Business Immigration Monthly Update - October 2009

Date: 10/1/2009
 Business Immigration Monthly Update - October 2009

DOS Announces FY 2011 DV "Green Card" Visa Lottery Procedures: Registration Period From October 2, 2009 Through November 30, 2009

The U.S. Department of State (DOS) recently released information regarding the Diversity Immigrant Visa Lottery Program (DV-2011) for Fiscal Year 2011 (October 1, 2010 to September 30, 2011). The DOS will make available 50,000 "green cards annually to persons from countries with low rates of immigration to the United States. The annual DV Lottery Program makes "green cards" available to foreign nationals meeting certain eligibility requirements. Applicants for Diversity Visas are chosen by a computer-generated random lottery drawing, The Diversity Visa "green cards", however, are distributed among six geographic regions with a greater number of visas going to regions with lower rates of immigration and with no visas going to citizens of countries sending more than 50,000 immigrants to the United States in the past five years. Within each region, no country may receive more than 7% of the available Diversity Visa "green cards" in any one year.

Countries Ineligible to Participate in DV-2011 Lottery Program

For the DV-2011 Lottery Program, natives of the following countries are not eligible to apply because they are the principal source countries of Family-Sponsored and Employment-Based immigration, or "high admission" countries: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (which includes Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcaim, St. Helena, Turks and Caicos Islands, but not Northern Ireland), and Vietnam. Foreign nationals born in Hong Kong SAR, Macau SAR and Taiwan are eligible for the Diversity Visa Lottery. (Please note that Russia and Kosovo were added to the list of countries qualified for the 2011 DV program) A list of the countries whose natives are qualified for the DV-2011 Visa Lottery Program is contained in Exhibit A below.

Registration Procedures

The entries for the DV-2011 Lottery Program must be submitted electronically between noon (E.S.T.) October 2, 2009 through noon (E.S.T.) November 30, 2009. The DOS will not accept mail-in entries. Instead, the DOS will only accept entries made on an electronic diversity entry form which will be available at www.dvlottery.state.gov during the 60-day registration period. Please note that the law allows only one entry by or for each person during each registration period. Receipt of more than one entry per person will disqualify the person from registration, regardless of the source of the entry. The procedures for submitting an entry in the DV-2011 Lottery Program are as follows:

Entry Form Contents. The DOS will only accept completed Electronic Diversity Visa Entry Forms submitted electronically at www.dvlottery.state.gov during the 60-day registration period beginning October 2, 2009. All entries by an applicant will be disqualified if more than one entry for the applicant is received, regardless of who submitted the entry. The entry form will ask the applicant to submit the following information:

  1. Full name;
  2. Date of birth;
  3. Gender;
  4. City/town of birth;
  5. Country of birth;
  6. Country of eligibility or chargeability;
  7. Attaching the applicant's photograph according to the previously described specifications described below;
  8. Current mailing address;
  9. Country where you live today;
  10. Phone number (optional);
  11. Email address (optional);
  12. Highest level of education completed;
  13. Marital status;
  14. Number of children that are unmarried and under the age of 21 years of age, including legally-adopted children and stepchildren. (Failure to list all children, who are eligible, will result in disqualification of the principal applicant and refusal of all visas in the case at the time of the visa interview.);
  15. Spouse's information, including name, date of birth, gender, city/town of birth, country of birth and spouse's photograph that meets the previously described specifications. (Failure to list your spouse will result in disqualification of the principal applicant and refusal of all visas in the case at the time of the visa interview.);
  16. Each child's information including name, date of birth, gender, city/town of birth, country of birth and photograph that meets the previously described specifications. The DOS emphasizes that failure to list all children will result in the disqualification of the entry form.
  17. No signature required. The signature requirement on the entry form has been eliminated due to the new electronic entry form.

Photograph Requirements.

