DHS / US CIS Issues

Dl / Ss / Ny

Courtesy of AP through YAhoo.

Driver's Licenses Eyed in Security
Check

Thu Aug 19, 4:59 PM ET

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By SAM DOLNICK, Associated Press Writer

NEW YORK - The state may suspend driver's licenses for up to
300,000 people, including many illegal immigrants, because their Social
Security (news - web sites) numbers could not be verified, a top state
official said Thursday.

Motor Vehicles Department Commissioner Raymond Martinez called
the program a matter of homeland security and traffic safety.

"The rules must be applied to all, and we must be sure that no document
is issued to any individual unless we are certain of that individual's
identity," he said, testifying before the state Assembly's transportation
committee.

The move was condemned by immigrant advocates.

"Immigrant workers are not terrorists," said Gouri Sadhwani, director of
the New York Civic Participation Project. "We are hardworking
community members."

Since February, the department has mailed nearly 500,000 letters to
people across the state whose listed Social Security numbers could not
be verified, and more letters will be mailed. Roughly half the people who
received letters corrected the problem.

Martinez said he expects 275,000 to 300,000 people will fail to provide
legitimate Social Security numbers, and said the DMV will move to
suspend their licenses.

Since 2000, Martinez said the department has uncovered "rampant and
criminal acts of fraud" and has found hundreds of thousands of people
who used false Social Security numbers.

He said more than 100,000 New York residents may have had their
Social Security numbers used by someone else. He described one case
in which 57 people used a single Social Security number.

While the crackdown will guard against insurance fraud and identity
thefts, protecting against terrorism was the main reason behind the
program, he said. All but one of the Sept. 11 hijackers had valid driver's
licenses, many which were obtained fraudulently, he said.

Crowds of immigrants and their advocates who packed into the public
hearing room said revoking the driver's licenses of illegal immigrants
would imperil their ability to work and make the roads more dangerous.

Another faction at the hearing, the families of Sept. 11 victims, said
stricter motor vehicle measures are needed to protect the nation.

"Anybody we can't identify is a potential terrorist," said Bruce DeCell,
whose son-in-law, Mark Petrocelli, died in the World Trade Center
attack.

___

On the Net:

Department of Motor Vehicles: http://www.nydmv.state.ny.us
 
PERM saga

Courtesy of "www.immigration-law.com"

08/22/2004: PERM Final Regulation Rulemaking Process in ZigZag

There is a wide spread rumor in the immigration lawyers community that the OMB review will not be completed until the November election is over. This rumor is premised on the theory that the White House is strongly opposing this regulation for the reason that it may be taken as an amnesty by the public and can affect the election. However, this rumor can materialize only if the President turns down the regulation because of the law that governs the OMB review. Because of the OMB review rule, the PERM regulation will have to be either rejected by the President or approved within 180 days from the date of submission of the regulation by the DOL, which was February 23, 2004. Let's review the OMB review rules.
The law that governs the OMB review is Executive Order 12866 of October 4, 1993. The Section 6 b)(2) provides that OIRA (subunit of OMB) "shall" waive or notify the agency in writing of the results of its review within the following time periods: (A) For any notices of inquiry, advance notices of proposed rulmaking, or other preliminary regulatory actions prior to a Notice of Proposed Rulemaking, ithin 10 working days after the date of submission of the draft action to OIRA. (B) For all other regulatory actions, within 90 calendar days after the date of submission of the information..., unless OIRA has previsouly reviewed this information and, since that review, there hs been no matierial change in the facts and circumstancds upon which the regulatory action is based, in which case, OIRA shall complete its review within 45 days; and (C) The review process may be extended (1) once by no more than 30 calendar days upon the written approval of the Director and (2) at the request of teh agency head.
The PERM regulation falls under Section 6(b)(2)(B) and (C). As we reported earlier, the DOL Foreign Labor Certification Chief disclosed that there was material changes to the Proposed PERM regulation as the DOL's final regulation incorporated substantial changes to the published Proposed PERM Regulation. Accordingly, under the Section 6(b)(B), the OMB was given 90 days to complete the review, which expired on May 21, 2004. However, the DOL Chief also disclosed that on May 21, 2004, it requested the OMB to extend the review because of the concerns of fraud raised by its sister/brother federal agencies and apparently part of the regulation were revised. Under the Section 6(b)(2)(C), the OMB was given only 30-day extension, which expired on June 20, 2004.
Why this regulation is still under the OMB review and under what authority? The Section 7 of the Executive Order 12866 states that in the event that there is a conflict among agencies which cannot be
resolved by the Director of OIRA(OMB), it moves to the Vice President to resolve the conflict and the President and Vice President make a decision. Under the provision, though, such resolution must be made within 60 days from the referral by the Director. Assumedly, this 60-day also expired on August 20, 2004. The fact that the case is still at the OMB reflects that the OMB could not resolve the conflict and turned over to the Vice President for resolution. Otherwise, the OMB should have completed by June 20, 2004 one way or another. The OMB cannot arbitrarily change the review period.
Now the expiration date of the resolution of the issues by the Vice President and the President is gone, and the President must announce his decision. Under the Executive Order, he does not have authority to extend the OMB review any further, Either he should reject the rulemaking or approve it as far as this reporter see the Executive Order 12866. We hope to see such announcement within next week.
Interested persons may read the full text of Executive Order 12866.
 
