November 2010 Archives

November 23, 2010

USCIS Issues Several New and Revised Forms

On November 23, 2010 US Citizenship and Immigration Services (USCIS) not only raised filing fees for some applications, lowered them in others, and instituted some new fees. It also issued several new and revised forms as follows:

Revised Form I129 for H-1B, H-2A, H-2B, H-2C, H-3, E-1/E-2, E-3, L-1, O, P, Q, R and TN nonimmigrant temporary workers: The general form has changed as well as the visa specific supplemental forms. (See an earlier posting, "Revised H-1B Form and Increased Fees Effective November 23, 2010.) Previous editions can be submitted through December 22, 2010. Beginning December 23, 2010, the new form must be used. E-Filing will not be allowed for this form on a temporary basis. In some cases, there may be strategic reasons to submit the old form for as long as possible before using the new form due to some of the new questions. Therefore, it is a good idea to consult with counsel first.

Form I129S for Blanket L Petitions for Intra-Company Transferees: Prior versions are accepted though January 6, 2011. The new form must be used beginning January 7, 2011.

Revised form I212 Application for Permission to Reapply for Admission after Deportation or Removal: The old form can be used through January 6, 2011 after which the new version must be used.

New Form I-912 Request for Fee Waiver can be used as of November 23, 2010 to apply for application fee and biometrics fee waivers pursuant to new fee waiver rules.

New Form I924, Application for Regional Center is a for the EB-5 Immigrant Investor green card Pilot Program to have Regional Centers approved. Designated Centers will then file form I924A on or before December 29, 2011 and every year thereafter

For more information, see the USCIS website.

November 19, 2010

Revised H-1B Forms and Increased Fees Effective November 23, 2010

A new I129 Form will be introduced and published on November 23, 2010, the same date the filing fees increase from $320 to $325.00 for the base fee, and from $1000 to $1225.00 if premium expedited processing is requested. The form is used for several non-immigrant categories including E-1/E2, E-3, H-1B, H-2A, H-2B, the expired H-2C registered nurse, H-3, L-1, O, P, Q, R and TN. On top of the base fee for each of these categories there are fraud and training fees that vary by category, employer size and other requirements. Fraud fees were increased from $750 to $2000 back in August 2010 for certain H-1B petitioning firms with 50 or more employees and 50% of the workers on H-1B and L1 visas. There is also an optional M-735 H-1B Processing Sheet to help work out which fees are due and who is subject to the annual cap (maximum annual limit on H-1B visas).

U.S. Citizenship and Immigration Services (USCIS) will accept previous editions of the I129 form for 30 days or until December 22, 2010. Thereafter, the new form must be used. Consulting counsel about which form to use in the next 30 days is advised because there could be strategic reasons to favor one form over the other in light of the new questions being asked described in more detail below.

New Features in the Final Form

A. Off-Site Work
The final general form for all categories now includes the questions whether an itinerary is attached and whether the employee will "work off-site," which has different ramifications and rules for different categories. The H supplement form includes three new questions about off-site work including that the employer certifies it will comply with off-site work rules, including payment of the appropriate wage.

B. Export Controls
The new form includes new questions about export controls, and clarifies that the questions only apply to H-1Bs, L-1s and O-1 beneficiaries. Two questions ask the petitioner to check whether or not an export control license is required for the technology or technical data the petitioner will release or will otherwise provide access to the beneficiary. The employer must certify it has reviewed Export Administration Regulations and International Traffic in Arms Regulations, and that if a license is required, the beneficiary employee will not have any access to the controlled technology or data until the license is obtained. Although we had to know something about this area before, usually in the context of consular processing of visa applications and related security checks, now immigration lawyers get to become, or work with, export control specialists since every client will need to certify that they are or are not subject to the rules. Meanwhile, it is no coincidence that these questions appear on the form at the same time the U.S. Department of Homeland Security (DHS) announced it has funded and will manage a new Federal Export Enforcement Coordination Center (Center) that will be a multi-agency law enforcement organization.

