Loya and Associates

The Case Of A Confidential Informant Gone Wrong

2010-02-11T16:53:00.000-08:00

First of a three-part series

Enlarge Courtesy Texas DMV, U.S. D.O.J. and Raul Loya

The faces of Guillermo Eduardo Ramirez Peyro through the ages, from various drivers licenses, a passport and a video of him in jail. To the U.S. government, he was officially informant No. 913, though most called him by the nickname Lalo.

Courtesy Texas DMV, U.S. D.O.J. and Raul Loya

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February 11, 2010

Confidential informants — people who pose as criminals so they can provide information to the police or some government agency — have helped crack some major U.S. cases.

They are part of the shadowy side of law enforcement and operate in a secret and largely unregulated world.

And sometimes, things go terribly wrong.

'I Was Doing Something Good'

A decade ago, at 2 a.m., a Mexican drug runner walked over the international bridge that links El Paso, Texas, with Ciudad Juarez, Mexico, and asked to speak with a U.S. agent.

An ICE Informant Run Amok — Or Mishandled?

Timeline: An ICE Informant Run Amok — Or Mishandled?

Raul Bencomo, then an agent with U.S. Customs, assigned code No. 913 to the runner, Guillermo Eduardo Ramirez Peyro, who went by the nickname Lalo.

Bencomo says Lalo was different from other informants. He was well dressed and always respectful — and anxious to talk about the Mexican drug lords he worked for.

"He had a lot of information, and the type of information that he started providing was at a high level," Bencomo says.

Lalo's information was on the mark. He tipped Bencomo to a corrupt U.S. immigration agent who was taking bribes from drug gangs. He also helped crack a major international cigarette smuggling ring.

"He kept us so busy — we were so behind on reports that we told him to go take a vacation just to let us catch up on reports," Bencomo says.

Lalo wasn't looking to make a deal. And he didn't need the money — he was already making plenty in Juarez's drug trade. But he had his reasons for informing on the drug gang.

More In The Series

Part 2: A System Cloaked In Secrecy Worries Attorneys Feb. 12, 2010

"I was doing something good, something positive," Lalo said to an attorney during an interview that was videotaped four years ago.

During several phone conversations with NPR last fall, Lalo insisted on speaking only Spanish. But in either language, his story is the same.

"I believe in some kind of justice, and I think I was doing something good," he said.

On the tape, Lalo looks more like a victim than a drug thug. He's clean-cut and clearly educated.

"I really was doing something good," he said.

The ICE Target: Heriberto Santillan

The feds paid Lalo well: nearly $250,000 over four years. His handlers did well, too.

It just made me sick. I had to go to the restroom and throw up. I took the recording and I told my supervisor that I didn't wish to be part of the case.

- Former ICE Agent Raul Bencomo, recalling listening to a tape recording that Lalo made of a murder

The El Paso Customs office (Customs later became Immigration and Customs Enforcement, or ICE) had never gotten much recognition. Now, with Lalo on board, agents set their sights on a Juarez kingpin known as the Engineer: Heriberto Santillan Tabares.

Bencomo says the agents were told that Santillan was the No. 3 man in the Juarez cartel.

But as that investigation started, ICE's prized snitch came under suspicion. At a Border Patrol checkpoint, Lalo got caught smuggling more than 100 pounds of marijuana stuffed into the wheels of his pickup. The Drug Enforcement Administration blacklisted him. ICE kept Lalo on its payroll, and even worked with a federal prosecutor to get his drug charges dropped. In hindsight, Bencomo says, the pot in the pickup should have been a warning sign.

"That was the first incident that I ever came across that he was working both sides," Bencomo says.

Drug smuggling turned out to be the least of Lalo's exploits. He was climbing the ranks of the drug cartel and was becoming a trusted ally to Juarez's third in command.

Killings Caught On Tape

In the fall of 2003, Santillan and a band of crooked Mexican police officers went on an eight-month crime spree — killing, kidnapping and torturing drug rivals in Juarez. And Lalo was with them.

Enlarge Guadalupe Juarez/AFP/Getty Images

Mexican law enforcement officials load a corpse found at the Juarez drug cartel's House of Death into a truck in January 2004.

Guadalupe Juarez/AFP/Getty Images

Mexican law enforcement officials load a corpse found at the Juarez drug cartel's House of Death into a truck in January 2004.

According to documents obtained by NPR, Lalo kept his ICE handlers informed of the murders piling up in Juarez. In fact, Lalo secretly recorded the first murder — and admitted that he held the victim's legs while the man was being brutally strangled, suffocated and beaten with a shovel. Former agent Bencomo remembers listening to the tape.

"It just made me sick," he says. "I had to go to the restroom and throw up. I took the recording and I told my supervisor that I didn't wish to be part of the case."

