United States: USCIS Unveils Tool to Verify Immigration Petitioners

U.S. Citizenship and Immigration Services (USCIS) will soon launch a pilot program that will use Dun & Bradstreet databases to verify the business information of employers who submit immigration petitions, the agency announced to stakeholders on Thursday. A new electronic tool – the Verification Instrument for Business Enterprises (VIBE) – is intended to help combat immigration fraud, as well as eventually minimize duplicative requests for petitioners’ business data.

VIBE will be used to verify a petitioner’s ownership, date of establishment, current address, number of employees, business activities, and relationship with other entities, among other information. Where there are discrepancies between VIBE and the information contained in a petition, the employer will be issued a request for evidence (RFE) or a notice of intent to deny (NOID) and given an opportunity to explain the discrepancy or provide additional information. At least initially, the system will not replace the paper documentation that employers submit with their petitions, though one of the goals of the program is to ultimately reduce the need for frequent petitioners to submit extensive business documentation with each filing.

USCIS officers are expected to begin using VIBE in the adjudication of selected immigrant and nonimmigrant visa petition types next month, with full implementation of the system to occur later this year. Fragomen will be closely monitoring the roll-out of VIBE and will issue further Client Alerts as adjudication trends emerge.

Source: Fragomen

United States: USCIS Posts Initial H-1B Cap Count

United States Citizenship and Immigration Services (USCIS) has published its first count of Fiscal Year 2011 H-1B cap filings. As of April 8, 2010, USCIS had received 13,500 petitions against the 65,000 standard quota and 5,600 petitions towards the 20,000 cap exemption for foreign nationals holding U.S. advanced degrees, for a total of 19,100 cap filings.

USCIS is maintaining its H-1B cap count at http://www.uscis.gov/h-1b_count.

Fragomen is monitoring H-1B usage closely, and we will provide additional information as it becomes available.

Source: Fragomen

United States: USCIS Announces Upcoming Changes to E-Verify

In the coming months, E-Verify employers can expect to see changes to the online verification system, including additional government monitoring to ensure compliance with program rules and new measures to combat identity fraud and employment discrimination.

U.S. Citizenship and Immigration Services (USCIS) is planning important changes to the E-Verify online employment eligibility verification system, aimed at ensuring employer compliance with program rules and guarding against employment discrimination and identity theft. These new initiatives were announced at a March 17 briefing attended by Fragomen representatives and other stakeholders.

Over the next few months, the agency will implement measures to verify employer users of the system, detect misuse, and enhance system data. E-Verify’s Monitoring and Compliance Unit will begin to examine an expanded list of behaviors that indicate improper use of the system, and will create a mechanism to lock Social Security numbers when there is suspicion that they are being used fraudulently. USCIS will also begin to check employers’ legitimacy against commercial data sources. In addition, the E-Verify photo tool, which allows participating employers to verify certain employee photos against those stored in government databases, will be expanded to include data from the U.S. Department of State and various state departments of motor vehicles. Currently, the photo tool is limited to Department of Homeland Security documents.

Specifically for employees, there are plans for a “self-check” program and a hotline for employees who need to resolve problems with the system. USCIS also intends to continue its public education efforts. Two new video presentations, dealing with employer responsibilities and employee rights, are available at http://www.youtube.com/ushomelandsecurity.

Along with these new initiatives, USCIS is enhancing efforts against employment discrimination. USCIS and the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) have agreed on procedures that will make it easier to bring employment discrimination cases against employers. The two agencies will also share information about possible violations. USCIS will refer potential employment discrimination cases to OSC and OSC will provide information about misuse of the E-Verify system to USCIS.

What Employers Need to Do

In light of the USCIS announcements, we strongly urge employers participating in E-Verify to take steps to ensure that they are in strict compliance with program rules and the anti-discrimination provisions of U.S. immigration law. With many federal contractors and subcontractors now required participate in E-Verify, the consequences of non-compliance are more serious than ever.

If you have any questions about this alert or E-Verify in general, please contact your designated Fragomen professional or email us at compliance@fragomen.com.

Source: Fragomen

United States - Some Employers Report Petition Revocation Notices after USCIS Site Visits

Some employers have reported receiving U.S. Citizenship and Immigration Services notices of intent to revoke an immigration petition and requests for additional information after the agency has conducted a worksite visit to verify the facts stated in a petition. So far, the notices are not widespread, but could become more common as the site visit program expands.

