I-140 Premium Processing
USCIS recently announced that it would resume premium processing for most I-140 immigrant visa petitions, including the EB-1 categories of outstanding researcher and person of extraordinary ability, EB-2 petitions that do not involve a national interest waiver, and all EB-3 categories. I-140 premium processing has not yet been extended to EB-1 multinational manager petitions or EB-2 national interest waiver petitions. Premium processing is the CIS program that guarantees a 15 day response upon the payment of a $1000 expedite fee. The response may be an approval or a request for additional evidence. Regular track processing times can range from 3-12 months or sometimes longer.
USCIS has also stated that it intends to immediately deny any concurrently filed I-485 application for adjustment of status to lawful permanent residence if the underlying I-140 immigrant petition is denied. Foreign workers with pending I-485 applications may place great value on locking in an I-140 approval and may eagerly seek to pursue premium processing. This is especially true given the current uncertain state of the economy. Obtaining an approved I-140 petition can help the foreign worker to grandfather the pending I-485 application under the AC-21 law, which allows the sponsored foreign worker to move to a same or similar position with another employer provided the I-140 has been approved and the I-485 has been pending for at least 180 days.
The Department of Homeland Security, which includes the Immigration and Customs Enforcement (ICE) subunit, has announced that it is pursuing a regulatory change to allow it to data mine the information obtained through the E-Verify program. The agency has explained that this information is needed in order to track verification transactions better and to identify non-compliant behaviors. Through this regulatory change, the agency would exempt itself from provisions of the Privacy Act to pursue criminal, civil and administrative enforcement activities. All employers participating in E-Verify must sign a Memorandum of Understanding (MOU) granting the government broad access to its files and personnel. Combined with the government’s increased focus on employer compliance, it is likely that an increasing number of employers will experience audits, fines, and possibly even criminal sanctions.
The data mining effort should also be understood within the context of the current administration’s efforts to focus more on employer compliance. On Wednesday, July 1, 2009, ICE announced that 652 businesses nationwide were being served with I-9 audit notices on July 1. For all of 2008, only 503 similar notices were issued. To have more audit notices issued in one day, than for the whole of last year, indicates that enforcement and related audits will become a more frequent occurrence for businesses throughout the U.S. Compared with the enforcement efforts made in states including Iowa, Texas, Georgia and Louisiana, relatively few enforcement raids have taken place in California. At some point, that is likely to change. Although establishing compliance procedures is cheaper and a more productive use of resources if done proactively, many employers do not have effective compliance mechanisms in place and may not become fully aware of the extent of compliance failures until after they receive notice of an audit.
In the raids made in other states, ICE has often been aggressive in piercing the corporate veil to go after companies that may be using noncompliant subcontractors. It is not uncommon for companies to use subcontractors to save costs with tasks ranging from cleaning services, to research assistance, to IT and administrative support. Uncontrolled access to the business premises (keys and key cards), regular and on-going physical presence at the contracting worksite, and participation in meetings together with regular employees may be enough to tie an immigration violation to the corporation receiving the contract services.
Service provider contracts reviewed by teams of lawyers may offer limited protection in the face of incriminating statements obtained from employees who may become motivated to cooperate in an ongoing ICE investigation. The customs part of Immigration and Customs Enforcement has decades of experience in going after shady business owners and drug lords. By comparison, many of the administrative support staff who complete the I-9 documents can provide ICE with a relatively soft target if not equipped with the tools and training that come with having an effective compliance program in place. ICE has recently begun to target individual employees within target companies by using the same hard-ball tactics used in drug and customs enforcement efforts. After obtaining the cooperation of an insider, ICE can then send the insider back to the company, with wire and sometimes hidden camera, to obtain incriminating statements from HR staff, as well as company managers and executives. As the web of cooperation expands, the investigators can move up the chain of command to access corporate officers and directors.
In the abstract, this kind of scenario may seem unlikely or hard to believe. A more concrete example may help to illustrate. Consider how the personnel who handle a firm’s Forms I-9 might handle the following scenario. An employee comes into the staff member’s office with great enthusiasm to thank the company representative for hiring him after rambling on about how “you knew that I had a problem with my papers but you allowed me to work anyway, and I’m so grateful, my papers are okay now but I really appreciate your not firing me when we went through that rough patch when I lacked the papers to evidence my work authorized status.” Not wanting to be abrasive or offensive, the company representative may say nothing and may even dismiss the employee as being a little crazy. The company representative may be confused and may think it best not want to say anything until more information is obtained. A recording of that same conversation may be viewed in very different context when played back in court in front of the 12 uninformed persons that make up a jury. When played back in the confines of a small room at a federal building and in the company of several ICE officers, a recording of that same conversation may also persuade the staff member to cooperate in flipping up the corporate chain to make similar statements to key officers and executives.
The Sarbanes-Oxley Act of 2002 (SOX) requires public companies to disclose information regarding violations of certain federal laws, including immigration laws. SOX also contains whistleblower provisions that can be applied to both public and private companies that do not have a confidential procedure in place to allow concerned individuals to pass information regarding suspected compliance failures to a person within the company with the authority to investigate and possibly act on the allegation. SOX violations can affect a company’s stock valuation, and could also damage a private company’s ability to make a public offering of its stock. An immigration compliance review is also an essential part of operating an ongoing business, as well as a key part of the due diligence process prior to completing a corporate merger or acquisition. As the new targets of immigration enforcement, companies need to take the steps necessary to comply with employment verification requirements, immigration laws related to the sponsorship of foreign workers, and increasingly audit requests or even search warrants.
