Iraqi SIV Applicants Face Longer Path To Green Card Due to More Security and Background Checks

Image by james.gordon6108 via Flickr

Iraqi SIV applicants can expect even longer delays in processing due to a more extensive background check process out of concerns for U.S. national security.

The end of the long road to a green card used to be the visa interview at the U.S. Embassy, the background checks having been done before this stage.

Now, under a new policy, background checks are done again at the time of the interview to ensure no new negative information about the applicant has surfaced.

These delays are also occurring with Iraqi SIV applicants who are already in the United States and applying to adjust their status there. [The SIV (Special Immigrant Visa) is available to eligible Iraqis who have worked for or on behalf of the U.S. government in Iraq for more than a year since March 20, 2003 and have experienced an ongoing serious threat because of that work.]

Our clients began experiencing these delays late last year. These delays can last weeks or months, or worse, years. There is no way of knowing when the person will be cleared and there is almost no way to rush the process.

For the Iraqis already in the United States, the delays are an inconvenience since most are in another valid status. For the Iraqis oversees, and in particular those still in Iraq, however, the delay puts their lives more at risk, thereby undermining the purpose of the SIV. Knowing a long wait exists may also be a deterrant for those seeking legal immigration, provoking  into attempting illegal migration to the United States or elsewhere.

We wish something could be done to speed up this clearance process, but there is little to do but wait at this point. Eventually, after an excessive wait –  normally excessive in the immigration context is years, not months – litigation may be an option.

The trigger for the revised and enhanced background check process was the arrest in the United States of an Iraqi who was admitted as an asylee despite being accused of planting roadside bombs in Iraq, according to an article in the Los Angeles Times.

As a result, more than 58,000 Iraqi asylees and refugees already in the United States will be re-screened, according to the Los Angeles Times article. In addition, those applying for asylee, refugee or SIV status will be subjected to a multi-step background check that due to the work overload on the agencies involved in this process inevitably will delay their application process

The following is an excerpt from an USCIS report on Iraqi refugee statistics that explains the revised background check posture.

Ensuring Security

We are committed to conducting the most rigorous screening in order to ensure that those being admitted through the refugee program are not seeking to harm the United States. In May 2007, DHS announced and implemented an Administration-coordinated, enhanced background and security check process for Iraqi refugees applying for resettlement in the United States. The security check regime, including both biographic and biometric checks, has been enhanced periodically over the last several years as new opportunities and interagency partnerships with the law enforcement and intelligence communities have been identified.

 These enhancements are a reflection of the commitment of DHS and other agencies to conduct the most thorough checks possible to prevent dangerous individuals from gaining access to the United States through the refugee program. The latest enhancement to the refugee security check regime involves a new “pre-departure” check shortly before refugees are scheduled to travel to the U.S. It is intended to identify whether any new derogatory information exists since the initial checks were conducted. These pre-departure checks went into effect in late 2010. No case is finally approved until results from all security checks have been received and analyzed.

 

 

 

Why PG County Schools’ Wage Violations May Throw Its H-1B Teachers Out of the US

In the wake of Maryland’s Prince George’s County Public Schools (PGCPS) settlement agreement involving H-1B wage violations, questions have been raised about the unfair affect this is having on the victims, the teachers who will be forced to leave their jobs and the United States once their H-1B time runs out.

As part of the settlement agreement, PG County schools are barred from filing H-1B and other employment-based petitions for two years, including extensions of existing H-1B workers. Once their H-1B time with PGCPS expires, these teachers will be out of a job and have to leave the United States unless they find another employer or other visa status.

It’s true. It’s not fair. The reason lies in the purpose of the visa regulations. H-1B and associated employment-based immigrant visa regulations, which include those of the Department of Labor and USCIS, were not created for the benefit of the foreign workers. Rather, the regulations were created for U.S. employers. These regulations enable U.S. employers to fill jobs that would otherwise go unfilled because insufficient numbers of qualified American workers (or other authorized workers) exist.