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Employment

Courtesy of "www.immigration-law.com"

08/22/2004: I-140 Permanent Employment Definition and Importance of Employment Contract Terms

The USCIS is growingly taking a hardline position on a number of issues. One of these includes the terms of employment for the I-140 proffered employment. In the past, the employers were not challenged by the INS when the employer stated in the letter that the terms of proffered employment is "at will" and the employment can be terminated with or without good cause by either the employer or employee. Indeed, it is reality that the substantial number of employment contracts include "at will" terms.
Lately, however, the USCIS has been challenging I-140 petition which included a term of employment at will. This is particularly true with the Outstanding Researcher position which usually establishes permanent"nature of position by the annually renewable term of employment contract. If the employer states that the term of employment is at will, the employer will face a risk of denial of I-140 with the USCIS argument that it is not a permanent employment. This issue usually involves a conflict between the employer's corporate lawyer who needs protection of his/her client (employer) from potential lawsuit by the employee when the employee is terminated "without good cause" and the immigration lawyer who represents the employer in the immigration proceeding and must established a supposed "threshold" of "permanent" employment. This issue should be resolved carefully within the employer legal team to satisfy the employer's legal protection under the employment law as well as the immigration law. One thing which is obvious is that unlike the H-1B petition, in the I-140 petition, neither the employer nor the lawyer should specifically state that the employment is at will and the employment can be terminated withou good cause by either party!
 
7th year extension / AC-21

Courtesy of "www.immigration-law.com"

08/21/2004: 7th Year H-1B Extension Pending Immigration Proceedings

For certain H-1B professionals, the H-1B extension beyond the 6-year limit is critically important. Classical example is those H-1B professionals in the East and West coasts (for that matter, Southern Coast as well) who filed regular labor certification application around April 30, 2001 or earlier and suffer a limbo due to the horrible backlogs in the labor certification application processing. The AC 21 as amended by the DOJ Authorization Act allows them to extend H-1B status indefinitely one year in increment until their green card is finally adjudicated.
There are however late-starters who started the labor certification application close to their 5th year in H-1B status. Those who file a labor certification after reaching 5th year in H-1B are ineligible to apply for the 7th year extension since the USCIS requires that (1) no less than 365 days should have passed after filing the labor certification application or immigrant petition and before reaching the 6-year limit, and (2) 7th year extension can not be "filed" unless 365 days have passed after filing the labor certification application or immigrant petition. Accordingly, unless a labor certification or immigrant petition was filed at least 370 days or longer before reaching the 6-year limit, practically the 7-year extension cannot be filed and will be unavailable for these people considering the mailing or delivery time and holidays.
Caveat: Those who previously filed another labor certifications through another employers or as a dependent family members should seek legal counsel to see whether grandfathering is applicable to their situations making them still eligible for the 7th year extension even if the latest filing of a labor certification application or immigrant petition has yet to reach 365 days when they reach 5th year in H-1B. Wow, what a terrible way to explain the rule! Too technical, isn't it? Sorry.
 
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Education Evaluation

Courtesy of "www.immigration-law.com"

08/21/2004: Advisory on "Bachelor's Degree or Equivalent" Proof

Lately, there are a growing number of people who faced a problem because of their misunderstanding of the education requirement in the permanent labor certification application. The victims involve two classes of aliens: One arises in the context of the substitution of the certified labor certification application and the other involves a new filing of the labor certification application. When the labor certification required a "bachelor's degree or equivalent" in the education part of Item 14 in the ETA 750 Part A, Application for Alien Employment Certification, it means that employer requires a bachelor's degree or equivalent foreign degree. The term "equivalent" in this context does not mean that one can use credential evaluation that determined that the combination of the alien's "education and experience" was equivalent to a
bachelor's degree. Unless it is specified such in Item 14, the education requirement must be established by "education only" and cannot consider experience. This has been made clear by the USCIS opinions and AAU decision. Accordingly, if he/she used the employer's certified labor certification for someone else for substitution, he/she must meet the "education" requirement without considering experience, no matter what the foreign credential evaluation said, unless the labor certification application specifically stated that the employer will accept combination of education and experience in ieu of a bachelor's degree. For instance, the Bachelor of Science degree in India is a three-year undergraduate program and short of one year to make it quivalent to a bachelor's degree in the U.S. If he or she took post graduate diploma education one or two years in that specialty, it will make equivalent to a bachelor's degree." However, it he/she only has a three-year degree and no other education, no matter whether one has 20 years of experience in the specialty, he or she will be determined unqualified for this labor certification job unless the labor certification application specifically stated that the employer would accept the combination of education and experience. The denial will not be known until I-140 is adjudicated by the USCIS after wasting a tremendous amount of time. The DOL does not deny labor certification application on this issue because the issue of alien's eligibility for the job is the jurisdiction of the USCIS. Before too late, people should review their labor certification application carefully, no matter whether it is a substitution case or a new case, in order not to experience a panicking nightmare months or years after starting the green card journey.
 
