EMPLOYERS NEED TO KNOW ABOUT THE DIFFERENT TYPES OF USCIS SITE VISITS.

At a November 19, 2009, program put on by the Department of Homeland Security, titled "2009 Government and Employers: Working Together to Ensure a Legal Workforce," Ronald Atkinson, Chief of Staff of USCIS' Fraud Detection and National Security (FDNS) office, explained the three types of site visits that are currently being conducted:

1. Risk Assessment Program fraud study. Applicable to any type of benefit program, including family and employment-based, this study is part of a joint program between USCIS and ICE. Applications and petitions are chosen at random, usually on a post-approval basis, for visits to help in designing profiles of potential fraud.

2. Targeted site visits. These visits take place where fraud is suspected, and consist of a visit to ask questions. Advance notice, including notice to counsel, is supposed to be provided.

3. Administrative site visits. These relate to religious worker and H-1B petitions. They generally are conducted by contractors who know nothing of immigration law. Religious worker visits are performed under the regulations for that category. For H-1B site visits, the contractors have been equipped with a set of specific questions, and all employers/beneficiaries should be asked pretty much the same questions, primarily reaching the issues of whether there's really an employer there, whether the employer knows it filed the petition, and whether the beneficiary is doing the work and receiving the wage indicated on the petition. H-1B visits are done on a post-adjudication basis, and are randomly selected. Each employer should receive only one such visit, but may receive different visits for different sites.

In April, DHS issued updated worksite enforcement guidance emphasizing ICE’s major enforcement priorities—specifically focusing on dangerous criminal aliens and employers who cultivate illegal workplaces by breaking the country’s laws and knowingly hiring illegal workers. In this strategy, ICE identified form I-9 audits as the most important administrative tool in building criminal cases and bringing employers into compliance with the law.



Should anyone receive an inspection notice, it is imperative that you contact an immigration attorney immediately to verify compliance.
NACHMAN & ASSOCIATES, P.C.

Immigration and Nationality Attorneys

VISASERVE PLAZA

487 Goffle Road

Ridgewood, New Jersey 07450

Phone (201) 670-0006 (x100)

Facsimile (201) 670-0009

BEWARE STRANGERS (FROM ICE) BEARING GIFTS FOR THE THANKSGIVING HOLIDAY.

U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton today announced the issuance of Notices of Inspection (NOIs) to 1,000 employers across the country associated with critical infrastructure—alerting business owners that ICE will audit their
hiring records to determine compliance with employment eligibility verification laws.

“ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by
cultivating illegal workplaces,” said Assistant Secretary Morton. “We are increasing criminal and
civil enforcement of immigration-related employment laws and imposing smart, tough employer
sanctions to even the playing field for employers who play by the rules.”

The 1,000 businesses served with audit notices this week were selected for inspection as a result of
investigative leads and intelligence and because of the business’ connection to public safety and
national security—for example, privately owned critical infrastructure and key resources. The names
and locations of the businesses will not be released at this time due to the ongoing, law enforcement
sensitive nature of these audits.

Audits involve a comprehensive review of Form I-9s, which employers are required to complete and
retain for each individual hired in the United States. I-9 forms require employers to review and
record each individual’s identity and work eligibility document(s) and determine whether the
document(s) reasonably appear to be genuine and related to that specific individual.

Protecting employment opportunities for the nation’s lawful workforce and targeting employers who
knowingly employ an illegal workforce are major ICE priorities, for which ICE employs all
available civil and administrative tools, including audits. Audits may result in civil penalties and lay
the groundwork for criminal prosecution of employers who knowingly violate the law.

In April, DHS issued updated worksite enforcement guidance emphasizing ICE’s major enforcement
priorities—specifically focusing on dangerous criminal aliens and employers who cultivate illegal
workplaces by breaking the country’s laws and knowingly hiring illegal workers. In this strategy,
ICE identified form I-9 audits as the most important administrative tool in building criminal cases
and bringing employers into compliance with the law.

Should anyone receive an inspection notice, it is imperative that you contact an immigration attorney immediately to verify compliance. We believe that ICE has picked this week specifically because many people will be away on vacation and they will take company’s by surprise. BE PREPARED, BE READY, AND BE VIGILANT. THE ICE MEN COMETH!

ICE workplace audits

On 11/19/09, ICE Assistant Secretary John Morton announced the issuance of Notices of Inspection (NOIs) to 1,000 employers associated with critical infrastructure, alerting business owners that ICE will audit their hiring records to determine compliance with employment eligibility verification laws. AILA Doc. No. 09111966.

