Labor Immigration Law

There has been a considerable amount of discussion, excitement and, unfortunately, some incorrect rumors over the past few weeks regarding possible changes to the way employment-based immigrant visas are allocated.   Our office has been receiving many requests to comment on and speculate on what may happen with the proposed legislation.   To avoid fueling rumors, we wanted to wait until Congress takes some concrete steps towards the passage of this legislation before we provide updates.

About H.R. 3012

H.R. 3012, the Fairness for High-Skilled Immigrants Act was introduced on September 22, 2011 by Rep. Chaffetz (R-UT) and its goal is to eliminate the employment-based per-country cap entirely by fiscal year 2015 and to raise the family-sponsored per-country cap from 7% to 15%.    If enacted into law, this Act would directly benefit the very high number of highly-skilled applicants for immigrant visa from countries such as India and allow them to obtain an approval much earlier (we are talking many years).

The current law places a limit so that immigrants from a country can obtain no more than 7% of the 140,000 employment-based immigrant visas (or green cards) issued annually.   That cap applies equally to all countries, regardless of the country’s population and creates an imbalance and backlogs for larger countries such as India and China.

H.R. 3012 Clears the House of Representatives; More Work Remains Ahead

On November 29, 2011, the House passed H.R. 3012 by a vote of 389-15 with no additional amendments. The measure now moves on to the Senate for consideration.  A brief reminder:  the fact that H.R. 3012 has been approved by the House does not make it a law.   To become a law, the Act must be passed, in identical form, by both the House and the Senate, and then signed into law by the President.

Many would expect that the Act to pass the Senate quickly.   Unfortunately, indications from here in Washington, DC suggest otherwise.  What is the hold-up?   The answer is politics.   After the House passed the Act on November 29th, Senator Charles Grassley of Iowa, host of the upcoming presidential election caucuses, promptly placed a hold on the bill, which is expected to have broad support from his Senate colleagues.

Conclusion

While it should be encouraging to see that H.R. 3012 cleared the House, the Act is still far from being a law.  With the presidential election politics, the Act may not be taken up by the Senate for some time.   Even then, we do not know if it will be passed by the full Senate in identical form.   As a result, much work remains to be done for the Act to become a law.    We will continue to monitor developments on this legislation and provide updates.    Please do not hesitate to contact us if we can be of any assistance or answer any questions.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

USCIS has issued an alert that a number of key online systems will be unavailable due to system maintenance from Friday, December 2nd at 7pm (EST) until Monday, December 5th at 9am (EST).   As a result, there will be no access or service to the following USCIS online systems and tools:

• Check My Case Status
• Sign-Up for Case Status
• Check Processing Times
• Change of Address Online
• Civil Surgeon Locator
• e-Request
• Office Locator

USCIS has not indicated if and how this outage would affect case updates scheduled to be sent out during this period.   We hope that outgoing case update email alerts would be unaffected; but it is possible that due to the system maintenance USCIS will not issue case alerts as well.

We urge our clients and readers who need to change address (AR-11) online, locate a local office or a civil surgeon or to otherwise interact with one of these tools to do so before the beginning of the outage.

Our practice handles a number of N-400, Application for Naturalization, cases for U.S. lawful permanent residents seeking to obtain U.S. citizenship.    In addition to preparing and filing a complete Form N-400 application with USCIS and submitting to a biometrics appointment, the N-400 naturalization process includes a personal interview and a naturalization test.

While the information below should not be a substitute for the personal preparation by an immigration attorney for the naturalization interview and test, we are hoping to provide our clients and readers with an overview of the naturalization interview and test and to, hopefully, allay any anxieties an upcoming interview may cause.

