News From Ross Silverman LLP

As summer is winding down, we'd like to use this newsletter as a chance to provide you with immigration news updates, as well as information on topics that you may have heard about or read about in the media but which are not regularly encountered in your own employment-based immigration matters.

DOMA and immigration law

While same-sex marriage has been legal in Massachusetts since 2003, the Defense of Marriage Act (DOMA) defines marriage for all federal purposes as a legal union between one man and one woman. This law, passed by Congress in 1996, effectively bars any immigration benefit that is based on a marriage between two people of the same sex. DOMA has caused many problems for U.S. Citizens who wish to sponsor their same-sex foreign national spouses for permanent residence, and for same-sex spouses of foreign nationals on nonimmigrant visas.* However, recent announcements by the DOJ and DHS indicate that changes to the way DOMA is enforced may be on the way.

In February 2011, U.S. Attorney General Eric Holder notified Congress that President Obama had determined that DOMA is unconstitutional, and therefore the DOJ would not defend the law in court. This announcement was a major move towards dismantling DOMA; however, the question of whether the law is constitutional will eventually need to be decided by the courts. Following the Attorney General's announcement, USCIS reported that it would hold in abeyance any same-sex marriage-based immigration cases until it received guidance about the legal questions surrounding DOMA - a report that was greeted by many with optimism that the deportation of same-sex spouses of U.S. citizens would be halted and that it signaled a broader move away from the strict enforcement of DOMA. Unfortunately, USCIS immediately reversed course and announced that no cases were on hold. In the aftermath of the Attorney General's announcement and USCIS's confusing reversal, there have been a few positive signs of progress from the U.S. Immigration Courts. U.S. Immigration Judges have cancelled or put on hold the deportation of a foreign national with a U.S. Citizen same-sex spouse in at least two cases. In a separate measure, earlier this month, DHS announced that the Department intends to exercise prosecutorial discretion in "low-priority" removal cases, e.g. for those foreign nationals who do not have criminal records and have U.S. Citizen immediate relatives (see more information about this in the next section). Prosecutorial discretion may serve as a mechanism to prevent the deportation of foreign nationals with same-sex U.S. Citizen spouses who are already in removal proceedings, but this is not likely to impact the vast majority of bi-national, same-sex couples.

* Please note that there is a legal pathway for same-sex partners and spouses of some nonimmigrant visa holders to accompany their partners to the U.S., although it is not an adequate long-term solution. Various "household members" of nonimmigrant workers who are not eligible for dependent status (i.e. H-4, L-2) can apply for B-2 visas and can ask USCIS for a one-year stay at the time of admission. If needed, the household member can apply for extensions of status in six-month increments, for the duration of the principal's status in the United States. While this route is far less convenient than H-4 or L-2 visa status which may be granted for the duration of the principal's status, it is an available and effective option for a same-sex partner of a nonimmigrant worker.

I-9 Updates

I-9 Central

As noted in our last newsletter, in May 2011, USCIS launched I-9 Central, an online, one-stop source for information, guidance and instruction on the use of Form I-9. I-9 Central includes sections about employer and employee rights and responsibilities, instructions for completing and correcting Form I-9, information on acceptable Form I-9 documents, and retention and storage of Form I-9. It also includes a "What's New" section and a customer support section with questions and answers.

Updated I-9 Handbook

Additionally, USCIS has once again revised the M-274, Handbook for Employers (Rev. 06/01/11). The revised Handbook includes a reference to the new I-9 Central website, as well as corrections to the previous version, additional guidance on a number of I-9 topics, and additional information and document examples in Parts 7 and 8.

ICE fines New England Companies Hiring Unlawful Employees

On July 21, 2011, ICE announced fines against 14 New England companies for violations relating to employment of unlawful workers following an investigation and audit of Form I-9 documents by ICE's Homeland Security Investigations as part of ICE's worksite enforcement strategy, launched in 2009. Since 2009, ICE has conducted Form I-9 inspections against nearly 4,000 U.S. businesses and has imposed fines of nearly $7 million.

H-1B Updates

FY2012 H-1B Cap Usage

As of August 12, 2011, USCIS reports receiving approximately 25,300 H-1B cap-subject petitions ("regular" cap) and 14,700 H-1B petitions for aliens with advanced degrees from U.S. institutions ("Masters" cap). This is about 2,000 fewer petitions than USCIS had received at the same time last year. As a reminder, there are 65,000 regular cap numbers available every fiscal year and 20,000 additional numbers for the Masters cap.

