Thursday, December 22, 2011

H.R. 3012 Bill in the Senate - What Is the Chance?


As the bill moves close to the final phase of legislation in the Senate, the impact of this bill has been placed under the close microscope in two angles: One is an in-depth analysis of the long-term benefit of the bill and the other is the scope of potential negative impact of the bill on other side of the spectrum. Until now, no one had the complete answers to these two questions and debate on these two issues has just begun in the political arena, which is likely to trigger intense struggle between pro and con of the bill in the Senate.

As the depth of impact of this bill has thus far been under the shadow, there is already a sign and debate from the two end of the spectrum, which will lead to the intense pro and con lobbying activities ahead. Thus far, there has been no set schedule for its companion bill in the Senate.

Traditionally, employment-based piecemeal immigration reform has faced two hawks in the Senate. One is labor union-backer legislators and the other is anti-immigration legislators. The labor unions in this country have welcome guest workers in the farm and related industry because they help the union to expand its political power since such workers are unionized work forces but opposed the high tech professional workers that are not unionized work forces. Senator Dick Durbin, the Senate majority whip, and Senator Chuck Grassley have gained a reputation as the American Worker Protectionists.

They have initiated a numerous legislative bills to restrict H-1B and L-1B programs and oppose piece-meal employment based immigration reform. However, when it comes to legalization of undocumented aliens, Sen. Dick Durbin is at forefront to support Comprehensive Immigration Reform, particularly so-called DREAM Act for undocumented youngster, while Sen. Chuck Grassley opposes legalization of undocumented aliens and Comprehensive Immigration Reform. It will be interesting how Rep. Chaffetz of Utah and Sen. Mike Lee of Utah will be able to negotiate with Sen. Grassley to remove the first road block to the Senate consent to the bill, i.e. scheduling of the bill in the Judiciary Committee.

Ranking member in a committee in the Congress is similar to a "co-chair" of the committee representing the minority (party) members of the committee in the House or the Senate. Since the Republican party is a minority group in the Senate, in the Senate committees, there are Republican Ranking Members and when it comes to a bill which is sponsored by the Republican party Senators, the Democrat Chairs of the Committees must work with the Ranking Members to schedule hearings and mark-ups for the bills which are sponsored by the minority party House Representatives in the House and the minority party Senators in the Senate.


http://www.greencardapply.com/news/news11/news11_1206.htm

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USCIS Transformation Initiative for Online Filings


The U.S. Citizenship and Immigration Services (USCIS) is undertaking a series of technological updates known as the Transformation Initiative. Transformation is essentially an effort by USCIS to move the application process from a paper-based system to an online, electronic system.

The transformation of the USCIS from primarily a paper-based system to an online system will be an enormous shift in its operations. Over the past few years, our firm has already begun to see positive results of the USCIS' improved use of technology. There are bound to be delays and technical difficulties, as is to be expected with such a massive undertaking. If the transformation process operates according to current plans, it will greatly reduce requests for the submission of duplicate information and documentation.

Transformation is intended to provide better service to those seeking immigration benefits. One of the key components of the transformation is the use of an account-based system. Those seeking immigration benefits will be able to create online accounts. According to the USCIS Web Site, applicants will be able to utilize these accounts for such functions as updating personal information, scheduling appointments, requesting benefits and submitting information, and viewing case status and history.

When the system is fully implemented, individuals seeking immigration benefits, such as the employment authorization document (EAD) or a change of status, will be able to apply online through an individual customer account. In addition, when one initially signs up for a customer account, s/he will input biographical information that will auto-populate all subsequent applications filed, removing the need to reenter personal information multiple times. Once implemented, the system will allow online payment by credit card and will provide receipt numbers immediately.

While the USCIS does not have a deadline for the completion of the transformation process, it has set timeline goals. The first phase, which will establish customer accounts for Form I-539, Application to Change or Extend Status filings, has a goal of being in place by the end of fiscal year 2011 (FY11). The project has been contracted to IBM. According to the USCIS response to the CIS Ombudsman's 2010 report to Congress, substantial steps have been taken toward reaching this goal, with the first customer-facing changes scheduled for implementation in the last quarter of FY11. This phase, according to the USCIS, would include the online individual accounts, electronic filings, online biometric scheduling, and the capability for applicants to upload documentary evidence.

http://www.greencardapply.com/news/news11/news11_1214.htm


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The Immigrant Waiting List By Country


Immigrant visa issuances during fiscal year 2012 are limited by the terms of INA 201 to no more than 226,000 in the family-sponsored preferences and approximately 144,000 in the employment-based preferences. (Visas for "Immediate Relatives" - i.e., spouses, unmarried children under the age of 21 years, and parents - of U.S. citizens are not subject to numerical limitation, however.)

It should by no means be assumed that once an applicant is registered, the case is then continually included in the waiting list totals unless and until a visa is issued. The consular procedures mandate a regular culling of visa cases to remove from the count those unlikely to see further action, so that totals are not unreasonably inflated. If, for example, a consular post receives no response within one year from an applicant to whom the visa application instruction letter (i.e., the consular "Packet 3" letter) is sent when the movement of the visa availability cutoff date indicates a visa may become available within a reasonable time frame, the case is considered "inactive" under the consular procedures and is no longer included in waiting list totals.

The fourteen countries with the highest number of waiting list registrants in FY 2012 are listed below; together these represent 79.5% of the total. This list includes all countries with at least 60,000 persons on the waiting list. The per-country limit in INA 202 sets an annual maximum on the amount of preference visas which may be issued to applicants from any one country; the 2012 per-country limit will be approximately 25,900.

Country Applicants

Mexico 1,374,294
Philippines 503,266
India 343,401
Vietnam 281,439
China-mainland 248,494
Dominican Republic 171,217
Bangladesh 161,769
Pakistan 118,985
Haiti 112,450
Cuba 85,908
El Salvador 83,221
Jamaica 66,016
Korea, South 64,020
Colombia 61,430
All Others 948,489
Worldwide Total 4,624,399

http://www.greencardapply.com/news/news11/news11_1220.htm


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Reference Letter for Green Card Application


Question:

I am currently working for an NIH Agency under J1 visa, and would like to apply for Green Card under the EB1 and NIW (National Interest Waiver) categories at the same time.

I want to ask my advisor at the agency to write a reference letter for me. Is it true that a NIH employee cannot write reference letter for Green Card application purpose?

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Answer:

The NIH staff members may not write letters of reference/recommendation to or for submission to another federal agency in support of visa or Green Card applications, on behalf of the NIH Agency or on NIH Agency's letterhead. But an employee should be able to his/her own personal letter on plain stationery for an alien's performance and achievement.

Also, the NIH staff members may send the requestor copies of any performance evaluations ("form of evaluation") which was previously prepared describing the person's relative skills, performance, development, etc., or copies of any letters of reference that previously wrote to evaluate his/her suitability for a job at another institution.

