US Immigration Law Blog - by Ashwin Sharma, Esq.

Problems with H-1B Admissions at Newark, NJ Airport

2010-02-04T23:00:00Z

VIA AILA.org

The AILA U.S. Customs and Border Protection (“CBP”) Liaison Committee received reports from AILA members that CBP inspectors at the Newark, New Jersey airport port of entry were apparently assisting in an investigation involving certain H-1B nonimmigrants from India and certain H-1B petitioner companies. The inspectors’ questions focused on who the individuals worked for, how their pay was computed, who paid their salary, their job duties, and what they were paid. In some cases, the individuals were subjected to expedited removal and visa cancellation.

After inquiring with CBP headquarters (“HQ”) about these incidents, the CBP Liaison Committee was advised by HQ that several of these cases involved companies under investigation by U.S. Immigration and Customs Enforcement (“ICE”) and/or U.S. Citizenship and Immigration Services (“USCIS”) for ongoing fraud. CBP HQ noted that they use as much advance information as possible to target specific individuals who warrant additional inspection. HQ also noted that recent enforcement cases reviewed ranged from simple documentary deficiency to visa/petition fraud. Upon an inadmissibility finding, the determination to either allow the applicant to withdraw his or her application for admission or to subject the applicant to expedited removal is based on “the totality of the circumstances and reviewed on a case by case basis.” In the Newark enforcement actions, CBP Newark worked closely with USCIS – Fraud Detection and National Security (“FDNS”) and the Department of Labor – Office of Investigations. CBP HQ stated that those questioned were offered the opportunity to contact their consulate and that CBP officers contacted the petitioner and/or current employer when clarification was needed. CBP HQ confirmed that they screen ALL employment-based visa holders to determine admissibility and ensure compliance with entry requirements.

In addition, on January 27, AILA members attending a CBP meeting in the Newark, New Jersey area were informed that a new policy has been instituted at Newark Airport. This policy involves conducting random checks for returning H-1B, L-1, and other employment-based visa holders. Based upon the initial check, if the person’s admissibility is questionable, then he or she will be sent to secondary inspection for further interview. In some cases, if CBP discovers discrepancies in previously filed petitions, then the applicant may be asked to withdraw his/her application for admission into the United States or be subject to expedited removal.

During that same local CBP meeting, attendees were advised that if CBP discovers that a returning Lawful Permanent Resident has a post-1998 conviction, the Lawful Permanent Resident may be detained. The Newark airport port of entry has adopted a mandatory detention policy for crimes that were committed after 1998. In the event that CBP cannot get a copy of the conviction record in twenty-four hours, the person may be released. The only exceptions are that CBP will release a Lawful Permanent Resident for humanitarian reasons; extenuating circumstances such as if the foreign national is traveling with children and there is no one to pick up the children; or when the person is a sole provider for United States Citizen or Lawful Permanent Resident children.

Individuals with pending I-751 petitions returning to the United States via the Newark airport port of entry, who have a I-751 filing receipt documenting that an I-751 has been properly filed or an ADIT Legal Permanent Resident stamp, will be sent to secondary inspection for further interview to verify the validity of the I-751 Petition. It is unclear if CBP will undertake a substantive review of the I-751 Petition.

In all cases, attorneys should remind their clients to thoroughly prepare for their trip to the United States and their inspection upon application for admission by reviewing all pertinent documents to their petition and to consider carrying evidence to support the assertions made in the petition filed on their behalf by their employer. Similarly, employers must be prepared for telephone inquiries from CBP officers at ports of entry to confirm the assertions made in any nonimmigrant petition and supporting documentation. Finally, employers must be advised that the government may review information in any public venues such as websites and other media for consistency with petition content. Thus, keeping such public information accurate and current is essential.

