The Law Offices of Robert Nadalin

Bad VIBE (Validation Instrument for Business Enterprise)

On May 27, 2010, USCIS conducted an information sharing session to provide more information on the VIBE (Validation Instrument for Business Enterprise) system, which it plans to implement in the not too distant future. Through VIBE, USICS adjudicators will compare the information listed on an immigration petition with the information found in the Dun & Bradstreet global commercial database. D&B information is organized within the database through the assignment of a D-U-N-S number, which is a unique company identifier used to track entity information by business location. For large publicly traded companies, D&B information is generally accurate and reliable due to the large amounts of information that these companies are required to disclose through quarterly and annual filings with the U.S. Securities and Exchange commission. For privately held companies, including new start up companies, there are concerns with regard to the accuracy of the data and system lags in recording information that may be several months old or older. For purposes of obtaining commercial credit, some private companies voluntarily register with D&B and actively monitor the information contained within the D&B system. For non-subscribing companies, however, the data recorded may be inaccurate or out of date.

Attorneys participating in the May 27 information sharing session expressed concerns about whether the adjudicators would use the D&B system as “a tool” to help them to learn more about a petitioner, or whether the system would be aggressively used to deny cases based on derogatory but possibly inaccurate information found in the system. Additional concerns were raised about USCIS focusing on the wrong D-U-N-S number for the petitioning entity. A company may have separate numbers for different locations or cost centers. USCIS adjudicators are not required to have an MBA or strong business analysis skills. Adjudicators could become confused, for example, as to why the petitioner would list 100 employees when D&B only lists 10. Given the USCIS’s aggressive search for “fraud and abuse,” attorneys requested that USCIS give petitioners the opportunity to respond to and to rebut any derogatory information found in the D&B system as is required by USCIS regulation. A fair policy would be for USCIS adjudicators to provide the petitioner with a copy of any D&B document considered to contain derogatory information, although it is unlikely that USCIS will extend that level of courtesy to petitioners.

Although not said directly, the take away message from the session was that a company can better control the information contained in the D&B system by registering with D&B on its own. Companies can also subscribe to its updating service, through which a full business credit file can be established, complete with trade references from vendors. The costs for a one year subscription can range from approximately $450 to $1400, depending on the number of credit references listed and the level of updating requested. While registering with D&B is not a requirement for submitting an immigration petition, small and startup companies may want to consider this as a way to mitigate future misunderstandings with USCIS regarding the nature and substance of their business.

Laptop Searches and Seizures at Ports of Entry

Provided the user can reach the internet, a person with a laptop can work from any location in the world. The amazing utility of the laptop has made it a must carry item for most business travelers. Almost nine years into the war on terror, the Department of Homeland Security’s Customs and Border Protection (CBP) and Transportation Security Administration (TSA) units continue in their efforts to keep America safe by exercising their broad search powers on what may be perceived to include anything and everything that travels through our airports, including laptop computers. It is not uncommon for DHS agencies to make mirror image copies of laptop hard drives, and even to seize whole computers. While these practices have been much more common in the CBP inspection process for arriving passengers returning from abroad, these types of searches and seizure have also happened during the TSA inspection process for in-country flights.

The higher chance of encountering a laptop seizure problem with CBP has led to a number of companies discouraging employees from traveling outside of the US with any sensitive information in their laptop. One solution has been to equip employees with a laptop that is used in the US for day to day business but is never taken abroad. In going abroad, an employee may travel with no laptop or with a special “travel laptop” with separate passwords and a clean hard drive. Presentations and other proprietary data may be safer being sent encrypted over the internet (or accessed remotely from a travel laptop abroad, or possibly through some sort of “cloud computing” solution) than to carry it in a laptop. Company IT teams may have other work arounds.

Although the 4th amendment protects against unreasonable search and seizure, travelers at the airport have less protection in terms of what is “unreasonable.” Unfortunately, intellectual property protections are not well respected at the airport.

Increase in Government Filing Fees

On June 11, 2010, USCIS released a proposed rule to increase immigration application and petition filing fees by approximately ten percent. The law as passed by Congress provides that USCIS must collect fees at a level that will ensure recovery of the full costs of providing adjudication and naturalization services, including services provided without charge to asylum applicants and certain other immigrant applicants. The law also provides that the fees may recover administrative costs as well. The exact fee amounts or date of implementation of the proposed new fee schedule have not yet been announced. It is anticipated that this may happen before the end of the summer.

The Department of State has already implemented a fee increase, which became effective on June 4, 2010. Previously, an amount of $131 was charged for all visa applications. Under the new structure, $140 is charged for visa for B-1/ B-2 visitors, F students, and J exchange program participants. A $150 fee is charged for applicants under the H temporary worker, L intracompany transferee, and O extraordinary ability categories. The fee for K fiancés is now $350. The new fee for E treaty trader and investors has increased to $390 per application.

Current H-1B Cap Count

The H-1B visa is the visa category most used by companies to obtain work authorization for professionals coming from other countries. Under the current law, 20,000 visas may be issued to persons who have obtained a master’s or higher degree from a U.S. university. 65,000 visas are allocated to other professionals, with 5,400 of these visas set aside for Singapore and 1,400 for Chile. The result is that only 58,200 regular track H-1B visas are available to most H-1B applicants. USCIS announced that as of June 11, 2010, it had received 9,400 master’s cap filings filings as well as 22,200 filings for the regular cap. As many readers may know, in some years all 78,200 visas are taken on the first day of the filing season on April 1. While it is impossible to know when the cap will be reached for the current filing season, there is a significant possibility that it will remain open through the fall. Nonetheless, the filing trends cannot be forecast with precision and so the prudent practice is to file as early as possible once a decision to pursue an H-1B visa petition is made.

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About the Author

Attorney Robert Nadalin is a highly qualified and dedicated California Immigration Lawyer who can help you in your time of need. Learn more about your legal options during an honest consultation in San Diego, CA.