The entry will be disqualified if photographs are not submitted of the applicant, his/her spouse and each child under the age of 21 (including all natural children as well as legally-adopted and stepchildren, except a child who is already a U.S. citizen or lawful permanent resident) even if the child no longer resides with the applicant and does not intend to immigrate under the DV-2011 Lottery Program. The photographs must be submitted electronically with the entry form. Group or family photos will not be accepted. There must be a separate photo for each family member. Each applicant, his/her spouse and each child will therefore need a computer file containing his/her digital photograph which will be submitted on-line with the entry form. The image file can be produced either by taking a new digital photograph or by scanning a photographic print with a digital scanner. The submitted digital images must conform to the following specifications:

  1. The image must be in the Joint Photographic Experts Group (JPEG) format;
  2. The image must be color (black and white, and monochrome images will not be accepted);
  3. If a new digital photograph is taken, it must have a resolution of at least 600 pixels high by 600 pixels wide and a color depth of 24-bit color;
  4. If a photographic print is scanned, the print must be 2" x 2" square, must be scanned at a resolution of at least 150 dots per inch, must have image resolution of 300 by 300 pixels, and with a color depth of 24-bit color.
  5. The maximum image size accepted will be 240 kilobytes;
  6. The applicant, spouse or child must be directly facing the camera;
  7. The head of the person being photographed must directly face the camera and should not be tilted up, down or to the side;
  8. The head should cover about 50% of the area of the photograph;
  9. The photograph should be taken with the person being photographed in front of a neutral, light-colored background (photographs taken with a very dark or patterned background will not be accepted);
  10. Photographs in which the face of the person being photographed is not in focus will not be accepted;
  11. Photographs in which the person being photographed is wearing sunglasses or other paraphernalia which detracts from the face will not be accepted;
  12. and Photographs of applicants wearing head coverings or hats are only acceptable due to religious beliefs and still may not obscure any portion of the face of the applicant.

DOS Processing of Entries

After an applicant submits his/her entry, the DOS will send him/her an electronic confirmation notice of receipt of a completed entry form. Applicants will be selected at random by computer from among qualified entries. Those selected will be notified by mail between April and July 2010 to the address indicated on the entry and will be provided further instructions, including information on fees connected with immigrating to the United States. Applicants not selected will not receive any notification. The DOS normally notifies approximately 100,000 applicants that they have been selected through the DV Lottery Program. However, only 50,000 "green cards" are available annually. The green cards based upon the DV-2011 Lottery Program may be issued between October 1, 2010 and September 30, 2011. However, because more individuals will be registered than there are immigrant visas available, a registered applicant who wishes to receive his immigrant visa must be prepared to act quickly after being notified.

Education or Work Experience Required

In order to qualify for a "green card" through the Diversity Visa Lottery Program, each applicant must have at least a high school education or its equivalent or, within the past five years, have two years of work experience in an occupation requiring at least two years of training. A high school education or its equivalent is defined as successful completion of a 12-year course of elementary and secondary education in the United States or successful completion in another country of a formal course of elementary and secondary education comparable to a high school education in the United States. Evidence of educational work experience should not be submitted with the lottery entry but must be submitted to the consular official or U.S. Citizenship and Immigration Services (USCIS) officer at the time of the visa or adjustment of status interview. In order to determine eligibility based on work experience, definitions from the Department of Labor's (DOL) O*Net On-Line database will be used.

DOS Does Not Charge to Enter the DV Lottery Program

The DOS indicated that there is no charge to enter the annual DV Lottery Program. The DOS emphasized that it does not employ outside consultants or private services to operate the program. It stated that a qualified entry submitted electronically directly by the applicant has an equal chance of being selected by the computer at the DOS Kentucky Consular Center as does an entry submitted electronically through a paid intermediary who completes the entry for the applicant. However, the DOS warned that if an applicant or a paid intermediary submits more than one entry per person, the person will be disqualified from the program. A special DV Lottery Case processing fee will be payable later by persons who "win" the lottery and are processed for a "green card" based upon the lottery program.

