Flynn & Clark, P.C. is pleased to provide this Immigration Update as a service to our clients and friends.

 

Headlines:

Ø 1. USCIS Estimates 21 Percent of H-1B Cases Involve Fraud or Technical Violations - USCIS concluded that there is a 21 percent baseline fraud and technical violation rate for H-1B petitions and plans procedural changes as a result.

Ø  2. U.S. Increases Period of Stay for Trade-NAFTA Professionals From Canada and Mexico - The final rule changes the initial period of admission for TN workers from one to three years.

Ø3. Seven Countries To Be Added to Visa Waiver Program - The Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, and South Korea will be added soon.

Ø 4. Slow Forward Movement Predicted for Employment Categories - Slow forward movement is expected in the cut-off dates for most employment visa categories during the next few months, and retrogressions cannot be ruled out.

Also in this issue:

New Publications and Items of Interest

Recent News from ABIL Members

Government Agency Links

Details...

1. USCIS Estimates 21 Percent of H-1B Cases Involve Fraud or Technical Violations

U.S. Citizenship and Immigration Services' (USCIS) Office of Fraud Detection and National Security, a division of the National Security and Records Verification Directorate, collaborated with other USCIS components on a new report, "H-1B Benefit Fraud & Compliance Assessment," released in September 2008. The report estimates that about one in every five H-1B cases involves either fraud or a technical violation.

There were a total of 51 cases within the sample of 246 H-1B petitions that USCIS said represented either fraud, a technical violation, or multiple technical violations. USCIS said the cases reviewed constituted "a statistically valid random sampling of pending and completed cases over a recent six-month period." The agency noted that "not all violations will rise to the level that would warrant a criminal investigation or prosecution," and that the "vulnerabilities and abuses" identified "need not lead to a criminal investigation and/or prosecution in order to be reported for [Benefit Fraud and Compliance Assessment] purposes since systemic vulnerabilities ultimately may contribute to higher rates of successful fraudulent filings." USCIS used the "overall violation rate" of 20.7 percent to extrapolate an estimate of approximately 20,000 petitions nationwide that "may have some type of fraud or technical violation(s)."

USCIS also identified "primary fraud or technical violation indicators," including:

1. Firms with 25 or fewer employees have higher rates of fraud or technical violation(s) than larger-sized companies.

2. Firms with an annual gross income of less than $10 million have higher rates of fraud or technical violations than firms with an annual gross income greater than $10 million.

3. Firms in existence less than 10 years have higher incidences of fraud or technical violations than firms with an annual gross income greater than $10 million.

4. The results indicate that H-1B petitions filed for accounting, human resources, business analysts, sales, and advertising occupations are more likely to contain fraud or technical violations than other occupational categories.

5. Beneficiaries with only bachelor's degrees had higher fraud or technical violation rates than did those with graduate degrees.

USCIS concluded that the results of this study "have established a 21% baseline fraud and technical violation(s) rate for H-1B petitions. Given the significant vulnerability, USCIS is making procedural changes, which will be described in a forthcoming document."

The Alliance of Business Immigration Lawyers expressed concerns about the small sample size (0.2 percent of the 96,827 H-1B petitions filed between October 1, 2005, and March 31, 2006) and the fact that over 80 percent of the violations found by the USCIS involved Department of Labor regulations outside of USCIS's mission of adjudicating requests for immigration benefits.

The USCIS report is available at http://www.ieeeusa.org/policy/reports/DHSH1BFraudRpt.pdf.

2. U.S. Increases Period of Stay for Trade-NAFTA Professionals From Canada and Mexico

U.S. Citizenship and Immigration Services (USCIS) has increased the maximum period of time a Trade-NAFTA (TN) professional worker from Canada or Mexico may remain in the U.S. before seeking readmission or obtaining an extension of stay. The final rule changes the initial period of admission for TN workers from one to three years, making it equal to the initial period of admission for H-1B professional workers.

Eligible TN nonimmigrants now may receive extensions of stay in increments of up to three years instead of the previous maximum period of stay of one year. Spouses and unmarried minor children of TN nonimmigrants in their corresponding nonimmigrant classifications will also benefit from the new regulation.