H-1B Site Visits

On June 7, 2011, the USCIS Fraud Detection & National Security (FDNS) Directorate participated in a telephonic meeting with AILA. The Directorate confirmed that DHS, through its Administrative Site Visit & Verification Program (ASVVP), conducted 14,433 H-1B site visits in FY2010 and 4,558 visits have been conducted between October 1, 2010 and March 31, 2011. The site visits resulted in verification of 86% of the H-1B petitions in FY2010 and 86% have been verified for FY2011 to date. During FY2010, 192 H-1B petitions (1% of the total number of petitions reviewed under the ASVVP) were referred on to FDNS for further administrative investigation following an ASVVP site visit and review and 1,853 H-1B petitions (12% of the total number of petitions reviewed under ASVVP) were referred to Adjudications to revalidate the petition or issue a notice of intent to revoke.

In a supplemental Q&A, FDNS confirmed that the procedure for site visits involves the site inspector's verification of information on randomly selected H-1B petitions, including the following: (1) verify the existence of a petitioning entity; (2) take digital photographs; (3) review documents; (4) speak with organizational representatives to confirm the beneficiary's work location, employment workspace, hours, salary and duties; (5) report the results of their site inspections to FDNS, which will review the information to determine whether the petitioner and the beneficiary have met or continue to meet eligibility requirements. FDNS identified the top FY2010 reoccurring compliance issues as follows:

- Petitioner (business) does not physically exist

- Petitioner misrepresented the details of the beneficiary's employment

- Beneficiary is not or will not be employed in the location or area certified

- Beneficiary is not or will not be performing the duties specified on petition

- Petitioner withdrew the petition

- Petitioner is not paying the beneficiary at the certified wage

- Beneficiary is not or will not be employed by the petitioner

H-1B Employee-Employer Relationship Memorandum FAQs from USCIS

On August 2, 2011, USCIS updated FAQs related to its January 2010 Memorandum on Establishing the "Employee-Employer Relationship" in H-1B Petitions. As a reminder, the January 2010 Memorandum clarified that USCIS will limit a petition's validity to the time period of qualifying employment if the petitioner is unable to provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period. It also confirms that H-1B petitioning employers must submit a complete itinerary of services or engagements if the H-1B employee will perform services in more than one work location.

H-1B Cap Exemption: Interpretation of Related or Affiliated Nonprofit Entity

On March 18, 2011, USCIS announced that it would review its current policy on H-1B cap exemptions for nonprofit entities that are related to or affiliated with an institution of higher education. USCIS indicated that, until further guidance is issued, it would apply interim procedures to H-1B nonprofit entity petitions requesting an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education. The interim procedures allow petitioners to provide evidence of prior H-1B determinations since June 6, 2006 approving H-1B petitions as cap exempt based on the petitioner's status as a non-profit entity that is related to or affiliated with an institution of higher education.

On July 11, 2011, USCIS released an Executive Summary of a Stakeholder Engagement held on May 26, 2011 to discuss issues related to the interpretation of the term "related or affiliated nonprofit entity" in determining eligibility for exemption from the H-1B cap under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). Stakeholders expressed concern that the current definition for a nonprofit entity that is affiliated with or related to an institution of higher education for H-1B cap exemption is insufficient. Stakeholders further asked USCIS to apply a more flexible and liberal standard since the current usage is especially problematic for teaching hospitals. Stakeholders commented that USCIS should "adopt a presumption in favor of cap exemption as long as the petitioner presents reasonable evidence of its nonprofit status and affiliation with an institution of higher education" and also made several comments as to the supporting documentary evidence that USCIS should accept. USCIS responded that it will review the issues raised and provide additional guidance, if deemed necessary.

L-1B and B-1 Updates

L-1B update re: Interpretation of Specialized Knowledge

On June 14, 2011, USCIS released an Executive Summary of a Stakeholder Engagement held on May 12, 2011 to discuss issues related to the interpretation of the term "specialized knowledge" in the L-1B nonimmigrant visa context. Stakeholders expressed concern that the term is being interpreted too narrowly and strictly. Instead of calling for new policy memoranda, some Stakeholders sought a more flexible and broader interpretation of specialized knowledge. Per Stakeholder suggestion, USCIS confirmed that it will provide additional guidance and training to USCIS adjudicating officers regarding L-1B guidelines.

B-1 Visa Program Under Scrutiny

On April 14, 2011, Sen. Charles Grassley (R-Iowa) sent a letter to Secretary of State Hillary Clinton and Secretary of Homeland Security Janet Napolitano, questioning the current "B-1 in lieu of H-1B" policy. Sen. Grassley claims that the B-1 in lieu of H-1B policy set forth in the State Department's Foreign Affairs Manual sets a low threshold that serves to evade the H-1B visa cap and prevailing wage requirements. He has asked the Departments of State and Homeland Security to investigate the B-1 visa program. In response, the State Department has indicated that it is in discussions with DHS to remove or substantially modify the B-1 in lieu of H-1B guidelines. Sen. Grassley's scrutiny of the policy comes as a response to a lawsuit filed by a U.S. worker in Federal District Court against his employer, alleging its fraudulent abuse of the B-1 visa category by using short-term B-1 visas for employees who should be subject to the higher H-1B standard.