Note the new fraud related language added to I-797 approval notices –

NOTICE: Although this application/petition has been approved, DHS reserves the right to verify the information submitted in this application, petition, and/or supporting documentation to ensure conformity with applicable laws, rules, regulations, and other authorities. Methods used for verifying information may include, but are not limited to, the review of public information and records, contact by correspondence, the Internet, or telephone, and site inspections of businesses and residences. Information obtained during the course of verification will be used to determine whether revocation, rescission, and/or removal proceedings are appropriate. Applicants, petitioners, and representatives of record will be provided an opportunity to address derogatory information before any formal proceeding is initiated.

List Of Priority Dates for January 2010

2010-02-01T17:24:00Z

List Of Priority Dates for January 2010

Family Based Immigration

	All Charge- ability Areas Except Those Listed	CHINA- mainland born	India	Mexico	Philippines
Family-1st	Apr 1 2004	Apr 1 2004	Apr 1 2004	Aug 15 1992	Dec 1 1993
Family-2A	Jan 1 2006	Jan 1 2006	Jan 1 2006	Jan 1 2004	Jan 1 2006
Family-2B	Dec 1 2001	Dec 1 2001	Dec 1 2001	Jun 8 1992	Jul 1 1998
Family-3rd	May 22 2001	May 22 2001	May 22 2001	Sep 15 1992	Dec 1 1991
Family-4th	Oct 1 1999	Oct 1 1999	Oct 1 1999	Nov 22 1995	May 1 1987

Employment Based Immigration

	All Charge- ability Areas Except Those Listed	CHINA- mainland born	India	Mexico	Philippines
5th Pilot Progams	Current	Current	Current	Current	Current
Employment-1st	Current	Current	Current	Current	Current
Employment-2nd	Current	May 1 2005	Jan 22 2005	Current	Current
Employment-3rd	Aug 1 2002	Aug 1 2002	Jun 22 2001	Jul 1 2002	Aug 1 2002
Employment-4th	Current	Current	Current	Current	Current
Employment-5th	Current	Current	Current	Current	Current
Employment-OTHER Workers	Jun 1 2001	Jun 1 2001	Jun 1 2001	Jun 1 2001	Jun 1 2001
Employment-Religious Categories	Current	Current	Current	Current	Current
Employment-Targeted Employment Areas	Current	Current	Current	Current	Current

Diversity Visa Priority Dates

Region	Region Number
AFRICA	23,400
AFRICA - Egypt	12,300
AFRICA - Ethiopia	12,475
AFRICA - Nigeria	12,900
ASIA	9,475
EUROPE	19,750
NORTH AMERICA (BAHAMAS)	4
OCEANIA	775
SOUTH AMERICA, and the CARIBBEAN	925

How to Establish the “Employee- Employer Relationship” in H-1B Petitions and Requests for Evidence (RFE's)

2010-01-15T20:37:00Z

USCIS Issues Guidance Memorandum on Establishing the “Employee- Employer Relationship” in H-1B Petitions

U.S. Citizenship and Immigration Services (USCIS) today issued updated guidance to adjudication officers clarifying the requirements to establish an employer-employee relationship to qualify for the H-1B ‘specialty occupation’ classification. The memorandum addresses scenarios involving independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites.

An employer who seeks to sponsor a temporary worker in an H-1B specialty occupation is required to establish a valid employer-employee relationship. USCIS has defined such a relationship to hinge on an employer’s right to control the means and manner in which the work is performed. The guidance memorandum lists a variety of factors to be considered when evaluating the petitioner’s

right to control the beneficiary, including the manner and extent to which the petitioner actually supervises the beneficiary; the petitioner’s right to control the beneficiary’s daily work and work product; and the petitioner’s right to hire, pay and fire the beneficiary. Accordingly, adjudicators must review the totality of circumstances when making a final determination of whether the employer-employee

relationship exists.