EXHIBIT A

REGIONAL CLASSIFICATION OF COUNTRIES ELIGIBLE FOR THE DV-2011 LOTTERY PROGRAM

Except as noted, the list below shows the countries qualified within each geographic region for the DV-2011 Diversity Immigrant Visa Lottery Program.

Africa:

Algeria
Angola
Benin
Botswana
Burkina Faso
Burundi
Cameroon
Cape Verde
Central African Republic
Chad
Comoros
Congo
Congo, Democratic Republic of the
Cote D'Ivoire (Ivory Coast)
Djibouti
Egypt
Equatorial Guinea
Eritrea
Ethiopia
Gabon
Gambia, The
Ghana
Guinea
Guinea-Bissau
Kenya
Lesotho
Liberia
Libya
Madagascar
Malawi
Mali
Mauritania
Mauritius
Morocco
Mozambique
Namibia
Niger
Nigeria
Rwanda
Sao Tome and Principe
Senegal
Seychelles
Sierra Leone
Somalia
South Africa
Sudan
Swaziland
Tanzania
Togo
Tunisia
Uganda
Zambia
Zimbabwe

Asia:

Afghanistan
Bahrain
Bangladesh
Bhutan
Brunei
Burma
Cambodia
East Timor
Hong Kong Special Administrative Region
Indonesia
Iran
Iraq
Israel
Japan
Jordan
Kuwait
Laos
Lebanon
Malaysia
Maldives
Mongolia
Nepal
North Korea
Oman
Qatar
Saudi Arabia
Singapore
Sri Lanka
Syria
Taiwan
Thailand
United Arab Emirates
Yemen

Natives of the following Asian countries do not qualify for this year's Lottery program: China (mainland-born), India, Pakistan, South Korea, Phillipines and Vietnam. Hong Kong S.A.R. and Taiwan do qualify and are listed above. Macau S.A.R. also qualifies and is listed below.

Europe

Albania
Andorra
Armenia
Austria
Azerbaijan
Belarus
Belgium
Bosnia and Herzegovina
Bulgaria
Croatia
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Georgia
Germany
Greece
Hungary
Iceland
Ireland
Italy
Kazakhstan
Kosovo
Kyrgyzstan
Latvia
Liechtenstein
Lithuania
Luxembourg
Macau S.A.R.
Macedonia,
the Former Yugoslav Republic
Malta
Moldova
Monaco
Montenegro
Netherlands
Northern Ireland
Norway
Portugal
Romania
Russia
San Marino
Serbia
Slovakia
Slovenia
Spain
Sweden
Switzerland
Tajikistan
Turkey
Turkmenistan
Ukraine
Uzbekistan
Vatican City

Natives of the following European countries do not qualify for this year's Lottery Program: Great Britain and Poland. Great Britain (United Kingdom) includes the following dependent areas: Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, St. Helena, Turks and Caicos Islands. Note that for purposes of the Lottery Program only, Northern Ireland is treated separately; Northern Ireland does qualify and is listed among the qualifying areas.

North America

The Bahamas

In North America, natives of Canada and Mexico do not qualify for this year's Lottery Program.

Oceania

Australia*
Fiji
Kiribati
Marshall Islands
Micronesia, Federated States of
Nauru
New Zealand*
Palau
Papua New Guinea
Samoa
Solomon Islands
Tonga
Tuvalu
Vanuatu
*(including components and dependent areas overseas)

Natives of the following South America, Central America and Caribbean countries do not qualify for this year's Lottery Program: Brazil, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Jamaica, Mexico and Peru.

H-1B Quota for Fiscal Year 2010 Still Not Met (UPDATED September 25, 2009)

The U.S. Citizenship and Immigration Services (USCIS) announced on April 8, 2009 that the H-1B quota for fiscal year 2010 (October 1, 2009 through September 30, 2010) WAS NOT met during the initial filing period. (April 1, 2009 through April 7, 2009). Therefore, the USCIS continues to accept H-1B petition filings under both the regular H-1B quota and the U.S. Master's or higher Degree exemption quota. The regular H-1B quota is limited to 65,000 and the U.S. Master's or higher Degree exemption is limited to an additional 20,000. The USCIS stated that it will continue to monitor filings and notify the public when either of the two quotas has been met. When either of the quotas has been met, a random selection process will be conducted only on the petitions received on the date which the quota is actually met. The petitions received before this date will be accepted and adjudicated by the USCIS.