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November 14, 2010

USCIS Filing Fees Go Up November 23, 2010

On November 23, 2010, the filing fees for many U.S. Citizenship and Immigration Services (USCIS) forms go up on average 10%. USCIS published a detailed schedule. Applications filed with the old fees must be RECEIVED by Monday, November 22, 2010, which means they need to be express mailed by Friday, November 19. Some applications did not have a fee increase, such as the N400 for naturalization, but the biometrics fee that is filed with the N400 and with many other forms increased from $80 to $85 making that total cost from $675 to $680. Other applications had further adjustments to fees including a few reductions. New fees were imposed for the first time. For example, there is now a $6230.00 filing fee on form I924 to establish an EB-5 Immigrant Investor Regional Center. USCIS also published Q&As explaining their methodology for the fee increases and the comments received. It will be interesting to see if the public experiences faster processing times in exchange for the higher fees paid. A last minute crush of filings to avoid the higher filing fees could cause delays in processing.

November 13, 2010

Is the Canadian Approach to Immigration More "Enlightened"?

"'Friendly Manitoba' Craves Immigrants'", reports the Seattle Times in a November 13, 2010 article. Our Canadian neighbor appreciates the benefits of immigration so differently than in this country, where anti-immigrant fervor gets louder every day, especially as high unemployment rates remain static. Yet how could the discussion of immigration be so different in our two countries?

In the U.S., immigrant rights groups are bracing for the new Congress to step up enforcement-only, anti-immigrant rhetoric without fixing the legal immigration system. But in Canada, Jennifer Howard, Manitoba's Minister of Immigration, is quoted as saying "I have yet to have people come up to me and say, 'I want fewer immigrants.' I hear, 'How can we bring in more?' "

The Canadian system allows the individual provinces to set their own immigration requests. Manitoba has crafted its immigration needs to fit the region, culture and economy where diversity is apparently favored, appreciated and encouraged. It nominates the people it wants using a point system. Semi-skilled workers are encouraged to apply as well as highly skilled workers and their families who bring $10,000 to help in transitioning to life in Canada. While there is some opposition, Canada has managed to avoid high unemployment while welcoming a proportionately larger percentage of legal immigrants than in the U.S.

On the other hand, the U.S. has higher unemployment and illegal immigration rates. U.S. proximity to Mexico as a source of illegal immigration is one factor. Ironically, Mexicans have fewer legal temporary or permanent immigration opportunities in the U.S. as do semi- and low-skilled workers from around the world. Congress has thus far failed to fix the legal immigration system for a modern economy. Instead, it has authorized record-setting spending on enforcement over the last decade resulting in the highest level of illegal immigration ever. At the same time, the number of highly skilled legal workers has declined even though immigrants are more likely to register patents for new technologies and start businesses that employ American workers. See "Ten Economic Facts About Immigration" by the Hamilton Project of the Brookings Institution. Perhaps Manitoba's different legal immigration approach and its holistic way of welcoming new immigrants is something Americans should consider.

November 10, 2010

Court Holds Access to Government Files Essential in Immigration Proceedings

In a very important 9th Circuit Court of Appeals decision, Dent v. Holder, No. 09-71987, November 9, 2010, the Court held that Mr. Dent was entitled to his immigration files in order to have a full and fair hearing under the Due Process Clause of the 5th Amendment to the U.S. Constitution. Mr. Dent represented himself in an Immigration Court Proceedings. He was charged with being deportable because of an aggravated felony. However, he alleged that he had been adopted by a U.S. Citizen when he was eleven years old. The Immigration Judge gave him opportunities to produce his adoption papers and his adoptive mother's U.S. citizenship status papers. Ms. Dent was born in 1904 when birth records were not kept, and she died while on an annual trip to Honduras from where she had originally met Mr. Dent and decided to adopt him. Mr. Dent claimed his adopted mother's papers were in the government files because she had to present them in order to bring him to the U.S. Unbeknownst to Mr. Dent, for years there was a government file never turned over to him that contained his mother's and his applications for naturalization. In what looks like an abhorrent set of circumstances, the government may have denied the mother's naturalization 27 years after she filed it and long after the Immigration Judge denied his case and he appealed. The Court was concerned about the authenticity of the adjudication of the naturalization applications.

