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Worksite Harmony and the President’s Executive Actions: It’s All about Immigration Timing
“Politics at bottom is not all that complicated. It’s all about timing.”
Facing a recalcitrant House of Representatives controlled by Republicans, President Obama made an historic announcement on November 20th outlining an array of executive actions he would take to fix as much as he could of our broken immigration system.
Understandably, public and media attention since then has focused on the four to five million people who soon may come out from hiding in plain sight. Parents of citizens and permanent residents, and an expanded class of DREAMers, will be given deferred action and work and travel permits. U.S. Citizenship and Immigration Services (USCIS) is now preparing to accept and decide a flood of new applications, all of which will be funded by user fees. But this won’t happen for up to six months.
Meantime, a dispute has arisen among Republicans about whether Congress has the power to prohibit USCIS from processing deferred action cases by starving the agency of funds. The House Appropriations Committee maintained in a statement that the Congress is powerless to prevent USCIS from financing the cost of implementing the deferred action program and according benefits through user fees:
The primary agency for implementing the President’s new immigration executive order is the U.S. Citizenship and Immigration Services (USCIS). This agency is entirely self-funded through the fees it collects on various immigration applications. Congress does not appropriate funds for any of its operations, including the issuance of immigration status or work permits, with the exception of the ‘E-Verify’ program. Therefore, the Appropriations process cannot be used to ‘de-fund’ the agency. The agency has the ability to continue to collect and use fees to continue current operations, and to expand operations as under a new Executive Order, without needing legislative approval by the Appropriations Committee or the Congress, even under a continuing resolution or a government shutdown.
Senator Jeff Sessions (R-AL) disagrees and is reportedly brandishing a Congressional Research Service (CRS) opinion letter described, but not released, by the far right blog, Breitbart, which suggests that Congress can bar appropriated funds, including user fees, from being deployed in a way that contravenes a statute. The actual CRS report, available here, provides:
A fee-funded agency or activity typically refers to one in which the amounts appropriated by Congress for that agency or activity are derived from fees collected from some external source. Importantly, amounts received as fees by federal agencies must still be appropriated by Congress to that agency in order to be available for obligation or expenditure by the agency. In some cases, this appropriation is provided through the annual appropriations process. In other instances, it is an appropriation that has been enacted independently of the annual appropriations process (such as a permanent appropriation in an authorizing act). In either case, the funds available to the agency through fee collections would be subject to the same potential restrictions imposed by Congress on the use of its appropriations as any other type of appropriated funds. (Footnote omitted; emphasis added.)
The CRS report did not mention, however, that the Immigration and Nationality Act (INA) already contains “a permanent appropriation in an authorizing act,” INA § 286(m), 8 U.S. Code § 1356(m), which states in relevant part:
Immigration examinations fee account.–Notwithstanding any other provisions of law, all adjudication fees as are designated by the Attorney General in regulations shall be deposited as offsetting receipts into a separate account entitled “Immigration Examinations Fee Account” in the Treasury of the United States, whether collected directly by the Attorney General or through clerks of courts: Provided, however, . . . That fees for providing adjudication and naturalization services may be set at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants. Such fees may also be set at a level that will recover any additional costs associated with the administration of the fees collected. (Emphasis added.)
According to a former senior Executive Branch official who helped me confirm the government’s interpretation of INA § 286(m), this provision has historically been construed as a “permanent, indefinite appropriation” of funds for USCIS to operate its adjudication functions through user fees. This is confirmed by the White House and USCIS in guidance offered during the 2013 government shutdown. The requirement in INA § 286(m) that “adjudication fees” be designated “in regulations” by the Attorney General (now USCIS, since the passage of the Homeland Security Act) is satisfied by regulations found at 8 CFR § 103.7 (b)(1)(i)(C)(Biometric Fee of $85), 8 CFR § 103.7 (b)(1)(M)(3)(Application for Advance Parole [international travel permission] fee of $360), 8 CFR § 103.7 (b)(1)(HH)(Application for an Employment Authorization Document fee of $380), and 8 CFR §274a.12(c)(14) (allowing issuance of an Employment Authorization Document to persons granted deferred action).
So as USCIS readies itself to accept a flood of new applications for deferred action, and work and travel permits, the agency has already announced that the affected class would not be allowed to file their applications until later in 2015, and must wait even longer before final action is taken:
Q4: How long will applicants have to wait for a decision on their application?
A4: The timeframe for completing this new pending workload depends on a variety of factors. USCIS will be working to process applications as expeditiously as possible while maintaining program integrity and customer service. Our aim is to complete all applications received by the end of next year before the end of 2016, consistent with our target processing time of completing review of applications within approximately one year of receipt. In addition, USCIS will provide each applicant with notification of receipt of their application within 60 days of receiving it. (Emphasis added.)
