MurthyBulletin
VOL. XIV, no. 11; March 2008, week 2
Posted : March 14, 2008
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"We know your immigration matters!" SM
The MurthyBulletin is the eNewsletter on immigration from the Murthy Law Firm. The information provided is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Murthy Law Firm. Full Disclaimer available.
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TOPICS in this Edition of the MurthyBulletin :
1. ICE Workplace Enforcement - March 2008 Update
2. Family-Based Cases and Name Check Procedures - Feb 2008 Update
3. Biometrics Now Required for Reentry Permits and Refugee Travel Documents
4. EB5 Investor Must Satisfy All Legal Requirements
5. MurthyDotCom : Did You Know about Our Travel Page?
6. Important Processing Times and Dates
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Engaging the Murthy Law Firm : Our office can conveniently and efficiently represent clients located anywhere in the United States or abroad on U.S. immigration matters.
Consultations with attorneys at the Murthy Law Firm : You may contact our office to schedule a one-time paid consultation with no further obligation. A scheduled consultation with an attorney at the Murthy Law Firm provides you with details and recommendations based on the specific facts of your case. This will help you with making the right decisions based on the legal options and strategies available.
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1. ICE Workplace Enforcement - March 2008 Update
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As U.S. Immigration and Customs Enforcement (ICE) continues to step-up careful scrutiny and workplace enforcement, the Attorney General (AG) and the Secretary of the U.S. Department of Homeland Security (DHS) have released updated information on their enforcement efforts. The DHS has increased civil fines against employers for the first time in nearly ten years and ICE has released additional guidance to employers seeking to avoid Form I-9 compliance problems.
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Joint Press Conference of the AG and DHS to Enforce Immigration
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U.S. Attorney General Michael B. Mukasey made a February 22, 2008 announcement revealing new rules that will increase civil fines for employers who violate the Immigration and Nationality Act (INA). This announcement by the AG was made at a joint press briefing with DHS Secretary Michael Chertoff. At that briefing, Secretary Chertoff explained that these increased fines under the INA are part of a program including more than two dozen reforms meant to strengthen border security and immigration law enforcement. He emphasized that these actions follow recent failures to pass comprehensive immigration reform legislation.
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Substantially Higher Fines to Increase Worksite Enforcement
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Civil fines for employers who violate U.S. federal immigration laws will increase by 25 percent, on average, effective March 27, 2008. This means an increase of as much as $5,000 per violation, for the most serious category. These civil fines are being adjusted for inflation and have not been increased since 1999.
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Under the INA, employers may be fined for knowingly employing individuals who are not employment authorized, for failure to comply with the requirements relating to employment eligibility verification forms, and for immigration-related document fraud. The new minimum penalty for knowingly employing unauthorized workers is $375. The maximum penalty for a first violation is $3,200, and $16,000 for multiple violations. These fines are assessed on a per-employee basis; thus, the potential exposure for many employers is substantial.
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Workplace Enforcement Includes Criminal Charges and Asset Forfeitures
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As regular MurthyDotCom and MurthyBulletin readers may recall from our May 5, 2006 article DHS Increases Enforcement against Employers, the DHS monitors and enforces workplace immigration laws through its enforcement division - the U.S. Immigration and Customs Enforcement (ICE). It should be noted that DHS and ICE enforcement mechanisms against employers include not only civil fines, but potentially criminal law charges as well as federal asset forfeitures.
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In 2006, Secretary Chertoff announced a tougher approach to the investigation and prosecution of employer violations. At the February 22, 2008 press conference, he stated that, in fiscal year 2007, ICE made 863 criminal arrests, which included 92 individuals in managerial or supervisory positions. DHS and ICE also made over 4,000 administrative arrests during that period.
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Employer Rights during DHS Investigations
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For each of the workplace violations described above, an employer has the right to a hearing before an administrative law judge in the U.S. Department of Justice's Executive Office for Immigration Review. This is similar to the procedure that allows an employer to challenge the U.S. Department of Labor's (DOL) workplace enforcement findings and recommended civil fines before an administrative law judge. An employer may challenge ICE or DOL administrative subpoenas by filing an appropriate action in federal court.
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ICE Issues Worksite Enforcement Advisory on Document Fraud
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ICE issued an advisory, alerting employers to beware of a new trend in false documents presented by unauthorized foreign workers. ICE describes a commonly found 'three pack' that includes a false Social Security card, state driver's license or identity card, and a work authorization document (or EAD card). Typically, an unauthorized worker also assumes the identity of a foreign national who is authorized to work, using that individual's documents with a photograph fraudulently added.
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False Claims of Citizenship on I-9 Forms
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ICE has found that many unauthorized workers falsely claim to be U.S. citizens when completing I-9 forms at the time they are hired. These violations may be found when ICE conducts I-9 audits of individual employers and their workers. At one worksite, many unauthorized employees supplied false Social Security numbers (SSNs) issued in Puerto Rico.
