Wolfsdorf Immigration Newsletter December 2009

1. H-1B Quota is Fast Approaching!

On December 4, 2009, U.S. Immigration and Citizenship Services (USCIS) announced that approximately 61,100 H-1B petitions had been filed towards the annual quota. USCIS will continue to accept petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account that some may be denied, revoked, or withdrawn. Given that the total quota is 65,000, it is imperative to file H-1B cases as soon as possible.

2. ICE Announces 1,000 New Workplace Audits Targeting Employers

Last month, U.S. Immigration and Customs Enforcement (ICE) announced the issuances of Notices of Inspection to 1,000 employers throughout the U.S. Inspections include audits of I-9 forms, which employers are required to complete to verify the employment eligibility of employees. ICE also announced that since April 30, 2009, it had send 142 Notices of Intent to Fine totaling $15.9 million; initiated approximately 2,000 cases; and completed 1,069 I-9 inspections.

3. First Successful Prosecution of Mississippi Employer for Criminal Immigration Violations

Two corporations and their owner, along with two former managers of Stix Restaurant in Flowood, Mississippi, were sentenced for violating federal criminal immigration laws related to hiring, continuing to employ and harboring illegal aliens following a U.S. Immigration and Customs Enforcement (ICE) investigation. U.S. District Court Judge William H. Barbour sentenced Gin Hsing Chen, aka David Chen, former owner of Stix Restaurant in Flowood, Mississippi, to 12 months in prison and one year of supervised release. Chen was also fined $72,000 and was required to forfeit $100,000 in lieu of a home he owned in Flowood that was used to house some of the illegal alien employees. Chen's sister, Shao Li Chen, aka Judy Chen and Judy Wong, a former manager of the local eatery, was sentenced to eight months in prison and two years of supervised release and fined $5,000 for harboring illegal aliens for the purpose of commercial advantage and private financial gain. Shao Li Chen's husband, Karl Kwok Hing Wong, another former manager at the Flowood establishment, was sentenced to 12 months and one day in prison and two years of supervised release and fined $5,000 for harboring illegal aliens. The two corporations that controlled and operated Stix Restaurant in Flowood, Mississippi, Mt. Fuji Restaurant, a Mississippi corporation, and Flowood Partners, LLC, an Alabama corporation, agreed to an immigration compliance program and to forfeit more than $418,000, which included $52,017 cash seized at the restaurant, bank accounts used in the crime, and the net equity of the Flowood restaurant property.

4. DOS Announces Deployment of Form DS-160 for All Nonimmigrant Visa Applications Worldwide

DOS Bureau of Consular Affairs announced that it would deploy the DS-160 fully web-based nonimmigrant visa (NIV) application form worldwide. Complete global usage of DS-160 for all NIVS except K visas is expected by April 10, 2010. The Form DS-160 replaces Forms DS-156, DS-156E, DS-157 and DS-158.

5. USCIS Reminds Applicants for Travel Documents to Apply Early

U.S. Citizenship and Immigration Services (USCIS) has reminded applicants for advance parole (permission to reenter the U.S. after traveling abroad) to apply early. This applies to travelers, if they have been granted temporary protected status or have a pending application for (1) adjustment of status to lawful permanent residence; (2) relief under § 203 of the Nicaraguan Adjustment and Central American Relief Act; (3) asylum; or (4) legalization. Those applicants that have been unlawfully present in the U.S. for more than 180 days are subject to bars to reentering the U.S., even with an approved advance parole travel document. USCIS has issued a fact sheet outlining eligibility requirements, the consequences of traveling without advance parole for affected persons, and the possible consequences of using advance parole after being unlawfully present in the U.S. or to return to the country of claimed persecution. The fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/AdvParoleFact%20ShtOct2009Final.pdf.

6. State Department Cautions Visa Waiver Travelers to Disclose Visa Delays as Denials

The Department of State has taken the following position: those who have pending visa applications at a U.S. Embassy or Consulate, where visa processing has been continued for any reason, including for processing security clearances or to provide an opportunity to submit additional documentation, the visa application is deemed to be “denied”. Accordingly, applicants with pending visas must disclose a denial when completing their ESTA (Electronic System for Travel Authorization) application, if they intend to enter the U.S. on the Visa Waiver Program, while their visa application remains pending at a U.S. Embassy or Consulate. Such travelers are advised to indicate that they have been refused a visa under INA § 221(g) when completing their ESTA registrations. Those who have completed an ESTA registration without revealing the denial are advised to re-register and indicate the specifics. This is a fluid situation, and the Department's position is controversial. Information on the ESTA system is available at https://esta.cbp.dhs.gov/esta/esta.html?_flowExecutionKey=_c2E5A4D95-E27C-3FCA-B3E1-C3866F0FF391_k8329F60B-FD9E-61A1-1777-C748F6B4CB86