The memorandum also discusses examples of evidence the petitioner may submit in order to establish that an employer-employee relationship exists and will continue to exist throughout the duration of the requested H-1B validity period. Examples of that evidence include a complete itinerary of services or engagements, a signed employment agreement with the beneficiary, and/or relevant portions of valid contracts statements of work, work orders, or service agreements with the end-user client. The guidance memorandum does not change any current requirements for an H-1B petition, such as the requirement that beneficiary come to the U.S. to work temporarily in a specialty occupation; that the beneficiary is qualified for that position; and that a Labor Condition Application (LCA) specific to each

location where the beneficiary will be working be filed with the Department of Labor. A detailed question and answer document on the guidance memorandum follows this Update. For more information on the H-1B nonimmigrant program and current Form I-129 processing times, visit www.uscis.gov or call the National Customer Service Center at (800) 375-5283.

View USCIS Document (PDF)

Visa Bulletin for January 2010

2010-01-15T20:31:00Z

Visa Bulletin for January 2010

Family Based Immigration

	All Charge- ability Areas Except Those Listed	CHINA- mainland born	India	Mexico	Philippines
Family-1st	Apr 1 2004	Apr 1 2004	Apr 1 2004	Aug 15 1992	Dec 1 1993
Family-2A	Jan 1 2006	Jan 1 2006	Jan 1 2006	Jan 1 2004	Jan 1 2006
Family-2B	Dec 1 2001	Dec 1 2001	Dec 1 2001	Jun 8 1992	Jul 1 1998
Family-3rd	May 22 2001	May 22 2001	May 22 2001	Sep 15 1992	Dec 1 1991
Family-4th	Oct 1 1999	Oct 1 1999	Oct 1 1999	Nov 22 1995	May 1 1987

Employment Based Immigration

	All Charge- ability Areas Except Those Listed	CHINA- mainland born	India	Mexico	Philippines
5th Pilot Progams	Current	Current	Current	Current	Current
Employment-1st	Current	Current	Current	Current	Current
Employment-2nd	Current	May 1 2005	Jan 22 2005	Current	Current
Employment-3rd	Aug 1 2002	Aug 1 2002	Jun 22 2001	Jul 1 2002	Aug 1 2002
Employment-4th	Current	Current	Current	Current	Current
Employment-5th	Current	Current	Current	Current	Current
Employment-OTHER Workers	Jun 1 2001	Jun 1 2001	Jun 1 2001	Jun 1 2001	Jun 1 2001
Employment-Religious Categories	Current	Current	Current	Current	Current
Employment-Targeted Employment Areas	Current	Current	Current	Current	Current

Diversity Visa Priority Dates

Region	Region Number
AFRICA	23,400
AFRICA - Egypt	12,300
AFRICA - Ethiopia	12,475
AFRICA - Nigeria	12,900
ASIA	9,475
EUROPE	19,750
NORTH AMERICA (BAHAMAS)	4
OCEANIA	775
SOUTH AMERICA, and the CARIBBEAN	925

USCIS Reaches FY 2010 H-1B Cap

2009-12-23T22:00:00Z

VIA USCIS.GOV

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2010. USCIS is hereby notifying the public that Dec. 21, 2009 is the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010.

The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption. Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after Dec. 21, 2009.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Dec. 21, 2009. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2010 H-1B cap. Therefore, USCIS will continue to process petitions filed to:

Extend the amount of time a current H-1B worker may remain in the United States.
Change the terms of employment for current H-1B workers.
Allow current H-1B workers to change employers.
Allow current H-1B workers to work concurrently in a second H-1B position.

H-1B in General: U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in fields, such as scientists, engineers, or computer programmers.

Last updated:12/22/2009

U.S. Customs and Border Protection - Travel Information for International Visitors

2009-12-21T15:17:00Z

For International Visitors

Information for visitors to the United States who are coming to work, study, conduct business or to immigrate.

-	Admission into United States - 06/22/2009 Frequently asked questions about the admission process for entering into the United States.

	Air Travel If you are traveling by plane to Mexico or Canada, please keep in mind that all travelers, including U.S. and Canadian citizens, are required to have a passport or other accepted form of documentation to enter or depart the United States.

-	Automatic Revalidation: Valid I-94, Expired Non-Immigrant Visa - 05/11/2009 Nationals of Iran, Syria, Sudan and Cuba are not eligible for automatic revalidation of expired visas.
	pdf - 23 KB.