As of September 25, 2009, approximately 46,700 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

For the past few years, the H-1B quota has been met during the initial filing period and the USCIS has had to conduct random selection processes of the petitions received. However, it appears that due to the current economic conditions, employers have not filed as many petitions as they have in the past.

Additional information about the H-1B quota for fiscal year 2010 will be contained in our firm's future Immigration Updates when it becomes available.

USCIS Provides Prediction About Future Employment-Based "Green Card" Availability

The USCIS recently provided detailed information about the employment-based adjustment of status cases that it has pending in its offices.

The USCIS stated that the DOS is allowed to issue out 140,000 employment-based immigrant visas (a.k.a. "green cards") each year. The USCIS stated that 85% of those applications are processed through USCIS offices with the remaining 15% being processed by the DOS through the Consulates abroad. The USCIS stated that it currently has approximately 234,000 adjustment of status applications pending in its offices. This number does not include the cases that are pending with the DOS. The USCIS stated that the amount of time that a foreign national will wait to complete the employment-based immigrant visa process will depend on the individual's priority date, preference category and the country to which his/her visa will be charged (which is usually the individual's country of birth).

Of the 140,000 available employment-based immigrant visas, 40,000 are allocated to the first preference category, 40,000 are allocated to the second preference category, 40,000 are allocated to the third preference category, 10,000 are allocated to the fourth preference category and 10,000 are allocated to the fifth preference category. No more than 7% of the available immigrant visas in each category may be used by nationals of each country.

In the second preference category, the USCIS stated that it has approximately 75,000 applications pending. Of the 75,000, approximately 19,000 were filed by Chinese nationals and approximately 48,000 were filed by Indian nationals.

In the third preference category, the USCIS indicated that it has approximately 151,000 applications pending. Of the 151,000 pending applications, approximately 6,300 were filed by Chinese nationals and approximately 63,000 were filed by Indian nationals.

The USCIS indicated that it can not predict when a foreign national will exactly be able to complete the employment-based immigrant visa process. However, it stated that it is providing information about the number of pending cases so that foreign nationals are more aware of the approximate number of individuals who have applications pending with the USCIS in each preference category.

Additional information about the advancement of the employment-based immigrant visa categories will be contained our firm's future Immigration Updates when it becomes available.

Additional Information About the New FAR E-Verify Requirement

As previously discussed in our firm's Immigration Update dated August 31, 2009, the final rule amending the Federal Acquisition Regulations (FAR) to require certain federal agency contracts and sub-contracts that are performed within the United States to include a provision mandating the use of the E-Verify program became effective on September 8, 2009. Since its implementation, our firm has received many inquiries about this new requirement, especially from colleges and universities.

The following is additional information about the new FAR E-Verify requirement:

1.The new requirement only applies to contracts and sub-contracts issued on or after September 8, 2009 that specifically include a provision mandating the use of the E-Verify system. Contracts including an E-Verify requirement that are not issued pursuant to this regulation can not require the use of the special FAR E-Verify provisions.

2.The following types of contracts are exempt from the regulation- a.Grants. A grant is defined as "an award of financial assistance" that is consistent with 31 U.S.C. Section 6304, is used to enter a relationship: a) the principal purpose of which is to transfer a thing of value to the recipient to carry out a public purpose of support or stimulation authorized by a law of the United States, rather than to acquire property or services for the federal government's direct benefit or use; and b) in which substantial involvement is not expected between the federal agency and the recipient when carrying out the activity contemplated by the award;

b.Cooperative Agreements. A "cooperative agreement" is defined as an award of financial assistance that, consistent with 31 U.S.C. Section 6305) is used to enter into the same kind of relationship as a grant… except that substantial involvement is expected between the federal agency and the recipient when carrying out the activity contemplated by the award;

