Suit Challenging Employer-Employee/Third-Party Placement Memo (Updated 8/16/10) – On August 13, 2010, the U.S. District Court of the District of Columbia dismissed with prejudice Broadgate, Inc.,et al v. USCIS, a case challenging the January 8, 2010, Neufeld employer-employee/third-party placement memo. The court concluded that the Memorandum does not constitute final agency action subject to judicial review and the notice and comment requirements under the APA. The court concluded that the Memorandum establishes interpretive guidelines for the implementation of 8 C.F.R. § 214.2 and does not bind USCIS adjudicators in their determination of plaintiff’s H-1B visa applications.

As you may be aware, the U.S. immigration authorities are implementing a new form and process for immigrant visa processing online.

Please take a gander at the screen shots presently pending at the OMB by following the link below:

http://www.docstoc.com/docs/49845403/DS-260-screen-shots

Please feel free to contact our law offices with regard to any assistance with visas, green cards, temporary work permits,naturalization and/or citizenship or issues of U.S. and/or Canadian immigration law.

USCIS To Issue Redesigned Green Card – Questions and Answers

Introduction

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

Questions and Answers

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

Q. Why did USCIS redesign the Green Card?

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

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

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

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

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

Q. Who will receive the redesigned Green Card?

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

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

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

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

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

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

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

Last updated:05/11/2010

U.S. Department of Homeland Security (”DHS”), Citizenship and Immigration Services (”CIS”) began to accept H-1B cap petitions for employment for the Fiscal Year 2010-2011. As is always the case, the next several weeks will be highly scrutinized by H-1B employers, H-1B employees and U.S. immigration lawyers. We firmly believe that the H-1B usage will afford a glimpse about the U.S. economy for some months to come.

The CIS will begin to digest and adjudicate H-1B filings. The CIS will report on its website the number of H-1B visas that have been submitted and an analysis will be undertaken to determine what amount of the H-1B cap will have been met during the first several days of filing.

Many of the H-1B cases will have been filed by way of the premium processing procedure available. As in the past, the CIS will in-take cases, count them toward the cap and begin to adjudicate the cases.

As many are aware, if the H-1B quotas for bachelor’s level and advanced-degree cases are not reached within the first several days of submission, the CIS will continue to in-take cases until the quotas have been met.

If CIS reaches the 65,000 for bachelors or equivalent cases or 20,000 for U.S. masters during the first five business days of the H-1B in-take process, then the CIS is required to perform a lottery. The lottery is designed to select H-1B cases to meet the quotas. If the 20,000 quota for U.S. master’s degee filings are not met then the CIS will continue to accept such cases until sufficient numbers are received to exhaust the exemption. If more than 20,000 advanced-degree exemption-eligible cases are received during the initial five days but the standard cap has not been reached, the additional cases over and above the 20,000 are adjudicated as bachelor’s or equivalent cases under the cap.

For more information about H-1B nonimmigrant visa preparation and filing, please visit us on the web at http://www.visaserve.com or you can e-mail us at info@visaserve.com.

We continue to remind our clients and friends of the Firm that some H-1B filings are exempt from the cap. Also, we continue to remind our clients that a detailed analysis should be undertaken with regard to whether or not a potential employee qualifies for the H-1B nonimmigrant visa classification or if that person may be able to qualify for another or a different nonimmigrant visa that would allow him or her to work in the U.S.

DOL SECRETARY SOLIS ANNOUNCES THE DEPARTMENT TO EXERCISE ITS AUTHORITY TO CERTIFY U VISAS.

“On March 15, 2010 Secretary Solis announced that the Department of Labor (“DOL”) will begin exercising its authority to certify applications for U Nonimmigrant Status Visas (”U Visas”).”

So, what is the big fuss, you may ask? Well, if U.S. employers take a close look at the rules and regulations . . . it means that the U.S. Department of Labor has another enforcement tool in its “bag of tricks.”