To prevent employers from using these regulations to undercut American workers, the regulations impose numerous obligations on employers. For H-1Bs, for example, the regulations set minimum wage requirements for each job based on the profession and location (known as the prevailing wage) and prohibiting benching (the worker must be paid the required wage even if the employer has no project or work to be done).  By imposing these obligations, the employer is discouraged from seeking foreign workers who it might be able to pay less for doing the job. These obligations also protect the foreign worker from exploitation, but is not their only purpose.

The process of obtaining an H-1B and associated green card has become sufficiently complicated, expensive and lengthy that it also serves as a de facto discouragement against hiring foreign workers.

With this in mind, the regulations impose penalties designed to punish the employer, such as fines and being barred from participating in the visa programs. They do not focus on remedies for the foreign worker. In the case of the PG County teachers, they are to be reimbursed the money they paid, but this order is less about refunding the teachers their wrongfully paid sums, and more about preventing the employer from benefitting from its violations, which it would if it were allowed to retain the money paid by the teachers.

As to the victimized teachers, the system is not concerned with their re-employment once their H-1B with the school expires. The H-1B visa is market driven, so the system lets the market decide their fate. Once their H-1B with PG County expires, the teachers can stay in the United States if they can find another employer or obtain some other visa status (e.g. student visa, marriage visa, etc.). From the system’s perspective, if the teacher does not find another H-1B employer, for example, then that must mean sufficient numbers of American workers exist, so a foreign worker is not needed to fill the job and must return home.

To prevent this unfair outcome, a change in the focus of immigration policy must happen. When the policy changes, the regulations will follow. If U.S. immigration policy concerns you, you can advocate for change by contacting Congress or volunteering to help immigration advocacy organizations, such as the American Immigration Council.

If your employer required you to pay for your H-1B fees or you have been benched or underpaid, you may have remedies available and should seek advice from a competent atttorney.

For more information about legal services we provide to H-1B employees with wage claims, please see our blog we co-author with Attorney Michael Brown here.

H-1B Cap Hit for FY 2010

USCIS announced it has received sufficient number of H-1B petitions to reach the statutory cap of 65,000 for fiscal year 2010. 

December 21, 2009 is the cut-off date, or “final receipt date,” for new H-1B petitions requesting employment for the fiscal year, which began Oct. 1, 2009.

USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption. 

Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked.  USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after Dec. 21, 2009.

For all petitions that are subject to the cap and were received on Dec. 21, 2009, USCIS will use a computer-generated random selection process. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2010 H-1B cap. Therefore, USCIS will continue to process petitions filed to:

•           Extend the amount of time a current H-1B worker may remain in the United States. 

•           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.

E-Verify Explained

The Migration Policy Institute has posted an informative explanation of the controversial E-Verify program and its proposed alternatives.

E-Verify is a U.S. government database that employers can use to verify the employment eligibility of prospective hires. Both the U.S. government and some states are attempting to make use of this database mandatory against the protests of various immigration, business and other advocacy groups.

One of the key problems with this database is its unacceptable error rate, which results in citizens and non-citizens alike receiving non-confirmation notices. A non-confirmation means the prospective employee effectively cannot start work until he clears his name.

The following are highlights of the problems with the database extracted from the Migration Policy Institute’s article on the issue:

Error Rate

“False nonconfirmations, the most serious problem, affect both legally resident workers and employers. Where tentative nonconfirmations are successfully appealed, some workers report having to make multiple trips to SSA field offices or numerous calls to DHS to correct the error.

The persistence of database errors means that protecting workers against false final nonconfirmations requires employers to endure relatively long periods of uncertainty about employees’ status to ensure workers an adequate opportunity to appeal a [nonconfirmation]….

As noted earlier, foreign-born workers, particularly naturalized citizens, have the highest database error rates. Since Westat, GAO, and other independent analysts have found that employers subject native and immigrant workers to different degrees of scrutiny, human error and bias can reinforce the problem. …”

 Identity Theft

 “A second unintended consequence of E-Verify is identity theft, which affected 8.4 million Americans in 2007 at a cost to these victims of $50 billion according to the US Trade Commission.

By linking employment more closely to valid Social Security numbers (SSNs) and associated data (e.g., name and state of birth), E-Verify increases the value of this information, the key to stealing an individual’s identity.”