But Bencomo stayed on, and so did Lalo. Bencomo says his supervisors told him just to make sure Lalo didn't participate in any more killings.

Today, Lalo insists he never killed anyone, though court documents show he admitted being present during several murders; he even acknowledged driving two victims to a Juarez house where he knew they'd be killed. Lalo said his actions were necessary to maintain his cover.

"When you infiltrate a cartel, everyone knows you have to go like what — like a criminal," he said. "And you have to act like a criminal."

Every Federal Rule Was Broken

But former DEA Special Agent Phil Jordan says in Lalo's case, every federal rule and regulation was broken.

"Even if the man was John Gotti in his prime, you do not allow an informant to run the investigation; you do not let the informant commit felonies, to commit murder," he says. "In my mind, he was given a license to kill."

Even if the man was John Gotti in his prime, you do not allow an informant to run the investigation; you do not let the informant commit felonies, to commit murder. In my mind, he was given a license to kill.

- DEA Special Agent Phil Jordan

Jordan says on top of all that, ICE knew who was doing the killing and where the bodies were buried, but didn't share any of that information with Mexican authorities.

Jordan was an expert witness in a civil suit filed against ICE by relatives of people killed by the Mexican drug cartel. Among the victims were two U.S. residents. Attorney Raul Loya, who represented them, said the federal agents handling Lalo were a joke.

"Are you kidding me? These guys are El Paso's version of the Keystone Kops," Loya says. "They are poorly trained, they have limited education, which is fine, but they had no business being involved in a cross-border covert operation involving drugs and murder."

The killings in Juarez took place more than six years ago. Until now, ICE has always refused to talk on the record about what happened there and why Lalo was kept on the U.S. government's payroll while he was involved in torture and murder.

In an interview with NPR, Kumar Kibble, a top ICE official and a former director of criminal investigations for the agency, says, "I want to emphasize that our primary obligation is to protect life and limb." He says that the agency's guidelines for using confidential informants are sound. But in Lalo's case, he says, rogue agents didn't properly follow them.

"Had management been fully informed, we could have implemented strategies and taken a different tack that would have ultimately safeguarded more lives," he says. "This is not an appropriate case to comment on, because the procedures that we implemented weren't followed."

The House Of Death

But those familiar with the case wonder how ICE could not have known about Lalo's exploits in Mexico — the majority of which took place at a house in a middle-class neighborhood in Juarez. It has been dubbed the House of Death.

Today, no one goes to the metal gate at the house where cartel murderers brought their victims and ultimately buried them in the tiny backyard. NPR went there with veteran Juarez crime reporter Carlos Huerta. He says Lalo was the keeper of the keys.

"There were these code words that the bosses would say to Lalo," Huerta says. "He would say, 'We're going to have a barbecue.' That meant Lalo was to go and get the house ready, because someone was going to be brought there and be killed."

Enlarge Guadalupe Juarez/AFP/Getty Images

Members of Mexico's Federal Agency of Investigations excavate the yard at the House of Death after two bodies were found there. Eventually, a dozen bodies were unearthed at the site.

Guadalupe Juarez/AFP/Getty Images

Members of Mexico's Federal Agency of Investigations excavate the yard at the House of Death after two bodies were found there. Eventually, a dozen bodies were unearthed at the site.

According to a document obtained by NPR, Lalo admitted to Mexican authorities in Dallas that on his way to the house, he stopped at a local hardware store and bought duct tape and quicklime — essential items for binding murder victims and dissolving their remains.

Eventually, U.S. officials told Mexican authorities about the bodies buried at the House of Death.

Lorenza Magana, who works with victims of violence in Juarez, sat vigil with relatives of missing family members outside the house the night that Mexican authorities began unearthing the remains.

"We stayed there all night and watched as they pulled out bodies," Magana says. "It was so horrible. With every new body, the smell would hit us — it was horrible. We came back night after night to see how many they dug up."

In all, there were 12 victims. Magana says she couldn't believe it when she found out that Lalo, the gatekeeper of the death house, was a U.S. government informant.

"It hit me like cold water in the face; it just feels terrible. Here in Mexico, there is no justice, only impunity," Magana says. "So where are we going to find any help if we can't trust the U.S.?"

But it wasn't just the people of Juarez who were outraged. When the El Paso DEA office got wind of what was happening, the agent in charge was stunned.

"I was shocked. I couldn't believe it," says the DEA's Sandalio Gonzalez. He got involved after two DEA operatives in Mexico were targeted by the Juarez drug gang that Lalo worked for. Gonzalez says when he tried to question the informant, ICE circled its wagons around Lalo.

"We have threats against the lives of DEA agents, we have dead bodies, and you don't want to let us talk to this guy?" he says. "What is wrong with this picture?"

'This Is An Isolated Incident'

Gonzalez lodged a complaint against ICE. He also tried to get Congress to investigate, but that went nowhere.

