CENTER FOR IMMIGRATION STUDIES RELEASE: USCIS Starting to Do the Right Thing on H-1B? Some Promising Signs.

By David North, February 24, 2010

Sometimes it is hard to tell the significance of a government document just by reading it.

Sometimes the true impact becomes clear only when the activists speak out. A case in point: the recent USCIS announcement regarding employer-employee relationships in the H-1B program.

When I first read the USCIS document with the eye-glazing title “Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the ‘Employee-Employer Relationship’ in H-1B Petitions,” I was not particularly intrigued. The first question and answer confirmed my eyes’
initial reaction:

“Q: Does this memorandum change any of the requirements to establish eligibility for an H-1B petition?

A: No. …”

But shortly thereafter the H-1B cheerleaders in the immigration bar started reacting.

At first, the reaction was pretty calm. Kate Kalmykov, with the New York and Philadelphia Klasko law firm, blogged:

…If the H-1B worker will be employed at a “job shop”/third-party worksite where they will report to a manager of that third-party company and the petitioner will not retain control over the beneficiary’s [i.e., the H-1B's] work, the petition will be denied.

That, of course, is the point of the exercise; the new guidance continues to make it easy for employers to import H-1Bs to work at their own firms, but raises questions when the petitioning employers farm out their H-1Bs to other firms.

Soon the inspectors working at least two airports got the message from headquarters; apparently sensing a geographical disconnect among the airport used, the location of the petitioner, and the actual jobsite, they denied admission to some arriving H-1Bs. Here’s a report from a clearly upset immigration lawyer, Matthew Morse, that appeared in Immigration
Daily:

In some recent cases US Customs and Border Protection (CBP) inspecting officers have separated H-1B visa holders from other non-immigrants applying for admission into the United States on arriving at a port entry. Several of these H-1B visa holders were denied admission by CBP inspecting officers and placed on an aircraft to be returned to their home countries. Unfortunately, some of these H-1B visa holders were placed in expedited removal by CBP inspecting officers, rather than being permitted to withdraw their applications for admission, which resulted in these individuals potentially being barred from re-entering the United States for a five-year period. Such treatment has been reported at John F Kennedy International Airport, New York and Newark International Airport, New Jersey.

This treatment of H-1B visa holders by CBP inspecting officers may be the result of a memorandum issued on January 8, 2010 by Donald Neufeld of US Citizenship and Immigration Services (USCIS).

Then, on February 18, the USCIS Office of Public Engagement held one of its “collaboration sessions” on the subject in Washington. I was not there, but a friend was, and he told me that Bruce Morrison, the former chair of the House Immigration Subcommittee (D-CT), was the first to speak. He told the gathering that he wrote the H-1B law. He was very concerned that the Neufeld memo would threaten what he, Morrison, called the “staffing model” which he claimed had a long and successful history.

By then, the significance of the USCIS memo was pretty clear.

Frankly, anything that limits the flows of H-1Bs into the U.S. labor market, whether they work directly for the petitioning employer or for someone else, is good news. For whatever reason, it looks like USCIS, on this narrow issue, is moving in the right direction.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Check out the link at:

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

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

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

Speakers for US Customs and Border Protection:

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

Arriving Aliens with Convictions

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

Mandatory Detention for Post-1998 Convictions

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

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

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

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

H-1B Admissions

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

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

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

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

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

Closing of Varick Street Facility

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

I-751 pending

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

Expired Green Cards

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

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

For more information about Business and Family-based immigration law check out our website at http://www.visaserve.com

SEVERAL IMPORTANT IMMIGRATION PROGRAMS EXTENDED:

Obama Signs FY10 DHS Spending Bill; Four Immigration-Related Programs Extended through 2012.

On October 28th, 2009, President Obama signed into law the FY10 Department of Homeland Security Appropriations Bill (P.L.111-83).

The new Law extends the non-minister religious worker (section 568), the “Conrad 30″ (section 568), the EB-5 visa (section 548), and the E-Verify (section 547) programs through September 30, 2012.

