Iraqi SIV Program Extended, But End in Sight

January 16, 2014

In the wake of much anxiety late last year over the future of the Iraqi SIV program, Congress has officially extended it, giving hope to those whose cases have been pending for months or years awaiting final visa approval. The end of the program, however, is now in sight.

When Congress extended the program at the end of 2013, it set key parameters, signaling the impending end. In particular, it limited the number of visas that will be issued to 2,500. Once that number is reached, no more will be issued. Congress did not set a deadline for issuing the visas.

In addition, it limited the qualifying work period to September 30, 2013, meaning to qualify for the SIV, the applicant must have worked for or on behalf of the US government for more than one year between March 20, 2003 and September 30, 2013.

The deadline for applying for a Chief of Mission approval for the SIV (the first approval phase), is September 30, 2014.

The U.S. refugee program through IOM remains available to Iraqis.

Below is the announcement issued by the U.S. Embassy in Baghdad regarding the extension. For more information about the extension and the eligibility criteria for the program, click here: http://iraq.usembassy.gov/siv-special.html

The Iraqi Special Immigrant Visa (SIV) program benefiting individuals who have been employed by, or on behalf of, the U.S. government has been extended through passage of the National Defense Authorization Act (NDAA) for FY 2014.

The NDAA authorizes the issuance of 2,500 immigrant visas after January 1, 2014 to qualified principal applicants.

The NDAA does not include a date by which these visas must be issued, so consular officers have the authority to issue visas under this program until all 2,500 numbers have been used worldwide.  The Iraqi SIV program will end after all visas have been issued.

Under this legislation, the one-year period during which principal applicants must have been employed by, or on behalf of, the U.S. government in Iraq begins on or after March 20, 2003, and ends on or before September 30, 2013.The legislation includes a requirement that the principal applicant must apply for Chief of Mission approval no later than September 30, 2014.

Those applicants with cases pending do not need to re-file.  If your petition has been approved by U.S. Citizenship and Immigration Services (USCIS), we encourage you to provide all requested documents to the National Visa Center (NVC) immediately so that your visa interview can be scheduled promptly.

Derivative family members (i.e., spouses, children) of principal applicants who were issued SIVs prior to December 31, 2013 can still be issued after December 31, 2013.

Applicants are advised to check their email accounts and consult our website (http://iraq.usembassy.gov/) regularly for the most recent information regarding the SIV program.

The separate U.S. Refugee Admissions Program (USRAP) for U.S.-affiliated Iraqis remains an option, as the eligibility criteria are very similar to those of the SIV program.  For more information on USRAP, please visit http://iraq.usembassy.gov/refugeesidpaffairs.html.

If you want to know whether you qualify for the SIV program or have other options to immigrate to the United States, please contact our office at atty@vkvlaw.com or call 202-340-1215.


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.


H-1B Cap Hit for FY 2010

December 26, 2009

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

May 9, 2009

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

April 12, 2009

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

February 28, 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.