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.

“ATTENTION, UNDOCUMENTED MALES & IMMIGRANT SERVICING GROUPS! Selective Service does not collect any information which would indicate whether or not you are undocumented. You want to protect yourself for future U.S. citizenship and other government benefits and programs by registering with Selective Service. Do it today. If you are a man ages 18 through 25 and living in the U.S., then you must register with Selective Service. It’s the law. According to law, a man must register with Selective Service within 30 days of his 18th birthday. Selective Service will accept late registrations but not after a man has reached age 26. You may be denied benefits or a job if you have not registered. You can register at any U.S. Post Office and do not need a social security number. When you do obtain a social security number, let Selective Service know. Provide a copy of your new social security number card; being sure to include your complete name, date of birth, Selective Service registration number, and current mailing address; and mail to the Selective Service System, P.O. Box 94636, Palatine, IL 60094-4636. If you have a social security number, you can register online (click here). It’s quick and easy.”

Companies Illegally Provided Fake Immigration Services, Falsely Promising Earthquake Victims Legal Immigration Status

NEW YORK – Attorney General Eric T. Schneiderman today announced that his office has shut down two fraudulent immigration service companies for targeting and defrauding Haitian nationals who were affected by the devastating January 2010 earthquake. The entities defrauded the victims of thousands of dollars by illegally providing immigration services they were not authorized to provide and by misrepresenting a new law that granted Temporary Protected Status (”TPS”) to qualified Haitian nationals.

“These con artists preyed on vulnerable families in the aftermath of Haiti’s devastating earthquake, by misrepresenting the law and providing fake immigration services. Today, these organizations are being held accountable for their fraudulent actions and their brazen disregard for the people they are purporting to help,” said Attorney General Eric T. Schneiderman. “It is unconscionable that these companies defrauded victims of the Haiti earthquake just to make a quick buck. We will continue working aggressively to root out fraud wherever it exists, and that includes bringing those who prey on the immigrant community to justice.”

The entities defrauded the victims of thousands of dollars by illegally providing immigration services they were not authorized to provide. Specifically, these entities and individuals, who are not attorneys or accredited by the federal government, lured Haitian immigrants with the false promise of securing them legal immigration status. Moreover, they charged victims hundreds of dollars without determining whether the customers would have been eligible to obtain the TPS immigration benefit at all or could have obtained a waiver of fees from the federal government.

Under the terms of the agreements, Rincher’s Bookstore a/k/a Rincher Associates, Inc. a/k/a Rincher Associates & Bookstore a/k/a Rincher’s Multi Services, Haitian American Entrepreneur’s Group, LLC a/k/a Delrin Associates, LLC, and Profimax, Inc. and their owners Deslande Seixas-Rincher a/k/a Dislande Rincher, Sharlene Seixas-Rincher and Fred Pinard are required to shut their businesses, are permanently barred from operating a business that provides immigration-related services, and must collectively pay more than $25,000 for their illegal practices. These corporations are required to notify all former and current clients in writing that they are no longer providing any immigration-related services, return client files, and retain all records regarding any complaints.

Additionally, in June 2010, the Attorney General’s Office initiated a lawsuit against Chay Pa Lou Community Center, Inc.; Delegue Tax Consultant, Inc. and Jean Michel. The Court recently issued a preliminary injunction in the case. While the lawsuit is pending, Defendants are barred from, among other things, providing any immigration services or legal advice, from practicing law or holding themselves out to be practicing law, and from destroying or disposing of any records relevant to the case.

Lisa Schreibersdorf, Executive Director of Brooklyn Defender Services, stated: “As we mark the one-year anniversary of the Haitian earthquake, we continue to witness a community that remains extremely vulnerable while attempting to survive the atrocities in Haiti. I commend the Attorney General’s Office for fighting to prevent the most vulnerable of immigrants from being victimized for a second time by shutting down businesses that can further harm a community already in dire need of assistance.”

Kathleen A. Masters, Executive Director of CAMBA Legal Services, stated: “We applaud the Attorney General’s Office for ensuring that fraudulent and predatory entities do not target and take advantage of these particularly vulnerable families who are seeking potentially life-saving immigration relief in the wake of the tragic earthquake in Haiti.”

