system will begin to accept LCAs as of April 15, 2009 – after the April 1 opening date of the H-1B filing period for employment in Fiscal Year 2010. The system will begin to accept PERM applications beginning July 1, 2009.

Continue reading " Labor Department To Implement New Online Application System " »

Posted On: March 18, 2009

2009 – The Year of Immigration Compliance

Tighter government oversight over the H-1B visa program and permanent employment-based immigration expected.

On October 8, 2008, the U.S. Citizenship & Immigration Service (USCIS) released a report that 13% of all H-1B petitions filed on behalf of U.S. employers are fraudulent. The same report also stated that another 7% of those petitions contain some sort of technical violation. The report’s conclusion states: “Given the significant vulnerability, USCIS is making procedural changes, which will be described in a forthcoming document.”

Continue reading " 2009 – The Year of Immigration Compliance " »

Posted On: March 18, 2009

Introduction of the “Immigration Fraud Prevention Act of 2009” on the Senate Floor

On Thursday, March 12, 2009, United States Senators Dianne Feinstein (D-CA) and Edward Kennedy (D-MA) introduced the “Immigration Fraud Prevention Act of 2009.” This Act would make it a Federal crime to defraud individuals – citizens and non-citizens alike…in connection with any matter arising under the Immigration Laws. Accordingly, it would make it a felony to falsely misrepresent that one is an attorney or accredited representative in any immigration matter.

As a result of complaints from law enforcement officials regarding the growing amount of fraudulent immigration specialists operating throughout the country, this bill was introduced. Charles H. Kick, President of AILA, stated that the bill is a wonderful first step towards addressing this pervasive problem. Additionally, Larry Drumm, Chair of AILA’s Consumer Protection and Authorized Practice of Law Action Committee chimed in by stating that “immigration law is stunning complex and filing the wrong documents, missing a deadline, or failing to fully disclose all of the facts in a case can mean the difference between legal status, deportation, and in the case of some asylum seekers, even death.”
This is a very serious issue and the need for a strong federal law and a commitment to root out this problem are what is needed.

Posted On: March 17, 2009

Salt Lake City Man allegedly conned victims by posing as an Immigration Official

In an article published by Pamela Manson of The Salt Lake Tribune, federal prosecutions confirmed the identity of a Salt Lake City man who allegedly impersonated an immigration official ultimately stealing thousands of dollars from undocumented immigrants hoping to become legal residents.

The complaint alleges that the Salt Lake City man took money from undocumented workers, did nothing to help those clients, and would then threaten his clients with deportation when they questioned his progress in their cases. One woman also alleged that the Salt Lake City imposter demanded sex from her and threatened to have one of her children deported when he she refused to pay him more money. She also alleged that he made many hostile and overly aggressive phone calls to her demanding either sex or more money to finish the process.

According to an affidavit by an Immigration and Customs Enforcement (ICE) agent, the alleged imposter charged between $1,500 to $5,000 per person to handle the legalization process. Additionally, the imposter claimed to work for ICE. It is also alleged that the imposter met many of his clients through mutual friends in the Church of Jesus Christ of Later-day Saints and would meet with his clients in his home to complete paperwork and take payment. It is also alleged that the imposter did not give receipts to his clients because he said that it would cause delays in the process. He also allegedly claimed that by receiving cash only he could back date his client’s cases for faster processing.

At this time, the alleged imposter is in custody pending further proceedings. The Salt Lake City imposter faces up to three years in prison and a $250,000 fine if convicted of impersonating an officer or employee of the United States.

Posted On: March 16, 2009

ALJ Finds H-1B Employer liable for Back Wages and Retaliatory Discharge

An Administrative Law Judge (ALJ) of the Department of Labor (DOL) recently ordered the employer of an IT company to pay the alien beneficiary’s unpaid salary for the full term of the H-1B visa with interest, an amount for his monthly health, dental and vision insurance benefits, an amount for his unpaid annual 401(k) contributions with interest, his litigation travel expenses, and ordered the return of his work experience certificate and H-1B extension approval notice.

