Recent Updates

U.S. Immigration and Customs Enforcement (ICE) agents arrested 11 individuals in six states Wednesday as part of an investigation into suspected visa and mail fraud. Matthew G. Whitaker, U.S. Attorney for the Southern District of Iowa, announced the operation, which was carried out by federal, state and local law enforcement agencies in Iowa, California, Massachusetts, Texas, Pennsylvania, Kentucky and New Jersey.

Vision Systems Group Inc., a New Jersey Domestic Profit Corporation with a branch office in Coon Rapids, Iowa, was also indicted in a 10-count federal indictment that included one count of conspiracy, eight counts of mail fraud, and one count of ‘Notice of Forfeiture’ in the amount of $7.4 million.

“Today’s multi-state enforcement action is the result of an extensive, ongoing investigation into suspected H-1B visa fraud, mail fraud, and conspiracy,” said U.S. Attorney Whitaker. “Dubbed “Operation Pacific Vision,” this investigation is the result of outstanding cooperation and collaboration among law enforcement agencies at all levels of government.”

The investigation is being conducted by ICE in collaboration with U.S. Citizenship and Immigration Services’ Fraud Detection and National Security Division (FDNS); U.S. Department of Labor’s Office of

Inspector General; U.S. Postal Inspection Service (USPIS); U.S. Department of State; Social Security

Administration’s Office of the Inspector General, and is supported by the U.S. Attorney’s Office for the Southern District of Iowa.

Congress sets a numerical cap for the admission of skilled workers into the U.S. The current H-1B cap is set at 65,000 visas per fiscal year. H-1B aliens can work in the United States for three years, with an option for an additional three years (for a maximum of six years).

Those arrested Wednesday by ICE agents include:

1. Shiva Neeli, arrested in Boston, Mass.; charged with conspiracy and mail fraud.

2. Ramakrishna Maguluri, arrested in Atlanta, Ga.; charged with conspiracy and mail fraud.

3. Villiappan Subbaiah, arrested in Dallas, Texas; charged with conspiracy and mail fraud.

4. Suresh Pola, arrested in Pennsylvania; charged with conspiracy and mail fraud.

5. Vishnu Reddy, arrested in Los Angeles, Calif.; charged with conspiracy, mail fraud and wire fraud.

6. Chockalingam Palaniappan, arrested in San Jose, Calif.; charged with conspiracy, mail fraud and wire fraud.

7. Vijay Myneni, arrested in San Jose, Calif.; charged with conspiracy and mail fraud.

8. Venkata Guduru, arrested in New Jersey; charged with conspiracy and mail fraud.

9. Praveen Andapally, arrested in New Jersey; charged with conspiracy, mail fraud, wire fraud, and making false statements in an immigration matter.

10. Amit Justa, arrested in New Jersey; charged with conspiracy and mail fraud.

11. Karambir Yadav, arrested in Louisville, Ky.; charged with conspiracy and mail fraud.

The maximum sentence for conspiracy is five years in prison and a $250,000 fine. The maximum sentence for mail fraud is 20 years in prison and a $250,000 fine. The maximum sentence for wire fraud is 20 years in prison and a $250,000 fine. The maximum sentence for making a false statement in an immigration matter is 10 years in prison and a $250,000 fine.

PERM Labor Certification is the process through which employers demonstrate their intent of hiring a foreign national for a permanent position in the United States. It was designed to protect the rights and opportunities of U.S. Workers, therefore requiring lengthy steps in recruitment in order to obtain a certification from the U.S. Department of Labor (DOL). After an employer has completed all recruitment efforts and provides evidence that there are no qualified, willing, or available U.S. workers for the offered position, the DOL will certify & issue the Labor Certification. The labor certification is the first step in most employment-based permanent residence (green card) cases. With the recent economic downturn it is important to be aware of the issues and eligibility criteria that arise when an employer involved in the labor certification process has had employee layoffs.

We have recently seen layoffs in all areas of business which have left thousands scratching their heads as to why an employer would need to hire a foreign national while laying off some of their employees. The reality of the situation is that it an employer may require employee layoffs in one location, while needing additional employees in another business location. Many businesses have had to restructure their companies and cut their losses resulting in the shutdown of less productive operations or consolidations. Employers have to be ready to modify their spending in a downtrodden economy. There may be an increase in one segment of the business, with a downturn in another.

