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.


EB-5 Regional Center List Grows; 2 New FL Projects

November 28, 2008

[NOTE: USCIS HAS UPDATED THIS LIST AS OF DECEMBER 2008. PLEASE SEE OUR LATEST ARTICLE HERE]

The Immigrant Investor (EB-5) Pilot Program is designed to encourage foreign investment by providing a vehicle for investment in the form of an economic unit called a “Regional Center.” The Regional Centers are private or public entities that have received government approval to participate in the program. They enable the amassing and pooling of capital for targeted investment in designated regions in the United States.

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FAQs: I Was Underpaid As An H-1B, But Am Now Outside the U.S.; Can I Still Sue?

October 17, 2008

If you were underpaid as an H-1B, and are now outside the U.S., below are some frequently asked questions and answers.

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 #1: Can I bring a legal claim in the U.S. against my former employer, when I no longer live in the U.S.?

Probably yes.  There are cases in several areas of U.S. law where non-citizens are allowed to pursue legal action against a U.S. citizen or U.S. entity (e.g. their former U.S. employer).  As a non-citizen, you probably have “standing” to bring a U.S. legal claim when that claim is based on events that occurred while you were working in H-1B status.

#2: It has been several years since I left my underpaying H-1B employer and left the U.S.- is it too late to file a legal claim?  What are the deadlines?

If your wages were underpaid sometime within the last four (4) years, you still have time to consider taking legal action against your former employer.

There are several deadlines that may apply to your situation, ranging from one (1) to four (4) years or possibly longer.

The Department of Labor (DOL) has a one (1)- year deadline for filing a complaint for being paid under the prevailing wage.

Even when the DOL deadline has passed, there are other laws that may apply to your situation that have longer deadlines.  For example, State wage laws often have two (2)- year or three (3)- year deadlines.  Some State and Federal fraud laws have longer deadlines-one important federal fraud law that applies to underpaid H-1B wages has a deadline of four (4) years.  Some applicable laws’ deadlines may be even longer.

#3: What makes a legal claim “good” or worth pursuing?

These are the most important factors that are likely to make a legal claim “good:” 

* Your deadline hasn’t passed. 

That is, at least some of your underpaid wages occurred within the last four (4) years. 

* The amount of your underpaid wages is significant, i.e. tens of thousands of U.S. dollars or more.

If you were only underpaid a few weeks’ wages, then a legal action is probably not worthwhile for you to pursue.

If you lost a significant amount of wages, tens of thousands of dollars or more, then there is more you would stand to gain from a legal action.

Also, the greater the amount of lost wages, the more likely it is that an attorney would represent you on a contingency basis instead of requiring fees in advance.  (Under a contingency arrangement, you do not have to pay your attorney out-of-pocket legal fees. Fees are only paid by the employer if you obtain a settlement or legal award. For more information on this subject, please see Question #7 below). 

* You have LCA and paystub documentation proving you were underpaid. 

It will help your legal claim a great deal if you have copies of: (1) your Labor Certification Application (LCA) or other documents that prove what your prevailing wage was; and (2) paystubs or other documents that prove your H-1B employer paid you less than the prevailing wage. 

If you do not have these documents, you can still pursue your claim. Having these documents, however, makes a claim easier to prove and pursue. 

#4 Will I have to file a legal complaint for my matter, or is it possible I can reach an agreement (settlement) with the employer without having to pursue a lawsuit? 

Often, an H-1B worker will be able to reach a settlement with the employer without having to file a legal complaint.  It is often in the employer’s best interests to reach a settlement rather than face the costs and risks of litigation.  Employers often stand to lose a lot of money- if they lose a judgment, they may have to pay for your unpaid wages, pay additional penalty monies, and pay their own attorney fees and legal expenses.  Thus, it is often in the employer’s best financial interest to reach a reasonable settlement with its former H-1B worker, before a legal complaint is filed. 

If a legal complaint is filed, it is still possible that a settlement can be reached in the earlier stages of litigation, before the parties have spent a significant amount of money on litigation. 

#5 If I pursued my unpaid wages from my former H-1B employer, would I have to travel to the U.S.? 

Chances are you would not have to travel to the U.S.  As mentioned above, there is a good chance you can reach a settlement with your employer before filing a legal complaint.  If a legal complaint is not filed, there is no requirement that you travel. 

If you cannot reach a settlement with the employer and you decide to file a legal complaint, then after the complaint is filed you could be required to travel to the U.S.  As part of litigation, there are two potential occasions you may have to travel: You could be required to attend a deposition in the U.S., and you could be required to testify at trial.  However, many cases in litigation are resolved before these occasions (a deposition or a trial) arise.  In addition, if a deposition is necessary, it is possible the court will permit a video deposition so that you do not need to travel to the United States. 

The bottom line is this: (1) the chances are good you could settle your unpaid wage matter without having to travel to the U.S.; (2) if you don’t settle your matter before litigation, you have a choice of filing a complaint (and possibly commit yourself to traveling) or not filing a complaint; and (3) if you file a complaint, your legal case may still be resolved without you having to travel to the U.S. 

#6 If I have to travel to the United States for litigation, do I need a visa? 

What if you do wind up filing a legal complaint and you do reach the point you are required to travel to the U.S. and attend a deposition or trial?  Would you be legally-allowed to travel to the U.S.? 