The Petitioner filed an H-1B nonimmigrant petition on behalf of a Chinese national to work in an IT specialty occupation. The filed H-1B petition contained a certified Labor Condition Application (LCA) which detailed the salary the alien beneficiary was to be paid and made several other attestations that the employer acknowledged. The H-1B program contains strong provisions to ensure that U.S. and foreign workers are protected. Employers must guarantee that U.S. workers will not be adversely affected upon the hiring of an H-1B professional. For instance, a U.S. employer using the program must also guarantee that (1)the foreign professional will not adversely affect the working conditions of U.S. workers; (2) the foreign professional will be paid the greater of the job’s actual wage rate or the prevailing wage rate throughout the entire period of authorized employment; (3) U.S. colleagues will be given notice of the foreign professional’s presence among them; (4) there is no strike or lockout at the worksite; and (5) the position requires a professional in a specialty occupation and the intended employee has the required qualifications.

The problem arose when the alien beneficiary received no work and no pay. The alien beneficiary came to the United States to seek work in a specialty occupation; however, the investigation conducted by the DOL illustrated that the petitioning company never really had any work for the alien worker. The evidence indicates that the petitioning company brought the H-1B worker to the U.S. intending to contract his labor out to other entities, rather than to use the worker’s labor directly in the business. With this plan, the petitioning employer was more of an employment broker than a traditional employer, and would not pay the worker until it collected the money from the entities that actually utilized the worker’s professional skills. This practice is often referred to as “benching.” Benching is a violation of the Immigration and Nationality Act (INA) and accordingly forbidden by the H-1B nonimmigrant visa program. The alien worker was in the U.S., not working and not receiving any type of salary, health insurance or other benefits that were guaranteed by his employment contract and by his signed and certified LCA. The record shows that the alien worker kept in contact with several of his employer’s staff and was never told that his work was inadequate or that the employer intended to terminate his employment.

After much confusion and frustration, the alien worker contacted the DOL and submitted a complaint about his employer not paying his salary. The alien worker was advised to wait a while to see if he would be placed on a job; however, that never happened. The DOL then went forward with their investigation and uncovered a lot of information that indicated that the employer was not following or obeying the various regulations involved with the H-1B program. As a result of the alien worker filing the complaint with the DOL, the employer attempted to retaliate and revoke/terminate the alien worker’s H-1B visa. In order to terminate H-1B employment, which would absolve the company from its liability to pay the worker, there must be a meeting of the minds between the employer and the alien worker that employment has ended, and notice to the United States Citizenship and Immigration Service (USCIS) of the termination, and if appropriate, money for the alien worker to return home. None of these actions occurred in this case. The employer alleged that they had already terminated the alien worker before the complaint was filed, and alleged that they purchased a ticket back to China for the worker, but after investigation, these allegations were proven false.

As a result of the investigation, the Administrative Judge ordered the employer to pay the alien worker his salary for the authorized period of his H-1B visa with interest, an amount for his health, dental and vision benefits for the same period, an amount for his 401(K) annual contributions, an amount for his litigation travel expenses, and among other things, the return of the alien worker’s H-1B extension approval notice, so that he may seek work with another H-1B sponsoring employer.

Posted On: March 13, 2009

USCIS releases updated Naturalization materials

The United States Citizenship and Immigration Service (USCIS) has released its most updated materials for those interested in or applying for naturalization/citizenship.

At the MVP Law Group, we recommend that naturalization/citizenship applicants review the Publication: The Citizens’ Almanac. The Almanac provides an in-depth look at the history of the United States of America. It contains detailed information about fundamental documents, symbols, and anthems of the United States like the Declaration of Independence, the U.S. Constitution, the Star Spangled Banner and the American Flag. It also contains several Presidential and historical speeches along with a few landmark decisions of the U.S. Supreme Court.

Applicants anticipating an interview for naturalization should review the study materials provided by the USCIS. The MVP Law Group recommends that applicants utilize the following:

Learn About the United States: Quick Civic Lessons for the New Naturalization Test
The material above explains much of the history of the United States. It is designed to help the applicant understand the principles of American democracy, the U.S. system of government, and the important rights and responsibilities of U.S. citizenship.

