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High Skill Immigration Bill Proposed

A Democratic Senator from California recently introduced a bill that would speed up the immigration of skilled professionals with advanced degrees in science, technology, engineering and mathematics (STEM), and job-creating investors in the U.S.

Rep. Zoe Lofgren, whose district encompasses Silicon Valley, introduced the Immigration Driving Entrepreneurship in America (IDEA) Act of 2011 (HR 2161). The bill’s key provisions affect procedures for permanent residence and nonimmigrant processing alike.

HR 2161 would allow STEM advanced degree graduates from designated universities and who have job offers from U.S. employers to receive their green cards faster by creating an EB-1 category for these individuals. These advanced degree graduates, as well as outstanding professors and researchers already under the EB-1 category, would be exempt from numerical visa limits, making this category a fast track to a green card.

If passed, the bill would also greatly reduce the immigrant visa backlog by allowing for the recapture of unused employment- and family-based visa numbers from 1992, exempting spouses and minor children from the numerical limits, and eliminating current per country limits for employment-based cases.

Changes to the labor certification process were also proposed. Employers would be required to pay a $295 fee and the DOL must adjudicate the case in 120 days or 180 days if there is an audit.

Furthermore, the standard for retaining the alien worker would change. Under current rules an employer must consider any “minimally qualified” U.S. worker, while under HR 2161, the employer may retain the foreign national employee if there are no available “equally qualified” U.S. workers.

The bill also makes permanent the EB-5 regional center pilot program, which gives permanent residence to investors in designated regional centers. A new EB-6 visa program would also be created for entrepreneurs who establish self-sponsored or venture capital-backed start-up businesses that create jobs for U.S. workers.

A pre-certification process would be created for trusted employers that are high-volume filers in order to streamline the processing of multiple petitions with similar information.

Compared to skilled immigration bills introduced in the past, Lofgren’s proposal is aimed at allowing highly skilled foreign nationals to become permanent residents faster, instead of improving the H-1B program by raising visa caps. Focusing on job creation, Lofgren reasoned that temporary H-1B workers leave the country after their work contracts and so have little incentive to remain in the U.S. and start businesses.

If the bill is passed, H-1B employers would be required to conduct recruitment before hiring nonimmigrant workers, and H-1B employment would be limited to three years only unless the employee is applying for a green card.

HR 2161 would also collapse the existing four-level prevailing wage system into a three-level system, effectively raising the entry-level wages.

As might be expected, this bill has the support of technology companies that hire a lot of scientists, engineers and other highly skilled individuals. However, its provisions affecting the H-1B program are quite restrictive on employers and may end up defeating some of the bill’s objectives.

Employers Targeted in Drive Against Illegal Employment

As part of its crackdown on illegal immigration, the federal government recently initiated a new round of employer investigations to ensure that businesses hire only individuals authorized to work in the United States. About 1,000 businesses, large and small, would receive I-9 audit notices from the U.S. Immigration and Customs Enforcement.

The businesses will be facing inspection of I-9 forms, which employers are required to complete for each employee hired after November 6, 1986. The employee must provide a document or a combination of documents to establish identity and employment authorization.

These companies, whose names have been withheld, have been selected based on information or tips of improper hiring practices. They are engaged in businesses related to critical infrastructure and key resources, such as agriculture, banking, commercial nuclear reactors, postal and shipping services, health care and transportation.

Since the beginning of fiscal year 2011 last October, the Obama administration has initiated more than 2,300 employer audits as part of its ramped-up efforts in immigration enforcement. This number is already greater than all audits conducted during the 2010 fiscal year. Compared to the workplace raids and worker arrests that were done during the previous administration, this administration has focused on workplace investigations.

The paper I-9 form, which is required of all employers, is also central to the E-verify system. E-verify is an internet-based program that allows an employer to check an employee’s information against DHS and Social Security Administration(SSA) records, and to deny employment to those found ineligible to work. Currently almost 250,000 employers are signed up for E-verify but participation remains voluntary.

A bill introduced recently by Republican Congressman Lamar Smith of Texas would make employment eligibility verification mandatory for all employers in the United States.

The Legal Workforce Act (H.R. 2164) would require employers to enroll in a nationwide Employment Eligibility Verification System (EEVS) to be used for new hires.

Participation would be phased-in over a period of 2 years. Large employers or those with more than 10,000 employees must use EEVS within 6 months from the law’s enactment, while employers with 1 to 19 employees have 2 years to start using the system. Agricultural employers have 3 years from enactment to use EEVS for new hires.

Re-verification of current employees, while generally not required, would be mandatory for employees working in the government and in federal or state contracts. It would also be mandatory for employees with limited periods of work authorization and those working at critical infrastructure sites.