Another executive action approved by the White House — one that can be implemented relatively quickly — is the formation of an “Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws.” Headed by the Labor Department, the group will include the National Labor Relations Board, the Equal Employment Opportunity Commission and the Departments of Justice and Homeland Security. Presumably, the Justice Department’s role will be filled by the Office of Special Counsel for Unfair Immigration Related Employment Practices, and Homeland Security’s participation will likely be led by U.S. Immigration and Customs Enforcement and its unit, Homeland Security Investigations.
Unlike the newly-announced but slow-to-arrive immigration benefits for the undocumented, the working group can conceivably be up and running and start enforcing immigration and employment law sanctions at America’s worksites as quickly as the ink is dry on any updates to cross-memoranda of understanding (MOUs) between and among the group’s members, such as the December 7, 2011 Revised Memorandum of Understanding between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites and the MOU between DOJ and the NLRB.
There’s an obvious problem, however, with the slow grant of work permits to the undocumented and the much quicker enforcement of worksite violations. The President did not announce a deferral of enforcement of the Immigration Reform and Control Act of 1986 — the Reagan era law and later amendments which sanction businesses that employ workers whom the employer knows lack employment authorization (IRCA’s § 101) or who commit unlawful acts of immigration-related discrimination (IRCA’s § 102). It did not even issue a memo similar to the agency guidance offered in 2001 which gave employers a hint of modest relief when sponsoring undocumented workers for labor certification to gain “245(i)” benefits under the LIFE Act. Thus, employers are still at risk if they become aware that any undocumented workers are planning to apply, or have applied, for benefits under the new executive actions on immigration.
Imagine the scene at the company lunchroom. A group of obviously jovial workers are huddled together at a table filling out USCIS applications for benefits under the DACA (Deferred Action for Childhood Arrivals) or DAPA (Deferred Action for Parental Accountability) program. Bert Busybody, the director of HR, walks by and asks them why they are so gleeful. In unison, they reply, “because President Obama is allowing us to work legally.” Arguably, these workers must now be terminated from employment since Bert, as a supervisory representative of the employer, seems to have actual knowledge of the workers’ unauthorized status.
This type of worksite disharmony can be avoided if USCIS and the Homeland Security Department take appropriate action right away. As my colleague, Tony Weigel, has suggested to me, the Secretary of Homeland Security, Jeh Johnson, has authority to resolve this dilemma and allow interim employment authorization while USCIS adjudicates applications for deferred action and three-year work permits. The Secretary could merely hold that the issuance by USCIS of a receipt for a non-frivolous (meaning “patently without substance”) request for deferred action and work permission would constitute an interim document of employment authorization (say, with only six months’ validity) and a List C document for I-9 purposes under the following regulation:
8 C.F.R. § 274a.12(a) Aliens authorized employment incident to status. Pursuant to the statutory or regulatory reference cited, the following classes of aliens are authorized to be employed in the United States without restrictions as to location or type of employment as a condition of their admission or subsequent change to one of the indicated classes. Any alien who is within a class of aliens described in paragraphs . . . (a)(10)-(a)(15) . . . of this section, and who seeks to be employed in the United States, must apply to U.S. Citizenship and Immigration Services (USCIS) for a document evidencing such employment authorization. USCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an alien’s authorization to work in the United States. . . . .
8 C.F.R. § 274a.12(a)(11) An alien whose enforced departure from the United States has been deferred in accordance with a directive from the President of the United States to the Secretary. Employment is authorized for the period of time and under the conditions established by the Secretary pursuant to the Presidential directive.
There is abundant precedent for such a flexible approach in situations where the government is not in a position to grant work authorization quickly. For example, because USCIS cannot speedily confer new grants of employment authorization to certain beneficiaries, e.g., holders of Temporary Protected Status (whose work permits are extended merely by publication of a notice in the Federal Register [see Form M-274, "Handbook for Employers," pp. 13-14]), and conditional permanent residents who are allowed to work based on issuance of a receipt while awaiting an adjudication of a petition requesting the removal of conditions on residence under the marriage-based green card provisions or the EB-5 immigrant investor category.
If this flexible solution is adopted, the only remaining problem is the gap period from now until the date when USCIS is ready to allow filing of new immigration-benefits requests by the undocumented who believe they qualify under President Obama’s executive actions. The solution can be found in an embrace of the President’s sentiments espoused on November 20th:
Scripture tells us that we shall not oppress a stranger, for we know the heart of a stranger — we were strangers once, too. My fellow Americans, we are and always will be a nation of immigrants. We were strangers once, too.
