The U.S. Department of State just issued the January 2012 Visa Bulletin, heralding a ten month improvement in priority date cut-offs for Indian and Chinese nationals in the second employment-based visa preference category, more commonly known as the “EB-2″ classification.  While this rapid advancement in visa cut-off dates is truly welcome news, eligible EB-2 visa beneficiaries are well advised to file Adjustment of Status applications without delay, as a surge in visa applications could cause a possible retrogression of the cut-off dates within 2012.

As anyone who remembers the July 2007 “visa gate” fiasco knows, the establishment of visa priority date cut-offs is an inexact science.  In fact, it is essentially impossible to accurately predict when a particular priority date will become “current” because priority date cut-offs are rather elastic; that is, they can move forward, retrogress (move backward), or remain the same. The reason for this is that priority date cut-offs are set each month by the State Department based on a variety of factors, not the least of which is the number of immigrant visas that are being requested by U.S. Citizenship and Immigration Services (USCIS) and U.S. consulates as they adjudicate related applications for Adjustment of Status (USCIS Form I-485) or consular processing of immigrant visas, respectively.  As such, one way to think about this rapid advancement in the EB-2 priority date cut-offs for India and China is that the cut-off dates moved forward so significantly because USCIS has not received or processed enough green card applications to significantly diminish the available supply. As a result, while there currently seems to be a large number of available EB-2 immigrant visas, this could quickly change as demand increases.  That is, as more eligible EB-2 applicants from India and China file their I-485 Application for Adjustment of Status and USCIS adjudicates those cases, immigrant visa numbers will be exhausted.  If the rate at which filings and adjudications occur is faster than expected, the State Department will have to keep the priority date cut-offs static, or perhaps even retrogress them.  On this point, it is important to understand that the primary reason that the cut-off dates moved forward so significantly in the January 2012 Visa Bulletin is that the Department of State wanted to spur increased demand from eligible applicants and USCIS to ensure that all of the available visas are used within the fiscal year.

Under current law, the State Department can only issue a combined maximum of 140,000 employment-based immigrant visas in all of the preference categories each fiscal year.  Moreover, there is “per country” preference limit of 7% of the total.  Although a bill to remove the “per country” caps remains stalled in the U.S. Senate, the existing law requires that once the demand for immigrant visas from persons whose priority dates are now “current” meets or exceeds the supply, the State Department will not be able to again advance the priority date cut-offs until it is confident that a supply of visas for the remainder of the fiscal year remains available. This could again result in visa backlogs.

In October 2011, Charles Oppenheim, Chief of the Visa Control and Reporting Division at the Department of State, noted that while forward movement of the India and China EB-2 priority date cut-offs can be expected in the January 2012 and February 2012 Visa Bulletins, he also cautioned that if there is high demand, he may have to hold or even retrogress the cut-off dates toward the summer of 2012.   On this point, Oppenheim clarified that there is typically a 4-6 month gap between the filing of an I-485 adjustment application and the time when a visa number is actually requested and allocated.  As a result, EB-2 India and China I-485 applications filed in early 2012 will likely be issued visa numbers by the spring or summer of 2012.  If demand during the early part of the year significantly exceeds Oppenheim’s expectations, retrogression may be likely.

In practical terms, this means that it is important for individuals who are eligible to file their green card applications under the January 2012 (and subsequent) Visa Bulletins to do so without delay. Newly eligible visa beneficiaries can file Form I-485 Adjustment of Status (AOS) applications with USCIS as early as January 1.  Moving forward, it will be important to closely monitor each monthly Visa Bulletin with the assumption that EB-2 cut-offs will eventually freeze or retrogress later in the year.  On that count, let’s keep our fingers crossed and hope that we continue to see significant further advancement over the next couple of months.

On November 29, 2011, Brazil’s National Council of Immigration issued a final rule (Regulatory Resolution 96/2011 or “RN-96/11”) regarding the extension of Temporary Visas Item V, based upon local employment contract. The Temporary Type V (VITEM V) is a temporary visa that provides work authorization for foreign nationals who seek professional employment in Brazil.  There are two different categories of the VITEM V work permits: Temporary Work Permits based upon local employment agreements; and Temporary Work Permits with no local employment agreement.  The Temporary Work Permit based upon a local employment agreement is the most common type of work authorization for foreign national professionals who will transfer to Brazil.   The visa is valid for up to two years, which may be renewed once for a maximum of another two years, totaling a maximum of four years of stay under a temporary visa, at the end of which it can be changed to a permanent visa, and requires the expatriate to become a local employee of the Brazilian sponsoring organization.