ICE's Kumar Kibble insists that his agency has already thoroughly investigated the matter.

It hit me like cold water in the face; it just feels terrible. Here in Mexico, there is no justice, only impunity. So where are we going to find any help if we can't trust the U.S.?

- Lorenza Magana, who works with victims of violence in Juarez, Mexico

"We have thousands of informants that are active that we are managing on a daily basis," he says. "This is an isolated incident, where in fact the person was held accountable when they didn't follow our procedures."

ICE says the fault lies with former agent Bencomo, Lalo's handler. Specifically, ICE officials say Bencomo was terminated because he didn't tell supervisors that Lalo was still involved with murder and torture in Juarez.

Bencomo was the only one fired as a result of the Lalo fiasco. Two ICE employees were forced to take early retirement, but others received light reprimands and are still on the job.

This is the first time that Bencomo has talked publicly. He views himself as a scapegoat and says his bosses at ICE and their bosses in Washington knew all along what Lalo was doing.

"He would report a murder, and either we heard it on a phone, nobody told us to stop doing the case," Bencomo says. "We were told to continue, so for them to say that they didn't know about it, that is a total lie."

'I'm Just Fighting For My Life'

Whether or not the top brass knew about all of Lalo's exploits, there is no denying they used him to nab a Juarez drug lord and lock him away. Once the case was done, ICE was also done with Lalo. The agency began deportation proceedings with the intention of sending him back to Mexico.

Courtesy Raul Loya

A still from a video in which Lalo talks about his case. The video was shot four years ago at Sherburne County Jail in Elk River, Minn. (See clips from the video on the timeline of Lalo's case).

Lalo has been in solitary confinement for more than five years. He's in jail not for any of the crimes he allegedly committed in Mexico, but because ICE says he no longer has a legal right to be in the U.S.

"Right now, I'm just fighting for my life," Lalo said.

For now, he said, jail is better than the fate he faces in Mexico.

"I don't know if they are going to keep me here for the rest of my life," he said. "Right now, I'm just trying to say, 'Don't put me in the hands of the people who are going to try and kill me.' That's all I'm doing right now."

ICE says it learned some lessons dealing with Lalo. NPR obtained an internal agency memo written in May 2004 that clearly prohibits using informants who commit crimes. The memo stated that those rules would be part of a new policy handbook. But during our interview, ICE said that handbook still isn't finished.

Le Service de l'Immigration et de la Naturalisation met en garde contre les escroqueries visant les Haïtiens demandeurs du Statut de Protection Tempor

2010-02-08T07:54:00.000-08:00

Bureau de l’Engagement Social
DEPARTEMENT DE LA SECURITE INTERNE
Service de l’Immigration et de la Naturalisation des Etats-Unis

Bulletin d’Information 25 Janvier 2010

Le Service de l’Immigration et de la Naturalisation met en garde contre les escroqueries visant les Haïtiens demandeurs du Statut de Protection Temporaire (Temporary Protected Status)

Le Service de l’Immigration et de la Naturalisation (USCIS) met en garde les Haïtiens demandeurs du Statut de Protection Temporaire (TPS) contre les escroqueries sur l’immigration. Le USCIS a mis en place un site internet dédié à donner des informations sur sa réaction envers Haïti au www.uscis.gov/haitianearthquake.

La représentation
Vous n’avez pas besoin d’un avocat ou d’un représentant pour demander le Statut de Protection Temporaire (TPS). Si vous désirez avoir un représentant lors du dépôt d’une demande ou d’une pétition auprès de l’USCIS, vous pourriez vous faire représenter par un avocat ou un représentant accrédité d’une organisation reconnue. Votre représentant devra déposer avec votre demande de TPS, le formulaire “Notice of Entry of Appearance as Attorney or Representative” (Form G-28). Veuillez consulter la page “Finding Legal Advice” (Comment trouver un avocat) sur le site internet de USCIS pour de plus amples informations sur ce sujet.

Une liste de prestataires de services juridiques à prix modique ou gratuit et celle des représentants attitrés par le BIA sont disponibles sur notre site internet au lien ci-dessus.

Formulaires de USCIS & Frais
Tous les formulaires de USCIS sont disponibles gratuitement sur le site www.uscis.gov/forms ou en appelant le numéro gratuit des Formulaires USCIS au (800) 870-3676. Les demandes du Statut de Protection Temporaire ne peuvent pas être soumises en ligne. Les frais de dépôt du Formulaire I-821, Application for Temporary Protected Status (Demande du Statut de Protection Temporaire) sont de $50. Il est aussi requis des frais biométriques de $80. Les frais de dêpot du Formulaire I-765, Application for Employment Authorization (Demande d’Autorisation d’Emploi), sont de $340. Si vous n’avez pas les moyens de payer les frais, une dérogation au paiement des frais peut être disponible.

