December 2013 Newsletter

In This Issue
  • USCIS Announces E-Verify Anti-SSN Fraud Effort
  • Highlights of US Embassy, London Webchat 26 November 2013
  • USCIS Warns of Scams Exploiting EB-5 Immigrant Investor Program
  • DHS Proposes SEVP Rule
  • Infosys Settles Visa Fraud and Abuse Case for Record $34 Million
  • Visa Office Forecasts Changes in Some Employment Cut-Off Dates
  • New Publications and Items of Interest
  • Government Agency Links
  • Hodkinson Law Group News

USCIS Announces E-Verify Anti-SSN Fraud Effort

U.S. Citizenship and Immigration Services (USCIS) has announced an E-Verify effort to combat identity fraud by identifying and deterring fraudulent use of Social Security Numbers (SSNs) for employment eligibility verification.

USCIS explained that an employer, for example, may enter information into E-Verify that appears valid, such as a matching name, date of birth, and SSN, but that was in fact stolen, borrowed, or purchased from another individual. The agency said the new safeguard enables USCIS to lock an SSN that appears to have been misused.

USCIS said this implements standards that have proven effective in protecting individual identity in other industries. As with a credit card company that can lock a card that appears to have been stolen, USCIS may now lock SSNs in E-Verify that appear to have been used fraudulently. USCIS said it will use a combination of algorithms, detection reports, and analysis to identify patterns of fraudulent SSN use and then lock the number in E-Verify.

If an employee attempts to use a locked SSN, E-Verify will generate a "Tentative Nonconfirmation" (TNC). The employee receiving the TNC may contest the finding at a local Social Security Administration (SSA) field office. If an SSA field officer confirms that the employee's identity correctly matches the SSN, the TNC will be converted to "Employment Authorized" status in E-Verify.

Employer enrollment in E-Verify has more than doubled since January 2009, with more than 470,000 participating employers representing more than 1.4 million hiring sites. Approximately 1,500 new employers enroll each week. In fiscal year (FY) 2013, E-Verify was used to authorize workers in the U.S. more than 25 million times, representing a nearly 20 percent increase from FY 2012.

The announcement is available here.

Highlights of US Embassy, London Webchat 26 November 2013

The following are interesting tidbits which were discussed during the US Embassy London's recent webchat.
  1. Currently U.S. Government policy is under review regarding criminal cautions in the United Kingdom. Applicants having a caution may experience lengthy delays during the application process. Apply as soon as possible and don't make final travel plans unless you have received a visa. These delays will affect applicants who may have already received a visa in the past after disclosing the caution.

  2. Visa applicants are now advised to notify the embassy via a contact form if they depart the United Kingdom during the pendency of additional processing. The contact form can be accessed here.

  3. The embassy indicates that the presumption of innocence has little place in the visa application process. According to the embassy, if one applies for a visa during a pending prosecution, "you should be aware that it may not be possible to adjudicate your visa application until the disposition of your criminal case is known." Parenthetically, this source of this rather draconic position is 9 FAM 40.21(a) N3.3

  4. Waiver applications take six months to process even if the applicant has received a previous waiver. Some frequent travellers to the United States choose to apply greater than six months prior to the expiration date of their current visa so that the next visa may be ready to be issued without a gap. Your current visa with the valid waiver will not be cancelled during the interview prior to the expiration date.

  5. Immigrant visas are issued with a validity period which expires six months from the date of the medical exam, rather than six months from the date of the immigrant visa interview.
The entire transcript of the Webchat can be found here.

USCIS Warns of Scams Exploiting EB-5 Immigrant Investor Program

The U.S. Securities and Exchange Commission's (SEC) Office of Investor Education and Advocacy and U.S. Citizenship and Immigration Services have jointly issued a warning to individual investors about fraudulent investment scams that exploit the EB-5 immigrant investor program.