c.Other agreements that do not constitute "acquisition contracts;"

d.Contracts of less than the simplified acquisition threshold of $100,000;

e.Contracts that are for a period of performance less than 120 days;

f.Contracts for work being entirely performed outside the United States;

g.Contracts for commercially available off-the-shelf (COTS) items and related services;

h.Contracts for items that would be classified as COTS items, but for minor modifications, and related services;

i.Contracts for items that would be classified as COTS items if they were not bulk cargo;

j.Sub-Contracts (even if they flow from the prime acquisition contract) that only provide supplies, rather than construction or services; and

k.Sub-contracts of less than $3,000.

3.The regulation does not create any new dispute resolution procedure but instead relies on those procedures that already exist in the FAR. If a contractor does not believe that it should be subject to the E-Verify provision, the contractor may obtain review prior to the award of the contract by submitting a written "protest" to the contracting officer, Agency Head or the Government Accounting Office (GAO). If the federal contractor chooses to wait until the contract is awarded to challenge the application of the E-Verify requirement, the contractor may dispute the contracting officer's determination through different procedures contained in the FAR.

4.Colleges and universities should review the details of a contract with a federal agency and, to the extent possible, advocate for the final agreement to be structured as a grant or cooperative agreement which does not require the E-Verify clause. Although the FAR E-Verify requirement is limited for colleges and universities to existing and future employees working directly on the contract, the university will decrease its administrative efforts if it is not subject to the E-Verify requirement at all.

Additional information about the implementation of the new FAR E-Verify requirement will be contained in our firm's future Immigration Update when it becomes available.

DOS Releases October 2009 Visa Bulletin – Little Significant Forward Movement in All Employment-Based Immigrant Visa Categories

The DOS recently released its October 2009 Visa Bulletin. This is the first Visa Bulletin for the government's 2010 Fiscal Year (October 1, 2009 through September 30, 2010). Normally, the first Visa Bulletin of a fiscal year contains significant advances in the employment-based immigrant visa categories. However, the first Visa Bulletin for this fiscal year does not contain significant advances due in part to the fact that the DOS may now have more accurate information about the number of individuals waiting for employment-based green cards and their priority dates. Due to the lack of significant movement with the first Visa Bulletin of the fiscal year, it is assumed that the priority dates in most of the employment-based immigrant visa categories will only gradually advance for the foreseeable future.

The category that did become available again was the EB-3 category. This category was Unavailable during the second half of fiscal year 2009. However, the established priority dates in the EB-3 categories are significantly retrogressed from the dates that were available one year ago. Additionally, as previously stated, it is assumed that this category will only gradually move in the future due to the fact that the DOS now has more accurate information about the number of individuals pending in this category and their priority dates.

The following is a comparison of the priority dates since retrogression first occurred in October 2005:

Oct 2005

Dec 2007

Jun 2008

July 2009

Aug 2009

Sept 2009

Oct 2009

EB-3 World

03/01/01

09/01/02

03/01/06

U

U

U

06/01/02

EB-2 China

05/01/00

01/01/03

04/01/04

01/01/00

10/01/03

01/08/05

03/22/05

EB-3 China

05/01/00

10/15/01

03/22/03

U

U

U

02/22/02

EB-2 India

11/01/99

01/01/02

04/01/04

01/01/00

10/01/03

01/08/05

01/22/05

EB-3 India

01/01/98

05/01/01

11/01/01

U

U

U

04/15/01

EB-3 Other Workers

10/01/00

10/01/01

01/01/03

U

U

U

C

Additional information about the future of the priority dates will be contained in our firm's Immigration Updates when it becomes available.

USCIS' FDNS Commences Audit of H-1B Program, Including Unannounced Site Visits to H-1B Employers and Their Clients

The U.S. Citizenship and Immigration Services' (USCIS) Office of Fraud Detection and National Security (FDNS) has recently commenced an assessment of the H-1B program. The following is information that employers should know about FDNS, FDNS' current H-1B assessment program and how to respond if an FDNS Officer visits the employer's (or its client's) office as part of this assessment program.