Immigration Reform in the U.S.

This article (see link below) discusses the recognition for the need for Immigration Reform in the U.S. by none other than Janet Napolitano, the Head of the U.S. Department of Homeland Security. We hope that this initiative will take shape in Early-2010 but any sooner would certainly be welcome.
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/11/14/MNO91AK714.DTL&t
ype=politicshttp://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/11/14/MNO9
1AK714.DTL&type=politics
Nachman & Associates, P.C. is a Global Business Immigration Law Office located in NJ, NY and Canada. We handle nonimmigrant (temporary) work visas and PERM Labor Certification Application cases for businesses of all sizes. We also handle family-based immigration law matters including marriage to a foreign national cases. We can also assist with Removal and other immigration law proceedings.
We can be contacted for a consultation at 201-670-0006 (x100) or by e-mail at info@visaserve.com. Please feel free to visit us on the web at www.visaserve.com.

Don’t Be Caught Off-Guard: CIS H-1B Site Visits are in Full Swing.

For the past few months, the U.S. Department of Homeland Security, Citizenship and Immigration Services ("CIS") has conducted an investigation program aimed at visiting H-1B petitioner worksites throughout the U.S. These site visits began as part of the CIS’ goal to decrease the number of H-1B violations and instances of fraud reported by the H-1B Benefit Fraud & Compliance Assessment from CIS’ Office of Fraud Detection and National Security (“FDNS”), published this past September. According to the FDNS’ findings, as many as one in five H-1B applications were affected by either fraud or “technical violations” of the H-1B program.
Why should employers care? Any employer who sponsored a foreign national worker for an H-1B visa can be subject to an unannounced site visit. What this means is that an investigator can randomly show up at a worksite and demand to see a copy of the H-1B petition, interview the person who represented the company in connection with the H-1B as well as the H-1B employee or other employees presently on site. Any inconsistencies found can mean big trouble for employers.
FDNS has indicated that it does not need a subpoena in order to complete the site visit because USCIS regulations governing the filing of immigration petitions allow the government to take testimony and conduct broad investigations relating to the petitions. However other sources say that employers are not required to give in to the investigators’ demands without a subpoena. What to do? Our office recommends that you always comply as much as possible with any investigative agency that shows up at your door. CIS has indicated that attorneys can be present during an inspection, but the investigator is not likely going to come back another day if the attorney is not available on the day of the unscheduled visit. Attorneys may be present via telephone in these circumstances.
Some common questions that have been raised by employers include: “how are companies selected to be investigated,” “if I am visited, should I be concerned,” “what type of violations are the investigators looking for,” and “how can I prepare for a site visit from a CIS/FDNS investigator?”
To address these issues in order, firstly any employer who has filed an H-1B petition can be subject to a site visit. While CIS claims the employers are chosen at random, close to 40,000 employers’ names have been selected for site visits. Some factors that may have been taken into consideration when selecting these 40,000 employers include: companies with less than 15 employees; companies with less than $10 million in sales; companies less than 10 years old; accounting, HR, business analyst, sales and advertising positions; and petitions where the beneficiary merely had a bachelor’s degree, not an advanced degree.
If your company is visited and your records are in order, you have nothing to worry about. Generally speaking employers are aware of inconsistencies before any investigative agency may catch wind of it. That being said, if the investigators uncover any inconsistencies or instances of fraud, the case may be referred to U.S. Immigration and Customs Enforcement (ICE), or the Department of Labor (DOL) for further investigation depending on the offense. This could mean there will be monetary, and if egregious offenses, possible criminal penalties for the employer.
The objective of the unannounced on-site visits is clear: to detect fraud and abuses of the visa program. According to USCIS, the offenses range from technical violations to outright fraud, with the most common violation being the non- payment of a prevailing wage to the H-1B beneficiary. More specifically, the investigators may be looking for the following types of violations: job location not listed on the H-1B petition and/or LCA; H-1B worker not receiving the required wage; fraudulent H-1B documents or H-1B worker credentials; non-existent business or office location; job duties significantly different from those listed on H-1B petition/LCA; misrepresentation of H-1B status by the H-1B worker (e.g., had been terminated from previous H-1B position prior to new employer H-1B being filed); and H-1B worker paid the $1500 ACWIA fee.
How can you prepare yourself and your company for a possible site visit? Step one is to ensure that you have Public Access Files (PAF) for each H-1B worker, and that the PAF documents are accurate and up to date. In general, it is a good idea to review and audit your H-1B/LCA records to make sure everything is in order and all information is readily available. Designate a specific individual at each H-1B worker location to meet the investigator should he/she arrive. Prepare a quick list of facts about the company and also a listing of H-1B workers, work locations, title and salary information so you don’t need to search frantically for this information while the investigator is there. If you are not sure what a PAF is, or if you’d like to have your documents reviewed by legal counsel, you may contact our office at the number or e-mail below.
About Nachman & Associates, P.C.
The Business and Corporate Immigration Attorneys at our Firm have focused their practice, for over a decade and a half, on assisting companies that employ highly-skilled foreign nationals in visa applications. We serve our clients' business objectives. A natural extension of that service is counsel that helps the client to avoid the disruption and expense of ICE audits, recent CIS actions and the consequences of being found to be out of compliance with any number of regulations related to immigration and employment.
Our Business Immigration Attorneys can organize and conduct a review of records, assist in establishing procedures to reduce exposure to liability, and participate in training of managers to comply with the numerous requirements imposed by the US Department of Homeland Security.
Contact us for more information: Website: http://www.visaserve.com
Phone: 201-670-0006
E-mail: info@visaserve.com