Furthermore, an official letter may be written by a high level NIH official (IC Director, Scientific Director, or above) as part of the official agency (e.g. NIH) sponsorship of a candidate for NIH employment, and submitted by the Division of International Services-Office of Research Services (DIS-ORS), NIH, to the DHS-USCIS. DIS-ORS is the only office at NIH authorized to communicate with other agencies on immigration matters.

http://www.greencardapply.com/question/question11/question11_1017.htm



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Procedure of Form I-140 Petition by Using USCIS' E-Filing


Question:

I want to file my Form I-140 application by USCIS' e-filing. What it the process and how could I do it? Thank you.

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Answer:

The e-filing process for Form I-140 has two steps: First, you need to go to USCIS' e-filing log-in page (https://efiling.uscis.dhs.gov/efile ) and fill out form I-140 online. After you file, you will be provided a checklist of required initial evidence and supporting documentation.

Then, you need to mail all required initial evidence and supporting documentation to the physical address specified in the Form I-140 instructions. USCIS' processing will not begin until the required supporting documentation is received.

You are NOT eligible to e-File Form I-140 if you are applying for a waiver of the filing fee, or you are requesting that your case be expedited (does not include filing for Premium Processing). The fee for e-Filing Form I-140 can be paid online.

http://www.greencardapply.com/question/question11/question11_1205.htm


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Requirement of "Employer-Employee Relationship"


Question:

My potential employer is an independent contractor, and it may place me at a third-party worksite. Do you think my situation could qualify for the H-1B visa application requirement of "employer-employee relationship"?

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Answer:

The H-1B regulations currently require that a United States employer establish that it has an employer-employee relations with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. USCIS clarifies such relationships, particularly as it pertains to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites.

In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including:

1) establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;

2) demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and

3) filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.

http://www.greencardapply.com/question/question11/question11_1219.htm


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Monday, September 5, 2011

USCIS Initiatives to Promote Startup Enterprises and Spur Job Creation


Background

On Aug. 2, 2011, Secretary of Homeland Security Janet Napolitano and USCIS Director Alejandro Mayorkas outlined a series of policy, operational, and outreach efforts to fuel the nation’s economy and stimulate investment. These initiatives will allow our nation to realize the potential of current immigration laws to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow the U.S. economy and create American jobs.

Introduction

The following actions mark the six-month anniversary of Startup America, a White House-led initiative to reduce barriers and accelerate growth for America’s job-creating entrepreneurs. These measures have been one key focus of the President's Council on Jobs and Competitiveness, which has recommended taking action to help ensure that America can out-innovate and out-compete the world in a global economy.

Availability of EB-2 National Interest Waivers to Entrepreneurs

Entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States. USCIS has issued Frequently Asked Questions to clarify this issue. USCIS will also conduct internal training on the unique characteristics of entrepreneurial enterprises and startup companies and incorporate input from the upcoming stakeholder engagements detailed below.

The EB-2 visa classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements can be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the United States.

Availability of H-1B Visas to Entrepreneurs

Entrepreneurs with an ownership stake in their own companies, including sole employees, may be able to establish the necessary employer-employee relationship to obtain an H1-B visa, if they can demonstrate that the company has the independent right to control their employment. USCIS has updated existing FAQs to clarify this issue.

New Procedures for Processing EB-5 Petitions

USCIS is enhancing the EB-5 immigrant investor program by transforming the intake and review process. In May, USCIS proposed fundamental enhancements to streamline the EB-5 process which include: extending the availability of premium processing for certain EB-5 applications and petitions; implementing direct lines of communication between the applicants and USCIS; and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. After reviewing stakeholder feedback on the proposal, USCIS will begin implementing the first of these enhancements within 30 days.

Premium Processing Service Available to Additional Employment-Based Visa Categories

USCIS will also expand its Premium Processing Service to immigrant petitions for multinational executives and managers (often referred to as “E13”). The Premium Processing Service allows employers to expedite processing of their petitions, absent evidentiary deficiencies, fraud or national security concerns. With this addition, nearly all employment-based petitions and applications will have the option of Premium Processing.

New Engagement Opportunities for Entrepreneurs and Startup Companies

USCIS is committed to open and transparent communication with stakeholders. The Office of Public Engagement will host a series of meetings to discuss issues of importance to foreign entrepreneurs and start-up companies. These engagements will provide USCIS with valuable stakeholder feedback on how entrepreneurs and start-up companies can be eligible for employment-based visa categories. USCIS will host the first of these engagements on Aug. 11, 2011.

USCIS is also launching Conversations with the Director, a new series of small group meetings with Director Mayorkas to discuss immigration issues important to communities around the country. The first meeting will take place the week of Aug. 15, 2011, and will focus on economic development and the EB-5 investor program.
http://www.greencardapply.com/news/news11/news11_0809.htm


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Student and Exchange Visitor Information System


The Student and Exchange Visitor Program (SEVP) is developing the next generation of the Student and Exchange Visitor Information System (SEVIS). The new system, known as SEVIS II, is designed to address the limitations of the current SEVIS system.

While SEVIS II will modernize and improve many areas of the process, it also will transfer more responsibility for the maintenance of status to the foreign national students, themselves, who are in F, M, and J nonimmigrant statuses. As soon as there is better access to one's SEVIS record, it will be important to monitor that record.

Following September 11, 2001, Congress mandated the use of an electronic system to collect information on students (F-1 and M-1), exchange visitors (J-1) and their dependents. To meet this mandate, the U.S. Department of Homeland Security (DHS), in conjunction with the U.S. Department of State (DOS), developed the web-based SEVIS system that includes information on enrollment, graduation, program compliance, and program transfer for the foreign nationals subject to SEVIS.

SEVIS also maintains information on sponsoring schools and authorized exchange visitor program sponsors. This allows U.S. consular officers to confirm information received on the forms issued by the sponsors to the foreign nationals via SEVIS. These are Form I-20 for F-1 and M-1 students and DS-2019 for J-1 exchange visitors.

While SEVIS II will continue to collect information on students and exchange visitors throughout their periods of authorized stay, it is intended to modernize and improve the current SEVIS system in a number of areas. These are explained below.

SEVIS II will transition to a paperless tracking system. Students, exchange visitors, school officials, and sponsor officials will be able to use digital signatures to sign electronic forms. This will eliminate the need for hardcopies of Forms I-20 and DS-2019.

Government officials also will have the ability to electronically document decisions on visa issuance, change of status, requests for employment authorization, and related matters. After the new system is implemented, it is recommended that students retain their historical hardcopies of Forms I-20 and DS-2019.