The Naturalization Interview

During the naturalization interview, an N-400 applicant (who would be placed under oath) is asked to confirm the validity and correctness of key information submitted on the N-400 application.   The N-400 applicant is also asked to produce originals or copies of relevant supporting documents expressly requested in the interview notice or generally required for the N-400 process.   It is always a good idea to bring original documents of any copies submitted as part of the N-400 filing; in addition to bringing additional (and more updated) documents.     A good overview of the case (and any issues) should identify any additional items that may need to be brought.   It is difficult to over-prepare for an interview.

The Naturalization Test

In addition, the USCIS office would seek to test the applicant’s knowledge of civics and the applicant’s ability to speak, understand, read and write English.

Verbal English.  The applicant’s ability to speak and understand English is normally tested in the course of the interview by the USCIS officer who often asks questions and seeks input from the applicant.   It is often obvious, after a short conversation or after a few questions, whether an applicant has a sufficiently good command of the verbal English language.

Written English.  For the written portion of the English language test, the applicant is normally given a reading and a writing test.  The applicant must be able to read 1 out of 3 sentences correctly and must be able to write 1 out of 3 sentences correctly to pass the written English test.

Civics.  Finally, the civics portion of the test, the applicant may be asked up to 10 questions from a list of 100 civics questions.  Answering 6 out of 10 correctly is the passing rate.

Preparing for the Test, Retaking and Passing Rate

There are many websites providing study resources for the naturalization test.   USCIS provides good resources and free study materials for the English and the civics portions of the test.    USCIS also offers a number of free educational products and resources such as vocabulary flash cards, list of the 100 civics questions (in English and in other languages) and civics flash cards.  There are also commercial test preparation books and software, in addition to many websites providing free or paid naturalization test preparation assistance.

Before the naturalization interview, we recommend N-400 applicants to try the Naturalization Self Test (offered for free by USCIS).  While the format of this self-test is different than the format of the actual test (which may be verbal), the self-test helps an N-400 applicant assess his or her level of preparedness for the actual interview and test.

If an applicant does not pass the English and/or civics test, he or she is given another (but only one additional) appointment within 60 to 90 days to be retested on the section which was failed.   If the component is failed again, the N-400 application may be denied.    According to USCIS data, the passing rate as of June 2011 is 92 percent.

Video of the Interview Process

USCIS has also produced a video of the naturalization interview process.   Please see the embedded video window below or watch on YouTube.

Although there are variances in the procedures followed by different USCIS centers, the video is a very good (and helpful, we think) representation of what an applicant should expect to happen during an N-400 naturalization interview.   We recommend that every N-400 applicant watches the video in preparation of (or even before filing) the N-400 interview.

Conclusion

As mentioned above, these resources are very helpful to preparing for the N-400 interview and test but are not intended to replace a thorough N-400 review and preparation by an attorney.   Our office is happy and ready to help N-400 naturalization applicants with their process of applying to become a U.S. citizen.   Please do not hesitate to contact us if we can be of any help.

The USCIS Ombudsman office has released a report and a recommendation to USCIS regarding changing policies with respect to I-765 Application for Employment Authorization Document (EAD) cases.

The Problem

Many employers and individuals who rely on EAD cards for employment find it frustrating that there are no reliable processing times for the EAD cards.   For most employment with EAD cards, employment is authorized only when the employee has a valid EAD card.  In other words,  if an EAD card expires and a renewal is not filed on time (with or without fault of the employee) or if the EAD application takes long time to be approved, then the employee, upon expiration of the EAD card and while waiting for the renewal to be approved, must stop working.   This brings a lot of difficulty to employees and employers.

USCIS is required to issue EAD cards within 90 days.   However, often USCIS is not able to do so.  Several years ago, local service centers were permitted to issue interim cards for EAD applications pending for more than 90 days.  This option is not currently available and the only redress an EAD applicant has is to seek expedited processing of his or her EAD application.   Expedited processing, however, is discretionary and unpredictable.

The Ombudsman’s Recommendations

To address some of the problems with the current EAD application process, the Ombudsman makes several recommendations to USCIS, after making a very thorough, interesting (for some) and somewhat critical review of the current EAD application review framework.

