Several Democratic senators recently announced a 26-page “framework of concrete bipartisan ideas” for immigration reform, called REPAIR (Real Enforcement with Practical Answers for Immigration Reform). The proposal by Sens. Harry Reid (D-Nev.), Richard Durbin (D-Ill.), Charles Schumer (D-N.Y.), Patrick Leahy (D-Vt.), Dianne Feinstein (D-Cal.), and Robert Menendez (D-N.J.), calls for increasing enforcement, border security, and verification resources and efforts, along with expanded employment measures. Under the proposal, a green card (permanent residence) would be “immediately available” to foreign students with an advanced degree
from a U.S. institution in a field of science, technology, engineering, or mathematics who has an offer of employment from a U.S. employer in a related field. To address the fact that “workers from some countries face unreasonably long backlogs that have no responsiveness to America’s economic needs,” the proposal eliminates the per-country employment immigration caps. Also, the EB-5 program would be made permanent and adapted to increase foreign investment in the U.S.

Among other things, the proposal would create a new “BELIEVE” (Biometric Enrollment, Locally-stored Information, and Electronic Verification of Employment) system and a provisional H-2C visa for nonseasonal, nonagricultural workers. Workers in the H-2C program would be permitted to earn lawful permanent residence if they met “sufficient integration metrics to demonstrate that they have successfully become part of the American economy and society.”
The proposal would amend current law regarding H-1B employer application requirements to: (1) revise wage determination requirements; (2) require Internet posting and description of employment positions; (3) increase U.S. worker displacement protections; (4) apply certain requirements to all H-1B employers rather than just to H-1B dependent employers; (5) prohibit employer advertising that makes a position available only to, or gives priority to, H-1B nonimmigrants; and (6) limit the number of H-1B and L-1 employees that an employer of 50 or more workers in the U.S. may hire. The proposal also would authorize the Department of Labor to investigate applications for fraud, and conduct H-1B compliance audits.

“I say to my Republican colleagues, work with us to fix this broken system, don’t just say no,” Sen. Reid pleaded. Although Senate Democrats called the outline bipartisan, Republicans criticized the proposal. Sens. Lindsey Graham (R-S.C.) and Jon Kyl (R-Ariz.) said in a statement that “Congress should focus on border security first.” Rep. John Boehner (R-Ohio) called the proposal a “cynical ploy to try to engage voters, some segment of voters, to show up in this November’s elections.” House Speaker Nancy Pelosi (D-Cal.) said, “If there is going to be any movement in this regard, it will require presidential leadership.” President Barack Obama was quoted as saying that there may “not be an appetite” to pass immigration reform in Congress this year.

The proposal is available at:

http://media.washingtonpost.com/wp-srv/politics/documents/REPAIRProposal.pdf?sid=ST2010042905051

USCIS To Issue Redesigned Green Card – Questions and Answers

Introduction

U.S. Citizenship and Immigration Services (USCIS) announced today that it has redesigned the Permanent Resident Card—commonly known as the “Green Card”—to incorporate several major new security features. Beginning today, USCIS will issue all Green Cards in the new, more secure format.

Questions and Answers

Q. What is a Permanent Resident Card, or “Green Card”?
A. A Green Card is proof of authorization to live and work in the United States on a permanent basis. It also is evidence of registration in accordance with U.S. immigration laws. Newly issued Green Cards are valid for ten years for lawful permanent residents and two years for conditional residents. The permanent resident must renew his or her card each time it expires.

Q. Why did USCIS redesign the Green Card?

A. The Green Card redesign is the latest advance in USCIS’s ongoing efforts to deter immigration fraud. State-of-the-art technology prevents counterfeiting, obstructs tampering, and facilitates quick and accurate authentication of the card. The enhanced features will better serve law enforcement, employers, and immigrants, all of whom look to the Green Card as definitive proof of authorization to live and work in the United States.

