Immigration Visa Attorney Blog

A decision made this month by the Board of Alien Labor Certification Appeals (BALCA) highlights how the continually changing world of internet technology influences the way visa law is interpreted. Our neighbors here in central Ohio need to be aware of the minute details certifying officers (CO) evaluate as they examine visa petitions.

In October of 2007 an employer had its application for a Permanent Employment Certification for the position of "Dentist" audited. The employer was instructed to provide information related to recruitment.

The CO issued a denial of the certification request in March of 2009, on the grounds the employer failed to identify itself on a job search website. The employer requested a review but was denied again in November for the same reason.

According to the CO, the employer was in violation because "the information initially presented to interested individuals via the Search results would only show the employer's name as listed with (the job search site), the position title, location and the date posted." In this case the results on the search page listed the employer as "confidential."

The employer believed that even though its name was not listed on the search pages, when a potential applicant clicked on the hyper link for the full job description he or she would be able to view the employer's name and street address. The employer did not feel as if the advertisement was "blind," as prospective employees would see the required information upon clicking the entire job listing. The CO did not agree and the case was forwarded to BALCA in November of 2009.

Continue reading "Columbus Immigration Attorney Review: BALCA Clarifies Website Policy" »

The saga of Tri Valley University and founder Susan Su is an eye-opener to one way the immigration and educational systems can be exploited and how students can be caught in the middle. We hope folks here in Columbus take a close look at the case.

In January the United States government seized property owned by Susan Su, director of Tri Valley University (TVU), due to allegations related to fraud and other illegal activity. In forfeiture proceedings where typically the properties are the named defendants, the U.S.government asserts that the properties were acquired with illegal funds. The government asked the court to turn over the property due to misuse of visas and permits, mail fraud, wire fraud and money laundering. Court documents outline the alleged offenses which occurred during an elaborate defrauding scheme between 2008 and 2010.

In April of 2008, Susan Su created TVU, an entity that supposedly offered online college classes. The government's complaint explains that while the private learning institution was seeking accreditation from the Department of Homeland Security (DHS), students were already being recruited and tuition was being paid. In reality the existence of the university was purely for fraudulent purposes.

The focus of TVU was to gain foreign immigrant students by securing F-1 visas. TVU was developed as an illegal institution that allowed foreign nationals to immigrate to the United States and be considered "students" as long as $2,700 "semester" fees were paid. DHS's explanation for not identifying the scheme is that the current immigration system is inadequate for tracking the educational status of foreign nationals. The reason DHS offers for not catching the scheme exonerates the students, who appear to be the true victims of DHS's failures and the school's alleged fraud.

The complaint asserts the first offense committed by TVU and Su was a willing misuse of the visa program. Throughout the accreditation process TVU completed federal documents using inaccurate information in order to circumvent Homeland Security. To receive accreditation by the DHS, TVU had to submit a Form I-17 petition. Su and her staff misled the government by claiming they were operating a legitimate school.

The second offense that occurred was mail fraud. In addition to filling out federal documents, TVU had to supply DHS with three articulation statements from major universities asserting credits earned at TVU would be transferable to larger learning institutions. Mail fraud occurred when TVU sent the fraudulent documents and statements to DHS through the U.S. Postal Service.

Continue reading "Immigration Attorney Examines Tri Valley University Case" »

A new identification card has been unveiled by the United States Citizenship and Immigration Services (USCIS). It's too early to say conclusively what the card will mean for those who choose to take advantage, but we wanted to make Ohio residents are aware of the government's new system.

In a Feb. 11 memo the USCIS announced that it was combining employment and travel authorization on a single card for those who have completed a Form I-485 (Application to Register Permanent Residence or Adjust Status). In the announcement the USCIS stated the card "looks similar to the current Employment Authorization Document (EAD) but will include text that reads: 'Serves as I-512 Advance Parole.'"

The USCIS says the card will allow the holder to travel abroad without impacting the adjustment application. They will be expected to present the card at their port-of-entry to request parole.