Thus, under the same abundant legal authority for prosecutorial discretion that the White House Office of Legal Counsel and a bevy of legal scholars confirmed, the Secretary of Homeland Security should announce a temporary, six-month deferral of enforcement of employer sanctions arising under IRCA § 101 (INA § 274A; 8 U.S. Code § 1324a) – the provision punishing I-9 paperwork violations and the employment of persons whom the employer knows lack work permission — with exceptions for human traffickers and felonious harborers under INA § 274 (8 U.S. Code § 1324a) .
Having spoken so eloquently about “the determination of immigrant fathers [and presumably, mothers] who worked two or three jobs without taking a dime from the government, and at risk any moment of losing it all, just to build a better life for their kids,” the President should take the next step and offer real-world, flexible solutions to IRCA-induced workplace disharmony, measures that would avoid financially endangering families by government-mandated terminations of employment as they prepare to “come out of the shadows and get right with the law.”
Updated 12-04-2014 at 03:00 PM by APaparelli
By Angelo A. Paparelli on November 17, 2014
Posted in Congress on Immigration, Constitutional Law, Democrats on Immigration, General Immigration, GOP on Immigration, Homeland Security, Immigration Reform, Obama Administration on Immigration
In the 1997 film, Liar Liar, Jim Carrey starred as Fletcher Reede, a scruples-free lawyer whose young son, Max, wishes that, for just one day, his dad would tell the truth. Max’s wish is granted. Fletcher flips from mendacity to veracity. He tries persistently to lie; his Silly-Putty® face contorts wildly, but he can only blurt out truths. Hilarity ensues, life lessons are learned, and the Reede family lives blissfully ever after.
Fast forward to Washington DC, November 2014. Young Max, now a manly Millennial, remorseful for having sat out the mid-term elections, and disgusted with the politicians’ threats and counter-threats on immigration, makes a new wish: For just one day, one Republican (John Boehner) and one Democrat (Barack Obama) must only speak the truth. The wish is granted. The usual round of press conferences and TV appearances are held, and questions are asked of President Obama and House Speaker John Boehner.
Mr. President, you’ve said that, given the failure of Congress to enact immigration reforms, you will use the full extent of your legal authority and take executive actions before the end of the year to fix our nation’s immigration system. What specific actions will you take?
Before I answer that, let me admit a few things. I promised to push for immigration reform during my first year in office, but didn’t. I blamed Congress for failing to enact immigration reforms, while claiming that I lacked authority to disregard the laws on the books. Hoping to show Republicans that I could be tough on immigration, I became the “Deporter in Chief.” But then, a few months before the last Presidential election, I did what I said I could not do and authorized the Homeland Security Department to roll out a program for Dreamers known as DACA (Deferred Action for Childhood Arrivals). That move brought out Latino voters in droves and may well have been the proximate cause of my reelection. Pressed by immigration activists to stop breaking up families by deporting parents, I asked the Secretary of Homeland Security to study alternatives. Then I deferred action on his report, and then I deferred executive action in the summer, and deferred again in the fall at the behest of endangered Democrats who worried that they’d be trounced in the mid-terms. It didn’t matter. They were trounced anyway, and I’m now facing a Congress controlled by the GOP. So having learned that I must talk truth on immigration, here’s what I’m going to do very soon.
I’ll order reforms that allow a quarter- to a half-million undocumented to receive work and travel permits (except for recent arrivals, hardened criminals and terrorists). I’ll authorize measures that will speed up — ever so slowly — the immigrant visa backlog. I may allow early filing of employment-based green card applications. This would grant professional and skilled foreign workers and their families work and travel permission sooner than now. But they’ll still be stuck in the waiting line just as long and won’t get green cards until their visa numbers are current. I could recapture 600,000 or more immigrant visa numbers that my own and previous administrations squandered by not using them before the end of each fiscal year. I could say that spouses and kids would not be counted in the employment-based green card quota. I could make USCIS stop denying benefits to people on technicalities or imagined grounds of ineligibility. I haven’t decided on these yet.
Of course, I’ll describe these executive actions as generous within the bounds of the law. I know that I’ll be accused of having bypassed the Republican Congress on immigration reform. Some in the media will say it’s ”Caesarism” or “caudillismo.” But others will come to my defense. Still, the constitutional law professor in me worries that I may be going too far, and that some future Republican president will use my action as precedent to ignore the Constitution and take the country off a cliff.
Mr. Speaker, last summer when unaccompanied minors were streaming across our borders you spoke of the “numerous steps the President can and should be taking right now, without the need for Congressional action, to secure our borders and ensure these children are returned swiftly and safely to their countries.” More recently you said that if the President pursues unilateral executive action on immigration, he’ll be “playing with fire, and when you play with fire, you get burned.” So executive action is right when you agree with it and wrong when you don’t. Which is it?
