Business Immigration Monthly - February 2012

Date: 2/3/2012
 Business Immigration Monthly - February 2012

DHS Announces Future Reforms to Attract and Retain Highly Skilled Immigrants

The U.S. Department of Homeland Security (DHS) recently announced reforms that it plans to implement in the future in order to attract and retain highly skilled immigrants. DHS stated that even though the White House is committed to fixing the "broken immigration system" in the United States, DHS will be implementing a series of administrative reforms in the future regardless of whether legislation passes Congress to fix the "broken immigration system." Although DHS did not give a timeframe of when these administrative reforms will be implemented, DHS did state that it will be implementing the following initiatives in the future to "make the United States attractive to highly skilled foreign students and workers:"

1. Expand eligibility for the 17-month STEM Optional Practical Training (OPT) extension to include students with prior qualifying degrees in Science, Technology, Engineering and Mathematics (STEM). Currently, F-1 students are only eligible for the 17-month STEM extension if their current major field of study qualifies as a STEM major. However, as part of the proposed initiatives DHS stated that it would like to expand STEM OPT to include students who have previously obtained U.S. degrees in a STEM major but are currently in a program which may not qualify for the 17-month STEM OPT extension. Additionally, DHS stated that it will continue to review merging fields for the possible addition of other STEM degree programs in the list of qualifying majors for the 17-month STEM OPT extension.

2. Allow for additional part-time study options for spouses of F-1 students and expand the number of Designated School Officials (DSO) at schools certified by DHS to enroll international students. Currently, F-2 spouses must change their status to F-1 classification in order to complete a course of study. Under the proposed initiative, F-2 spouses would be allowed to enroll in additional academic classes (which do not necessarily have to be recreational or avocational) without having to change their status. Additionally, schools would be given more flexibility to determine the number of DSOs needed to meet both the F-1 administrative and guidance requirements. Schools are currently limited to ten DSOs regardless of the size of the institution.

3. Provide work authorization for spouses of certain H-1B holders. Currently, H-4 dependent spouses are not eligible for an Employment Authorization Document (EAD). However, E and L dependent spouses are eligible for EAD cards as part of their status. Under this initiative, certain H-4 nonimmigrants would be eligible for EAD cards. However, unlike L-2 and E dependent spouses, not all H-4 spouses would be eligible for EAD cards. The initiative would limit EAD eligibility to H-4 spouses who are married to principal H-1B visa holders who have begun the process of seeking lawful permanent residence status in the United States and have meet an unstated minimum period of time in H-1B status in the United States.

4. Allow outstanding professors and researchers to present a broader scope of evidence of academic achievement in the EB-1 "green card" process. Over the past few years, the number of individuals applying for EB-1 immigrant visas has been steadily decreasing in part due to a more aggressive review of immigrant petitions in this category. Under the initiative, DHS would increase the types of evidence that employers can submit demonstrate that a professor or researcher is among the tops in their field.

5. Harmonize rules to allow E-3 visa holders from Australia and H-1B1 visa holders from Singapore and Chile to continue working with their current employers for up to 240 days while their petitions for extension of status are pending. Under the current regulation, extension petitions for E-3 and H-1B1 employees must be approved prior to the expiration of their current status because their status is not automatically extended upon the filing of an extension petition with the U.S. Citizenship and Immigration Services (USCIS). Most other visa classifications allow for the 240-day automatic extension of work authorization while an extension petition is pending. Under the initiative, DHS would expand the categories eligible for the automatic extension of employment eligibility to include E-3 and H-1B1 visa holders. However, the initiative does not propose to expand the USCIS premium processing service to the E-3 and H-1B1 categories, although this option is available in other nonimmigrant visa categories.

Additional information about the implementation of these DHS initiatives to retain and attract highly skilled immigrants will be contained in our firm's future Immigration Updates when it becomes available.

