THE NEUFELD MEMO CAN CHANGE THE WHOLE H-1B PROFESSIONAL AND SPECIALTY OCCUPATION VISA
LANDSCAPE IN THE UNITED STATES.

By David H. Nachman, Esq., Managing Attorney – Nachman & Associates, P.C.
(Ridgewood, New Jersey, New York City and Canada), Business and family Immigration Lawyers and Attorneys.

As we have recently reported, H-1B “season” for the 2010-2011 Fiscal Year will begin on April 1st 2010. This means that H-1B employers will be able to submit H-1B nonimmigrant professional and specialty occupation worker visa petitions requesting an October 1st 2010 start date. Our offices continue to remain poised to assist U.S.
employers to prepare and submit these petitions.

Recently, the U.S. Department of Homeland Security, Citizenship and Immigration Service (”CIS”) implemented several important changes to the H-1B “professional and
specialty occupation” work visa program in the U.S. The changes have alarmed many H-1B employers. Some of the changes included redefining the employer-employee relationship for third-party worksite placements.

The new guidelines were set forth a January Memorandum from the Associate Director of Service Center Operations, Donald Neufeld (the “Neufeld Memo”). While it may be
the case that the Neufeld Memo targets consulting companies that place H-1B visaholders at third-party sites, it appears that the document may have a significant impact on U.S.
employers who use H-1B nonimmigrant contract consultants to supplement their full-time workforce. The use of contract consultants (such as H-1B nonimmigrants), especially in an economic downturn or recession, continues to be critical to many organizations.

For example, information technologies projects are of a limited nature and duration. Organizations find it to be economically feasible to engage the services of temporary consultants as opposed to creating a full-time position.

If inappropriately applied, the guidelines set forth in the Neufeld Memo can result in (1) denials of H-1B amendments and extensions; and (2) denials of entry to the U.S. of H-1B
nonimmigrants who have traveled internationally; and (3) increased propensity by CIS for H-1B site visits and H-1B enforcement actions.
The issues raised in the Neufeld Memo are of great concern for H-1B employers as well as H-1B nonimmigrants.

The ripple effects of the Neufeld Memo are still spreading. We will continue to monitor any new developments as they surface. For more information
about the H-1B nonimmigrant visa or the Neufeld Memo, please feel free to contact our offices at 201-670-0006 (X100) or e-mail to us at info@visaserve.com.

ONE BAD APPLE . . .

U.S. says IT firm underpaid H-1B workers

Labor Department seeks $1.9M in back wages and penalty payment from N.J. company

By Patrick Thibodeau

February 24, 2010 06:56 AM ET

Computerworld – The U.S. Department of Labor is alleging that a Newark, N.J., software company, Peri Software Solutions Inc., underpaid its tech workers on H-1B visas and owes some $1.45 million in back wages to 163 people. The Labor Department is also seeking to hit Peri with a $439,000 civil penalty and a two-year debarment from the H-1B program. About 20 H-1B employers are on the department’s current list of debarred organizations. Peri officials are not commenting on the action, but Labor Department spokeswoman Leni Fortson said the company is seeking an administrative hearing to challenge the finding. “Everything is contingent upon the outcome of the administrative hearing,” she said. In a statement, U.S. Secretary of Labor Hilda L. Solis said that the company’s alleged actions “demonstrate the kind of abuses that our laws are designed to prevent. “Every worker deserves to be paid for his or her work, and the Labor Department is committed to holding those companies that violate our nation’s labor laws accountable.” Specifically, Labor Department investigators contend that Peri failed to pay prevailing wages to workers hired under the H-1B program. The company also “forced employees to sign employment contracts and then sued them when contracts were broken,” said the Labor Department. Peri was approved to hire nearly 190 H-1B workers in recent years — 120 in 2007, 64 in 2008 and three in 2009, according to U.S. Citizenship and Immigration Services records. More broadly, immigration authorities have been increasing enforcement of the H-1B program and demanding more evidence to support visa applications.

Article Appears in Computerworld.