Conseils utiles
Les conseils suivants vous aideront à éviter de devenir victime d’une escroquerie sur l’immigration:

NE SIGNEZ AUCUN papier ou document en blanc que vous ne comprenez pas
NE SIGNEZ AUCUN document contenant des informations fausses ou erronées
NE LAISSEZ personne garder vos documents originaux
NE PAYEZ PAS au delà d’une somme symbolique à quelqu’un qui n’est pas un avocat et n’effectuez pas de paiements sur internet.
FAITES des photocopies de tous les documents remplis ou déposés à votre nom
DEMANDEZ un reçu à chaque fois que vous payez quelqu’un pour qu’il vous assiste à remplir ou à déposer des formulaires
VERIFIEZ que votre avocat est agrée ou que votre représentant est attitré par le BIA.

Pour toutes informations complémentaires concernant comment éviter de devenir une victime d’une escroquerie sur l’immigration ou comment vérifier si un avocat est agrée ou un représentant est attitré par le BIA, veuillez consulter les liens “Don’t Be a Victim of Immigration Fraud” (Ne devenez pas une victime de la fraude sur l’immigration) et “Finding Legal Advice” (Comment trouver un avocat) au site www.uscis.gov/haitianearthquake.

USCIS to Issue Revised Approval Notices for Certain Forms I-129 and I-539

2010-02-08T07:53:00.000-08:00

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) is alerting customers of certain Notices of Approval (Forms I-797) issued between Jan. 20 and Jan. 27, 2010, with incorrect or missing information. The form types impacted are Petition for Nonimmigrant Worker (Form I-129) and Application to Extend/Change Nonimmigrant Status (Form I-539).

USCIS has started mailing new approval notices with corrected information to affected I-129 petitioners and I-539 applicants. Petitioners and applicants who received incomplete or incorrect approval notices should not attempt to use them. USCIS estimates that approximately 500 incorrect Notices of Approval (Forms I-797) were issued.

These are examples of errors on the approval notices of affected petitioners and applicants:

For Form I-129, petitioners who requested multiple unnamed beneficiaries were issued an approval notice that lists only one unnamed beneficiary.
For Form I-539, some applicants were issued an approval notice with no validity dates listed.

If you know or believe that your Notice of Approval was issued with incorrect or missing information, and you do not receive a revised Notice of Approval by Monday, Feb. 8, please contact USCIS at:

Service Center	Type of Processing	Email Address
California Service Center	Regular	csc-ncsc-followup@dhs.gov
	Premium	csc-premium.processing@dhs.gov
Vermont Service Center	Regular	vsc.ncscfollowup@dhs.gov
	Premium	vsc-premium.processing@dhs.gov

USCIS Revises Medical Certificiation for Disability Exceptions

2010-02-08T07:52:00.000-08:00

WASHINGTON— U.S. Citizenship and Immigration Services (USCIS) today announced the availability of a revised Medical Certification for Disability Exceptions, Form N-648, for public comment.

USCIS published a Federal Register notice announcing changes to the form and that the revised form will be available for review and comment for 60-days, starting Feb. 1, 2010, and ending April 2, 2010. The revisions further clarify the requirements for the exception and the basis for preparing a medical certification for applicants and medical professionals.
In general, the law requires applicants for naturalization to demonstrate that they can communicate in basic English and that they understand United States history and government. However, an applicant who is unable to comply with one or both of those requirements because of a medically determinable physical or developmental disability or mental impairment may request an exception from either or both of the requirements. Applicants who claim this exception must submit a Form N-648 certification, completed by a medical professional, with their naturalization application to USCIS.
To view the revised Form N-648 and table of changes, please go to www.regulations.gov, select “Notices” as the document type, and enter “Form N-648” as the keyword and then click on “Search.” Once you retrieve the February 1, 2010 document, click on the docket ID link. That page will provide you with the revised form and table of changes.

USCIS Issues Additional Information Regarding the Employ American Workers Act (EAWA) to Employers Filing H-1B Petitions

2010-02-08T07:50:00.000-08:00

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today provides additional guidance regarding the Employ American Workers Act (EAWA) to employers seeking to file H-1B petitions.

The EAWA was enacted to ensure that companies that receive funding under the Troubled Asset Relief Program (TARP) or section 13 of the Federal Reserve Act do not displace U.S. workers. Under this legislation, any company that has received covered funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.” An H-1B dependent employer must make additional statements to the U.S. Department of Labor (DOL) regarding the recruitment and non-displacement of U.S. workers when filing a Labor Condition Application (LCA). Please refer to the DOL’s Web site for guidance regarding the LCA filing requirements.