The Law also includes statutory authority for CIS to complete the processing of permanent residence applications for surviving spouses and other relatives of immigration sponsors who die during the adjudication process (section 568).

“U.S. Immigration and Customs Enforcement (ICE) has a media initiative to inform the public about the horrors and the prevalence of human trafficking, which is modern-day slavery. As part of ICE’s continued efforts, the agency has unveiled an outdoor public service announcement campaign, “Hidden in Plain Sight,” to draw the American public’s attention to the plight of human-trafficking victims in the United States. The campaign message explains that human trafficking includes those who are sexually exploited or forced to work against their will. Posters, billboards and transit shelter signs were rolled out last month bearing the slogan “Hidden in Plan Sight.” They are displayed in Atlanta, Boston, Dallas, Detroit, Los Angeles, Miami, Philadelphia, Newark, New Orleans, New York, St Paul, San Antonio, San Francisco and Tampa. The campaign’s goal is to raise public awareness about the existence of human trafficking in communities nationwide, and asks mem bers of the public to take action if they encounter possible victims.” ICE, Nov. 2, 2009.

Almost on a daily basis we get calls from our clients about the process for allocating visas. I always tell a humerous anecdote about my discussions with Mr. Charles Oppenheim at the DOS who is the “knower of all things” about visa allocations.

In connection with the notification that all employment-based visas had been allocated for FY2009, Mr. Oppenheim, Chief, Immigrant Control and Reporting Division Visa Services Office, provided the following background explaining how the Department of State allocates visas through its Immigrant Visa Allocation Management System (IVAMS):

USCIS submits requests for visa authorizations if all required case processing has been completed (e.g., interview [if required], all clearances received, etc.). Therefore, once the authorization has been granted the case would be adjusted immediately, and could be forwarded to the “green card” processing facility. If the case is not within the established cut-off date the request goes into our “pending” demand file, which also contains the demand which has been received from our overseas posts. That demand is then used as the basis for the establishment of future cut-off dates.

When a USCIS authorization is made from the “pending” demand file an e-mail message is sent to a single address which each CIS Office has provided to the Immigrant Control and Reporting Division. The first page(s) of the message provides a summary listing of the A-numbers which have been authorized, and the following pages contain an individual authorization page for each A-number. That listing would be the same type as received if the case had been authorized when the USCIS Officer had originally submitted the request. Such authorizations are assumed to have been processed to conclusion during the month of authorization. If not, USCIS must notify VO that the case was not processed, the case record would then be deleted, and the case would be resubmitted to VO once the reasons for the deletion have been resolved.

If the Officer believes that a case should have been authorized, but has not received such notification, the program which is used to submit requests has a feature for checking on the status of individual A-numbers.

The authorizations from the “pending” demand file are sent to a central address to ensure that they are seen by someone should the officer who originally requested the case not be there (e.g., reassigned, on leave, etc.). If authorization is immediately available at the time of request the response would be send to the requesting officer, not the central address.

The United States is a nation of immigrants. We continue to maintain a dominant position among the nations in the world because of the hard work of skilled and unskilled foreign national workers who continue to bring their unique skills and talents. Immigration to the United States provides an opportunity for the exchange of cultures and traditions and allows us to be competitive with the other dominant countries of the world. By favoring highly-skilled workers in the immigration process, the U.S. is able to remain on the cutting-edge of the worldwide brain drain. Highly-skilled professional and specialty occupation workers that come to our shores (researchers, scientists, doctors, engineers, teachers, etc.) continue to build important economic infrastructure that strengthens our tax base and revitalizes our floundering social systems. Restrictive immigration policies should be directed at hardened criminals and pronounced terrorists and those seeking to do harm to our nation. The immigration lawyers on the Visaserve Team at Nachman & Associates, P.C. provide prompt and personal immigration law services to and from the U.S. and “work hard each day to save the world one person at a time”. Visit us on the web at www.visaserve.com or call us at 201-670-0006 (x100).