Any employer that has filed a PERM Labor Certification knows that the DOL specifically asks whether the employer has had a layoff in the area of intended employment in the occupation or in a related occupation within the six months immediately preceding the filing of the application. If this is the case, the employer is required to provide information and evidence demonstrating that U.S. workers were notified and considered for the job opportunity for which the labor certification is sought.

Before answering yes when your company has had recent layoffs, be sure to examine each part of the question to determine if it applies to you. If the answer is yes, then the employer is required to try to contact and consider certain potentially-qualified former employees for the job opening. Below is a list of questions designed to assist you in determining whether the above inquiry applies to your business:

• Has your company had any layoffs?
• Did these layoffs occur within the past six months?
• Were any of the employees laid-off U.S. Workers?
• Were the former employees working in the area of intended employment?
• Were the former employees working in the occupation set forth in the labor certification?
• Were the former employees working in an occupation related to that in the labor certification?

If the position or job opportunity does not fall into these categories, then an employer has a greater opportunity at receiving the labor certification. It is important to remember that the DOL is only concerned with protecting U.S. Workers. The layoff provision only applies to U.S. workers (i.e. U.S. citizens, lawful permanent residents, and individuals who do not require sponsorship to work in the U.S., such as refugees / asylees). If no U.S. workers have been terminated, then the employer need not worry about this portion of the question. Additionally, if an employer has not had any layoffs in the past six months, then there should be no rise for concern on the employer’s part as the DOL is only concerned with recent layoffs occurring throughout recruitment periods.

The last requirement of companies with recent layoffs is that former U.S. Workers included in any layoff must have worked in the area of intended employment, which is the geographic area where the offered position is to be performed (including normal commuting distance). If the labor certification is for work in a specific location (or locations), and the former employee lives within arguably normal commuting distance, then the response to the question must be yes. If the sponsored position does not have a set work location, but rather anticipates various worksites throughout the U.S., then yes must be the answer to the question, if there have been any layoffs of U.S. workers in related occupations within the six-month period.

If your company has had recent layoffs which fall under the above criteria, then you must be able to demonstrate genuine attempts to notify U.S. worker/s of the job opportunity and that the former employee/s were considered for the position. The DOL is firm in their regulations requiring employers to identify the terminated U.S. workers who previously held the same or related positions in the area of intended employment. The employer must determine whether any worker is potentially qualified for the position and must attempt to notify the worker/s of the opening.

Not only must an employer make these attempts to contact U.S. workers who were previously laid off, but they must also document the good-faith attempts to notify former employees. Any of the former employees who respond to the employer’s notification must be evaluated to determine if they are able, willing, and qualified to perform the sponsored job, under the standards applied to any other applicant. The employer does not have to contact former employees who are not potentially qualified based upon the requirements set forth in the labor certification.

DOL has issued statements affirming that due to the economic hardship the country is currently facing, they will have to carefully scrutinize this particular aspect of the PERM process.

An H-1B Visa (Specialty Occupation) is a non-immigrant visa that is available to a foreign national who has been offered a job by a United States company for services to be performed in the United States. H-1B Visas are available to workers in specialty or professional occupations. It allows you to stay and work in the U.S. for an initial period of three years, but not to exceed six years. H-1B Visa holders can travel in and out of the United States, when it has been granted by a United States Consulate. Spouses and unmarried children under the age of 21 may receive visas as well.

For the current fiscal year, the H-1B cap was reached in the first week the USCIS accepted petitions, under the USCIS lottery rules.

Per federal regulations, the USCIS is only permitted to issue 65,000 H-1B visas each fiscal year. They are also required to set aside 6,800, for nationals of Chile and Singapore, thereby leaving only 58,200 visas available for the regular H-1B program. In addition, individuals who have earned a U.S. Master’s degree are processed under a separate quota of 20,000. Any remaining master’s cap applicants not selected in this special category will then be ran in the random selection under the regular H-1B cap.

Over the past two years, the H-1B quota cap has been reached on the earliest possible day of filing—April 1.