Prior to this rule change, an extension of a work authorization and stay for VITEM V holders pursuant to local labor agreements required the sponsoring employer to have a local labor agreement for a determined period of time (2 years) in place.   Under the new regulatory scheme, when applying for the extension of stay for foreign nationals holding VITEM V, the sponsoring company will be required to submit a labor agreement for an undetermined period of time.  Other than that, the rules remain the same:  temporary Work Permits based upon local employment agreements can only be renewed once and, thereafter, the employee and Brazilian sponsor would need to seek the change of the temporary visa into a permanent visa to continue the assignment.  If the Brazilian sponsor will not seek a change to permanent visa for the foreign national, another form of temporary work authorization option may be sought only after a 90-day waiting period is observed.

Thus, the practical impact of this change in the VITEM V rules is that employers will need to take into account the additional employer liabilities associated with a labor agreement for undetermined period as they determine whether an extension of stay should be sought for a particular employee. We suggest employers to identify foreign national employees whose assignments in Brazil are expected to extend beyond two years to assess whether they wish to continue the employee’s assignment under a labor agreement for an undetermined period. The key differences between labor agreements of determined and undetermined length are that the former do not require an employer to provide an employee with notice of termination and the later requires notice within a prescribed timeframe on a graduated scale depending upon the length of service and payment of a fine equal to 50% of the employee’s Guaranteed Severance Fund or “FGTS” account balance. 

The FGTS system requires all Brazilian employers to make monthly deposits of 8% of the employee’s monthly remuneration into a blocked bank account opened in the name and on behalf of each employee. In addition to the FGTS monthly deposits, in the event of a termination without cause the employer has to pay a 50% fine calculated over the existing balance in the FGTS account, 40% of which goes to the employee and 10% goes to the government.  Moreover, employees under undetermined period agreements are entitled to additional payments of prorated 13th salary (also called “Christmas Bonus”) and prorated vacation and vacation bonus corresponding to the notice period, whenever there is a termination without cause.  Since the cost for dismissal of such an employee becomes much higher under the unlimited term agreement, employers may consider limiting foreign national assignments to the initial term of two years in some instances.

One other important change that was introduced by RN-96/11 is that the request for extension of a temporary visa and change of a temporary visa into a permanent visa must be submitted at least 90 days prior to the expiry date.  We suggest the analysis be conducted at the beginning of the second year or of the fourth year, as the case may be and, if an extension or a change to a permanent visa will be required, starting the data-collecting process six months prior to the expiry date. 

Both types of VITEM V visas described above have sub-categories, but the most significant ones are in the category of temporary visa with no local employment agreement:  (a) technical assistance; (b) professional workers to work onboard of foreign ships and/or platforms; (c) professional training of an employee of a foreign company at a subsidiary, branch or headquarter of a company of the same economic group; (d) workers onboard of a foreign tourism ship operating in Brazilian jurisdictional waters; (e) artists and sportspeople for a short period; (f) crew members of a foreign fishing ship leased by a Brazilian company; (f) employee of a foreign subsidiary of a Brazilian multinational company to work at the headquarter in Brazil.  Therefore, there are several options for work authorization outside of the Temporary Work Permits based upon local employment agreements scheme.

This change to the VITEM V follows an earlier development that changed the amount of foreign investment required for the permanent visa for managers, directors or administrators with statutory powers to represent a Brazilian company.  To qualify for this type of permanent visa, the company must have made a foreign investment duly registered in the Central Bank of Brazil. The prior investment threshold was US$ 200,000 or US$50,000 plus 10 new job positions for Brazilians within a two-year period.  The new investment threshold is the amount in foreign currency equivalent to R$600,000 or R$150,000 plus 10 new job positions for Brazilians within a two-year period.  These requirements are not applicable to the permanent visa as a result of a change from a temporary visa into a permanent one as described above.