Two Manufacturing Firms Fined $2 Million Each for Employing Undocumented Workers

Immigration and Custom Enforcement (ICE) recently announced that it has reached an agreement with two Houston, Texas manufacturing companies to pay $2 million each in civil monetary penalties in settlement of a lawsuit alleging that they hired undocumented workers and failed to comply with federal immigration laws in the I-9 program.

An ICE audit of one of the manufacturing firm's Forms I-9 last year found that more than 50% of the company's workers were undocumented. ICE also alleged that this company engaged in a "pattern and practice" of hiring undocumented workers. ICE found as part of the I-9 audit of the second manufacturing firm that approximately 44% of the company's employees were undocumented workers but ICE stated that many of these employees provided the company with obviously suspect identification documents as part of the I-9 process, including misspellings of agency names and/or containing the words "novelty item." Additionally, ICE stated that both company's failed to take corrected actions after receiving multiple "No-Match" letters from the Social Security Administration (SSA) indicating that employee names and social security records did not match the agency's records. (SSA has indicated that it will not be issuing new "No-Match" letters to employers in the near future due to budgeting constraints.)

As part of the settlement, ICE agreed not to criminally prosecute the company and/or its managers/owners. However, the companies agreed to pay one of the larger monetary penalties assessed by ICE for violations of the I-9 requirements. The company also agreed to terminate the undocumented workers. Finally, the company has agreed to implement new immigration compliance procedures to properly complete, retain and audit Forms I-94.

GAO Audits SEVP

The Government Accountability Office (GAO) has recently commenced an audit of ICE's Student and Exchange Visitor Program (SEVP). As part of the audit, the GAO is researching the operations and integrity of the SEVP policies and procedures, especially in light of the Tri-Valley State University raid and closure completed by ICE's Homeland Security Investigations (HSI) in January 2010. Additional information about the Tri-Valley State University raid is contained in our firm's Immigration Updates dated April 25, 2011, July 31, 2011 and October 24, 2011.

The GAO audit of SEVP is two-fold. First, they will examine the process through which SEVP certifies academic institutions and the process used to monitor compliance of these certified academic institutions. More specifically, the GAO review may examine more closely SEVP's current recertification process and its compliance process through which SEVP monitors certified institutions. The recommendations provided by the GAO may lead SEVP to modify its recertification process for the next SEVP recertification cycle which may commence in two years. Second, the GAO audit will review the technological capabilities of the SEVIS system to determine the system's ability to detect fraud and whether it can be strengthened. The GAO may recommend modifications to increase SEVP's ability to data mine information in the SEVIS system to more quickly identify anomalies occurring within the program. For example, Tri-Valley State University authorized Curricular Practical Training (CPT) for approximately 90% of its F-1 students. Technology enhancements within the SEVIS system may allow SEVP to identify institutions that are issuing inordinate numbers of CPT or committing other actions which deviate from the average so that SEVP may more quickly follow up with these institutions to identify and remediate potential violations of the F-1 program.

DOS Announces Initiatives to Capitalize on Visa Demand to Spur Economic Growth in the United States.

The U.S. Department of State (DOS) recently announced initiatives to promote the United States as the "premier destination for international travelers." The DOS stated that it has devoted significant resources to increase efficiency and capacity in the visa process to facilitate legitimate travel without compromising national security. The DOS stated that it issued more than 7.5 million visas in the last fiscal year which represented a 17% increase in demand. The DOS stated that it has seen the most increase for visas arising in China and Brazil. Therefore, the DOS indicated that it is increasing visa processing capacity in these countries by 40% this year.

Additionally, the White House has ordered increased efforts to expand the number of countries included in the Visa Waiver Program (VWP). According to the White House, more than 60% of the international visitors to the United States do not require visas but instead enter the United States through the VWP. Since November 2009, DHS has added nine countries to the VWP. Last month, DOS sent a letter to DHS nominating Taiwan for inclusion in the VWP. This letter is the first step in adding Taiwan to the VWP which currently consists of 36 countries.