-	Bringing Food into the U.S. - 03/21/2008

	Useful Information for Canadian and Mexican Travelers

-	Six Month Club Update - 03/10/2009 For Accessibility Information: OPA508CONTACT@cbp.dhs.gov
	pdf - 52 KB.

	Clearing CBP

	Electronic System for Travel Authorization

-	Form I-192, Application for Advance Permission to Enter as a Non-Immigrant and Inadmissible Canadian Information - 12/07/2009

-	Immigration Procedures, forms, and basic requirements immigrants need to enter the United States.

-	Issuance of a Visa and Authorization for Temporary Admission into the United States for Certain Non-Immigrant Aliens Infected with HIV Final Rule - 10/06/2008

	I-94 and I-94W - 06/15/2009

-	I-192, Application for Advance Permission to Enter as Nonimmigrant 04/08/2008

	Lawful Permanent Residents (LPR)

	NSEERS

	Temporary Residents for Work or Study

-	Transiting the U.S. - TWOV and ITI Programs - 10/02/2007

	Visa Waiver Program

Visiting for Business or Pleasure

Global Entry Program

2009-12-21T15:13:00Z

Global Entry is a pilot program managed by U.S. Customs and Border Protection which allows pre-approved, low-risk travelers expedited clearance upon arrival into the United States. Although this program is intended for “frequent travelers” who make several international trips per year, there is no minimum number of trips an applicant must make in order to qualify. Participants may enter the United States by utilizing automated kiosks located, at the following airports:

Boston-Logan International Airport (BOS)
Chicago O’Hare International Airport (ORD)
Dallas/Ft. Worth International Airport (DFW)
Detroit Metropolitan Airport (DTW)
Ft. Lauderdale Hollywood International Airport (FLL)
George Bush Intercontinental Airport, Houston (IAH)
Hartsfield-Jackson Atlanta International Airport (ATL)
Honolulu International Airport (HNL)
John F. Kennedy International Airport (JFK)
McCarran International Airport, Las Vegas (LAS)
Los Angeles International Airport (LAX)
Miami International Airport (MIA)
Newark Liberty International Airport (EWR)
Orlando International Airport (MCO)
Philadelphia International Airport (PHL)
San Francisco International Airport (SFO)
San Juan-Luis Múñoz Marin International Airport (SJU)
Orlando-Sanford International Airport (SFB)
Seattle-Tacoma International Airport-SeaTac (SEA)
Washington-Dulles International Airport (IAD)

The process requires participants to present their machine-readable U.S. passport or permanent resident card, submit their fingerprints for biometric verification, and make a customs declaration at the kiosk’s touch-screen. Upon successful completion of the Global Entry process at the kiosk, the traveler is issued a transaction receipt and directed to baggage claim and the exit, unless chosen for a selective or random secondary referral.

Travelers must be pre-approved before they can participate in the pilot program. All applicants will undergo a rigorous background check and be interviewed by a CBP officer before they are enrolled. Automated enforcement checks will occur each time the member uses the kiosk to enter the United States. Although pre-approved for the program and determined to be low risk, members of Global Entry may be examined at any time when entering the United States.

Members entering the United States must complete the declaration questions prompted by the kiosk. If bringing items that must be declared, after completion of the kiosk transaction, the member will be directed to see a CBP officer.

Global Entry has a zero tolerance policy for violations. If a Global Entry member violates any of the terms and conditions, CBP officers will take appropriate enforcement action and will cancel the person's membership privileges. The application fee is non-refundable.

What Are the Benefits of Global Entry?
The benefits are:

Bypass the traditional passport control line.
No more filling out a paper customs declaration form.
Expedited exit process.
Mutual benefits with other countries.
Conveniently located at airports throughout the country.
Cross the border with a minimum of customs and immigration questioning.
Although this program is intended for frequent travelers, there is no minimum number of trips that must be completed.