Well obviously executive action is right when a Republican holds the presidency and wrong when it’s held by a Democrat, especially Barack Obama.
Yes, I’ve used incendiary language about “executive amnesty” but I’ve been no less flamboyant and no less insincere than others in my party. Republican National Committee Chair Reince Priebus called executive action by the President on immigration ”a nuclear threat” and said it would be like “throwing a barrel of kerosene on a fire.” But don’t believe him. He’s the same old Reince who suggested after our 2012 loss that comprehensive immigration reform must be embraced, that is, until the Tea Party caucus set him straight. I also liked the whopper Mitch McConnell lobbed when he said he’d “naïvely hoped the President would look at the results of the election and decide to come to the political center and do some business with us.” Mitch is never naïve. He knows that the election proved nothing because we offered no agenda to govern. Mitch and I both know how much we need to show the public that Republicans — when we control Congress — can pass meaningful legislation. We know we can’t be seen as the party of “just say no.” If we got immigration behind us, we could “do business” with the President on taxes, trade, energy and other issues that our rich donors demand.
So, when President Obama takes executive action on immigration, as I’m sure he will, the Tea Party wing of the GOP will have conniption fits. Many of them will accuse him of impeachable acts. He needn’t worry. His executive actions are no more aggressive than other Presidents, including Republicans. These are by no means “high crimes and misdemeanors.”
We will also threaten to sue him, but we know that won’t work. The courts won’t recognize the standing of members of Congress to challenge his enforcement discretion. We will threaten to hold up approval of Loretta Lynch, his pick for Attorney General, but she’ll get through because the Democrats can exercise the nuclear option and prevent a filibuster.
We’ll also threaten to use the budget process to starve his immigration agency, U.S. Citizenship and Immigration Services, of the funds needed to issue work and travel permits to the undocumented. He need not be worried. Although it could lead to a government shutdown, it won’t. Mitch McConnell and I are too savvy for that. We know that the public blamed the GOP for the last shutdown, and will likely do it again. In any case, USCIS is mostly funded by user fees which applicants for benefits must pay. So a budget standoff will not work.
But the biggest lie of all is when I said recently that “[it's] time for the Congress of the United States to deal with [immigration]“. I could resolve this problem easily if I weren’t so fearful of the flack I’d get from the Tea Party and Fox News. I could disregard the Hastert rule and just call up the Senate comprehensive immigration reform bill, S. 744, for a vote. Despite the election, there are still enough House votes to pass it. It actually is the smart thing to do. It might be the first step toward showing the growing demographic of Hispanic, youth and single female voters that we’re not just a party of older white, mostly male voters. It might allow our 2016 presidential candidates to jump the “blue wall.” Truth be told, however, I won’t bring S. 744 up for a vote. Pretense and posturing is so much easier than leadership and governing. I’ve got to go now, because I’m getting all weepy — for myself and my missing spine.
* * *
Well Max got his wish and two seasoned pols told the truth for a day. Does it change anything? Not really; we know these truths to be self-evident. The ultimate truth is that howsoever President Obama’s executive actions and the Republicans’ reactions on immigration play out, the American people must stand up and hold our “leaders” accountable to fix our dysfunctional immigration system through well-conceived legislation.
May 18, 2014
[Blogger's note: An anonymous immigration lawyer offers this lament on the woeful quality of adjudications at U.S. Citizenship and Immigration Services (USCIS). For related wailing, see: “ 'I Hate [Bleep]ing Immigration Law’ — Whenever I Get an Unjust Request for Evidence,” “End the Tyranny of Immigration Insubordination,” and “Immigration Indifference – The Adjudicator’s Curse.”]
Dear Immigration Colleagues:
On my doctor’s advice, I am considering changing careers. Like perhaps many of you, helping clients overcome unreasoned decisions and ludicrous requests for evidence year in and year out has taken its toll on my blood pressure. The quality of adjudications by USCIS seems to be declining even further, unfortunately, and I figure now is the time to get out while I am still living.
A string of recent O-1 RFEs [Requests for Evidence], and NOIDs [Notices of Intent to Deny] from the USCIS California Service Center reveal a new disturbing trend. The best and brightest, including the very STEM PhDs to whom the Senate and much of the House would essentially just give green cards, now find themselves in the crosshairs of the USCIS such that they are being prevented from even coming to work, or continuing to work, temporarily. We just recently received a Notice of Intent Deny, for example, for the fifth O-1 extension for the CEO and founder of a very successful U.S. technology company.