According to recent reports, some employers have received a notice of intent to revoke (NOIR) a nonimmigrant visa petition some time after undergoing a worksite visit conducted by the fraud unit of U.S. Citizenship and Immigration Services (USCIS). These notices – which can be prompted by even minor changes in employment circumstances between the filing of a petition and a site visit – typically ask the employer to show ongoing compliance with the petition approval. Recent notices have been issued primarily in H-1B cases. As USCIS continues its site inspection program, more employers could receive these notices.

In recent months, USCIS’s Fraud Detection and National Security (FDNS) unit has been conducting more frequent site visits of employers that have filed nonimmigrant visa petitions on behalf of foreign workers. The purpose of the visits is to verify the accuracy of the information in a specific petition. During a visit, an FDNS officer usually interviews a company representative and the foreign beneficiary, using a standard list of questions. The officer may also tour the premises and ask for employment or immigration records. After conducting a visit, the officer makes an internal report of his or her findings.

Most site visits are uneventful, but in some cases employment circumstances may have changed between the time the immigration petition was originally approved and the time a site visit takes place. For example, the employer may have changed locations or the foreign beneficiary of a petition may have resigned and moved to a new employer. If there appear to be differences between the information provided in an immigration petition and the circumstances that exist at the time of the FDNS site visit, USCIS can decide to reopen the case and issue a NOIR to examine whether the foreign national remains eligible for the nonimmigrant classification and whether both the employer and employee are complying with the terms of the immigration category.

USCIS plans to conduct as many as 25,000 FDNS site visits this fiscal year. Though only a small number of organizations have thus far reported notices of intent to revoke a petition after a site visit, employers could begin to see more NOIRs as site inspections become more frequent. If your organization receives a notice of intent to revoke a petition, contact your designated Fragomen professional immediately.

Source: Fragomen

USCIS Proposes Significant Revision of Nonimmigrant Worker Petition

U.S. Citizenship and Immigration Services (USCIS) is proposing a significant revision of Form I-129, the nonimmigrant worker petition, that would require employers to make declarations about the third-party placement of foreign workers and about compliance with federal export control laws, among other changes.

The agency is accepting public comments on the proposed revisions through April 9, 2010. The proposed form can be viewed here. Note that any changes to Form I-129 would become final only after the review and approval of the Office of Management and Budget.

Form I-129 is the petition used by employers to sponsor foreign nationals for nonimmigrant worker classifications, including the H-1B, L-1, E and O categories. Earlier this month, USCIS published a Federal Register notice announcing a proposal to alter the form, which has not had a significant revision in some time. The following are among the most important proposed changes to the form:

• Third-party placements. Petitioning employers would be required to state whether the foreign national was to work offsite under a contract with a third party. Petitioners would also be asked to provide the name and address of the third party, along with the name, job title and phone number of a contact at the third-party site. H-1B employers would be required to attest that the offsite assignment complied with H-1B program rules and that the beneficiary was to be paid the “prevailing rate of pay at any and all off-site locations.”
• Export control compliance. If the petition is for an H-1B, H-1B1, L-1 or O-1A worker, the petitioner would be required to answer questions about whether it had complied with export control laws. Federal export control regulations require employers to obtain an export license if they will release certain kinds of technology information to foreign nationals. Under the proposed revision of Form I-129, employers would be required to state whether an export license was required for the foreign beneficiary of the petition and, if so, would be required to obtain the license before submitting the petition to USCIS.
• Acknowledgment of USCIS petition verification. When signing Form I-129, petitioners would be required to acknowledge the agency’s authority to verify the information in the petition by any means the agency determined appropriate, including through on-site visits.

Fragomen is closely monitoring the status of the proposed revisions to Form I-129 and will issue updates as the form moves throught the review process.

Source: Fragomen

United States USCIS Will Not Implement New Signature Policy Until After H-1B Filing Season Opens

In a meeting with immigration stakeholders held today, U.S. Citizenship and Immigration Services officials confirmed that a revised policy memorandum regulating the use of powers of attorney would not take effect without notice, and would not be implemented prior to the start of H-1B filing season on April 1, 2010.

U.S. Citizenship and Immigration Services (USCIS) today announced that it is planning to issue a revised policy memorandum that will restrict employers from authorizing their outside attorneys to sign immigration petitions and applications on their behalf under a power of attorney. According to agency officials, petitioners and applicants will be given sufficient notice of the new policy before it takes effect, and that it will not take effect until after the opening of the FY 2011 H-1B filing season on April 1, 2010.

