LitwinLaw Newsletter 5/1/11
May 1, 2011
Feds Crack Down on Employers – In recent actions, the Criminal Division of the U.S. Attorney’s Office in Washington, DC, is investigating Chipotle Mexican Grill about hiring undocumented workers at its 1,092 restaurants; owners of another establishment were arrested for violations related to employing undocumented workers and not paying taxes on them.
DOL Orders School District To Pay Foreign Teachers Millions in Back Wages – School authorities had required the teachers to cover expenses for their H-1B work visas, in violation of the law.
USCIS Continues To Accept FY 2012 H-1B Petitions – The agency has received approximately 9,200 H-1B petitions counting toward the 65,000 cap, and approximately 6,600 petitions toward the 20,000 cap exemption for individuals with advanced degrees.
House Holds Hearing on E-Verify – A hearing in April focused on identity fraud as a continuing concern in the E-Verify system.
Senator Asks for Investigation of B-1 Visa Program – Sen. Grassley questioned the “B-1 in lieu of H-1B” policy currently in place, and referenced a formal complaint against Infosys by a U.S. employee.
DOS Reports on Employment-Based Visa Demand; First Preference ‘Extremely Low’ – Demand in the employment first preference is extremely low; it also appears unlikely that a second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high.
Foreign Affairs Manual Guidance Revised on License Requirements for H-1Bs – The manual was revised to better reflect actual USCIS practice.
USCIS Issues Guidance on Concurrent Advance Parole, EAD – USCIS released a guidance memorandum on issuance of employment authorization documents with advance parole endorsements.
USCIS Issues Q&A on Extension of Post-Completion OPT and F-1 Status for Eligible Students Under H-1B Cap-Gap Regs – Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for the cap-gap extension, USCIS said.
Case Updates: El Badrawi; Arizona – An H-1B worker who had timely sought an extension could not be arrested or subjected to removal; the Ninth Circuit affirmed an injunction against several controversial aspects of Arizona’s S.B. 1070.
USCIS Reviews Policy on H-1B Cap Exemptions Based on Higher Ed Relation or Affiliation – Until further guidance is issued, USCIS is applying interim procedures to H-1B nonprofit entity petitions filed with the agency seeking an exemption from the statutory cap based on an affiliation with or relation to an institution of higher education.
Global: Canada and Medical Inadmissibility – As the case law is evolving in this area, great care must be taken by foreign nationals interested in coming to Canada who suffer from significant medical problems.
Also in this issue:
In an investigation of Chipotle Mexican Grill Inc., the Criminal Division of the U.S. Attorney’s Office in Washington, DC, asked Chipotle on April 13, 2011, for documentation related to hiring issues at its 1,092 restaurants. U.S. Immigration and Customs Enforcement (ICE) had recently audited Chipotle’s records in several areas, resulting in the company’s firing of at least 490 workers.
In another case, federal agents arrested the owners and an outside bookkeeper for Chuy’s Mesquite Broiler and detained 40 suspected undocumented workers at 15 locations in California and Arizona. The federal indictment charged the owners with employing about 360 undocumented workers and keeping two payrolls, one for the undocumented workers, for whom no taxes were paid, and another for workers with employment authorization.
For more information on recent ICE enforcement operations, see http://www.ice.gov/news/.
DOL Orders School District To Pay Foreign Teachers Millions in Back Wages
The Department of Labor (DOL) recently ordered the school system in Prince George’s County, Maryland, to pay $1.7 million in penalties and $4.2 million in back wages and penalties to more than 1,000 teachers recruited from foreign countries, many from the Philippines. School authorities had required the teachers to cover expenses for their H-1B work visas, in violation of the law.
Superintendent William R. Hite, Jr., plans to appeal the findings. He noted that the fines “may have a devastating impact on [the Prince George’s County school system] and its employees and the school system’s ability to continue to place a highly qualified teacher in every classroom.”
Under the ruling, the Prince George’s system must pay $4.2 million in back wages to the foreign teachers and $1.7 million in penalties. DOL spokeswoman Elizabeth Alexander said that the school system “refused to acknowledge” the problem sufficiently or to negotiate a settlement. County schools spokesperson Briant Coleman countered that school authorities had been unaware of the requirement and, when informed, “we corrected it immediately and paid the fees ever since.” Ms. Alexander said cases involving other school systems are pending.
An AFL-CIO report found that in 2008, Prince George’s schools obtained approval for 239 petitions for H-1B visas. Baltimore schools obtained 229 such approvals, the report found, and East Baton Rouge Parish schools in Louisiana obtained 205, Dallas schools 105 and New York City schools 96.
