Yes, it is that time of year again! We always hear the accountants moan and groan about the approaching April 15th deadline each year but, you have to listen a bit more closely and you will hear (and see) the U.S. business immigration lawyers and attorneys manifesting their continuing distaste for the April 1st filing date for cap-subject H-1B professional and specialty occupation workers. Well, here we go again . . .

April 1st, 2012 marks the first day when prospective H-1B petitioning employers and prospective H-1B employees will be able to apply to the U.S. Department of Labor (”DOL”) for and Labor Condition Application (”LCA”) and Petition to the U.S. Citizenship and Immigration Services (”CIS”) for H-1B visa petitions for employment in the fiscal 2012-2013 year (”FY 2012″). Our advice to our H-1B employer clients continues to be that they need to think about filing H-1B petitions on (or very close to) April 1st for new and existing employees (usually international students in OPT) who will be eligible for a first-time H-1B visa to begin their employment on or after October 1st, 2012.

By way of background, each Fiscal Year (FY), Congress has mandated an annual cap of 65,000 H-1B visas for “professional and specialty occupation workers” who possess the equivalence of a U.S. Bachelor’s Degree. There are also an additional 20,000 H-1B visas available for individuals who possess the U.S. Master’s Degree or other advanced degrees from U.S. Colleges or Universities.

Some cases are not subject to the cap. It continues to be the case that H-1B visa petitions filed on behalf of current workers who have been counted previously against the H-1B visa cap are not included in the annual cap established by Congress. Additionally, pursuant to the Chile and Singapore Free Trade Agreement, 6,800 H-1B visas are available exclusively to Chile and Singapore Nationals. The Singapore/Chile numbers reduce the total allotment of H-1B visas available each fiscal year to 58,200.

For many years, our office has assisted international students who had to deal with the “cap-gap” issue. We also assist employers with E-Verify applications so that they can offer international students who are working for them in Optional Practical Training (OPT) a 17 month STEM extension.

In 2008 there was a regulation that gave some assistance to international students in the U.S. who applied for H-1B in their OPT period. At that time, a regulation was promulgated that provided “cap-gap” relief for F-1 students with pending H-1B petitions. For example, F-1 student visa holders who received work authorization in Optional Practical Training (OPT) were permitted to extend the authorized period of stay and work authorization as long as they have received approved H-1B visas prior to the expiration of the OPT.

Also, many Science, Technology, Engineering and Mathematics (”STEM”) students continue to use the STEM extension as a way to have the time they need to petition in the appropriate H-1B cycle. However, to get the STEM extensions, the employer needs to be enrolled in E-Verify.

For the last three (3) fiscal years, the H-1B allotment actually lasted for almost eight to nine months. This past year, the H-1B allocation lasted until the end of November. However, in some years past, the H-1B allotment was actually exhausted within three (3) days of the H-1B visas becoming available. This required the CIS to conduct a “lottery” and only one of three visas submitted was accepted for processing by the CIS. Those were scary times for individuals and companies seeking H-1Bs.

It is likely that the demand for H-1B visas this fiscal year may be greater than it was for last year. We keep hearing that “economic recovery” is on the way. For this reason, we continue to advise our H-1B employers to consider filing on April 1st, or as close to April 1st as possible.

Employers Feel the VIBE . . . Look Out For A New Validation Instrument for Business Enterprises (”VIBE”).

CIS announced in its several recent stakeholders meetings that it will continue to use a new web-based tool called the Validation Instrument for Business Enterprises (”VIBE”). The VIBE program is purportedly designed to enhance the speed and accuracy for the adjudication of certain employment-based immigrant and nonimmigrant petitions.

The VIBE Program uses public information and previously accumulated data by third party provides to validate data about the organizations that file petitions for the temporary and permanent employment of foreign national workers in the U.S.

The VIBE Program allows CIS to electronically “ping” databases. One such database is Dun & Bradstreet (”D&B”). The D&B database contains information about the petitioner organization including, but not limited to:

1. Business activities, such as type of business (North American Industry Classification System code), trade payment information and status (active or inactive);

2. Financial standing including sales volume and credit standing;

3. Number of employees including onsite and globally;

4. Relationships with other entities including foreign affiliates;

5. Status, for example, whether it is a single entity, branch, subsidiary or headquarters;

6. Ownership and legal status, such as LLC, partnership or corporation;

7. Company executives;

8. Date of establishment as a business entity; and

9. Current physical address.

The idea is that a CIS adjudicator will consider the information submitted by the H-1B petitioner and also compare that information to the information that they glean from the VIBE database.

Since the VIBE database is not fully populated, it is likely that H-1B petitions will continue to be met with requests for evidence (”RFEs”), when the H-1B petitions are submitted to the CIS. The receipt by an employer of an RFE is likely to cause delays in processing of the H-1B (even when the cases are submitted with premium processing requests.

As an aside, the CIS also announced that it is working on an electronic registration for H-1B employers to attempt to more streamline the process and to avoid the “run on cap-subject H-1Bs” that has occurred in prior years.

The CIS announced a proposed rule that would establish a system which will allow an H-1B employer to submit an electronic registration prior to the submission of the H-1B. The idea is behind the registration is that before April 1st, the CIS will be able to predict how many visas are being demanded by cap subject H-1B employers/employees. The implementation of this system is still in its genesis

Other important issues in the H-1B arena that employers need to know about include: (1) that CIS announced a review of its policy on H-1B cap exemptions for nonprofit entities that are related to or affiliated with institutions of higher education (examples include teaching hospitals that are affiliated with medical schools or organizations affiliated with nonprofit colleges or universities); and (2) that U.S. employers seeking to sponsor foreign nationals on H-1B, H-1B1 (Chile/Singapore), L-1 and O-1A visas must certify to compliance with Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR).