Unfortunately, the example above is not a one-off training issue, despite what the USCIS brass might say when they read this piece ( I will be sending it to them). We have confirmed with other colleagues that O-1 petitions filed for top notch STEM PhDs, supported by voluminous awards, recommendations, patents, and publications are being stopped in their tracks, and told that such evidence does not show that they meet any of the O-1 criteria. Do these government officials know that these are the guys whom just about everybody in Congress agrees we should actually be encouraging to come here? Shouldn’t this general understanding of our policy inform officers’ discretion in these matters? Where is the disconnect between us, our duly elected officials, and the officers adjudicating these cases?
Bureaucrats like the one who is intent on denying our client’s case can have a profoundly negative impact on peoples’ businesses and lives, not to mention the U.S. economy as a whole. Sometimes, this can be fixed. The impact on an attorney’s health year after year, however, may not be reversible. That is why I figure it is time leave. Of the many careers I have considered, I have thought about becoming a screenwriter of spy thrillers. Dealing in fiction, where no one actually gets hurt by rogue government officials, would seem to be a better way to live a longer, healthier life. Before I make the leap, I wanted to share with you my pitch for one screenplay idea. It is a sequel to one of the early James Bond thrillers, with a science fiction twist (Please be gentle in your criticism. My nerves are a bit weak these days).
Here it is:
Title: Dr. No vs. the League of Extraordinary Aliens
Dr. No is back, and this time he is ready to do some real damage. He, and his evil “Culture of No” agents, have infiltrated the elite government sub-department responsible for bringing the “League of Extraordinary Aliens” to earth. Members of the League comes to us from far off planets like, Europater, and Asiater, and use their super powers to help solve Earth’s biggest problems, like economic stagnation, global warming, and low quality Hollywood entertainment.
In reality, Dr. No has never left. He and his agents have operated their secret organization, SPECTRE [Society to Prevent Economic, Cultural and Technological Revitalization and Enhancement] from deep beneath a dark and ominous missile factory somewhere in Orange County. They have lurked in the shadows, sporadically attacking international business, and technological innovation to serve what could only be their ultimate goal: returning society to the Middle Ages. Now they are going all out. SPECTRE has managed to turn its weapons, the RFE explosive device and NOID blaster, on our last hope for progress, the League of Extraordinary Aliens. Even that most righteous protector of the League, Ombuds Man, is rendered powerless in the face of SPECTRE’s firepower. …
That is as far as I have gotten with the screenplay. I still need help coming up with an ending, and am having a hard time imaging a happy one. I look forward to your ideas.
This post originally appeared on The Nation of Immigrators on May 18th. Reprinted with permission.
Updated 05-19-2014 at 04:45 PM by APaparelli
L-1 Petitioners Beware:
USCIS Confirms Plans to Expand FDNS Site Visit Program
By Maura K. Travers and Angelo A. Paparelli
History is about to repeat itself. Fraud Detection and National Security (FDNS), a directorate of United States Citizenship and Immigration Services (USCIS), is set to embark on another foray of surprise visits to Corporate America, seeking to determine whether employers petitioning for work-based immigration benefits have kept their word.
First employers of R-1 religious workers were the target of scrutiny, and then sponsors of H-1B workers in specialty occupations heard the knock on the door (see ”Immigration Promises Made, Debts Unpaid,” “Immigration Mission Creep and the Flawed H-1B Report on Fraud and Abuse,” and “A Cancer within the Immigration Agency“).
Soon petitioners seeking L-1 intracompany transferees should expect an FDNS site visit. Just as with the R-1s and H-1Bs, perceived abuses have led to these visitations (see U.S. Department of Homeland Security, Office of Inspector General Reports, “Implementation of L-1 Visa Regulations,” and “Review of Vulnerabilities and Potential Abuses of the L-1 program,” and “What the ‘L’ is Going on with USCIS?”).
Here’s the scoop. In an April 24, 2014 stakeholder teleconference, FDNS’s Associate Director, Sarah Kendall, confirmed plans to expand the Administrative Site Visit and Verification Program (ASVVP) to include all L-1 employers.
Under ASVVP, FDNS Officers conduct random, unannounced pre- and post-adjudication site inspections to verify information contained in certain visa petitions (typically, H-1B petitions). In fiscal year (FY) 2011, FDNS performed more than 17,000 ASVVP site visits, an increase of over 2,000 visits from the previous fiscal year.
The expansion of the site visit program comes in response to an August 2013 report released by the U.S. Department of Homeland Security’s Office of Inspector General (OIG) analyzing USCIS’ L-1 intracompany transferee program and suggesting ways to reduce fraud and standardize adjudications across the program. Initial evidence suggested that USCIS would focus this expanded site visit effort on extensions of individual L-1 new office petitions originally filed with USCIS Service Centers.