Background: USCIS created the FDNS in 2004 with a mission to detect, deter and combat immigration benefit fraud and to strengthen USCIS' efforts ensuring benefits are not granted to persons who threaten national security or public safety. FDNS is USCIS' primary conduit for information sharing and collaboration with other governmental agencies, including Immigration Customs and Enforcement (ICE). FDNS currently consists of approximately 650 Immigration Officers, Intelligence Research Specialists and Analysts located in field offices throughout the United States. Additionally, FDNS has contracted with multiple private investigation firms to conduct site visits on behalf of FDNS. FDNS' budget is derived from the Fraud Fee which is paid by employers with each initial H-1B or L petition.

FDNS has previously conducted assessments in the L-1, EB-13 Multi-National Manager and Executive and R-1 programs. As part of these assessments programs, FDNS officers collected information during site visits to verify information pertaining to petitions that were both pending and already approved. FDNS also used the information to develop databases to identify factors and trends that could indicate fraud. As previously indicated, FDNS has now commenced an assessment of the H-1B program.

Mechanics of a FDNS Site Visit: Unlike most of the site visits with the L-1, EB-13 and R-1 assessment programs, the H-1B site visits for the most part have been unannounced. The site visits may occur at the H-1B employer's principal place of business and/or at the H-1B nonimmigrant's work location as indicated on the Form I-129 petition (regardless of whether the work location is controlled by the H-1B employer). The employer may request that its immigration attorney be present during the site visit. However, FDNS officers will not typically reschedule a site visit so that an attorney may be present. FDNS has stated that it will allow counsel to be present by phone, if requested.

FDNS has indicated that it does not need a subpoena in order to complete the site visit because USCIS regulations governing the filing of immigration petitions allow the government to take testimony and conduct broad investigations relating to the petitions. The instructions for the current version of the Form I-129 contain a section outlining the USCIS' Compliance Review and Monitoring Methods. In these instructions, the USCIS states that its verification methods may include but are not limited to: review of public records and information; contact via written correspondence, the Internet, facsimile or other electronic transmission or telephone; unannounced physical site inspections of residences and places of employment; and interviews. The instructions also indicate that the USCIS will provide an opportunity to address any adverse or derogatory information that may result from a compliance review, verification or site visit after a formal decision is made on the case or after the agency has initiated an adverse action which may result in revocation or termination of an approval. If such information is not provided by USCIS when it issues the adverse action, FDNS has indicated that the employer may request a copy through the Freedom of Information Act (FOIA).

During the H-1B site visit, the FDNS officer will normally verify information continued in a specific immigration petition, regardless of the number of H-1B petitions filed by the employer. The FDNS officer will normally have a copy of the petition. The FDNS officer will usually request to speak with the employer's representative who signed the Form I-129. However, because the site visit is unannounced, if this representative is not available, the FDNS officer will then ask to speak with another employer representative, such as a Human Resources Manager. When speaking with the employer's representative, the FDNS officer will ask the employer's representative for specific information about the company, including but not limited to, the employer's business, locations and number of employees. The FDNS officer may request to review a copy of the company's tax returns, quarterly wage reports and/or other company documentation to evidence that it is a bona fide business. The FDNS officer may also request confirmation that the signature on the Form I-129 petition is genuine. The FDNS officer usually will request detailed information about the H-1B nonimmigrant's title, job duties, work location and salary. The FDNS officer may also request to review a copy of the H-1B nonimmigrant's most recent paystub and last Form W-2. So far, FDNS officers have not been requesting to review the Labor Condition Application (LCA) Public Access file. The FDNS officer may also request information about the number of H-1B petitions that the employer has previously filed and information about the employer's immigration counsel.