All New Yorkers should be aware of organizations and not-for-profits providing immigration services for exorbitant fees and without proper accreditation. A list of free and low-cost immigration services that are authorized to provide immigration services can be found through the Board of Immigration Appeals (BIA) at www.usdoj.gov/eoir/statspub/raroster.htm/.

The cases are being handled by Assistant Attorneys General Sandra Abeles and Vilda Vera Mayuga and Assistant Deputy Counselor Elizabeth De León, with the assistance of Investigators John McManus and Angel LaPorte, under the supervision of Chief Counsel for Civil Rights Spencer Freedman.

If you have been a victim of immigration services fraud, please contact the Attorney General’s Immigration Services Fraud Unit Hotline at (866) 390-2992 or visit www.ag.ny.gov

ICE and U.S. Attorney partner to promote human trafficking and forced labor enforcement efforts.

BUFFALO, N.Y. – Human trafficking is a horrific crime in both the United States and around the world. According to U.S. Government estimates, more than 12 million persons globally are subjected to trafficking or exploitive circumstances. The United Nations estimates human trafficking is a multi billion dollar per year criminal enterprise worldwide.

In a concerted effort to promote public awareness of the threat of human trafficking and forced labor, federal law enforcement agencies came together in Buffalo to discuss unified enforcement efforts to attack these criminal organizations who attempt to enslave innocent victims.

The public event was hosted by U.S. Immigration and Customs Enforcement (ICE) and the U.S. Attorney for the Western District of New York at Buffalo State College. The goal of the event was to highlight the issue of human trafficking, increase public awareness of ICE’s mission and enforcement efforts and to enhance the dialogue between ICE and members of the public service associations, universities, and attorneys who provide assistance to immigrant communities in Western New York.

“Around the globe, ICE’s Homeland Security Investigations (HSI) is dedicated to detecting and dismantling criminal organizations that reap enormous profits on the backs of innocent victims forced into virtual slave like conditions,” said Lev Kubiak, special agent in charge of ICE HSI in Buffalo. “ICE partners with local, state and federal law enforcement agencies and community groups here and in foreign countries to bring to justice criminals who exploit people by stealing their basic human rights and freedom. To this end, it is important that the public and those that provide assistance to immigrant communities also fully understand ICE’s mission.”

“If there’s one thing true in the 21st Century, it’s that the world has become a very small place. This is especially true when it comes to immigration-related issues,” said U.S. Attorney Hochul. “In Western New York, we have immigrants from throughout the world right here in our community. Immigration and Customs Enforcement officers, meanwhile, conduct investigations out of the Buffalo office that involve people and countries located throughout the world. In both instances, collaboration among law enforcement, community leaders, non-governmental organizations and university faculty and students are vitally important as we seek to return Western New York to the prominence it once held. For these reasons, I applaud the Buffalo ICE office for a program that was very worthwhile.”

The meeting was attended by law enforcement officials, advocacy groups, and academics along with representatives of U.S. Senator Kristen Gillibrand’s and Congressman Christopher Lee’s offices.

“I appreciate representatives from ICE coming to Buffalo today to discuss the joint enforcement efforts by the agency and the U.S. Attorney for Western New York to combat the growing trend of human trafficking,” said Congressman Chris Lee (NY-26). “Today’s event was an opportunity for the public to learn how ICE is partnering with local officials and organizations to combat this troubling trend, and I appreciate the efforts of ICE and U.S. Attorney Hochul to confront this important issue head-on.”

ICE officials also explained the Department of Homeland Security’s Blue Campaign, a agency wide initiative to combat human trafficking through enhanced public awareness, victim assistance programs, and law enforcement training and initiatives. The campaign encompasses a wide range of programs designed to engage to the American and global public; the Department’s federal, state, local and tribal law enforcement partners; non-profit and non-governmental organizations; and governments around the world.

In addition, ICE officers discussed the agency’s mission and presented information on a number of enforcement and community outreach programs.

Michael T. Phillips, director of the ICE’s Enforcement and Removal Operations (ERO) office in Buffalo also made presentations on the mission of ICE ERO in Western New York. Phillips said, “Today’s event was an effort to further foster an environment of open communication between ICE’s various entities and the NGO and advocate community. All parties involved are best served when we are able to maintain an open dialogue regarding our respective missions.”