Subsequent to the enactment of EAWA, USCIS revised its Form I-129, Petition for Nonimmigrant Worker, to include a question asking whether the employer received covered funding (Question A.1.d). See the first page of the H-1B Data Collection and Filing Fee Exemption Supplement. Question A.1.d. is meant to identify petitioners who received funding under TARP or section 13 of the Federal Reserve Act when the petition is filed.

USCIS understands that some businesses who received covered funding may have subsequently repaid their obligations and may not know how to respond to Question A.1.d. (For information on whether covered funding obligations have been repaid, recipients of TARP funding should seek guidance from the Department of Treasury, or the Federal Reserve, respectively.) If you have repaid your obligations, then answer “No” to Question A.1.d. If you wish to provide further information with the petition to assist USCIS in determining that your status for purposes of EAWA is correct, you may do so.

USCIS reminds you that a valid LCA must be on file with DOL when the H-1B petition (with a copy of the LCA) is filed with USCIS. Processing delays or a denial of the H-1B petition may result if the LCA does not correspond with Question A.1.d of the H-1B petition, unless any inconsistency is explained to the satisfaction of USCIS. For example, if the LCA includes the additional statements, but Question A.1.d is answered “no,” you can explain that you had received covered funding at the time of filing the LCA but repaid the obligation before filing the Form I-129. However, please note that if you indicate on the petition that you are subject to the EAWA, but the LCA does not contain the proper declarations relating to H-1B dependent employers, USCIS will deny the H-1B petition.

USCIS additionally reminds employers that EAWA applies only to new hires and not to H-1B petitions seeking to change the status of a beneficiary working for the petitioning employer in another work-authorized category. It also does not apply to H-1B petitions seeking an extension of H-1B status for a current employee to continue working for the same employer.

USCIS Provides Details on H-1B and H-2B Cap Exemptions for Work Performed in the CNMI and Guam Questions and Answers

2010-02-08T07:49:00.000-08:00

Introduction

Workers in H-1B and H-2B classifications who are admitted to perform labor and services in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam are exempt from the H-1B cap and H-2B cap from November 28, 2009 to December 31, 2014. The Consolidated Natural Resources Act of 2008 (CNRA), Public Law 110-229, provides a special exemption to the statutory numerical limitations (or “caps”) for temporary workers in H nonimmigrant classifications mentioned in Section 214(g) of the Immigration and Nationality Act (INA).

Questions and Answers

Q. Who may qualify for this CNMI and Guam H cap exemption?
A. Nonimmigrants admitted as H-1B and H-2B workers for labor or services in the CNMI and/or Guam. To qualify for this exemption in H-1B classification, the prospective employer’s petition must include a Labor Condition Application (LCA) listing employment or services in the CNMI and/or Guam only. To qualify for this exemption in H-2B classification, the petition must include a temporary labor certification (TLC) listing labor or services in the CNMI and/or Guam only.

Q. What fees are required if I am filing a petition for this CNMI and Guam H cap exemption?
A. The fees required are the same as those required for a petition filed from any other U.S. location. Please see the Instructions to the Petition for Nonimmigrant Worker, (Form I-129) for more information.

Q. Can a worker in H classification who will work or perform services in the CNMI or Guam and an additional U.S. state or territory qualify for this H cap exemption?
A. No. This H cap exemption does not apply to any employment to be performed outside of Guam or the CNMI. As such, a petition for H-1B or H-2B classification that is requesting employment outside of the CNMI or Guam, even for partial employment outside of the CNMI or Guam, cannot qualify for this exemption.

For example, an H-1B petition filed by a petitioner requesting employment for a worker who will work partially at the employer’s CNMI office and partially at the employer’s office in Hawaii cannot qualify for this H cap exemption.

Additionally, please note that all work locations must be listed on the LCA or TLC submitted to USCIS with the petition for H-1B or H-2B classification. Failure to do so is a violation of the terms and conditions of employment listed on the LCA or TLC.
Q. Can a worker granted H classification under this cap exemption travel to another U.S. location outside of Guam and the CNMI?
A. Yes. A worker in H classification for employment in the CNMI and/or Guam may freely travel to any U.S. state or territory. However, like any other worker in H classification, his/her employment authorization is limited to the locations authorized by the U.S. Department of Labor on the LCA or TLC.

The only exception is for H-2B workers performing services solely in Guam, who are limited to the locations of employment authorized by the Guam Department of Labor on their TLC.

Q. If a worker is granted H classification under this cap exemption and his/her employer would like him/her to work at another U.S. location outside of the CNMI and Guam, does the employer need to file another petition with USCIS?
A. Yes. Since employment performed in a U.S. location outside of the CNMI and Guam is not included in this cap exemption, the employer must file a new petition with USCIS to be counted against either the H-1B or H-2B cap before the worker may perform labor or services at that additional location. No employment location outside Guam or the CNMI is authorized under a cap-exempt petition approval for those jurisdictions, and such employment will always be considered a material change requiring a new cap-subject petition.