The bill imposes increased civil penalties for employers who hire unauthorized employees, including a maximum fine of $25,000 for paperwork violations, unless they can claim a “good faith” exemption. Employers that are engaged in a pattern or practice of violations or that knowingly hire unauthorized employees face imprisonment of at least one year and a fine of $15,000 for each unauthorized worker.

Workers would face fines and a possible two-year imprisonment for knowingly providing false Social Security numbers and identification. There is an enhanced penalty if identity theft is also committed.

The bill allows the SSA to block the use of a Social Security number in case of unusual multiple use or when the visa of a noncitizen has expired. The agency would also send notices to employers submitting mismatched or corrected wage and tax statements. An individual worker would also be able to block the use of his/her number in case of unauthorized use by another person.

Crackdown on Immigration Scams

The U.S. government recently launched a national initiative to combat immigration service scams. Led by the Department of Homeland Security, the Department of Justice and the Federal Trade Commission, the measure is intended to fight the unauthorized practice of immigration law (UPIL) on all fronts.

UPIL is a widespread practice that takes many forms, ranging from scammers posing as licensed attorneys, immigration experts or government officials, to individuals who unintentionally provide wrong advice that ends up harming the immigrants they are trying to help.

Victims are mostly immigrants unfamiliar with the immigration system, many of whom do not speak English, and some of whom are even illiterate in their native languages.

Typical cases of scamming include “notarios” who provide legal services but are not authorized to do so. In the United States, there is no requirement to be a licensed attorney in order to become a notary public, while in many Latin American countries and in the Philippines, notaries are usually lawyers. These “notarios” capitalize on the misunderstanding caused by this difference in order to perpetrate fraud on unknowing immigrants.

Another type of scam involves businesses that claim that they can get you a guaranteed visa, green card or employment authorization document, usually for an excessive fee. Also engaged in UPIL are tax preparers who also perform immigration services and travel agents who for a fee give advice on how to remain in the U.S. after one’s nonimmigrant visa has expired. Sometimes there are attorneys that sell their names and license numbers to paralegals and others who then advertise themselves as attorneys.

Another example of UPIL could be found online such as websites that charge for immigration forms and materials that are available for free from the USCIS website, and emails saying that the recipient “won” the diversity visa lottery even though he or she did not go through the official government application process.

These scammers advertise by word of mouth, on the internet, and through paid advertisements in the radio, newspapers and the phone book, fooling their victims into believing that they are legitimate.

One of those who have been charged is a Filipina from San Jose, California, who ran an immigration consulting business for 18 years. She had advertised in major Filipino-American newspapers. She has been indicted on charges of encouraging illegal immigration, mail fraud, filing false tax returns and money laundering.

The thrust of the national initiative against UPIL is threefold. First, it aims to educate the public on how to recognize and avoid immigration scams and to choose legal advice and representation wisely. Second, it encourages the reporting of scams to authorities and ramps up enforcement actions at the federal, state and local levels. Third, it fosters collaboration among agencies to support investigation and prosecution efforts and increase the number of legitimate organizations and accredited representatives.

The efforts began early last year when USCIS partnered with seven cities – Atlanta, Baltimore, Detroit, Fresno, Los Angeles, New York and San Antonio – to learn more about UPIL and its impact on the community. Meetings were held with local agencies and stakeholders to discuss the scope of unauthorized practice of immigration law in each jurisdiction and the mechanisms in place to fight it.

Bills Introduced to Relieve Nurse Shortage

Two bills have been introduced recently in the House of Representatives aimed at relieving the nurse shortage in the United States.

HR 1929, authored by Rep. James Sensenbrenner (R-WI), would allow for 20,000 employment-based immigrant visas annually to be issued to Registered Nurses. Family members accompanying or following to join them would also get immigrant visas immediately but these would not be counted against the 20,000 quota.

The bill also provides a process for reviewing and acting upon immigrant petitions not later than 30 days after the date of the filing.

This long overdue measure would alleviate the visa retrogression affecting nurses with pending I-140 immigrant visa petitions filed under the EB-3 category. As of the present, the EB-3 category is still tremendously oversubscribed; the priority date shown in the June 2011 visa bulletin is September 15, 2005 for most countries including the Philippines. For China, India and Mexico, the priority date is much earlier.

In order to use this special visa, the petitioning employer would be required to pay an additional fee of $1,500 for each nurse, unless the petitioner’s health care facility is located in an area affected by Hurricane Katrina or in a health professional shortage area. The fees would go into an account to fund U.S. nursing programs. No additional fee shall be paid for the dependents accompanying or following to join them.