In our Global Immigration Practice Group, we seek to work with local law firms that have expertise in immigration as well as employment and labor matters and share our focus on providing only the highest quality business immigration solutions.  Goel & Anderson works closely with our local counsel in Brazil to monitor updates in the law and to provide you with this important information.  This client alert was co-written by Maria Luisa Soter, Partner with Veirano Advogados in Rio de Janeiro, Brazil, who is responsible for its Corporate Immigration Practice Group and also specialized in Employment Law, and Jill Marie Bussey, head of Goel & Anderson’s Global Immigration Practice Group.

U.S. Citizenship and Immigration Services (USCIS) today announced that it received a sufficient number of petitions to reach the statutory cap for FY 2012 as of November 22, 2011.  USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption as of October 19, 2011.  USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2012 that are received after November 22, 2011. 
USCIS continues to accept cap-exempt petitions, DOD petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2012.

It’s been a tough year for the U.S. Department of Labor’s prevailing wage program. Federal District Court Judge Louis Pollak invalidated two regulatory provisions governing the calculation of wages that employers must pay to foreign H-2B workers. DOL was instructed to promulgate new regulations by December 28, 2010. The Agency thereafter sought to delay the inevitable and requested additional time to publish the new rules. It was given until January 18, 2011.

Instead of publishing a rule with immediate effect, the Agency again put off the inevitable by publishing a rule that applies to wages for work performed close to a year later, on or after January 12, 2012. DOL reasoned that the delay was necessary to “provide employers with sufficient time to plan for their labor needs.” Judge Pollak disagreed, and since June 2011 DOL has been scrambling to reissue some 4,000 H-2B prevailing wage determinations.

Whether justified or not, DOL’s mistake here was to delay the inevitable, and the result has been quite a short-term spike in the workload for the prevailing wage team. With significant resources now needed to deal with the H-2B predicament, it logically became more difficult to issue prevailing wage determinations for PERM labor certification applications, a required step in the PERM process. The Agency’s method for dealing with this new challenge essentially replicates the very same (and very recent) mistake that it made with the H-2B matter and Judge Pollak – delay the inevitable and just put things off.

In a somewhat incomprehensible and perhaps brazen turn of events, DOL abruptly ceased issuing prevailing wage determination for any PERM (and H-1B) case. By doing this, the Agency prevents employers from starting the mandatory test of the U.S. labor market required for a PERM-based green card petition. Put another way, DOL effectively shut down the PERM program on June 15, 2011. While there have been recent reports of a few wage determinations and confirmation by DOL that it has began “limited” processing of PERM prevailing wage requests, the shutdown has lasted close to three months.

Surprisingly, DOL officials openly acknowledged their strategy. One of their earlier messages regarding the situation explained that, “[a]ll Center resources are currently being utilized to comply with [the H-2B] court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC.”

Not only is the Agency guilty of inappropriate procrastination on two counts, it publically admits to shirking its duties under the Administrative Procedures Act. Theodore Roosevelt explains that, “In a moment of decision, the best thing you can do is the right thing to do. The worst thing you can do is nothing.” President Roosevelt might agree that when your decision is to do nothing, you might have some problems, particularly when you are statutorily obligated to do something. The Agency has some problems.

DOL Case Disclosure Data reports 69,169 PERM prevailing wage determinations at the end of the FY 2011 Q3. Simple math suggests that at that rate, approximately 15,000 PERM prevailing wage requests have been filed since June 15, 2011. That’s 15,000 potential mandamus actions against DOL for its admitted cessation of the PERM prevailing wage program. The Agency’s public admission to suspending the prevailing wage program might well serve as a compelling exhibit in such a suit.

Moving forward, DOL might consider omitting the terms “suspension”, “delay” and “extension” from its playbook. They have not served the Agency well in 2011.

USCIS is taking a step in the right direction toward increased consistency and predictability for applicants and petitioners with changes to Request For Evidence (“RFE”) time frames.  A July 7, 2011 interim memo posted for comment proposes to increase the amount of time USCIS officers may provide an applicant or petitioner to respond to a RFE. It also limits adjudicator discretion to reduce the response time from the standard time frames.  The changes would eliminate the tiered RFE response time currently in place.

