Data Reveals USCIS Increasing Number of Requests for Evidence on L-1B Cases, California Service Center Continues to Lead Vermont Service Center in RFEs and Case Denials
Responding to a Freedom of Information request submitted by The American Immigration Lawyers Association Liaison, USCIS revealed interesting data on L-1B nonimmigrant petitions receipted, approved, denied, and those subjected to a Request for Evidence (“RFE”) for FY2012 and FY2013. The data, when compared with USCIS statistics and a National Foundation for American Policy report, both released in 2012, reveals that the L-1B denial rate increased from 27% in FY2011 to 30% in FY2012 and 34% in FY2013.
USCIS Reminds Filipino Nationals Impacted by Typhoon Haiyan of Available Immigration Relief Measures
In light of Typhoon Haiyan in the Philippines (named “Yolanda” by Philippine authorities), U.S. Citizenship and Immigration Services (USCIS) would like to remind Filipino nationals that they may be eligible for certain immigration relief measures if requested.
USCIS understands that a natural disaster can affect an individual’s ability to establish or maintain lawful immigration status in the United States. Therefore, Filipino nationals impacted by Typhoon Haiyan may be eligible to benefit from the following immigration relief measures:
- Change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;
- Extension of certain grants of parole made by USCIS;
- Extension of certain grants of advance parole, and expedited processing of advance parole requests;
- Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
- Expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs);
- Expedited adjudication of employment authorization applications, where appropriate; and
- Assistance to LPRs stranded overseas without immigration or travel documents, such as Permanent Resident Cards (Green Cards). USCIS and the Department of State will coordinate on these matters when the LPR is stranded in a place that has no local USCIS office.
For more information on USCIS humanitarian programs, visit http://www.uscis.gov or call the National Customer Service Center at 1-800-375-5283.
Infosys Fined an Unprecedented $35,000,000.00 by the U.S. Government for Employing B-1 Visas in Lieu of H-1Bs
The Wall Street Journal reports that the U.S. Government will fine Infosys, an Indian Technology/Consulting giant, almost $35,000,000.00 for employing B-1 visa workers in lieu of H-1B visa workers.
By way of background, last year, Judge Thompson of the Federal Court for the Middle District of Alabama rejected all claims brought by Jack Palmer against his employer, Infosys. Palmer claimed to have been harassed and retaliated against after making allegations that Infosys’ massive B-1 visa program was used fraudulently in place of more appropriate visas. Palmer’s rejected claims were subsequently resurrected by the U.S. Department of Justice and the Department of Homeland Security, which continued its investigation into whether Infosys wrongly filed B-1 visas for workers performing work that actually required H-1B visas.
In a 2011 blog post I wrote about how Infosys may have been engaging in a perfectly legal action; per 9 FAM 41.31 N11, “ALIENS NORMALLY CLASSIFIABLE H-1 OR H-3″:
“There are cases in which aliens who qualify for H-1 or H-3 visas may more appropriately be classified as B-1 visa applicants in certain circumstances; e.g., a qualified H-1 or H-3 visa applicant coming to the United States to perform H-1 services or to participate in a training program. In such a case, the applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the alien’s temporary stay. For purposes of this Note, it is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad, and that the alien meets the following criteria:
(1) With regard to foreign-sourced remuneration for services performed by aliens admitted under the provisions of INA 101(a)(15)(B), the Department has maintained that where a U.S. business enterprise or entity has a separate business enterprise abroad, the salary paid by such foreign entity shall not be considered as coming from a “U.S. source;”
(2) In order for an employer to be considered a “foreign firm” the entity must have an office abroad and its payroll must be disbursed abroad. To qualify for a B-1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be
However, Senator Chuck Grassley (R-IA), apparently motivated by Palmer’s Testimony, addressed a strongly worded but poorly researched memo to Secretary Hillary Clinton in which he demanded a complete review of the B-1 visa. His request was inexplicably granted, and the resultant changes substantially injured the economic interests of U.S. organizations engaged in international trade, countermanded congressional intent on the subject, and escalated denials for B-1 applicants at U.S. Consulates, especially those in the ‘B-1 in lieu of H-1B’ category.
Moving back to present: Infosys’ fine is unprecedented in the history of Immigration law. It will have a major impact on both our nation’s technology/consulting sector and on our Immigration policy. In light of the fact that other nations are eagerly recruiting the world’s best and brightest (sometimes from within our borders), it can only be hoped that the Infosys fine will reinvigorate the push for the creation of a new U.S. visa category specifically designed for short term consulting projects, and/or to increase the U.S.’s yearly quota for H-1B professional workers to a level that isn’t exhausted in one week.
AILA’s recommendations on filing H-1B, PERM and other applications while DOL’s iCERT and PERM Websites are Shutdown
The American Immigration Lawyers Association (AILA) has indicated that they are trying to obtain guidance from USCIS and US Department of Labor (DOL) about how attorneys should move forward in filing applications like the H-1B and PERM/Labor Certifications which have been affected by the DOL’s shutdown (resulting from the Federal Government’s Shutdown).
AILA does not have official guidance from the USCIS and DOL yet and indicates that there are “conflicting reports” regarding DOL’s ability to even accept mail. For now, however, AILA recommends the following:
USCIS will remain operational during the Federal Government Shutdown thanks to the healthy funding it derives from USCIS filing fees
- Good news: USCIS’ operations though the Federal Government Shutdown are expected to continue because it is funded by sources other than appropriated funds (read: H-1B and other USCIS filing fees). In fact, this funding is so substantial that USCIS expects to send home only 353 of 12,558 employees during the temporary shutdown.
