Update: Foreign Worker Slots Remaining for FY 2012.

U.S. Citizenship and Immigration Services (“USCIS”) still has slots available in fiscal year 2012 for foreign workers in specialty occupations under the H-1B program.

Thus, employers who seek an employment start date on or after October 1, 2011 (the start of the 2012 fiscal year) for foreign workers in specialty occupations can still file visa petitions on behalf of those workers. By rule, the specialty occupations include, but are not limited to: scientists, engineers and computer programmers.

Petitions should be filed as soon as possible in order to avoid being shut down by the annual cap limitation for the H-1B program (cap amount of 65,000 for FY 2012).

Some petitions will be exempt from the cap if they are made on behalf of certain individuals who have obtained an advanced U.S.degree, but USCIS grants the exemption only to the first 20,000 applications.

The current H-1B counts for petitions filed to date are as follows through July 1, 2011:

• H-1B Regular Cap: 18,400 cap-eligible petitions

• H-1B Advanced Degree Exemption: 11,900 petitions

Up to 6,800 visas may also be set aside for workers from Chile and Singapore, pursuant to the H-1B1 program arising out of the U.S.-Chile and U.S.-Singapore Free Trade Agreements.

H-1B petitions, in order to be properly filed, must be complete and accurate. Necessary documents include, but are not limited to the following:

• A Form I-129 petition with appropriate supplements;

• Labor condition applications on Form ETA 9035;

• Required evidence of a beneficiary’s educational background;

• Duplicate copies of certain documents; and

• Consulate-specific forms required by the Department of State where appropriate.

If you are in need of more information about business immigration, please check the pertinent section of our Website at www.visaserve.com or call our offices at (201) 670-0006.

THE NEUFELD MEMORANDUM REVISITED AND THE H-1B VISA CLIMATE: The New Face of Enforcement in the H-1B World.

As a result of increased site visits and a general inclination to decrease the number of H-1B’s approved, the U.S. Citizenship and Immigration Services (”USCIS”) published a watershed memo on January 8th, 2010 (“the Neufeld Memo”). The Neufeld Memo radically changed the way that H-1B’s were adjudicated. The Neufeld Memo also put enormous pressure on employers to satisfy additional evidence requirements justifying any work performed by an H-1B visa holder off of the H-1B visa petitioner’s premises. Additionally, the Neufeld Memo added additional requirements for H-1B petitioners to obtain H-1B extensions. It is this author’s opinion that as a result of this Neufeld Memo, employers will see automatic requests for evidence in any case where the beneficiary may be performing offsite work and for any H-1B visa extension petition. It continues to be our strong recommendation that employers add a section to their H-1B petitions which cover the issues addressed by the Neufeld Memo. Even one and one half years after this Memo was promulgated.

USCIS is still concerned about whether or not there is a valid employer-employee relationship. The Neufeld Memo basically states that hiring a person to work in the United States requires more than merely paying the wage or placing that person on the payroll of the H-1B petitioning organization. In considering whether or not there is a valid “employer-employee relationship” for purposes of H-1B petition adjudication, USCIS must determine if the employer exercises a sufficient level of “control” over the prospective H-1B employee. Clearly, if the employee will be working “on site” in the H-1B petitioner’s office, doing specific tasks for the petitioner, this will not be viewed as raising a “control” issue. However, with the publication of the Neufeld Memo, it remains our opinion that all employers need to address the “control” issue upon initial submission of an H-1B petition to the USCIS.

The prospective H-1B petitioner organization must be able to establish that it has the “right to control” when, where, and how the prospective H-1B nonimmigrant beneficiary will perform the professional and specialty occupation job and the USCIS will consider the following items to make such a determination (with no one of the following factors being decisive with regard to the issue of “control”):

(1) Does the potential H-1B petitioner supervise the prospective H-1B beneficiary and is such supervision off-site or on-site?
(2) If the supervision is off-site, how does the petitioner maintain such supervision, i.e. weekly calls, reporting back to main office routinely, or site visits by the petitioner?
(3) Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
(4) Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
(5) Does the petitioner hire, pay, and have the ability to fire the beneficiary?
(6) Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
(7) Does the petitioner claim the beneficiary for tax purposes?
(8) Does the petitioner provide the beneficiary any type of employee benefits?
(9) Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
(10) Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
(11) Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?