The standard time frames listed in Appendix 10-9 of the Adjudicators Field Manual (“AFM”) are amended to include:

• A standard time frame of 30 days for Form I-539; and
• A standard time frame of 84 days for all other form types, regardless of whether the request is for initial or additional evidence, or whether the evidence is available in the United States or is obtained from overseas sources.

For RFEs served by mail, response times will be extended 3 days for U.S. mailing and 14 days for international mailing.

Maximum Time Now Standard, Reductions Require Concurrence
Under the new policy, the 12 week RFE response time will be standard. And, adjudicators may reduce these time frames on a case by case base only after supervisory approval and only when circumstances warrant as determined by the adjudicator and the supervisor.  There will be no change in the maximum response period –extensions of time to submit evidence beyond the 12 week limit for RFEs or the 30-day period for a Notice of Intent to Deny (“NOIDs”)  are not permitted.

Current System Inconsistent
Prior to the current system, USCIS rules allowed a standard twelve week response time for RFEs.  Effective June 18, 2007, the agency eliminated this rule and replaced it with the current “flexible” or tiered approach.  However, the current rule has not achieved the agency goal of increased flexibility.

Practically speaking, the rule has been problematic. Despite the goal of flexibility, adjudicators now typically allow only 30 days for responses.  Factoring in a 5 to 7 day USCIS processing time, this leaves the petitioner/beneficiary approximately three weeks to gather requested documentation, prepare and submit the RFE response.

Additionally, response time frames generally are not tailored to the scope of the request. For instance, an RFE requesting one item of evidence and an RFE requesting ten items of evidence may both provide a 30 days response time.  And, immigration practitioners note that there appears to be a lack of uniformity in RFE response times for H-1B and L-1A/Bs between the California and Vermont Service Centers.

The USCIS shift back to a more general time frame reflects the agency’s goal of greater uniformity in policy design and implementation.  According to the agency, this new policy memorandum “seeks to provide greater consistency in the issuance of RFEs by amending the standard timeframes [sic] USCIS will provide for responding to RFEs and by limiting the use of discretion to reduce the response time from the standard timeframes [sic].”  The agency posted this memo (PM-602-0040) on July 13, 2011.  The comment period ends July 27, 2011.

The June 2011 Visa Bulletin reinforces uncertainty, and perhaps disappointment, for Indian and Chinese nationals in the EB-2 classification.  Despite the “extra” visas intended to spill into these categories, the improvement in visa cutoff dates is moderate – ten weeks for China and fifteen for India.

The EB-2 dates have not improved as much as anticipated and might not do so in the near future.  In fact, an unanticipated surge in demand over the next few months could still cause the State Department to slow or stop the availability of EB-2 numbers with short notice (i.e., before the issuance of the next monthly bulletin).  Thus, the re-filed EB-3 to EB-2 case that so many seek has begun to sound a bit less attractive, and there appears to be little hope that the situation will improve anytime soon.

Surely, Congress can improve the visa priority date situation, but given that legislative action seems unlikely in the near future, affected applicants would be wise to consider whether alternative options are possible.

Interestingly, an answer for many may be right under our noses . . . with our own employers (and their lawyers, of course).  Many EB-2 (and EB-3) applicants have been with their employers for years.  They often started their careers with their employer overseas, with their U.S. employment prompted by superior performance and, in many cases, displays of leadership.  Those who actually served their employers overseas in a managerial capacity for at least one year before coming to the U.S. may qualify as certain multinational managers eligible for an EB-1 green card case.

The EB-1 “multinational manager” petition avoids the labor certification process, and with the EB-1 category current, an I-140 Immigrant Visa petition and Adjustment of Status application can be filed at the same time.  This often results in the simultaneous adjudication of the I-140 petition and I-485 application, with a green card often being approved in less than one year.  EB-1 “multinational manager” cases are not without their own challenges though, and success depends on the strength of the record before the USCIS adjudicator.  While overseas, the typical EB-1 multinational manager:

• Supervised and controlled the work of other supervisory, professional, or managerial employees;
• Had the authority to hire and fire or recommend those actions as well as other personnel actions (such as promotion and leave authorization) and;
• Exercised direction over the day-to-day operations of the activity for which the employee had authority.