·  For the 2009 the H-1B quota was met on April 7, 2008, the earliest possible day under the USCIS H-1B lottery rules (which provides for a random drawing lottery for petitions received during “the first five business days”).

·  For the 2008 the H-1B quota was met on April 2, 2007, resulting in the first ever random lottery used to select petitions to be processed under the H-1B quota.

Last year, in a last minute decision, the USCIS announced that they would be accepting H-1B filings from April 1, 2008 to April 7, 2009. At the end of this filing period they would then run the random selection lottery to determine who made that years H-1B cap. This year we are expecting a similar filing situation. Petitions filed under this year’s cap are likely to run out within the first week of April.

The H-1B visa is highly desirable due to the fact that it is a “dual intent” visa. This means that a visa will not be denied simply because an individual has intentions to become a permanent resident. Employers interested in obtaining H-1B Visas for prospective employees do not need to demonstrate that there is a shortage of qualified U.S. workers so there is no need for Labor Certification. It’s best to have an attorney or representative present the proper documentation and establish that the offered position is a specialty occupation; also keeping in mind the employee has the appropriate credentials for the job. To further discuss your possibilities for an H-1B visa please contact our office at (714) 657-7460 for a free consultation.

Barack Hussein Obama was inaugurated this morning as the 44^th U.S. President of the United States of America. Not only has Obama made history, as America’s first black president, he is also taking on a nation facing the worst economic depression since the Great Depression. Crowds of one million people of all colors and ages waited for hours in frigid temperatures to witness Obama take his oath of office. It was a scene watched in fascination by billions around the world. In an elegant and hopeful presentation President Obama states, “On this day, we gather because we have chosen hope over fear, unity of purpose over conflict and discord.”

The USCIS Immigrant Investor Program today provided has announced the filing location for all EB-5 Petitions. All EB-5’s will be filed only at the California Service Center. Anything filed to an old location will be forwarded through the end of a grace period to be determined pending Federal Register Notice publication.

For Direct Mail:

U.S. Citizenship and Immigration Services California Service Center
ATTN: EB-5 Processing Unit
P.O. Box 10526
Laguna Niguel, CA 92607-0526

For non-United States Postal Service (USPS) deliveries (e.g. private couriers):

U. S. Citizenship and Immigration Services California Service Center
ATTN: EB-5 Processing Unit
24000 Avila Road, Room, 2nd Floor.
Laguna Niguel, CA 92677

Anyone waiting in the line to adjust their status to that of a Permanent resident has clearly felt the effects of a broken immigration system.  Many applicants have been forced again to start the year off  with a foot in the past due to the lack of movement in the January 2009 Visa Bulletin . Many pending applicants and hopefuls wanting to permanent residence, are stuck in a backlog that may take years to overcome.  Those aliens waiting in the second and third preference categories from China and India have the worst deal yet.   

Many supporters of president-elect Obama are hoping for some type of Immigration Reform legislation in 2009.  Many politicians are aware of the long lines and hold-ups involved in the immigration problem however nothing has been done to solve this problem. One thing for sure is the need for immediate action to provide adequate medical care. Such relief can be found in nurses and other health care professionals who are also stuck in a four year retrogression of visa numbers.

So what can be done to avoid the uncertainty and slothful movement of employment-based priority dates?  Applicants could always consider the EB-5 category for immigrant investors. Annual allocation of visas in the EB-5 category is 10,000, not less than 3,000 of which are reserved for investors in so-called Targeted Employment Area’s and 3,000 reserved for investors in USCIS designated Regional Center’s (“RC’s).  There is no current backlog in the EB-5 category, nor has there ever been. For more information on how you may qualify in the EB-5 Category contact our office. 

The Department of Homeland Security has released a final rule to start as of January 18, 2009, trying to enforce that legal permanent residents meet US-VISIT program biometric requirements when travelling. Currently, the US-VISIT verifies the identities and travel documents of visitors who provide fingerscans, photographs, or other biometric identifiers upon arrival at, or departure from, the United States. Currently, people entering the United States pursuant to a nonimmigrant visa, or those traveling without a visa as part of the Visa Waiver Program, are subject to US-VISIT requirements, with certain limited exceptions. The new rule, which goes into effect on January 18, 2009, will subject legal permanent residents (LPRs or green card holders) to the fingerprinting and digital photos procedure which is currently applied to other non-immigrants entering the U.S.