Q. What major improvements has USCIS included in the redesigned Green Card?

A. Secure optical media store biometrics for rapid and reliable identification of the card holder. Holographic images, laser engraved fingerprints, and high resolution micro-images make the card nearly impossible to reproduce. Tighter integration of the card design with personalized elements makes it difficult to alter the card if stolen. Radio Frequency Identification (RFID) capability allows Customs and Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data. Finally, a preprinted return address enables the quick and easy return of a lost card to USCIS.

Q. Is the Permanent Resident Card actually green, as its nickname suggests?

A. After the redesign, the card is now colored green.

Q. Who will receive the redesigned Green Card?

A. Beginning May 11, 2010, USCIS will issue all Green Cards in the new, more secure format. Recipients of the redesigned card will include those newly approved for lawful permanent residency, as well as those who have sought a renewal or replacement card.

Q. What happens to existing Green Cards with the old design?

A. Some existing Green Cards bear an expiration date, and those cards will remain valid until they expire. Holders of those cards will receive the redesigned version when seeking a renewal or replacement.

Other existing Green Cards have no expiration date, and those cards remain valid. USCIS recommends that holders of cards without an expiration date apply to replace their cards with the redesigned version.

The current cost of renewing or replacing a Green Card is $370. Additionally, eligible permanent residents may choose to explore becoming a naturalized U.S. citizen. For more information on eligibility for naturalization, go to www.uscis.gov/citizenship.

Q. How does a lawful permanent resident replace a Green Card, if lost or damaged?

A. A lawful permanent resident may seek a replacement card by filing a Form I-90, Application to Replace Permanent Resident Card. The Form I-90 and instructions are available online at http://www.uscis.gov/forms. If outside the United States, a lawful permanent resident should contact the nearest U.S. consulate, USCIS office, or U.S. port of entry before attempting to file a Form I-90.

Last updated:05/11/2010

Transcript of President Obama’s remarks aboard Air Force One on April 28, 2010:

Q Are you committed to pushing forward on immigration law this year?

THE PRESIDENT: Well, I’ve made calls to Republicans to see if we can get them to join us. This is a difficult issue. It generates a lot of emotions, and the politics are difficult. But I’ve been unwavering in saying what we need to do. I think that I can get a majority of Democrats to support a comprehensive approach. But I need some help on the Republican side. We had that kind of help a couple of years ago. Senator McCain was one of the leaders in that process. I gave him a lot of credit for it, and still do.

And so the question is, can we get some movement on that front? Lindsey Graham has been in serious conversations with Senator Schumer. I appreciate his courage on that. And my hope is, is that we can get a working group that can move this forward so that we’ve got serious legislation that solves the border problem and solves the wide range of issues that we face under immigration reform in a way that can garner the support of the American people.

You notice in the town hall meeting yesterday, those folks aren’t enthusiastic about illegal immigration. But when you lay it out for them, a sensible way of doing it, holding people who’ve broken the law responsible, securing our borders but also recognizing we’re not going to send millions of people back, many of whom have children who might be U.S.citizens, and that there should be a more sensible way of dealing with it — people understand that.

So it’s a matter of political will. Now, look, we’ve gone through a very tough year, and I’ve been working Congress pretty hard. So I know there may not be an appetite immediately to dive into another controversial issue. There’s still work that has to be done on energy. Midterms are coming up. So I don’t want us to do something just for the sake of politics that doesn’t solve the problem. I want us to get together, get the best ideas on both sides, work this through, and when it’s ready to go, let’s move. But I think we need to start a process at least to open up a smarter, better discussion than the one that is raging right now.

Travel Advisory: Delays Due to Icelandic Volcano Eruption (04/17/2010)

If you or someone you know is stranded in the United States because of the airport closures in Europe due to the Icelandic volcano eruption and is about to exceed their authorized stay as a direct result of these closures, there are two avenues for relief:

If the traveler is at the airport and traveling under the Visa Waiver Program (VWP) and unable to depart timely, as a result of airport closures or flight delays/cancellations, travelers should:

1. Contact the U.S. Customs and Border Protection (CBP) office at the airport or;

2. Contact the U.S. Citizenship and Immigration Services (USCIS) office.

Both agencies have provided staff with guidance on the applicable legal authorities under the VWP in circumstances such as these.