Several weeks ago, USCIS issued a guidance memorandum on signature policies for individuals and organizations filing immigration petitions and applications. As originally written, the signature policy would require filings made on behalf of a corporation or other legal entity to be signed by an authorized officer or employee of the organization. Employers would no longer be able to authorize their outside immigration attorneys to sign applications and petitions on their behalf pursuant to a power of attorney – a reversal of previous agency practice. Cases utilizing powers of attorney for business immigration filings were to be rejected.

The memorandum was abruptly withdrawn shortly after it was released, and the agency indicated that it would seek input from stakeholders before implementing its signature and power of attorney policies. In a meeting held today with members of the immigration community, USCIS officials reconfirmed that it expects to issue a new memorandum that prohibits immigration filings that are signed by outside counsel under a power of attorney, except in very limited circumstances outside the scope of business immigration. However, USCIS will accept Form I-907 requests for premium processing service that are signed by outside attorneys and will also accept responses to requests for evidence (RFEs) signed by attorneys. Earlier this month, some employers had premium processing requests mistakenly rejected because they were signed by outside counsel, but USCIS has acknowledged that this was a mistake.

While officials at the stakeholders meeting today suggested that reasonable notice of a revised policy would be forthcoming, employers that use powers of attorney may wish to discontinue this practice out of an abundance of caution. While USCIS Headquarters has withdrawn the earlier memo, it is difficult to predict how individual service centers will treat filings that utilize powers of attorney in the future. This is particularly critical in H-1B cap cases, which have numerical limits and where the option to re-file upon rejection may not exist.

Fragomen, along with the American Council on International Personnel (ACIP) and the American Immigration Lawyers Association (AILA), continues to dialogue with USCIS on the impact of the signature policy on employers. We will issue further Client Alerts as developments occur. If you have any questions about this Alert, please contact your designated Fragomen professional.

Source: Fragomen

United States: USCIS, Immigration Community Respond to the Haiti Earthquake

USCIS has implemented a range of humanitarian programs to provide immigration options to Haitian nationals. These include:

• Temporary Protected Status (TPS) for qualifying Haitian nationals in the United States. TPS will confer to qualifying Haitian nationals work authorization and protection against deportation for up to 18 months. The Haiti TPS application period started January 21 and will remain open for 180 days.

• Assistance to children. USCIS will be allowing requests to expedite certain immigration applications on behalf of Haitian children. Individuals who have filed I-130 permanent residence petitions or I-730 refugee/asylee relative petitions on behalf of minor Haitian children may request expedited processing until July 1. USCIS will also consider humanitarian parole to Haitian children who are being adopted, if there is a final adoption decree issued by the Haitian government or custody has been granted to U.S. citizen adoptive parents for the purpose of emigration and adoption. Other humanitarian parole options may become available to Haitian children.

• Extensions and changes of status for nonimmigrant Haitian nationals. Haitian nationals who are unable to return to their home country and whose nonimmigrant status has expired or is about to expire may request extensions and changes of their nonimmigrant status. USCIS has pledged to approve these requests where possible.

• Extensions of parole. Haitian nationals granted parole to enter the United States may apply for an extension of their parole. Haitian nationals granted advance parole to travel abroad and who are unable to return from Haiti before their parole expires will have their advance parole automatically extended until March 12, 2010.

For more information on USCIS programs for Haitian nationals, click here.

Fragomen attorneys around the country, along with other members of the immigration community, are helping assist Haitian nationals in submitting TPS applications and seeking other U.S. immigration benefits. If you are interested in learning more about options for Haitian nationals, contact your designated Fragomen professional.

Source: Fragomen

United States: New USCIS Guidance Imposes Enhanced H-1B Evidence Requirements and Eligibility Standards

Under new guidance from U.S. Citizenship and Immigration Services, H-1B petitioners will need to demonstrate that they have the right to control the foreign beneficiary’s work. This means that petitioners will have to provide extensive documentation of their employer-employee relationship with H-1B beneficiaries and may see stricter agency adjudications where the necessary relationship and control cannot be clearly shown.

A long-awaited guidance memorandum from U.S. Citizenship and Immigration Services (USCIS) imposes enhanced evidence requirements on employers filing H-1B petitions and takes strict new positions on when and whether the H-1B category may be used for foreign workers who will be placed at client worksites, self-employed individuals, business owners, and independent contractors.