Global Entry allows applicants to complete a single application and pay one fee. This form can be submitted online via the Global Online Enrollment System (GOES. Qualified applicants are required to come to a Global Entry Enrollment Center, for an interview). Global Entry allows United States border agencies to concentrate their efforts on potentially higher-risk travelers and goods, which helps to ensure the security and integrity of our borders.

Who May Apply for Global Entry?

Individuals who are 14 years of age and older who are U.S. citizens, U.S. nationals, U.S. Lawful Permanent Residents, or citizens of certain other countries.

*Note: If enrolled parents are traveling with children under 14 and clearing as a family, they may not use the kiosk and must clear using the regular passport control process.

However, individuals may not qualify if they:

Are inadmissible to the United States under applicable immigration laws;
Provide false or incomplete information on their application;
Have been convicted of a criminal offense in any country;
Have been found in violation of customs or immigration laws; or
Fail to meet other Global Entry requirements.

If an individual does not meet the requirements of Global Entry, their application will be denied.

Fee
Applications must be completed and submitted online through the Global Online Enrollment System (GOES). ( GOES ) A non-refundable $100 fee will be collected before the submission of the application. If an applicant is denied participation, he/she will not receive a refund of the $100. NEXUS and SENTRI members may activate membership in Global Entry at no additional fee.

Inquiries
Applicants who are not accepted into the Global Entry pilot have three channels for forwarding their inquiries: a) directly with the enrollment center; b) DHS Travelers Redress Inquiry Program (DHS TRIP); and c) the CBP Trusted Traveler Ombudsman. Please see the DHS Traveler Redress Inquiry Program page for more information on how to seek redress. (DHS Traveler Redress Inquiry Program )

Consistent with privacy law and national security considerations, DHS and CBP may not reveal the specific reason for an applicant’s denial in either the initial notification or the redress process depending on the circumstances of a particular case.

Global Entry Program

Your Ticket to Get Out of Line…
Global Entry is your express pass to process through the United States' international arrival areas. Automated kiosks are designed to process pre-approved, low-risk international travelers who qualify.

-	Video: Global Entry Public Service Announcement - 11/20/2009 wmv file: 4,864 KB

-	Global Entry: Step by Step Online Application Instructions - 08/20/2008 Please print prior to logging onto GOES For Accessibility Information: OFO508CONTACT@cbp.dhs.gov
	pdf - 3,086 KB.

-	Global Entry Enrollment Center and Kiosk Locations - 11/09/2009

-	Global Entry with Expedited Entry into the Netherlands - 05/05/2009 Current U.S. Citizen Global Entry members can qualify for participation in Privium, the Netherlands’ trusted traveler program.

-	Global Entry Program Overview - 11/04/2009

-	Apply Online for Global Entry

-	NEXUS and SENTRI Members that are US Citizens or US Lawful Permanent Residents May Utilize the Global Entry Kiosks - 11/09/2009

-	Instructions to Use Kiosk - 08/10/2009 For Accessibility Information: OFO508CONTACT@cbp.dhs.gov
	pdf - 183 KB.

	Download Ads for Global Entry

-	Global Entry Information - 11/20/2009 Printed materials available for download

DHS Traveler Redress Inquiry Program (DHS TRIP)

2009-12-21T15:11:00Z

DHS Traveler Redress Inquiry Program (DHS TRIP)

Get e-mail updates when this information changes

Learn more about redress numbers.

File a Complaint

Go to DHS TRIP

The Department of Homeland Security’s Travel Redress Inquiry Program (DHS TRIP) is a single point of contact for individuals who have inquiries or seek resolution regarding difficulties they experienced during their travel screening at transportation hubs--like airports and train stations--or crossing U.S. borders, including:

denied or delayed airline boarding
denied or delayed entry into and exit from the U.S. at a port of entry or border checkpoint
continuously referred to additional (secondary) screening

Why DHS TRIP?