SEVIS II will allow students and exchange visitors to create individual user accounts that will permit them to directly access their own records. If information is inaccurate, students and exchange visitors will be able to request that SEVP update their information. This will help ensure that data is accurate and up to date. This is an important feature, as students and exchange visitors frequently do not become aware of problems with their SEVIS registration for some time. See http://www.greencardapply.com/news/news11/news11_0817.htm

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Self-Check Services for Employment Authorization Verification


USCIS Expands Self-Check Services for Individual Employment Authorization Verification to 21 States. The USCIS announces that USCIS is releasing the Self Check service in phases.

At this point the service is offered only to users that maintain an address in Arizona, California, Colorado, the District of Colombia, Idaho, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New York, Ohio, South Carolina, Texas, Utah, Virginia, or Washington. The availability of Self Check will be limited for the initial launch as the service is tested and improved upon based on the outcomes of the initial implementation.

Self Check is a voluntary, fast, free and simple service that allows you to check your employment eligibility in the United States. If any mismatches are found between the information you provide and your Department of Homeland Security or Social Security Administration records, Self Check will inform you of how to correct those mismatches.

Self Check is a service of E-Verify. Once you have confirmed your employment eligibility using Self Check, you are unlikely to encounter difficulties upon being hired by an E-Verify participating employer. See http://www.greencardapply.com/news/news11/news11_0818.htm

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Secure Communities - Federal Policy Resulting in Wave of Deportations Draws Protests


A program that is central to President Obama’s immigration enforcement strategy has drawn protests by Latino and immigrant organizations in six cities in the last two days, as those groups stepped up their confrontation with the administration over the fast pace of deportations.

In Los Angeles, about 200 immigrants and their supporters walked out of a stormy hearing Monday evening that was called by a task force advising the enforcement program, known as Secure Communities. Bearing signs that said “Stop Ripping Families Apart,” the protesters called for an end to the program, which they said had led to the deportation of victims who reported domestic violence to the police, and to parents of American citizen children.

On Tuesday in Chicago, several dozen protesters delivered thousands of petitions calling for an end to the program to the headquarters of Mr. Obama’s re-election campaign. Petitions were also delivered by small groups of protesters to Democratic Party offices in Miami, Atlanta, Houston and Charlotte, N.C.

About two dozen prominent immigrant advocacy organizations issued a report denouncing the program and calling on the administration to halt it. Organizers said the protests were a response to an announcement on Aug. 5 by Immigration and Customs Enforcement, the federal agency that runs Secure Communities, that the program would continue to expand to meet its declared goal of covering the whole country by 2013. Clarifying doubts about whether states and cities could choose whether to participate, John Morton, the agency’s director, said that agreements with state and local officials were not required for the agency to proceed.

President Obama has made no headway in a divided Congress toward an immigration overhaul that would give legal status to millions of illegal immigrants. At the same time, in each of the last two years immigration authorities have deported nearly 400,000 people.

Under Secure Communities, fingerprints of anyone booked into jail by the state and local police are sent to the F.B.I. for criminal checks — long a routine practice — and also to the Department of Homeland Security, which records immigration violations. Immigration agents decide whether to detain noncitizens signaled by fingerprint matches.

The ferment on Tuesday exposed vastly differing views of the program between immigrant advocates and Obama administration officials. In an interview, Mr. Morton said the program was working effectively to carry out his agency’s focus on deporting immigrants convicted of serious crimes.

“It’s the law, and we think it is very good policy, to focus our resources on people who are here unlawfully and also committing crimes,” Mr. Morton said. He said agency figures showed that about 90 percent of those deported under Secure Communities since it was started in 2008 were either convicted criminals or foreigners who had failed to obey a court order to leave the country or who had returned to the United States illegally after deportation.
See http://www.greencardapply.com/news/news11/news11_0825.htm


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Prevailing Wage Determinations in PERM labor certification


Recently, Board of Alien Labor Certification Appeals (BALCA) rendered an opinion on cases regarding the use of expired Prevailing Wage Determinations (PWDs) in PERM labor certification cases. The appeals body within the U.S. Department of Labor (DOL) is the Board of Alien Labor Certification Appeals (BALCA). The useful information that follows is provided to help both employers and employees as such cases demonstrate the complexity and, sometimes, conflicting outcomes when PERM regulations are applied to specific situations.

BALCA issued an opinion in the Matter of Horizon Computer Services, Inc. on May 25, 2011 vacating a denial of a PERM labor certification (PERM/LC). As mentioned above, as an appeals body, BALCA rules on appeals of denied PERM/LCs.

This case had been denied because the required recruitment of U.S. workers had commenced prior to the validity of the PWD and the case had been filed after the PWD expired. As explained below, BALCA agreed with the procedures used by the employer, and allowed the case to go forward even though recruitment was started before the PWD was obtained, and the case filed after the PWD expired.

The regulations governing PERM/LCs require employers to either file the PERM case during the validity period of the PWD or initiate recruitment during the validity of the PWD. In the Matter of Horizon Computer Services, Inc., the employer commenced its earliest recruitment efforts before the PWD validity period began, and filed the PERM/LC after the PWD had expired. The argument surrounded whether the recruitment efforts must begin (i.e. the first step) while the PWD is valid, or whether it is enough that any recruitment (even if not the first step) occurs when the PWD is valid.

BALCA held that, to use an expired PWD to file a PERM case, the employer must have initiated at least one recruitment step during the PWD's validity period. It allowed this case to go forward because part of the recruitment had occurred while the PWD was valid. BALCA did not require that recruitment wait entirely until the PWD validity period. Since the employer had met the requirement with respect to the recruitment timing, it was determined to be acceptable to file the case after the PWD expiration. See http://www.greencardapply.com/news/news11/news11_0905.htm



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B-2 Status and Extensions of B-2 Status


USCIS Policy Memorandum on Changes to B-2 Status and Extensions of B-2 Status for Cohabitating Partners and Other Nonimmigrant Household Members

This memorandum which was released on 08/17/2011 and published on 08/26/2011 clarifies that change of stutus to B-2 visitor or one or more extension of B-2 status are appropriate in the exercise of discretion for household members, including the cohabitating partner of a principal nonimmigrant visa holder when other eligibility requirements are met for the change of status to B-2 or extension of B-2 status.

When evaluating an application for change to or extension of B-2 status based on cohabitation, the cohabitating partner’s relationship to the nonimmigrant principal alien in another status will be considered a favorable factor in allowing the household member to obtain or remain eligible for B-2 classification.

When considering a change of status and/or multiple extensions for the cohabitating partner or other household member, the finite nature of the stay, rather than the duration of the stay or number of extensions sought, is controlling with respect to nonimmigrant intent.