The Court held that Mr. Dent was entitled to copies of his A files so that he could challenge the deportation charges against him, particularly since he claimed to be a naturalized U.S. citizen. (Immigration application files are often referred to as "A files" because each immigrant is assigned a number starting with A followed by several digits.) The Court stated:

It would indeed be unconstitutional if the law entitled an alien in removal proceedings to his A-file, but denied him access to it until it was too late to use it. That would unreasonably impute to Congress and the agency a Kafkaesque sense of humor about aliens' rights. Prejudice here is plain, because the A-file, when it is fully examined and this case adjudicated on all the facts, may show that Dent is a naturalized citizen of the United States.

The Court acknowledged the difficulties people before the Immigration Courts have when they are unrepresented and when they try to navigate the complexities of immigration law by themselves. The Court held that individuals in removal proceedings must be given a copy of their files to meet the burden of proof in removal proceedings and that they should not have to wait for the results of a Freedom of Information Act Request (FOIA).

Those of us who frequently file FOIA requests for our clients know that it can take months if not a year or more to obtain their files. Even then we often receive heavily redacted files. The Court acknowledged that a person could be deported during the time it takes to get a response to a FOIA request. The Court held that it is by statute that individuals before the Immigration Courts are mandated to have access to any records or documents pertaining to a person's entry or admission into the U.S. But it is by regulation that one files a FOIA request for "records" not necessarily having to do with removal proceedings. Because of the time it can take to get a FOIA response, the Court acknowledged that a person's Due Process rights could be violated where the statute mandates access to the file.

This case has huge implications for immigration practitioners. Although there is a process to get FOIA requests expedited in removal proceedings, the fact is the file is heavily redacted and often not timely to meet Court hearings or to plan strategy. Moreover, this case highlights two issues I have discussed in earlier posts. One concerns the extra problems created by the lack of counsel. As I noted in my post on October 29, 2010, NPR Highlights Role of Private Prisons Behind Arizona's SB1070, the Executive Office of Immigration Review (EOIR) which runs the Immigration Courts estimates that 60% of individuals before the Courts are unrepresented. This case also highlights the scenarios I mentioned in my November 9, 2010 post on U.S. Citizen Documentation Problems Stem from Immigration Enforcement When the government can hide the ball by keeping information from immigrants and U.S. citizens in court, justice is not served, especially where the ultimate penalty can be banishment from the U.S. and possibly death abroad.

November 8, 2010

U.S. Citizen Documentation Problems Stem from Immigration Enforcement

584383_united_states_passport.jpgImmigration enforcement legislation creates problems for U.S. citizens as well as for immigrants. Over the last few years, we have seen growth in our American citizen clientele because of new federal and state documentation burdens enacted under the guise of national security or to combat illegal immigration. The most common refrain we hear is: "I grew up in the U.S. I always thought I was an American but never had anything to show for it and I never needed the proof until now." Ironically, we hear the same thing about the children of undocumented immigrants who have grown up in the U.S.; only now we are dealing with "undocumented Americans."

Documentation burdens affecting American citizens include:

WHITI: WHITI stands for the Western Hemisphere International Travel Initiative. WHITI requires U.S. citizens to have one of these types of documents when returning from Canada, Mexico, the Caribbean or Bermuda: passports, enhanced drivers' licenses, military cards with travel orders, Merchant Marine Cards, I872 American Indian or Enhanced Tribal cards, Trusted Traveler Cards (see below), or in the case of children under 16, original birth certificates, evidence of birth recorded abroad, or naturalization certificates.

The number of Americans holding U.S. passports has been fairly low compared to other countries, but filings have substantially increased in the last two to three years as WHITI was fazed in. Now, more Americans need passports or one of the documents listed above to re-enter the U.S. from travel destinations not far from the U.S. U.S. Customs and Border Protection (CBP) has a useful "Know Before You Go" brochure describing what documents are needed. Keep in mind that the cheaper Enhanced Drivers License only allows for reentry from specified countries, and only some states offer it. A U.S. Passport is more flexible and required for travel from other countries around the world. You can learn about Washington State's Enhanced Drivers License here. To obtain a passport, see the U.S. Department of State's website.