But the memo does say that "the decision to parole the (card holder) is made at the port-of-entry." Some immigration attorneys are therefore concerned the card will cause some to travel abroad and find themselves unable to return to the U.S. They advise any immigrant who initially entered the country illegally to wait for his or her green card to arrive.

Continue reading "Columbus Ohio Immigration attorney on new USCIS Card" »

This is the final post in a four-part blog series reviewing the current H-1B visa program. (Parts I-III can be found HERE, HERE and HERE.) The intent of this series is to locate weaknesses within the program in order to work towards finding viable solutions. We hope our neighbors here in the Columbus, Ohio, community find these posts helpful as they interact with the program going forward.

The United States Government Accountability Office (GAO) released the entire review of H-1B in January of 2011. The GAO interviewed 34 companies in specialized industries that rely on the visas for their foreign employees. Upon reviewing the program as well as discussing specific issues with the individual companies, the GAO produced formal recommendations for the Department of State, Department of Labor, Department of Homeland Security, and the Department of Justice. A copy of the review was sent to each department. A series of responses were sent to the GAO and included at the end of the report.

The Department of Justice approved of the GAO's suggestion that it create a website that would track H-1B petitions as well as companies that hire H-1B workers. The department mentioned that work is already underway to combine the Homeland Security and Department of State data systems. The statement said that combining the systems would provide direct information about the number of visas that are approved under the yearly cap.

However, the Department of Justice thought that while combining the systems would be helpful, it did not believe the measure would produce substantial improvement. The department explained that the Department of State's data system does not account for workers who are in the United States and want to change their status. Also, the information that is collected will not be available in time to assist in determining the yearly cap. The only area of the review that the Department of Justice did not support was one the GAO made directly to Congress and the USCIS about changing the requirements for LCA reviews.

Continue reading "Columbus, OH, Attorney Reviews the H-1B Program: Part IV" »

This is the third post in four-part blog series that will review the current H-1B visa program. (Part I can be found HERE and Part II HERE.) In Columbus there are numerous businesses and employees impacted by what has become a flawed process and we hope this analysis will help shed light on some of the problems.

Following a detailed overview of the program, the United States Government Accountability Office (GAO) proposed a series of modifications based on their review as well as the feedback it received from 34 companies that were interviewed. The intent of the modifications would be to streamline the visa application process and strengthen the structure and organization of the entire program. The state of the current H-1B program is hurting the specialty industry workforce in the United States in addition to hindering immigration.

The GAO listed two suggestions for improvement by the Department of Homeland Security. First, the data system must be updated so that Homeland Security can track the number of visa petitions every year. The GAO mentions that if the USCIS linked its digital records system with that of the Department of States, Homeland Security would have constant access to the critical information.

Second, the USCIS should explore options to simplify the H-1B Visa application process without hurting the integrity of the program. Based on suggestions from the 34 companies, the GAO mentions a series of options for streamlining the application process. Allowing a company to rank applications based on necessity would help to ensure that important workers are accepted first. Also, distributing visa applications quarterly would give employers the opportunity to seek H1-B workers throughout the year. Finally, GAO emphasizes that Homeland Security should consider an honor system that takes a company's track record and reliability into account in order to shorten the application process.

In regards to the Secretary of Labor, the GAO states that the Labor Condition Application (LCA) posting requirement must be enforced according to the specific standards that are in place. The review explains that the Employment and Training Administration could develop a public website where each company would post its intent to hire H-1B Visa workers. The posting would have to include the employment category as well as the location of the business. In addition to meeting the posting requirement, the public website would allow data to be recorded and analyzed in order to track companies' compliance with the visa program's rules. The GAO explains that the Employment and Training Administration would give the Department of Labor access to the website in order to monitor company activities and enforce rules when necessary.

The GAO explains that suggestions have been made in the past with the intent of improving the H-1B visa program. In a previous report the GAO suggested that the application process needed to be streamlined, particularly the requirement for employers to submit the LCA to the Department of Labor. The GAO explained that the USCIS conducts an LCA review, so the requirement of submitting it to Labor only prolonged the entire process. Congress listened to the GAO and combined the Department of Homeland Security with the USCIS, but the application process as a whole was not amended or streamlined.