During the April 24th teleconference, USCIS confirmed plans to administer a phased roll-out of ASVVP to include site visits to all L-1 employers. Although listeners were left wanting for specific details regarding an anticipated timeline for this phased expansion, USCIS confirmed that the first phase will focus on all L-1A extension petitions filed with USCIS. Furthermore, USCIS confirmed that a pilot program and inspector training are scheduled to be completed by the end of FY 2014.
In line with the existing ASVVP, L-1 site visits will be conducted randomly based on data gathered from Form I-129. Although USCIS indicated that it ultimately plans to include L-1 Blanket applicants in the site visit program, the agency did not specify what data will be utilized for the random selection process, because L-1 Blanket applicants do not file Form I-129 with USCIS.
USCIS indicated several areas that inspectors will focus on during L-1 site visits:
Does the business exist?
Does the business appear to be ‘in business?
Was contact made with the signatory of the petition or the Human Resources representative?
Did the signatory or Human Resources representative have knowledge of the petition and of the beneficiary?
Was the beneficiary available to be interviewed?
Was the beneficiary working for the business?
Was the beneficiary knowledgeable, forthcoming, and performing same duties as represented in the petition?
Is the beneficiary being paid the salary as indicated in the Petition?
While USCIS attempted to assure stakeholders that the random site visit program should raise no concerns for honest L-1 employers, listeners may have been left with a different impression. It is evident that USCIS has not reconciled some key differences between the H-1B and L-1 visa categories with respect to specific site visit protocols. For example, in order to file an H-1B petition, an employer must first obtain an approved Labor Condition Application (LCA) from the Department of Labor (DOL). The LCA includes an attestation to the DOL that the employer will offer the H-1B nonimmigrant the prevailing wage in the intended geographic area of employment. As such, an employer must accurately indicate the H-1B beneficiary’s salary and worksite location in the petition to ensure compliance with the law.
However, there is no LCA requirement in the L-1 context. Therefore, the DOL does not regulate L-1 salaries within specified geographic areas. In fact, an employer is not required to file an amended L-1 petition unless: (1) there is a change in the L-1 beneficiary’s capacity of employment (i.e., from a specialized knowledge position to a managerial position); (2) there is a material change to the L-1 beneficiary’s job duties affecting L-1 eligibility; or, (3) there is a change in the qualifying relationship between the U.S. petitioner and its foreign entities.
As such, under the current law, an L-1 beneficiary’s worksite, salary, and job duties are subject to change without notice to USCIS. Therefore, FDNS inspectors relying on data contained in the Form I-129 may not possess the most up-to-date information at the time of inspection. An L-1 employee selected for inspection may no longer be present at the worksite indicated in the petition. Furthermore, it is not entirely clear what USCIS hopes to gain by auditing information about the salaries and job duties of L-1 beneficiaries, considering there is no regulatory requirement for continued compliance with the original petition.
According to the agency, the initial site visit will not be determinative. If the beneficiary has moved to a different work site, the site inspector will follow up with the company to confirm the L-1 beneficiary’s new work site, salary, and job duties. The site inspector will take into account the particularities of the L-1 category into consideration before completing a compliance review report and submitting it for supervisor review. However, it remains unclear how follow-up with the employer will occur and how the supervisor review process will work in practice.
While compliance in the H-1B context is straight forward due to the LCA requirement, the standard for compliance in the L-1 context is less clear. To date, USCIS has provided little guidance regarding L-1 compliance. Therefore, sending FDNS officers on site visits to investigate employers’ compliance with the L-1 program seems frivolous at best.
Preparing for the Foreseeable
With or without further guidance from USCIS, L-1 employers should be prepared for FDNS site visits. Employers should take these visits seriously and contact an immigration attorney as soon as an FDNS site visitor appears. Identify procedures in advance to prepare for an unannounced FDNS worksite visit and notify all personnel of these procedures. Always provide complete and accurate information whether requested to do so onsite or subsequently via email. According to USCIS, the ASVVP is a voluntary program. The employer has a right to terminate a site visit at any time. If the officer has not gathered the required information, the officer will follow up with the employer via telephone or email to obtain additional information to complete the compliance review. An attorney can help prepare a timely and thorough response.
Employers should conduct an internal review of the employment of all L-1 employees to ensure that their job duties, worksites and salaries are readily available. Retain complete copies of all I-129 petitions and paperwork. Ensure that foreign national employees and their managers are aware of the content of the I-129 petition and supporting documentation. While there is currently no requirement to file an amended L-1 petition due to minor changes in employment, employers should be prepared to provide complete and accurate information about L-1 beneficiaries to site inspectors either on site or in response to follow-up inquiries by an inspector. For general background on investigation preparedness, see “No Skating on Thin ICE: Using Enforcement Preparedness Policies to Prevent Drowning in Frigid Immigration Waters.”