In addition to the foregoing, the USCIS provides specific examples of employment situations in which the “control” issue is not considered to be problematic. Please note that there are numerous variations of these scenarios and that each employment situation may not fit squarely into the examples provided by the USCIS.

The “Traditional Employment” Scenario:

If the prospective H-1B beneficiary works at an office location owned/leased by the prospective H-1B petitioner and the beneficiary reports directly to the petitioner on a daily basis, the petitioner sets the work schedule of the beneficiary, the beneficiary uses the petitioner’s tools/instrumentalities to perform the duties of employment, and the petitioner directly reviews the work-product of the beneficiary. The petitioner claims the beneficiary for tax purposes and provides medical benefits to the beneficiary.

The “Temporary/Occasional Off-Site Employment” Scenario:

The prospective H-1B nonimmigrant petitioner is an accounting firm with numerous clients. The beneficiary is an accountant. The beneficiary is required to travel to different client sites for auditing purposes. In performing such audits, the beneficiary must use established firm practices. If the beneficiary travels to an off-site location outside the geographic location of the employer to perform an audit, the petitioner provides food and lodging costs to the beneficiary. The beneficiary reports to a centralized office when not performing audits for clients and has an assigned office space. The beneficiary is paid by the petitioner and receives employee benefits from the petitioner.

The “Long-Term/Permanent Off-Site Employment” Scenario:

The prospective H-1B nonimmigrant petitioner is an architectural firm and the beneficiary is an architect. The petitioner has a contract with a client to build a structure in a location out of state from the petitioner’s main offices. The petitioner will place its architects and other staff at the off-site location while the project is being completed. The contract between the petitioner and client states that the petitioner will manage its employees at the off-site location. The petitioner provides the instruments and tools used to complete the project, the beneficiary reports directly to the petitioner for assignments, and progress reviews of the beneficiary are completed by the petitioner. The underlying contract states that the petitioner has the right to ultimate control of the beneficiary’s work.

The USCIS has specifically stated that the following scenarios are now NOT acceptable to meet the “control” issue with regard to H-1B employment:

The “Self-Employed Beneficiaries” Scenario:

The prospective H-1B nonimmigrant petitioner is a fashion merchandising company that is owned by the beneficiary. The beneficiary is a fashion analyst. The beneficiary is the sole operator, manager, and employee of the petitioning company. The beneficiary cannot be fired by the petitioning company. There is no outside entity which can exercise control over the beneficiary. The petitioner has not provided evidence that the corporation, and not the beneficiary herself, will be controlling her work.

The above example (cited in the Neufeld Memo) is similar to a case recently addressed by our office for one of our clients. We have successfully processed a case such as this in the past. However, it is likely that these facts will inevitably lead to a much more complex H-1B case processing procedure by the government.
The USCIS admits that a sole stockholder of a corporation can be employed by a corporation as the corporation is a separate legal entity from its owners and even its sole owner. However, an H-1B beneficiary/employee who owns a majority of the sponsoring entity and who reports to no one but him or her may not be able to establish that a valid employment relationship exists in that the beneficiary. The issue is whether the prospective H-1B nonimmigrant petitioner can establish the requisite “control”.

The Neufeld Memo states that the Administrative Appeals Office (”AAO”) correctly determined that corporations are separate and distinct from their stockholders and that a corporation may petition for, and hire, their principal stockholders as H-1B nonimmigrant employees. However, the AAO did not reach the question of how, or whether, petitioners must establish that such beneficiaries are bona fide “employees” of “United States employers” having an “employer-employee relationship.” While it is correct that a petitioner may employ and seek H-1B classification for a beneficiary who happens to have a significant ownership interest in a petitioner, this does not automatically mean that the beneficiary is a bona fide employee.

What we believe that the USCIS is saying is that if a corporation’s sole shareholder and sole employee is the H-1B nonimmigrant beneficiary, the case is likely to be denied. If the H-1B nonimmigrant beneficiary is one of several shareholders (not a majority shareholder of the corporation and is NOT the sole employee) then the USCIS can approve the case. It appears to be the case that any person who has a small company, where the H-1B beneficiary is one of the main officers or shareholders of the company, will have a very difficult time obtaining an H-1B approval. This was one of the new rules that came out of the Neufeld Memo. In addition, our office continues to find that prospective H-1B nonimmigrant petitioners which have approval of an H-1B already (that fit in this scenario) are likely to have difficulty extending the H-1B nonimmigrant professional and specialty occupation visa on a going forward basis.