USCIS Update: Temporary Acceptance of H-1B Petitions Without Department of Labor Certified Labor Condition Applications (LCAs)

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) is announcing a 120-day period in which it will temporarily accept H-1B petitions filed without Labor Condition Applications (LCAs) that have been certified by the Department of Labor (DOL).
USCIS has received requests from the public to accept H-1B petition filings that include LCAs that have been filed with DOL but that DOL has not yet certified. Processing delays arising from DOL’s recently implemented “iCERT” system have resulted in increased processing times (beyond 7 days) for certain LCA certifications. Affected employers and beneficiaries have reported being negatively impacted by DOL’s increased processing times which currently delays their ability to file H-1B petitions with USCIS. DOL expects that the current increase in LCA processing times is temporary.
As a public accommodation, USCIS will begin to accept H-1B petitions filed with uncertified LCAs for a 120-day period, commencing November 5, 2009 and through March 4, 2010. However, USCIS will only accept such H-1B petitions if they are filed at least 7 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 email giving notice of 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 submit the DOL-certified LCA to USCIS in support of the H-1B petition. USCIS will give petitioners a period of 30 calendar days within which they must send in a DOL certified LCA in response to the RFE. USCIS will only approve H-1B petitions that include certified LCAs.

CIS to Temporarily Accept H-1B Filing Absent Certified LCA

On November 11, 2009, USCIS released a November 5, 2009, announcement indicating that it will temporarily accept H-1B petitions filed without Labor Condition Applications that have been certified by the Department of Labor.

USCIS Launches Informational Video on the SAVE Program

On November 6, 2009, CIS posted an informational video on its website that provides an overview of the agency's Systematic Alien Verification for Entitlements (SAVE) program. The new video describes the immigration status verification process and explains how federal, state, and local benefit-granting agencies can apply to participate in the program.

Issues at US Consulates abroad when visa processing.

One of the most frustrating aspects of immigration practice is when the U.S. Consulate Office places a Visa Application under so-called "Administrative Review". There could be any number of reasons that a case falls under Administrative Review. For example, a case may present issues and the Officer feels that the Application/Petition needs to be sent back to CIS for clarification.This process is called a "Notice of Intent to Revoke".
Another reason may be because the area of occupational endeavor of the visa applicant is listed on the Technical Alert List ("TAL"). Another reason for the "hold" may be that the applicant is from a country that is recognized for condoning the acts of terrorism. As a result, the case may be sent to the U.S. Department of State ("DOS") for an Advisory Opinion. Such Advisory Opinions are termed "Visa Eagles" or "Visa Donkeys." Often these cases can take many months to process.
Lately, our offices have been called upon to assist individuals who have received Application denials or information requests at U.S. Consulate Offices abroad. The way that these matters are handled depends upon several factors including (but not limited to): (1) the Nationality of the Applicant; (2) the Consulate where the Application was made; (3) the nature of the visa classification requested; (4) the cue for Advisory Opinions at the DOS.
If you or any member of your staff requires assistance with Consulate Processing at the U.S. Consulate abroad or in connection with any post-9/11 registration immigration program (see below), please feel free to contact us at info@visaserve.com.

H-1B visa applications lowest since 2003:

"More than six months after the federal government began accepting petitions for work visas popular with Silicon Valley companies, thousands of spots remain open, a reflection of the nation's high unemployment and the political pressure to hire citizens, experts say."
Mercury News, Nov. 1, 2009.