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ICE Methods of Enforcement include Subpoenas
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ICE is empowered to issue administrative subpoenas to employers demanding, among other things, I-9 records, immigrant and nonimmigrant petitions, H1B public access files, employee payroll, and federal tax documents. Any employer receiving such a subpoena should take it seriously, given the broad enforcement options available to ICE.
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Conclusion
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These recent increases in civil fines, workplace investigations, and arrests are the result of the tougher approach taken by DHS and ICE. Employers can no longer hide behind claims that they did not know of unauthorized employment, if it can be shown that the employer should have known about a violation. Employers should be aware of their responsibilities and rights under U.S. federal law. This is an appropriate time to engage a knowledgeable and experienced immigration attorney, if one has not already done so.
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2. Family-Based Cases and Name Check Procedures - Feb 2008 Update
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A number of recent articles on the impact of the February 4, 2008 Aytes Memo are available on MurthyDotCom. This memo describes important changes aimed at permitting the processing of certain cases long postponed by FBI name check delays. Since the issuance of the memo, further questions have arisen as to how this impacts family-based green card cases.
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Family-Based Cases
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Family-based I-485s, Applications for Adjustment of Status, impacted by the February 4, 2008 Aytes Memo, will be put into the interview-scheduling system in a manner designed to coordinate interview scheduling when the name-check request has had 180 days to process. The case must be ready for interview, meaning that all other processing steps have to be complete.
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A case is set for interview based upon the time constraints of the local USCIS District Office. Thus, a case may be sent for scheduling on the 180th day, but the actual interview will occur on some future date, based upon a first-in / first-out system.
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Family-based cases are those in which one's qualifying U.S. citizen or permanent resident family member (spouse, parent, child age 21 or over, or sibling) initiates the case by filing a petition. Family-based cases should not be confused with employment-based cases, initiated by a labor certification or I-140 petition filing, through which the primary beneficiary's spouse and minor children can also obtain permanent residence as derivative beneficiaries. The information provided above pertains only to cases initiated by qualifying family members, as all such cases undergo in-person interviews at the USCIS.
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Conclusion
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As the delays caused by the FBI name check problem have impacted a wide range of cases, including family-based petitions and applications, this update should prove helpful to many individuals. Family-based cases may end up taking longer than employment-based cases to resolve, because of the need for in-person interviews and the time and space limitations at local USCIS District Offices.
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3. Biometrics Now Required for Reentry Permits and Refugee Travel Documents
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The USCIS has recently changed the system and procedure for processing reentry permits and refugee travel documents. These applications are made on Form I-131, Application for Travel Document. Under the new procedures, effective March 5, 2008, applicants for reentry permits and refugee travel documents must provide biometrics information before departing the United States. This is done via an appointment at an Application Support Center (ASC), scheduled after the filing of Form I-131. The I-131 is more commonly used for advance parole applications, which is familiar to many adjustment-of-status applicants. The new procedures do not pertain to the advance parole, as they only pertain to the somewhat less common reentry permit and refugee travel document.
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Appointments before Departure
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The new procedures apply to individuals between the ages of 14 and 79 who are applying for reentry permits and refugee travel documents. They are advised to apply well in advance of their need to travel and, with limited exception, the fingerprinting and photographing must occur before departure. The USCIS indicates that the filing receipt and notice of appointment at the ASC are mailed to the applicant shortly after the I-131 is filed. There is an option for providing the USCIS with pre-paid express mailers, for transmitting the receipt and appointment notices as well as the reentry permit more quickly. However, this apparently requires a specific request for expedited processing and justification for that request.
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Definition of Reentry Permit
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The reentry permit is a document used by a "green card" holder (permanent resident) who needs to travel outside of the U.S. for an extended period of time. The "green card" is the proper document for requesting reentry to the U.S. if one has been absent for less than one year. A permanent resident who plans to be outside of the U.S. for a year or more, but who will continue to maintain U.S. permanent residence nonetheless, will need a reentry permit to request a return to the U.S. as a permanent resident. More information on this topic is available in our April 19, 2002 MurthyBulletin article, Immigration Rumor: Travel by Permanent Resident.
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Definition of Refugee Travel Document
A refugee travel document is used by persons in refugee or asylee status who wish to travel outside the U.S. Such a document, in certain instances, can take the place of a passport for persons with refugee or asylee status. Its appearance is similar to a passport. The USCIS has issued a fact sheet on these travel documents.
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Conclusion
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The exact rules and procedures for travel document applications, as for other immigration applications and procedures, are subject to change. Failure to follow the procedures can result in the denial of one's case. This can be an even greater problem when individuals are traveling abroad. Thus, people seeking reentry permits, refugee travel documents, or any other travel documents should carefully review the detailed instructions and, if appropriate, get qualified advice before leaving the United States.