For any additional information about the 2012 “H-1B season” please feel free to contact our offices at info@visaserve.com

The Nachman Phulwani Zimovcak (NPZ) Law Group P.C. is ready to assist you and your staff with your potential H-1B nonimmigrant professional and specialty occupation worker visa petition before the CIS (legacy INS) and with Consular Processing of H-1B visa cases anywhere in the world.

We can also assist you or your family members with any and all of your immigration law needs in the U.S., Canada and with regard to outbound transfers to select foreign countries.

If you should have any questions, please feel free to contact our offices at 201-670-0006 (x100) for David Nachman, Esq., (x124) for Michael Phulwani, Esq., and (x105) for Ludka Zimovcak, Esq.

We also have Canadian Lawyers on our staff to assist you with transfers to Canada and we have an affiliated office in Mumbai, India and a corresponding office in the Netherlands Antilles.

Release Date: January 31, 2012

The President is deeply committed to fixing our broken immigration system so that it meets our 21st century national security and economic needs. As a part of comprehensive immigration reform, the President supports legislative measures that would attract and retain immigrants who create jobs and boost competitiveness here in the U.S., including creating a “Startup Visa,” strengthening the H-1B program, and “stapling” green cards to the diplomas of certain foreign-born graduates in science, technology, engineering, and math (STEM) fields. Together these actions would help attract new businesses and new investment to the U.S. and ensure that the U.S. has the most skilled workforce in the world. In the meantime, the Obama Administration is working to make improvements in the areas where we can make a difference.

As part of these ongoing efforts and in recognition of the one-year anniversary of the White House Startup America Initiative, the Department of Homeland Security today announced a series of administrative reforms which will be completed in the future. These reforms reflect the Administration’s continuing commitment to attracting and retaining highly-skilled immigrants. These efforts are critical to continuing our economic recovery and encouraging job creation.

In last week’s State of the Union, President Obama noted that “Innovation is what America has always been about. Most new jobs are created in start-ups and small businesses.” He also stated in his remarks in El Paso last May, “In recent years, a full 25 percent of high-tech startups in the United States were founded by immigrants, leading to more than 200,000 jobs in America.” Echoing this, the President’s Council on Jobs and Competitiveness stated in its recent report, “Highly skilled immigrants create jobs, they donÕt take jobs.” The initiatives described below will serve to make the United States more attractive to highly-skilled foreign students and workers, thereby improving the competitiveness of U.S. companies in the world market and stimulating U.S. job creation.

Expand eligibility for 17-month extension of optional practical training (OPT) for F-1 international students to include students with a prior degree in Science, Technology, Engineering and Mathematics (STEM).

Presently, an F-1 student may only engage in optional practical training (OPT) for 12 months. F-1 students who graduate in programs of study classified as STEM can obtain a 17-month extension of OPT as part of their F-1 status if the degree they were conferred is included on the DHS list of eligible STEM degree programs. This proposed change would expand eligibility for extension of OPT by including students with a STEM degree that is not the most recent degree the student has received. Furthermore, because of the dynamic nature of STEM related education and training, DHS will continue to review emerging fields for possible inclusion in the list of eligible STEM degree programs.

Allow for additional part-time study for spouses of F-1 students and expand the number of Designated School Officials (DSOs) at schools certified by DHS to enroll international students.

This regulatory reform would allow spouses of F-1 students to enroll in additional academic classes on a part-time basis while their spouse is pursuing full-time studies. Presently, under the current regulation, spouses may only take part-time vocational or recreational classes. Schools would also be given increased flexibility to determine the number of DSOs needed at their institution to meet both the administrative and guidance needs of students.

Provide work authorization for spouses of certain H-1B holders.

This proposed change to the current DHS regulation would allow certain spouses of H-1B visa holders to legally work while their visa holder spouse waits for his or her adjustment of status application to be adjudicated. Specifically, employment will be authorized for H-4 dependent spouses of principal H-1B visa holders who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S. This effort will help retain talented professionals who are valued by U.S. employers and who seek to contribute to our economy.

Allow outstanding professors and researchers to present a broader scope of evidence of academic achievement.

This proposed change to the current DHS regulation would increase the types of evidence that employers can submit to demonstrate that a professor or researcher is among the very best in their field. Presently, applicants for the employment-based immigrant visa category of “outstanding professors and researchers” are limited to specific types of evidence listed by regulation. This would allow “comparable evidence” beyond the specifically articulated regulatory list. This change will harmonize the evidentiary standard for this category with the other exceptional ability immigrant visa categories.

Harmonize rules to allow E-3 visa holders from Australia and H-1B1 visa holders from Singapore and Chile to continue working with their current employer for up to 240 days while their petitions for extension of status are pending.

This proposed regulation would treat E-3 and H-1B1 visa holders the same as other employment-based H-1B and L-1 visa holders by allowing them to continue employment with their current employer for up to 240 days from the expiration of their authorized period of stay, if a petition to extend their status has been timely filed.