In coordination with USCIS, which administers the EB-5 program, the SEC has taken emergency enforcement action to stop allegedly fraudulent securities offerings made through the EB-5 program. USCIS explained that business owners apply to USCIS to be designated as "regional centers" for the EB-5 program. Regional centers offer investment opportunities in new commercial enterprises that may involve securities offerings. The fact that a business is designated as a regional center by USCIS does not mean that USCIS, the SEC, or any other government agency has approved the investments offered by the business, or has otherwise expressed a view on the quality of the investment. The SEC and USCIS are aware of attempts to misuse the EB-5 program as a means to carry out fraudulent securities offerings. For example, in a recent case, SEC v. Marco A. Ramirez, et al., the SEC and USCIS worked together to stop an alleged investment scam in which the SEC claims that the defendants, including the "USA Now" regional center, falsely promised investors a 5 percent return on their investment and an opportunity to obtain an EB-5 visa. The promoters allegedly started soliciting investors before USCIS had designated the business as a regional center. The SEC alleged that while the defendants told investors their money would be held in escrow until USCIS approved the business as eligible for EB-5, the defendants misused investor funds for personal use, such as funding their Cajun-themed restaurant. According to the SEC's complaint, the investors did not obtain even conditional visas as a result of their investments through the USA Now regional center.

In another case, SEC v. A Chicago Convention Center, et al., the SEC and USCIS coordinated their efforts to halt an alleged $156 million investment fraud. The SEC alleged that an individual and his companies used false and misleading information to solicit investors in the "World's First Zero Carbon Emission Platinum LEED certified" hotel and conference center in Chicago, including falsely claiming that the business had acquired all necessary building permits and that the project was backed by several major hotel chains.

According to the SEC's complaint, the defendants promised investors that they would get back any administrative fees they paid for their investments if their EB-5 visa applications were denied. The defendants allegedly spent more than 90 percent of the administrative fees, including some for personal use, before USCIS adjudicated the visa applications.

USCIS noted that as with any investment, it is important to research thoroughly any offering that purports to be affiliated with EB-5. USCIS recommended the following steps:
  • Confirm that USCIS has designated the regional center. If you intend to invest through a regional center, check the list of current regional centers on USCIS's website. If the regional center is not on the list, exercise extreme caution. Even if it is on the list, understand that USCIS has not endorsed the regional center or any of the investments it offers.

  • Obtain copies of documents provided to USCIS. Regional centers must file an initial application (Form I-924) to obtain USCIS approval and designation, and must submit an information collection supplement (Form I-924A) at the end of every calendar year. Ask the regional center for copies of these forms and supporting documentation provided to USCIS.

  • Request investment information in writing. Ask for a copy of the investment offering memorandum or private placement memorandum from the issuer. Examine it carefully and research similar projects in evaluating the proposal. Follow up with any questions you may have. If you do not understand the information in the document or the issuer is unwilling or unable to answer your questions to your satisfaction, do not invest.

  • Ask if promoters are being paid. If there are supposedly unaffiliated consultants, lawyers, or agencies recommending or endorsing the investment, ask how much money or what type of benefits they expect to receive in connection with recommending the investment. Be sceptical of information from promoters that is inconsistent with the investment offering memorandum or private placement memorandum from the issuer.

  • Seek independent verification. Confirm whether claims made about the investment are true. For example, if the investment involves construction of commercial real estate, check county records to see if the issuer has obtained the proper permits and whether state and local property tax assessments correspond with the values the regional center attributes to the property. If other companies have purportedly signed onto the project, go directly to those companies for confirmation.

  • Examine structural risk. Understand that you may be investing in a new commercial enterprise that has no assets and has been established to loan funds to a company that will use the funds to develop projects. Carefully examine loan documents and offering statements to determine if the loan is secured by any collateral pledged to investors.

  • Consider the developer's incentives. EB-5 regional center principals and developers often make capital investments in the projects they manage. Recognize that if principals and developers do not make an equity investment in the project, their financial incentives may not be linked to the success of the project.

  • Look for warning signs of fraud. Beware if you spot any of these hallmarks of fraud:

    • Promises of a visa or becoming a lawful permanent resident. Investing through EB-5 makes you eligible to apply for a conditional visa, but there is no guarantee that USCIS will grant you a conditional visa or subsequently remove the conditions on your lawful permanent residency. USCIS carefully reviews each case and denies cases where eligibility rules are not met. Guarantees of the receipt or timing of a visa or green card are warning signs of fraud.

    • Guaranteed investment returns or no investment risk. Money invested through EB-5 must be at risk for the purpose of generating a return. If you are guaranteed investment returns or told you will get back a portion of the money you invested, be suspicious.