The “Independent Contractor” Scenario:

The beneficiary is a sales representative. The prospective H-1B nonimmigrant petitioner is a company that designs and manufactures skis. The beneficiary sells these skis for the petitioner and works on commission. The beneficiary also sells skis for other companies that design and manufacture skis that are independent of the petitioner. The petitioner does not claim the beneficiary as an employee for tax purposes. The petitioner does not control when, where, or how the beneficiary sells its or any other manufacturer’s products. The petitioner does not set the work schedule of the beneficiary and does not conduct performance reviews of the beneficiary.

In the past, the USCIS has stated that H-1B nonimmigrants must be employees, which means that they must be paid using a W-2 (and not a 1099). The Neufeld Memo solidifies this long-standing rule and provides a basis for a denial of an H-1B where an H-1B visa holder is treated as an “Independent Contractor”.

The “Third-Party Placement/ “Job-Shop”" Scenario:

The prospective H-1B nonimmigrant petitioner is a computer consulting company. The petitioner has contracts with numerous outside companies in which it supplies these companies with employees to fulfill specific staffing needs. The specific positions are not outlined in the contract between the petitioner and the third-party company but are staffed on an as-needed basis. The beneficiary is a computer analyst. The beneficiary has been assigned to work for the third-party company to fill a core position to maintain the third-party company’s payroll. Once placed at the client company, the beneficiary reports to a manager who works for the third-party company. The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company. The petitioner does not control how the beneficiary will complete daily tasks, and no propriety information of the petitioner is used by the beneficiary to complete any work assignments. The beneficiary’s end-product, the payroll, is not in any way related to the petitioner’s line of business, which is computer consulting. The beneficiary’s progress reviews are completed by the client’ company, not the petitioner.

This scenario eliminates personnel or consulting agency placements for the H-1B nonimmigrant visa category. All placement firms that now use the H-1B visas to place workers at third-party companies whereby the H-1B petitioner’s role is basically relegated to payroll will no longer be able to utilize H-1B visas. The only type of H-1B visas that will be allowed by personnel agencies will be for in-house positions. One good thing that comes out of the Neufeld Memo is that many current H-1B visas, being used by some Indian Job Shops, who place workers in third-party positions, will be permissible only if the “control” issues are appropriately met. As a result of the Neufeld Memo, shabby and ill prepared job shops will slowly be eliminated as they will be unable to use the H-1B classification. Ultimately, this will leave more H-1B visas available for the “traditional” employers.

As previously pointed out, H-1B nonimmigrant professional and specialty occupation worker employers will have an extra burden proving the Employer-Employee relationship on initial H-1B petitions.
The Neufeld Memo states that the prospective H-1B nonimmigrant petitioner can demonstrate an employer-employee relationship by providing a combination of the following or similar types of evidence:

• A complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested;

• Copy of signed Employment Agreement between the petitioner and beneficiary detailing the terms and conditions of employment;

• Copy of an employment offer letter that clearly describes the nature of the employer-employee relationship and the services to be performed by the beneficiary;

• Copy of relevant portions of valid contracts between the petitioner and a client (in which the petitioner has entered into a business agreement for which the petitioner’s employees will be utilized) that establishes that while the petitioner’s employees are placed at the third-party worksite, the petitioner will continue to have the right to control its employees;

• Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which provide information such as a detailed description of the duties the beneficiary will perform, the qualifications that are required to perform the job duties, salary or wages paid, hours worked, benefits, a brief description of who will supervise the beneficiary and their duties, and any other related evidence;

• Copy of position description or any other documentation that describes the skills required to perform the job offered, the source of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the location where the beneficiary will perform the duties, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner’s discretion over when and how long the beneficiary will work, the method of payment, the petitioner’s role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employee benefits, and the tax treatment of the beneficiary in relation to the petitioner;

• A description of the performance review process; and/or

• Copy of petitioner’s organizational chart, demonstrating beneficiary’s supervisory chain.

Our office continues to suggest to our prospective H-1B nonimmigrant petitioners that employer’s filing initial H-1B petitions submit some or all of this information as part of their petition. If not, the employer should expect an extensive Request For Evidence (”RFE”) document from the government requesting detailed information.

The New Rule For H-1B Extension Petitions.

