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