If persons are traveling under a visa, they should contact the nearest USCIS office and follow the instructions at the link called “USCIS – Extend My Stay”.

While this link recommends initiating the process 45 days in advance, USCIS is providing guidance on how to handle these cases over this weekend.

Travelers should continue to contact their airline for information about flight schedules, delays and cancellations. If airlines have questions about the situation, they can contact their Regional Carrier Liaison Group (RCLG). The Miami RCLG can be reached at (305) 874-5444.

The right way to mend immigration

By Charles E. Schumer and Lindsey O. Graham

Friday, March 19, 2010

Our immigration system is badly broken. Although our borders have become far more secure in recent years, too many people seeking illegal entry get through. We have no way to track whether the millions who enter the United States on valid visas each year leave when they are supposed to. And employers are burdened by a complicated system for verifying workers’ immigration status.
Last week we met with President Obama to discuss our draft framework for action on immigration. We expressed our belief that America’s security and economic well-being depend on enacting sensible immigration policies.

The answer is simple: Americans overwhelmingly oppose illegal immigration and support legal immigration. Throughout our history, immigrants have contributed to making this country more vibrant and economically dynamic. Once it is clear that in 20 years our nation will not again confront the specter of another 11 million people coming here illegally, Americans will embrace more welcoming immigration policies.
Our plan has four pillars: requiring biometric Social Security cards to ensure that illegal workers cannot get jobs; fulfilling and strengthening our commitments on border security and interior enforcement; creating a process for admitting temporary workers; and implementing a tough but fair path to legalization for those already here.

Besides border security, ending illegal immigration will also require an effective employment verification system that holds employers accountable for hiring illegal workers. A tamper-proof ID system would dramatically decrease illegal immigration, experts have said, and would reduce the government revenue lost when employers and workers here illegally fail to pay taxes.

We would require all U.S. citizens and legal immigrants who want jobs to obtain a high-tech, fraud-proof Social Security card. Each card’s unique biometric identifier would be stored only on the card; no government database would house everyone’s information. The cards would not contain any private information, medical information, nor tracking devices. The card will be a high-tech version of the Social Security card that citizens already have.

Prospective employers would be responsible for swiping the cards through a machine to confirm a person’s identity and immigration status. Employers who refused to swipe the card or who otherwise knowingly hired unauthorized workers would face stiff fines and, for repeat offenses, prison sentences.

We propose a zero-tolerance policy for gang members, smugglers, terrorists and those who commit other felonies after coming here illegally. We would bolster recent efforts to secure our borders by increasing the Border Patrol’s staffing and funding for infrastructure and technology. More personnel would be deployed to the border immediately to fill gaps in apprehension capabilities.

Other steps include expanding domestic enforcement to better apprehend and deport those who commit crimes and completing an entry-exit system that tracks people who enter the United States on legal visas and reports those who overstay their visas to law enforcement databases.

Ending illegal immigration, however, cannot be the sole objective of reform. Developing a rational legal immigration system is essential to ensuring America’s future economic prosperity.

Ensuring economic prosperity requires attracting the world’s best and brightest. Our legislation would award green cards to immigrants who receive a PhD or master’s degree in science, technology, engineering or math from a U.S. university. It makes no sense to educate the world’s future inventors and entrepreneurs and then force them to leave when they are able to contribute to our economy.

Our blueprint also creates a rational system for admitting lower-skilled workers. Our current system prohibits lower-skilled immigrants from coming here to earn money and then returning home. Our framework would facilitate this desired circular migration by allowing employers to hire immigrants if they can show they were unsuccessful in recruiting an American to fill an open position; allowing more lower-skilled immigrants to come here when our economy is creating jobs and fewer in a recession; and permitting workers who have succeeded in the workplace, and contributed to their communities over many years, the chance to earn a green card.

For the 11 million immigrants already in this country illegally, we would provide a tough but fair path forward. They would be required to admit they broke the law and to pay their debt to society by performing community service and paying fines and back taxes. These people would be required to pass background checks and be proficient in English before going to the back of the line of prospective immigrants to earn the opportunity to work toward lawful permanent residence.