7. USCIS Releases Fact Sheet on 'Public Charge' Determinations

U.S. Citizenship and Immigration Services has released a fact sheet on public charge determinations. The agency noted that although an individual who is likely at any time to become a public charge is inadmissible to the U.S. and ineligible to become a legal permanent resident. Receiving a public benefit does not automatically make an individual a public charge. The fact sheet outlines benefits that could make a non-citizen inadmissible as a public charge, if other criteria are met. Benefits that are intended for special purposes rather than income maintenance are not typically applicable to public charge consideration. These include Medicaid, Food Stamps, Children's Health Insurance Program, foster care and adoption assistance, job training programs, and emergency disaster relief. The fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/public_charge_fact_%20sheet_11_06_09.pdf.

8. December Visa Bulletin Notes Reinstatement of Certain Religious Workers and Investor Pilot Program Categories

The Department of State's Visa Bulletin for December 2009 notes that legislation in October extended "Certain Religious Workers" and "Investor Pilot Program" green card categories for three years, through September 30, 2012. Other employment-based categories generally have not budged since November's Bulletin, with the exception of the India third preference and "Other Workers" categories, which both advanced one month, to May 1, 2001. The December 2009 Visa Bulletin is available at http://www.travel.state.gov/visa/frvi/bulletin/bulletin_4587.html.

9. USCIS Issues Guidance on I-140 and Labor Certifications Issues

U.S. Citizenship and Immigration Services recently provided guidance on a number of I-140 and labor certification issues. The guidance clarifies that government agencies do not typically qualify as "private" employers for outstanding professors and researchers petitions, although they would qualify under other immigrant categories that are not designated to private employers. The guidance also discusses the 180-day validity period for approved labor certifications that have an expiry date that falls on a Saturday, Sunday, or federal holiday. USCIS will accept the filing of I-140 petitions on the next business day, where the labor certification validity period ends on such days. The guidance is available at http://www.uscis.gov/USCIS/New%20Structure/Laws%20and%20Regulations/Memoranda/*2009%20Memos%20By%20Month/Sep%202009/AFM%20AD07-26%20Signed.pdf.

10. USCIS Temporarily Accepts Incorrectly Denied LCAs for Certain H-1B Cases

U.S. Citizenship and Immigration Services (USCIS) has announced that it would temporarily accept H-1B petitions filed without certified Labor Condition Applications (LCA) from the Department of Labor (DOL) for a 120-day period, until March 4, 2010. USCIS will only accept such H-1B petitions, if they are filed at least seven calendar days after the LCAs were filed with DOL and include evidence of these filings. The only acceptable evidence of filing is a copy of DOL's e-mail giving notice of the receipt of the LCA. Petitioners who seek to take advantage of this temporary flexibility in the normal filing procedures for H-1B petitions must wait until they receive a request for evidence (RFE) before they may submit DOL-certified LCA to USCIS. http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Nov%202009/Attachment%20to%20Temporary%20Acceptance%20of%20H-1B%20Petitions.pdf.

11. Labor Dept. Announces Expiration of H-1C Nursing Program

The Department of Labor (DOL) has announced that the H-1C program, established under the Nursing Relief for Disadvantaged Areas Reauthorization Act, will sunset on December 21, 2009. Congress has not reinstated the program and, absent further legislative action, will no longer accept H-1C attestations from hospitals. DOL said that questions about the H-1C program should be addressed to tlc.chicago@dol.gov. For more, see http://www.foreignlaborcert.doleta.gov/news.cfm.

12. DOL Extends H-2A Transition Period

The Department of Labor has published an interim final rule extending the transition period for application filing procedures implemented under the December 2008 H-2A final rule. The application filing procedures under the extended transition period apply to all employers with dates of need before June 1, 2010. The interim rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-27496.pdf.

13. SEVP Announces New Mailing Address and Phone Number

The Student and Exchange Visitor Program office has a new mailing address. All correspondence should be mailed to: Student and Exchange Visitor Program, Attn: (Branch Name or Job Title), SEVP MS 5600, DHS/ICE, 500 12th Street, SW; Washington, DC 20598-5600. The new main telephone number is (703) 603-3400. E-mail addresses have not changed, so inquiries may be sent to SEVP via its previous e-mail address or via SEVIS.Source@dhs.gov. Also, the ICE Web site (http://www.ice.gov) layout has been updated, including the SEVP pages.

For a "faster resolution and response," SEVP recommends the following:

• For I-901 fee questions, payment issues, transfer fee issues, and chargeback issues, visit the I-901 section of the SEVP Web site (http://www.ice.gov/sevis/i901/index.htm), then e-mail fmjfee.SEVIS@dhs.gov.