The TN nonimmigrant visa classification is available to eligible Mexicans and Canadians with at least a bachelor's degree or appropriate professional credentials who work in certain qualified fields pursuant to the North American Free Trade Agreement (NAFTA). Qualified professions identified within NAFTA include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers.

The final rule, effective October 16, 2008, is available at http://edocket.access.gpo.gov/2008/pdf/E8-24600.pdf. The announcement, issued on October 14, 2008, is available at http://www.uscis.gov/files/article/tn_nonimmigrant_changes_update.pdf.

3. Seven Countries To Be Added to Visa Waiver Program

The Bush administration announced on October 17, 2008, that it plans to add seven countries to the Visa Waiver Program (VWP): the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, and South Korea. President George W. Bush said that eligible citizens of those countries will be able to travel to the U.S. for up to 90 days without a visa "in about a month." So-called "roadmap" countries, which are on track to qualify for VWP admission, include Bulgaria, Cyprus, Greece, Malta, Poland, and Romania.

The VWP currently allows the citizens of 27 countries to travel to the U.S. for tourism or business without obtaining a visa. Nationals participating in the VWP must travel only for business, pleasure, or transit; stay in the U.S. for 90 days or fewer; and, if arriving by sea or air, hold a valid ticket for return or onward travel and enter the U.S. aboard an air or sea carrier that has been designated as a participant in the VWP.

President Bush's statement is available at http://www.whitehouse.gov/news/releases/2008/10/20081017-5.html. A fact sheet is available at http://www.whitehouse.gov/news/releases/2008/10/20081017-15.html.

4. Slow Forward Movement Predicted for Employment Categories

The Department of State's Visa Office reported in the November 2008 Visa Bulletin that the level of demand being received from U.S. Citizenship and Immigration Services (USCIS) offices indicates that USCIS has a significant number of cases with priority dates that are earlier than the established cut-offs. This is likely to result in slow forward movement of the cut-off dates for most employment visa categories during the next few months, the Department said. Sudden changes in the USCIS demand patterns could result in fluctuations in the monthly cut-off dates, and retrogressions cannot be ruled out during fiscal year 2009.

New Publications and Items of Interest

Customs searches, questioning of travelers. The Asian Law Caucus and the Electronic Frontier Foundation reported that earlier this year, they sued the Department of Homeland Security under the Freedom of Information Act (FOIA) for failing to turn over records on Customs searches and questioning. This summer, they received many of the documents they had sought showing how much Immigration and Customs Enforcement agents' power to read and copy the personal papers of travelers has increased over the years. The documents also showed that Customs issued a directive (first issued in 2004, revised in 2006) that called for intensive questioning of individuals deemed to be suspected terrorists, which the Asian Law Caucus said may account for the rise in complaints from Muslim Americans and others of invasive searches and interrogations at the U.S. border. The Asian Law Caucus continues to gather reports of invasive searches and questioning to support its advocacy efforts, and has released Tips for Travelers on handling encounters with Customs, including filing complaints and FOIA requests. The tips include travelers returning to the U.S. and immigrants leaving the U.S. See http://www.asianlawcaucus.org/site/alc_dev/section.php?id=99.

USCIS ombudsman issues recommendations on EAD delays. The U.S. Citizenship and Immigration Services ombudsman (ombudsman) reported on October 2, 2008, that it has recently received many complaints from foreign nationals who have lost, or are in danger of losing, their jobs in the U.S. because the agency is not issuing Employment Authorization Documents (EADs) within 90 days of application receipt and is not granting interim EADs, as required by regulation. USCIS has posted processing dates over 90 days for EADs at service centers but, the ombudsman found, "has not provided a sufficient explanation on the delays or consistent information on alternative measures that may assist in addressing EAD delays." In a preliminary response, USCIS informed the ombudsman that it will immediately (1) audit its caseload to determine which cases have been pending for more than 70 days, (2) process service requests at 75 days rather than 90 days, and (3) adjudicate EADs that are outside normal processing times within four hours for customers who appear at local offices.

To address long-term trends in EAD processing, and to maintain confidence in the work authorization system, the ombudsman recommends that USCIS adhere to regulations; provide information on delays expeditiously; provide consistent guidance to the public; and reconsider the ombudsman's recommendation to issue multi-year EADs. The ombudsman also suggested additional operational procedures.