Civics Flash Cards

The flash cards are easily accessible online and ready to be printed. The flash cards contain the same information as the study material above; however, they should be used in preparation for the naturalization interview. There are one hundred civics questions provided with pictures.

To review all of the updated Naturalization materials please click here!

If you have questions about the naturalization process and/or are interested in getting started, please contact our office!

Posted On: March 12, 2009

ICE Investigation results in former Supervisor of Poultry plant sentenced to 23 months in prison

After an investigation conducted by U.S. Immigration and Customs Enforcement (ICE) a former supervisor of an Iowa poultry plant was sentenced to twenty-three months in prison for his role in harboring illegal aliens.

According to information disclosed in court, the former supervisor played an active role in harboring the illegal aliens. Specifically, he told a number of employees to change their Social Security numbers and names in order to continue working at the company, and later directed six of his most valuable workers to get new identification documents.

The Federal Judge in this case increased the sentence from the sentencing guidelines because the former supervisor held a supervisory position and also because one hundred or more illegal aliens were harbored.

The ICE investigation began in October 2007, and criminal and administrative warrants were executed on the Poultry plant in May 2008. According to the U.S. Citizenship and Immigration Service (USCIS), the investigation is ongoing.

ICE aggressively targets employers who violate immigration laws by knowingly employing an illegal workforce!

The MVP Law Group encourages all employers to abide by the rules and regulations and to keep and maintain accurate and up-to-date I-9 forms for all employees.

If you are interested in conducting an I-9 compliance audit, please contact our office!

Posted On: March 11, 2009

All H-1B Cap EXEMPT visa petitions should be filed with the California Service Center

Employers who are filing H-1B cap exempt visa petitions including extension petitions must file those petitions with the California Service Center (CSC). Additionally, please note that any H-1B cap exempt and extension petitions mistakenly sent to the Vermont Service Center (VSC) will be REJECTED.

H-1B “Cap EXEMPT” petitions include petitions filed by:
• Institutions of higher education, as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a);
• Nonprofit organizations or entities related to or affiliated with institutions of higher education; and
• Nonprofit research organizations or governmental research organizations, as defined in 8 CFR 214.2(h)(19)(iii)(C).

Please see below the correct mailing address for the California Service Center:

For Direct Mail:
U. S. Citizenship and Immigration Services
California Service Center
ATTN: CAP EXEMPT H-1B Processing Unit
P.O. BOX 30040
Laguna Niguel, CA 92607-3004

For non-United States Postal Service (USPS) deliveries (e.g. private couriers):
U. S. Citizenship and Immigration Services
California Service Center
ATTN: CAP EXEMPT H-1B Processing Unit
24000 Avila Road, Room 2312
Laguna Niguel, CA 92677

In addition, the U.S. Citizenship and Immigration Service (USCIS) has advised Employers filing H-1B Cap EXEMPT petitions to clearly mark the envelope and top margin of Form I-129 “EXEMPT” to ensure quick identification of the H-1B filing at the CSC.

If you have any questions regarding the H-1B visa petition , please do not hesitate to contact our office .

Posted On: March 10, 2009

USCIS Incorporates Passport Data into E-Verify Program

In an effort to reduce the amount of Tentative Non-confirmations (TNCs) being issued by the United States Citizenship and Immigration Service (USCIS), the Service has teamed up with the Department of State (DOS) and has incorporated DOS passport data into the E-Verify employment authorization program.

Before this joint effort, foreign born citizens were receiving far more mismatches (otherwise known as tentative non-confirmations) than U.S. born citizens. Those who received TNCs had to physically visit a Social Security Administration (SSA) office in order to attempt to resolve the issue. Before this enhancement, receiving a mismatch was a scary and tiresome burden to overcome.

However, now, if the Department of Homeland Security (DHS) or the SSA is unable to immediately confirm a citizen’s work eligibility, the USCIS can check DOS passport records prior to issuing a TNC. Accordingly, if citizenship information provided on Form I-9 matches those records, E-Verify will then confirm the individual’s work authorization. Additionally, for those foreign born U.S. citizens who receive TNCs, they may now sort the issue out over the telephone with the USCIS rather than physically entering a SSA office.