Information Supplied By:

NACHMAN & ASSOCIATES, P.C.
Immigration and Nationality Attorneys
VISASERVE PLAZA
487 Goffle Road
Ridgewood, New Jersey 07450

Phone (201) 670-0006 (x100)
Facsimile (201) 670-0009

WE ALSO HAVE NEW YORK OFFICES LOCATED AT 7 WEST 36TH STREET, 14TH FLOOR, NEW YORK, N.Y. 10018 (NEAR FIFTH AVENUE).

FOR INFORMATION ABOUT OUR OFFICES IN MONTREAL AND TORONTO, CANADA AND OUTBOUND IMMIGRATION OPTIONS TO CANADA PLEASE E-MAIL US AT INFO@VISASERVE.COM.

YOU CAN ALSO VISIT US ON THE WORLD WIDE WEB AT WWW.VISASERVE.COM.

WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) today announced revised filing instructions and addresses for applicants filing an Application for Replacement/Initial Nonimmigrant Arrival-Departure Document (Form I-102). The new form is dated 1/13/10. This is part of an overall effort to transition the intake of benefit forms from Service Centers to USCIS Lockbox facilities. Centralizing form and fee intake to a Lockbox environment allows USCIS to provide customers with more efficient and effective initial processing of applications and fees.

Beginning February 22, 2010, applicants submitting Form I-102 by itself must mail their application to the USCIS Phoenix or Dallas Lockbox facility, based on where they are located. Detailed guidance can be found in the updated Form I-102 instructions, which can be accessed through the Form I-102 link to the right. Applicants submitting their Form I-102 with another form should submit both forms according to the filing instructions for the other form.

NATO and Partnership for Peace under SOFA Military Members seeking an initial Form I-94 should submit their application through their foreign commander or designee, to NATO/Headquarters, Supreme Allied Commander Transformation at NATO/HQ SACT, 7857 Blandy Road, Suite 100, ATTN: Legal Affairs, Norfolk, VA 23551-2490.

The Service Centers will forward mail to the USCIS Phoenix and Dallas Lockbox facilities for 30 days until March 24, 2010. After March 24, 2010, applications incorrectly filed at the Service Centers will be returned to the applicant, with a note to send the application to the correct location.

Applicants filing a Form I-102 at a USCIS Lockbox facility, may elect to receive an email and/or text message notifying them that their application has been accepted. They must complete an E-Notification of Application/Petition Acceptance (Form G-1145), and attach it to the first page of their application.

For more information on USCIS programs, visit www.uscis.gov or call the USCIS National Customer Service Center at 1-800-375-5283.

USCIS to Offer Free E-Verify Informational Seminars for
Federal Contractors.

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) invites federal contractors
and subcontractors affected by the Federal Acquisition Regulation (FAR) E-Verify clause to attend
a free E-Verify informational seminar on Feb. 23 or 24 at 2451 Crystal Drive, Arlington, Va.
Each two-hour seminar will include a demonstration of the E-Verify system, presentations
concerning issues related to the employment verification process, and question and answer
segments with government representatives.
The seminars are being offered twice each day from 10 a.m. until noon and again from 2 p.m. until
4 p.m.
To register for a seminar, e-mail E-VerifyOutreach@dhs.gov with your company name, telephone
number, number of guests, and date and time of desired seminar. Advance reservations are
required; a registration confirmation will be provided.
More than 183,000 participating employers nationwide currently use E-Verify to electronically verify
their workers’ employment eligibility. Since Oct. 1, 2008, more than 3.9 million employment
verification queries have been run through the system and about 97 percent of all queries are now
automatically confirmed as work-authorized within 24 hours or less.
USCIS operates E-Verify in partnership with the Social Security Administration. More information
on the program is available on the E-Verify Web site at www.dhs.gov/e-verify. E-Verify customer
support is also available by calling toll free (888) 464-4218.

READ ABOUT THE H-1B: Looking for an H-1B job this year? U.S. Employers will have new concerns as they prepare H-1B nonimmigrant visas this fiscal year.