• For I-515A issues, visit the I-515A Tool Kit on the SEVP Web site (http://www.ice.gov/doclib/sevis/pdf/I515A%20tool%20kit.pdf) for quick tips, or e-mail SEVIS.I-515@dhs.gov to ask about documents.

 The announcement is available at http://www.ice.gov/sevis/.

14. NEXUS Frequent Border Crossing Enrollment Center Moves

U.S. Customs and Border Protection announced that the enrollment center for U.S. Customs and Border Protection's frequent border crossing program (NEXUS) moved on November 30, 2009, from International Falls, Minnesota, to Fort Frances, Ontario, Canada. The NEXUS Enrollment Center is now located at 301 Scott Street, Fort Frances, Ontario, Canada P9A 1H1. The hours of operation are Monday and Wednesday, 9 a.m. to 4 p.m., and Thursday, 11 a.m. to 7 p.m. The NEXUS program allows pre-screened, low-risk travelers to be processed with less delay by U.S. and Canadian officials at designated highway lanes at high-volume border crossing locations. The announcement is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/11242009_9.xml.

15. Northern Mariana Islands Transition to U.S. Immigration Law; Guam Also Affected

On November 28, 2009, the Commonwealth of the Northern Mariana Islands (CNMI) transitioned to U.S. immigration law under the Consolidated Natural Resources Act of 2008 (CNRA). Although U.S. immigration law now applies to the CNMI, it will undergo a transition period with temporary measures ending December 31, 2014, to allow for an orderly transition and give individuals time to identify an appropriate visa classification, U.S. Immigration and Customs Enforcement (ICE) announced. Recognizing that some unique situations would result as the CNMI transitions to U.S. immigration law, ICE said that the Department of Homeland Security may grant parole to applicants for admission on a case-by-case basis for urgent humanitarian reasons or significant public benefit. The CNRA also contains two provisions that affect the U.S. Territory of Guam: elimination of the current Guam Visa Waiver Program and creation of a new Guam-CNMI Visa Waiver Program, under which eligible nationals of program countries and geographic areas may be authorized to visit Guam and/or the CNMI for up to 45 days; and elimination of the statutory cap on the number of H nonimmigrant worker petitions that can be filed by employers in Guam and the CNMI. CBP has begun inspecting all passengers arriving at CNMI airports on flights from outside the U.S. CNMI authorities will continue to conduct customs inspections. Additional information is available at http://www.ice.gov/pi/nr/0911/091127washingtondc.htm and http://www.ice.gov/doclib/pi/news/factsheets/cnmi_fact_sheet.pdf.

Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

FIRM NEWS

Congratulations to Bernie Wolfsdorf, Avi Friedman and Tien-Li Loke Walsh on being recognized in the 2010 Best Lawyers in America selection.
Bernie Wolfsdorf, AILA National President and firm founder, served on the International Bar Association panel together with the British Minister for Immigration at the International Bar Association’s 4th Biennial Global Immigration Conference held in London on November 19/20, 2009.

Bernie Wolfsdorf also presented the opening remarks and an immigration update at the AILA Rome Chapter Meeting held in London in November.

Andrew Stevenson served as the discussion leader for the U.S. Customs and Border Protection update panel at the AILA California Chapters Annual Conference on November 13, 2009. He also authored the article "A Funny Thing Happened on the Way to Admission: Understanding Legal Issues and Communicating with U.S. Customs and Border Protection," to be published in AILA's California Chapters Conference Handbook and New York Chapters Conference Handbook.

Naveen Rahman Bhora was recognized along with other immigrant religious, civic and government leaders at the annual "America's Table" on November 23, 2009. America's Table is an annual pre-Thanksgiving celebration of our diverse roots and shared values. This year's event was co-sponsored by the New York State Interfaith Network for Immigration Reform, American Jewish Committee and New York Immigration Coalition. Representatives Anthony Weiner, Charles Rangel and Yvette Clark were invited speakers and shared their thoughts on Comprehensive Immigration Reform.

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The Wolfsdorf Immigration Law Group is one of the largest immigration boutique firms in the United States. With offices on both the east and west coasts, the firm serves an extensive and diverse client base, ranging from Fortune 500 corporations to entertainers and leading academic institutions. Our large and dedicated staff of 50 employees ensures prompt and expert attention to your immigration law matters. For more information about any of the above-mentioned issues, or any immigration-related questions or concerns, please contact our team of professionals or your assigned Wolfsdorf professional at 1(800)VISA-LAW or (310) 570-4088/(212) 899-5040 or contact us via email at visalaw@wolfsdorf.com

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