For example, the visit should be considered temporary even if the status may be extended several times over several years in order to match an extended course of study undertaken by the principal alien. However, while the I-539 (B-2) application must be adjudicated on its own merits, a finding that the principal nonimmigrant lacks nonimmigrant intent is a negative factor in the exercise of discretion. See http://www.greencardapply.com/news/news11/news11_0906.htm

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Sunday, August 7, 2011

Requests For Evidence (RFE) and the Validation Instrument for Business Enterprises


http://www.greencardapply.com/news/news11/news11_0528.htm

As part of on-going anti-fraud measures, the U.S. Citizenship and Immigration Services (USCIS) is in the process of implementing a program known as Validation Instrument for Business Enterprises (VIBE). VIBE is a web-based tool that will allow the USCIS to corroborate certain basic information about a company during adjudication of employment-based visa petitions. Use of this program is becoming evident in the content of Requests For Evidence (RFEs). Thus, employers need to be aware of the VIBE and, in some cases, take steps to update their company information.

When adjudicating employment-based visa petitions, the USCIS relies, in part, on information submitted by the petitioning employer to determine eligibility for petition approval. The VIBE program is intended to allow adjudicators to verify the accuracy of the employer's information through comparison with data commercially available. The information accessible to the Immigration Services Officer (ISO) through the VIBE program includes: company ownership and legal status, number of employees, financial standing, date of establishment, and physical address.

At this time, almost all immigrant and nonimmigrant employment-based classifications are included in the VIBE program. Those not covered are petitions requesting EB1, Extraordinary Ability; EB2, National Interest Waiver; EB5, Immigrant Investors; and nonimmigrant P and O classifications.

The USCIS procedures allow for the employer to explain or clarify any concerns regarding information contained in VIBE. If information collected through the VIBE program reveals inconsistencies with the employer's petition, or raises other concerns regarding the case, the USCIS should issue an RFE or notice of intent to deny (NOID) to allow for a response, rather than directly denying the case.

The RFE or NOID will clearly note that that the VIBE program has found missing or contradictory information and provide a description of this information. The petitioning employer will then have the ability to address these issues. Through beta testing, the USCIS has already begun issuing RFEs and NOIDs, based on information received through the VIBE program.

USCIS entered into a contract with New Jersey-based Dun and Bradstreet (D&B) in September 2009 to act as the information provider for the VIBE program. D&B is a supplier of commercial information on businesses. In order to avoid RFEs or NOIDs due to outdated or inaccurate information in D&B's records, employers may wish to review their D&B company report and ensure that D&B's database is accurate.

There is no fee to update company information. If a company finds that D&B does not have its information at all, it may request assignment of a D&B number. If a company's information is not included within D&B's database, however, USCIS will not automatically issue an RFE or NOID. http://www.greencardapply.com/news/news11/news11_0528.htm

The Immigration and the Benefits Subject to Public Charge Consideration


http://www.greencardapply.com/news/news11/news11_0518.htm

Introduction

Public charge has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation. 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. This fact sheet provides information about public charge determinations to help noncitizens make informed choices about whether to apply for certain public benefits.

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.

Definition of Public Charge

In determining inadmissibility, 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. See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). Each determination is made on a case-by-case basis in the context of the totality of the circumstances.

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. http://www.greencardapply.com/news/news11/news11_0518.htm

The Permanent Resident's Naturalization, and Its Impact on Unmarried Children



http://www.greencardapply.com/news/news11/news11_0517.htm

On January 31, 2011, the USCIS Ombudsman's Office hosted a public teleconference on the Child Status Protection Act (CSPA) to share information from USCIS and interview Charles Wheeler, author of the book "AILA's Focus on the Child Status Protection Act," as well as numerous articles on the Child Status Protection Act.

Under current law, an Legal Permanent Resident (LPR) parent’s I-130 petition filed on behalf of an unmarried son or daughter over 21 will automatically convert from second-preference 2B to first preference when the LPR parent naturalizes. The same is true if the child was under 21 at the time the I-130 was filed but later turned 21 before the LPR naturalized; the petition converts from 2A to 2B.

However, the first preference category is now backlogged much further than the second preference 2B category for beneficiaries from the Philippines, and on occasion it has been backlogged further for beneficiaries from Mexico. Therefore, when their parents naturalize, and these children over 21 convert from 2B to first preference, they actually extend the time they must wait for their visa to become current. The CSPA attempts to eliminate this disparity and inequity by allowing these beneficiaries to elect whether they want to automatically convert to the first preference or opt out and stay in the 2B category.

Mr. Wheeler noted that USCIS has released a memo defining the opt-out request procedure. Affected children may file their request in writing with the USCIS District Office having jurisdiction over the beneficiary’s residence. Beneficiaries who are approved will be treated as if their petitioning parents never naturalized. To expedite the request, include the following information about the case: case number, date of beneficiary’s birth, name of petitioner, priority date, preference category, and a copy of the I-130 approval notice.

In response to questions from callers on the teleconference, Mr. Wheeler noted the May 2008 Neufeld memo. This USCIS policy says the one-year filing requirement is satisfied when an applicant files an adjustment application after his or her priority date becomes available for the second time. Mr. Wheeler said this argument can be extended to consular processing so that people subject to retrogression, and waiting outside the United States, should be able to come back in when their priority date becomes available the second time. http://www.greencardapply.com/news/news11/news11_0517.htm

The E-Verify Self Check for Individual's Employment Eligibility


http://www.greencardapply.com/news/news11/news11_0509.htm

USCIS Director Alejandro Mayorkas announced on March 21, 2011 the launch of the E-Verify Self Check program. This is an initiative that allows individuals in the United States to check their employment eligibility information without charge. The E-Verify system has been the subject of much criticism from various groups and individuals, in part due to concerns over the accuracy of system results. T

The new E-Verify Self Check initiative, launched by the USCIS, is a positive development that gives individuals access to their personal results, which in turn allows for proactive correction of inaccurate information. This should reduce the instances of inaccurate results from E-Verify checks initiated by U.S. employers, particularly as this initiative becomes more widely available throughout the United States. Hopefully, the E-Verify program will be used in the future with greater confidence by employers if DHS and USCIS provide accurate information.

The self check allows individuals to become aware of any inaccuracies in their records. The workers can address incorrect information and seek to resolve any mismatches or inconsistencies before applying for jobs. Most employers are not required to utilize the E-Verify system, however, participation by employers is becoming more common. The new initiative is intended to significantly reduce instances of delays in employer E-Verify processing by allowing individuals to investigate and correct problem areas in advance.

As the first step in the self-check initiative, the USCIS made access available to users whose physical residences are in Arizona, Idaho, Colorado, Mississippi, Virginia, and the District of Columbia only. The USCIS will be expanding the number of states whose residents will be able to use E-Verify Self Check in the coming months, until it is in place all across the United States. As of this writing, the USCIS has not provided any specific timelines for completion of the entire initiative.