Q. If a worker is granted H classification under this cap exemption and is assigned different duties in the CNMI or Guam, does the employer need to file another petition with USCIS?
A. Yes in certain circumstances. Under the rules and procedures applicable to all H employment, a new petition is required if the H nonimmigrant seeks to change employers, or if there are any material changes in the terms and conditions of employment with the original petitioner, including (but not limited to) any change of work location to a location not previously authorized by the U.S. Department of Labor on the LCA or TLC. The Guam and CNMI H cap exemption applies to the cap only. All other provisions of the H program are unchanged. Therefore, if an employer elsewhere in the United States would normally be required to file a new petition to obtain approval of a material change in the beneficiary’s employment, an employer in Guam or the CNMI would also be required to file a new petition. As discussed above, any employment outside Guam or the CNMI will require a new petition; a change of location or duties within Guam or the CNMI (including a change from Guam to the CNMI or vice-versa) may or may not require a new petition, depending on whether the change is a material change to the terms and conditions of employment previously approved. If a new petition is required for approval of a material change of employment, but the new employment is still limited to Guam and the CNMI, then the new petition will also be cap-exempt during the transition period.

Q. Can the spouse and children of an H worker under this cap exemption qualify for H-4 “dependant of an H worker” classification?
A. Yes. The spouse and qualifying children of an H worker may apply for H-4 “dependant of an H worker” classification. There is no cap for H-4 classification. Family members seeking H-4 classification may apply directly at the U.S. Embassy or Consulate for a visa. Subsequent requests for an extension of stay must be filed with USCIS on an I-539, Application to Change or Extend Nonimmigrant Status.

Q. Can the spouse and children of an H worker under this cap exemption that have qualified for H-4 “dependant of an H worker” accept employment?
A. No. Nonimmigrants in H-4 classification do not have employment authorization and cannot work in the United States. The spouse or child of an H worker may only work in the United States if he or she enters the United States in a nonimmigrant classification that provides for employment authorization.

For more information on USCIS and its programs, visit the links to the right or call our National Customer Service Center at (800) 375-5283.

Last updated:02/05/2010

USCIS Revises Medical Certificiation for Disability Exceptions

2010-02-04T10:55:00.000-08:00

WASHINGTON— U.S. Citizenship and Immigration Services (USCIS) today announced the availability of a revised Medical Certification for Disability Exceptions, Form N-648, for public comment.

For more information on USCIS programs or to download a copy of the current version of a USCIS Form, visit www.uscis.gov or call the National Customer Service Center at 1-800-375-5283.

USCIS to Issue Revised Approval Notices for Certain Forms I-129 and I-539

2010-02-04T09:23:00.000-08:00

For Form I-129, petitioners who requested multiple unnamed beneficiaries were issued an approval notice that lists only one unnamed beneficiary.
For Form I-539, some applicants were issued an approval notice with no validity dates listed.

If you know or believe that your Notice of Approval was issued with incorrect or missing information, and you do not receive a revised Notice of Approval by Monday, Feb. 8, please contact USCIS at:

Service Center	Type of Processing	Email Address
California Service Center	Regular	csc-ncsc-followup@dhs.gov
	Premium	csc-premium.processing@dhs.gov
Vermont Service Center	Regular	vsc.ncscfollowup@dhs.gov
	Premium	vsc-premium.processing@dhs.gov

Please include “Approval Notice Error” in the subject line of the email. Petitioners and applicants may also call the National Customer Service Center at 1-800-375-5283 for assistance.

How to Schedule an Appointment for an Orphan Screening at the U.S. Embassy in Port au Prince

2010-01-29T15:16:00.001-08:00

In response to the Jan. 12, 2010 earthquake in Haiti, U.S. Citizenship and Immigration Services (USCIS) is actively screening Haitian children for possible humanitarian parole if they fit into one of two special categories authorized by Department of Homeland Security Secretary Napolitano on Jan. 18, 2010. The specialized categories only apply to Haitian children who were adopted or were in the process of being adopted by American families prior to Jan.12. For additional information on the eligibility criteria for both categories, please review the "Information for U.S. Citizens in the process of adopting a child from Haiti", also summarized in the chart below.

Category

Eligibility Requirements

Children being adopted by Americans who have been legally confirmed as orphans eligible for intercountry adoption by the Government of Haiti (GOH), through an adoption decree or custody grant

Evidence of availability for adoption must include at least one of the following:

Full and final Haitian adoption decree
GOH Custody grant to prospective adoptive parents for emigration and adoption
Secondary evidence of either of the adoption or custody decree

Evidence of suitability must include one of the following:

Approved Form I-600A
Current FBI fingerprints and security background check
Physical custody in Haiti plus security background clearance

Children previously identified by an Adoption Service Provider (ASP) or an intercountry adoption facilitator and matched to an American prospective adoptive parents

Evidence of a relationship between the prospective adoptive parents and the child and evidence of the parents' intention to complete the adoption. Evidence may include:

Proof of travel by the prospective adoptive parents to Haiti to visit the child
Photos of the child and prospective adoptive parents together
ASP "Acceptance of Referral" letter signed by the prospective adoptive parents
Documentary evidence that the prospective adoptive parents initiated the adoption process prior to Jan. 12, 2010 with intent to adopt the child (filed Form I-600A and/or Form I-600, completed a home study, located an ASP to work with in Haiti, etc.)