Finally, the White House indicated that under a new initiative, qualified visitors who are interviewed and thoroughly screened in conjunction with a prior visa application may be able to renew their visas without undergoing another interview. The White House indicated that eliminating interviews for the visa applicants may encourage them to choose the United States again as a tourist destination by avoiding the additional hassle of completing the nonimmigrant visa interview process again.

DOS Releases February 2012 Visa Bulletin – EB-2 Indian and Chinese National Category Continues to Significantly Advance

The DOS recently released its February 2012 Visa Bulletin. Similar to the Visa Bulletins for the past few months, the DOS continues to advance all of the employment-based visa categories. Most significantly, the DOS continues to rapidly advance the EB-2 Chinese and Indian national preference categories. In the February 2012 Visa Bulletin, the DOS most significantly advances the EB-2 Indian and Chinese national categories by one year to January 2010. The DOS has advanced these categories by more than three years within the past year. The DOS has indicated that even though it has significantly advanced these categories within the past year, the USCIS has informed the DOS that it is not seeing a significant increase in demand for employment-based immigrant visas through the adjustment of status process. However, unofficially, it has been indicated that the DOS is not receiving timely updates about the number of adjustment of status filings that the USCIS has recently received. Therefore, the DOS continues to caution in its February 2012 Visa Bulletin that there is a distinct possibility that the DOS will have to retrogress the cut-off dates in the future once the DOS receives information from the USCIS about the level of new filings or the USCIS' adjudications of adjustment of status applications significantly increase.

The following is a chart outlining the movement of the employment-based immigrant visa categories since the inception of the current retrogression in October 2005:



Dec 2007

Jun 2008

Aug 2009

Mar 2010

Dec 2011

Jan 2012

Feb 2012

EB-3 World

09/01/02

03/01/06

U

12/15/02

01/15/06

02/01/06

02/22/06



EB-2 China

01/01/03

04/01/04

10/01/03

07/08/05

03/15/08

01/01/09

01/01/10



EB-3 China

10/15/01

03/22/03

U

12/15/02

09/08/04

10/15/04

12/01/04



EB-2 India

01/01/02

04/01/04

10/01/03

02/01/05

03/15/08

01/01/09

01/01/10



EB-3 India

05/01/01

11/01/01

U

07/01/01

08/01/02

08/08/02

08/15/02



EB-3 Other Workers

10/01/01

01/01/03

U

06/01/01

01/01/06

02/01/06

02/22/06



Additional information about the priority date movement will be contained in our firm's future Immigrant Updates when it becomes available.

MFEM NEWS

MFEM Will Hold its Annual Complimentary Immigration Law Update Seminar on Thursday, March 8

MFEM will host its annual complimentary immigration law update seminar on Thursday, March 8 at the Doubletree Hotel in Arlington Heights. This seminar is one of the largest complimentary immigration seminars offered in the Midwest. This year's seminar will discuss the following immigration topics and issues:

1. H-1B and PERM Strategies for 2012;

2. Ups and Downs in Visa Processing;

3. The Ins and Outs of Processing Social Security Applications;

4. Tips to Navigating the DMV;

5. Avoiding Discrimination in the Workplace; and

6. A Review of State Immigration Laws and Managing the Complexity of Divergent State Immigration Requirements.

Additional information about the complimentary Immigration Seminar is available on the MFEM website at www.masudafunai.com. Although the seminar is complimentary, seating is limited. Registration for the seminar may be completed on the MFEM website at www.masudafunai.com.

2012 Illinois Super Lawyers

Kathleen M. Gaber, Chair of the Immigration Practice Group, and Bryan Funai, Principal, have been selected for inclusion in 2012 Illinois Super Lawyers. Ms. Gaber was previously selected as an Illinois Super Attorney on two occasions while 2012 marks Mr. Funai's fifth consecutive year appearing on the Illinois Super Lawyers list. Alan M. Kaplan of the Employment, Labor & Benefits Group, and Gary D. Santella of the Litigation Group were also selected to this year's list. Masuda Funai Associates Frank J. Del Barto and Benjamin F. Gould were selected as Illinois Rising Stars for 2012.