In the March 21, 2011 news release, the USCIS indicates that the E-Verify Self Check process consists of four steps. These steps include: entry of biographic information by the user; confirmation of identity; entry of work eligibility information such as Social Security number or Alien Registration number; and receipt of employment eligibility information based on the information found in the databases of the Social Security Administration (SSA) and the Department of Homeland Security (DHS). http://www.greencardapply.com/news/news11/news11_0509.htm

Changes in PERM Processing Times and Other Factors Surrounding PERM Filing


http://www.greencardapply.com/news/news11/news11_0503.htm

Employers and foreign workers one time learned earlier this year that the PERM applications had been certified in a short period of time this year, in one week or mostly in one month for the "clean" cases. However, the April 2011 report of processing times reflects somewhat slow-down of the processing times, albeit minor. Careful readers must have noticed the difference in report cut dates between March and April 2011.

The cut off date in March report was March 9, while the cut off date in April 2011 was April 25. The clean cut case processing time in March report was February 2011 and the same for April was March 2011. However, because of the cut-off date difference, it appears that there is practically about two weeks or so delays as of April 2011 as opposed to March 2011. Information indicates that employers start receiving clean-cut case certifications which were filed early March or February 2011.

We have no information as to any potential further delays in processing times, but the employers should be aware of the foregoing record in planning for filing of PERM applications. AILA reports that approximately 50% of cases are in Supervised Recruitment & Audit track, approximately 20% of cases are Appeals track, and only approximately 30% of cases in Analyst Review track, clearly reflecting changing environment of PERM processing. The report also indicates that denial rate has been substantially increased. This changed environment is caused by the OFLC reenforcement of integrity (fraud) investigations and this is likely to continue.

The DOL SOC/OES wage data is expected to change as of July 2011. Considering the recent trend of inflation rate, the wage date for 2011 which will be released and controlling for the prevailing wage determination is likely to reflect upward changes in the wage rates. Currently, OFLC's ETA 9141 prevailing wage determination takes "three weeks," with a valid period of 90 days. It means that unless ETA 9141 is filed at least three weeks or earlier of July 1, 2011, the employers will be subject to potentially higher prevailing wage determination for the labor certification. Prudent employers may thus take care of the prevailing wage determination request by May at the latest. Just a reminder. http://www.greencardapply.com/news/news11/news11_0503.htm

The H-1B and L-1 Visa Application Fees - Training and Anti-Fraud


http://www.greencardapply.com/news/news11/news11_0502.htm

The American Competitiveness and Workforce Improvement Act (ACWIA) established what is commonly referred to as the "training fee." This fee is currently set at a level of $1500 for companies with more than 25 employees; the fee is reduced to $750 for companies with 25 employees or fewer. This payment must accompany most H1B petitions.

The amount collected, totaling more than $2.3 billion between fiscal years 2000 and 2011, is used for funding training and scholarships for U.S. workers. The report cites a statistic from the National Science Foundation (NSF) that a portion of these funds has been used for 58,000 college scholarships for U.S. students in the fields of science and math.

The L-1 and H1B Visa Reform Act, established a $500 fee to be utilized for fraud prevention and detection. This fee must be paid with the initial H1B or L-1 petition filed by an employer. The report states that $772 million has been generated since the initiation of this fee. The funds are utilized by the U.S. Department of State (DOS), U.S. Department of Labor (DOL), and Department of Homeland Security (DHS) in fraud detection initiatives.

As there are ongoing hearings and debates in Congress over the H1B program, the fees charged to employers, measured in billions, should be given some weight. These fees are used for purposes far beyond simply covering government costs in processing H1B petitions. U.S. workers benefit by training and scholarships. A wide variety of fraud initiatives began and grew once the $500 anti-fraud fee funds were available for supporting these efforts.

These heavy costs to U.S. employers further illustrate the genuine need for the highly-skilled, professional H1B workers, as their hiring comes with benefits for the U.S. economy and the U.S. population. http://www.greencardapply.com/news/news11/news11_0502.htm

Wednesday, April 20, 2011

What Kind of Checks Will Be Included in the I-485 Background Security Check?


Question:

My EB1A application has been approved. Thank you very much for the help of your Do It Yourself package of EB1A. Now my I-485 application is pending. I called the USCIS Customer Service Help Line for my case progress, and was told that it is in the process of "background security check". What kind of checks will be included in this background security check?

Answer:

To ensure that immigration benefits are given only to eligible applicants, USCIS adopted background security check procedures that address a wide range of possible risk factors. Different kinds of applications undergo different levels of scrutiny. USCIS normally uses the following three background check mechanisms but maintains the authority to conduct other background investigations as necessary:

1) The Interagency Border Inspection System (IBIS) Name Check— IBIS is a multi-agency effort with a central system that combines information from multiple agencies, databases and system interfaces to compile data relating to national security risks, public safety issues and other law enforcement concerns.

2) FBI Fingerprint Check—FBI fingerprint checks are conducted for many applications. The FBI fingerprint check provides information relating to criminal background within the United States. Generally, the FBI forwards responses to USCIS within 24-48 hours. If there is a record match, the FBI forwards an electronic copy of the criminal history (RAP sheet) to USCIS.

3) FBI Name Checks—FBI name checks are also required for many applications. The FBI name check is totally different from the FBI fingerprint check. The records maintained in the FBI name check process consist of administrative, applicant, criminal, personnel and other files compiled by law enforcement. Initial responses to this check generally take about two weeks. In about 80 percent of the cases, no match is found. http://www.greencardapply.com/question/question11/question11_0214.htm

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H-1B Fees for U.S. Worker Training and Fraud Prevention


Question:

As a small company with 15 employees, we plan to hire a recent college graduate with our sponsorship for H-1B visa. What are the fees we need to pay for the H-1B application?

Answer:

The American Competitiveness and Workforce Improvement Act (ACWIA) established what is commonly referred to as the "training fee." This fee is currently set at a level of $1500 for companies with more than 25 employees; the fee is reduced to $750 for companies with 25 employees or fewer. This payment must accompany with the H-1B petition. The amount collected is used for funding training and scholarships for U.S. workers.

Also, the L-1 and H-1B Visa Reform Act established a $500 fee to be utilized for fraud prevention and detection. This fee must be paid with the initial H-1B or L-1 petition filed by an employer. http://www.greencardapply.com/question/question11/question11_0420.htm

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The Criteria Used by USCIS for EB1 Prizes or Awards with National or International Significance


The Criteria Used by USCIS for EB1 Prizes or Awards with National or International Significance

Question:

As a researcher at a U.S. national research lab, I am preparing my Green Card application in the EB1 category. I am considering to claim the "prizes or awards" criterion, but not sure the if my awards, mostly graduate/post-doc level awards, can be considered by USCIS officers for national or international significance. Do you know what are the criteria used by USCIS for this issue?