DHS Launches Effort to Stimulate Investment

On August 2, 2011, Secretary of Homeland Security Janet Napolitano and USCIS Director Alejandro Mayorkas announced a plan of policy, operational, and outreach efforts to fuel the economy and stimulate investment.

- USCIS published FAQs that offer guidance on how entrepreneurs may qualify for a National Interest Waiver under the Employment-based Second Preference (EB-2) category.

- USCIS updated existing FAQs to its January 2010 Memorandum on Establishing the "Employee-Employer Relationship" in H-1B Petitions. The updated guidance specifically clarifies that an H-1B beneficiary who is the sole owner of the petitioning company may establish a valid employer-employee relationship.

- USCIS proposed enhancements to the EB-5 immigrant investor program intended to streamline the program in terms of the intake and review processes. As of June 30, 2011, it is estimated that the program has resulted in more than $1.5 billion in capital investments and created at least 34,000 jobs.

Additional Immigration-Related Updates

DREAM Act

On June 28, 2011, the Senate Judiciary Subcommittee on Immigration, Refugees and Border Security held a hearing on the Development, Relief, and Education for Alien Minors (DREAM) Act of 2011 (DREAM Act). The DREAM Act was first introduced in the Senate in August 2001 and was most recently re-introduced on May 11, 2011. The legislation provides a path to U.S. permanent residence for undocumented immigrants who arrived in the U.S. illegally as minors. Eligible applicants would be required to meet certain criteria, including: a) Entered the U.S. before turning 16; b) Graduated from high school or passed an equivalency exam; c) Lived in the U.S. for at least five years; d) Be under the age of 35 at the time of application; e) Have good moral character; f) Either attend college or enlist in the military for two years.

Illinois DREAM Act

An Illinois bill (SB 2185) signed into law by Gov. Pat Quinn on August 1, 2011 qualifies undocumented students for private funds to attend college. It would also allow individuals with SSNs or TINs to enroll in state-run college savings programs.

California DREAM Act of 2011
A California bill (AB 130) signed into law by Gov. Jerry Brown on July 25, 2011 allows undocumented immigrants to receive private funds to attend state colleges and universities. The bill is set to take effect on January 1, 2012.

Prosecutorial Discretion

On August 18, 2011, Homeland Security Secretary Janet Napolitano sent a letter to Senator Dick Durbin and 21 other senators to announce a new Obama Administration policy regarding the exercise of prosecutorial discretion in removal cases. The letter indicated that DHS and the DOJ have initiated an interagency working group to review the 300,000 cases pending in the Immigration Courts to determine their priority level. Those cases that are considered "low priority" may be administratively closed (which means they can be re-opened in the future, but that the immigrant is not under immediate threat of deportation). The Departments also plan to create guidance to help USCIS, CBP, and ICE agents and officers make better, more consistent decisions about who to place in removal proceedings, and how to exercise discretion in compelling cases for persons who already have a final order of removal.

There is a long history of the government exercising prosecutorial discretion in this manner, in that the government has always decided who to prosecute (and who not to prosecute) based on law enforcement priorities and available resources. This announcement applies only to cases already in the Immigration Court, and it is not yet clear how the review process will work, what cases will be considered low priority, or how to request that a particular case be considered. The factors for determining low priority cases will likely be based on ICE's June 17, 2011 memo on prosecutorial discretion. However, just because a case seems to fall into one or more of those categories, does not automatically mean that it will be considered "low priority."

Inaccuracies in reporting on this announcement have created confusion and have led some to believe that the Administration was announcing an amnesty or other immigration benefit program. However, the Obama Administration's announcement is not an amnesty and is not about granting legal status. Furthermore, it is only a preliminary announcement - nothing has been implemented yet.

In the News: What's Happening at RS

June 16 - 17, 2011: Sharryn Ross spoke on a panel entitled, "Understanding the Four Levels of Prevailing Wage," and Howard Silverman spoke at the ICE Open Forum at AILA's Annual Conference in San Diego, CA.

July 2011: Ross Silverman LLP is pleased to announce that Heidi Snyder and Rhonda Tietjen are now Partners in the Firm.

July 2011 to June 2012: Sharryn Ross will be serving as the Vice-Chair of the American Immigration Lawyers Association's (AILA) national liaison committee to the Department of Labor, Howard Silverman has been reappointed as AILA's New England region liaison to Immigration and Customs Enforcement's Enforcement and Removal Operations (ERO), and Ellen Driver has been appointed Co-Liaison of AILA New England's New Members Division.

December 12, 2011: Heidi Snyder and Rhonda Tietjen will speak about PERM on a panel at the Massachusetts Continue Legal Education (MCLE) Immigration Law BasicsPlus Conference in Boston, MA.

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.