Check out the link at:

http://archive.constantcontact.com/fs092/1011188341227/archive/1103030176451.html

VISIT OUR WEBSITE FOR A FREE SUBSCRIPTION TO THE BI-MONTHLY E-ZINE.

Notes from New Jersey AILA Chapter Meeting 1/26/2010

Speakers for US Customs and Border Protection:

Paula Heacock, Branch Chief, Enforcement Operations
Louis Mejia, Supervisor for Admissibility Issues
Kevin Donohue, Deputy Chief, Criminal Enforcement

Arriving Aliens with Convictions

Kevin Donohue spoke about deferred inspection and expedited removal of arriving aliens. He explained that CBP receives a list of individuals on a flight when it leaves an airport abroad. In the time that it takes for the flight to get to the US, using technology, CBP can get a record of conviction from the courthouse. Accordingly, arriving aliens with criminal convictions can be immediately placed in expedited removal proceedings. This is an improvement from the past when the alien would be placed into deferred inspection and told to return with a copy of the conviction. Under that system, many aliens were simply failing to show up at the deferred inspection. The expedited removal option that CBP is exercising with greater frequency has alleviated the burden placed on the deferred inspection system.

Mandatory Detention for Post-1998 Convictions

Officer Donohue pointed out that the law provides for mandatory detention with post-1998 convictions (Section 236(c)). Individuals with these convictions get detained in all cases. Thereafter, NTAs are sent to the General Counsel for legal sufficiency. The General Counsel for CBP is located at 1 Penn Plaza in Manhattan. Consideration will be given to humanitarian needs such as whether the individual is a sole provider for children, and whether he/she has health issues. This procedure is based on a program that was piloted in Atlanta and Miami.

A member asked about whether attorneys would be permitted at secondary interviews. Officer Donohue responded that such a right is not given under the law, but that reasonable requests will be considered on a case-by-case basis (this goes through Judith Altmann, Associate Chief Counsel). The general phone number for the airport is 973-565-8000 (press #1 for the duty supervisor). If the attorney is not permitted to attend, he or she will still be told about what is happening with the case and will be shown a copy of the NTA and be provided with a sworn statement. He pointed out that in cases where the attorney is retained later in the process, and the client does not have a copy of the sworn statement, it can be obtained through a FOIA request. A FOIA request can be made through the General Counsel at the following contact information:

Craig Stahl
FOIA Officer
CBP Office
1 Penn Plaza, 11th Floor
New York, NY
646-733-3200

An attorney can call and ask for the “attorney-of-the-day” and that person will log-in the information.

H-1B Admissions

Officer Donohue maintained that there has been fraud in the H-1B program, and that H-1Bs have been subjected to increased scrutiny at the port of entry. He indicated that officers may call the employer in order to make a determination about admissibility. He stated that while CBP will not permit the alien to call his/her attorney, CBP may call the attorney themselves.

Officer Donohue stated that CBP now has the technology to verify that the person who was interviewed at the embassy is the same person presenting at the port of entry. CBP is also able to access DOL information.

Officer Mejia indicated that he has “read the blogs” and knows that there is a perception that the H-1B denials are being experienced disproportionately by Indian Nationals. He categorically denied this claim. He also denied allegations that “rovers” are removing foreign national from the initial line and sending them directly to secondary inspection. He further noted that there are 4 flights arriving from India per day, and those flights have the most H-1Bs onboard.

Members expressed frustration with the fact that they are preparing their clients for interviews, and arming them with the necessary documentation, but the clients are still being denied visas and/or entry. This is particularly common where there is “seconding” occurring; these are complex, but legitimate, employment relationships that are even difficult for attorneys to understand. Officer Mejia indicated that members were doing exactly what they should be doing,( i.e., sending the foreign national to the port of entry well-armed with documentary evidence). Members also asked whether CBP was re-adjudicating cases based on a recent CIS memo. Officer Mejia indicated that the memo was not controlling on CBP, that they did not read it as calling for a re-adjudication, and that they were not re-adjudicating cases.