Excessive Cost to Tax Payer

“Third, although USCIS bears the financial costs of administering E-Verify, SSA manages 90 percent of the system’s queries, and SSA field offices must resolve erroneous nonconfirmations for US citizens.

SSA administrators have testified before Congress that these tasks threaten the agency’s ability to complete its core mission of service to disabled and retired Americans. These administrators have estimated that a mandatory E-Verify program would cost the agency about $281 million for fiscal year (FY) 2009 through FY 2013.

SSA officials and advocates for the agency warn that expanding E-Verify would threaten the agency’s ability to process the impending wave of baby boomer retirees, which is expected to add a million new cases to the agency’s workload each year for the next decade.”

Weird Science: Maddening Visa Policies For World’s Brightest And What You Can Do About It

On the heels of yesterday’s post about the proposed STAPLE Act, today the Washington Post ran a timely article discussing a related obstacle faced by the world’s brightest minds, who would prefer to use their expertise in the United States but due to ill-conceived visa polices and procedures find it all but impossible to do so.

The article, headlined “U.S. Visa Delays Distress Scientists,” talks about the plight of foreign talent eager to get back to work, but who are stuck in their home countries waiting to emerge from the background check black hole so they can get a visa to re-enter the United States. (To read the article you will have to register to read the article, but to do so is free. If you don’t want to register, use a log-on from a site such as http://www.bugmenot.com).

It doesn’t take a genius to figure out the consequences such obstacles are having and will have on scientific research and advancement in the United States. Experts don’t want to sit idle waiting for the U.S. government to decide whether they are worthy of a visa, and research institutions can’t simply put projects on hold until the experts arrive.

Innovation will go elsewhere.

If you want to bring back some common sense and balance to U.S. immigration law, contact your Senators and Congressmen. To learn more about the issues and how to contact your representatives, check out AILA’s Legislation and Advocacy pages, most of which do not require a password to use. Also see AILA’s advocacy arm AILFand AILF’s policy site for additional information, both of which are free to access.

New biometrics ACS office opening in Saipan in March 2009

A new Application Support Center (ASC) is scheduled to start operations March 2, 2009 in Garapan, Saipan in the Common Wealth of the Northern Mariana Islands (CNMI), according to a USCIS press release.

The new center will allow the people to provide their fingerprints and other biometrics without having to travel to Guam or the United States.

In addition to the traditional function of fingerprinting services, people will be able to make appointments through the USCIS website (www.uscis.gov) to see an Information Officer at the ASC for general immigration questions.

The customer service line (800) 375- 5283 is also now accessible toll-free from the Commonwealth.

In CNMI, U.S. immigration law currently only applies to immediate relatives of U.S. Citizens. Come June 1, 2009, when the transition period is scheduled to being, U.S. immigration law in general will be applied to the CNMI, according to USCIS.

On May 8, 2008, President Bush signed into law Public Law 110-229, the Consolidated Natural Resources Act (CNRA) of 2008.  Title VII of this law amended P.L. 94-241, the Act approving the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States.  Title VII extends certain provisions of the Immigration and Nationality Act (INA) to the CNMI for the first time in history, according to USCIS.

Pilot Program To Expedite Entry Into U.S. For Citizen, LPR Travelers

U.S. citizens, nationals, and permanent residents will soon be eligible for a pilot program enabling expedited clearance of pre-approved, low-risk air travelers into the United States, according to a new rule published in the Federal Register.

The International Registered Traveler (IRT) pilot project, a.k.a. Global Entry, is scheduled to start June 10, 2008 at  John F. Kennedy International Airport, Jamaica, New York (JFK); the George Bush Intercontinental Airport, Houston, Texas (IAH); and the Washington Dulles International Airport, Sterling, Virginia (IAD), and may expand to other locations as announced.

CBP is working with other countries, exploring expansion of the program to include other categories of travelers as well.

Applications to participate in the pilot program should be submitted May 12, 2008, but will be accepted throughout the duration of the pilot program. The pilot program is expected to continue for at least six months. The time frame of the pilot program will vary, depending on the progress of CBP’s evaluation of the program.