The new rule for H-1B extension petitions is that a beneficiary must continue to establish that a valid employer-employee relationship exists. The prospective H-1B nonimmigrant petitioner can do so by providing evidence that the petitioner continues to have the right to control the work of the beneficiary, as described above. The prospective H-1B nonimmigrant petitioner may also include a combination of the following or similar evidence to document that it maintained a valid employer-employee relationship with the beneficiary throughout the initial H-1B status approval period:

• Copies of the beneficiary’s pay records (leave and earnings statements, and pay stubs, etc.) for the period of the previously approved H-1B status;

• Copies of the beneficiary’s payroll summaries and/or Form W-2s, evidencing wages paid to the beneficiary during the period of previously approved H-1B status;

• Copy of Time Sheets during the period of previously approved H-1B status;

• Copy of prior years’ work schedules;

• Documentary examples of work product created or produced by the beneficiary for the past H-1B validity period, (i.e., copies of: business plans, reports, presentations, evaluations, recommendations, critical reviews, promotional materials, designs, blueprints, newspaper articles, web-site text, news copy, photographs of prototypes, etc.). Note: The materials must clearly substantiate the author and date created;

• Copy of dated performance review(s); and/or

• Copy of any employment history records, including but not limited to, documentation showing date of hire, dates of job changes, i.e. promotions, demotions, transfers, layoffs, and pay changes with effective dates.

If USCIS determines, while adjudicating the extension petition, that the prospective H-1B nonimmigrant petitioner failed to maintain a valid employer-employee relationship with the beneficiary throughout the initial approval period, or violated any other terms of its prior H-1B petition, the extension petition may be denied unless there is a compelling reason to approve the new petition (e.g., the petitioner is able to demonstrate that it did not meet all the terms and conditions through no fault of his own.)

Until the promulgation of the Neufeld Memo, H-1B extensions have been granted almost automatically as long as the prospective H-1B nonimmigrant petitioner stated that the beneficiary would be performing the same work as previously petitioned for. The Neufeld Memo exponentially increased the number of RFE’s and denials in extension cases.

Our office is convinced that these new and harsh rules are a result of the USCIS site visits and numerous violations USCIS has seen as a result of the site visits. The state of the U.S. economy certainly has not helped the situation any either. USCIS will no longer permit employers to flaunt the rules and “business as usual” will no longer be an acceptable mode. We continue to see an uptick in ICE, CIS, and DOL compliance issues. We continue to warn our employer clients about the government scrutiny in many areas where there may be perceive abuse of the U.S. immigration and nationality laws.

Mr. John Morton announced a supplement to a previous “prosecutorial discretion” memorandum from Immigration and Customs Enforcement (ICE) that helps to guide immigration law enforcement officials with regard to the ability for the to exercise independent decisions about important immigration initiatives. The important focus of this new memorandum is: (1) that discretion can be exercised by certain designated officials independently; and (2) that the memorandum takes into account DREAM Act eligible persons

One of ICE’s central responsibilities is to enforce the nation’s civil immigration laws in coordination with U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS). ICE, however, has limited resources to remove those illegally in the United States. ICE must prioritize the use of its enforcement personnel, detention space, and removal assets to ensure that the aliens it removes represent, as much as reasonably possible, the agency’s enforcement priorities, namely the promotion of national security, border security, public safety, and the integrity of the immigration system. These priorities are outlined in the ICE Civil Immigration Enforcement Priorities memorandum of March 2,2011, which this memorandum the attached memorandum is intended to support.

To read the memorandum, please see the link at:

http://www.jdsupra.com/post/documentViewer.aspx?fid=f36c5a91-4913-4f5a-92e1-3ab7ba72db4a

For more information about the memorandum and its application, please feel free to e-mail to us at info@visaserve.com.

You will note the delay in the issuance of our Middle of the Month E-zine.
We did so because David H. Nachman, Esq. was attending the National
American Immigration Lawyer’s Association (”AILA”) Meeting in San Diego,
California. The AILA Meeting is an annual gathering of Immigration Lawyers
and Government Officials from throughout the U.S. At this meeting each
year we are given the opportunity to speak with the Government Officials
that process visas, green cards, advisory opinions, prevailing wage
determinations, removal proceedings, etc. This year, as a newly elected
Board member, Mr. Nachman attended as the Vice Chair of the State of New
Jersey AILA Chapter.