“We view this outreach and information session as a unique opportunity to not only learn about the many facets of ICE but to also have access to a vast array of supervisory staff responsible for directing this often time confusing maze of immigration enforcement,” said Joanne Macri, director of Criminal Defense Immigration Project for the New York State Defenders Association. “We wish to express our gratitude to Director Phillips for providing this forum as we look forward to a continuing relationship open communication with the Buffalo SAC and ERO.”

DOJ, DHS and DOL Announce Launch of Human Trafficking Enhanced Enforcement Initiative.

“The Departments of Justice, Homeland Security and Labor announced today the launch of a nationwide Human Trafficking Enhanced Enforcement Initiative designed to streamline federal criminal investigations and prosecutions of human trafficking offenses. As part of the Enhanced Enforcement Initiative, specialized Anti-Trafficking Coordination Teams, known as ACTeams, will be convened in select pilot districts around the country. The ACTeams, comprised of prosecutors and agents from multiple federal enforcement agencies, will implement a strategic action plan to combat identified human trafficking threats. The ACTeams will focus on developing federal criminal human trafficking investigations and prosecutions to vindicate the rights of human trafficking victims, bring traffickers to justice and dismantle human trafficking networks.”

February 1st, 2011.

Immigration Scam Shut Down by FTC

At the request of the Federal Trade Commission, a federal judge has shut down an operation that allegedly posed as the U.S. government, then duped consumers into paying fees ranging from $200 to $2,500 by claiming the fees would cover processing by the United States Citizenship and Immigration Services. The court froze the defendants’ assets and appointed a receiver to take over the business until the case is resolved. The FTC has asked the court to halt the business practices permanently and order the operation to repay its victims.

The real U.S. Citizenship and Immigration Service (USCIS), a division of the Department of Homeland Security, offers advice and counseling to immigrants in the United States and people seeking to immigrate to the United States. USCIS provides application forms for such benefits as green card renewal, work visas, and applications for asylum. The application forms are free but can cost hundreds or thousands of dollars to process.

According to the FTC, defendants Immigration Center and Immigration Forms and Publications, Inc., set up websites that mimic official government sites, and then used the fake sites to steer immigrants to their deceptive telemarketing operation. The websites depicted American eagles, the U.S. flag, and the Statue of Liberty and had URLs such as www.uscis-ins.us and www.usgovernmenthelpline.com. The sites directed consumers to call a toll-free number that an automated voice answered, “Immigration Center.” Consumers were then transferred to a live person who answered, “USCIS or “U.S. Immigration Center,” and identified him or herself as an “agent,” “immigration officer,” or “caseworker.” The sites also offered counseling and application forms. The counseling was done by telemarketers who did not meet legal requirements to provide immigration services, the FTC said.

Adding to the consumers’ confusion, the FTC alleged, the defendants charged fees for application forms that were the same amount as the government processing fees, leading them to believe the fees covered the cost of USCIS processing. Some consumers who applied for the forms were told to send checks by overnight mail to cover the costs. Others paid with checks or money orders on delivery. Consumers ended up paying for applications that were never processed by the USCIS for failure to pay the official processing fee, or, in some cases, they were charged twice, once by the defendants and once by the government after the defendant forwarded their bank account information to USCIS.

The FTC charged the defendants with violating federal law by misrepresenting:

* that they were authorized to provide immigration and naturalization services;
* that they were affiliated with the U.S. government; and
* that the fees paid by consumers would cover all the costs associated with submitting immigration documents to the USCIS.

In addition, two of the defendants were charged with providing the others with the means and instrumentalities to further the illegal scheme.

The correct website of the U.S. Citizenship and Immigration Service is www.uscis.gov.

The defendants named in the case are Immigration Center; Immigration Forms and Publications, Inc; Charles Doucette, individually and doing business as Telestaffing; Immigration Forms and Services and Immigration Form Processing; Deborah Stilson aka Deborah Malmstrom; Alfred Boyce; Thomas Strawbridge; Robin Meredith; Thomas Lawrence; and Elizabeth Meredith.

The Commission vote authorizing staff to file the complaint was 5-0. The complaint was filed in the U.S. District Court for the District of Nevada.

The FTC wishes to acknowledge the invaluable assistance in this matter by the Department of Homeland Security; the U.S. Customs and Immigration Services; Immigration and Customs Enforcement; Office of the Attorney General of Colorado; Office of the Attorney General of Missouri; Office of the Attorney General of Nevada; the Pettis County, Missouri Sheriff’s Office; the Department of Justice and Executive Office for Immigration Review; and the U.S. Postal Inspection Service.