 8 CFR §§214.2(h)(4)(i)(B)(l) and 214.2(h)(4)(iii)(B)(l); 20 CFR §655.700(a)(3) and (b); INA §212(n)(1).
 INA §§212(n)(1)(A)-(D); AFM ch. 31.3(b): H-1B Classification and Documentary Requirements.
 8 CFR §214.2 (l)(7)(C)
Updated 05-12-2014 at 03:20 PM by APaparelli
[Blogger's note: For EB-5 stakeholders interested in learning more about the USCIS Listening Session, you can register for "EB-5 Immigrant Investor Update," a webinar presented by members of Seyfarth Shaw LLP's EB-5 Immigrant Investment Team on May 13, 2014. Topics include:
• The April 23, 2014 USCIS’s stakeholders listening session
• FINRA’s recent notices and how to spot key trends in EB-5 regulation
• Recent subpoenas issued by the SEC and what these enforcement efforts may mean for you
• Brokerage issues and Investment Advisor registration requirements
• Senator Coburn’s requests to regional centers for EB-5 program data.]
USCIS Gets an EB-5 Earful at Immigration Listening Session
On April 23, 2014, U.S. Citizenship and Immigration Services (USCIS) -- the component of the Department of Homeland Security (DHS) that administers the EB-5 Immigrant Investor Program -- held an important "Listening Session" with the stakeholder community.
EB-5 Program Chief, Nicholas Colucci, flanked by representatives of the Offices of Policy, Chief Counsel and Public Engagement, and by Dr. Winslow Sargent, Chief Counsel to the SBA's Office of Advocacy, explained that the session is a prelude to the promulgation of new EB-5 regulations. These new rules, he noted, would enhance program predictability and consistency by better defining substantive eligibility requirements and establishing consistent filing requirements. He added that the new regulations are but one step in transforming the EB-5 program, noting that the agency concurred in the December 2013 recommendations of the DHS Office of Inspector General that USCIS take additional measures, which he did not describe, to address EB-5 fraud and national security concerns.
The Listening Session -- which Mr. Colucci noted was held in deference to Executive Order 13563 ("Improving Regulation and Regulatory Review") -- covered a wide array of suggestions including proposals for new legal rights and interpretations, greater access to accurate program data and improvements in investor protection, the impact of immigrant visa quota backlogs and the need for greater speed and predictability of adjudications.
Legal Rights and Interpretations
Private attorneys and others on the call made a number of suggestions:
Allow each party with a material stake in the outcome of an EB-5 adjudication -- an I-924 request for designation as a regional center or amendment; an I-526 immigrant investor petition to be found classifiable as a qualifying EB-5 investor; and an I-petition to remove conditions on permanent residence -- to have a right to be heard before the agency and to be represented by separate counsel (at present only a regional center is represented in an I-924 proceeding, and only the immigrant investor is represented in I-526 and I-829 petition). Allow investors who are members of limited liability companies (LLCs) to be treated on par with limited partners in establishing that "the petitioner is or will be engaged in the management of the new commercial enterprise" under 8 CFR § 204.6(j)(5)(iii). Interpret the corporate restructuring or reorganization provision of 8 CFR § 204.6(h),
which holds that a new commercial enterprise may consist of the "purchase of an existing business and simultaneous or subsequent restructuring or reorganization such that a new commercial enterprise results," consistently with traditional notions of corporate law allowing the formation and recognition of a new legal entity that acquires a predecessor's assets, and thus overrule contrary interpretations found in Matter of Soffici, 22 I&N 158 (Assoc. Comm'r, Examinations 1998) [the caller mistakenly referred to Matter of Izummi, a different precedent decision] and the May 30, 2013 USCIS EB-5 policy memorandum. In other words, as another attorney later noted, asset acquisitions should be treated as new commercial enterprises. Given the delays of adjudication and the need for careful due diligence on potential investments, allow prospective EB-5 investors to enter as B-1 business visitors and provide them with work and travel-abroad permission while they evaluate and make a suitable employment-creation investment. Allow an investor to cure a perceived problem with the investment subscription documents, say, a prohibited redemption right that would deny the "at risk" nature of the investment, by permitting amendments to these documents rather than denying the case entirely, or, requiring a refiling and payment of a duplicate filing fee. Take into account and adjust for the foreseeable impact of immigrant visa quota backlogs that artificially change the measuring period in which the jobs per EB-5 investor must be created and prolong project liquidation and ultimate distributions to EB-5 investors beyond the prevalent five year holding period. The caller also suggested that the measuring periods for the I-526 approval (2-1/2 years) and the I-829 approval (up to 3 years) need to be reconciled. Revise the current Targeted Employment Area (TEA) concept involving discrete areas within counties as determined by state officials into a regional TEA principle based on the recognition that "where jobs are created [is] not necessarily where people live." Also, extend TEA designation authority to all U.S. territories and to federally recognized Indian nations. The validity of a TEA determination should also be extended beyond the one-year period currently permitted. Reconsider the Tenant Occupancy concept so that retained jobs are