1. Risk Assessment Fraud Study &endash; Part of a joint program between USCIS and Immigration and Customs Enforemcent (ICE), this study will be applicable to all family and employment-based petitions. Post-approval Applications/petitions will be chosen at random. The purpose of the study is to assist USCIS in designing profiles of potential fraud. No advance notice is required to be given to either the employer or counsel.
2. Targeted Site Visits &endash; When fraud by an employer is expected, the targeted site visits are being utilized to ask questions of the employer. Advance notice to both the employer and counsel is supposed to be provided.
3. Administrative Site Visits &endash; These site visits are conducted by contractors (usually with no knowledge of immigration law) who ask a set of specific questions provided by USCIS. The questions should be aimed at ascertaining whether the employment exists, the employer is aware that the petition/application exists, whether the employee is performing the job indicated at the salary specified on the application/petition. No advance notice is required to be given to either the employer or counsel.

So, how can employers be prepared for a visit from USCIS? In light of these latest efforts by USCIS/DHS, in addition to escalated I-9 employment eligibility enforcement measures being taken by ICE, it is imperative that employers seek adequate immigration counsel. Many of the requirements for both immigration applications/petitions and I-9 compliance are highly technical and carry tremendous liability for both employers and HR executives and staff.
For more information, please contact our offices.

A ban on travel and immigration to the U.S. by individuals with HIV, the virus that causes AIDS, was first established by the Reagan-era U.S. Public Health Service and then given further support when Sen. Jesse Helms (R-N.C.) added HIV to the travel-exclusion list in a move that was ultimately passed unanimously by the Senate in 1987.

At an October 30, 2009 press conference, President Obama had the following to say about lifting the ban:

“A couple of years ago Michelle and I were in Africa and we tried to combat the stigma when we were in Kenya by taking a public HIV/AIDS test. And I’m proud to announce today we’re about to take another step towards ending that stigma.

Twenty-two years ago, in a decision rooted in fear rather than fact, the United States instituted a travel ban on entry into the country for people living with HIV/AIDS. Now, we talk about reducing the stigma of this disease — yet we’ve treated a visitor living with it as a threat. We lead the world when it comes to helping stem the AIDS pandemic — yet we are one of only a dozen countries that still bar people from HIV from entering our own country. If we want to be the global leader in combating HIV/AIDS, we need to act like it. “

What is an H-1B nonimmigrant visa?

H-1B nonimmigrant visas allow U.S. employers to temporarily (up to six years) employ foreign workers in what USCIS calls “specialty occupations.” The regulations define a “specialty occupation” as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor and requiring the attainment of a bachelor’s degree or its equivalent as a minimum. Examples of common H-1B eligible positions are accountants, computer programmers, database administrators, general managers, marketing research analysts, medical technologists, and software engineers.

What is the H-1B nonimmigrant visa cap?

Currently, U.S. law limits the number of H-1B visas to 65,000 per fiscal year. In addition, excluded from the cap are all H-1B non-immigrants who work at universities and non-profit research facilities. Laws also exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas. Visa extensions do not count towards the annual limits.

Why is 2009 the year of the “un-cappable” H-1B visas?

In recent years, the H-1B non-masters cap has been met on April 1, the first possible day to file such petitions. As of today, the H-1B cap still has not been met. This drastic change is most likely attributed to two things: (1) current economic conditions affecting company growth and staffing needs and (2) the tightened rules on filing H-1B petitions for companies who have received TARP funding.

How does this benefit your company?

The H-1B visa is among the most coveted by U.S. employers because it allows foreign workers with only a bachelor’s degree to be employed by the company. Most visa types require certain years of foreign employment with an international branch of the employer or far more stringent eligibility requirements. For many years, the H-1B has been a vital component for many company’s staffing needs.

If your company is considering hiring an H-1B foreign worker, please contact our offices as soon as possible.

The alleged conspiracy involved the somewhat controversial H-2B visa program, which allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. In order to qualify for the H-2B program, the foreign national must either already be in the U.S. in legal status or have lived outside the U.S. for at least six months before filing. The indictment claims the defendants instructed employers to have their employees, who were working illegally, to go back to Mexico and not tell U.S. consular personnel who interviewed them that they had been in the United States unlawfully.

This is likely a situation that the American Immigration Lawyer’s Association (“AILA”), of which I am a member, would argue is the exception, not the rule. But, it isn’t that hard to see how these type of situations happen. As an immigration attorney, I have been approached by companies who depend heavily on unlawful workers and are seeking a way to “legalize” these employees. Unfortunately, until some sort of an amnesty program is created, there are very few options in these circumstances. Until then, I am guessing immigration attorneys will be far more careful when advising clients in similar situations.

For example, current law allows opposite-sex spouses of nonimmigrant visa holders (such as an H-1B or L-1A) to accompany their spouses to the U.S. This same right is not extended to same-sex couples. However, the State Department regulations permit a cohabiting partner of a nonimmigrant visa holder to apply for a visitor’s visa in order to accompany the principal nonimmigrant to the US. Same-sex partners could also qualify under this policy provided they can document the long-term nature of the relationship. Unlike a dependent visa granted to a spouse whose duration is for the length of the principal visa holder’s stay, the visitor visa granted to a same-sex partner generally has a one-year duration and must be renewed every six months. Moreover, unlike L-2 visa holders (spouses of L-1A visa holders), cohabiting partners are also ineligible to work while in the US.

Same-sex marriage, Civil Unions, or Domestic Partnerships are now recognized, at least to some extent, by the States of California, Connecticut, Iowa, Massachusetts, Maine, New Hampshire, Nevada, New Jersey, New York, Oregon, Vermont, and Washington. Croatia, Denmark, Finland, France, Germany, Iceland, Israel, New Zealand, Norway, Portugal, Slovenia, Switzerland, Sweden and the United Kingdom all have nationwide laws that grant same-sex partners a range of important rights, protections and obligations.

On the same day that Vermont’s House and Senate voted to override GOP Gov. Jim Douglas’ veto of a bill legalizing same-sex marriage in the state, the Washington (D.C.) City Council voted 12-0 Tuesday in favor of allowing same-sex marriages performed in other states to be recognized in the nation’s capital. According to CNN, President Obama will sign a memorandum on June 17, 2009 granting some benefits to same-sex partners of federal employees.

It is clear that we may see sooner than later a re-examination of the federally mandated Defense of Marriage Act, which, as stated earlier, forbids the Federal government from recognizing same-sex marriages

On June 6, 2008, President Bush issued Executive Order 13465 that required executive departments, agencies and federal contractors and subcontractors to use E-Verify exclusively as of January 15, 2009 to verify whether employees are actually eligible to work in the US. The mandatory use of E-Verify has been challenged in Chamber of Commerce of the United States of America v. Chertoff. The suit alleges mandatory use E-Verify violates the Illegal Immigration Reform and Immigrant Responsibility Act because the legislation authorizing E-Verify makes clear that participation in the system is voluntary.

The effective date of the Executive Order has been delayed from January 15, 2009 to February 20, 2009.