September 2013 Newsletter
In This Issue
State Dept. Transitions to Online Immigrant Visa Application
The Department of State is transitioning to an online immigrant visa application, effective September 3, 2013. The new online forms replace the paper DS-230 and DS-3032. Only Diversity Visa and Cuban Family Reunification Parole applicants will continue to use the paper forms.
Immigrant visa applicants will now apply online using Form DS-260 (Application for Immigrant Visa and Alien Registration), and applicants will name their agent online using Form DS-261 (Choice of Address and Agent). The forms are available here.
Opening times for the Embassy's courier hubs
Under the Embassy's new appointment scheduling and courier system, introduced July 26, 2013, visa applicants may send documents to and collect them from the consular section via 27 hubs around the UK. We have been informed by DX Secure that these hubs are open Monday through Friday, 8am to 6pm, with the exception of the Belfast hub which is additionally open on Saturdays.
Global Entry into the US expanded to British Nationals
The US Global Entry programme, an automated entry system which allows travellers to avoid long immigration queues at designated ports of entry in the US, is being expanded to include additional nationalities – including UK citizens. Customs and Border Protection ("CBP") began accepting these applications for participation in the Global Entry programme in August. It is currently limited to certain high-frequency travellers, but CBP says that 'in the near future' it intends to make it available to all British citizens meeting Global Entry requirements.
DHS Inspector General Releases Report on Implementation of L-1 Visa Regulations
On August 9, 2013, the Department of Homeland Security (DHS)'s Office of Inspector General (OIG) released a report containing recommendations aimed at improving the L-1 visa program in response to a request from Sen. Charles Grassley for an examination of the potential for fraud or abuse in the program. The L-1 visa program facilitates the temporary transfer of foreign nationals with management, professional, and specialist skills to the United States. For the report, the OIG observed DHS personnel and Department of State consular officials process L-1 petitions and visas. The OIG also interviewed 71 managers and staff in DHS and the Department of State.
The OIG found that although U.S. Citizenship and Immigration Services regulations and headquarters memoranda provide guidance on the definition of specialized knowledge, they are insufficient to ensure consistent application of L-1 visa program requirements in processing visas and petitions. More communication between DHS and the Department of State would improve the processing of blanket petitions, the report says. The OIG determined that program effectiveness would be improved and risks reduced with additional effort in (1) training for U.S. Customs and Border Protection officers to enable them to fill their L-1 gatekeeper role at the northern land border more effectively; (2) improving internal controls of the fee collection effort at the northern land border; (3) more rigorous consideration of new office petitions to reduce fraud and abuse; (4) providing an adjudicative tool that is accessible to all federal personnel responsible for L-1 decisions; and (5) consistently applying Visa Reform Act anti-"job-shop" provisions to L-1 petitions.
An appendix notes that the top 10 L-1 employers are Tata Consultancy Services Limited, Cognizant Tech Solutions US Corp, IBM India Private Limited, Wipro Limited, Infosys Technologies Limited, Satyam Computer Services Limited, HCL America Inc., Schlumberger Technology Corp., PricewaterhouseCoopers LLP, and Hewlett-Packard Co.
The report, which includes details on the OIG's recommendations and USCIS's response, along with appendices containing statistics, is available here.
OSC Discourages Pre-Population of I-9 Forms
The Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently responded to a query about whether pre-population of employee information in section 1 of the Form I-9, Employment Eligibility Verification, is permissible. The query stated that U.S. Immigration and Customs Enforcement had said that pre-population is impermissible.
The OSC's response noted that the I-9 instructions state that the employee must complete and sign section 1. Someone may assist the employee if he or she is unable to complete the form.
The OSC said that it discourages employers from pre-populating section 1 with previously obtained employee information. The agency noted that this increases the likelihood of including inaccurate or outdated information, which could lead an employer to reject documents presented or demand specific documents. This is particularly true, the OSC noted, if the employer does not provide an opportunity for the employee to review the information that was pre-populated and build in a method for making corrections. Further, the OSC noted, a mismatch could result if the employer uses outdated information to submit an E-Verify query.
The OSC's response, which includes additional details, is available here.
BALCA Affirms Denial of Labor Cert for Technical Violation in Supervised Recruitment
In Matter of JP Morgan Chase & Co., the Board of Alien Labor Certification Appeals (BALCA) upheld the denial of a labor certification application filed by JP Morgan Chase for a vice president of mergers and acquisition because the company noted that addresses of applicants were included in their resumes instead of listing them as required. The BALCA noted that the regulation required the employer to "state" the addresses of the U.S. workers who applied for the job opportunity on the recruitment report itself and does not permit addresses to be incorporated by reference to other documents within the administrative file. Moreover, the employer appeared to have assumed that all of the applicants stated their address on their resumes, but there were a few resumes where no address was stated.
The BALCA acknowledged that some omissions may not be material to the review of the substance of an application. In this case, however, the BALCA found the reference to the resumes a "wholesale failure to provide an element of a report directly mandated by the regulations."
The BALCA also noted that the selection of the case for supervised recruitment "puts the employer on notice that special scrutiny is being placed on the application." Among other things, the recruitment report required under supervised recruitment is more detailed than the recruitment report required under basic labor certification processing. Simply put, the BALCA said, an employer "cannot shift the burden to the [Certifying Officer] to look through resumes to find the addresses of U.S. applicants."
The decision, 2011-PER-00635, is available here.
New Publications and Items of Interest
Role of the E-Verify Monitoring and Compliance Branch. U.S. Citizenship and Immigration Services has released an executive summary, "Role of the E-Verify Monitoring and Compliance Branch." The summary outlines information delivered at a teleconference held in April 2013, during which M&C "subject matter experts" provided an overview of their role and responsibilities as part of the E-Verify employment eligibility verification process. Some of the common errors M&C has observed include creating duplicate cases for the same employee; immediately terminating employees who receive a tentative non-confirmation; failing to create a case by the third day after the employee started work for pay; creating cases for employees who were hired before the E-Verify participant enrolled in E-Verify; and not reviewing acceptable documents or a document containing a photo.
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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