The Ombudsdam report, after reviewing the currently-available options for EAD applicants, and after concluding that such options are inadequate, makes five recommendations.

1. Establish methods at local USCIS offices where EAD applications can be resolved;
2. Establish a uniform processing time goal of 45 days for adjudication and 60 days for issuance of an EAD;
3. Improve monitoring and ensure real-time visibility through an automated system for tracking processing times;
4. Follow established internal procedures for issuing interim EADs in cases where background checks are pending; and
5. Issue replacement EADs with validity dates beginning on the date the old EAD expires.

Conclusion

As our office handles many EAD applications for a number of categories, many of which remain pending close to the 90-day period, and having to do a number of expedited processing EAD applications, we certainly realize that the current system does not serve the needs of employers and employees very well.   It is very difficult to see how in these challenging economic times, when an employee has to stop working and potentially lose his or her job due to delayed EAD processing.  As a result, we welcome the Ombudsman’s recommendation to USCIS and hope that USCIS would consider all of the proposed changes.

In the meantime, and even if the recommendations are fully adopted, we remind our clients and readers to always apply for EAD as soon as possible, and ideally about 120 days before the expiration date of the current EAD card.   Please contact us if we can be of any help.

USCIS has just announced that they are launching a new website which is intended to provide new data reports covering agency performance in a number of areas.   The website can be accessed at http://www.uscis.gov/data/.

Data Reports Available

Currently, there are ten data sets available on the website.    Four of the data sets will be updated monthly; they include processing times and performance data for Form N-400, Application for Naturalization; performance data for Form I-485, Application to Register Permanent Residence or Adjust Status; and statistics on Form I-914, Application for T Nonimmigrant Status, and Form I-918, Petition for U Nonimmigrant Status. Forms I-914(T) and I-918(U) are used for victims of trafficking and victims of crime.

Additionally, information about the total number of receipts and approvals by quarter and year-to-date for all form types will be published quarterly.

Conclusion

While we applaud USCIS’s efforts to provide more information and transparency to the general public, and while we recognize that this website makes an initial step towards giving the general public an overview of USCIS’s operations, the information published on the website is somewhat limited in scope.   We hope that USCIS would use this website as an opportunity to provide more information about its operations, processing times and procedures.

As many of our readers and clients are aware, the U.S. Citizenship and Immigration Service (USCIS) provides some tools for applicants to obtain case processing information.  The online case status check is one of them.

In addition, USCIS posts each month a schedule of the standard processing times for most of the types of cases being processed at the different USCIS offices.  The Processing Times Schedule is very helpful as it provides at least some overview of how long an application would remain pending.   While the posted processing times are updated only once a month (on the 15th of each month) and while the data is often outdated by a few months, nonetheless, it provides a useful source of general information on how long a USCIS case should take.

How Does USCIS Calculate Processing Times?

For each type of application or petition, USCIS has established processing time goals. Specific processing time calculations are based on the number of months of application or petition receipts that comprise the level of active pending cases on hand within the agency.  Processing times are posted 45 days after they are reported from the field offices or service centers to allow for a quality control process that ensures the integrity of the data.

Additionally, USCIS does not distinguish between premium and regular processing and calculates processing times together.  As a result, posted processing times for cases which are premium processing-eligible may be skewed because the posted time reflects the processing time for premium processing cases (often less than 15 days) which is certainly shorter than the regular processing time for the same case type.

Similarly, cases with requests for evidence (RFEs) and notice for intent to deny or revoke (NOID/NOIR) are not considered active cases and are not calculated under these processing times.

Why Are Processing Times Posted for Certain Applications and Petitions and Not Others?

Only a few applications for immigration benefits are not included in the processing time tables, and this is primarily due to the low volume of applications received and related customer inquiries.  Additionally, some forms are not considered applications for immigration benefits because they only provide supporting evidence, so they are not included in the processing time tables.