The American people deserve more than empty rhetoric and impractical calls for mass deportation. We urge the public and our colleagues to join our bipartisan efforts in enacting these reforms.

Charles E. Schumer is a Democratic senator from New York. Lindsey O. Graham is a Republican senator from South Carolina.

U.S. Citizenship and Immigration Services Launches ‘The Beacon – The Official Blog of USCIS’

WASHINGTON, March 16 – U.S. Citizenship and Immigration Services (USCIS) recently unveiled The Beacon – the agency’s official blog and newest tool that provides immigration-related information and fosters an open dialogue with the public.

The Beacon provides an important resource for information about USCIS as well as a forum through which readers can engage USCIS staff and others who are interested in immigration and naturalization issues. Readers are encouraged to submit their comments, ideas, concerns and constructive criticisms to www.uscis.gov/blog.

USCIS will review all comments prior to posting. Detailed guidance is provided on the blog under the comment policy.

The Beacon can be accessed at www.uscis.gov/blog. For general information on USCIS and its programs, visit www.uscis.gov or call the National Customer Service Center at (800) 375-5283.

SOURCE U.S. Citizenship and Immigration Services

FOR ADDITIONAL INFORMATION ABOUT THE CIS OR IMMIGRATION LAW MATTERS, PLEASE FEEL FREE TO CONTACT US AT:

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 (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.

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

There are three potential “hot spots” for audits and investigations for the government related to the immigration and nationality laws. The first has to do with the documentation that the employer is required to maintain in connection with the H-1B nonimmigrant professional and specialty and occupation worker visa. The second area of potential audit concerns the employer’s obligations under the Immigration Reform and Control Act of 1986 (“IRCA”) [Pub. L. No. 99-603, 100 Stat. 3359] (known to HR Professionals as the “I-9 Process”). The third, and one more recent, area of audit surrounds the new Labor Certification Application Program called “Permanent Electronic Review Management” (“PERM”). Each of the foregoing government programs anticipates compliance through “audit”. Even a rudimentary understanding of the complex documentary requirements for each of these programs can help and employer to avoid potential liability.

First, the U.S. Department of Labor (“DOL”) regulations that govern the maintenance of professional and specialty foreign national worker require an organization to develop and produce certain documents concerning the wages and the working conditions of an H-1B nonimmigrant. These documents are referred to as the Public Access File (“PAF”). The PAF documents are required to be maintained at the H-1B worksite immediately after the employer files the Labor Condition Application (“LCA”) with the DOL. The employer is well-situated to ensure they maintain PAF documents and be sure that they continue to pay the H-1B nonimmigrant the specified wage on the LCA. Under the American Competitiveness and Workplace Improvement Act (“ACWIA”), an H-1B nonimmigrant must be offered the same company benefits as those offered to “similarly situated” non-H-1B employees in the organization.

DOL audits can arise as a result of a complaint by a disgruntled employee or as a result of a randomly conducted investigation. Upon a DOL audit (normally undertaken by the Wage and Hour Division) an employer may be found not to be in compliance with (1) paying the H-1B nonimmigrant the specified wage (which pursuant to the H-1B Reform Act of 2004 became effective on March 8, 2005 must be 100% of the federally mandated prevailing wage); and/or (2) maintaining PAF documents; and/or (3) providing the H-1B nonimmigrant with the same benefits as those provided to all other “similarly situated” non-H-1B employees. Any failure to comply with DOL requirements can result in an employer being liable to pay back wages to an H-1B employee, debarment from the use of the H-1B program and/or other potential civil and/or criminal liabilities. Also, if the employer is a government contractor, the failure to comply may result in the debarment from the government contacts.

A second potential audit area for audit and investigation of an employer concerns employment verification and employer sanction law (referred to as the “Immigration Reform and Control Act of 1986” or “IRCA”). As every HR Professional knows, IRCA is an integral aspect of every hire. Under IRCA, every employer is required to properly verify the eligibility of an employee to work in the U.S. on the Form I-9. The I-9 Form is a deceptively simple document. The I-9 Form is only one page in length but it continues to raise issues about proper preparation and retention.