The DOL can afford U Visa status to any foreign nationals that help the DOL investigate employers who are involved in Wage and Hour Violations and other Workplace Violations.

Employers need to be mindful (more then ever before) that they should carefully follow all of the DOL’s rules and regulations.

CLICK on the link below to read the U Visa Certification Announcement from the DOL:

http://www.dol.gov/opa/media/press/opa/opa20100312-fs.htm

The VISASERVE Team Brings the Best and the Brightest to New Jersey.

Nachman & Associates, P.C. Immigration Lawyers:

New Jersey, just like the United States as a whole, is a global marketplace for ideas, goods and services and even talent. In fact, businesses and entrepreneurs across the Garden State benefit from the migration of highly skilled foreign national workers who are in demand in competing economies around the world. Highly skilled workers allow New Jersey companies to stay competitive by bringing the best and the brightest, add value to America’s economic infrastructure and assure the future stability of U.S. financial markets. Foreign countries, recognizing the value of these workers, often write immigration laws to attract them so additional incentives are needed to bring overseas talent to New Jersey and the United States. In this exclusive interview with COMMERCE, Nachman & Associates’ Managing Attorney David Nachman discusses the value of highly skilled foreign national labor to the economy, the competition for overseas talent and the challenges posed by immigration in the post-9/11 world. The H-1B season is about to begin, why not get up to speed on H-1B nonimmigrant visa issues?

LINK HERE FOR THE FULL STORY: http://www.cianj.org/pages/commerce_magazine/commerce-magazine.php?active_link=magazine

NACHMAN & ASSOCIATES, P.C.
Immigration and Nationality Attorneys
VISASERVE PLAZA
487 Goffle Road
Ridgewood, New Jersey 07450

Phone (201) 670-0006 (x100)

Facsimile (201) 670-0009

WE ALSO HAVE NEW YORK OFFICES LOCATED AT 7 WEST 36TH STREET, 14TH FLOOR, NEW YORK, N.Y. 10018 (NEAR FIFTH AVENUE).

FOR INFORMATION ABOUT OUR OFFICES IN MONTREAL AND TORONTO, CANADA AND OUTBOUND IMMIGRATION OPTIONS TO CANADA PLEASE E-MAIL US AT INFO@VISASERVE.COM.

YOU CAN ALSO VISIT US ON THE WORLD WIDE WEB AT WWW.VISASERVE.COM.

The Citizenship and Immigration Services Ombudsman, established by the Homeland Security Act of 2002, provides independent analysis of problems encountered by individuals and employers interacting with the U.S. Citizenship and Immigration Services, and proposes changes to mitigate those problems.

EXECUTIVE SUMMARY

In August and September 2009, the Ombudsman received complaints concerning H-1B cases with incorrectly denied Labor Condition Applications (LCA/ETA-9035) filed with the U.S. Department of Labor (DOL). LCA processing delays and errors at DOL, when coupled with USCIS’ current
H-1B petition initial filing requirements, are prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions. Untimely H-1B petition filings lead to problems, including: (1) the potential loss of employees’ legal status; (2) business operation disruptions due to the loss of continuity in the employment of key employees; and (3) economic loss to employees in the form of lost wages and costs of travel overseas due to loss of status. USCIS has the authority to mitigate the impact upon these customers.

To mitigate the impact of LCA processing difficulties, the Ombudsman recommends that USCIS:

(1) Reinstate USCIS’ previous practice of temporarily accepting an H-1B petition (Form I-129) supported by proof of timely filing of an LCA application with DOL, and issue a Request for Evidence (RFE) whereby the H-1B petitioner later provides the certified LCA; and

(2) Establish a temporary policy under which USCIS would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly rejected.

