March 2014 Newsletter
In This Issue
Preparation for March Madness continues! Prepare to file H-1B cap petitions on April 1st
As discussed in last month’s newsletter, we can file Petitions for H-1B classification on 1st April. Prior to filing the petition with United States Citizenship and Immigration Services (USCIS), the company must first obtain a labor condition application (LCA) from the Department of Labor (DOL) which takes at least seven days. It therefore takes several weeks before a new H-1B visa petition can be filed with USCIS. We urge companies with H-1B cap cases to contact us as soon as possible so that work can begin on their cases.
Department of State updates citizenship policy for children born abroad through Assisted Reproductive Technology (ART)
On February 18 2014, the Department of State released a new information sheet about children born abroad to US citizens using donor eggs, donor sperm or a surrogate mother. This includes one major change from previous policy: if a US-citizen mother gives birth to a child and is the legal mother in the country where the birth took place, her US citizenship will be transmitted to the child, even if Assisted Reproductive Technology (ART) was involved.
US Embassy London- policy on police cautions
In it’s February 26, 2014 webchat the US Embassy London indicated that the policy on UK cautions is still under review. Nevertheless, recent evidence suggests that cautions received for crimes involving moral turpitude or drugs-related offences are being treated as convictions for US immigration purposes, and findings of inadmissibility are being made in these situations. Currently, the Department of State is requiring a waiver of ineligiblity if a visa applicant has received certain types of cautions, even if previous visa applications had been approved without a waiver. Waivers of ineligibility are currently taking 18 to 20 weeks from the day of visa application and consular officer’s recommendation.
State Department predicts visa availability in the coming months; Visa bulletin moved
Visa availability. In the Visa Bulletin for March 2014, the Department of State's Visa Office makes the following estimates of visa availability in the coming months:
EMPLOYMENT-based categories (potential monthly movement)
Employment First: Current
Employment Fifth: Current
The above projections for the employment categories are for what is likely to happen during each of the next several months based on current applicant demand patterns. Readers should never assume that recent trends in cut-off date movements are guaranteed for the future, or that "corrective" action will not be required at some point in an effort to maintain number use within the applicable annual limits. The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables. Unless indicated, those categories with a "Current" projection will remain so for the foreseeable future.
The Visa Bulletin for March 2014 is available here.
DOL Administrative review board partly affirms ALJ’s decision in H-1B wage complaint
In a recent case decided by the Department of Labor's Administrative Review Board (ARB) on January 29, 2014, the ARB affirmed an administrative law judge's (ALJ) finding that the scope of a Wage and Hour Division investigation initiated in response to a complaint is not limited to the allegations in that complaint. The ARB also affirmed the ALJ's evidentiary ruling on the availability of pre- and post-judgment interest on awards in H-1B cases. The ARB reversed the ALJ's finding that discrete violations occurring outside a 12-month period before the filing of a complaint are actionable. The deputy chief administrative appeals judge concurred in part and dissented in part, agreeing with the majority's ruling in the case of the initial complainant but dissenting from the majority's ruling in all other respects.
The ARB ordered Greater Missouri Medical Pro-Care Providers, Inc., to pay thousands of dollars in back wages for various violations to 29 H-1B workers. The case started when an H-1B nonimmigrant employee filed a complaint in 2006 alleging that Greater Missouri failed to pay her the required wages under its labor condition application for time off due to a decision by the employer, had illegally made deductions from her wages, and had required her to pay an illegal penalty for stopping work before an agreed-upon date.
The decision is available here.
Grand Jury indicts North Carolina company for visa fraud scheme
A grand jury recently indicted International Labor Management Corporation (ILMC) of North Carolina on 41 counts relating to visa fraud. ILMC was in the business of preparing and submitting petitions on behalf of client companies to the U.S. government for temporary workers under the H-2B visa program and the H-2A agricultural visa program.
Among other things, the indictment alleges that the ILMC owners falsely petitioned for and obtained extra H-2B visas beyond the actual needs of their client employers to create pools of extra visas. This pool allowed employers who could not otherwise obtain H-2B visas due to the cap to use them to bring workers into the United States under the pretence that they were going to work for the employer for whom the H-2B visas had been approved, and by allowing ILMC to obtain H-2B visas before the cap was reached using inaccurate start dates, thereby denying such H-2B visas to other employers or competing agents. The ILMC owners then used those workers who entered the United States under false pretences for other employers or otherwise to benefit themselves. In some cases, they agreed with a client to create fictitious companies for this purpose. An ILMC owner also instructed at least one client employer to obtain temporary workers by falsely claiming that such workers were needed for H-2A agricultural work, to avoid the H-2B cap.