considered acceptable. Make clear that the EB-5 program as provided by statute is only concerned with the fact that jobs are created and not with the duration of jobs once they have been created. Allow investors to port an approved project to a different regional center in case an existing regional center loses its designation. Create an administrative presumption that the infusion of investment funds would create a presumed number of jobs or use more flexibility in accepting job-creation methodology. Change the definition of how net losses are determined for a troubled business by moving away from Generally Accepted Accounting Principles (GAAP) which are prohibitively expensive to document for small businesses because GAAP will be phased out in favor of international financial reporting standards. Clarify that investors in a direct EB-5 project who receive a salary are not necessarily receiving a redemption or return of their investment. Allow investors whose I-824 petition for removal of conditions USCIS has denied to file motions to reconsider and/or reopen (MTRs) with the regional service center and appeal to the USCIS Administrative Appeals Office (AAO) rather than require immediate referral to an immigration judge at a removal hearing. The caller noted that the immigration courts are backlogged for months or years, thus leaving the conditional permanent resident in a legal limbo for an inordinate period. The caller could have also noted that the regional service centers and the AAO presumably would have more time and greater expertise in EB-5 issues than the Immigration and Customs Enforcement Trial Attorneys and the Immigration Judges who deal with a plethora of other immigration factual and legal issues in removal proceedings. The caller could also have observed that, since the issues at the I-824 stage often involve a regional center, the center should likewise have the right to file an MTR or an AAO appeal.
Investor Protections and Anti-Fraud Measures
Various callers expressed concern about the need to stem fraud and enhance the protection of EB-5 investors, urging the adoption of specific regulations:
Hold regional centers liable for misrepresentations by overseas brokers and require the centers to maintain and monitor marketing materials. Monitor changes and amendments to governing subscription and operating documents and allow investors to object in writing to USCIS. Extend the same benefit of counting indirectly created jobs accorded regional centers to direct EB-5 investors. Require USCIS to mount an investor education initiative through U.S. embassies and consular posts and to release more regional center performance data and approval/denial outcomes. One caller, however, expressed concern that release of such data would likely be misleading because of the widespread "rent-a-regional-center" practice, and because some approvals have led to projects that failed. Investors should be encouraged to investigate the project rather than the regional center. Regional center metrics would not address that issue. The caller also worried that new and more innovative regional centers would likely lose out in investor attention to long-established centers. Verify source of funds documentation by the issuing bank or other authority rather than accepting such documentation at face value. Provide a remedy for investors who are victims of fraud in cases where the I-526 is approved and the investor has become a conditional permanent resident (assuming that the invested funds have been lost or depleted and investors lack the financial ability to invest in another regional center). Instructions to EB-5 forms should outline the most common types of requests for additional evidence to help investors and the regional centers submit information likely to lead to approval and project success. The forms, another caller noted, should not request burdensome and irrelevant information.
Processing times, Rulemaking Process and Adjudication Procedures
Many callers expressed process concerns:
Allow the use of the Premium Processing Service to speed all adjudications and create sufficient funds to ensure and enhance program integrity. Faster adjudications winnow out weak projects and facilitate the success of projects with solid prospects by leading to the speedier release of escrowed funds. Charge a substantial annual regional center recertification fee to weed out inactive centers and help investors more readily identify successful centers and projects. Institutionalize the informal process of email clarification of specific issues of concern in lieu of issuing long and burdensome requests for additional evidence. Give priority adjudication processing to investors in the U.S. on work visas. Once a set number of approvals of I-526s have been issued, e.g., three approvals, expedite the adjudication of all similar cases for investors in the same project. Maintain the integrity of USCIS published processing times by publishing actual rather than targeted processing times. Expedite I-924 adjudications for regional centers seeking to expand into contiguous areas to enhance investor confidence that a new project in an adjoining area will be approved.
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As can be seen, USCIS has much to digest from the Listening Session's cornucopia of proposed changes. As two callers urged, however, USCIS should not rush to publish proposed rules without first engaging in the kind of "iterative process" or sounding out of concepts and lines of thinking with the stakeholder community -- just as occurred with the May 30, 2013 policy memorandum -- a document largely praised as providing practical and clear adjudication guidance.
Updated 04-28-2014 at 02:31 PM by APaparelli