In November 2007, the DOS required Consular posts to verify information contained in approved nonimmigrant visa petitions through the Petition Information Management Service (PIMS).  PIMS is operated by the KCC.  When a nonimmigrant petition is filed with USCIS, a duplicate copy of the petition is scanned into the PIMS system so that a U.S. Embassy or Consulate abroad can access petition information through PIMS and the Consular Consolidated Database (CCD) when the petition beneficiary applies for a visa stamp.  The PIMS record is the primary proof that a nonimmigrant visa petition is approved.  Additionally, the PIMS record may contain information from DOS’ Fraud Prevention Unit. 

It has come to the attention of the DOS that the lack of information on the petitioner in the USCIS Computer Linked Information Management System (CLAIMS) system sometimes makes a CCD record incomplete.  Therefore, the DOS will be conducting its own investigation of both petitioners and beneficiaries of nonimmigrant visa petitions.  To verify petitioners, the KCC will review of the company website, company contact information, and use of Google earth to confirm that an office exists in an appropriate physical location. The DOS has stated that the KCC will not normally re-verify the petitioner information for two years. 

To verify factual information about the beneficiary of the petition, the KCC will make random telephonic contact with the petitioning employer.  The telephonic contact by KCC is unannounced and should be anticipated to occur shortly after the petition is transferred to the KCC from the U.S. Citizenship and Immigration Services.  The DOS has designated 15 contractors to conduct the telephonic interviews.  The contractors will contact the petitioning employer, and ask to speak with an authorized representative.  They will ask a series of questions including, but not limited to the following:

1. Whether the petitioner, in fact, submitted the petition;

2. When was the petitioner incorporated;

3. Where is the physical location of the petitioner;

4. Number of employees;

5. Names of shareholders;

6. Location of Attorney of Record;

7. General information regarding the petitioner’s operations and business plan.

Klasko wants to remind employers of the following points for the KCC telephonic interviews:

1. Request the name of the KCC contractor and confirm the credentials of the contractor with the KCC [(606) 526-7500] prior to providing any information. 

2. Contact your Klasko law attorney to advise us of the telephonic contact by the KCC contractor.

3. Do not speak with government agents or contractors without a witness present. Both the witness and the interviewee should prepare notes of what questions were asked and label them “Privileged and Confidential/Prepared at the Direction of Counsel,” and submit them to your Klasko law attorney for review and retention.

4. Retain complete copies of your I-129 petitions and supporting documents in a confidential file maintained by the designated company official for easy access during a contractor call. 

5. Never guess at the answer to a question about the petition.  If the employer is unsure about some requested information, the employer should indicate that he/she will follow up with the KCC contractor to provide accurate information after such information is obtained.

Employers are reminded that the investigations conducted by the KCC are separate and apart from the investigations conducted by the Fraud Detection and National Security Unit (FDNS) of the Department of Homeland Security (DHS).  DHS will continue to conduct its own fraud investigations using the FDNS unit.  FDNS conducts site visits of petitioning employers in an effort to combat fraudulent petitions.  Employers are reminded to contact their Klasko law attorney if they receive a site visit from a Department of Homeland Security contractor.

These additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.  Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:

• Initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15), or 
• To obtain authorization for an alien having such status to change employers. 

The additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee, needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.

USCIS plans to issue a revised Form I-129, Petition for Nonimmigrant Worker and instructions on how to comply with the new imminently.  KRSS will continue to update our clients on the implementation of the new law.

On our website, www.eb5immigration.com, we have provided a tool to structure further discussions with investors and entrepreneurs to aid them in this decision making process.  Checklist for Prospective Investors and Entrepreneurs under U.S. Immigration Laws includes both a Q&A format as well as a chart highlighting differences between the different options.

Investors should not rely on this posting in finalizing their decision making, but rather may find it helpful in structuring discussions with immigration counsel, who can provide the details relevant to each particular investor and entrepreneur.

New Developments in EB-5s, posted to www.eb5immigration.com, is a summary of the changes that have occurred in the past year relating to employment creation, interpretation of “new commercial enterprise,” regional centers, targeted employment areas, troubled businesses, the condition removal process, “material change” and other issues relating to investors and investments.

Under the recently redesigned E-Verify system, if the case is created late, the program will prompt the employer to explain the reason for the untimely case creation.  The reasons provided are:

• Awaiting Social Security Number;
• Technical Problems;
• Audit Revealed that New Hire Was Not Run;
• Federal Contractor with FAR E-Verify Clause verifying an existing employee; or
• Other.