After speaking with the employer's representative, the FDNS officer may then request a tour of the employer's facility. During the tour, the FDNS officer may take photographs of the facility. The FDNS officer will then normally request to interview the H-1B beneficiary. During this interview, the FDNS officer may ask the beneficiary about his/her job title, job duties, responsibilities, employment dates, position location, requirements for the position, his/her academic background and previous employment experience, his/her current address and information about his/her dependents, if any.

After speaking with the H-1B beneficiary, the FDNS officer may then request to speak with a colleague of the beneficiary and/or the beneficiary's manager. When speaking with these individuals, the FDNS officer will again request information about the beneficiary's position title, the position duties, and the requirements for the position.

After conducting the interviews and receiving any requested documentation, the FDNS officer will complete the site visit. H-1B site visits usually last for less than an hour.

Guidance for employers about FDNS site visits:

1.Although most H-1B site visits have occurred post adjudication, a USCIS adjudications officer may refer an H-1B petition to FDNS for a site visit prior to the completion of an adjudication. This may be especially true with H-1B extensions with the same H-1B employer.

2.The employer should develop a company policy about the procedures to be followed by company employees during a FDNS site visit. For employers with branch offices, the policy should require the office to contact a designated representative at headquarters prior to speaking with the FDNS officer. This designated representative should then contact the company's immigration counsel. The designated representative and immigration counsel should then be present in person or by telephone during the site visit to provide requested information to the FDNS officer.

3.Employers should request the name, title and contact information for the site investigator. There are multiple governmental agencies that may audit in the H-1B program, including ICE, the USCIS Department of Labor's Wage and Hour Division and/or the USCIS' National Threat Assessment Unit. Therefore, it is critical that the employer determine which agency it is providing information to. It is also critical to obtain this information in case the employer and/or counsel has to follow up with additional information or clarifications. If the FDNS officer is a contractor, the business card provided by the contractor will not indicate his/her name or title and will only include a toll free number for FDNS.

4.Employers should retain in its records a complete copy of Form I-129 and supporting documents filed with the USCIS. Immigration counsel should provide the employer with a complete copy of the petitions and documents filed with the USCIS. When the FDNS officer arrives for the site visit, the employer's representative should retrieve this documentation to facilitate the investigation.

5.Employers should also be forwarding a copy of the Form I-129 with supporting documents to the beneficiary. The employer may also want to meet with the beneficiary to discuss the purpose and procedure for a FDNS site visit and review the contents of the filing. If the employer is unable to meet with the beneficiary, the employer may want to forward information about FDNS site visits and the company's policy for such visits.

6.If the H-1B beneficiary has been placed at a client site not controlled by the employer, the employer should notify the end user about the current FDNS H-1B assessment program. The employer should notify the end user company that the FDNS officer may appear at its location and request to speak, at a minimum, to the beneficiary and the beneficiary's manager. If there are multiple companies between the H-1B employer and the end user, the end user should be made aware of the employer of the beneficiary and review the terms of the assignment. The employer should request that the end user company contact the employer at the beginning of a FDNS site visit so that the employer and/or its representative may be present either in person or by telephone during the site visit at the end user's location.

7.If the employer and/or end user company has secure areas which are not accessible to the public and the FDNS officer requests access to these secure areas, the employer should explain to the FDNS officer about the secure areas and possibly suggest other less sensitive areas in order to conduct interviews with the beneficiary. Although employers should comply with reasonable requests from the FDNS officers regarding the examination of the employer's premises or work areas, the employer should explain if it (or its client when the site visit is occurring at a end user client location) has strict policies against tours or photographs in such areas.

8.If an FDNS officer requests information from the employer and the employer can not provide accurate information without further research, the employer should indicate this to the FDNS officer. The employer should not "guess" about any information provided during the site visit. If the employer is unsure about some requested information, the employer may want to indicate that he/she will follow up with the FDNS officer to provide accurate information after such information is obtained. This is especially important for representatives who do not have access to information being requested by the FDNS officer and there are no other company representatives available to answer the questions during the unannounced visit.