The report, "Recommendations on USCIS Processing Delays for Employment Authorization Documents," is available at http://www.dhs.gov/xlibrary/assets/cisomb_ead_recommendation_35.pdf.

The October 2008 issue of the ABIL Immigration Insider included steps the ombudsman recommends people take if their EADs are delayed by 90 days or more.

Recent News from ABIL Members

Steve Clark (bio:http://www.flynnclark.com/steve.html) participated in a panel at the Boston Bar Association Solo and Small Firm Section last month on Immigration Practice Tips for Non-Immigration Experienced Lawyers.

Steve Garfinkel (bio: http://www.abil.com/lawyers/lawyers-garfinkel.cfm) spoke to the North Carolina College and University Professional Association for Human Resources (NCCUPA-HR) on October 23, 2008, in Concord, North Carolina. Mr. Garfinkel presented an in-depth discussion of the H-1B visa as it relates to colleges and universities, and addressed other nonimmigrant and immigrant visa issues.

At a conference at the Practising Law Institute (PLI) on October 14, 2008, speakers noted that the inconsistency of laws and practices among states regarding the use of the E-Verify employment authorization verification program has created compliance issues for companies operating in more than one state. Charles Kuck (bio: http://www.abil.com/lawyers/lawyers-kuck.cfm) noted that the Department of Homeland Security encourages the passage of state laws requiring the use of E-Verify. "I don't think it will matter who our next president is; there will still be movement toward making E-Verify mandatory," Mr. Kuck said.

Bernard Wolfsdorf (bio: http://www.abil.com/lawyers/lawyers-wolfsdorf.cfm) also spoke on consular and border processing at the PLI conference. Sharon Mehlman (bio: http://www.abil.com/lawyers/lawyers-mehlman.cfm) spoke about USCIS issues.

Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) also spoke at the same Florida seminar on EB-5 immigrant investor issues. On October 24, Mr. Yale-Loehr addressed another seminar in Orlando, Florida, on EB-5 issues.

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:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/jsps/ptimes.jsp

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

The Alliance of Business Immigration Lawyers (ABIL) is an entity that offers a single point of contact for customer needs, news alerts, staff training and other programs that benefit the client through the collaboration of the 140 member attorneys and their 460 staff. Corporate counsel, human resource professionals, in-house immigration managers and other corporate decision-makers turn to ABIL attorneys for outstanding legal skills and services. ABIL's work also includes advocating for enlightened immigration reform, providing speakers and media sources, presenting conferences, publishing books and articles on cutting-edge immigration topics, and sharing best practices, all with the ultimate goal of offering value-added services to business immigration clients.

The Alliance of Business Immigration Lawyers' website is: http://www.abil.com/.

 

Contact Your Flynn & Clark Attorney for Further Information

Steven A. Clark
Jane P. Devlin

Vincent W. Lau

Mary E. Gilbert

FLYNN & CLARK, P.C., provides a full range of inbound as well as outbound immigration legal services for United States and foreign companies under the leadership of Steven Clark, Past President of the American Immigration Lawyers’ Association (AILA) which has over 11,000 members worldwide. The Immigration Update provides periodic alerts about noteworthy developments in immigration affecting the business community. It is provided as a service of the Firm regarding legal developments; it is not a substitute for legal counseling and may constitute advertising material in some jurisdictions.

FLYNN & CLARK, P.C., is a member of ABIL, The Alliance of Business Immigration Lawyers.  ABIL is an entity that offers a single point of contact for customer needs, news alerts, staff training and other programs that benefit the client through the collaboration of the 140 member attorneys and their 460 staff.  Corporate counsel, human resource professionals, in-house immigration managers and other corporate decision-makers turn to ABIL attorneys for outstanding legal skills and services.  ABIL's work also includes advocating for enlightened immigration reform, providing speakers and media sources, presenting conferences, publishing books and articles on cutting-edge immigration topics, and sharing best practices, all with the ultimate goal of offering value-added services to business immigration clients. This newsletter if produced through Flynn & Clark's collaboration with ABIL.

Disclaimer/Reminder

This e-mail does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.