The EB-2 and EB-3 candidate who anticipates a managerial role with their employer in the U.S. may be well served by harkening back to their overseas employment.  Did you manage other professionals before coming to the U.S.?  Were you involved in hiring and firing decisions?  Did you conduct performance reviews?

If you performed these managerial tasks, think about whether you will be able to provide a breakdown of your managerial duties and an organizational chart that includes the names and educational levels of those you managed.  A successful multinational manager case will also include independent evidence of your ability to make important personnel decisions such as:  performance appraisals prepared by you; leave, vacation or similar requests approved by you, and; any documentation regarding your authority to allocate funds or exercise budgetary discretion over matters/projects.

Until Congress steps in to improve the priority date situation, improvement is elusive, if not improbable.   Einstein aptly noted that, “Politics is a pendulum whose swings between anarchy and tyranny are fueled by perpetually rejuvenated illusions.”  Surely, Congress can improve the situation, but at this point mere hope fuels the monthly rejuvenated illusion that the visa cutoff dates will improve significantly with the next Visa Bulletin.

Frustrated EB-2 and EB-3 candidates still need to take their case to Congress for permanent and sustainable improvement to priority dates.  There is no regulatory provision, however, that prevents them from doing it with an EB-1 petition in the queue.

The U.S. Citizenship and Immigration Services (USCIS) Office of Public Engagement recently hosted a teleconference with stakeholders regarding the evidentiary standards of the O-1 nonimmigrant visa classification. USCIS’ stated goal for the April 28, 2011 conference call was to solicit comments and suggestions from immigration practitioners on how the immigration agency should evaluate evidence that is submitted in support of O-1 visa petitions.

According to an Office of Public Engagement representative, this is an important step in the agency’s long term goal of planning a comprehensive memo offering guidance on evidentiary standards. On this point, USCIS clarified that the memo would address the O-1 visa’s evidentiary standards within the current regulatory framework, as there is no intent to alter the immigration regulations themselves.

While the meeting offered practitioners the opportunity to voice concerns, an open question is whether this and similar forums produce any tangible improvements for customers. Billed as “an opportunity to hear from stakeholders,” the conference may have been useful for USCIS officials, but did not afford participants a platform to discuss and brainstorm with USCIS officials on improvements to the policy memorandum. USCIS routinely responded to comments during the session only by saying that the conference was an opportunity to receive feedback and it would take feedback into account in drafting the new agency policy guidance. Stakeholders may have found the meeting more productive if it involved engagement with officials and a greater opportunity for dialogue versus one way information flow.

To initiate the discussion, USCIS reps first summarized the three types of O-1 visas and standards:

1. “sustained acclaim” in sciences, education, business or athletics (O-1 A)
2. “extraordinary achievement” in the motion picture or television industry (O-1B)
3. “distinction” in the arts (O–1 A).

The teleconference lines were then opened to allow stakeholders to offer their input. Practitioners voiced many concerns about the evaluation of evidence submitted and how the adjudicators are interpreting the regulations, noting — it is important for adjudicators to have flexibility versus bright line rules and “check box” forms. A synopsis of the comments from stakeholders:

1.  Where are they getting this stuff? Some USCIS adjudicators seem to simply make up requirements for the visa that are not required by regulation or law or they pull standards from one category into adjudication of an O-1 visa in another category.

2.  We Have Entered the 21st Century? In many fields, the O-1 visa criteria are easily applied but in other fields, measures of achievement do not fit neatly into the evidence categories. The question arises, to what extent can we utilize comparable evidence in cases such those involving artists whose work cannot be displayed visually or when the best evidence is electronic media in the form of blogs or YouTube video? What about the case of a famous comedian whose measure of success may not conform to the enumerated categories, especially when interpreted narrowly. In those cases, practitioners are forced to rely on comparable evidence.

3.  Never the Twain Shall Meet. How is “field of endeavor” defined? For example, in the field of arts, distinction is defined by “a high level of achievement in the field of the arts” evidenced by a degree of skill and recognition substantially above that ordinarily encountered. Does this mean that a renowned salsa dancer can come to the U.S. only to perform or can they also come to teach salsa? Can a Japanese professional baseball player only come to the U.S. to compete or could they come on an O-1 visa to coach baseball?

4.  All Evidence is Not Created Equal. Adjudicators give less weight to testimonial evidence in the form of support letters than to documentary evidence. Is evidence in one category weighed differently than others?