9.A representative of the employer (and/or immigration counsel) should accompany the FDNS officer during his/her review of the facilities and request to be present during the interviews of any of the company's employees. Because the FDNS has previously indicated that the site visits are normally for informational purposes and are usually not part of a specific investigation, the FDNS officer should allow the employer's representative to be present during the entire site visit. The representative should take notes of the information requested, the sites visited, the pictures taken and/or any other relevant information from the site visit. Additionally, a record should be kept of any documentation provided to the FDNS officer during the site visit.

10.Employers should remember that any derogatory information obtained during the site visit could be used to deny a petition if the site visit occurs re-adjudication, could result in revocation of a previously approved petition in the post-adjudication process, and/or could be referred to ICE for further investigation which could lead to civil penalties or criminal prosecution.

The USCIS Vermont Service Center has indicated to AILA that it has transferred approximately 20,000 cases to the FDNS as part of the H-1B assessment program. It is assumed that the USCIS California Service Center has also forwarded a comparable number of cases for review. This is an addition to the cases that are referred to the FDNS based on a standard profile worksheet which is completed by the USCIS adjudicators as part of the regular H-1B adjudication process. Therefore, it appears that FDNS officers will be appearing at the officers of numerous H-1B employers (and their clients if the beneficiary is assigned to one of the employer's clients) within the next few months to gather information about their compliance with the H-1B program.

E-Verify FAR Rule Now Effective

September 8, 2009 marked the effective date of the USCIS' rule requiring certain federal contractors and subcontractors to use the E-Verify system to verify their employees' eligibility to work in the United States if their contract includes the Federal Acquisition Regulation (FAR) E-Verify clause. The E-Verify FAR rule requires the use of the E-Verify system to cover federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. Federal contracts awarded on or after September 8, 2009, and which are subject to rule, will include a clause committing government contractors to use E-Verify. Companies awarded a contract with the E-Verify clause on or after September 8, 2009 will be required to enroll in E-Verify within 30 days of the contract award date. With certain exceptions, E-Verify must be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts are legally authorized to work in the United States.

DOL Coordinates FEIN Information on the PERM and iCERT System

The U.S. Department of Labor (DOL) recently announced that it has enhanced its iCERT system to include FEIN verifications that have been completed in the PERM system. Under the PERM process, the DOL has been requiring employers to provide verification of business existence, which also includes a request to provide FEIN evidence. According to the DOL, any FEIN verification completed during the PERM employer existence verification process will not be incorporated into the iCERT database. This means that if an employer completed the FEIN verification previously through the PERM system, the iCERT system should be able to confirm this information without the need to have the employer complete the verification in the iCERT system for the H-1B process. The DOL has indicated that new FEIN verifications are being introduced into the iCERT system daily as PERM employer existence verifications are completed. The DOL advises that because this is a data transfer from the PERM system to the iCERT system, employers wait a day or two from the time the PERM employer existence notification is received to submit an LCA application through iCERT. Furthermore, employers can now submit FEIN data verification to the DOL in advance of the LCA filing to speed up the FEIN verification process.

MFEM NEWS:

Mr. Bob White of the Firm's Immigration Group will be Speaking at Upcoming NAFSA and AILA Conferences

Mr. Bob White of the firm's Immigration Group will be moderating panels on various immigration topics at upcoming, American Immigration Lawyers Association's (AILA) and NAFSA: Association of International Educators' conferences.

On October 21, 2009, Mr. White will be moderating a panel at the AILA Chicago Chapter's Fall Workshop on how to respond to over reaching Requests for Evidence (RFE) and Denials in the H-1B program. As the USCIS continues to aggressively review H-1B petitions and denies many petitions, especially for consulting companies, Mr. White and the other panel members will provide tips and potential solutions to immigration practitioners about how to successfully navigate an H-1B petition through the USCIS.

On October 29, 2009, Mr. White will be moderating a panel at the NAFSA Region V Conference. The panel will be discussing immigration information which every college and university should be disseminating to its international students and faculty.