    • Overly consistent high investment returns. Investments tend to go up and down over time, particularly those that offer high returns. Be suspicious of an investment that claims to provide, or continues to generate, high rates of return regardless of overall market conditions.

  • Unregistered investments. Even though a regional center may be designated as a regional center by USCIS, most new commercial enterprise investment opportunities offered through regional centers are not registered with the SEC or any state regulator. When an offering is unregistered, the issuer may not provide investors with access to key information about the company's management, products, services, and finances that registration requires. In such circumstances, investors should obtain additional information about the company to help ensure that the investment opportunity is bona fide.

  • Unlicensed sellers. Federal and state securities laws require investment professionals and their firms who offer and sell investments to be licensed or registered. Designation as a regional center does not satisfy this requirement. Many fraudulent investment schemes involve unlicensed individuals or unregistered firms.

  • Layers of companies run by the same individuals. Some EB-5 regional center investments are structured through layers of different companies that are managed by the same individuals. In such circumstances, confirm that conflicts of interest have been fully disclosed and are minimized.
USCIS noted that if an investment through EB-5 turns out to be in a fraudulent securities offering, the investor may lose both his or her money and a path to lawful permanent residence in the United States. 'USCIS said any EB-5 offering should be carefully vetted before investing money in the hope of becoming a lawful permanent resident in the United States.

The USCIS alert is available here. That page also has links to the alert in Chinese, Korean, and Spanish.

DHS Proposes SEVP Rule

The Department of Homeland Security (DHS) has proposed to amend its regulations under the Student and Exchange Visitor Program (SEVP) to improve management of international student programs and increase opportunities for study by spouses and children of nonimmigrant students. The proposed rule would grant school officials more flexibility in determining the number of designated school officials to nominate for the oversight of campuses. The rule also would provide greater incentives for international students to study in the United States by permitting accompanying spouses and children of academic and vocational nonimmigrant students in F-1 or M-1 nonimmigrant status to enroll in study at an SEVP-certified school so long as any study remains less than a full course of study. F-2 and M-2 spouses and children may not engage in a full course of study unless they apply for, and DHS approves, a change of nonimmigrant status to a status authorizing such study.

The proposed rule is available here. Comments are due by January 21, 2014.

Infosys Settles Visa Fraud and Abuse Case for Record $34 Million

Infosys Limited, an Indian company involved in consulting, technology and outsourcing, has agreed to pay a record $34 million civil settlement based on allegations of systemic visa fraud and abuse of immigration processes, and also agreed to enhanced corporate compliance measures. The $34 million payment made by Infosys as a result of these allegations represents the largest payment ever levied in an immigration case, U.S. Immigration and Customs Enforcement (ICE) announced.

ICE noted that Infosys is located in 30 countries and in 17 U.S. cities, including a location in Plano, Texas. The Plano location is responsible for handling the immigration practices and procedures for U.S. operations of Infosys. Infosys brings foreign nationals into the United States to perform work and fulfill contracts with its customers under two visa classification programs relevant to this case: H-1B and B-1.

ICE said that, among other things, Infosys fraudulently used B-1 visa holders to perform jobs involving skilled labor that were instead required to be performed by U.S. citizens or legitimate H-1B visa holders. ICE accused Infosys of directing B-1 visa holders to deceive U.S. consular officials, including a "do's and don'ts" memorandum that instructed B-1 foreign nationals not to mention activities that "sound like work" or anything about contract rates. ICE also noted that Infosys failed to maintain I-9 records for many of its foreign nationals in the United States in 2010 and 2011, including failing to update and re-verify the employment authorization status of a large number of its foreign employees.

In addition to the $34 million payment, the settlement requires Infosys to conduct additional auditing for I-9 forms and meet a reporting requirement for B-1 usage, among other things.

David M. Marwell, special agent in charge of Homeland Security Investigations in Dallas, said: "This settlement against Infosys is the largest immigration fine on record. The investigation indicated that Infosys manipulated the visa process and circumvented the requirements, limitations, and governmental oversight of the visa programs. The investigation also showed that more than 80 percent of Infosys's I-9 forms for 2010 and 2011 contained substantive violations. Ultimately, these actions by Infosys cost American jobs and simultaneously financially hurt companies that sought to follow the laws of this nation. Companies that misuse the visa process can expect to be scrutinized and held accountable."