Links: Department of Homeland Security (DHS), on the proposed rulemaking amending the Privacy, Freedom of information regulations (DHS Docket No. DHS-2009-0013), and notice of Privacy Act system of records (DHS Docket No. DHS-2009-0015), 74 Fed. Reg., No. 98, pages 23957-23958 and 24022-24027 (May 22, 2009). See: www.frwebgate1.access.gpo.gov See also: www.frwebgate1.access.gpo.gov
The Immigration and Nationality Act provides that 140,000 employment based immigrant visas (aka “green cards”) may be issued each fiscal year. The Act also provides that no foreign state may be allocated more than 7% of the immigrant visas in any given year. Because one-third of the persons now alive on the planet were born in India or China, person from those countries face an extraordinarily long wait to immigrate to the U.S. The 140,000 employment based immigrant visas are allocated among five preference categories (EB-1 through EB-5). Most company sponsored cases for professional workers fall into EB-2 or EB-3, with only a small minority eligible for the EB-1 classifications. This background information is helpful in providing some context to information passed to the immigration bar by Charles Oppenheim of the State Department’s Visa Office. Key points from Mr. Oppenheim’s report include the following:
- The EB1 category worldwide will remain current the rest of the fiscal year but demand is high.
- The EB1 categories for India and China will be current during the month of July 2009, but could require the establishment of a cut-off date in August or September should EB1 demand remain heavy. As noted above, China and India have previously benefited from the excess EB1 numbers for all other countries because excess visa numbers from other countries “fall across” the EB1 category to India and China. The high demand from other countries this year means there are fewer numbers to “fall across” to India and China.
- EB2 India. The prognosis is grim. For July 2009, the cut-off date is January 1, 2000, and the category may become unavailable in August or September of 2009. There are currently approximately 25,000 EB2 India cases, which have been reviewed by USCIS and queued up at the Department of State awaiting visa numbers for the “green cards” to be approved. Like all other countries, India has a limit of 2,800 EB2 numbers available per year plus any “fall across” and “fall down” numbers from EB4, EB5 and EB1 visa numbers. Therefore, without legislative relief, the waiting time for Indian EB2 applicants may be measured in years, even decades.
- EB2 China. The prognosis is equally grim. As of July 2009, the cut-off date will be January 1, 2000 and the category may become unavailable in August or September of 2009. There are a significant amount of EB2 China cases which have been reviewed by USCIS and queued up at the Department of State awaiting visa numbers for approval of the adjustment of status. Like all other countries, China has a limit of 2,800 EB2 numbers available per year plus any “fall across” and “fall down” from EB4, EB5 and EB1 visa numbers. Therefore, without legislative relief, the waiting time for China born EB2 applicants may also be many years.
- EB3 Worldwide will be unavailable the remainder of this fiscal year. As the Department of Labor cleared its long backlog of Alien Labor Certification cases, there were tens of thousands of I-485 applications with priority dates in 2004 and earlier years which were processed by USCIS this year. The Department of State currently estimates that, as of October 1, 2009, the EB3 worldwide cut-off date will be March 1, 2003. There will be extended delays in this category.
- EB3 visas for India, China and Mexico applicants will be unavailable for the remainder of the fiscal year. It is estimated, based on current demand for visa numbers that as of October 1, 2009, the following cut-off dates could be established: China will be March 1, 2003; India will be November 1, 2001; and Mexico will be March 1, 2003. These estimates are based on “current demand” in the first 7 ½ months of FY2009, and a lot could change between now and early September when October dates are established.
- There are approximately 25,000 EB2 and 25,000 EB3 applicants currently queued at the Department of State awaiting visa numbers.
- There are 2.7 million family-based applicants on the waiting lists for consular processing. Note that this information was provided in the March Visa Bulletin.
- There could be approximately 50,000 employment-based applicants on the waiting lists for consular processing.
- Currently almost 90% of all employment-based visa numbers are used by USCIS and 75% of all family-based visa numbers are used by consular posts.
The Visa Bulletin for July 2009 is available at www.travel.state.gov.
Passport agency offices allow applicants to apply for a passport in person, and also can accommodate expedited passport issuance in an emergency. The Department of State recently announced that it intends to open new passport offices in cities including: Buffalo, New York; El Paso, Texas; Atlanta, Georgia and San Diego, California. Please note that the opening of these offices is still in process. It may be many months, or possibly longer, until the new offices are open for business. Information regarding the offices currently open can be found at: www.travel.state.gov
Citizens and noncitizens returning from abroad may be subjected to the secondary inspection process because of inaccurate or incomplete information in the Customs and Border Protection (CBP) database. This can be especially frustrating for frequent travelers who may be sent to secondary inspection upon every return to the U.S. Persons experiencing such troubles may find some relief through the two separate processes that CBP has established for addressing this problem. PLOR (Primary Lookout Overrides) can be used when the information producing the system “hit” does not apply to the traveler, as may happen if a person has a common name or a name associated with a person of interest in the agency’s database. TRIP (Traveler Redress Inquiry Program) can be used if the derogatory information does apply to a given individual but is not an issue that would prevent the person from entering the U.S. An example would be a system hit based on an old DUI. Additional information can be found at: ww.cbp.gov