When Are Actual Processing Times Posted Versus Processing Time Goals?

Processing time goals are posted if an office is processing a particular type of application in less time than the stated processing time goal.  Sometimes the volume of cases USCIS receives is larger than expected, which prevents USCIS from achieving the processing time goals. In these cases, a date will be listed in the processing time table. Customers can compare their application or petition receipt notice dates to this posted date, which represents the date of the last application or petition processed by the USCIS location handling the case, to gauge potential wait time.

The USCIS Ombudsman office  has released their 2011 report to U.S. Congress, as required by law.

About the USCIS Ombudsman Office

The USCIS Ombudsman office was created by the Homeland Security Act of 2002 and was tasked to assist individuals and employers in resolving problems with USCIS.   The Ombudsman’s office addresses individual case inquiries and recommends ways to fix systemic issues to improve immigration services.  For the year between April 1, 2010 and March 31, 2011, the USCIS Ombudsman office handled 3,247 case inquiries.

The Ombudsman’s office is an independent office within the Department of Homeland Security and is not a part of USCIS.   This, in theory at least, allows it some independence and impartiality when dealing with USCIS.  The report, required by law, provides an overview of the Ombudsman’s office’s activities and significant developments reflecting on the Ombudsman and USCIS.

The 2011 Report

This  year’s report details pervasive and serious problems and best practices related to humanitarian, family, employment, customer service and transformation.

Humanitarian.  With respect to humanitarian issues, the report focuses on enhancing trafficking protections, processing of deferred action requests and asylum cases.

Family.  With respect to family issues, the report discusses the family-based visa retrogression (which we have discussed extensively), survivor benefits under section 204(l) under INA, military immigration issues and juvenile immigrant issues.

Employment.  With respect to employment immigration, the report focuses on USCIS’s VIBE tool, the immigrant investor visa program (EB-5), ongoing issues relating to improper or overly burdensome requests for evidence (RFE), E-Verify issues, and EAD processing delays.

Customer Service.   With respect to customer service, the report discusses problems with posted USCIS processing times, call center and customer service interactions, and interagency cooperation.

Conclusion

The 2011 report is an useful (yet, lengthy, at 84 pages) read as it provides a somewhat independent insight into USCIS’ operations.   We applaud the Ombudsman’s office efforts to create transparency, to improve USCIS’s processes and to assist with cases on an individual basis.

Our office would be happy to provide case assistance which may include enlisting the Ombudsman’s help.  Please feel free to contact us.

The concept of a “public charge” has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation.  The idea is that the U.S. taxpayer should not support new immigrants, at least for an initial period of their admission into the U.S.   An individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident. However, receiving public benefits does not automatically make an individual a public charge.

Background

Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” If an individual is inadmissible, admission to the United States or adjustment of status will not be granted.

Immigration and welfare laws have generated some concern about whether a noncitizen may face adverse immigration consequences for having received federal, state, or local public benefits. Some noncitizens and their families are eligible for public benefits – including disaster relief, treatment of communicable diseases, immunizations, and children’s nutrition and health care programs – without being found to be a public charge.   As a result, there is some confusion as to what kind of benefits do constitute a public charge and what kind of benefits do not.   With USCIS guidance, we seek to provide guidance.

Public Charge – Definition

USCIS defines “public charge” as

an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.”

See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).

In determining whether an alien meets this definition for public charge inadmissibility, a number of factors are considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge.

Benefits Subject to Public Charge Consideration

USCIS guidance specifies that cash assistance for income maintenance includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and state or local cash assistance programs for income maintenance, often called “general assistance” programs.   Acceptance of these forms of public cash assistance could make a noncitizen inadmissible as a public charge if all other criteria are met.  However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds.   Each determination is made on a case-by-case basis in the context of the totality of the circumstances.  See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).