DHS has stated that it added this screen because recent evaluations of E-Verify found that employers often created cases late.  This partly stems from confusion over how to determine the “date of hire” for the employee.  In a significant change, DHS has stated that “the first day the employee starts work for pay is not included in the three business day calculation.”  Therefore, if the employee starts work for pay on Monday, the third business day after the employee started work for pay is Thursday (assuming all days were business days for the employer).  DHS has created the following chart as an example:

This may come as a surprise to many employers who previously thought that the day of hire should be counted as count Day 1, then Day 2 and then Day 3. DHS, however, now clarified that employers have three days after the date of hire to create a case in E-Verify.  Employers who have questions regarding when to create a case in E-Verify should contact their Klasko Law attorney.

As Klasko previously reported, the U.S. Department of Justice (DOJ) filed suit in the United States District Court for the District of Arizona against the State of Arizona and Governor Janice Brewer in her official capacity.  The lawsuit claims that Arizona’s state immigration law, S.B. 1070, unconstitutionally interferes with the federal government’s ability to regulate immigration.  The law makes the failure to carry immigration documents a crime and it gives the police power to detain anyone suspected of being in the country illegally.

In her opinion granting the preliminary injunction, Judge Bolton stated that the United States is likely to succeed on the merits that several sections of S.B. 1070 are preempted by federal law.  Specifically, Judge Bolton enjoined Arizona from enforcing Section 2(B) of S.B. 1070, which requires that “an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person.”  This section of the law has been heavily criticized that it allows Arizona law enforcement to engage in racial profiling. 

Judge Bolton also enjoined Section 3, which makes it a crime for “the failure to apply for or carry alien registration papers,” and Section 5, which makes it a crime “for an unauthorized alien to solicit, apply for, or perform work.”  Finally, Judge Bolton enjoined Section 6, which authorizes “the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.” Judge Bolton further explained that “the United States is likely to suffer irreparable harm if the Court does not preliminarily enjoin enforcement of these Sections of S.B. 1070 and that the balance of equities tips in the United States’ favor considering the public interest.” 

Now that the Court has decided on the motion for preliminary injunction, the lawsuit will proceed to a hearing on the merits of the case, and Judge Bolton will decide whether Arizona’s law as a whole is preempted by federal law.  While the case proceeds, Arizona is stopped from enforcing the above provisions by Judge Bolton’s preliminary injunction.

One tool for administering a corporate immigration policy is to request that applicants confirm, early in the screening process, whether they will require immigration sponsorship.  Because applicants who are US citizens, permanent residents, asylees, refugees, and temporary residents under the 1986 amnesty law are protected from citizenship status discrimination, some employers believe that any pre-hire inquiry into immigration status is prohibited, even where the job applicant does not fall into one of those categories.

In an exchange of correspondence posted to his blog, attorney Angelo Papparelli recently received guidance from the Office of Special Counsel at the Justice Department, which is responsible for enforcing the anti-discrimination provisions.  He  requested guidance from OSC about how an employer could determine whether job applicants presenting employment authorization documents were only authorized to work because of a pending application for adjustment of status.  Such job applicants will only be able to continue their employment authorization if their application for permanent residence continues, and may need to present evidence to USCIS of their change in job.

OSC clarified that because temporary visa holders and applicants for adjustment of status to permanent residence are not protected from citizenship status discrimination, “an employment decision made exclusively on the basis of an individual’s status as a temporary visa holder or as an applicant for adjustment of status to permanent residence would not run afoul of the anti-discrimination provision.”  Employers can, therefore, feel free to make decisions about whether or not to hire an applicant who is a temporary visa holder or an applicant for adjustment of status in accordance with their corporate immigration policy.

OSC also provided guidance on the kinds of inquiry an employer wishing to discover information about an applicant’s immigration status may ask prior to making a hiring decision.  OSC approved use of a somewhat complicated question, albeit one which makes clear what information the employer is requesting about an employee’s need for future visa sponsorship.  OSC approved the following two questions for inclusion on job applications, so long as they are asked of all job applicants:

1.  Are you legally authorized to work in the United States?   _____ Yes _____ No

For purposes of the following question “sponsorship for an immigration-related employment benefit” means “an H-1B visa petition, an O-1 visa petition, an E-3 visa petition, TN status and ‘job flexibility benefits’ (also known as I-140 portability or adjustment of status portability) for long-delayed adjustment of status applications that have been pending for 180 days or longer.”  (Please ask us if you are uncertain whether you may need immigration sponsorship or desire clarification.)

2.  Will you now or in the future require “sponsorship for an immigration-related employment benefit?”  _____ Yes _____ No

This guidance is particularly helpful for employers conducting job searches for technically trained personnel, many of whom may have initiated the permanent residence process with other employers.  If you need further guidance on particular situations, please feel free to contact your Klasko, Rulon, Stock & Seltzer, LLP attorney.