There were a great deal of concerns about visa processing shared by AILA
members with Alejandro Mayorkis, the USCIS Director. Mr. Mayorkis
addressed issues such as the issuance of RFEs, the possibility of speeding
the processing of EB-5 green card cases and the onerous legal standard in
the EB-1 context (Kazarian v. U.S.). Most important is that, all in all,
Mr. Mayorkis (a lawyer himself) reflected a willingness to deal with these
issues in a fairly rapid and balanced manner. Mr. Mayorkis also afforded
the membership a glimpse into the future by stating that USCIS plans for
implementing online profile system would be targeted for December 2011. He
indicated that online profile system will be “kicked-off” with the I-539.

John Morton, the Director of ICE spoke about the improved removals
process. In his presentation he pointed out that his mother is still a
lawful permanent resident and that he was not born in the U.S. Mr. Morton
reminded the attendees at the Conference that his regime brought an online
detainee location system that allows lawyers to find their clients in
detention facilities throughout the U.S. Further, Mr. Morton told the
attendees about a new memorandum, issued last Friday, that further hons
the legal standards for the use of “prosecutorial discretion” by Trial
Attorneys, ICE Officials, Immigration Judges and other Immigration and
Nationality Officials. This new memorandum signifies a huge movement by
ICE to further clarify the use of discretion by Law Enforcement Officials
in secured communities programs and in connection with withholding of
removal and immigration enforcement in general.

For more information about other new developments in the immigration and
nationality arena, please feel free to contact us at info@visaserve.com.

TO SIGN-UP FOR A FREE SUBSCRIPTION OF THE VISASERVE NEWSLETTER, PLEASE EMAIL TO INFO@VISASERVE.COM OR VISIT OUR WEBSITE AT WWW.VISASERVE.COM.
.

U.S. Department of Justice
Executive Office for Immigration Review
Office of Management Programs
5107 Leesburg Pike, Suite 1902 Falls Church, Virginia 22041

June 3, 2011

Federal Agencies Combat Immigration Services Scams
DHS, DOJ and FTC Collaborate with State and Local Partners in Unprecedented Effort

WASHINGTON—The U.S. government will unveil a national initiative to combat immigration services scams on June 9 at 1 p.m. The Departments of Homeland Security (DHS) and Justice (DOJ) and the Federal Trade Commission (FTC) are leading this historic effort.

DHS’s U.S. Citizenship and Immigration Services (USCIS), the lead agency responsible for administering the U.S. legal immigration system, will announce the initiative while hosting events in seven cities around the country as well as the national launch in Washington, D.C.
The unauthorized practice of immigration law is an exploitative practice that endangers the integrity of our immigration system and victimizes members of the immigrant community. Understanding the gravity of this deceptive practice, federal, state and local partners have come together to combat immigration services scams on all fronts. The initiative is set upon three pillars: enforcement, education, and continued collaboration. Each agency plays a critical role to ensure the success of this national effort.

This initiative exemplifies how government and community can work together to effectively address a serious problem.

WHO: Alejandro Mayorkas, Director, USCIS, DHS John Morton, Assistant Secretary, U.S. Immigration and Customs Enforcement, DHS Tony West, Assistant Attorney General for the Civil Division, DOJ Edith Ramirez, Commissioner, FTC Juan Osuna, Director, Executive Office for Immigration Review, DOJ

WHEN: Thursday, June 9, 2011, 1 p.m. EDT

WHERE: U.S. Citizenship and Immigration Services Tomich Center 111 Massachusetts Avenue, NW Washington, D.C.

CONTACTS: Lauren Alder Reid Counsel, Office of Legislative and Public Affairs 703-305-0289; PAO.EOIR@usdoj.gov

NOTES: For planning purposes, media attending are requested to RSVP to OCOMM.MediaDivision@dhs.gov by close of business June 8, 2011.

- EOIR -

CBP Reminds Travelers about Requirements for Admission into U.S. and I-94 Permit Process.

(Tuesday, May 24, 2011)

San Diego — U.S. Customs and Border Protection (CBP) officials are reminding foreign travelers and Mexican border crossing card (or “laser visa”) holders about requirements to enter the United States, how to obtain an I-94 permit, and when an I-94 permit is required in time for the busy summer travel season.

Under U.S. immigration law, an applicant for admission into the U.S. as a temporary visitor for business or pleasure must prove to a CBP officer that their projected stay in the U.S. will be temporary.

