News From Ross, Silverman & Levy LLP

As you know from our previous news flashes (see below), USCIS, through its Fraud Detection and National Security (FDNS) Unit, has been conducting site visits to employers that sponsor foreign nationals. A number of clients have reported receiving such visits. In several instances, employers have received multiple visits, particularly when the employee USCIS wishes to see is not available, but also if the Inspector wants to see an additional employee. More importantly, some of the inspectors are asking to see H-1B Public Access Files. Therefore, we wanted to take this opportunity to remind you what is required for the Public Access File.

The regulations require companies and organizations with H-1B employees to maintain a Public Access File which is available for public review upon request. We suggest that you maintain one general Public Access File which includes generally applicable materials, and individual sub-files within the general file that contain documents specific to each H-1B employee. The Public Access File should be set up in a readily available and organized fashion.

One copy of the following should be placed in the general Public Access File:

The Labor Condition Application cover pages applicable at the time the LCA was filed (note that the LCA cover pages have changed over the past 5 years, so you may have several sets of cover pages if you have sponsored multiple employees at different times);
Benefits brochure or comprehensive memo outlining all the fringe benefits that your business offers to its employees; and
The Wage System memo that outlines how your business determines salaries for specific positions and job classifications within the organization.

For each H-1B employee sub-file, one copy of the following should be put in the Public Access File:

Actual Wage Justification Memo, indicating the H-1B employee's name and actual wage, as well as how the actual wage was determined using your Wage System memo;
A copy of the prevailing wage determination;
A copy of the Labor Condition Application with employer's original signature;
The LCA posting notices with a posting certification indicating the locations and dates of posting; and
Proof that you have provided a copy of the certified LCA to the H-1B employee.

The employee-specific information must be retained for a period of one year beyond the last date on which any H-1B nonimmigrant is employed under the LCA or, if no nonimmigrants were employed under the LCA, one year from the date the LCA expired or was withdrawn. The fact that the H-1B employee is no longer employed by the company or has switched to permanent residence does not free you from maintaining these records.

If you have any concerns about the condition of your organization's Public Access Files, or about the USCIS site visits, please do not hesitate to contact our office. We are available to come to your office to conduct a review of your Public Access Files.

Ask RSL

Family-based immigration may be a useful alternative to employees who would otherwise apply for permanent residence through employment. Depending on the category, family-based immigration may be a cheaper and faster means of obtaining permanent residence and, ultimately, U.S. citizenship. If you have an employee who you plan to sponsor for permanent residence through employment but who has a family member who is a U.S. citizen, it may be worth consulting our office to see if pursuing a family-based case would be a better choice.

Following are some basic Q&As regarding the family-based permanent residence process:

Q: What types of family members can a U.S. Citizen (USC) sponsor for permanent residence? What family members can a Lawful Permanent Resident (LPR) sponsor?

A: A USC can sponsor a spouse, parent, child (under or over 21 and single or married) or sibling. An LPR can sponsor a spouse or child (under or over 21 and single only).

Q: How long does it take for a foreign national family member to obtain U.S. permanent resident status based on a relationship with a USC or LPR?

A: The time frame for processing a case depends on whether the petitioner is a USC or LPR, and whether the sponsored relative is in the U.S. or abroad. If the petitioner is a U.S. citizen and the sponsored relative is in the U.S. and can be considered an "immediate relative" (i.e. a spouse, parent, or single child under 21), and is able to process the application in the U.S., the case can be filed here (this is referred to as adjustment of status). It is currently taking about four months for an interview appointment to be scheduled in the Boston Field Office of CIS (but each field office has different wait times). Historically, a typical waiting period for an interview would be in the range of 6-9 months. It is possible that permanent residence will be granted at the interview.

The petitioner, whether a USC or an LPR, must file a family-based Immigrant Visa Petition, Form I-130, which will establish the beneficiary's priority date and visa number availability. If the petitioner is an LPR, because no visa number is immediately available to the family member, the application for permanent residence cannot be filed (either in the U.S., or via a U.S. embassy abroad, which is referred to as consular processing) until a visa number becomes available. Following are estimates of the current wait times for each category:

Child of USC over 21 - 6� years.
Spouse or child of LPR under 21 - 4� years
Child of LPR over 21 - 8 years.
Married child of USC - 9 years.
Sibling of USC - 10� years.

It is expected that the current backlog will continue to exist in all of these categories.

Q: What is a conditional permanent resident?

A: You may be shown a "green card" by an employee that has an expiration date within 2 years. This person is a conditional permanent resident (CPR). A conditional permanent resident is someone who obtains permanent residence through marriage, but has not been married for at least two years at the time permanent residence is granted. A CPR has all the rights and privileges of a legal permanent resident with regard to work, travel, and petitioning for relatives. Therefore, for purposes of completing an I-9 form, you do not have to follow up at the expiration of the 2-year period.

However, for purposes of maintaining his/her status, such an individual must petition to have the conditions removed from the permanent residence status within the 90 day period prior to the end of the two years. Failure to do so will result in revocation of the individual's permanent resident status.

Q: What are the primary advantages and disadvantages of filing for LPR status through a family member as opposed to filing via employment?

A: For immediate relatives, the processing time is likely to be far shorter than with employment-based visas. For family-based cases, the requisite documentation is easier to obtain for immediate relatives (i.e. for marriage cases, proof that the couple lives in a marital relationship; for non-marital relationships, proof that the family relationship exists). Unlike PERM-based cases, there are no additional costs associated with family-based cases other than filing fees. For spouses of U.S. citizens, the waiting time to qualify for naturalization is typically only 3 years as opposed to 5 years for everyone else.