Launch Entrepreneurs in Residence initiative

On February 22, 2012, USCIS will launch its Entrepreneurs in Residence initiative with an Information Summit in Silicon Valley, CA, that will bring together high-level representatives from the entrepreneurial community, academia, and federal government agencies to discuss how to maximize current immigration laws’ potential to attract foreign entrepreneurial talent. The Entrepreneurs in Residence initiative builds upon DHS’s August announcement of efforts to promote startup enterprises and spur job creation. The Information Summit will focus on ensuring that immigration pathways for foreign entrepreneurs are clear and consistent, and better reflect today’s business realities. The Summit will include a special recognition of outstanding contributions made by immigrant entrepreneurs to our nation’s economic growth and prosperity. The input gathered at the summit will inform the work of the Entrepreneurs in Residence tactical team, which will bring business experts in-house to work alongside USCIS staff for a period of approximately 90 days. Following the summit, the tactical team will convene in Washington, DC to begin its work. To learn more about the summit, please visit Entrepreneurs in Residence Information Summit.

This page was last reviewed/modified on January 31, 2012.

By David H. Nachman

The January 6, 2012, DHS Announcement about Planned Changes to Processing for Unlawful Presence Waivers – Frequently Asked Questions

What was announced on January 6?

On January 6 DHS announced, in a notice to be published in the Federal Register on January 9 that it will be issuing new regulations for how unlawful presence waivers will be processed for certain immediate relatives who are filing immigrant visa applications abroad. Specifically, the new procedure will allow
these individuals to file for a provisional unlawful presence waiver and await
adjudication while in the U.S. If approved, they will still have to depart the U.S. to undergo visa processing and an interview at a U.S. consulate abroad. To receive a provisional waiver, they will still need to show that a lengthy bar from the U.S. would cause their U.S. citizen spouse or parent “extreme hardship.”

What is the current process and why is the change necessary?

Currently, many relatives of U.S. citizens and lawful permanent residents face unnecessary and dangerous bureaucratic hurdles when they apply for lawful permanent residence (“green card”). In order to be granted permanent residence, these applicants
are required to travel to a U.S. consulate in their home country to be interviewed and wait for the visa to be processed. But departure from the U.S. triggers a 3- or 10-year bar to re-entry for many applicants—specifically those who have been unlawfully present in the
U.S. for more than 180 days.

Individuals subject to this re-entry bar may apply for a waiver (using DHS Form I-601;see 8 U.S.C. 1182(a)(9)(B)(v)) so that they do not have to face years of separation from their family. To qualify, they must demonstrate that their U.S citizen or permanent
resident spouse or parent would experience “extreme hardship” if the waiver is not granted. But under the current process, the individual can only apply for the waiver in the home country, after having had an initial interview at the consulate. The decision on the waiver, which is made by USCIS even though the family member is abroad, often takes weeks, months or even years to be completed. Meanwhile, families are separated,
and the spouses and children of U.S. citizens and lawful permanent residents are forced to endure potentially dangerous situations in the home country until the waiver is granted
and they can return to the U.S. as lawful permanent residents.

Immigration law provides that U.S. citizens and lawful permanent residents can apply for “green cards” for their foreign-born spouses and children. But the lengthy delays and risks in the current waiver procedure discourage many family members from completing
the process of legal immigration. Family members have been assaulted or killed while waiting for waivers to be reviewed.

What will the new process be?

The new procedure will allow certain immediate relatives—spouses, children and parents of adult of U.S. citizens—to apply for waivers of the unlawful presence bars while remaining in the U.S. If the individual is found eligible, USCIS will grant a provisional waiver. He or she will still have to depart the U.S. and visit a U.S. consulate abroad to apply for an immigrant visa. During the immigrant visa interview, the consular officer
will make the finding of inadmissibility based on unlawful presence and apply the provisional waiver. If other grounds of inadmissibility are found, the individual would need to submit another waiver application, if eligible, while abroad. In many cases, the provisional waiver will reduce the wait period abroad and the separation from the
applicant’s family by several months or years.

Individuals will still need to meet the extreme hardship standard established in existing law to obtain a waiver. The January 6 notice states that USCIS does not intend to modify the standard.

Who will be able to use the new process?

As announced in the January 6 notice, the new regulation will change the application process only for immediate relatives whose U.S. citizen spouse or parent would suffer extreme hardship if the bar is not waived.

Who is left out of the new process?

According to the January 6 notice, the new process will not apply to family members of lawful permanent resident petitioners. It will also not include immediate relatives if their qualifying relative for the hardship waiver is not a U.S. citizen spouse or parent. These
individuals will still need to apply under the existing procedure (departing the country first and applying for the waiver while abroad). There is no valid reason not to apply the same procedure to these individuals whose spouses and children face the same bureaucratic delays, obstacles and dangers when required to wait abroad for their waiver
adjudications.

The new procedure will apply only to individuals who are subject to the 3- and 10-year bars for unlawful presence. Individuals who are subject to other grounds of inadmissibility are not affected under the new process and will still have to depart the U.S. before applying for any waiver.

When will the new regulations and process be implemented?

The new provisional waiver procedure has not yet taken effect. The notice issued on January 6 announces the government’s intent to issue a proposed regulation at a future date. Next, DHS will issue a Notice of Proposed Rulemaking (NPRM) that will include a
proposed regulation governing the waiver process and will invite public comment. The notice states that the new waiver process will not be implemented until a final rule is issued and the change becomes effective.

What should current and prospective waiver applicants do at this time?

The January 6 announcement has not changed anything in the current waiver procedure.

The notice discourages the filing of applications for provisional waivers and states that such requests will be rejected. The new procedure will not take effect until a final regulation is issued.

Once the new procedure takes effect, individuals with pending applications for unlawful presence waivers will not qualify under the new procedure.

What is the cost for applying for a waiver under the new procedure?

The January 6 announcement does not mention a change in the application fee for filing a waiver application (Form I-601). The current fee is $585.

How will the new procedure improve government efficiency?