Members asked whether H-1Bs might be given a choice to withdraw their application for admission instead of being removed. Officer Mejia said that it would depend upon the circumstances; the Chief Counsel would have to be consulted. Another member suggested that, rather than removing an individual, CBP could issue an NTA. This procedure would permit an attorney to assist the foreign national. It was agreed that this would be the subject of further discussion between CBP and AILA NJ.

Closing of Varick Street Facility

Members inquired as to whether the closing of the Varick Street Facility would place extra pressure on NJ sites. The officers indicated that this would not occur because New York and New Jersey are entirely separate entities.

I-751 pending

Officer Donohue stated that when an alien presents an I-551 stamp, the alien will always be placed in secondary inspection. He also pointed out that this was true of anyone traveling with any document that did not have a biometrics identifier (e.g. I-551 stamp, I-797 extending the Conditional Residence for one year pending I-751 adjudication. In response to a member question, he indicated that there is no way for an officer to access any system that will tell him/her whether the alien has filed for divorce.

Expired Green Cards

Aliens who have been out of the U.S. for more than 6 months, or who have expired green cards, will be placed in secondary. Officer Donohue indicated that they have information about how long each LPR has spent outside the US.

Courtesy of Victoria Donoghue, Esq. and David H. Nachman, Esq.
NACHMAN & ASSOCIATES, P.C.
Immigration and Nationality Attorneys
VISASERVE PLAZA
487 Goffle Road
Ridgewood, New Jersey 07450
Phone (201) 670-0006
Facsimile (201) 670-0009
WE ALSO HAVE NEW YORK OFFICES LOCATED AT 7 WEST 36TH STREET, 14TH FLOOR, NEW YORK, N.Y. 10018 (NEAR FIFTH AVENUE).
FOR INFORMATION ABOUT OUR OFFICES IN MONTREAL AND TORONTO, CANADA AND OUTBOUND IMMIGRATION OPTIONS TO CANADA PLEASE E-MAIL US AT INFO@VISASERVE.COM.
YOU CAN ALSO VISIT US ON THE WORLD WIDE WEB AT WWW.VISASERVE.COM.

H-1B Admissions at Newark, NJ Airport – Port Of Entry (POE)

The AILA U.S. Customs and Border Protection (“CBP”) Liaison Committee received reports from AILA members that CBP inspectors at the Newark, New Jersey airport port of entry were apparently assisting in an investigation involving certain H-1B nonimmigrants from India and certain H-1B petitioner companies. The inspectors’ questions focused on who the individuals worked for, how their pay was computed, who paid their salary, their job duties, and what they were paid. In some cases, the individuals were subjected to expedited removal and visa cancellation.
After inquiring with CBP headquarters (“HQ”) about these incidents, the CBP Liaison Committee was advised by HQ that several of these cases involved companies under investigation by U.S. Immigration and Customs Enforcement (“ICE”) and/or U.S. Citizenship and Immigration Services (“USCIS”) for ongoing fraud. CBP HQ noted that they use as much advance information as possible to target specific individuals who warrant additional inspection. HQ also noted that recent enforcement cases reviewed ranged from simple documentary deficiency to visa/petition fraud. Upon an inadmissibility finding, the determination to either allow the applicant to withdraw his or her application for admission or to subject the applicant to expedited removal is based on “the totality of the circumstances and reviewed on a case by case basis.” In the Newark enforcement actions, CBP Newark worked closely with USCIS – Fraud Detection and National Security (“FDNS”) and the Department of Labor – Office of Investigations. CBP HQ stated that those questioned were offered the opportunity to contact their consulate and that CBP officers contacted the petitioner and/or current employer when clarification was needed. CBP HQ confirmed that they screen ALL employment-based visa holders to determine admissibility and ensure compliance with entry requirements.

In addition, on January 27, AILA members attending a CBP meeting in the Newark, New Jersey area were informed that a new policy has been instituted at Newark Airport. This policy involves conducting random checks for returning H-1B, L-1, and other employment-based visa holders. Based upon the initial check, if the person’s admissibility is questionable, then he or she will be sent to secondary inspection for further interview. In some cases, if CBP discovers discrepancies in previously filed petitions, then the applicant may be asked to withdraw his/her application for admission into the United States or be subject to expedited removal.