Family-based cases other than those for immediate relatives, however, can take much longer than many employment-based cases (see waiting list periods above). Also, in a marriage case, if a marriage is terminated before permanent residence is granted or the petitioner dies, no status is obtained. For conditional permanent residents, there are added costs for filing of a later petition to remove the conditions from the permanent residence status.

Q: Does USCIS schedule an interview for a family-based adjustment of status (i.e. permanent residence) case?

A: Yes, for most cases filed with CIS from within the United States. The possible exceptions are for immediate relatives who are either the parents of an adult U.S. citizen or the unmarried, minor child of a USC. Sponsored relatives who are outside of the U.S. attend a consular visa appointment when the visa number is current.

If you have an immigration question which you would like to see included in a future newsletter, please send it to Sally Penney at [email protected].

Recent Immigration News

USCIS is Conducting Site Visits

This summer, U.S. Citizenship and Immigration Services (USCIS) hired a private contractor to send investigators to conduct 25,000 random site visits to employers that sponsor foreign workers in H-1B status. The objective of the unannounced on-site visits is to detect H-1B fraud and abuses as part of the USCIS Administrative Site Visit and Verification Program, funded by the money it has received from the $500 "fraud fee" that is filed with H-1B petitions.

Typically, the site visits are random and are conducted without advance notice and the investigator will request to speak with an employer representative (i.e., the signatory on the I-129) and the employee. For employers who have a signatory who is indirectly involved in the H-1B process and a Human Resources contact who is more directly involved and knowledgeable about the process, we strongly advise that the investigator be directed to the Human Resources contact instead of or in addition to the signatory on the H-1B petition. This will ensure that questions are accurately answered and someone is able to produce any documentation that the investigator may request. You may also want to make sure that your receptionist is aware of who to contact if the investigator comes to your company. If you receive an unannounced visit from an H-1B Investigator, there is no need to be alarmed and you should be cooperative in responding to the Investigator's questions and requests.

The Investigator will likely have the names of one or two H-1B employees and may ask about the date of hire, title, salary, job location, and other H-1B petition information, and may also request to see payroll records. Additionally, the Investigator may ask to speak with the employees directly. The identified employees are also selected randomly and you should assure your employees that this is a routine investigation and that it is not indicative of any problem with their status or work authorization.

In general, Investigator questions stem from H-1B petitions, and might also cover the nature of the employer's business; the number of employees; whether the employer filed the immigration petition at issue; the employer's use of the H-1B program; whether the employee is working for the employer; and particulars of the position as outlined in the H-1B petition, including the job duties, salary and hours. The investigator might also request a tour of the employer's premises, take photogaphs, examine the employee's work area, and may ask to see other documentation pertaining to the H-1B employment (such as the H-1B Public Access File).

I-94s and Passport Validity

As you may know, Customs and Border Patrol (CBP) is authorized to admit a foreign national into the U.S. only through the duration of his or her passport validity, rather than the duration of the visa or approval notice, even if the passport expires during the individual's otherwise authorized period of stay in the U.S. It has come to our attention that CBP is enforcing this policy much more regularly than in the past.

The potential implications of this policy are significant and can be quite severe. For example, while an individual's H-1B visa approval notice may authorize H-1B status for up to three years, if the person's passport is valid for only 8 months, he or she might be admitted for only 8 months upon entering the U.S. (i.e. the I-94 card will have an end date which matches the passport expiration date). In turn, after those 8 months pass, if the foreign national has not since left the U.S. and reentered with a new passport or extended or changed status, he or she will fall out of status and often will begin to accrue "unlawful presence." Once a person falls out of status, the ability to get him or her back into status without first departing the U.S. can be very difficult, if not impossible (as discussed in our Summer Newsletter). This difficulty is complicated by the fact that, if a person accrues 180 days of unlawful presence and then leaves the U.S., he or she may be barred from returning to the U.S. for three years (and for 10 years if he or she accrues more than 365 days of unlawful presence).

When sending a visa approval notice, we instruct all employees to carefully review the I-94 cards issued upon admission to the U.S. to ensure that they are admitted for the validity of their nonimmigrant visa status (e.g. H-1B, L-1, etc.), and to contact us right away if they are not. Given the major consequences of failing to notice an I-94 date stamp that expires prematurely, and the recent emphasis on enforcement of pre-existing policy by CBP, we strongly urge you to remind your company's foreign national employees to carefully review their I-94s (and those of their family members) immediately upon admission and to contact you and/or our firm if dates fail to coincide.

In the News: What's Happening at RSL

Saturday, October 17: Heidi Snyder and Rhonda Tietjen spoke on the Immigration Panel at the National Association of Black Accountant's 25th Annual Minority Business Conference.

Friday, October 30: Howard Silverman is in Washington, D.C., meeting with representatives from Immigration and Customs Enforcement (ICE) as part of the American Immigration Lawyers Association's (AILA) ICE Liaison Committee.

Monday, December 14: Howard Silverman will speak about Waivers at an AILA Regional Removal Conference in Boston.

Thursday & Friday, February 18-19, 2009: Sharryn Ross will be speaking at AILA's South Florida Immigration Conference on two topics: DOL Now and Enhanced Employer Enforcement Under Obama.

This newsletter does not constitute legal advice and is not a substitute for consulting with an attorney. Please contact us by phone or email if you have questions about any of the topics discussed here or if you have any other immigration or naturalization questions.