NOTE: The Commission files a complaint when it has “reason to believe” that the law has been or is being violated, and it appears to the Commission that a proceeding is in the public interest. The complaint is not a finding or ruling that the defendant has actually violated the law. The case will be decided by the court.

The Federal Trade Commission works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them. To file a complaint in English or Spanish, visit the FTC’s online Complaint Assistant or call 1-877-FTC-HELP (1-877-382-4357). The FTC enters complaints into Consumer Sentinel, a secure, online database available to more than 1,800 civil and criminal law enforcement agencies in the U.S. and abroad. The FTC’s Web site provides free information on a variety of consumer topics.

MEDIA CONTACT:
Claudia Bourne Farrell
Office of Public Affairs
202-326-2181
STAFF CONTACT:
David Horn
Northwest Region
206-220-4483

Immigration officials, in an effort to deter fraud, will unveil today a new naturalization certificate for people who become U.S. citizens.

The new certificates, used to obtain passports and other legal documents, come after U.S. Citizenship and Immigration Services (USCIS) unveiled a new green card — the ID card for immigrants with permanent residency status — this year that had improved security features to prevent forgery and tampering.

Read the article in USA Today at the following link:

http://www.usatoday.com/news/nation/2010-10-25-citizenship25_ST_N.htm

Our staff of immigration law 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 law 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 info@visaserve.com or you can call toll free to 1-866-599-3625.

The USCIS introduced a 16-minute video on the naturalization process including the eligibility requirements, application process, preliminary steps, interview, English tests and U.S. history and government test (civics).

The video includes two simulated interviews.

Kudos to the USCIS for this important and user-friendly resource.

YOU CAN VIEW THE VIDEO BY PASTING THIS LINK INTO YOUR BROWSER:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=76574bbe6cb97210VgnVCM100000082ca60aRCRD&vgnextchannel=d6369ddf801b3210VgnVCM100000b92ca60aRCRD

Naturalization: Are You Eligible and Should You Apply?

Presented by: Victoria Donoghue, Esq.

Rights of Citizenship

• Ability to petition for the permanent residence of parents, children and spouse with no backlog
• Ability to bestow USC on child born abroad
• USC cannot be placed in removal proceedings
• Right to vote, hold office, and serve on juries
• Right to live abroad indefinitely

Liabilities of Citizenship

• May lose citizenship in native country
• Could highlight a ground for removal
• May lose property owned in home country

Eligibility for NATZ by Application

• Must be LPR
• Must be at least 18 years old
• Must be a resident continuously for 5 years subsequent
to LPR status (3 years if married to USC)
• Must have resided for at least 3 months in the state in which the petition is filed
• Must be physically present in the US for at least ½ of the 5 yrs
• Must reside continuously within the US from the date the application is filed up to the time of admission to CITZ
• Must not be absent from the US for a continuous period of more than one year during the period for which continuous residence is required
• Must be a person of good moral character for 5 yrs
prior to filing
• Must be attached to the principles of the US Constitution
• Must be willing to bear arms for the US
• Must not be otherwise barred (subversive, communist, etc)
• Must be able to satisfy the Civics and English language requirement

Continuity of Residence

• An absence of < 6 months does not break the alien’s continuity of residence for NATZ purposes
• An absence of 6 months or more but < 1 year breaks the continuity of the alien’s residence for NATZ purposes absent a reasonable explanation (like an oversees assignment with a US employer)
• An absence of 1 yr or more automatically breaks the continuity of the alien’s residence for NATZ purposes, unless the alien takes steps prior to the expiration of the yr to preserve the continuity of residence
Avoiding a break in the continuity of residence
• The result of a break in the continuity of the alien’s residence is that the alien must start all over again to accumulate the 5 yrs upon returning to the US
• Ways to avoid a break:
– Return to the US every 6 months or every yr if there is a reasonable explanation for the absence
– Apply for extended absence benefits (N-470) to preserve continuity of residence. Note: Unless the alien is a government employee, he still must be actually physically present in the US for at least ½ of the 5 year period

N-470 Eligibility Requirements

• Alien must be physically present and residing in the US as a LPR for an uninterrupted period of one yr prior to the absence
• Must be employed abroad by the US gov’t, a US research institute, a US corporation or mjty owned subsidiary, or an international organization
• Must request extended absence benefits before the alien has been absent from the US for one year
• The absence must be in furtherance of overseas employment

Reentry Permit

• Alien can also request an I-131 request for a reentry permit along with the N-470
• The purpose of the reentry permit is to maintain lawful permanent residence status. If the client wants to make sure to maintain continuous residence for NATZ purposes, he/she must also file an N-470.