U.S. Citizenship and Immigration Services (USCIS) announced on April 29, 2011, that it continues to accept H-1B nonimmigrant petitions that are subject to the fiscal year (FY) 2012 cap. The agency began accepting these petitions on April 1.
USCIS is monitoring the number of petitions received that count toward the congressionally mandated annual H-1B cap of 65,000 and the 20,000 U.S. master’s degree or higher cap exemption. The agency reported that it has received approximately 9,200 H-1B petitions counting toward the 65,000 cap, and approximately 6,600 petitions toward the 20,000 cap exemption for individuals with advanced degrees.
Cases for premium processing of H-1B petitions filed during an initial five-day filing window are undergoing a 15-day processing period that began April 7. For all other H-1B petitions filed for premium processing, the processing period begins on the date that the petition is physically received at the correct USCIS Service Center.
Meanwhile, petitions filed by employers who are exempt from the cap, as well as petitions filed on behalf of current H-1B workers who have been counted previously against the cap within the past six years, will not count toward the cap.
The USCIS announcement is available at http://www.uscis.gov/
A hearing on April 14, 2011, focused on identity fraud as a continuing concern in U.S. Citizenship and Immigration Services’ E-Verify system for verification of work authorization.
Rep. Sam Johnson (R-Tex.), chairman of the House Ways and Means Committee’s Subcommittee on Social Security, noted in his opening statement that under the Internet-based E-Verify system, an employer first enters information from the Form I-9. Verification requests are transmitted to the Social Security Administration (SSA), which checks whether the worker’s information matches the SSA’s records; those involving noncitizens are then routed to the Department of Homeland Security (DHS). If a worker’s information does not match these agencies’ databases, a tentative “non-confirmation” (TNC) notice is sent and the worker must contact either SSA or DHS “to present needed documentation in order to keep their job.”
Rep. Johnson cited a Government Accountability Office (GAO) study ( http://www.gao.gov/new.items/d11146.pdf) finding that the E-Verify system had made progress in improving accuracy, with immediate confirmations rising to 97.4 percent. He noted, however, that the GAO said the system was still vulnerable to unauthorized workers and unscrupulous employers presenting stolen or borrowed documents for the purpose of identity fraud.
Richard M. Stana, Director of Homeland Security and Justice for the GAO, testified that TNCs had been reduced but that the accuracy of E-Verify continues to be limited by both inconsistent recording of employees’ names and fraud. He said that about 0.3 percent of the total 2.6 percent (over 211,000 of newly hired employees) who received either a SSA or USCIS TNC were determined to be work-eligible after they contested a TNC and resolved errors or inaccuracies in their records. About 2.3 percent (about 189,000) received final nonconfirmations because their employment eligibility status remained unresolved. Mr. Stana noted that USCIS was unable to determine how many of those employees (1) were authorized to work but did not take action to resolve a TNC because they were not informed by their employers of their right to contest the TNC, (2) independently decided not to contest the TNC, or (3) were not eligible to work.
Among other things, Mr. Stana noted the GAO’s recommendation that USCIS could better position employees to avoid erroneous TNCs by disseminating information to employees on the importance of providing consistent name information and on how to record names consistently. USCIS said it began to distribute information at all naturalization ceremonies advising new citizens to update their records with SSA. USCIS also said it has commissioned a study, to be completed in the third quarter of fiscal year 2011, to determine how to enhance its name-matching algorithms. Mr. Stana said these were useful steps “but they do not fully address the intent of the [GAO’s] recommendation because they do not provide specific information to employees on how to prevent a name-related TNC.
In addition, Mr. Stana said identity fraud remains a challenge because employers may not be able to determine whether an employee’s documents are genuine, borrowed, or stolen. E-Verify also cannot detect cases in which an employer may be unscrupulously assisting unauthorized employees. Among other measures, USCIS has implemented a photo-matching tool for permanent residence cards, employment authorization documents, and passports. Mr. Stana noted that implementing biometric systems has its own set of challenges, such as cost and civil liberties considerations.
Mr. Stana noted that USCIS began implementing its “Self-Check” program in March 2011 to allow individuals to check their own work authorization status against SSA and DHS databases before applying for a job. Mr. Stana said the GAO found USCIS’ efforts to be a step in the right direction but insufficient “because, among other things, USCIS does not have operating procedures in place for USCIS staff to explain to employees what personal information produced the TNC or what specific steps they should take to correct the information.” Mr. Stana said the GAO also found that USCIS’ cost estimates for E-Verify may not be accurate.
The opening statement and hearing testimony are available from http://waysandmeans.house.gov/Calendar/EventSingle.aspx?EventID=234780.