The program enables participates to by-pass regular passport control primary inspection lines, using instead automated kiosks to verify identity via fingerprint biometrics technology, explains the Rule.

The procedure will also involve responding to several customs declaration questions by use of a touch-screen.

Upon verification, the traveler will receive a receipt, which, along with his passport and/or permanent resident card, he then gives to the CBP Officer at the exit control area for examination.

The application for the IRT pilot is available on-line through the Global On-Line Enrollment System (GOES).

There is a $100 non-refundable application fee.

CBP has posted a FAQ on its site.

H-1B Lottery Scheduled For Next Week

The H-1B lottery for FY 2009 is expected to start next week, USCIS announced.

Using a computer-generated random selection process, USCIS will start with the 20,000 petitions under the advanced degree exemption. Those petitions not selected under the advanced degree exemption will join the lottery for the regular 65,000 cap.

USCIS received almost 163,000 H-1B petitions during the filing period ending on April 7, 2008. More than 31,200 of those were for the advanced degree exemption, according to USCIS.

These numbers are up from last year’s preliminary figures, when USCIS reported receiving 133,000 filings, overall within the first two days of the April 1, the opening day of the filing season for the upcoming fiscal year.

In addition, unlike this year, the advanced degree cap was not immediately reached last year, with 12,989 being filed in connection with the opening-day rush.

New OPT Rule Effective Today, April 8, 2008

The interim final rule regarding the extension of optional practical training (OPT) for certain foreign national students was published in today’s Federal Register, meaning the rule is now in effect.

The final rule will be issued after the Department of Homeland Security reviews public comments, which must be submitted by June 9, 2008.

The rule extends OPT for two categories of students. The first is for pending H-1B applicants who are caught in the cap gap caused by the limited annual availability of visas. Those applicants with a start date of Oct. 1, 2008, when the new H-1B visas become available, but whose OPT period will expire before Oct. 1, 2008 will receive an automatic extension of their OPT to cover them through Oct. 1, 2008, assuming the H-1B application is approved.

If the application is denied, the student has 60 days to leave the country from the date of notification of the denial.

The second category of students to benefit from the new rule are those who hold degrees in science, technology, engineering and mathematics and whose employers are enrolled in the controversial E-Verify program. OPT for these students is being extended from 12 months to 29 months, a 17-month increase.

The published rule in the Federal Register is available here: http://edocket.access.gpo.gov/2008/pdf/E8-7427.pdf

For more information about this new rule, please see our earlier article OPT Extension to Benefit H-1B applicants and STEM students. 

How to Report Suspected Criminal Violations by USCIS Employees

Immigration officers are required to abide by standards of integrity and efficiency, and if they do not, the U.S. government wants to know about it.

You may report suspected criminal violations, misconduct, wasteful activities, and allegations of civil rights or civil liberties abuse to the DHS Office of Inspector General.

To make a report, call 1-800-323-8603 or email DHSOIGHOTLINE@DHS.GOV.

Calls can be made anonymously and confidentially.

For more information, see the Office of Inspector General web page.

USCIS, FBI Announce Plan to Eliminate Name Check Backlog

USCIS and the FBI have announced a joint plan to eliminate the name check nightmare that holds up processing of applications, such as for green cards and naturalization.

The agencies say they will obtain their new processing goals “by increasing staff, expanding resources, and applying new business processes,” according to a USCIS press release.

The agencies have set the following milestones for name check processing:

May 2008 – Process all name checks pending more than three years

July 2008 – Process all name checks pending more than two years

Nov. 2008 – Process all name checks pending more than one year

Feb. 2009 – Process all name checks pending more than 180 days

June 2009 – Process 98 percent of all name checks within 30 days and process the remaining two percent within 90 days.

Round Up of Individual Woes Across the U.S.: How H-1B and H-2B Employment Visa Caps Are Hurting the Economy

Headlines across the country in recent weeks have been sharing a common theme describing the consequences to the American economy caused by the insufficient availability of H-1B professional work visas and H-2B seasonal work visas.

The technology and other industries say they are having to relocate high-paying jobs abroad because they cannot find qualified Americans to fill them in the United States, and they cannot bring in professionals from overseas because the H-1B visas, capped at 65,000, with an additional 20,000 for those with advanced degrees from the U.S., are too limited for the need.