The GAO report also mentions the important observations of the various companies that were interviewed during the review process. It was noted that inconsistencies exist between processing centers around the country. Companies explained that some processing centers were more efficient than others. Also, the reasons for visa application denial were not always logical or clear. The GAO explains that the inefficiency of the processing centers as well as the reasons for denial must be analyzed and corrected accordingly in order to restore the integrity and dependability of the H-1B Visa program.

Continue reading "Columbus, OH, Attorney Reviews the H-1B Program: Part III" »

In January the United States Citizenship and Immigration Services (USCIS) updated its "Handbook for Employers." The handbook is a how-to for completing Form I-9, which is the "Employment Eligibilty Verification From." Employers here in the Columbus area need to make sure they are aware of these changes.

A note from USCIS Alejandro Mayorkas detailed the updates added for the January 5 version. He says in the memo:

"(The handbook) has been revised and updated with new information about applicable regulations, including new regulations about electronic storage and retention of Forms I-9; it clarifies how to process an employee with a complicated immigration status; and, it addresses public comments and frequently asked questions."

Mayorkas highlighted the following new components of the Form I-9 process:

-New visual aids for completing the form.
-Examples of the USCIS' new documents.
-A more expansive section on guidance for lawful residents, refugees and asylees and exchange visitors and students.
-More guidance related to processing employees or "porting" them to H-1B and H-2B status.
-More guidance for extending the stay of an employee with temporary authorization.

The goal of the Immigration Reform and Control Act of 1986 was to limit illegal immigration by cutting down on job opportunities which might lure "unauthorized persons" to the United States. It is therefore illegal to hire or employ an alien not authorized to work in the U.S.

Continue reading "Form I-9: USCIS Updates Employer Handbook" »

This is the second post in a four-part series analyzing the current state of the H-1B visa program. We hope the blogs will help our neighbors in Ohio and Michigan understand better the H-1B program as it now stands.

In January the United States Government Accountability Office (GAO) released a detailed review of the H-1B visa program. The intent of the review was to create awareness of weaknesses and inconsistencies within the program. The findings clearly state that there are risks and liabilities within the framework of the H-1B program.

In order to strengthen immigration within the United States, as well as the workforce in specialty industries, Homeland Security must address the issues that surfaced in the GAO's review. Some of the greatest risks are associated with the determination of the petition cap each year, petition acceptance inconsistencies, a lack of regulating companies that are violating the system, and the weakness of the entire Homeland Security data collection system.

The designated yearly cap has a detrimental and limiting effect on the current H-1B visa program. The GAO review highlights that determining the precise cap should be balanced with the state of the economy. However, the precise numbers of visa petitions that are accepted in addition to the number that are denied has never been documented accurately. As a result, analyzing how to improve the system and set a reasonable cap is challenging.

From 2005 to 2009 Homeland Security set the cap at 65,000 regular requests and 20,000 master requests each year. Due to the strengthening economy, the cap was reached very quickly in 2008 and 2009. Petitions can be submitted for the fiscal year beginning on April 1. During prosperous years the cap was reached within a number of days. Once the cap is reached employers stop sending in petition requests because Homeland Security will no longer review them.

GAO's review of the H-1B program stressed that one of the primary weaknesses within the system is the lack of documentation that exists throughout all levels of the program. Over the years, Homeland Security has never developed any way to measure demand for H-1B visas. The number of petitions that are rejected or submitted after the cap has been reached has never been recorded or studied in order make future adjustments and improvements to the program.

Continue reading "Columbus, OH, Attorney Reviews the H-1B Program: Part II" »

This is the first post in a four-part series analyzing the current state of the H-1B visa program. We hope the blogs will help interested parties here in Ohio gain a better understanding of the H-1B program as it now stands.

In January of 2011 the United States Government Accountability Office (GAO) released a complete overview and observation of the H-1B visa program. The intent of the review was to locate weaknesses and issues in order to modify and advance the effectiveness of H-1B.