Senator Asks for Investigation of B-1 Visa Program
Sen. Charles Grassley (R-Iowa) has asked the Departments of State and Homeland Security to investigate the B-1 visa program and its use by employers “to recruit foreign workers who are then not subject to the cap and the prevailing wage requirements of the H-1B program.” In a letter to Secretary of State Hillary Clinton and Secretary of Homeland Security Janet Napolitano, Grassley questioned the “B-1 in lieu of H-1B” policy currently in place. He wrote, “Under this low threshold [for the B-1 visa], a company could import workers via the B-1 business visitor visa and evade the H-1B visa cap and prevailing wage requirements that would otherwise apply to such workers so long as the workers could show that their paychecks were still coming from the foreign company.”
Sen. Grassley also referenced a formal complaint against Infosys by a U.S. employee that alleges Infosys management in India used the B-1 business visitor visa program to get around H-1B program restrictions. He said the complaint alleges that Infosys was importing foreign workers as B-1 business visitors under the guise of attending meetings rather than working for wages as employees of a U.S. company, which is forbidden under the statute and regulations governing the B-1 visa program.
Sen. Grassley has introduced legislation in previous Congresses on the H-1B and L visa programs and plans to introduce a bill again in the 112th Congress.
Sen. Grassley’s letter to the Secretaries of State and Homeland Security is available at http://grassley.senate.gov/about/upload/Immigration-04-14-11-Grassley-letter-to-State-DHS-B-1-H-1B-visas.pdf.
DOS Reports on Employment-Based Visa Demand; First Preference ‘Extremely Low’
The Department of State’s Visa Bulletin for May 2011 notes that demand in the employment first preference is extremely low compared with that of recent years. Absent an immediate and dramatic increase in demand, this category is expected to remain “Current” for all countries. It also appears unlikely, the Bulletin says, that a second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high. Based on current indications of demand, the best-case scenarios for cut-off date movement each month during the coming months are as follows:
Employment Second: Demand by applicants who are “upgrading” their status from employment third to employment second preference is very high, but the exact amount is not known. Such upgrades are in addition to the known demand already reported. The Bulletin said this makes it difficult to predict ultimate demand based on forward movement of the China and India cut-off dates. Although thousands of “otherwise unused” numbers will be available for potential use without regard to the China and India employment second preference per-country annual limits, it is not known how the upgrades will ultimately affect the cut-offs for those two countries.
China: An advance in the priority date of zero to three weeks is expected through July. No August or September estimate is possible at this time.
India: An advance in the priority date of one or more weeks, possibly followed by additional movement if demand remains stable. No August or September estimate is possible at this time.
Worldwide: An advance in the priority date of three to six weeks may occur.
China: An advance in the priority date of one to three weeks may occur.
India: An advance in the priority date of zero to two weeks is likely.
Mexico: Continued forward movement is expected; no specific projections at this time.
Philippines: An advance in the priority date of three to six weeks is likely.
The Bulletin notes that the above ranges are estimates based on current demand patterns, and are subject to fluctuations during the coming months. “The cut-off dates for upcoming months cannot be guaranteed, and no assumptions should be made until the formal dates are announced,” the Bulletin warned.
Allocation of “Otherwise Unused” Numbers:
INA Ã‚Â§ 202(a)(5) provides that if total demand in a calendar quarter will be insufficient to use all available numbers in an employment preference, the unused numbers may be made available without regard to the annual per-country limits. Based on current levels of demand, the Bulletin for May 2011 states that there will be otherwise unused numbers in the employment first and second preferences. Such numbers may be allocated without regard to per-country limits, once a country has reached its preference annual limit. Since under INA Ã‚Â§ 203(e) such numbers must be provided strictly in priority date order regardless of chargeability, greater number use by one country would indicate greater demand by applicants from that country with earlier priority dates. Based on the amount and priority dates of pending demand and year-to-date number use, a different cut-off date could be applied to each oversubscribed country for the purpose of assuring that the maximum amount of available numbers will be used. The Bulletin noted that a cut-off date imposed to control the use of “otherwise unused” numbers could be earlier than the cut-off date established to control number use under a quarterly or per-country annual limit. For example, at present the India employment second preference cut-off date governs the use of numbers under Ã‚Â§ 202(a)(5) because India has reached its employment second annual limit. The China employment second preference cut-off date governs number use under the quarterly limit because China has not yet reached its employment second annual limit.
The rate of number use under Ã‚Â§ 202(a)(5) is continually monitored to determine whether subsequent adjustments are needed in visa availability for the oversubscribed countries. The Bulletin said that this helps assure that all available employment preference numbers will be used and that numbers also remain available for applicants from all other countries that have not yet reached their per-country limits.