Meanwhile, seasonal industries that support the U.S. economy, including fishing and tourism are simply closing down because the owners cannot find American workers and cannot obtain H-2B visas to bring in foreign workers because of a similar cap on availability. For example, on the Gulf Coast, the seafood companies could not find enough home-grown crab pickers, so they are now having to import crab meat from Latin America to meet local demand.

Naturalization Interviews To Be Held Weekends, After Hours

If you receive your notice for a naturalization interview and it is schedule for the weekend or after hours, it was not a mistake.

USCIS said it is expanding its hours and staff to help respond to the deluge of naturalization applications received last year.

In pursuit of its processing time goals, USCIS will be interviewing applicants on Saturdays, Sundays and during the week after traditional work hours.

Estimated Processing Times For Summer Surge Naturalization Applications Reduced to 14-16 Months

USCIS has reduced its processing time projections to 14-16 months for naturalization applications filed during the surge last summer, increasing the chance yours will be approved in time to vote in the November presidential election, according to a recent statement.

Processing times were originally estimated to be between 16-18 months.

USCIS reports that during FY 2007, it received approximately 1.4 million naturalization applications. In the months of June and July of 2007 alone, it experienced an increase of nearly 350 percent compared to the same period in 2006.

The summer surge is attributed to a desire to beat the fee increase and to stepped up campaigns promoting naturalization in anticipation of the upcoming presidential election.

Survey Shows State Legislation Relating To Immigration Skyrockets in 2007

The National Conference of State Legislatures has compiled a comprehensive list of immigrant-related legislation passed by states in 2007.

State efforts to legislate immigrant-related matters skyrocketed last year as at least 1562 pieces of legislation addressing immigrant-related concerns were introduced across the nation, representing an increase of almost three times more bills than in 2006 (570), according to the NCSL.

Of these bills, 240 became law in 46 states. Governors have vetoed 12. By comparison, in 2006, 84 new laws were enacted.

The new pieces of legislation, some friendly, some hostile, touch on numerous policy areas, including employment, health, identification, driver’s and other licenses, law enforcement, public benefits, and human trafficking.

With so many states developing their own ways of handling the various issues, however, this inconsistency is bound to create conflict and confusion, especially with our ever-mobile citizenry.

Immigration normally is left to the federal government to regulate rather than the states. In the wake of the failed comprehensive immigration reform package last year, however, states have taken matters into their own hands to the extent allowed by law. Which laws will stand up under judicial scrutiny remains to be seen. Arizona, though, so far has survived a challenge relating to its new law imposing sanctions on employers who knowingly hire undocumented workers.

See also our previous story on this same issue: Summary of State Laws Reacting to Undocumented Immigrants. 

Updated Q and A Re USCIS’ New Name Check Policy Now Available

USCIS has posted an updated Q & A regarding the new policy allowing for adjudication of certain applications, including those for permanent residence, if name checks have been pending for more than 180 days.

Here are two of the key questions addressed in the updated Q & A about when applicants may expect to receive news about their case.

Q9. How long will it take for USCIS to work through the cases affected by the policy change?

A9. USCIS has begun identifying cases affected by this policy modification in each field office and service center. Each office will evaluate the pending cases and will adjust their workload accordingly.

USCIS anticipates the majority of the cases subject to this policy modification will be processed by mid-March 2008. We recommend customers wait until March 10 before inquiring about their cases. This will allow each office sufficient time to identify and adjudicate pending cases.

Q11. Should customers contact USCIS through the 1-800 customer service number or make an INFOPASS appointment to visit their local office if their case is outside of normal processing times and they believe their application meets the criteria of this new policy?

A11. For pending applications outside of normal processing times, we recommend that customers wait until March 10, 2008, before inquiring about cases affected by this policy modification. This will allow each office sufficient time to identify and adjudicate the relevant pending cases. If no action is taken by mid-March, we recommend inquiring with the USCIS customer service line at 1-800-375-5283. This procedure is for customers who have been previously informed that their case is pending due to the FBI name check. (Cases that are still pending within the processing times will be completed when the related adjudication actions are completed.)