Visa regulations specifically allow foreign nationals to come to the United States on a tourist/business visa for litigation purposes. Therefore, if you are eligible for the Visa Waiver Program, you may enter the United States under that program and stay up to 3 months. Otherwise, you will need to obtain a regular tourist visa from the U.S. consulate in your country if you do not already have one. 

If you are subject to a bar to re-entry because you significantly overstayed your last visa, engaged in unauthorized work, or are otherwise inadmissible to the United States, you may qualify for a non-immigrant visa waiver of inadmissibility. If these circumstances apply to you, you should consult with an attorney to discuss your options. 

#7 If I hire an attorney to help pursue my unpaid wages from my former H-1B employer, how much would that cost me? 

If you retained an attorney for your matter (the attorney must be someone licensed in the U.S.), there are several types of fee arrangements, some of which don’t require you to pay anything unless you win. 

Some U.S. attorneys will represent H-1B workers with unpaid wages on a “contingency” basis. 

If the attorney will work on contingency, that means you do not have to pay the attorney anything out of your pocket.  The attorney is only paid if you settle or win your case.  When you win your case, the H-1B employer will pay a percentage of your settlement or judgment (traditionally 33 1/3%) to your attorney for legal fees. 

There are other types of legal fee arrangements where you do have to pay out of pocket legal fees.  For example, many attorneys charge hourly legal fees, usually ranging between $150/hour to $300/hour (rates may be higher or lower depending on the locale and other factors).  This hourly type of fee arrangement will require that you pay out-of-pocket money to your attorney, and you will get a regular bill from the attorney.   

An hourly fee arrangement is ethical and common, and it could turn out to be a better financial deal for you in the long run than a contingency arrangement.  However, the disadvantage of hourly fees is that these hours can add up quickly and become very expensive for you.  In a short time (a matter of a few weeks or months), you could be charged thousands of dollars in hourly fees.  If you pay hourly fees for long-term litigation, you could easily incur tens of thousands of dollars in hourly fees. 

If you retain an attorney on an hourly basis, you should ask that attorney for a detailed budget and estimates of what you can expect to pay throughout the litigation process. 

As you can see, one important issue to consider when you hire an attorney is whether that attorney will have a contingency fee arrangement or a different arrangement that requires you to pay out-of-pocket legal fees (like hourly billing). 

Another important factor to consider when hiring an attorney is whether that attorney is experienced in dealing with H-1B wage issues, immigration issues, and employment disputes and litigation. 

There is a blog post here (Important Questions to Ask When Hiring an Attorney), which details many important factors to consider when retaining an attorney. 

In addition, for more information about issues to consider if you are an H-1B worker and are not being paid your prevailing wage, please visit this article: Employee Tip: If You’re an H-1B Worker Beign Underpaid Wages, Consider These Things.

This post was jointly authored by Employee Rights Attorney Michael Brown of the law firm of Peterson, Berk & Cross, and Immigration Attorney Vonda K. Vandaveer of the law firm V.K. Vandaveer, P.L.L.C.  Attorney Brown authors the blog Employee Rights WI. For more information about H-1B rights, please see our other blog H-1B Legal Rights at www.h1blegalrights.com.

DISCLAIMER: The information in this article is NOT legal advice, nor does it establish an attorney-client relationship between you and the attorneys or law firms above. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney.


USCIS List of EB-5 Regional Centers; 2 New Centers in CA Approved

May 17, 2008

[NOTE: THE REGIONAL CENTER LIST HAS BEEN UPDATED. PLEASE SEE THE REVISED LIST HERE: EB-5 Regional Center List Grows; 2 New FL Projects]

The Immigrant Investor (EB-5) Pilot Program is designed to encourage foreign investment by providing a vehicle for investment in the form of an economic unit called a “Regional Center.” The Regional Centers are private or public entities that have received government approval to participate in the program. They enable the amassing and pooling of capital for targeted investment in designated regions in the United States.

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New H-1B Cap Gap Rule May Not Help Those Who Need It Most

April 9, 2008

The new H-1B cap gap bridge is revealing a crack that may cause it to collapse.

The new regulation requires H-1B applications be marked “change of status” to benefit from the automatic Optional Practical Training (OPT) cap gap extension.

This requirement poses a critical problem for cap gap sufferers because they would not have been eligible to change status. Instead, those whose status would have expired before the Oct. 1 employment start date would have had to leave the country to obtain their visa, thus they would have not checked the “change of status” box.

In other words, the regulation has made itself inapplicable to the very group it is intended to protect.

AILA has called this irony to the attention of USCIS and is awaiting guidance.

We will post any update as soon as it is announced.

 


H-1B Cap Hit; Application Lottery to Commence

April 9, 2008

USCIS announced the H-1B regular and advanced degree exemption caps for FY 2009 have been met, meaning applications will be drawn in a lottery for processing.

USCIS will use a computer-generated random selection process for all cap-subject petitions received, beginning with the 20,000 advanced degree exemption petitions first.

Once that category is hit, the excess advanced degree petitions will be added to the regular H-1B petitions for random selection for processing.

If your petition is not selected in the lottery for processing before the 65,000 visa limit is reached, USCIS will reject it and return the filing fee.

More information is available on the USCIS website. 


New OPT Rule Effective Today, April 8, 2008

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