Posted On: March 9, 2009

April 2009 Visa Bulletin

The Department of State has released its latest Visa Bulletin. The April 2009 visa bulletin still shows employment based third preference (EB-3) visas as oversubscribed while the employment based second preference (EB-2) is current for all areas of chargeability except for China and India.

Click here to view the April 2009 Visa Bulletin.

Posted On: March 9, 2009

Accepted Documentation to Demonstrate H-1B Beneficiary has Completed Degree Requirements

The California Service Center (CSC) has issued a statement regarding what type of documentation is sufficient proof that an H-1B beneficiary has completed the requisite degree requirements for the specialty occupation. The documentation that may be submitted to satisfy the degree requirements includes: (1) a final transcript; (2) a letter from the Registrar; or (3) a letter executed by the person in charge of the records of the educational institution where the degree was awarded. Additionally, if option three is utilized, proof must be provided that the person is authorized to issue such letters.

It is recommended that these documents are provided in the initial H-1B visa filing in order to avoid an RFE or possible outright denial.

If you have any questions regarding the H-1B visa process, please contact our office.

Posted On: March 5, 2009

Award of Payment of Back Wages to VA Aliens Hired under the H-1B Program is BARRED by U.S. Federal Government’s Sovereign Immunity

The Department of Labor (DOL) determined that the Department of Veteran’s Affairs (VA) failed to pay the prevailing wage to eleven alien physicians employed by VA hospitals pursuant to the H-1B visa program.

The H-1B is an employment based nonimmigrant visa that enables United States employers to seek highly skilled foreigner workers from around the world to increase productivity and develop new innovations within their fields. The system was designed to protect both U.S. and foreign workers by: (1) including labor certifications and attestations; (2) implementing costly filing fees; (3) requiring extensive background documentation/proof; and (4) conducting on-site employer investigations and continuous oversight by several federal agencies. Specifically, the program requires that a U.S. employer using the program guarantee that the alien will be paid the prevailing wage or higher for the specialty occupation, and that the foreign professional will not adversely affect the working conditions of U.S. workers.

Unfortunately in this case, several of the alien physicians filed administrative complaints asserting that the hospitals had failed to pay them the prevailing wage for their occupation. The DOL Administrative Review Board ruled in favor of the complainants’ and ordered the VA to pay approximately $230,000 in back wages.

However, the Supreme Court has recognized that absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit. The Executive Branch has no power to waive immunity that power rests solely with Congress. Congress did not expressly address the federal Government’s sovereign immunity anywhere in the H-1B program. The Supreme Court has demanded a clear statement of waiver so as to ensure that Congress directly considers the consequences of exposing the federal Government to suit and potential financial liability. No statement of waiver was included in the H-1B program .

Accordingly, the Deputy Assistant Attorney General concluded that the statute authorizing the H-1B program did not waive the federal Government’s sovereign immunity. Consequently, the administrative award of $230,000 to the eleven alien workers was barred by sovereign immunity. However, the DOL and VA reached an agreement that will allow the VA to continue participation in the H-1B program if they follow proper procedures for all future alien workers, yet this arrangement does nothing to help the eleven alien physicians rightly owed their back pay.

Posted On: March 4, 2009

AAO approved EB-2 petition – Foreign degree found equivalent to U.S. “M.D.”

The Administrative Appeals Office (AAO) recently withdrew the decision of the Director, Texas Service Center (TSC) and approved the immigrant petition.

The Petitioner provides health care services. The Petitioner sought to employ the beneficiary permanently in the position of Family Practice Physician. The position on ETA Form 9089 listed the educational requirements for the position as “M.D.” which stands for “Doctor of Medicine.” The pertinent regulation states: “A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master’s degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States (U.S.) doctorate or a foreign equivalent degree.” The beneficiary possesses a foreign five-year Bachelor of Medicine & Bachelor of Surgery (MBBS) degree from Islamia University Bahawalpur in Pakistan. Additionally the beneficiary possesses a Mississippi State Board of Licensure valid until June 30, 2009. Upon review of the petition, the director determined that the beneficiary did not qualify for classification as a member of the professions holding an advanced degree or satisfy the minimum level of education stated on Form ETA 9089. Specifically, the director determined that the beneficiary did not possess a U.S. “Medical degree” or foreign educational equivalent. Subsequently, the employment based visa immigrant petition was denied by the Director of the TSC.