In addition, public assistance, including Medicaid, that is used to support aliens who reside in an institution for long-term care – such as a nursing home or mental health institution – may also be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations. Short-term institutionalization for rehabilitation is not subject to public charge consideration.

Benefits Not Subject to Public Charge Consideration

Under the USCIS guidance, non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration. Such benefits include:

• Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care and emergency medical services) other than support for long-term institutional care
• Children’s Health Insurance Program (CHIP)
• Nutrition programs, including the Supplemental Nutrition Assistance Program (SNAP)- commonly referred to as Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
• Housing benefits
• Child care services
• Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
• Emergency disaster relief
• Foster care and adoption assistance
• Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary or higher education
• Job training programs
• In-kind, community-based programs, services or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
• Non-cash benefits under TANF such as subsidized child care or transit subsidies
• Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans’ benefits, and other forms of earned benefits
• Unemployment compensation

Some of the above programs may provide cash benefits, such as energy assistance, transportation or child care benefits provided under TANF or the Child Care Development Block Grant (CCDBG), and one-time emergency payments under TANF.   Since the purpose of such benefits is not for income maintenance, but rather to avoid the need for ongoing cash assistance for income maintenance, they are not subject to public charge consideration.

Conclusion

As described above, a public charge can have very serious consequences on one’s immigration process.  As a result, we caution that the information provided above is based on general USCIS guidance which can vary based on individual case facts.   We urge our clients and readers to conduct extensive research (and/or consult us) before accepting benefits which may be deemed to be public charge.

It may seem like an April Fools Day joke at first sight, but apparently it is not.  The Texas Service Center has been issuing and emailing premium processing receipt and approval notices for I-140 cases filed as far back as April 2010.

Example of I-140 Email Notice

The emails (delivered on April 1, 2011) look something like this:

Receipt Notices

The Texas Service Center has received the following
I-140 Immigrant Petition for Alien Worker
that had been filed under the Premium Processing Service:

Receipt Number: SRCXXXXXXXX
Date Received: 05/04/2010
Petitioner: PETITIONER, INC.
Priority Date: To Be Determined
Beneficiary: BENEFICIARY NAME

The Form I-797 Receipt Notice will follow in the mail.

Approval Notices

The Texas Service Center has approved the following
I-140 Immigrant Petition for Alien Worker
that had been filed under the Premium Processing Service:

Receipt Number: SRCXXXXXXXX
Petitioner: PETITIONER COMPANY, INC.
Priority Date: 06/01/09

Beneficiary: BENEFICIARY NAME
DOB: 0X/0X/71
Classification: E21

The form I-797 Approval Notice will follow in the mail.

Please note that this e-mail message is being sent as a
courtesy and cannot be used as evidence of nonimmigrant
status. Nor can this message be used as evidence to procure
an immigrant visa.

Pending and Approved I-140 Cases Seem to be Unaffected

These notices seem to be for cases previously filed with the TSC’s premium processing unit for which email receipt and approval notices were never issued.   Our office has handled a number of TSC filings, including in the relevant period of the past 12 months, and we have never received the (expected) I-140 receipt or approval notices.   Looks like they are arriving now, months after the cases have been processed and approved.  To our knowledge, paper I-140 receipt and approval notices from TSC have not been affected.

Explanation of the Old I-140 Email Notices

There has not been an official explanation by TSC or USCIS yet.  An unconfirmed theory for the reason behind this sudden deluge of I-140 receipt and approval email notices is a glitch with TSC’s email servers.  It is possible that the outgoing email server at TSC was misconfigured and was holding all outgoing I-140 receipt and approval notice emails.   In an interesting coincidence, the problem seems to have been “fixed” on April 1st.

Update from USCIS

April 1, 2011, 5:12 pm.   USCIS has more or less confirmed our theory that this sudden outburst of delayed emails was caused by software.