Under the current procedure, waiver applications are filed by individuals who have departed the U.S. and are applying at U.S. consulates abroad. However, those waiver applications are not adjudicated by the U.S. consulate. Instead, they are forwarded to USCIS. Wait times for processing waivers can be months or years. Processing these applications in the U.S. will save government resources at the consulates and reduce the costs of shifting cases back and forth between government agencies.

Immigration 11/29/11 Part 1 (David H. Nachman and Michael Phulwani)

http://www.youtube.com/watch?v=UbTZV_9WNKg

Immigration 11/29/11 Part 2 (David H. Nachman and Michael Phulwani)

http://www.youtube.com/watch?v=-kaXVOR_O8I

Immigration 11/29/11 Part 3 (David H. Nachman and Michael Phulwani)

http://www.youtube.com/watch?v=ZAicU6jAjks

USCIS Redesigns Employment Authorization Document and
Certificate of Citizenship to Enhance Security and Combat Fraud

State-of-the-art technology will deter counterfeiting, obstruct tampering, and facilitate quick and accurate authentication

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas today announced the launch of an enhanced Employment Authorization Document (EAD) and a redesigned Certificate of Citizenship (Form N-560) with new features to strengthen security and deter fraud.

As part of USCIS’s ongoing efforts to enhance the integrity of the immigration system, the state-of-the-art technology incorporated into the new documents will deter counterfeiting, obstruct tampering, and facilitate quick and accurate authentication. USCIS began issuing the new EADs today and will begin using the redesigned certificates on Oct. 30. The agency anticipates that more than 1 million people will receive the new documents over the next year.

“These enhanced documents are more secure than ever,” said Director Mayorkas. “They advance our efforts to safeguard against fraud and protect the integrity of the immigration system.”

The new features of the EAD will better equip workers, employers and law enforcement officials to recognize the card as definitive proof of authorization to work in the United States.

USCIS worked closely with the Immigration and Customs Enforcement Forensic Document Laboratory to incorporate technology and tactile features in order to deter fraud and facilitate card authentication.

Additionally, USCIS employs a new and more secure printing process for its redesigned Certificate of Citizenship that renders the certificate more tamper-proof.

Although the look and feel of the documents is new, the manner in which an applicant applies for and receives them will not change. USCIS will replace EADs already in circulation as individuals apply for their renewal or replacement. All previously issued EADs remain valid until the expiration date printed on the card. Previously issued Certificates of Citizenship remain valid indefinitely.

These improvements demonstrate USCIS’s ongoing efforts to produce more secure documentation. In 2010, USCIS issued the new Permanent Resident Card, which added security features to the physical card and integrated technology improvements in the card production process. Additionally, USCIS launched the redesigned Certificate of Naturalization (Form N-550) featuring the naturalization candidate’s digitized photo and signature embedded into the document. USCIS will continue to enhance document security features as technology improves.

For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.

- USCIS -

Dear USCIS Stakeholders:

Throughout the past year, USCIS has placed significant focus on advancing one of our immigration system’s foundational goals: promoting America’s economic prosperity. On numerous occasions, we gathered feedback on how to best maximize the potential of current immigration law to create jobs for U.S. workers, and this feedback greatly informed our actions. As a result, we have made significant progress in a number of areas of interest to stakeholders related to employment-based and high-skilled immigration. For example:

Adjudication of Petitions filed by Businesses Requesting L Intracompany Transferees

On October 12, 2011, USCIS conducted a specialized training session for adjudicators on the L-1B classification to reinforce the principles set forth in existing L-1B policy guidance. We will continue this training.

USCIS is revising Request for Evidence (RFE) templates for nonimmigrant employment-based categories, including the L intracompany transferee classification. Our RFE practices continue to be an area of intense review and reform.

On August 18, 2011, the USCIS Administrative Appeals Office (AAO) launched a new initiative to seek stakeholder input through the submission of amicus curiae briefs. The first request sought amicus briefs relating to the denial of an I-140 petition (Kazarian vs. USCIS). The AAO plans to request amicus briefs on a case related to the L-1B visa classification next.

USCIS will in the next week make available a new bundled filing option for businesses filing for multiple L intracompany transferees.
EB-5 Immigrant Investor Program

In May 2011, USCIS issued a proposal to streamline and enhance the EB-5 program, and we have since implemented the first of the proposed enhancements: direct access for EB-5 Regional Center applicants to reach adjudicators quickly. We have also retained business analysts to support our adjudicators and are in the process of selecting full-time economists to bolster our expertise. In addition, we have retained an outside consultant to reengineer our business process from beginning to end.

Industry-Specific Enhancements

In August 2011, USCIS announced a series of policy, operational, and outreach efforts to spur economic growth and job creation. Among other things, we clarified our policies to reflect the availability of the H-1B visa and the EB-2 national interest waiver to foreign-born entrepreneurs, and we are providing the needed training complement.

To build on these efforts, we announced last week a new Entrepreneurs in Residence initiative, which will help us harness the expertise of industry leaders to inform our policy development and our training, so that we better understand and more ably address the realities and needs of the business community we serve.

We learn from and value your feedback. Earlier this year, USCIS proposed a rule that would establish an advance registration process for U.S. employers seeking to file H-1B petitions for foreign workers in specialty occupations. Although we intended the process to be more efficient and cost-effective for businesses, the thoughtful public comments we received indicated that this system would in fact create many challenges for businesses. We have therefore decided to postpone issuing a final rule and instead assess how the proposed rule’s objectives can be achieved within the framework of our ongoing Transformation initiative.