BACKGROUND

Pursuant to the Immigration and Nationality Act (INA) § 212(n)(1), USCIS may not approve an
H-1B petition without a supporting certified LCA. However, the INA does not prohibit acceptance of the petition filing without the certified LCA. The applicable regulation,

Citizenship and Immigration Services Ombudsman Recommendation from the CIS Ombudsman to the Director, USCIS
October 23, 2009, Page 2 of 2

8 C.F.R. § 214.2(h)(4)(i)(B) (2008), states that “[b]efore filing a petition for H-1B classification …, the petitioner shall obtain a certification from the Department of Labor that it has filed a [L]abor [C]ondition [A]pplication …” [emphasis added]. Further, the June 12, 2009, revision to the “Instructions for Form I-129” state, in relevant part (see p. 3), that “[t]he petition must be filed by the U.S. employer and must be filed with: 1. Evidence that a [L]abor [C]ondition [A]pplication has been filed with the U.S. Department of Labor …” [emphasis added]. However, USCIS currently requires that petitioners include a certified LCA with their H-1B petition.

Stakeholders have detailed to the Ombudsman errors stemming from the new DOL LCA certification process, iCERT, launched on April 15, 2009.

For example, DOL is denying LCAs based on false FEIN (Federal Employer Identification Number) mismatches with DOL’s database. Both DOL and USCIS indicated to the Ombudsman that cases involving LCA certification problems represent up to seven percent of total iCERT filings from April 15, 2009 through the beginning of August 2009 (approximately 2,900 denials out of approximately 41,700 LCAs submitted). The Ombudsman understands that neither DOL nor USCIS can specify the exact number of incorrect LCA denials.

In 1992, the legacy Immigration and Naturalization Service (INS) responded to LCA processing problems occurring at DOL at that time by accepting H-1B filings accompanied by evidence of an LCA filing, and subsequently issuing an RFE to obtain the later-approved LCA. This approach permitted customers to meet filing requirements, preserve legal status, and avoid employment disruptions until DOL was able to address its underlying LCA processing problems.

ANALYSIS

Despite DOL’s jurisdictional ownership of H-1B-related LCA processing problems, these difficulties extend to USCIS through the agency’s requirement that petition filings include certified LCAs. Any costs to USCIS such as issuing RFEs or temporarily lowering production levels, are outweighed by the burden that incorrect denials have on employers and individuals. USCIS currently has the capacity to make what amounts to a minor processing modification to address a temporary situation.
Given that Form I-129 instructions say a petitioner must provide evidence that an LCA has been filed with DOL, and that USCIS has previously accommodated petitioners in nearly the same circumstances, implementing these recommendations as a temporary solution is warranted.

====================

1 Under 20 C.F.R. § 655.740(a)(1) (2009), DOL allows itself up to seven working days to certify LCAs.

2 A March 5, 1992, memo from INS Assistant Commissioner Lawrence Weinig stated “petitions for H-1B nonimmigrants do not have to be accompanied by an approved [L]abor [C]ondition [A]pplication. Instead, petitions for H-1B nonimmigrants must now be accompanied by a certification from the Secretary of Labor that the petitioner has filed a [L]abor [C]ondition [A]pplication with the Department of Labor …. The certification will be a copy of the original ETA 9035 filed by the petitioner with the Department of Labor with the Department of Labor’s stamp affixed to the form.” The Ombudsman understands that USCIS reaffirmed this approach as recently as 2001.

Seminar in Bangkok, Thailand

Seminar on US Family & Business Immigration and Starting a Business

David Nachman and David Sindell, two well known U.S. attorneys will explain ways to obtain a green card by marriage, opening a restaurant, and general business immigration to the U.S.

Date: Monday, October 5, 2009
Time: 10am-12pm (Private consultations possible after the seminar)

Place: Narai Hotel, Bangkok – 222 Silom Road, Bangrak, Bangkok, 10500 Thailand

Cost: 200 Baht/Person (Pay In Advance)/300 Baht/Person (At Door)

RSVP: Email at bkkseminar@sindelllaw.com (Attn: David Sindell (English)) or call 212-459-3800(Ext.106) or Send an e-mail to info@visaserve.com to register for this event

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