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

July 22, 2011

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

July 17, 2011

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.


MD County’s Public Schools Barred from H-1B program and Fined for Wage Violations

July 15, 2011

In a settlement agreement signed this month in connection with H-1B wage violations, Maryland’s Prince George’s County Public Schools (PGCPS) system must reimburse more than 1000 teachers $4.2 million in H-1B application fees and pay a $100,000 fine. The Department of Labor and USCIS have also barred the school system from filing applications for work visas for two years.

In April, the Department of Labor investigated PGCPS’ practice of requiring foreign teachers to pay their H-1B applications fees and found it to be a willful violation of the H-1B regulations prompting the fine and debarment. The investigation covered applications filed between May 2005 and January 2011, which amounts to 1044 teachers who must be reimbursed a total of $4,224,146.

Initially PGCPS was assessed $1,740,000 in civil penalties due to the violations, but in the settlement agreement this month that amount was reduced to $100,000 on the condition it not file any H-1B or green card applications for the next two years. If it fails to adhere to the condition, PGCPS will be required to pay the higher penalty.

The debarment does not affect active H-1B visas, but when these H-1B periods expire, the school system will not be able to file for extensions, putting these teachers out of work.

DOL and USCIS must be encouraged to continue holding H-1B program violators accountable. If you know of any DOL or USCIS actions against H-1B violators, let us know.

For more information about H-1B wage violations, benching, underpayment, and the rights of H-1B employees, please visit our blog H-1B Legal Rights, which we co-author with Employee Rights Attorney Michael Brown of Peterson, Berk & Cross.