In brief, the new USCIS guidance emphasizes that an H-1B petitioner must show a valid employer-employee relationship will exist between itself and the foreign beneficiary throughout the petition validity period and that the petitioner has the right to control the beneficiary’s employment. This will mean that petitioners will need to provide detailed documentation of the employment relationship and the foreign beneficiary’s work itinerary, especially if the beneficiary will be placed at client sites during H-1B employment. The guidance will also mean that petitions for the self-employed, individuals with an ownership interest in the petitioner, independent contractors, and pure staffing or “job shop” arrangements may no longer qualify for the H-1B classification because the necessary employer-employee relationship cannot be demonstrated.

Click here for the new guidance memo; click here for USCIS’s Frequently Asked Questions on the memo.

Third-Party Placements, Self-Employed Workers and Independent Contractors

The guidance memo announces strict new positions on the kinds of work arrangements that can qualify for the H-1B classification. In some cases, these new positions are a reversal of previous agency policies and practices.

USCIS takes the position that an H-1B worker may be placed at a client site for short-term or long-term placements, provided that the petitioner – and not the client – has the right to ultimate control of the foreign national’s work and can document this right (discussed below). But if a foreign national will be placed at a third-party site simply to fulfill a staffing contract and he or she will be managed and directed by the client, the requisite employer-employee relationship would not exist and the H-1B category would not be appropriate.

The agency also takes the position that, in cases where the H-1B beneficiary is self-employed or has an ownership interest in the petitioning entity, the petition must demonstrate that the petitioning entity is distinct from the beneficiary such that the necessary employment relationship and control exists. USCIS will look closely at cases in which the H-1B beneficiary is also the petitioner and reports to no one but himself or herself. Where there is no separation between the petitioning company and the beneficiary and no evidence that the business entity – and not the individual – will control the H-1B work, the foreign national may not be eligible for H-1B classification. Similarly, where the beneficiary is an independent contractor whose work will not be controlled by the petitioner, USCIS takes the position that the requisite employment relationship does not exist and the H-1B category is not appropriate.

Documenting the Employment Relationship

Under the new memorandum, employers will see an increase in the kinds of documentation they will need to provide in H-1B initial petitions and extensions.

In all cases, the petition must include clear documentation that the petitioner and the foreign beneficiary will have a valid employer-employee relationship and that the petitioner will have the right of control over the foreign national’s work. This will be especially important in cases where the foreign national will work at client sites during the H-1B validity period. In such cases, the employer must document that it, and not the client, will have the right to supervise, direct and review the foreign national’s work and terminate his or her employment.

Evidence of the employment relationship and right to control can include:

• An employment agreement between the petitioning employer and the foreign national, detailing the terms and conditions of employment;
• An employment offer letter that describes the nature of the employer-employee relationship between the petitioner and the foreign beneficiary, as well as the services the foreign national will perform;
• Extracts from contracts between the petitioning employer and its client that show the petitioner will have the right to control its employees that are placed at a client site;
• Copies of contracts, work orders, letters between the petitioner and client, or other similar documents that describe the duties of the H-1B worker, the qualifications required to perform the job duties, and who will supervise the H-1B worker;
• A description of the performance review process; and/or
• A copy of the petitioner’s organizational chart showing the beneficiary’s chain of supervisors.

When an H-1B employer files an H-1B extension petition for an existing employee with no material changes in the employment, USCIS will look closely at whether the necessary employer-employee relationship existed during the previous H-1B period and whether it will continue for the extension period. Evidence to document the ongoing relationship can include:

• The H-1B beneficiary’s paystubs and W-2 forms for the initial H-1B period;
• Time sheets and work schedules;
• Examples of work product that the beneficiary created during the initial validity period;
• Dated performance reviews; and/or
• Other employment records, such as documentation of the date of hire, job changes, promotions, transfers, layoffs, pay changes and the like.

USCIS will not require this evidence in change-of-employer petitions that also seek extensions.

Documenting Multiple Employment Locations

If the foreign national will be placed in multiple locations over the course of the H-1B validity period, the employer will need to provide a complete itinerary of the foreign national’s engagements, including the dates of each engagement, the names and addresses of the actual employers, and the names and addresses of the locations where the foreign national will be placed. Though this requirement has existed for some time, the agency had previously taken a flexible approach to it. The employer must also include a labor condition application (LCA) certified by the Department of Labor that covers each employment location.

Fragomen, along with the American Council on International Personnel and the American Immigration Lawyers Association, continues to engage in advocacy efforts on these issues. We will be closely monitoring the implementation of the new guidance memo and its effect on H-1B adjudications. If you have specific questions about the memo, please contact your designated Fragomen professional.