A year ago, USCIS initiated an internal system change that altered where we send receipt notices (I-797). Last month, when the change went into effect, we heard from stakeholders that this change had an unintended negative external impact. We scheduled a stakeholder meeting, gained an understanding of the impact, and have decided to return to our previous practice of sending the original notice to the attorney or accredited representative’s address listed on the Form G-28. A copy will be sent to the address provided by the applicant or petitioner in the applicable form. This change will take effect in approximately six weeks due to the need to re-program our system. We appreciate the feedback you provided.

I look forward to continued collaboration with you on matters of importance to our nation’s economic prosperity and those whom we serve.

Thank you.

Alejandro N. Mayorkas
Director
U.S. Citizenship and Immigration Services
Department of Homeland Security

April 2011 (Ridgewood, N.J.) – David H. Nachman, Esq., the Managing Attorney at Nachman & Associates, P.C., has been selected for inclusion in New Jersey Super Lawyers 2011, an exclusive list of the top five percent of the state’s legal practitioners. Mr. Nachman is the Managing Attorney of the Firm which focuses its practice on Immigration & Nationality in the U.S. and Canada. Mr. Nachman has extensive experience counseling clients regarding all types of business immigration law issues, and guides corporations in numerous industries about their policies and programs to facilitate hiring and transferring of foreign nationals and international personnel, using the full array of non-immigrant and immigrant visa categories.

Mr. Nachman is an Adjunct Professor of Paralegal Studies at Fairleigh Dickinson University and he serves on the Advisory Board at Bergen Community College. With offices in New York, New Jersey and Canada, the Firm’s immigration law staff provides visas and green cards and work permits for highly-skilled foreign national workers who are seeking to enter the U.S. from countries all over the world. Nachman & Associates, P.C. has several Canadian Attorneys on their staff who assist with transfers of foreign nationals to Canada.

The full list of New Jersey Super Lawyers appears in the April 2011 issue of New Jersey Monthly Magazine. Nominations for New Jersey Super Lawyers are submitted by those with first-hand knowledge of the top lawyers within the state. Each lawyer selected for inclusion is evaluated on 12 indicators of peer recognition and professional achievement, combined with third-party research.

The staff at the immigration law offices at Nachman & Associates, P.C. 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, the Nachman & Associates, P.C. staff of business immigration law professionals have a personal and unique approach to processing visas and for dealing with our foreign national clientele. The VISASERVE 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 at info@visaserve.com or call 201-670-0006 (x100).

Release Date: October 12, 2011

Rayburn House Office Building

Introduction

Chairman Gallegly, Ranking Member Lofgren, and distinguished members of the Subcommittee:

On behalf of Secretary Napolitano, thank you for the opportunity to address you today regarding U.S. Immigration and Customs Enforcement (ICE). As the investigative arm of the Department of Homeland Security (DHS), ICE’s primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration. The men and women of ICE do this every day by carrying out ICE’s role in (1) protecting the borders through smart and effective immigration enforcement; (2) securing and managing our borders against illicit trade, travel, and finance; and (3) preventing terrorism and enhancing national security.

We are effectively managing our resources by carrying out our responsibilities in a smart, fair, and efficient manner. In the last two and a half years, we have made unprecedented strides across our agency, and as a result, we have made communities across America, and Americans around the world, safer and more secure. I welcome this opportunity today to share with you our successes and our opportunities as we move into a new year.

Protecting the Borders Through Smart and Effective Immigration Enforcement

There has been much discussion in recent months about the Administration’s approach to immigration enforcement. The Administration’s policies have been alternatively described as either an unprecedented effort to deport record numbers of individuals arbitrarily, or as an administrative amnesty that ignores the Government’s responsibility to the enforce immigration laws. Both characterizations are inaccurate. The Administration’s policy guidance governing immigration enforcement makes this clear, as does its enforcement record. ICE has worked to develop guidance to help focus ICE’s enforcement efforts on our highest priorities, including: aliens who pose dangers to national security or risks to public safety; recent illegal entrants; repeat violators of immigration law; and aliens who are fugitives from justice or otherwise obstruct immigration controls.

This approach has yielded results. DHS has produced record immigration enforcement. In FY 2010, ICE removed a record 195,772 criminal aliens, more than any other year in history, and 81,000 more criminal removals than in FY 2008. Nearly 50 percent of the aliens we removed in FY 2010 had been convicted of criminal offenses. Removing these individuals helps to promote public safety in communities across the country. We expect that this trend will continue, and that this fiscal year, we will again remove a record number of criminal aliens from the country.

Of those we removed in 2010 who lacked criminal convictions, more than two thirds were either recent border entrants or repeat immigration law violators. As such, and unlike ever before, an overwhelming majority of the aliens removed fell into one of ICE’s enforcement priorities. In fact, the number of individuals removed who could not definitively be placed into at least one of the priority categories — for example, those who were not immigration fugitives, repeat immigration law violators, or removed at the border — dropped from more than 19 percent in 2008 to less than 10 percent in 2010. We expect to see similar results in FY 2011 as well.

Prosecutorial Discretion

DHS must ensure that our immigration enforcement resources are focused on the removal of those who constitute our highest priorities, specifically individuals who pose threats to public safety such as criminal aliens and national security threats, as well as repeat immigration law violators, recent border entrants, and fugitives from justice or those who otherwise obstruct immigration controls. There are a significant number of cases currently pending before U.S. Department of Justice (DOJ) immigration courts, many of these will take years to resolve. Tens of thousands more are pending review in federal courts. Each of these cases costs taxpayers thousands of dollars, and those involving low priority individuals divert resources and attention from high priority cases. Due to the fiscal limitations, the expenditure of significant resources on cases that fall outside of DHS enforcement priorities hinders our public safety mission by consuming litigation resources and diverting resources away from higher-priority individuals.