The issue on appeal is whether the petitioner has demonstrated that the beneficiary qualifies for immigrant classification as an advanced degree professional pursuant to the regulations.

The AAO first reviewed the joint evaluation submitted by the Petitioner upon certification. The evaluation concluded that the beneficiary’s MBBS was the equivalent of a U.S. Doctor of Medicine. However, the evaluation did not cite any references, and was not supported by documentation supporting their conclusions. Thereafter, the AAO reviewed the Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO). (To read more about the AACRAO, please read the full decision located above) In a section related to the educational system in Pakistan, EDGE provided that an MBBS from Pakistan “represents the attainment of a level of education comparable to a first professional degree in medicine in the United States.” Accordingly, a first professional degree within the United States includes a Doctor of Medicine (M.D.) The AAO ruled that the information contained in EDGE was consistent with and supported the evaluator’s conclusion that the alien beneficiary’s foreign education was equivalent to a medical degree from a regionally accredited institution in the United States.

Accordingly, the burden rested with the petitioner, and the petitioner was able to sustain his burden. The petition was thereafter approved.

The MVP Law Group recommends that employers submit accurate and credible evaluations on behalf of all alien beneficiaries when petitioning for nonimmigrant/immigrant employment based visa petitions.

Posted On: March 3, 2009

SEVP Approved Schools

The United States Immigration and Customs Enforcement (ICE) recently updated their list of Student and Exchange Visitor Program (SEVP) approved schools .

The schools listed have all been certified to participate in the program. The program allows foreign students interested in obtaining an education in the United States to complete a visa petition, pay the required fee, and attend a U.S. College or University. The Department of Homeland Security (DHS) created a web based system called the Student Exchange Visitor System (SEVIS) which maintains information on the foreign students accepted into the program. The SEVIS monitors the students for the duration of their approved stay, as required by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996.

Interested Foreign students: There is a process in obtaining a student visa, but it is not a difficult one. The student must first obtain Form I-20 from the U.S. College or University from which he/she intends to enroll, pay the required visa fee (Form I-901) and contact a local U.S. Consulate/Embassy to schedule an interview. At the interview, the student must have Form I-20, proof of payment of Form I-901, financial support documentation, and a completed visa application. The SEVP procedures differ among U.S. Consulates/Embassies; contact your U.S. Consulate/Embassy NOW to determine its particular procedure on applying for a visa before planning for the interview.

Interested Schools: There is a separate process to obtain F & M Certification. Authorized school officials must obtain and complete Form I-17. An overview of the SEVP Certification process can be found on the ICE website . If approved, the school will be certified and allowed to issue Form I-20 to qualifying foreign students.

If you need assistance in or an explanation of the SEVP/SEVIS, please contact our office for a consultation.

Posted On: March 2, 2009

H-1B Visa Season Quickly Approaching

H-1B Nonimmigrant Visa Petitions should be filed on April 1, 2009 for Fiscal Year 2010, which begins on October 1, 2009 and ends September 30, 2010. In recent years, the H-1B cap has been exceeded on the first day, April 1st.

H-1B nonimmigrant visas are for professional foreign workers with a U.S. bachelor’s degree or its foreign equivalent. Congress allows 65,000 visas to be issued annually to qualifying foreign workers. An additional 20,000 H-1Bs are reserved for professional foreign workers who receive U.S. Master’s degrees. Employers petition the United States Citizenship and Immigration Services (USCIS) on behalf of the professional foreign worker beginning six months prior to the beginning of the upcoming fiscal year. Frequently, employers interested in utilizing the H-1B visa program contact an experienced Immigration Business Lawyer for a consultation about the process, determine eligibility, discuss applicable lawyer’s fees and filing fees, and so forth.

If your company is interested in a consultation about this process, PLEASE CONTACT OUR OFFICE IMMEDIATELY!