During that same local CBP meeting, attendees were advised that if CBP discovers that a returning Lawful Permanent Resident has a post-1998 conviction, the Lawful Permanent Resident may be detained. The Newark airport port of entry has adopted a mandatory detention policy for crimes that were committed after 1998. In the event that CBP cannot get a copy of the conviction record in twenty-four hours, the person may be released. The only exceptions are that CBP will release a Lawful Permanent Resident for humanitarian reasons; extenuating circumstances such as if the foreign national is traveling with children and there is no one to pick up the children; or when the person is a sole provider for United States Citizen or Lawful Permanent Resident children.
Individuals with pending I-751 petitions returning to the United States via the Newark airport port of entry, who have a I-751 filing receipt documenting that an I-751 has been properly filed or an ADIT Legal Permanent Resident stamp, will be sent to secondary inspection for further interview to verify the validity of the I-751 Petition. It is unclear if CBP will undertake a substantive review of the I-751 Petition.

In all cases, attorneys should remind their clients to thoroughly prepare for their trip to the United States and their inspection upon application for admission by reviewing all pertinent documents to their petition and to consider carrying evidence to support the assertions made in the petition filed on their behalf by their employer. Similarly, employers must be prepared for telephone inquiries from CBP officers at ports of entry to confirm the assertions made in any nonimmigrant petition and supporting documentation.

Finally, employers must be advised that the government may review information in any public venues such as websites and other media for consistency with petition content. Thus, keeping such public information accurate and current is essential.

Note the new fraud related language added to I-797 approval notices –
NOTICE: Although this application/petition has been approved, DHS reserves the right to verify the information submitted in this application, petition, and/or supporting documentation to ensure conformity with applicable laws, rules, regulations, and other authorities. Methods used for verifying information may include, but are not limited to, the review of public information and records, contact by correspondence, the Internet, or telephone, and site inspections of businesses and residences. Information obtained during the course of verification will be used to determine whether revocation, rescission, and/or removal proceedings are appropriate. Applicants, petitioners, and representatives of record will be provided an opportunity to address derogatory information before any formal proceeding is initiated.
Please do not forget to contact the CBP port director to follow up on case problems at a particular port. In addition, as needed, file complaints through the CBP complaint process.

Learn more… About Nachman & Associates, P.C.

When traditional immigration approaches do not work, we analyze a candidate’s resume and determine if they may qualify for various nonimmigrant or temporary work permits or permanent immigrant visa transfer options such as outstanding researcher classification, TN under NAFTA or E-3 classification for Australia. Now that the H-1B nonimmigrant visa has become more difficult to obtain, we work closely with our clients who are seeking to transfer highly-skilled foreign national workers to the U.S. to determine if there are other nonimmigrant options for such transfers. No matter what the situation, our attorneys work hard to provide a variety of visa options to support their needs.

Contact Us.

Our staff of immigration lawyers and professionals are sensitive to the needs of our clients and the members of their families. Many members of our staff are themselves foreign born and have family and/or friends who have gone through the immigration process. As a result, our staff of business immigration lawyers and professionals have a personal and unique approach to processing visas and for dealing with our foreign national clientele. Our legal team can clearly explain how to process temporary and permanent work permits in the U.S. The PERM Labor Certification Process is time-consuming and complex and our staff of business immigration law professionals can clearly explain the process in Spanish, French, Japanese, Korean, Tamil, Hindi, Slovak, Czech, Russian, Chinese, German and English.

To schedule a consultation, please feel free to contact Nachman & Associates by e-mail or call 1-866-599-3625. Please contact our offices at 201-670-0006 (x100) or e-mail to us at info@visaserve.com.

Website: http://www.visaserve.com

Nachman & Associates, P.C.
David H. Nachman
Managing Attorney
E-mail: david_nachman@visaserve.com