Revocation

Courtesy of "www.cyrusmehta.com"

August 20 2004
FEDERAL COURT PREVENTS DHS FROM REVOKING AN APPROVED
IMMIGRANT VISA PETITION WHEN BENEFICIARY IS ALREADY IN THE U.S.

by
Cyrus D. Mehta*

One of the greatest nightmares for a potential immigrant is to appear for the
final adjustment of status interview and be told that the case is being
recommended for revocation. Take for example a foreign national who
successfully petitions for an immigrant visa under the “person of extraordinary
ability” category for conducting significant research in an important scientific
area for a university. After the approval of the petition, this individual leaves the
research facility in the university and is employed by a pharmaceutical company
performing research that is different from what was established in the
extraordinary ability petition and is less active with respect to publishing articles
and being quoted in the press. At the adjustment of status interview, the officer
determines that the applicant may no longer be working in the area of
extraordinary ability and sends a recommendation to the Service Center that
approved the petition to revoke the petition. Although the applicant can argue
that he/she is still considered “extraordinary” within the scientific community,
the Service Center revokes the petition. This individual is truly in a bind.

§ 205 of the Immigration and Nationality Act (INA) authorizes the Department of
Homeland Security (DHS) to revoke the approval of an immigrant visa petition
based on “good and sufficient cause.” § 205 cautions, however, that such
revocation is only effective if notice is communicated “to the beneficiary of the
petition before such beneficiary commences his journey to the United States.”

A federal appeals court in Firstland International, Inc. v. Ashcroft, docket no.
03-6139 (Second Cir. August 2, 2004), ruled that the DHS cannot revoke a
petition after the foreign national was already inside the US. In Firstland
International, Inc. v. Ashcroft, a Chinese company sponsored its president, Shao
Zeng Chai, on an L-1A nonimmigrant visa. Two years later, Firstland filed with
the INS an I-140 immigrant visa petition, under the multi-national
executive/manager category, which was approved in 2000. As a result of the
approval, Chai applied for adjustment of status in the US. While his adjustment
application was pending, the INS issued a notice of intent to revoke its approval
of the I-140 visa petition on grounds that he was not employed in primarily a
managerial or executive capacity, and ultimately revoked the petition and denied
Chai’s adjustment of status application. Firstland appealed the visa petition
revocation to the Administrative Appeals Office, which denied the appeal on
2002. Chai then challenged the denial in federal district court. The district court
held that INA § 242(a)(2)(B)(ii) precluded it from exercising subject matter
jurisdiction and dismissed the action.

The 1996 Immigration Act sought to strip federal courts off their ability to review
negative immigration decisions. Thus, INA § 242(a)(2)(B)(ii), which was enacted
in 1996, precludes judicial review of certain decisions that are “in the discretion
of the Attorney General.” The lower district court ruled that the revocation of
Chai’s I-140 petition was the type of discretionary decision that a federal court
was unable to review after 1996.

The Second Circuit Court of Appeals disagreed with the district court. The Court
of Appeals reasoned that the issue before it did not involve a discretionary
decision as § 205 made it a mandatory requirement that notice of revocation be
served on the beneficiary “before departing for the US” and not after the
beneficiary was already inside the US.

Earlier, in 1967, the Board of Immigration Appeals in Matter of Vilos, 12 I&N Dec.
61, 64 (BIA 1967), interpreting Section 205, reasoned that Congress could not
have intended to limit the INS’ ability to revoke immigrant visa petitions against
individuals in the US. Although federal courts pay a great deal of deference to
the decisions of a government agency, such as the BIA, the Second Circuit held
that such a deference was not necessary as § 205 notice requirements were
clear and unambiguous, in that notice of revocation should be provided to
people before they depart the US.

Firstland International, Inc. v. Ashcroft was a case of first impression with respect
to interpreting § 205. As a result of this decision, the DHS would now only be
able to revoke an immigrant visa petition, whether family or employment-based,
if the beneficiary is overseas and awaiting immigrant visa processing at a US
consulate, at least in parts of the country where this court’s decision has
precedential value. Unless Congress modifies Section 205 to encompass
revocation of a petition before and after entry, the Second Circuit decision is a
sensible one. Revoking the immigrant visa petition of a person within the US,
after the person has already developed substantial ties to this country, will
cause much greater hardship than revoking the petition of an individual who is
still waiting overseas for the immigrant visa and has yet to enter the US.
 
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