Answer:

To determine whether the alien applicant has received lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor, the relevant USCIS considerations regarding whether the basis for granting the prizes or awards was excellence in the field include, but are not limited to:

1) The criteria used to grant the awards or prizes;
The national or international significance of the awards or prizes in the field; and

2) The number of awardees or prize recipients as well as any limitations on competitors. An award limited to competitors from a single institution, for example, may have little national or international significance.

http://www.greencardapply.com/question/question11/question11_0404.htm
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NIW Petition - Addressing all the NYSDOT Case's Prongs Separately


Question:

I recently got a Request For Evidence from USCIS. They asked all questions I provided before in the initial petition cover letter and supporting documents. I am not sure if they lost my NIW package or some documents. Please see my attached RFE notice and let me now how I could reply it. Thank you very much!

Answer:

It has happened to many people that USCIS lost the supporting documents, especially when the I-140 was e-filed. So, there is a small chance that USCIS lost your package. However, we do see that USCIS RFE says: "The petitioner appears to be part of a talented team doing research that could be of national interest. The team is just one of many that are working on the same type of research- which indicates USCIS know your qualifications."

In your cover letter, you should address all the prongs for NIW by quoting the relevant laws and addressing each of them separately, which means the following prongs issued in the NYSDOT case:

1) it must be shown that the alien seeks employment in an area of substantial intrinsic merit;

2) it must be shown that the proposed benefit will be national in scope;

3) the petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required.

It has to be shown that aliens ability to serve national interest is significantly above than available U.S. worker with same minimal qualifications, and it must be shown that the alien has a past record of contributions to areas of national interest justifying future benefit to national interest.

When we go through the rest of your RFE, it seems that you haven't addressed each of the prongs separately and established how you satisfy them.
http://www.greencardapply.com/question/question11/question11_0415.htm

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USCIS Record of Approvals and Denials of EB-1A and and EB-1B


USCIS Record of Approvals and Denials of EB-1A and and EB-1B

USCIS Record of Approvals and Denials of EB-1A (EB1-Extraordinary Ability) and EB-1B (EB1-Outstanding Researcher or Professor) I-140 Petitions. This statistics reflect that EB-1A and EB-1B approval rates had been higher than 50% in general from FY 2005 through FY 2010. The approval numbers have steadily increased more or less.

Approval and Denial Statistics for I-140, Immigrant Petition for Alien Workers
1) Table A provides data on the approval and denial for the E-11 classification (Alien of Extraordinary Ability) of the Form I-140, Immigrant Petition for Alien Workers.

Fiscal Year: 2010
Approvals: 3,200
Denials: 1,998
Approval Rate: 62%
Denial Rate: 38%

2) Table B provides data on the approval and denial for the E-12 classification (Outstanding Professor or Researcher) of the Form I-140, Immigrant Petition for Alien Workers.

Fiscal Year: 2010
Approvals: 3,140
Denials: 306
Approval Rate: 91%
Denial Rate: 9%

http://www.greencardapply.com/news/news11/news11_0416.htm
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Thursday, March 10, 2011

CBP Fact Sheet on Expired Visa


The nonimmigrant visas for some of these nonimmigrants might have expired. These nonimmigrants usually know that they can travel and return with expired visa inasmuch as they have a valid I-94 and return within 30 days.

However, there are a lot of catch to the automatic visa revalidation rule, including but not limited to (1) unavailability of such privilege for people from certain designated countries of terrorism, (2) unavailability of such automatic revalidation if a visa was applied in the contiguous countries during the trip, (3) unavailability of such automatic revalidation if change of visa was obtained within the U.S., (3) unavailability of such automatic revalidation for a trip to adjacent islands (Caribbean islands) unless you have a right type nonimmigrant visas (F and J) and with some additional conditions, M visa holders with a proof of nonimmigant status within the United States. Accordingly, those who consider such vacation trips should check with the CBP not to be trapped outside of the U.S.

AUTOMATIC REVALIDATION

FACT SHEET

May 7, 2009

Pursuant to 22 CFR 4 1.1 12 and 8 CFR 214.1 automatic revalidation applies to expired nonimmigrant visas of aliens who have been out of the U.S. for thirty days or less in contiguous territory (Canada and Mexico).

In the case of F-1 and J-1 students, automatic revalidation applies to contiguous territory and adjacent islands other than Cuba. An M-1 student can only apply for automatic revalidation readmission after an absence of less than 30 days solely from contiguous territory.

Nonimmigrants who are eligible to re-enter the U.S. pursuant to the authority of automatic revalidation are not able to benefit from the automatic revalidation process if the non-immigrant's passport reflects evidence that while in contiguous territory or on an adjacent island the nonimmigrant applied for a new visa and is pending a decision or has been denied a new visa application.

Nationals of Iran, Syria, Sudan, and Cuba are not eligible for automatic revalidation of an expired visa. Thus, for example, if a citizen of Iran travels to contiguous territory for a day and has an expired visa, but a valid extension approval notice of status; he will need to obtain a visa to return to the U.S.
Automatic revalidation does not apply to the Visa Waiver Program. Readmission to the U.S. after departure to contiguous territory or adjacent islands for Visa Waiver Program applicants is covered under 8 CFR 217. 3(b).

http://www.greencardapply.com/news/news11/news11_0207.htm

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USCIS Implements "Single Document" for EAD


USCIS instructs adjudicators issuance of an Employment Authorization Document (EAD), Form I-766, with an advance parole endorsement for the I-485 applicants who file EAD and AP applications concurrently on or after December 21, 2010. The new policy for the single EAD/AP is that whenever possible, USCIS adjudicators will simultaneously adjudicate "concurrently filed" applications for employment authorization and applications for advance parole authorization filed by applicants for adjustment of status under 8 CFR 245 or to register status under 8 CFR 249.

If USCIS approves both applications, it will issue a single document, Form I-766, Advance Parole EAD, as provided in this Policy Memorandum. USCIS is also reviewing whether it is feasible to expand eligibility for an EAD with advance parole endorsement to other EAD recipients who are eligible for advance parole. See USCIS Announcement of 02/11/2011 below.

USCIS to Issue Employment Authorization and Advance Parole Card for Adjustment of Status Applicants

Feb. 11, 2011

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced that it is now issuing employment and travel authorization on a single card for certain applicants filing an Application to Register Permanent Residence or Adjust Status, Form I-485. This new card represents a significant improvement from the current practice of issuing paper Advance Parole documents.

The card looks similar to the current Employment Authorization Document (EAD) but will include text that reads, “Serves as I-512 Advance Parole.” A card with this text will serve as both an employment authorization and Advance Parole document. The new card is also more secure and more durable than the current paper Advance Parole document.