Evidence of the child's availability for adoption. Evidence may include:

IBESR (Haitian Adoption Authority) approval
Legal relinquishment or award of custody to the Haitian orphanage
Secondary evidence of the above (e.g. e-mail correspondence, copies, ASP correspondence0

Evidence of suitability must include one of the following:

Approved Form I-600A OR
Current FBI/FP and security background clearances

If you have eligible children for this program, please follow the instructions below on how to schedule an appointment for an orphan screening.

Adoptive Parent(s) in the United States

We encourage you to work closely with your Adoption Service Provider if you have one since we frequently provide updated information to them. We strongly discourage parents from traveling to Haiti on their own.

To request an appointment for an orphan screening at the U.S. Embassy in Port au Prince, contact us at HaitianAdoptions@dhs.gov. To ensure your request is processed correctly please follow the instructions below:

In the subject line of your email type: "APPOINTMENT REQUEST," Your surname and the name of the orphanage
In the body of the e-mail be sure to include:
- Your child's full name
- Your child's date of birth
- Any information you believe we should have in regard to the child's vulnerability (e.g. the child is ill, has special needs, is particularly vulnerable)
- The name and location of the orphanage where your child is living
- A point of contact for the orphanage (either in the United States or Haiti)

Please note that your child is likely to be scheduled as part of a larger group, so your response from us may refer to that group as well as to your child. Scheduling all eligible children from a given orphanage together is safer for the children, as they will be able to travel together to the embassy, and ultimately depart from Haiti as a group since all will be authorized and issued their documentation at the same time.

USCIS is actively reaching out to all Haitian orphanages that we are aware of in an effort to schedule appointments. If you know that USCIS is already working with your orphanage, it is not necessary for you to request an appointment, although you are free to do so.

Adoptive Parent(s) in Haiti with Your Adoptive Child(ren)

If you have access to the Internet, please send an e-mail to HaitianAdoptions@dhs.gov. To ensure that your request is processed correctly, please follow the instructions below:

In the subject line of your email type: "URGENT -- ADOPTIVE PARENT IN HAITI"
In the body of the e-mail be sure to include:
- Your full name
- Your home address
- Your child's name
- Your child's date of birth
- Information about how to best contact you

We will make every effort to reply to your message promptly with instructions on when to go to the embassy. You are more likely to get into the embassy and processed quickly if you email us to make the appointment.

It is extremely important that you bring all available adoption documents, identity documents and current photos of your child.

If you cannot e-mail us in advance, you may proceed directly to the embassy with your child and identify yourself to the guards as an adoptive parent with an orphan child in need of orphan screening at the USCIS Field Office. Although the embassy guards have been instructed to bring all such cases immediately to the front of the line and admit them into the embassy, it may be very difficult for you to gain access, particularly if we are unaware that you are coming. You may also have to make several visits or wait for long periods of time, depending on the information we have available about your case.

Orphanage Directors or Other Individuals Caring for Orphan Children

The embassy is scheduling appointments in advance in an effort to pre-process groups of cases. This will allow all children who are eligible in a particular orphanage to be screened at the same time and will only require one trip to the embassy for physical identification. Do not try to enter the embassy without first arranging an appointment, as you may be turned away.

To request an appointment for orphan screenings at the U.S. Embassy in Port au Prince, contact us at HaitianAdoptions@dhs.gov. To ensure your request is processed correctly please follow the instructions below:

In the subject line of your email type: "ORPHANAGE SEEKING APPOINTMENT"
In the body of the e-mail be sure to include:
- A list of the children in your care with their dates of birth
- Name(s) of the children's adoptive parent(s)
- Contact information for the children's adoptive parents (addresses and e-mail addresses)
- Status of the each child's case (e.g. pre-IBESR, MOI, etc.)
- Your contact information (phone number, email, through a U.S. contact, etc.)

If you do not have all the information requested above, provide as much as possible.

USCIS will respond by informing you of your appointment time. Only the orphanage director or other responsible adults should appear for the initial appointment. Bring all available adoption and identity documentation for each child who will be screened as well as current photos if available.

The children will need to be seen at the embassy for physical identification after the cases have been vetted and prior to issuance of the travel documentation. You should only bring the children to the embassy when instructed to do so by USCIS or the U.S. Embassy.