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November 5, 2010

Employers Should Be Aware of ICE I-9 Audit History

It still surprises me 24 years after enactment, how many employers still don't know about their I-9 obligations under the Immigration Reform and Control Act (IRCA) of 1986. Since then, employers are required to complete Form I-9s documenting the work permission status of employees hired after November 6, 1986, including U.S. citizens. Even among employers who know of their I-9 obligations, many still do not fully understand the scope of the I-9 process and record keeping requirements; nor the extent to which Immigration and Customs Enforcement (ICE) has substantially ratcheted up their audits, investigations and sanctions. (See my earlier post on I-9 Form Revisions Subject of USCIS Stakeholders Meeting.)

ICE is the agency responsible for employer audits and raids. Employers should review the ICE press releases to see the size and scope of fines, the mistakes made by employers and the severity of penalties, including criminal indictments. Employers can be fined for failure to complete I-9s at all, for failure to properly complete and retain I-9s, and for "knowingly" hiring unauthorized workers. There are criminal consequences for continuing to hire unauthorized workers, especially after an audit, for a pattern or practice of knowingly hiring unauthorized workers and for more serious offenses such as harboring, smuggling, dealing in or accepting fraudulent documents and related offenses. ICE has been known to indict not just owners and shareholders, but also individual employees, supervisors and managers engaged in such schemes.

A quick look at the ICE website list of press releases concerning workplace enforcement shows these recent examples of settlements or criminal investigations. Every employer should take note:

  • Brownwood Furniture, California - criminal information filed charging president and primary shareholder with obstruction of justice and continuing to hire unauthorized workers;
  • Timbuktu and By the Docks Restaurants, Maryland - owner sentenced to prison for harboring for private financial gain and competitive advantage 24 unauthorized workers some of which he housed. His sentence included $250,000+ fine and forfeiture of another $300,000 in property. He had continued to employ unauthorized workers, and accepted false documents despite a prior enforcement action. He had also received Social Security mismatch letters [a confusing subject and whole other can of worms] and failed to complete I-9 forms.
  • Masters in Metal, California - owners criminally charged for continuing to hire unauthorized workers following I-9 audit three years earlier finding several employees had fake green cards. Although the company reported these people were later terminated, some were apparently in fact not terminated.
  • Abercrombie and Fitch, Michigan - settled $1,047,110 fine for "technology deficiencies" in its I-9 verification system. (See an earlier post, Million Dollar Fine Imposed on Abercrombie & Fitch for I-9 Technology Deficiencies);
  • IFCO Systems, Texas - five managers indicted for conspiring to hire unauthorized workers following a tip at its New York plant;
  • Koch Foods, Ohio - settled a $500,000+ fine for administrative I-9 violations after 161 unauthorized workers were arrested pursuant to a search warrant;
  • 180 Audit Notices issued March 2, 2010 in five southern states;
  • Pilgrams Pride, Texas $4.5 settlement for hiring unauthorized workers at seven plants;
  • 652 Notices of Inspection issued to employers in 2009.

Referring to the one page I-9 form as "an obscure federal document, NPR posted an Associated Press (AP) story about I-9s on November 1, 2010 in "Warnings Abound in Enforcing Immigration Job Rules", in which the Abercrombie and Fitch case was discussed. AP was able to obtain and analyze summaries of 430 ICE audits conducted between July 1, 2009, and January 31, 2010.

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November 4, 2010

I-9 Form Revisions Subject of USCIS Stakeholders Meeting

As part of its efforts to be more transparent and engage the public, U.S. Citizenship and Immigration Services (USCIS) held a stakeholders meeting this week about making changes to the Form I-9 or the Employment Eligibility Verification form. Form I-9 is required to be used by all employers to document the work permission status of new hires. This has been the law since 1986. But, what should be a simple to use one-page form, continues to confound employers who are increasingly being warned, fined or indicted for violations in completing or using the form and/or for "knowingly" hiring or continuing to hire unauthorized workers.

I attended the teleconference and found the meeting to be very interesting for several reasons. USCIS has held a number of public engagement meetings and also posts the minutes or notes from meetings on its website. While USCIS creates the I-9 form that all employers must use to document the work permission status of new hires, including U.S. citizens, it is another agency, ICE (Immigration and Customs Enforcement), that conducts audits or raids of employers looking for evidence of satisfactory I-9 record keeping, or evidence of hiring unauthorized workers. ICE is far less transparent, given that it is an investigative agency, while USCIS is a benefits agency.