Since the U.S. Department of Homeland Security’s (“DHS”) absorption of the Legacy-INS, the Immigration and Customs Enforcement Division (“ICE”) has been charged with worksite inspections and audits of I-9 documents. The “good news” for employers is that the number of I-9 inspections has been on the decline. The “bad news” for employers is that ICE Officers are not inclined to be lenient and educate employers about their responsibilities but are more likely to impose sanctions.

Given the present focus on “security” and “identity” in the workplace, it is likely that ICE Officials will be more active in their investigations in the future. ICE is not required to wait for a specific lead. The investigative authorities of the DHS have implemented a “General Administrative Plan” (the “Plan”). The Plan identifies employers from a national database and it targets specific industries that have developed a reputation for hiring unauthorized workers (e.g., restaurant, meat-packing, commercial cleaning, textile and garment). The Plan also provides for “random” audits. For example, due to national security concerns, great efforts continue to be placed on identifying those individuals who have access to the nation’s “critical infrastructures” such as airports, wastewater facilities, and highways.

Finally, the third area of interest for employers from an audit perspective is the new PERM process for Labor Certifications Applications (the “Green Card”). After pending for over two (2) years, in December 2004, the PERM regulations became “Final” and on March 28th, 2005, the old Labor Certification Application process was replaced by PERM. While PERM promises faster green card processing, the application process is much more complex. The DOL seems to be sending a message that it is easier to audit the employer as opposed to processing an Application.

The new PERM process requires an employer to obtain a Prevailing Wage Determination (the “PWD”) from the State Workforce Agency (the “SWA”) (e.g. The NJDOL, Alien Labor Certification Unit) in the State where the position has been offered. The PWD area of the law is constantly evolving. Once the PWD is obtained, an employer must undertake a rigid “recruitment process”. Recruitment consists of placing a job order with the SWA and placing two (2) Sunday advertisements in an appropriate newspaper. The recruitment process needs to be completed within six (6) months of the filing of the PERM Application.

PERM requires meticulous preparation and a thorough understanding of the Regulations. The PERM process is analogous to the administrative process that surrounds the filing of a U.S. tax return. When the return is filed, the filer makes representations, declarations, and attestations about annual income and expenses. The filer does not submit evidence about annual income and expenses. Such information is only provided if the Internal Revenue Service (“IRS”) sends the filer a notice for an audit. The PERM program is similar. A PERM Application is filed by making attestations on the new DOL Form 9089. The Form 9089 is submitted to the DOL. DOL can either certify the Form without receiving documentation, or DOL can send out an audit letter.

The new PERM Regulations state that the DOL can request an audit of any pending Labor Certification Application for cause or in the DOL’s discretion. In the event that a prospective employer is noticed for an audit, the employer will receive an audit letter that lists the documents that will have to be submitted. The audit letter shall set a date that is thirty (30) days from the date of the letter for submission of the additional documents and shall advise the employer that the Labor Certification Application will be denied if the information is not received in a timely manner. If the employer does not respond, the PERM Labor Certification Application will be denied.

It appears clearly to be the case that immigration-related programs that are undertaken by employers may be subject to either directed and/or random government audits from the DHS and/or the DOL. Failure to adequately comply with government regulations can result in penalties. The employer’s familiarity with the intricacies of the auditing and compliance are likely to save a considerable amount of both time and money.

David H. Nachman, Esq. is the Managing Attorney at Nachman & Associates, P.C. with offices located in Ridgewood, New Jersey, New York City and Canada (and having corresponding offices in Ohio, Netherlands Antilles and California). David Nachman received his BS from Georgetown University and his JD from Case Western Reserve University where he also received a Master’s Degree in Business Administration. Nachman & Associates, P.C. provided counsel throughout the U.S. on a full array of immigration law issues. Visit us at www.VISASERVE.com .com.