DHS TRIP is a central gateway to address

watch list misidentification issues
situations where travelers believe they have faced screening problems at ports of entry
situations where travelers believe they have been unfairly or incorrectly delayed, denied boarding or identified for additional screening at our nation’s transportation hubs

DHS TRIP is part of an effort by the State Department and Homeland Security to welcome legitimate travelers while still securing our country from those who want to do us harm.

Who is DHS TRIP for?

People who have been repeatedly identified for additional screening can file an inquiry to have erroneous information corrected in DHS systems.

How does DHS TRIP work?

DHS TRIP is the central processing point for redress inquiries. Requests received online are routed for redress to the appropriate DHS components. Components will review the request and reach a determination about a traveler’s status.

How is the information used?

The Department of Homeland Security safeguards the privacy of any personal information that you provide in your inquiry to DHS TRIP. The information that you provide will be used to process your request for redress. More information on DHS TRIP and your privacy.

Getting started with DHS TRIP

Learn more about TRIP and make an inquiry online.

» Go to DHS TRIP

This page was last reviewed / modified on November 9, 2009.

Secretary Janet Napolitano Testifies Before Congress

2009-12-09T20:34:00Z

December 9, 2009

Washington D.C. - Today, the Senate Judiciary Committee held an oversight hearing with Department of Homeland Security (DHS) Secretary Janet Napolitano. The Secretary's opening statement reiterated her view that immigration enforcement is a necessity, but that enforcement alone is not a solution for our broken immigration system. Secretary Napolitano noted, "We can no longer perpetuate a status quo that is unacceptable for workers, employers, law enforcement, faith leaders, and America as a whole. We must seize this moment to build a truly effective immigration system that deters illegal immigration, provides effective and enduring enforcement tools, protects workers from exploitation and retaliation, and creates a tough but fair path to legalization for the millions of illegal immigrants already here."

Despite her commitment to both enforcement and legalization as part of a comprehensive approach to immigration reform, some lawmakers, commentators, and activists are calling for a continuation of the same enforcement-only approach to unauthorized immigration that has failed to work for two decades. In the fanciful view of enforcement-only advocates, forcing 12 million unauthorized men, women, and children out of the country is not only practical, but would somehow benefit the U.S. economy. In reality, though, an intensification of the enforcement-only approach to unauthorized immigration would be enormously expensive and would remove productive workers, consumers, and taxpayers from the economy in the middle of a recession. One study, for instance, estimates that removing all undocumented immigrants from the country would result in the loss of roughly 2.8 million jobs and a decline in the Gross Domestic Product of $245 billion. This is not exactly a recipe for economic recovery.

"Secretary Napolitano is looking forward, but her opponents are looking backwards to tired old tactics that haven't worked," said Mary Giovagnoli, Director of the Immigration Policy Center. "She is drawing upon her experience to move forward, but that entails a shift in thinking and comprehensive immigration reform. We can all agree that the current system isn't working, but some offer solutions while others offer the same old ideas."

The time is ripe for a comprehensive solution to our broken immigration system that looks to the future, rather than clinging to the failed enforcement-only strategy of the past. Not only does comprehensive reform represent a practical and humane way of dealing with the large unauthorized population in our country, but it would boost our economy as well. Rather than scapegoating immigrants for our current economic woes, we should acknowledge their economic contributions and their potential to help rebuild our economy.

###

For more information contact Wendy Sefsaf at 202-507-7524 or wsefsaf@immcouncil.org

Florida Driver License Acceptable Documents List

2009-10-20T18:57:00Z

A list of acceptable documents for issue of a Florida Driver License from T.N. Prakash, Deputy Director, Program Operations, Division of Driver Licenses.

H-1B bill unlikely to come up in Congress, says Nasscom

2009-10-19T19:03:00Z

Via Livemint.com

"The ‘H-1B and L-1 Visa Fraud and Abuse Prevention Act’, co-sponsored by Senators Richard J. Durbin (Illinois) and Charles E. Grassley (Iowa) earlier this year aimed to “overhaul the H-1B and L-1 visa programs to give priority to American workers and crack down on unscrupulous employers who deprive qualified Americans of high-skill jobs.”

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