As noted above, the number of applicants who may be upgrading their status from employment third to employment second preference is unknown. As a result, the cut-off date that governs use of Ã‚Â§ 202(a)(5) numbers has been advanced more rapidly than normal, in an attempt to ascertain the amount of upgrade demand in the pipeline while at the same time administering the available numbers. “This action risks a surge in demand that could adversely impact the cut-off date later in the fiscal year,” the Bulletin warned, adding that it also limits the possibility that potential demand would not materialize and the annual limit would not be reached due to lack of cut-off date movement.
The Visa Bulletin for May 2011 is available at https://www.morganlewis.com/pubs/department-of-state-releases-may-2011-visa-bulletin.
On March 31, 2011, the Foreign Affairs Manual (FAM) was revised to better reflect actual practice by U.S. Citizenship and Immigration Services:
The requirements for classification as an H-1B nonimmigrant professional may or may not include a license because States have different rules in this area. If a State permits aliens to enter the United States as a visitor to take a licensing exam, then USCIS will generally require a license before they will approve the H-1B petition. However, some States do not permit aliens to take licensing exams until they enter the United States in H-1B status and obtain a social security number. Therefore, a visa should not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States. [9 FAM 41.53 N4.1]
The pertinent section of the FAM is available at https://www.ilw.com/articles/2010,0927-schwartz.pdf.
U.S. Citizenship and Immigration Services (USCIS) released a guidance memorandum on issuance of employment authorization documents (EADs) with advance parole endorsements.
Traditionally, USCIS has issued two separate documents, an EAD (Form I-766) and an Authorization for Parole of an Alien into the United States (Form I-512). Although adjudication of an Application for Travel Document (Form I-131) and an Application for Employment Authorization (Form I-765) requires two separate determinations by USCIS adjudicators, USCIS noted that the information required from the applicant and the processes followed by the adjudicator are similar.
USCIS noted that approximately 15% of applicants filing an I-765 based on a pending I-485 also file an I-131 concurrently with, or shortly after filing, the I-485. USCIS said it approves approximately 93% of those applications for ancillary benefits.
The agency therefore determined that it was more cost-effective for the government and more convenient for the applicants to adjudicate the I-765 and I-131 simultaneously and, if both forms are approved, to issue a single document indicating that both ancillary benefits have been granted.
Whenever possible, USCIS said its adjudicators will simultaneously adjudicate concurrently filed applications for employment authorization and applications for advance parole authorization filed by applicants for adjustment of status under 8 CFR Ã‚Â§ 245 or to register status under 8 CFR Ã‚Â§ 249. If USCIS approves both applications, it will issue a single document, Advance Parole EAD (Form I-766). USCIS is also reviewing whether it is feasible to expand eligibility for an EAD with advance parole endorsement to other EAD recipients who are eligible for advance parole.
The memorandum is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2011/April/issuance-advance-parole.pdf.
USCIS Issues Q&A on Extension of Post-Completion OPT and F-1 Status for Eligible Students Under H-1B Cap-Gap Regs
U.S. Citizenship and Immigration Services (USCIS) released a Q&A document on April 1, 2011, addressing the automatic extension of F-1 student status in the U.S. for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2011, under the fiscal year (FY) 2012 H-1B cap. Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for the cap-gap extension, USCIS said.
Once a timely filing has been made requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed, USCIS explained. If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the U.S.
To obtain proof of continuing status, a student covered under the cap-gap extension should go to his or her designated school official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1.
If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status, USCIS said.
USCIS strongly encourages students “to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.”
The USCIS notice is available at http://www.uscis.gov/
In El Badrawi v. USA, 07-cv-1074 (D. Conn. Dec. April 11, 2011), the United States District Court in Connecticut ruled that an H-1B worker who had timely sought an extension of that visa status, and who was authorized to continue working under 8 CFR Ã‚Â§ 274a.12(b)(20), could not be arrested or subjected to removal. Although a district court decision may not have precedential value beyond the plaintiff in the case, it is nevertheless significant because it provides a stepping-stone for other courts to be similarly persuaded.
In U.S. v. Arizona (9th Cir. April 11, 2011), the U.S. Court of Appeals for the Ninth Circuit affirmed an injunction against several controversial aspects of Arizona’s S.B. 1070, which established a variety of immigration-related state offenses and defined the immigration enforcement authority of Arizona’s state and local law enforcement officers.