5.  Compare Apples to Apples and Clowns to Clowns. One factor demonstrating extraordinary ability is evidence that the alien has commanded a high salary in relation to others in the field. On this point, one stakeholder noted that the salary of a petitioner residing outside the U.S. should be compared to salaries of others in the same country or region since salaries for the same profession vary widely. The average salary for an electrical engineer with a master’s degree may be US$14,000 in India but US$99,000 in the United States. A related concern involved a case where the salary of an extraordinary ability clown was compared with non-clown employees in his company rather than other extraordinary clowns.

USCIS Director Alejandro Mayorkas and the Office of Public Engagement are to be commended for their efforts to solicit stakeholder comments as they embark on the herculean task of consolidating and revising USCIS’ immigration policy guidance.  At the same time, a true show of transparency will require more than simply soliciting comments.  Indeed, USCIS has an opportunity to demonstrate that it is responding to stakeholder feedback by incorporating the valuable suggestions offered by experienced practitioners into the resulting policy memorandum on evidentiary standards for the O-1 visa.  A new policy memo on the O-1 visa that accounts for stakeholder comments will affirm the agency’s stated goal of collaboration and dialogue with its customers.

For more information: 

O-1 Visa Page on USCIS Website

Primer on O-1 Visas for Persons with Extraordinary Ability or Achievements

The recent India EB-2 priority date improvement announced in the May 2011 Visa Bulletin has sparked speculation regarding continued progress with the category.  Pressure is mounting on employers to file (or “re-file”) cases for employees in the EB-2 category in hopes that fresh EB-2 cases will lift their EB-3 applications from the unthinkable backlogs they’ve faced for years.  But is this much ado about nothing?  Are things really improving for the EB-2 applicants?  Before jumping to the chat rooms for answers, it might help to know the reasons for the recent progress and where this may take the category through the summer:

• There are 2,800 visas allocated to the India EB-2 category per year.
• Currently, approximately 20,000 known India EB-2 applicants are awaiting visas.
• Assuming demand and the availability of visas from other categories remain constant, an India EB-2 petition filed today should anticipate a seven- to eight-year wait for a visa.
• The recent improvement with the visa dates was the result of the availability of 12,000 unused visas from other categories that can, in part, be applied to the India EB-2 category.
• For the May 2011 bulletin, 2,000 additional visas were allocated to the India EB-2 category, leading to the priority date improvement from 05/08/2006 to 07/01/2006.
• The Department of State is holding back on the allocation of the remaining visas to determine post May 2011 demand – the number of EB-3 applicants re-filing their matters as EB-2 cases greatly affects the predictability of future demand in the category.
• If demand unexpectedly jumps (i.e., more EB-3 to EB-2 filings than anticipated), the India EB-2 category could actually retrogress over the summer and fall 2011.

Needless to say, several factors affect priority date movement and, unfortunately, much of the process is driven by unknown and unpredictable variables.  Sufficient objective data is not available to help the State Department predict priority date improvement.  One thing is certain though – absent some sort of relief, the India EB-2 cases will continue to face a bleak future with total processing times of at least seven to eight years.

We instinctively blame the State Department and USCIS for our priority date problems.  We even blame our lawyers.  Cases take too long to prepare; they take too long to be decided.  We’ve all heard or thought:  “If my case was prepared as an EB-2 instead of an EB-3 or filed earlier, I would have my green card by now.”

The finger pointing, chat room tirades, terse emails and amped up conference calls might make the EB-2 candidate feel better, but the feeling is temporary, and things just keep getting worse.  Why?  Because it’s not going to do any good.  The employer, attorney, State Department and USCIS aren’t the ones who can relieve our India EB-2 woes.  The solution lies on Capitol Hill, and our elected officials need to be convinced that they can, and should, look at this issue apart from the polarized legalization debate.  Let’s remind our friends on Capitol Hill of who the India EB-2 candidate is:

• I am educated professional who holds either the equivalent of a U.S. Master’s degree or a Bachelor’s degree with at least five years of work experience.
• I typically earn more than $70,000 annually.
• I pay U.S. taxes.
• Once I receive my green card, I must always pay taxes as a U.S. resident to maintain my status, even if I am living overseas.
• As a green card holder, I am likely to invest my savings and engage in activities that promote job growth in the U.S. economy.