Source: Fragomen

United States: USCIS Will Temporarily Accept H-1B Petitions Without Certified LCAs

Through March 4, 2010, employers will be able to submit H-1B petitions to U.S. Citizenship and Immigration Services without a certified labor condition application (LCA), as long as an LCA was filed with the Department of Labor at least seven calendar days before the H-1B petition is filed.

In response to longer labor condition application (LCA) processing times at the Department of Labor (DOL), U.S. Citizenship and Immigration Services (USCIS) has announced that it will temporarily accept H-1B petitions without certified LCAs, through March 4, 2010. The new policy is the result of advocacy on the part of the American Council on International Personnel (ACIP) and the American Immigration Lawyers Association (AILA).

Under the new policy, an employer must still submit an LCA to DOL before it files an H-1B petition. But if the LCA has been pending uncertified for at least seven calendar days, the employer may file the H-1B petition without the certified LCA. If an employer decides to file without an LCA, it will need to include with the H-1B petition a copy of DOL’s email notice that the LCA was received for processing. USCIS will then issue a request for evidence (RFE) and give the employer 30 calendar days to submit a DOL-certified LCA in support of the petition. The employer cannot submit the certified LCA until it receives the RFE.

Impact on Employers

Under previous practice, USCIS would not accept an H-1B petition unless it was accompanied by a DOL-certified LCA. However, since the introduction of DOL’s iCERT application portal earlier this year, LCA processing has taken longer and been more complex, resulting in delays in employers’ ability to file H-1B petitions.

Though an H-1B petition still cannot be approved until a certified LCA is obtained, USCIS’s new policy will make it possible for employers to file H-1B cases more quickly in time-sensitive situations, such as where a foreign employee is fast approaching the end of his or her period of H-1B stay and needs an extension, or where a company wants to use portability to bring an H-1B worker on board to new employment as soon as possible.

For USCIS’s full announcement of the new policy, click here.

If you have any questions about this Client Alert, please contact your designated Fragomen professional.

United States USCIS Issues Updated E-Verify Guidance for Federal Contractors

U.S. Citizenship and Immigration Services recently updated its E-Verify Supplemental Guide for Federal Contractors. The updated guidance addresses how employers should manage the verification process in light of anticipated volume and changing regulations and clarifies which workers must undergo E-Verify.

U.S. Citizenship and Immigration Services (USCIS) recently updated its E-Verify Supplemental Guide for Federal Contractors to address some frequently asked questions regarding employer obligations under the recently implemented amendments to the Federal Acquisition Regulation (FAR).

Background

Since September 8, 2009, government contracting officers have been required to include a clause in certain federal contracts requiring contractors to use the E-Verify program to verify the employment eligibility of all new hires, as well as existing employees who work on the federal contract. After being awarded the contract, the employer has 30 days to enroll in E-Verify as a federal contractor and another 90 days to implement the program (or 180 days if the contractor elects to e-verify its entire workforce). The requirement applies to prime contracts with a performance period of at least 120 days and a value over $100,000. Service or construction subcontracts of a covered contract would also be required to include the E-Verify clause, if the value of the subcontract is over $3,000.

The New Guidance

The updated Supplemental Guide clarifies several of the questions that many employers have been asking. For example, it clarifies that an employer who initially opts to e-verify only current workers assigned to the federal contract, but who subsequently wishes to e-verify the entire workforce, may do so. However, once the employer opts to e-verify its entire workforce, the employer may not change that option to e-verify only current workers assigned to the contract.

The new guidance also makes clear that, if an employee presented a valid U.S. passport at the time the I-9 form was completed, and since that time the passport has expired, the employer does not have to obtain a new I-9 for the employee in order to run an E-Verify current employee query. Rather, the employer will be permitted to enter the passport number into E-Verify by selecting the “unexpired passport” option (even though the passport has since expired). Note, though, that this policy does not apply to I-551 permanent resident cards (“green cards”) that were valid when presented but are expired at the time of the E-Verify query. In those situations, the employer will have to call USCIS for instructions on how to avoid a “non-confirmation” by the system.

Additional Fragomen Guidance Forthcoming

On September 2, Fragomen released a set of questions and answers entitled “The Federal Contractor E-Verify Rule: How It Affects Your Company.” Fragomen attorneys are updating that document in light of the recent agency guidance and ongoing conversations with DHS personnel. Fragomen will provide its updated guidance to employers in the near future.

In the meantime, should you have any questions about the FAR’s E-Verify requirements, please contact your designated Fragomen professional or send your question to compliance@fragomen.com.

Source: Fragomen