Foreign workers in specialized industries play a vital role within the United States workforce. Due to restrictions within the current H-1B program the productivity and success of large and small companies is being directly impacted. The employment and immigration of specialty workers is also suffering because of the system currently in place.

Throughout the review process the GAO interviewed 34 companies impacted by the H-1B Visa program. Homeland Security creates a cap every year that dictates how many visa petitions are available. Once the cap is reached, no more petitions are granted for that year. Large and small companies incur certain financial and productivity costs as a result of the current program. The review concluded that the magnitude of the costs and overall impact varies depending on the size and age of each company.

All of the companies must pay designated Homeland Security filing fees in addition to any legal fees that accumulate during the H1-B Visa petition process. The GAO noted that for 26 of the interviewed firms the combined total of fees per petition ranged from $2,320 to $7,500.

Even following the petition process and paying the necessary fees does not guarantee a company its Visa petition will be granted. And companies experience significant financial losses due to rejected visa petitions. In addition to the filing and legal fees, they must also pay the administrative costs associated with filing H-1B Visa petitions. There is no way for the companies to know which petitions will be granted. As a result, the ability to plan projects as well as designate work is impacted significantly. The process of finding alternate recruitment methods in addition to hiring other employees on short notice increases the financial burden. In order to find qualified employees and meet specific deadlines the companies are forced to accumulate additional costs associated with higher salaries and a more demanding workforce.

Continue reading "Columbus, OH, Attorney Reviews the H-1B Program: Part I" »

Something for employers here in Ohio to be aware of when planning to file an application for Permanent Employment Certification (PERM) is the way in which they will be required to prove their recruitment efforts. One method by which that can be accomplished is use of the employer's website. As this recent Board of Alien Labor Certification Appeals (BALCA) demonstrates, employers must be versed in the nuances of proving web recruitment.

Following a November, 2007 audit, an employer looking for certification under PERM for the position of "Applications Engineer" submitted its recruitment documentation to the Certifying Officer (CO). The employer attached job listings from its website dated September 24, 2007, as well as an affidavit from a high-ranking employee certifying that he posted the job opportunity on the website from May 29, 2007, to July 19, 2007.

But certification was denied by the CO. The reason for the ruling was that the CO did not believe the employer complied with a requirement that an employer's website "be documented by providing dated copies of pages from the site that advertise the occupation involved in the application."

The CO said the employer's documentation showed only that the job was posted on Sept. 24, a date that falls outside the reported time between May and July. The employer filed for reconsideration based on a belief the affidavit of its executive should have been given more weight and that the Sept. 24 date fell within the period 30 days prior to the application being submitted.

After consideration the judge for BALCA agreed with the CO's findings. The judge found the Sept. 24 date "unpersuasive" (as it was not within the time period listed on the application) and pointed out that regulations require that employers maintain supporting documentation of all step taken in the recruitment process.

Continue reading "Columbus H-1B Attorney: Website Documentation in PERM Certification" »

The United States Citizenship and Immigrations Services announced in a statement released Thursday that the cap number for regular H-1B petitions has been reached.

65,000 Bachelor's degree petitions have been accepted by the USCIS, drawing to a close the process for fiscal year (FY) 2011. Applications were accepted beginning on April 1, with the 20,000 Master's cap reached in early January.

Employers who would like to file for an H-1B visa for the period beginning Oct. 1 of FY 2012 will not be able to petition the USCIS until April 1 of this year.

In it's statement the USCIS said it will continue to accept petitions filed to:

-Extend the amount of time a current H-1B worker may remain in the U.S.
-Change the terms of employment for current H-1B workers;
-Allow current H-1B workers to change employers
-Allow current H-1B workers to work concurrently in a second H-1B position.

The cap number for FY 2011 was reached approximately five weeks later than it was last year. The USCIS announced it had reached the regular cap for FY 2010 on Dec. 21 of 2009.

Continue reading "2010 H-1B Cap Reached for FY 2011 " »

Those residents of our local Columbus, OH community interested in being granted U.S. citizenship should make sure they are familiar with all parts of the process. An area which usually raises questions is continuity of residency.