Many foreign business visitors and tourists staying in the U.S. have sometimes found themselves in a situation which may require them to extend their visit for a longer time than anticipated. Whatever the reason may be, our focus has always been to assist those individuals seeking to legally extend their status.

In recent times, the Vermont Service Center has been unable to adjudicate an I-539 seeking an extension of B-1 or B-2 stay within the time period requested in the extension application. Essentially, the Vermont Service Center requires 6 months to process the application, however most extensions are only granted in increments of 6 months. What does this mean for you? The Vermont Service Center recently announced that despite their lengthy processing times, the application, if approved will only be valid up to the date of approval, plus one day. If the adjudication happens to take place after the requested extension date has been reached more aliens may be exposed to acquiring unlawful presence and 222(g) penalties.

While immigration advocates still attempt to sway these types of decisions, the Vermont Service Center has advised that the foreign visitor leave the U.S. prior to adjudication, or to interfile a second I-539, including the receipt notice of the still-pending petition.

Many immigrant visa applicants often find themselves unsure of what will come next at the end of their immigration process. The Department of State has taken time to clarify the procedures following the Adjustment of Status. Once a case has been finalized, the Officer will submit a request for visa authorization to the Visa Office using the IVAMSWEB automated system.

With this program the system is able to verify,  that the applicant’s priority date is within the applicable cut-off date for that month. When this request  has been made three outcomes can occur: 1) it is Authorized,2) it is identified as a “Duplicate” request, meaning that the A-number was previously authorized, or 3) it is beyond the established cut-off date and is placed in the “Pending Demand” file.

What kind of effort is an employer required to make in its attempts to contact U.S. applicants in the course of a recruitment effort? In Matter of Technivate, Inc., 2008-INA-00065 (BALCA, August 27, 2008), the Board of Alien Labor Certification Appeals (BALCA) upheld the Certifying Officer’s findings that an employer did not make a good faith effort to recruit U.S. applicants when it failed to send recruitment letters to two candidates who could not be reached by phone or e-mail. While the case was decided under the pre-PERM regulations, it still serves as a useful illustration of the fact that the procedures an employer normally follows in its recruitment efforts may insufficient to satisfy the demands of the labor certification process.

The employer in Technivate received five referrals from a regional job center for the position of Heavy Equipment Operator, a job paying $21.89 an hour with no experience required. The employer left a phone message for one of the candidates, but the call was not returned. An e-mail was sent to a second candidate, but it was returned due to an inoperable e-mail address. The employer did not make any further efforts to reach either candidate, inferring that an applicant who does not even bother to return a call for a well-paying job with no experience required must not be interested in the position. The certifying officer took the position that, while an employer might be justified in making such assumptions in the course of a standard job recruitment, the efforts made in this case to reach the applicants were not sufficient for the purposes of obtaining a labor certification.

The Board agreed with the assessment of the certifying officer, finding that the employer had not made a good faith effort to contact the two candidates in question. “Clearly,” the Board found, “sending a recruitment letter to the two applicants who could not be reached by telephone would not be an undue burden.” While not deciding exactly what type of communication would have met the standard, the Board found that the employer’s efforts here were clearly insufficient, as the record contained no evidence of any attempted contact after the voicemail and e-mail went unreturned. The Board held that, on these facts, the employer had made only a “minimalist effort” at recruitment, and that the certifying officer’s denial of the labor certification should be upheld.

This case, while not decided under the current regulations, should serve as a cautionary tale for employers pursuing a labor certification. No matter what a company has done in the past to recruit candidates, one should never assume that such efforts will be sufficient for the purposes of labor certification. A recruitment plan must be created with the labor certification process in mind, and it must be strictly followed from start to finish in order to have any chance at ultimate success. Any candidate identified for the job opening must be seriously considered, and all efforts to reach such candidates must be well documented. By preparing—and scrupulously following—a comprehensive recruitment plan in conjunction with competent legal counsel, employers can avoid the fatal mistakes made by the employer in Technivate.