Prosecutorial discretion has always been exercised in order to prioritize the use of immigration enforcement resources. The Immigration and Naturalization Service under the Department of Justice and later ICE under DHS has used discretion on a case-by-case basis where we feel it has been appropriate and responsible to do so, and where it enhances our ability to meet our priorities. In keeping with this practice, DHS and DOJ have recently established an interagency working group to implement existing guidance regarding the appropriate use of prosecutorial discretion in a manner consistent with our enforcement priorities.

This interagency working group will work to determine that immigration judges, the Board of Immigration Appeals, and the federal courts are focused on adjudicating high priority cases more swiftly by relieving pressure on the judicial system by identifying very low priority cases and on a case-by-case basis, setting those cases aside. This will allow for additional DHS resources to be focused on the identification and removal of those individuals who pose the greatest threats. In part, this process will accelerate the removal of high priority aliens from the country. At no point will any individuals be granted any form of “amnesty.” There will be no reduction in the overall levels of enforcement and removals – only a more effective way of marshaling our resources towards our highest priority cases and thus, increasing the number of criminal aliens and repeat immigration violators removed from the country.

Likewise, it will enhance ICE’s historic partnership with U.S. Customs and Border Protection (CBP). Over the past few years, ICE has worked closely with CBP to increase efforts to prevent illicit trade and travel across our borders. This partnership includes the dedication of ICE officers, agents, and detention facilities to the apprehension and detention of recent border crossers. The record-setting results achieved along the Southwest Border are attributable, in part, to this unprecedented partnership. Notably, this process will allow DHS to free up additional resources that will be dedicated to the Southwest border.
Secure Communities

As I have stated, the Administration has established the identification and removal of public safety and national security threats as a top priority. To aid in this effort, we have expanded the use of the Secure Communities program, which identifies individuals arrested and booked into jail for a violation of a state or local criminal offense, convicted criminals, gang members, and other enforcement priorities in our jails and prisons.

ICE has acknowledged that it faced challenges in rolling out the Secure Communities program initially, including in explaining how the program works and which entities are required to participate. Nevertheless, Secure Communities has proven to be one of our best tools to help focus our immigration enforcement resources on our highest enforcement priorities, including convicted criminals and egregious immigration law violators, and ICE remains fully committed to the program.

Since its inception on October 27, 2008, through September 18, 2011, more than 97,600 aliens convicted of crimes, including more than 35,500 convicted of aggravated felony offenses were removed from the United States after identification through Secure Communities. These removals significantly contributed to a 71 percent increase in the overall percentage of convicted criminals removed by ICE, with 81,000 more criminal alien removals in FY 2010 than in FY 2008. As a result of the increased focus on criminals, removals of non-criminals fell by 23 percent during the same time period. In addition, over 25,000 aliens who were previously removed and reentered or who failed to leave the United States following the issuance of a final order of removal, deportation or exclusion, who are also DHS enforcement priorities, were removed through Secure Communities over the past two years.

Earlier this year, as part of the Administration’s continued commitment to smart, effective immigration enforcement, ICE announced key improvements to the Secure Communities program.

They included:

1. Establishing a task force, comprised of law enforcement, state and local government officials, prosecutors, and immigration advocates, as part of the Homeland Security Advisory Council to develop recommendations on how to improve Secure Communities so that it can better focus on identifying and removing individuals who pose true public safety threats. ICE is currently reviewing recommendations submitted by the Task Force;

2. Developing a new policy to protect victims of and witnesses to crimes, to ensure that the crimes continue to be reported and prosecuted;

3. Revising the detainer form that ICE sends to local jurisdictions to emphasize longstanding guidance that state and local entities are not to detain an individual for more than 48 hours pursuant to the detainer;

4. Working with the DHS Office for Civil Rights and Civil Liberties (CRCL) on regular and in-depth statistical monitoring of the program;

5. Creating a series of training sessions in collaboration with CRCL designed primarily for use by front line state and local law enforcement agency personnel to address civil rights and civil liberties issues that may be relevant when Secure Communities is activated for a jurisdiction; and

6. Agreeing to a protocol for CRCL to take the lead in investigating complaints of alleged civil rights violations for jurisdictions where Secure Communities is activated.

We are confident these changes will aid in our continued efforts to strengthen and improve Secure Communities. We will continue to expand Secure Communities to additional jurisdictions, and we look forward to nationwide deployment by the end of 2013. We will also continue to examine the program’s effectiveness and invest in additional training and education efforts.

Worksite Enforcement

As part of its immigration enforcement efforts, ICE has been pursuing a comprehensive worksite enforcement strategy to deter unlawful employment and drive a culture of compliance with the nation’s immigration-related employment laws. The Administration is focused on conducting criminal investigations and prosecuting employers who exploit or abuse their employees and those who have a history of knowingly and repeatedly employing an illegal workforce.

Our strategy has been designed to: (1) penalize employers who hire illegal workers; (2) deter employers who are tempted to hire illegal workers; and (3) encourage all employers to take advantage of easy to use and well-crafted compliance tools.

The success of our approach is evident in the statistics. As of September 17, 2011, ICE has initiated 3,015 investigations, which is 154 percent more than in all of FY 2008. In FY 2010, ICE arrested 196 employers for criminal worksite-related immigration violations, surpassing the previous high of 135 arrests in FY 2008. So far in FY 2011, ICE has also issued a record 2,393 notices of inspection, a more than a 375 percent increase from the number issued in all of FY 2008. This year, ICE has issued 331 final orders totaling $9 million in fines levied on employers compared to 18 final orders issued totaling $675,000 in FY 2008. In addition, FY 2010 worksite investigations resulted in a record $36.6 million in judicial fines, forfeitures, and restitutions.