It’s hard to imagine that the United States discourages highly educated and highly paid taxpayers from permanently joining our communities.  The portrait of the India EB-2 candidate is much more attractive than that of the poor, uneducated immigrants of past generations who came through Ellis Island, looking for any type of work to survive.  Yet, these immigrants were welcomed to the United States.

The time has come for the India EB-2 applicant to focus their frustrations on who can solve their problems, namely Congress.  Let our representatives know who you are and what problems you face.  The India EB-2 candidate is good for the U.S. economy, good for the workforce and good for our communities.  It’s an easy sell – just get out there and make yourselves heard.

U.S. Citizenship and Immigration Services (USCIS) has adopted its final rule for the Employment Eligibility Verification process (Form I-9).  This final rule, dated April 15, 2011, adopts USCIS’s April 3, 2009 interim rule without any changes.  

Although the final rule clarifies the E-Verify process and the documentation that may be presented to establish employment eligibility, it is still a system that warrants much needed improvement.  Alarmingly, until improvements are made, employers are left in the difficult position of having to use a flawed system while still being held accountable for hiring unauthorized workers even if they were confirmed through E-Verify.  While this problem could be resolved with a more enlightened approach from USCIS and Immigration and Customs Enforcement (ICE), both of those agencies fail to acknowledge the shortcomings in the system, and instead prefer to press forward with efforts to convince the public of the integrity of E-Verify while tying more and more benefits to its mandatory use. 

My chief concern is that the system does not adequately address the issue of identity theft.  The current E-Verify system matches a name to a social security number, and where available, a photo taken from a U.S. passport, green card or EAD, but it is not able to reliably confirm that the person presenting the documents is in fact the person associated with the name.  To illustrate this point, a December 2009 report by Westat, an independent consulting group, reported that “54% of the unauthorized workers who are checked through E-Verify are confirmed as work authorized.”  This is an extremely high margin of error for a system whose very purpose is to confirm that every person employed in the United States is, in fact, authorized to work.     

Moreover, while E-Verify’s photo-matching tool allows an employer to view a picture from a green card, EAD, or passport to determine whether the person standing in front of them matches the picture in the system, it still falls entirely on the judgment of the employer to confirm the identity of the person before them.  This is troubling because a business owner is not insulated from liability for a mistake in identifying the individual or from the possibility that the person completing the verification is in cahoots with the unauthorized worker or an unscrupulous recruiter. 

 In the current political climate, ICE remains focused on stepped up enforcement, including workplace raids and investigations to presumably hold dishonest employers accountable.  At the same time, even employers who use E-Verify still remain subject to harsh ICE imposed penalties where they are fooled by employees presenting false documents.  Until we have a system that allows employers to complete the verification process without being part of the decision-making process, a safe harbor provision should be provided to insulate employers who do not engage in knowing, willful, disregard of the law.  That will require a change in attitude from USCIS and ICE, who must be willing to afford some deference to law-abiding employers by providing them with confidence that by using E-Verify, they will be afforded safe harbor as to employees who are confirmed as work authorized through governmental systems. 

A safe harbor provision for participating employers will instill confidence and safeguard honest employers from the adverse effects of an ICE investigation or raid.  Today, the consequences of an ICE enforcement action can range from significant fines for even minor paperwork violations to possible imprisonment for knowing malfeasance.  While these represent the calculable penalties, there are collateral effects that are incalculable, such as the time and cost of dealing with an investigation or mounting a legal defense, not to mention the damage to a business’ reputation, which can lead to lost profits and even business closures.  Safe harbor would be a sign that USCIS and ICE have confidence in their own system, and until the agencies involved in our immigration system are willing to offer honest employers such assurances, E-Verify should not be made mandatory for all U.S. employers.

Shedding light on an issue that has vexed many employers of H-1B, H-1B, L-1, and O-1A foreign nationals since the new Form I-129 was unveiled last year, the U.S. Department of Commerce has issued an informal advisory opinion on the applicability of the “deemed export” provisions of the Export Administration Regulations (EAR) where foreign nationals work at a third party client site pursuant to a contract between a staffing company and a third party client.  More info…