- Consulates remain operational at this point.
- Unfortunately, the DOL ETA will not process any employment based labor certifications during the shut down. The PERM PLC website is also down, as is iCert.
Update: the iCERT system is currently unavailable due to Federal Government Shutdown. It Appears that No LCA’s or Prevailing Wages Can be filed.
By Ashwin Sharma, Esq.
Update: our law office tried to file an ETA 9035/LCA a few moments ago and received the following message:
The iCERT system is currently unavailable
This Web application is currently unavailable due to the suspension of Federal government services. It will be available again when the Federal government resumes operations.
- Federal government shuts down (huffingtonpost.com)
- The Republicans Must Aggressively Seek Credit For The Federal Government Shutdown (forbes.com)
Department of Labor: The Administration is working very hard to avoid a government shutdown and believes there is sufficient time to avoid such an occurrence; however, prudent management requires the Department to plan for the possibility that it may need to suspend operations should Congress be unable to pass a funding bill by midnight on Monday, September 30, 2013.
OFLC functions are not “excepted” from a shutdown and its employees would be placed in furlough status should a lapse in appropriated funds occur. Consequently, in the event of a government shutdown, OFLC will neither accept nor process any applications or related materials (such as audit responses), it receives, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. OFLC’s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts.
Further updates will be posted to the Department’s website.
Department of State: The Department will continue as many normal operations as possible; operating status and available funding will need to be monitored continuously and closely, and planning for a lapse in appropriations must be continued.
EOIR: EOIR has indicated that its response to a potential shutdown is the same as it was in 2011. EOIR has been advised to “put its shutdown plans in place.” As with other agencies, personnel who are not considered “essential” will be furloughed. EOIR has indicated that the detained docket would likely be considered an essential function and would therefore be able to continue in operation.
Update from EOIR on October 1, 2013: Court functions that support the detained caseload will continue, but other functions are suspended. The Board of Immigration Appeals (BIA) is processing emergency stay requests as well as cases where the alien is detained, including case appeals, motions, federal court remands, and bonds.
ICE: From ICE Community Outreach – ICE detention and enforcement operations shall continue. ICE chief counsel trail attorneys will still work on the detained docket only during a shutdown. Please coordinate with your local Chief Counsel Office on more specifics. The ICE Community and Detainee Helpline will remain operational.
USCIS: E-Verify is currently unavailable due to a government shutdown.
Washington Post Round Up of Various Agency Responses on Impact of a Government Shutdown
- Immigrants Can Still Be Deported, Arrested During Government Shutdown (thinkprogress.org)
- Your Government Shutdown Survival Guide (on.aol.com)
- Every government shutdown ever, in one chart (washingtonpost.com)
“In recent weeks, we learned of a new telephone scam targeting USCIS applicants and petitioners. Scammers are using a technique called “Caller ID spoofing” to display a misleading or inaccurate phone number in a recipient’s Caller ID. The scammer poses as a USCIS official and requests personal information (such as Social Security number, passport number, or A-number), identifies supposed issues in the recipient’s immigration records, and asks for payment to correct these records.
If you receive a call like that, USCIS urges you to hang up immediately.
USCIS never asks for any form of payment or personal information over the phone. Do not give payment or personal information over the phone to anyone who claims to be a USCIS official. In general, we encourage you to protect your personal information and not to provide details about your immigration application in any public area.
If you have been a victim of this telephone scam, please report it to the Federal Trade Commission at https://www.ftccomplaintassistant.gov/, or report it to an appropriate state authority. (Visit http://www.uscis.gov/avoidscams for information on where to report scams in your state.)
If you have a question about your immigration record, please call the National Customer Service Center at 1-800-375-5283, or make an InfoPass appointment by visiting our website at http://infopass.uscis.gov/. “
We have received approvals on our PERM Reconsideration Requests filed subsequent to an “Agricultural Engineer” Denial
Our office has received approvals for PERM cases previously denied by DOL. DOL had indicated in the denial that using the term “Engineering” in advertising for an IT position was essentially overbroad, and that “the job requirements, as described, must represent the employer’s actual minimum requirements for the job opportunity.” The original DOL denial stated:
“the term “Engineering” implies that a degree in any engineering field would enable an applicant to qualify for the position of Senior Software Developer, when in fact, not all engineering degrees would provide an applicant with the necessary skills to perform the duties of a Senior Software Developer. For example, U.S. workers who have a degree in an engineering field like “Agricultural Engineering” are not likely to have the skills necessary to perform, in an acceptable manner, the duties involved in the Senior Software Developer position. Specifically, the curriculum for a degree in Agricultural Engineering focuses on educating students in the analysis and design of machinery, animal housing, and environmental systems for the production, processing, storage, handling, distribution, and use of food, feed, fiber and other biomaterials, and the management of related natural resources, by integrating basic physical and biological sciences with engineering design principles…Because the employer’s education requirements are so broad, the Certifying Officer is unable to determine if these requirements are normal to the position and/or if they are unduly restrictive. Therefore, the Certifying Officer has concluded that an applicant with any engineering degree would not have the skills necessary to perform the duties of the position in an acceptable manner, and as a result, is unable to determine the employer’s actual minimum requirements for the job opportunity.”
Following our reconsideration request, the DOL has approved/certified our client’s PERM cases.
From the White House White Board: Why Immigration Reform is Good for our Economy