Enforcing our immigration priorities and obligations is neither simple nor easy, and we are committed to getting it right. We all agree that we need fair, consistent, and enforceable immigration laws that encourage the free flow of commerce while respecting both security and the rights of individuals. We are committed to making changes within the immigration system that make sense and are achievable. While we are committed to being smart and tough with our enforcement, it remains the Administration’s position that Congress needs to take up immigration reform. We look forward to working with Congress to this end.

Securing and Managing our Borders Against Illicit Trade, Travel, and Finance

Southwest Border Initiative

In March 2009, the Administration launched the Southwest Border Initiative to bring unprecedented focus and intensity to Southwest border security, coupled with a reinvigorated, smart and effective approach to enforcing immigration laws in the interior of our country. In support of this initiative, ICE has targeted considerable resources at the Southwest border to address the activities associated with transnational criminal organizations, including the interdiction of contraband such as firearms, ammunition, bulk cash currency, stolen vehicles, human smuggling, and the detection of tunnels and other border crime at and between ports of entry along the Southwest border. Under this initiative, ICE has doubled the personnel assigned to Border Enforcement Security Task Forces (BESTs); increased the number of intelligence analysts along the Southwest border focused on cartel violence; and quintupled deployments of Border Liaison Officers to work with their Mexican counterparts. At the end of the third quarter of FY 2011, ICE deployed special agents to high risk locations, including Tijuana and Monterey, Mexico. ICE so far this year has initiated 9,748 investigations along the Southwest border, and is on pace to surpass FY 2010 totals.

Additionally, with the aid of $80 million provided in the 2010 Southwest Border supplemental appropriations, ICE has deployed 241 special agents, investigative support personnel, and intelligence analysts to the border. Indeed, ICE now has one quarter of all its special agents assigned to the Southwest border, more agents and officers along the border than ever before.

Border Enforcement and Security Task Forces (BESTs)

In FY 2011, ICE also continued to bolster border security through the efforts of its BESTs, which bring together federal, state, local, territorial, tribal, and foreign law enforcement. Thus far in FY 2011, ICE-led BESTs have made 1,565 criminal arrests, 814 administrative arrests, and obtained 757 indictments; seized 200,278 pounds of illegal drugs and $11.4 million in U.S. currency and monetary instruments. Some 733 defendants have been convicted thus far in FY 2011.

Illicit Finance Investigations

One of the most effective methods for dismantling transnational criminal organizations is to attack the criminal proceeds that fund their operations. In coordination with public and private partners, ICE works to seize illicit proceeds derived from and used for criminal activities, and to shut down the mechanisms used to retain and transfer these funds by countering bulk cash smuggling within the U.S. financial, trade, and transportation sectors targeted by criminal networks.

ICE’s bulk cash smuggling investigations are coordinated through the ICE-led Bulk Cash Smuggling Center, from which we provide real-time operational and tactical support to federal, state, and local officers involved in bulk cash smuggling seizures. In 2010, ICE, in partnership with the Drug Enforcement Administration, utilized the El Paso Intelligence Center (EPIC) to tackle bulk cash smuggling. This partnership ensures improved collaboration across the federal government for bulk cash smuggling investigations 24 hours a day, 7 days a week.

International Partners and Cooperation

ICE works closely with our international partners to disrupt and dismantle transnational criminal organizations. As part of these efforts, ICE currently maintains nine vetted units worldwide. These units are composed of highly trained host country counterparts that have the authority to investigate and enforce violations of law in their respective country. Because ICE officials working overseas do not possess law enforcement or investigative authority in host countries, the use of vetted units enables ICE to dismantle, disrupt, and prosecute transnational criminal organizations while respecting the sovereignty of the host country.

In FY 2010, Transnational Criminal Investigative Units (TCIUs) in Mexico, Colombia and Ecuador played a central role in Operation Pacific Rim–an ICE-led investigation that dismantled one of the most powerful and sophisticated bulk cash and drug smuggling drug trafficking organizations in the world. As a result of international cooperation, this operation resulted in ten guilty pleas, 21 indictments, and 22 arrests along with seizures totaling over $174 million in currency, 3.8 tons of cocaine, $37 million in criminal forfeitures, and $179 million in property. During 2011, two more TCIUs became operational and ICE plans to expand additional TCIUs in FY 2012.

Preventing Terrorism and Enhancing National Security

As the largest investigative arm of DHS, ICE enhances national and border security by interrupting the illicit flow of money, merchandise, and contraband that supports terrorist and criminal organizations. As of the end of the third quarter of FY 2011, ICE has seized $363 million in currency, 1.4 million pounds of narcotics and other dangerous drugs, and $272 million worth of contraband and other illegal merchandise. In addition, ICE agents and officers responded to 1.1 million inquiries and calls for assistance from other federal, state, and local law enforcement agencies through ICE’s Law Enforcement Support Center (LESC).

ICE leads efforts in national security investigations through interconnected programs that prevent criminals and terrorists from using our nation’s immigration system to gain entry to the United States. This includes: investigating terrorist organizations and their actors; preventing criminal and terrorists from obtaining U.S. visas overseas; preventing criminal and terrorist organizations from acquiring and trafficking weapons and sensitive technology; and identifying and removing war criminals and human rights abusers from the United States, while protecting children from exploitation.