“The program that sends the automated emails on premium processing cases has been off-line for some time. A new version of the program was deployed today and it appears to be catching up on emails for older cases that didn’t receive any email notifications. For cases already completed, the email notifications can be disregarded.

We are working with our Information Technology colleagues to research and confirm if emails on recent / current cases are also being queued for generation.

Sorry for any confusion this may have caused.”

In late January 2011, U.S. Citizenship and Immigration Services (USCIS) announced that they would begin testing their new Validation Instrument for Business Enterprises (VIBE) tool.

About VIBE

VIBE is a tool designed to enhance USCIS’s adjudications of certain employment-based immigrant and non-immigrant petitions such as I-140 and I-129.  VIBE uses commercially available data to validate basic information about companies or organizations petitioning to employ alien workers.

The need for VIBE (or a similar tool) is apparent.  Currently, when adjudicating employment-based petitions, USCIS primarily relies on paper documentation supplied by the petitioning company or organization to establish the petitioner’s eligibility for the requested classification. Petitioners often (rightly) submit large amounts of paperwork as evidence of their current level of business operations.  When petitioners’ paperwork does not sufficiently document the evidence required under the law, USCIS issues a Request for Evidence (RFE) for additional documentation, delaying final adjudication of the petition.

With VIBE, USCIS would be able to obtain electronically commercially-available information from an independent provider (Dun & Bradstreet) about a petitioning company or organization.  Among the pieces of information which would be available through VIBE are:

• Business activities, such as type of business (North American Industry Classification System
  code), trade payment information and status (active or inactive).
• Financial standing, including sales volume and credit standing.
• Number of employees, including onsite and globally.
• Relationships with other entities, including foreign affiliates.
• Status, for example whether it is a single entity, branch, subsidiary or headquarters.
• Ownership and legal status, such as LLC, partnership or corporation.
• Company executives.
• Date of establishment as a business entity.
• Current physical address.

USCIS Would Use VIBE To Verify and Test Petitioner’s Information

As part of the adjudication process, VIBE would not only be used to verify the information submitted by the petitioning employer but also to obtain key pieces of information which may not be provided.  For example, if a petitioner is seeking L-1 status for a beneficiary, VIBE will help the adjudicating officer confirm that the petitioner has a foreign affiliate, which is a requirement for granting L-1 status.  In cases where petitioners must establish ability to pay (e.g. certain I-140 petitions), information from VIBE will assist in confirming the petitioners’ financial viability.

USCIS has indicated that they would not deny a petition based on information obtained from VIBE without first giving the petitioning employer the opportunity to explain or clarify the information via RFE or a Notice of Intent to Deny (NOID).

Petitions Included in VIBE

As of this time, the following petition types are subject to VIBE confirmation:

• Immigrant: E12 (EB-1 OR), E13 (EB-1 MM), E21 (EB-2), E31 and E32 (EB-3), EW-3 (Other Workers) — all filed on I-140 and SD1 and SR1  — filed on I-360.
• Non-immigrant: E-1, E-2, E-3, H-1B, H-2A, H-2B, H-3, L-1A/B, Blanket L, Q-1, R-1 and TN.

Petitions explicitly excluded from VIBE at this time are E11 (EB-1 EA), E21 (EB-2 NIW), EB-5, O and P.

Conclusion

While USCIS has always maintained the position that they are free to and do indeed check public records (which may include simple web searches or maps) to verify the information on a petition, the formal use of the VIBE tool would add another avenue for USCIS to test the information and, possibly, find more reasons to issue RFE or NOID notices.   Small companies, for which the Dun & Bradstreet data may not be of such high quality or accuracy are likely to suffer the most because the chance of discrepancy between information, as submitted at the time a petition is filed, and the information contained in the Dun & Bradstreet database is higher.

Employers may wish to register with Dun & Bradstreet which allows an opportunity to update key company information.  This is especially true for employers who suffer a disproportionate number of RFE or NOID notices.   Please feel free to contact us for further help or information.