Good Moral Character (GMC)

• An individual must be of good moral character for the requisite 5 yrs (or 3 yrs if married to a USC) prior to filing a NATZ application and up to the time of admission as a USC. This is called the “statutory period.”

People who are NOT of GMC

• Habitual drunkards
• Certain individuals are inadmissible under 212(a)(2)
• One who’s income is derived principally from gambling
• One who has given false testimony to obtain a benefit under the INA
• One who is convicted of an aggravated felony
• One who has committed genocide or torture
• One who has been imprisoned (after a conviction) during the “statutory period” for an aggregated period of 180 days or more
• One who has voted unlawfully or made a false claim to USC

Grounds of Inadmissibility Under INA § 212 (a)(2)

• Conviction or admission to the essential elements of crimes of moral turpitude (CIMT)
• Conviction or admission to the essential elements of controlled substance violations
• Multiple criminal violations
• Trafficking in controlled substance
• Prostitution and commercialized vice
• Smugglers of aliens
• Practicing polygamists

THESE ARE ALSO GROUNDS OF REMOVAL!

What is a CIMT?

• Not defined in the act- no exhaustive list
• Conduct which is inherently base, vile, depraved or contrary to accepted rules of morality
• Felonies and Misdemeanor
• Criminal statute must be examined

Exceptions to CIMT

• Petty Offense
• Juvenile Offenders
• Purely Political Crimes

Nonstatutory/Discretionary GMC Grounds

• Nonsupport of dependents
• Homosexuality- But cannot be only basis for
baring NATZ
• Adultery tending to destroy an existing marriage
• Knowing & willful failure to register with selective service between 18-26 within statutory period
• Drunk driving
• Other bad acts showing poor moral character

Civics & English Language Requirement

• NATZ applicant must demonstrate:
– An elementary level reading, writing and understanding of English
– A knowledge and understanding of the fundamentals of US history & government

Proof of Civics & English Knowledge

• All NATZ applicants must pass an examination. At the examination, the CIS examiner will do 3 things:
– Go over the NATZ application in detail, questioning about any problems such as an arrest
– Gauge the alien’s ability to understand and respond to questions (alien will be asked to write a sentence).
– Test the alien’s knowledge of US gov’t & history through the use of standard questions on the subject
• If the alien does not pass, a second examination will be scheduled within 90 days

Exceptions to English Language Requirement

• Persons over 50 and living in the US for 20 yrs subsequent to becoming a LPR
• Persons over 55 and living in the US for 15 years subsequent to becoming a LPR
• Special consideration in determining the knowledge requirements to persons over 65 with 20 yrs as a LPR (a test of 10 questions in the person’s native language where only 6 need to be correct)
• Physically/developmentally disabled or mentally impaired including:
• Individuals with Alzheimers, Parkenson’s Disease, senile dementia or a related disability

Disability Waivers

• Must establish a physical or developmental disability or mental impairment
• A medical doctor, osteopath, or clinical psychologist “experienced in diagnosing” these disabilities must complete an N-648 to be filed with NATZ application
• Even with a disability waiver the applicant still must meet the moral character, residence, and other NATZ requirements
• However, the oath can be waived if the person is unable to understand or communicate the meaning of it.

Designated Representative

• A representative of a person who is developmentally or physically disabled or suffering from mental impairment can complete the N-400 exam (including the oath) by attesting orally and submitting documentation that the applicant qualifies for NATZ
• Representative may be a legal guardian, surrogate, USC spouse, parent or adult sibling
• An MD, osteopathic doctor, or clinical psychologist must provide an evaluation attesting to the impairment and the ability to take the oath

Redesigned NATZ Exam

• In the past, the NATZ testing process and test content varied in each USCIS district office
• CIS revised the process to ensure uniformity
• CIS began administering the new test in October 2008
• Applicants will still have 3 chances to read & write a sentence. However, the study material will include a civics-based vocabulary list
• Sentences will focus on civics and history instead of broad range of subjects
• Civics questions will be drawn from a new list of questions