This particular public engagement meeting was very well attended by universities, employers, attorneys, and community based organizations from around the country. USCIS was most interested to learn from the audience what works and does not work for employers using the I-9 form. This form has been around since 1986 when Congress passed the Immigration Reform and Control Act (IRCA). It has taken on new importance in recent years as immigration enforcement actions have increasingly focused on employers as the magnets for illegal immigration. The Obama Administration has focused more efforts on penalizing employers than on the unauthorized workers, often using them as witnesses against the employer. But the I-9 verification process continues to be confusing for many employers, particularly as the program is linked to E-Verify, the government's online database for checking work permission status. E-Verify is not mandatory....yet .....except for federal contractors, and for use by certain employers previously audited. E-Verify is also required in those states that have passed legislation requiring E-Verify for state or local government contracting or where it is mandatory for the entire state. Nonetheless, E-Verify employers must still have their own manual or electronic I-9 verification procedures in addition to using E-Verify. (See an earlier post about a challenge to Arizona's mandatory E-Verify law in Chamber v. Whiting, "Arizona Cases Set for Argument."

The audience was asked to imagine what the "ideal I-9 form would look like" given that it is the law to have one and employers must use it. The audience provided many suggestions to make the form easier to understand, to accommodate a greater range of the more peculiar immigration statuses allowed in the law, and to make it easier for both employers and employees to understand their obligations and the various types of documents they are likely to see. Of course, what remains to be seen is how USCIS will use the comments to make the I-9 more user-friendly and less time consuming for employers, since the slightest inaccuracies can lead to fines.

November 1, 2010

C-SPAN Broadcast of USA v. Arizona Today

The Ninth Circuit Court of Appeal heard oral argument today in USA v. Arizona, which was broadcast live on C-SPAN.

The three judge panel consisted of Judge Richard A. Paez, Judge Carlos T. Bea and Judge John T. Noonan, Jr. Representing the State of Arizona and Governor Jan Brewer was John J. Bouma. Representing the U.S. was U.S. Deputy Solicitor General Edwin Kneedler. Arizona Governor Jan Brewer was also present. There were protests and supporters outside the courthouse in San Francisco as well as in other jurisdictions. Numerous amici, or friends of the court, briefs were filed on both sides of the case by cities, counties, and states (including the City of Seattle, which signed on to the County of Santa Clara brief), federal legislators, and community, bar and foundation groups of all types. The briefs from each are posted on the Ninth Circuit Court of Appeals website.

USA v. Arizona involves only four of the provisions in the original Arizona statute, SB 1070. Arizona claims each provision is consistent with the objectives of Congress and federal legislation to enforce immigration laws. According to Arizona, the only issue where federal statutes preempt the Arizona law is the authority of the federal government to determine who stays or must leave the U.S. Arizona claims that violations of two of its statutory provisions are also violations of federal law. Judge Bea asked Mr. Bouma if Arizona was trying to suggest that where the federal government did not or would not enforce its laws, whether Arizona could enforce immigration laws for the federal government. As an example, Judge Bea asked whether if he didn't pay his income taxes could California come along and sue him for failure to pay income tax? Mr. Bouma responded that California would not be interested in suing for income taxes, but that Arizona is concerned about the disproportionate impact on the state by the federal government's failure to curb illegal immigration or Congressional failure to enact immigration reform.

One of the questions on appeal is whether Arizona law enforcement officers can legally be mandated to question people about their immigration status based on a "reasonable belief" that a person is in the U.S. illegally. Part of the provision states a person "shall not be released" until the person's status is determined. The judges asked how this would play out in the field. Mr. Bouma responded that police are trained in constitutional protections of search and seizure, including reasonable suspicion, probable cause and Terry stops, and that if someone produces a drivers license, that is a presumption of legal status. But Judge Bea noted the presumption can be rebutted.

The federal government contends that the Arizona scheme is unconstitutional and inappropriately interferes with federal immigration enforcement and foreign policy. The Arizona law, if replicated in other states, would create a patchwork of confusing and inconsistent immigration enforcement laws across the country that conflict with the national scheme in the federal Immigration and Nationality Act, as amended.

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