Unless otherwise exempted, each foreign traveler admitted into the United States is issued an I-94 permit (arrival/departure record), as evidence of the terms of their admission.

Mexican citizens entering the country through the southern land border with a border crossing card (“laser visa”) are exempted from the requirement for an I-94 permit unless they are intending to remain in the U.S. for more than 30-days and/or will travel more than 25 miles from the border. Applicants who present a border crossing card (or laser visa) are not eligible to work in the United States.

Those applicants requiring an I-94 permit must demonstrate that they are financially solvent and have sufficiently strong ties to their country of origin, including a home abroad they do not intend to abandon.

“Ties” are the various aspects of a person’s life that bind him or her to his or her country or residence. Some examples of ways to document these ties can be pay stubs for a person’s employment/income, a house or apartment mortgage or rental receipt, bank account records, utility bills, etc.

It is not possible to specify the documents applicants for admission should carry, since each applicant’s circumstances vary greatly. Applicants should carry with them whatever documents they think demonstrate their individual circumstances.

All traveling family members need to be present during the I-94 application process.

The I-94 permit, which costs $6, allows visitors to travel further than 25 miles from the border and remain in the U.S. for more than 30 days.

By U.S. law, a foreign traveler must posses his or her entry documents, and if required, the

I-94 permit, with them at all times while in the United States.

In addition, at checkpoints, U.S. Border Patrol agents check foreign travelers for entry documents and the I-94 permit. Travelers not in possession of their entry documents and an I-94 permit may have their visa cancelled and be deported from the United States.

For more information about the CBP form for an I-94 permit, please visit the CBP Web site.

(Filling Out Arrival-Departure Record, CBP Form I-94, for Nonimmigrant Visitors with a Visa for the U.S. )

(Entering the U.S. – Documents required for Foreign Nationals (International Travelers)

U.S. Customs and Border Protection is the unified border agency within the Department of Homeland Security charged with the management, control and protection of our nation’s borders at and between the official ports of entry. CBP is charged with keeping terrorists and terrorist weapons out of the country while enforcing hundreds of U.S. laws.

Contact For This News Release is:

Jacqueline Wasiluk
CBP Public Affairs San Diego
Phone: (619) 744-5245

Technology and the Future of the U.S. Economy.

Posted by Aneesh Chopra on May 16, 2011 at 02:29 PM EDT

Last week, President Obama called for a national conversation on how to fix our broken immigration system so it works for the 21st Century economy. On Thursday, I joined 25 entrepreneurs — drawn from the local business community and attendees of the inspiring Big Omaha conference — in Omaha, NE, to engage in such a discussion. Though many in the room hadn’t known each other, we quickly shared personal stories of hope and frustration with the current immigration system.

Given the high-tech focus of many of the entrepreneurs in the room, the message I heard was clear — if we are to effectively compete in the global economy, we need access to the very best talent our communities can attract, especially in regions that lack the kind of talent concentration one finds in areas like Silicon Valley or Austin, TX.

I met Nick Hudson, a British-born entrepreneur three times over who described the Omaha community as very welcoming of immigrants, despite the difficulties of navigating our national immigration system.
I met an immigrant entrepreneur whose daughter successfully completed a master’s degree in engineering, precisely the kind of science, technology, engineering and math (STEM) training the President has emphasized as key to our economic future, but who lacked a clear pathway to join our workforce.
To that end, I shared news from Washington that, effective immediately, an expanded pool of STEM graduates qualifies for an additional 17 months of optional practical training, exposing the best and brightest to our economic growth engines.

Best of all, I heard feedback that we might be able to address administratively, including calls for:
clearer, simpler rules to navigate the legal immigration system and clarity on the importance of immigrant entrepreneurs when adjudicating applications.

I want to thank the Omaha Chamber of Commerce and the folks organizing Big Omaha for convening last Thursday’s roundtable, and for the participants who pledged to continue the discussion with their friends and neighbors. I left Omaha with a bit more confidence that we can finally tackle this important component of our economic growth strategy. Please join us in this conversation by hosting a roundtable.