Joint Terrorism Task Force (JTTF)

The FBI-led JTTFs are a part of a joint counterterrorism partnership between U.S. law enforcement agencies. Since 2007, ICE agents assigned to JTTFs have initiated 5,564 cases, resulting in approximately 1,119 criminal arrests and 2,010 administrative arrests. In FY 2011, ICE special agents in Louisville, Kentucky, assisted in a JTTF investigation which ultimately led to the arrest of Waad Ramadan Alwan and Mohanad Shareef Hammadi. Both of these Iraqi refugees were indicted on federal terrorism charges, as well as the murder of a U.S. person engaged in official duties. They both had allegedly conspired to have money and weapons shipped to Iraq to support the activities of al-Qaeda. In FY 2012, ICE will continue to collaborate with our law enforcement colleagues through the FBI-led JTTFs.

Visa Security Program

The Visa Security Program (VSP) deploys ICE special agents to diplomatic posts worldwide to conduct visa security activities and identify potential terrorists or criminal threats before they reach the United States. By working closely with the Department of State, this program enhances national security by providing an additional level of review of persons of special interest before they enter the United States. ICE conducts visa security operations at 19 high-risk visa adjudication posts in 15 countries.

Counter Proliferation Investigations

ICE leads the U.S. Government’s efforts to prevent foreign adversaries from illegally obtaining U.S. military products and sensitive technology, including weapons of mass destruction and their components. In FY 2011, ICE initiated 1,780 new investigations into illicit procurement activities, made 583 criminal arrests, obtained 419 indictments, achieved 262 convictions, and made 2,332 seizures valued at $18.9 million.

In 2010, ICE, in coordination with the World Customs Organization (WCO), launched “Project Global Shield,” an unprecedented multilateral law enforcement effort aimed at combating the illicit cross-border diversion and trafficking of precursor chemicals used by terrorist and other criminal organizations to manufacture improvised explosive devices by monitoring their cross-border movements. On March 22, 2011, Global Shield was endorsed by the WCO Enforcement Committee and converted from a pilot project to a permanent program. It currently has 83 participating countries and has led to 19 arrests, 24 seizures, and chemical seizures totaling over 33 metric tons.
Human Trafficking and Human Smuggling Investigations

ICE works with our interagency and international partners to extend our borders and disrupt and dismantle international human smuggling and trafficking networks and organizations along their entire routes. ICE holds the directorship of the Human Smuggling and Trafficking Center (HSTC), an interagency information and intelligence fusion center and clearinghouse. The HSTC was established to facilitate the broad dissemination of anti-smuggling and trafficking information and help coordinate the US Governments efforts against human smuggling, human trafficking and criminal facilitation of terrorist mobility.

In 2010, ICE’s Office of Intelligence established its Human Trafficking Unit to develop intelligence and identify potential human trafficking investigative targets. In the coming fiscal year, ICE plans to expand coordination with the Departments of Justice and Labor to initiate additional investigations of human trafficking violations. Sadly, a significant number of human trafficking victims are children. ICE takes these cases very seriously. ICE’s “Operation Predator” targets and investigates human smugglers and traffickers of minors, as well as child pornographers, child sex tourists and facilitators, criminal aliens convicted of offenses against minors, and those deported for child exploitation offenses who have returned illegally. Since its launch in 2003, Operation Predator has resulted in the arrest of over 13,594 sexual predators, of which 10,975 were non-citizens.

In FY 2012, ICE will expand operations of our Child Exploitation Section by establishing the Child Exploitation Center and deploying Child Sex Tourism Traveler Jump Teams to conduct investigations of U.S. citizens traveling in foreign counties for the purpose of exploiting minors. ICE will also continue working to end human trafficking and smuggling alongside the Department’s “Blue Campaign”― a DHS initiative to combat human trafficking through enhanced public awareness, victim assistance programs, and law enforcement training and initiatives.

Conclusion

Thank you so much for the opportunity to share with you the good work of Immigration and Customs Enforcement. I’m proud of the work our ICE teams do each and every day all around the world to help strengthen and secure our homeland; we’re engaging in record-breaking immigration enforcement strategies, and I am confident we will continue to do so. ICE’s broad authority to enforce the nation’s trade, travel, finance, and immigration laws has made American communities safer. On behalf of the men and women of ICE, I thank you again for the opportunity to testify on these efforts. I would now welcome any questions you may have.

This page was last reviewed/modified on October 12, 2011.

Immigration and criminal law are two completely separate areas of law that are occasionally intertwined. Unfortunately for many immigrants, the potential immigration implications of a criminal conviction are often overlooked. A seemingly minor criminal offense can have devastating immigration implications. As a result, it is extremely important to be aware of any immigration implications when pleading to a criminal matter, or facing potential criminal penalties. In these segments, David Nachman, Esq. and Michael Phulwani, Esq. and Mitchell Ignatoff, Esq. discuss some of the immigration implications of a criminal convictions for nonimmigrants, green card holders and naturalization. In some cases, waivers may be available.

Immigration and Nationality Law Part 1 (David H. Nachman, Mitchell Ignatoff, and Michael Phulwani)

http://www.youtube.com/watch?v=un0X3TjghBs

Immigration and Nationality Law Part 2 (David H. Nachman, Mitchell Ignatoff, and Michael Phulwani)

http://www.youtube.com/watch?v=6t8VXkfHx3o

http://www.youtube.com/watch?v=KM58a_JBN4chttp://www.youtube.com/watch?v=KM58a_JBN4c

Immigration and Nationality Law Part 4 (David H. Nachman, Mitchell Ignatoff, and Michael Phulwani)

http://www.youtube.com/watch?v=IfB6Z7bSLu4