To be eligible for Naturalization a lawful permanent resident needs to reside continuously in the U.S. for at least five years, or three years if married to a U.S. citizen and having lived with that same U.S. citizen during the entire residency.

The continuity of residence requirement needs to be met before filing a naturalization application.

Generally speaking, traveling outside the U.S. for less than six months does not interrupt continuous residence. But traveling outside the country for more than six months does raise a presumption that continuity of residence has been interrupted.

Such presumption can be rebutted by providing evidence to establish continuous residence, such as presence of immediate family in the U.S., non-termination employment in the U.S. or retention of full access to a U.S. home.

The burden of proof rests with the applicant. In cases where an applicant left the country to study abroad after they became a permanent resident, the courts have ruled that such study does not result in abandonment of residency. Li v. Chertoff, 490 F.Supp.2d 130 (D. Mass. 2007).

Continue reading "Continuity of Residence Requirement for Naturalization Application" »

Late last week the United States Citizenship and Immigration Services released the most recent count for its H-1B visas. Interested parties in and around Columbus, OH, should be aware the cap could be reached in less than ten days.

Having reached the Master's Cap early this month, the USCIS is now nearly at the 65,000 cap for Regular Petitions. As of Friday there had been 62,800 eligible petitions received.

The January 4 update revealed that the 20,000 cap for Master's petitions had been reached.

Applications have been accepted by the USCIS since April 1 and the agency will continue to do so until the 65,000 number is reached.

The process of applying for these petitions is a somewhat complex one which includes completion of Form-129. The best opportunity for approval involves help from experienced counsel.

On Wednesday federal agents from the United States department of Homeland
Security searched California's Tri-Valley University, as well as the home of the school's president, reportedly in connection with a criminal immigration investigation. The story is one that should be monitored by students in Ohio and Michigan that are involved, or are considering involvement, with student visa programs like the F-1.

Media outlets have reported agents from Immigration and Customs Enforcement were seen taking pictures and video at locations in the city of Pleasanton. The raid reportedly began early in the morning and included several properties linked to the school.

One of the targets appears to be Susan Su, Tri-Valley's president and founder. Agents were seen at a 6,400 square foot home on a nearby golf course which records show Su purchased in early December.

Agents told a local TV station the raids were part of an "ongoing criminal investigation into the school and its administration."

Continue reading ""Homeland Security Raids University"" »

A recent decision handed down by the Board of Alien Labor Certification (BALCA) ruled that the Certifying Officer's (CO) demand for proof a State Workforce Agency job order was actual run is not covered by permanent labor certification (PERM) regulations. It is an issue which could easily present itself in a community like Columbus, OH.

In the case in question, an employer had its initial request for a nonprofessional position (baker) to be certified denied on the grounds it could not be verified as a legitimate business. After the employer responded with what it deemed evidence it was a business entity the CO issued an audit requesting recruitment efforts as well as some proof of publication by the SWA containing content of the job order.

The employer's audit response contained fax proof of a job order request made to the New Jersey Department of Labor as well as a copy of the job order form.

The CO ultimately denied certification, stating that the documentation was not what the audit requested. The employer countered that the denial was based on proof of the SWA job order and both the fax it provided, along with the copy of the original job order meant it was in compliance. The employer added that certified copies were not aviailable from the SWA because of a record purge prior to the audit and that the bank under which the order had run no longer existed.

Based on a requirement that employer must retain documentation supporting application for five years the CO denied reconsideration and forwarded the case to BALCA.

Continue reading "Columbus Labor Certification Attorney on Evidence of Job Order Placement" »

We wanted to make sure everyone was aware that the cut-off date currently provided by the Consulate's website (mumbai.usconsulate.gov) regarding EB-2 visas for individuals born in India is incorrect.

The current date is actually May 8, 2006, as stated in the U.S. Department of State's February 2011 Visa Bulletin.

As of January 11th the Indian Consulate was still incorrectly listing the E2 date as "current."