Employers Face Stiffer Fines For Immigration Violations

Employers who violate immigration laws will face stiffer fines effective March 27, 2008, announced the U.S. Attorney General’s Office. 

The fines are going up on average 25 percent, which the government says is simply an adjustment for inflation, the last change being in 1999.

Employers may be fined if found to have knowingly employed undocumented works or for other violations, including failing to comply with the requirements relating to employment eligibility verification forms, wrongfully discriminating against job applicants or employees on the basis of nationality or citizenship, and for immigration-related document fraud.

The minimum penalty for knowing employment of an unauthorized alien jumps $100, from $275 to $375. The maximum penalty for a first violation is increasing from $2,200 to $3,200.

The largest hike raises the maximum civil penalty for multiple violations from the current $11,000 to $16,000. These penalties are assessed on a per-person basis; thus, if an employer knowingly employed, or continued to employ, five undocumented workers, he would be subject to five fines.

This increases comes on the heels of ramped up immigration enforcement raids and criminal prosecutions against businesses. 

Business owners object to the new fines, saying they combined with the worksite immigration enforcement campaigns will only increase the likelihood of discrimination against foreign nationals, according to the Dallas Morning News.

Status Update Available March 30 For Processing Of Employment-Based Green Cards Under New USCIS Policy On Pending FBI Name Checks

USCIS has moved up the date to March 30, 2008 for seeking status updates on employment-based green card cases that may be eligible for processing in light of the change in policy regarding pending FBI name checks, according to AILA.

Previously, USCIS had said it would need until April 30, 2008 to sweep its files and identify cases subject to processing in light of the new policy. AILA is reporting now, however, that USCIS service centers say they will accept requests on status updates for employment-based cases effective March 30, 2008.

USCIS has made available to AILA a series of questions and answers regarding this new policy and its implementation that we have posted here.

For more background information see our other articles CIS Sweeping Files For Green Card Cases Eligible For Processing Under New Policy and CIS Policy Change: Green Cards May Be Approved Despite Pending FBI Name Checks.

USCIS To Take 3 Years to Clear Naturalization Backlog; Processing Time Up To 18 Months Now

USCIS is estimating it will take three years to clear the backlog of naturalization applications submitted just before the fee increase in July 2007, according to the Migration Policy Institute.

Following the summer surge, applications went from taking 6-7 months on average to process to 16-18 months.

USCIS attributes the surge in applications to both the fee increase and nationwide naturalization campaigns in the run-up to the presidential election. USCIS reports that between May-July 2007 it received 737,223 applications, 3.5 times more than  the usual number of 207,536 received during the same period the previous year, according to the Migration Policy Institute.

USCIS says it has beefed up manpower to deal with the volume, but anticipates it will be 2010 before processing times will drop back to those pre-surge.

While discussing its efforts to address the surge, USCIS makes no mention of how it plans to combat the multi-year delay of thousands of naturalization applications due to pending FBI name checks.

Immigration attorneys nationwide have been forced to address these delays by filing a mandamus lawsuit in federal court against DHS/USCIS and the FBI to compel the government to finish processing the applications. For more information about mandamus lawsuits, please visit AILF (the American Immigration Law Foundation), which is tracking mandamus actions against the government for delays of both naturalization and adjustment of status (I-485) applications.

CIS Sweeping Files For Green Card Cases Eligible For Processing Under New Policy

In response to the new policy allowing for processing of green card cases and other applications with FBI name checks pending for more than 180 days, USCIS is sweeping its files looking for eligible cases, according to AILA.

AILA’s service center operations liaison confirmed USCIS is proactively searching for those adjustment of status cases that can be processed now under the new policy. USCIS told AILA its target date for identifying and acting on eligible cases is April 30, 2008.

AILA national and local offices will continue to monitor USCIS’s actions in light of the new policy. Our site will provide updates as the situation develops.

For more information, see our other articles: How You Can Use the New CIS Name Check Policy to Jump Start Your Stalled Case and CIS Policy Change: Green Cards May Be Approved Despite Pending FBI Name Checks