Adjudications of N-648

• CIS will look for:
– A complete description of the medical diagnosis
– An explanation of how the disability affects the applicant and prevents him from learning or demonstrating knowledge of English/Civics
– The MD’s conclusion with a focus on the nexus between the disability and the applicant’s ability to learn or demonstrate knowledge of English/Civics
– CIS may request documentation if the interview raises questions about the extent of the disability

CIS MAY NOT SECOND GUESS THE MD

Reasonable Accommodations

• Section 504 of the Rehabilitation Act of 1973 requires the CIS make reasonable accommodations/modifications to make it possible for NATZ applicants to get through the process
• This is the case regardless of whether the applicant has applied for a disability waiver
• Section 504 of the Rehabilitation Act of 1973 requires the CIS make reasonable accommodations/modifications to make it possible for NATZ applicants to get through the process
• This is the case regardless of whether the applicant has applied for a disability waiver

GMC Review

• An individual must be of good moral character for the requisite 5 yrs (or 3 yrs if married to a USC) prior to filing a NATZ application and up to the time of admission as a USC. This is called the “statutory period.”
• However, some criminal activity serves as an absolute bar to NATZ even if in occurred before the statutory period.

Absolute Bars to NATZ

• Aggravated felony convictions that occurred after 11/29/1990 render the person ineligible to establish GMC even when the conviction was before the statutory period
• Convictions for murder, even before 11/29/1990, render the person permanently ineligible to establish GMC

THESE ARE ALSO GROUNDS FOR REMOVAL

Definition of Aggravated Felony

• Murder, rape, or sexual abuse of a minor
• Trafficking in a controlled substance
• Trafficking in firearms or explosive material
• Money laundering
• Crimes of violence w/ an imprisonment term of > 1 yr
• A theft offense w/ an imprisonment term of > 1 yr
• Crimes related to prostitution & child pornography
• Offenses related to national security
• Fraud offenses
• Offenses related to bribery, counterfeiting or forgery
• Perjury

Deportation

• If an individual with a conviction applies for naturalization, and he or she is removable under §237(a) on the basis of that conviction, the NATZ unit may (and usually will) issue a Notice to Appear (NTA), commencing removal proceedings against the individual

ALWAYS MAKE SURE THAT A CLIENT HAS NOT COMMITTED A CRIME SUBJECTING HIM/HER TO DEPORTATION BEFORE FILING A NATZ PETITION

Exceptions to the Normal NATZ

Requirements

• Veterans/Military Service during hostilities
– If a person served in US Armed Forces during hostilities and continues to be in Armed Forces or was honorable discharged- he/she need not be a LPR to naturalize.
– Physical presence and residency requirements inapplicable
– 9/11/2001 to present is a period of hostilities for NATZ purposes
• Veterans/Military Service (not during hostilities)
– If a person served in the Armed Forces for a period aggregating one year (and separated honorably) and if NATZ application is filed during the service or within 6 months after separation, physical presence & residency requirements are inapplicable. No need to be a LPR.
– If person files after 6 months, he/she must be LPR
to naturalize
• Spouses of USC’s- eligible for NATZ 3 yrs after obtaining LPR status (instead of 5)
• Spouses (in LPR status) of USC’s who are assigned abroad by their qualifying US employer (next slide)
are exempt from continuous residence and physical presence requirements. They are permitted to naturalize prior to accompanying their USC spouses abroad
• Must be physically present in US at time of naturalization
• The USC spouse assigned abroad MUST be working for:
– The US government
– An American Research Institute
– A US firm engaged in the development of foreign trade or commerce
– A public international organization that the US is a member of
• Battered Spouses- a victim of domestic abuse perpetrated by a USC spouse is eligible for NATZ after he/she has resided continuously in the US for a period of at least 3 years
• No requirement that the abused spouse be living with the abuser in marital union
• Must have obtained LPR status based on a battered spouse filing, or through AOS or cancellation of removal
• Abusive spouse need not be alive at the time of filing a NATZ petition

Questions?

Please feel free to contact our office if you still have questions:

Victoria_donoghue@visaserve.com
201-670-0006 ext. 101

http://www.visaserve.com

Thank you.

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.