This bill known as the Emergency Nursing Supply Relief Act was introduced on May 13, 2011, by Rep. James Sensenbrenner (R-WI) who is a hardliner when it comes to legalization measures for undocumented immigrants. He has introduced similar bills in the past but they have failed to become law.

The other new bill, HR 1933, which was introduced on May 23, 2011, proposes the revival of the H-1C program which expired in December 2009. Under this program, hospitals in health professional shortage areas are allowed to file nonimmigrant H-1C petitions for Registered Nurses. There would be allowed 300 nonimmigrant visas per year, down from 500 in the last program, which are distributed among states subject to caps based on population. The authorized period of stay under an H-1C is 3 years renewable once for an additional 3 years.

Only hospitals would be allowed to sponsor H-1C nurses, and nursing homes, clinics, health care agencies and skilled nursing facilities are excluded. In the last H-1C program, 14 hospitals were approved to file under the program and most of these hospitals were located in Texas. This bill’s proponent is Texas Republican Representative Lamar Smith, another known foe of comprehensive immigration reform.

The response of immigration advocates to these legislative developments ranges from skepticism to cautious optimism. Some believe that the bills would not get enough votes and may even be killed at the subcommittee level, either by supporters of comprehensive immigration with their “all-or-nothing” approach or by immigration hardliners.

It is not easy to predict a favorable outcome for HR 1929 and HR 1933 given the lack of success of similar proposals for immigration of professionals. However, with the next elections looming in the horizon, hopefully the Congress passes either these bills addressing certain aspects of legal immigration or comprehensive immigration reform.

Determining Age of Child Under CSPA

For many years, families with children who were beneficiaries of immigrant visa petitions often worried that the children would “age out” or turn 21 years old before the immigration processing could be completed.

This changed in 2002 when Congress enacted the Child Status Protection Act (CSPA). This law was intended to mitigate the harsh impact that reaching the age of 21 had on the children’s eligibility for an immigrant visa. Under the CSPA, a child’s age can be fixed or locked according to certain rules. It is the CSPA age, and not the chronological age, that is used to determine whether the person remains a “child” for immigration purposes.

In a recent public teleconference the USCIS Ombudsman explained the different formulas on how the age is calculated depending on whether the person is the child of a U.S. citizen, the child of a green card holder, a derivative in the family- or employment-based categories, an asylee/refugee derivative, or a derivative based on the Violence Against Women Act (VAWA).

If the parent is a U.S. citizen, the child who is unmarried and under 21, as of the date of the filing of a Form I-130 relative petition by the parent, is considered an immediate relative and his/her age is “frozen”. As a result, the child does not age out and remains eligible for the immigration benefit applied for. Before the CSPA, the child would have lost immediate relative status and automatically moved to the first family preference category (F2A).

If the child under 21 is married at the time of the filing of the I-130 by the U.S. citizen parent, a subsequent divorce before turning 21 converts this child to immediate relative status which is preserved when he/she reaches 21.

On the other hand, if the parent is a legal permanent resident (LPR) who files an I-130 for an unmarried child under 21, but who subsequently naturalizes before the child turns 21, the child is converted to immediate relative status and this status is preserved when he/she turns 21.

In other cases of LPR parents, the child’s CSPA age is his/her “adjusted age” which is the biological age minus the number of days that the I-130 petition filed on the child’s behalf was pending before being approved by the USCIS.

If on the date the visa becomes available for his/her priority date the child is under 21 using the formula for “adjusted age”, the child’s family 2A status is preserved. The child has one year from the date of visa availability to seek to acquire permanent resident status.

The computation for children of LPRs is especially useful because children who reach 21 fall into the family 2B category, where the backlog is greater than in the 2A category where they would remain had they not aged out. The difference in waiting times between 2A and 2B currently varies from 4 years to 15 years, depending on the country of chargeability.

Using the CSPA formula, derivative children in the family-based categories will retain their derivative status upon reaching 21 if their adjusted age is less than 21 on the date of availability of the principal beneficiary’s visa.

Derivative children in employment-based categories will likewise retain their derivative status upon turning 21 if their adjusted age is below 21 on the date of the principal beneficiary’s visa availability. The time during which the I-140 petition was pending is subtracted from the children’s biological age to arrive at their adjusted age.

As in children of LPR parents who do not otherwise naturalize, family- and employment-based derivative children must seek to acquire permanent resident status within one year from the date that their priority dates become current.

This requirement of seeking to acquire LPR status has been interpreted to mean the filing of an I-485 adjustment application, DS-230 Part I, or I-824 application.

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