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4. EB5 Investor Must Satisfy All Legal Requirements
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With the backlog in processing employment-based second and third preference cases (EB2 and EB3, respectively), particularly for nationals of India and China, other options like the employment-based first preference (EB1), employment-based fourth preference (EB4) and the employment-based fifth preference (EB5), all become more important for consideration by those who wish to obtain lawful permanent residence (the "green card"), more quickly. The Administrative Appeals Office (AAO) recently dismissed the appeal of a petition for an investor / entrepreneur, finding that the EB5 petition failed to demonstrate the lawful source of her funds, that she would be actively involved in the management of a new commercial enterprise, and that the new company would be an employment generating entity creating the number of jobs required by law for an EB5 approval. The Murthy Law Firm was not involved with this case, either for the initial filing or the AAO appeal, but this useful summary is based on information available to the public. It may help those in planning to file in the EB5 category.
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USCIS Revoked the Previously-Approved Petition
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In this case, the USCIS California Service Center (CSC) initially approved the foreign national's EB5 petition. Once the CSC received the I-485, it issued a Notice of Intent to Revoke (NOIR) the previously approved I-526 immigrant petition. The CSC deemed the response to the NOIR as unsatisfactory due to the evidence provided and issued a Notice of Revocation for the previously-approved petition.
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The foreign national petitioner appealed this decision and submitted new evidence to the AAO. The AAO stated that some of this new evidence was inconsistent or contradicted the documentation filed with the EB5 petition.
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Requirements for an EB5 Petition Approval
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Long-time readers of MurthyDotCom and the MurthyBulletin may recall our May 25, 2001 article INS Must Consider Impact of Policy Changes in EB5 Cases, explaining that an investment of $1,000,000 (or $500,000 in some targeted employment areas) is required for approval of an EB5 petition. This investment must be in a new commercial enterprise, defined to include certain purchases and expansions of existing businesses that will create at least ten full-time U.S. jobs. It is mandatory that the foreign national petitioner prove the legitimacy of all funds invested in the new business. This means that the funds must have been obtained through lawful means and the USCIS requires complete documentation on this point.
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Documentation Failed to Prove Lawful Source of Investment Funds
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The AAO emphasized that an EB5 petitioner cannot meet this requirement simply by submitting bank letters or statements showing the deposit of funds. Without documentation of the source and path of the funds, the USCIS will not approve an EB5 petition.
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The AAO rejected proof that the foreign national's investment funds came from wire transfers from an account in New York that was created by her father. The investor's escrow account received transfers from her spouse, father, and attorney. A second bank account received transfers from her father, a private company and several 'unidentified sources.'
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The AAO stated that the investor submitted 120 pages of foreign language documents without translations. While the investor's attorney argued that these documents were family and business tax returns, the AAO did not consider them because they were not translated. The AAO also said that there was no connection between these documents and the $1,000,000+ that was transferred to the investor's escrow account.
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Evidence that Investor will Manage Company
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On her EB5 petition, the foreign national listed her position with the new company as president. Evidence submitted to the USCIS and the AAO showed that her spouse and sister were both president and secretary of the company at different times between 1997 and 1999. The AAO stated that these contradictions had not been resolved and it prevented the approval of the EB5 petition.
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Transfers to Two Companies Create Legal Issue
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The financial records supplied to the USCIS and AAO showed that funds were transferred to two different companies that were related to the foreign national. The investor argued that each company was the alter ego of the other, but the AAO found that both were completely distinct corporations. Neither company was a wholly-owned subsidiary of the other. Any investment made in one company would automatically reduce the investment to the second company, preventing it from meeting the $1,000,000 requirement for an EB5 petition approval.
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Ten Full-Time U.S. Employees for each Employer
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The AAO stated that, because funds were transferred to two different corporations, each company would have to create ten full-time U.S. jobs. The foreign national did not prove that she created twenty full-time positions, and the AAO used this as another reason to deny the petition.
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Conclusion
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This non-precedent AAO decision emphasizes that the USCIS looks closely at the source of EB5 investor petition funds, as well as the other requirements, to satisfy that one is eligible for approval of the green card under this category. Any EB5 applicant should consider carefully what documentation is required before filing an EB5 petition. We at Murthy Law Firm appreciate the AAO's publication of this decision and its guidance to foreign investors seeking permanent residence in the United States.
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5. MurthyDotCom : Did You Know about Our Travel Page?
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Immigrants, nonimmigrants, tourists, and students always have questions about when it is safe to travel and what documentation they should carry. As students are preparing for spring break and workers are thinking about summer travel plans, it is important to be prepared. At MurthyDotCom we provide a Travel page with links to articles as well as to U.S. consulate and embassy websites. Our articles on this topic range from transit to changes in security measures that may impact our readers as they move about the U.S. or reenter from a trip abroad. Whatever your question regarding travel, find your answers on MurthyDotCom!
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MurthyChat : The next MurthyChat session will be Monday, Mar 17, 2008, 9:00pm Eastern Time (U.S.). Please check the chat page for any necessary changes to the schedule. Meanwhile, search the chat transcripts for answers to your questions.
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6. Important Processing Times and Dates
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Processing Times : For links to processing times for the USCIS Service Centers, district (or local) processing times, the Administrative Appeals Office, Department of State visa bulletin, and Department of Labor dates for the processing of labor certification applications.
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