The district court had granted the United States’ motion for a preliminary injunction in part, enjoining enforcement of S.B. 1070 sections 2(B), 3, 5(C), and 6, on the basis that federal law likely preempts these provisions. Arizona appealed the grant of injunctive relief, arguing that these four sections are not likely preempted; the United States did not cross-appeal the partial denial of injunctive relief. Thus, the United States’ likelihood of success on its federal preemption argument against these four sections was the central issue the appeal presented.
Among other things, the Ninth Circuit noted that “Congress explicitly required that in enforcing federal immigration law, state and local officers ‘shall’ be directed by the Attorney General. This mandate forecloses any argument that state or local officers can enforce federal immigration law as directed by a mandatory state law.
The Ninth Circuit affirmed the district court’s preliminary injunction order enjoining the controversial provisions, with one partial dissent.
El Badrawi v. USA is available at http://www.abil.com/newsletter/ABIL%20Immigration%20Insider%20-%20April%202011%20-%202.pdf. For a blog on that case, see http://cyrusmehta.blogspot.com/2011/04/victory-in-el-badrawi-v-usa-narrowing.html. U.S. v. Arizona is available at http://www.ca9.uscourts.gov/datastore/opinions/2011/04/11/10-16645.pdf.
U.S. Citizenship and Immigration Services (USCIS) announced on March 18, 2011, that it is reviewing its policy on H-1B cap exemptions for nonprofit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS is applying interim procedures to H-1B nonprofit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education.
Effective as of March 18 and during the interim period, USCIS will defer to prior determinations made since June 6, 2006, that a nonprofit entity is related to or affiliated with an institution of higher education (absent any significant change in circumstances or clear error in the prior adjudication) and, therefore, exempt from the H-1B statutory cap. USCIS noted, however, that the burden remains on the petitioner to show that its organization previously received approvals of its request for an H-1B cap exemption on this basis.
Petitioners may satisfy this burden by providing USCIS with evidence, such as a copy of the previously approved cap-exempt petition (i.e., a Petition for a Nonimmigrant Worker (Form I-129) and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, along with any documentation that was submitted in support of the claimed cap exemption. USCIS suggests that petitioners also include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.
USCIS emphasized that these measures will only remain in place on an interim basis.
Evidence of previous determinations of cap exemption will be considered on a case-by-case basis only when submitted with an I-129 petition for H-1B status requesting exemption from the numerical cap, or in response to a Request for Evidence or Notice of Intent to Deny for H-1B petitions currently pending with USCIS claiming exemption from the cap. USCIS accordingly advised petitioners not to send separate correspondence containing their cap-exemption evidence on this issue.
The USCIS announcement is available at http://www.uscis.gov/
Foreign nationals are usually inadmissible to Canada for having criminal records (including convictions for driving while intoxicated). Many, however, do not know that foreign nationals can also be inadmissible to Canada on health grounds if they are “likely to be a danger to public health or public safety” (very rare) or “might reasonably be expected to cause excessive demand on health or social services.”
Approximately 280,000 foreign nationals became Canadian permanent residents in 2010, each of whom was required to undergo a Canadian immigration medical examination before becoming a Canadian permanent resident. About 96,000 foreign students came to Canada and 182,000 foreign workers entered Canada in 2010, many of whom were required to have a medical examination.
Given that Canada has a socialized system of medicine where the provincial governments pay most medical costs, medical inadmissibility can be a real concern for those with health issues who want to immigrate to Canada.
In total, approximately 450,000 Canadian medical examinations are performed each year on foreign nationals. Of those medical examinations, less than one percent of the foreign nationals (and their family members) were held to be inadmissible on health grounds for a health condition that “might reasonably be expected to cause excessive demand on health or social services.”
In 2005, the Supreme Court of Canada held that the personal circumstances of each foreign national seeking to immigrate to Canada should be considered by the Canadian visa office and an individualized assessment undertaken when deciding whether there is likely to be excessive demand on social services.
As the case law is evolving in this area, great care must be taken by foreign nationals interested in coming to Canada who suffer from significant medical problems.
House hearing testimony on the H-1B program: An article in Computerworld says that recent cables released by WikiLeaks include “anecdotes” about fraud in the H-1B visa process in countries such as Mexico, Libya, and Iceland that do not normally receive a lot of attention for it. Among other things, a cable sent two years ago from the U.S. Embassy in Mexico City refers to “persistent fraud problems” in the H-1B and L-1 visa programs, including applicants overstating experience, education, or future job responsibilities. The embassy also reportedly said that some individuals “may also set up shell companies as a means to live in the U.S.” The article is available at http://www.computerworld.com/s/article/9215855/WikiLeaks_cables_describe_H_1B_fraud_attempts.
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/processTimesDisplayInit.do
Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/
Department of State Visa Bulletin: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html