The settlement agreement is available here.

Visa Office Forecasts Changes in Some Employment Cut-Off Dates

The Department of State's Visa Office has projected changes in some employment cut-off dates. The December 2013 Visa Bulletin notes that the India employment second and third preference category cut-off dates advanced very rapidly at the end of fiscal year 2013. Those movements were based on the availability of thousands of "otherwise unused" numbers that could be made available without regard to the preference per-country annual limits. This has resulted in a dramatic increase in applicant demand, the Visa Bulletin notes. Consequently, the Visa Office has retrogressed those cut-off dates for December "in an effort to hold number use within the numerical limits."

In the coming months, the Visa Office expects the employment first preference category to remain Current, and the employment second preference worldwide category to remain Current. The employment second preference category for China is expected to move forward three to five weeks. No forward movement is expected in the India second preference category.

The worldwide employment third preference category cut-off date has advanced extremely rapidly during the past seven months "to generate new demand," the Visa Bulletin states. As the rate of applicants whose cases are finalized increases, it could have a significant effect on the cut-off date. Rapid forward movement of this cut-off date "should not be expected to continue beyond February," the Visa Bulletin notes.

China's and Mexico's employment third preference cut-off dates are expected to remain at the worldwide date. India should see no forward movement and the Philippines is expected to move forward three to six weeks.

The employment fourth and fifth preference cut-off dates are expected to remain Current. The Visa Office noted that these projections are "what is likely to happen during each of the next few months based on current applicant demand patterns." However, the Visa Office cautioned that these trends are not guaranteed and corrective action could be required at some point to maintain number use within the applicable annual limits. Unless indicated, the Visa Office said that those categories with a Current projection in the December Visa Bulletin "will remain so for the foreseeable future."

The Visa Bulletin for December 2013 is available here.

New Publications and Items of Interest

I-901 SEVIS fee payment video tutorial. The Student and Exchange Visitor Program has produced a video tutorial on the steps in the I-901 Student and Exchange Visitor Information System (SEVIS) fee payment process, including what information must be submitted and what to do once payment has been completed. The video tutorial is available here.

SAVE video. The Systematic Alien Verification for Entitlements (SAVE) program has produced a short video to help applicants understand SAVE's immigration status verification process. The video explains how SAVE functions to help many local, state, and federal government agencies verify immigration status. It shows steps applicants can take to help ensure that the SAVE verification process goes smoothly and reviews SAVE's new service for benefit applicants, SAVE Case Check. SAVE suggests that user agencies and other stakeholders play the video in their waiting rooms and common areas so that benefit applicants can view it, and consider adding the link to websites.
The five-minute video is available for download here.

Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

Hodkinson Law Group News

Kehrela Hodkinson was quoted in the Financial Times on 21 November 2013.

She has set her 2014 challenge as the Coast to Coast Walk, a distance of 190 miles from St. Bees, Cumbria to Robin Hood Bay in North Yorkshire. She will be walking to raise funds for Hospice in the Weald, a local charity. Updates on her training for this challenge will be forthcoming. Tasha Wiesman continues to train for her next race by attending bi-weekly sessions at her local running club.

Kehrela Hodkinson continues to be active in the American Immigration Lawyers Association (AILA). She has once again been acclaimed in 'Who's Who Legal, Corporate Immigration 2013.' She is described as "'the premier US immigration attorney in London' and is thought of as a 'fantastic lawyer.'"

Allison Ouvry has practiced law since 1996, concentrating in the field of business immigration since 2000. She is a member of the State Bar of Texas and the New York Bar, and a member of the American Immigration Lawyers Association, the American Women Lawyers in London group, and the London Library.

Tasha Wiesman is a member of the Illinois State Bar and assists in the preparation and filing of non-immigrant and immigrant visa petitions and applications of waivers of grounds of inadmissibility.
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Kehrela Hodkinson has once again been acclaimed as one of the top immigration lawyers worldwide in 'Who's Who Legal, Corporate Immigration 2013.'

She is described as "'the premier US immigration attorney in London' and is thought of as a 'fantastic lawyer.'"

Allison Ouvry has practiced law since 1996, concentrating in the field of business immigration since 2000.

Tasha Wiesman assists in the preparation and filing of non-immigrant and immigrant visa petitions and applications for waivers of inadmissibility.
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