Aneesh Chopra is U.S. Chief Technology Officer

U.S. Department of Justice

-and-

U.S. Department of Education
Civil Rights Division Office for Civil Rights Office of the General Counsel

May 6, 2011

Dear Colleague:
Under Federal law, State and local educational agencies (hereinafter “districts”) are required to provide all children with equal access to public education at the elementary and secondary level. Recently, we have become aware of student enrollment practices that may chill or discourage the participation, or lead to the exclusion, of students based on their or their parents’ or guardians’ actual or perceived citizenship or immigration status. These practices contravene Federal law. Both the United States Department of Justice and the United States Department of Education (Departments) write to remind you of the Federal obligation to provide equal educational opportunities to all children residing within your district and to offer our assistance in ensuring that you comply with the law.
The Departments enforce numerous statutes that prohibit discrimination, including Titles IV and VI of the Civil Rights Act of 1964. Title IV prohibits discrimination on the basis of race, color, or national origin, among other factors, by public elementary and secondary schools. 42 U.S.C. § 2000c-6. Title VI prohibits discrimination by recipients of Federal financial assistance on the basis of race, color, or national origin. 42 U.S.C. § 2000d. Title VI regulations, moreover, prohibit districts from unjustifiably utilizing criteria or methods of administration that have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of a program for individuals of a particular race, color, or national origin. See 28 C.F.R. § 42.104(b)(2) and 34 C.F.R. § 100.3(b)(2).
Additionally, the United States Supreme Court held in the case of Plyler v. Doe, 457 U.S. 202 (1982), that a State may not deny access to a basic public education to any child residing in the State, whether present in the United States legally or otherwise. Denying “innocent children” access to a public education, the Court explained, “imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. . . . By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.” Plyler, 457 U.S. at 223. As Plyler makes clear, the undocumented or non-citizen status of a student (or his or her parent or guardian) is irrelevant to that student’s entitlement to an elementary and secondary public education.

To comply with these Federal civil rights laws, as well as the mandates of the Supreme Court, you must ensure that you do not discriminate on the basis of race, color, or national origin, and that students are not barred from enrolling in public schools at the elementary and secondary level on the basis of their own citizenship or immigration status or that of their parents

Page 2- Dear Colleague Letter

or guardians. Moreover, districts may not request information with the purpose or result of denying access to public schools on the basis of race, color, or national origin. To assist you in meeting these obligations, we provide below some examples of permissible enrollment practices, as well as examples of the types of information that may not be used as a basis for denying a student entrance to school.
In order to ensure that its educational services are enjoyed only by residents of the district, a district may require students or their parents to provide proof of residency within the district. See, e.g., Martinez v. Bynum, 461 U.S. 321, 328 (1983).1 For example, a district may require copies of phone and water bills or lease agreements to establish residency. While a district may restrict attendance to district residents, inquiring into students’ citizenship or immigration status, or that of their parents or guardians would not be relevant to establishing residency within the district.
A school district may require a birth certificate to ensure that a student falls within district-mandated minimum and maximum age requirements; however, a district may not bar a student from enrolling in its schools based on a foreign birth certificate. Moreover, we recognize that districts have Federal obligations, and in some instances State obligations, to report certain data such as the race and ethnicity of their student population. While the Department of Education requires districts to collect and report such information, districts cannot use the acquired data to discriminate against students; nor should a parent’s or guardian’s refusal to respond to a request for this data lead to a denial of his or her child’s enrollment.
Similarly, we are aware that many districts request a student’s social security number at enrollment for use as a student identification number. A district may not deny enrollment to a student if he or she (or his or her parent or guardian) chooses not to provide a social security number. See 5 U.S.C. §552a (note).2 If a district chooses to request a social security number, it shall inform the individual that the disclosure is voluntary, provide the statutory or other basis upon which it is seeking the number, and explain what uses will be made of it. Id. In all instances of information collection and review, it is essential that any request be uniformly applied to all students and not applied in a selective manner to specific groups of students.
As the Supreme Court noted in the landmark case of Brown v. Board of Education, 347 U.S. 483 (1954), “it is doubtful that any child may reasonably be expected to succeed in life if he [or she] is denied the opportunity of an education.” Id. at 493. Both Departments are committed to vigorously enforcing the Federal civil rights laws outlined above and to providing any technical assistance that may be helpful to you so that all students are afforded equal educational opportunities. As immediate steps, you first may wish to review the documents your district requires for school enrollment to ensure that the requested documents do not have a chilling effect on a student’s enrollment in school. Second, in the process of assessing your compliance with the law, you might review State and district level enrollment data. Precipitous drops in the
1 Homeless children and youth often do not have the documents ordinarily required for school enrollment such as proof of residency or birth certificates. A school selected for a homeless child must immediately enroll the homeless child, even if the child or the child’s parent or guardian is unable to produce the records normally required for enrollment. See 42 U.S.C. § 11432(g)(3)(C)(i). 2 Federal law provides for certain limited exceptions to this requirement. See Pub. L. 93-579 § 7(a)(2)(B).