An applicant may receive this card when he or she files an Application for Employment Authorization, Form I-765, and an Application for Travel Document, Form I-131, concurrently with or after filing Form I-485. USCIS will continue to issue separate EAD and Advance Parole documents as warranted. Employers may accept the new card as a List A document when completing the Employment Eligibility Verification, Form I-9.

As with the current Advance Parole document, obtaining a combined Advance Parole and employment authorization card allows an applicant for adjustment of status to travel abroad and return to the U.S. without abandoning the pending adjustment application. Upon returning to the U.S., the individual who travels with the card must present the card to request parole through the port-of-entry. The decision to parole the individual is made at the port-of-entry. Individuals who have been unlawfully present in the U.S. and subsequently depart and seek re-entry through a grant of parole may be inadmissible and ineligible to adjust their status.

For more information about the EAD and Advance Parole card, see the related Questions and Answers. For more information on USCIS and its programs, visit www.uscis.gov.
http://www.greencardapply.com/news/news11/news11_0214.htm

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ICE Raids Tri-Valley University


1. ICE Raids Tri-Valley University on January 19, 2011

Dozens of agents from Homeland Security Immigration and Customs Enforcement swarmed Tri-Valley University in Pleasanton, Calif., Wednesday, searching administrator offices and the home of University president Susan Su. Tri-Valley bills itself as a Christian University offering degree and non-degree programs.

Of course, with an ongoing federal investigation, mum's the word. One can presume given the identity of the players that immigration law violations are suspected. But it's not like ICE is going to flat out announce the object of their investigation at Tri-Valley.

What I am wondering as I read about Tri-Valley, is why aren't the grammar police raiding this place? Tri-Valley poses as an institution of higher education, a university... but even a cursory look at its website suggests that a startling lack of functional literacy pervades it.

Tri-Valley University's supposed mission of providing "rigorous and excellent quality academic programs" is undercut by its own website. In website sections like this one, it looks suspiciously as if Tri-Valley acquired a list of buzz words and applied them indiscriminately: "Our Institution Objective is to equip individual with academic excellence, practical skillfulness and spiritual maturity."

Suspicion that Tri-Valley is more concerned about buzz words than substance is exacerbated by the list of programs. "Tri-Valley University offers Bachelor of Science (B. S.) degree in Electrical Engineering (BSEE), Computer Science (BSCS), Mechanical Engineering (BSME), Business Administration (BSBA) and Nurse (BSNS)." A degree in Nurse?

Tri-Valley can't even explain its location in a comprehensible manner. Its website says, "Tri-Valley University locates minutes of taxi (emphasis added) from the Pleasanton/Dublin BART station."

One section of the Tri-Valley website describes "On-Compus" Employment." Another asserts: "At Tri-Valley University, on-site classroom is complimented with virtual live synchronous and asynchronous on-line access." Whoever wrote that sentence apparently can't distinguish "complimented" from "complemented." The author presumably wasn't one of the faculty members because, "Faculty members and speakers at Tri-Valley University are renown professionals in the field..."

A lot of website space is devoted to Tri-Valley's procedure for admitting the international applicant, discussed in the singular: " international applicant need to submit the following required document for admission application..." The plurality of international students and the university's compliance with federal law in admitting them may well be why ICE paid Tri-Valley an unwelcome visit this week.

But back to reasons why it's really the grammar police who need to pay this institution of higher education a visit...

The students at Tri-Valley apparently take their grammatical cues from their school. On a brag page highlighting Tri-Valley's best and brightest, one student is quoted as saying, '"After attend the college for an AA degree, I went straightly to work."

A graduate who started his own company in China reports back, "After 3 years of operation, the company can now run by itself very well..." This smacks of viral emails describing student essays that say things like, "He woke up dead this morning." Perhaps the secret mission of this school to produce spam writers?

As for famous alumni, Tri-Valley is apparently in a holding pattern, waiting to see if any surface: "Now you graduate, we would like to hear from you, about life and how the study at TVU and the degree do to your career, not just your million dollor donation!"

2. US immigration authorities has asked the 1,555 students of California-based Tri Valley University (TVU) contact them directly

US immigration authorities has asked the 1,555 students of California-based Tri Valley University (TVU), which has been shut down on charges of visa fraud affecting hundreds of Indians, to contact them directly to find out the options they have to pursue their studies in this country.

"Immigration and Customs Enforcement (ICE) has taken further steps to ensure (Student and Exchange Visitor Programme) SEVP-certified schools and former Tri-Valley students have the information that they need to make informed decisions in light of the ongoing investigation," its spokeswoman, Lori K Haley said.

ICE has posted an advisory on the SEVP link on ICE's website -- http://www.ice.gov/sevis/tri-valley-110118.htm -- to direct students how to contact an SEVP representative to obtain information about their options.

"When you call, SEVP will provide you with your options including the option to depart from the United States without an otherwise possibly applicable bar to re-admission in the future," says the advisory issued to the TVU students.

Lori said due to the ongoing investigation, ICE is not discussing the details related to the Tri Valley case. SEVP terminated the records of all F-1 students enrolled at TVU as of January 18, after ICE shut down TVU following an investigation.

According to a federal complaint filed in a California court in January, the University helped foreign nationals illegally acquire immigration status. The university is said to have 1,555 students. As many as 95 per cent of these students are Indian nationals, the complaint said.

Investigations by ICE found that while students were admitted to various residential and on-line courses of the university and on paper lived in California, but in reality they "illegally" worked in various parts of the country as far as Maryland, Virginia, Pennsylvania and Texas. ICE has called it as a "Sham University", a charge denied by the University.

The ICE investigations found that more than half of these students were reported to be residing in a single apartment located in Sunnyvale California. During the course of the investigation, ICE found that the university gave the residential address of its students in order to conceal that they did not live in California, said the court papers.

For a student to maintain an active immigration status, they must show proof that they are making reasonable process toward completing coursework and physically attend classes. According to available reports, so far 18 Tri Valley students have been radio-ankled; and at least a dozen detained in various parts of the country; while all of them have lost their student visa status.

Strongly objecting to the manner in which Indian students are being treated, Indian Embassy officials here have argued that these students need to be treated in a humane manner and should not be made a victim of the federal investigation against the Tri Valley University founder and President, Susan Su.

Earlier, John Morton, Director, US ICE, had assured the Indian Ambassador to the US, Meera Shankar, that the federal law enforcement agency would use "good judgment" and "common sense" while handling the case of hundreds of Indian students who have been affected by the closer of the California-based Tri Valley University on charges of alleged immigration scam.