The indictment is available here.
USCIS revises naturalisation application
As part of its forms improvement initiative, U.S. Citizenship and Immigration Services (USCIS) released a revised Form N-400, Application for Naturalization, on February 4, 2014. The eligibility requirements for naturalization have not changed.
The revised N-400 includes additional questions relating to good moral character and to security, to conform with the Intelligence Reform and Terrorism Prevention Act of 2004 and the Child Soldier Prevention Act of 2008; "clearer and more comprehensive" instructions that highlight general eligibility requirements and provide specifics on how to complete each part of the application; and 2D barcode technology at the bottom of each page to enable USCIS to scan data for direct input into USCIS systems.
Applicants may use previous versions of the form until May 5, 2014, at which time USCIS will begin rejecting and returning previous versions of the N-400.
USCIS will hold a stakeholder engagement on February 20, 2014, about the revised form. Read more information on the teleconference.
The announcement, which includes a link to a related video, is available here. The revised form is here. Information on USCIS's forms improvement initiative is available.
New Publications and Items of Interest
DHS OIG report on ensuring that H-1B, L-1 employers pay applicable border security fees. The Department of Homeland Security's Office of Inspector General (OIG) has published a report,
"USCIS Controls To Ensure Employers Sponsoring H-1B and L-1 Employees Pay Applicable Border Security Fee." Employers must pay a border security fee of up to $2,250 per petition if they have 50 or more employees in the United States, and if their workforce consists of 50 percent or more H-1B or L-1 nonimmigrant workers. OIG audited USCIS's foreign worker petition process to determine whether employers comply with the fee requirement. Based on its review of 203 petitions for foreign workers, OIG determined that employers typically paid the fee when required. However, 3 percent of the random petitions and 21 percent of the petitions OIG selected "judgmentally based on select characteristics" contained errors that the agency believed could be prevented if USCIS made improvements to its fee collection process. OIG said USCIS needs to implement processes to scrutinize information employers provide to ensure that they pay the proper fees. Some USCIS officers already verify information employers provide regarding their workforce to ensure that the proper fees are collected, but OIG found that this practice was inconsistent across USCIS because there was no requirement that officers do so. Without verification, an employer's declaration was typically the sole basis for determining whether the employer was required to pay the border security fee.
OIG recommended that USCIS electronically capture employer information regarding the number of employees for analysis and comparison. OIG also recommended that USCIS implement procedures to identify employers who pay fees inconsistently, expand the use of readily available resources to assess the reasonableness of employer-provided information, and conduct further analysis to determine whether an average of 30 minutes was the appropriate amount of time to adjudicate H-1B and L-1 petitions. USCIS generally concurred with these recommendations.
Click here for thehe OIG report.
DHS OIG report on ICE's worksite enforcement administrative inspection process. The Department of Homeland Security's Office of Inspector General (OIG) has published a report, "U.S. Immigration and Customs Enforcement's Worksite Enforcement Administrative Inspection Process." OIG found that generally, ICE's worksite enforcement administrative inspection process met the requirements of the Immigration Reform and Control Act of 1986. However, OIG said, ICE's Homeland Security Investigations directorate has not adequately monitored or evaluated the performance or outcomes of implementing its administrative inspection process through the worksite enforcement strategy. Specifically, ICE's Homeland Security Investigations headquarters did not adequately oversee the field offices to ensure that they were consistent in issuing warnings and fines, and some field offices issued significantly more warnings than fines. The directorate also negotiated fines with employers, in some cases substantially reducing the amounts. OIG said that Homeland Security Investigations' inconsistent implementation of the administrative inspection process, plus the reduction of fines, may have hindered its mission to prevent or deter employers from violating immigration laws. OIG made recommendations to improve ICE's implementation of its worksite enforcement strategy through the administrative inspection process.
Click here for thehe OIG report.
Know Your Rights flier. The Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices has published a new "Know Your Rights" flier in English and Spanish geared toward workers with Deferred Action for Childhood Arrivals (DACA) and advocates representing these individuals. The fliers answer questions such as how to tell if an employer is discriminating; what to do if an employer fires an individual for certain reasons; whether DACA status must be disclosed; the effects of E-Verify; and where to call with questions or concerns.
Click here for English version of the flier. Click here for Spanish version of the flier.
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:
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