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enrollment of any group of students in a district or school may signal that there are barriers to their attendance that you should further investigate.
Please contact us if you have any questions or if we can provide you with assistance in ensuring that your programs comply with Federal law. You may contact the Department of Justice, Civil Rights Division, Educational Opportunities Section, at (877) 292-3804 or education@usdoj.gov, or the Department of Education Office for Civil Rights (OCR) at (800) 421- 3481 or ocr@ed.gov. You may also visit http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm for the OCR enforcement office that serves your area. For general information about equal access to public education, please visit our websites at http://www.justice.gov/crt/edo and http://www2.ed.gov/about/offices/list/ocr/index.html.

We look forward to working with you. Thank you for your attention to this matter and for taking the necessary steps to ensure that no child is denied a public education.

/s/ Russlynn Ali Assistant Secretary Office for Civil Rights U.S. Department of Education

After a Green Card is Granted

See the following links on this page to find information on the following:

-Renewing a Green Card
-Replacing a Green Card
-Conditional Permanent Residence and Removing Conditions
-International Travel as a Permanent Resident
-Maintaining Permanent Residence
-Rights and Responsibilities of a Permanent Resident
-Voting as a Permanent Resident (The Right to Vote)
-Granted a Green Card by an Immigration Judge

A green card is issued to all permanent residents as proof that they are authorized to live and work in the United States. If you are a permanent resident age 18 or older, you are required to have a valid green card in your possession at all times. Current green cards are valid for 10 years, or 2 years in the case of a conditional resident, and must be renewed before the card expires.

A green card can be used to prove employment eligibility in the United States when completing the Form I-9, Employment Eligibility Verification. It can also be used to apply for a Social Security Card and a state issued driver’s license. A green card is valid for readmission to the United States after a trip abroad if you do not leave for longer than 1 year. If your trip will last longer than 1 year, a reentry permit is needed.

You have certain rights and responsibilities as a permanent resident. This section will give you a general idea of what these are and provide you with some other useful information related to your immigration status.

You may also wish to read Welcome to the United States: A Guide for New Immigrants, a guide (in English and 10 other languages) containing practical information to help immigrants settle into everyday life in the United States, as well as basic civics information that introduces new immigrants to the U.S. system of government (see the links to the right).

Check out: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f1903a4107083210VgnVCM100000082ca60aRCRD&vgnextchannel=f1903a4107083210VgnVCM100000082ca60aRCRD

Last updated: 11/04/2010

U.S. Immigration Services

The U.S. Citizenship and Immigration Services (USCIS) is a government
agency that oversees lawful immigration to the United States. The USCIS
intention is to secure America’s promise as a nation of immigrants by
providing accurate and useful information, granting immigration and
citizenship benefits, promoting an awareness and understanding of
citizenship, and ensuring the integrity of our immigration system.

Some of the Immigration Services they provide are:

* Green Card Permanent Residence
* Green Card Through Family
* Green Card Through a Job
* Green Card Through Refugee or Asylee Status
* Other Ways to Get a Green Card
* After a Green Card is Granted
* Working in the US
* Information for Employers and Employees
* Permanent Workers
* Temporary (Nonimmigrant) Workers
* Temporary Visitors for Business
* Student and Exchange Visitors
* Citizenship
* Citizenship Through Naturalization
* Citizenship Through Parents
* The Naturalization Test
* Family
* Family of U.S. Citizens
* Family of Green Card Holders Permanent Residents
* Family of Refugees & Asylees
* Humanitarian
* Haiti Earthquake Response
* Refugees & Asylum
* Humanitarian Parole
* Battered Spouse, Children, Parents
* Victims of Human Trafficking, Other Crimes
* Special Situations
* Temporary Protected Status
* Adoption
* Before Your Child Immigrates to the United States
* Immigration through Adoption
* Country Information
* After Approval of Orphan and Hague Application
* Visit the US
* Extend My Stay
* Change My Nonimmigrant Status
* Military
* Citizenship for Military Members & Dependents
* Military Help Line

Resource: http://www.uscis.gov/portal/site/uscis