Morton had called Shankar after the Indian Embassy here lodged strong protest against before it and other US agencies against the manner in which Indian students are being treated by ICE including forcing them to wear radio tags, and suspension of Student and Exchange Visitor Information System (SEVIS), thus preventing them from taking admissions in other colleges and universities.

http://www.greencardapply.com/news/news11/news11_0215.htm

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"Specialized Knowledge" Interpretation in L1


U.S. State Department recognizing that agencies involving immigration laws such as DHS, USCIS, AAO, and Courts are not definite in the definition of this key term for the L-1B visa eligibility, it still found a need for its internal guidance for visa posts to make "consistent" decisions on the definition of this terms by consular officers throughout the world and has just issued this guidance cable to the visa posts. The following is the guidance:

Despite the lack of simple, bright-line, legal criteria, there are factors which have been cited by INS/DHS sources as valid for making specialized knowledge determinations. Post can use the following criteria to assist in making this adjudication:

The proprietary nature of the knowledge: While it is not strictly required that specialized knowledge involve knowledge of procedures or techniques proprietary to the petitioning company, the possession of significant proprietary knowledge can in itself meet the specialized knowledge requirement. This is expressly stated in INA 214(c)(2), which makes reference to "special knowledge of the company product and its application in international markets" or "advanced level of knowledge of processes and procedures of the company."

Legacy INS has in the past indicated that proprietary knowledge will meet the L requirement when it "would be difficult to impart to another without significant economic inconvenience." This knowledge can be acquired through on-the-job training.

If everyone is specialized, then no one is: The legislative history indicates that the specialized knowledge requirement was intended for "key" personnel. While it could be true in a small company that all experienced employees are "key," for a larger company there should be a distinction between "key" and normal personnel. This could be made based on length of experience, level of knowledge, or level of responsibility - e.g., the person has been made responsible for more complicated and/or sensitive projects. I

f a company is claiming that all the employees working on technical issues should be considered to have specialized knowledge, the company is probably employing too low a standard. On the other hand, there is no legal basis to require any specific limit on the number of employees that can be considered key. As indicated, for a small company, all employees with responsible positions may be key. A large company can have a large number of key employees who would meet the specialized knowledge criteria, but there should be a distinction between those employees and ordinary skilled workers.
http://www.greencardapply.com/news/news11/news11_0223.htm

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New I-129 Form Imposes Export Controls


Effective February 20, 2011, U.S. employers will be required to use a new version of the Form I-129, “Petition for a Nonimmigrant Worker,” which is the form that employers complete when hiring employees under H-1B or L-1 visas, among others, or when seeking extensions for employees who already have those visas.

The new I-129 form contains a certification relating to the release of export controlled information to foreign employees. We anticipate that the new I-129 will present a challenge to Human Resources managers, who are generally responsible for completing these forms, since they may be unfamiliar with export control requirements. The certification requires the employer to identify whether or not an export license is required to release export controlled information to the foreign employee and, if so, to certify that access to such information will not be provided until the requisite license is obtained.

As a practical matter, a certification requires that employers:

1) understand the export controls that apply to their equipment and technology;

2) determine a foreign national employee’s level of access to export controlled information; and

3) implement a sufficiently robust compliance program to prevent export violations due to unauthorized disclosures of export controlled information.

After February 20, companies that disclose export controlled information to their foreign employees without obtaining the proper export authorizations face potential liability for a false I-129 certification as well as liability for export violations. As a result, companies will need to ensure that they have the appropriate export compliance infrastructure in place to respond to this new requirement.

The relevant change to the Form I-129 is located in Part 6, "Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States." This part requires that the employer complete the following certification for all H-1B, H-1B1 Chile/Singapore, L-1, and O-1A petitioners.

With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:

1) A license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or,

2) A license is required from either U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

As mentioned above, completion of the certification assumes that the employer will be knowledgeable about the export control requirements relating to its equipment and technology and will be able to identify the extent of access to export controlled information by the foreign employee and prevent unauthorized disclosures (through facility or network access or other means). Since employment forms, such as the I-129, typically are completed by Human Resources personnel, it will be important for companies to ensure that such personnel have the appropriate level of information to be able to make an accurate certification.

Although all companies will be required to use the new I-129 after February 20, companies that produce products and technologies that are more likely to trigger export licensing requirements should be especially sensitive to the new requirement. At a minimum, this would include (but not be limited to) items with military or intelligence applications or other products or technology that raise national security or foreign policy concerns. Additionally, under U.S. export laws, a release of controlled technology or technical data (in any form) to a foreign person located in the U.S. is considered to be a “deemed export” back to the foreign person’s home country.

As a result, companies who hire employees from countries viewed as more hostile to U.S. national security and foreign policy interests, including embargoed destinations (such as Cuba and Iran, among others) or other sensitive destinations (such as China, India, etc.), also need to carefully consider the new certification requirement. http://www.greencardapply.com/news/news11/news11_0228.htm


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Adjusting Fees for Exchange Visitor Program


U.S. State Department Final Rule Adjusting Fees for Exchange Visitor Program: This fee change will take effect on March 26, 2011. Under the adjusted fee schedules, the fee charged to foreign nationals for a request for individual program services, such as change of program category, program extensions and reinstatements, will decrease to $233. The fee charged to U.S. corporate entities for requests for program designation, redesignation and amendments to program designation will increase to $2,700 in order to recoup the full cost of such services.

The Exchange Visitor Program Office of Designation provides services to 1,226 sponsor organizations and 350,000 Exchange Visitor Program participants. Statistically, there are Some 5,573 for-profit and tax-exempt entities that conduct foreign exchange program. Of these 1,226 Department designated entities, 933 are academic institutions and 293 are for-profit or tax-exempt entities.

SUMMARY: The Department of State is amending its regulations regarding fees and charges for Exchange Visitor Program services. The fees permit the Department to recoup the cost of providing such Exchange Visitor Program services.

DATES: Effective Date: This rule is effective 30 days from February 25, 2011.

FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Deputy Assistant Secretary for Private Sector Exchange, U.S. Department of State, SA-5, Floor 5, 2200 C Street, NW., Washington, DC 20522, 202-632-2805, or e-mail at jexchanges@state.gov.

SUPPLEMENTARY INFORMATION: The Department published a proposed rule, Public Notice 7077 at 75 FR 60674-60679, October 1, 2010, with a request for comments, amending Sec. 62.17 (``Fees and Charges'') containing all of the fees and charges for Exchange Visitor Program services. As explained in the proposed rule, the Department is increasing user fees charged for Exchange Visitor Program services in order to recoup the full cost of such services which are requested and performed for the benefit of foreign nationals or U.S. corporate entities.

These costs were calculated by an independent certified
public accounting firm in full compliance with the Office of Management and Budget directives regarding such user fee calculations as set forth in OMB Circular A-25.

The Department received three comments and is now promulgating a final rule with no changes from the proposed rule. Thus, the fee charged to foreign nationals for a request for individual program services, such as change of program category, program extensions and reinstatements, will decrease to $233. The fee charged to U.S. corporate entities for requests for program designation, redesignation and amendments to program designation will increase to $2,700 in order to recoup the full cost of such services.

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