NOTE: We are aware that some orphanages are located a long way from the U.S. Embassy in Port au Prince. We are currently considering how we might make processing available in remote locations, and will provide further information on this at a later time.

For more information about other USCIS Haitian relief efforts, please go to the main page "USCIS Response to Haiti" link on the left.

USCIS and Los Angeles Announce Immigrant Integration Partnership

2010-01-29T07:59:00.000-08:00

WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas and Los Angeles Mayor Antonio Villaraigosa announced today a new partnership to strengthen immigrant integration efforts in Los Angeles through proactive citizenship awareness, education, and outreach activities. The initiative kicks off with a free citizenship information session and naturalization workshop on Saturday, Jan. 30, 2010, at Felicitas and Gonzalo Mendez Learning Center in Northeast Los Angeles. USCIS Los Angeles District Director Jane Arellano will be on hand to answer questions.

“Citizenship creates opportunities, strengthens communities, and allows immigrants to become fully vested members of this great nation,” said Mayorkas. “In serving the public, it is our duty to provide aspiring citizens with the tools they need to pursue the path to citizenship. We are proud to partner with Mayor Villaraigosa and the City of Los Angeles on this important initiative.”

Saturday’s event is the first in a series of planned citizenship information sessions for Los Angeles residents. Other activities under the agreement include the dissemination of USCIS educational materials highlighting U.S. citizenship and the naturalization process at city facilities along with targeted outreach to increase awareness of citizenship rights, responsibilities, and the naturalization process among eligible residents. As the second largest, and one of the most diverse cities in the country, Los Angeles is home to immigrants coming from more than 140 countries and speaking 224 languages. California is home to nearly 3.5 million legal permanent residents, 2.5 million of whom are eligible to naturalize.

“By partnering with USCIS to educate and encourage Angelenos to become American citizens, the City of Los Angeles is helping to open the doors of greater economic opportunity for thousands of hard-working immigrants and their families,” Mayor Villaraigosa said. “This outreach campaign is a model of cooperation and civic empowerment that will help enrich America's continued success as a nation of immigrants.”

Los Angeles is the first city to enter into an agreement with USCIS to strengthen and enhance local immigant integration efforts. USCIS will regularly evaluate the program’s effectiveness to determine whether a similar agreement may be replicated in other locations. Launched as a pilot, the partnership between USCIS and Los Angeles will remain in effect for two years.

To learn more about USCIS and its programs, visit our homepage or call the National Customer Service Center at (800) 375-5283.

For more information on the City of Los Angeles, visit www.lacity.org.

Questions and Answers: Requesting Waiver of Fees Temporary Protected Status Applicants

2010-01-28T10:55:00.000-08:00

Background

U.S. Citizenship and Immigration Services (USCIS) is funded by application and petition fees. Waiving a fee for certain individuals transfers the cost of processing applications and petitions to other applicants and petitioners and often necessitates increasing fees for everyone. However, we recognize that some individuals may not be able to pay the filing or biometrics fees. If you wish for us to consider waiving the fees for your application, please follow the instructions provided on requesting a fee waiver at http://www.uscis.gov/feewaiver and in these Questions and Answers. When you request a fee waiver, you must clearly demonstrate that you are unable to pay the application fees and biometrics fee that are applicable in your case.

Questions and Answers

Q. Which fees can USCIS waive if requested?

A. If you are unable to pay, you may request a fee waiver for the following fees:

Application for Temporary Protected Status (Form I-821);
Application for Employment Authorization (Form I-765);
Application for Waiver of Ground of Inadmissibility (Form I-601); and
The biometrics fee.

The fee for the Application for Travel Document, (Form I-131), is not waivable.

Q. How should I apply for a fee waiver request?
A. To apply for a fee waiver, you must submit a written statement, made under oath, affirmation, or pursuant to 28 U.S.C. 1746 containing the statement: “I declare under penalty of perjury that the foregoing is true and correct,” requesting a fee waiver(s) and stating the reasons why you are unable to pay the filing fee(s). This statement must be on the request and the request will be denied if it is not. Be sure to state which specific fees you are requesting to be waived in your affidavit.
The signed written statement and any supporting documentation must be submitted along with your benefit application(s).
Your fee waiver request must explain why you are unable to pay the fees and also include:

Any evidence that you are receiving a federal or state means-tested public benefit (e.g., Medicaid, food and nutrition benefits (SNAP program), housing assistance, etc.),*
Your monthly Gross Income from all sources for each of the three months prior to the filing of the fee waiver request,
A list of all assets owned, possessed or controlled by you or your dependents,
Your monthly essential expenditures , including any extraordinary expenses (e.g., high medical bills), for each of the three months prior to the filing of the fee waiver request,
A list of your dependents in the United States, their address and relationship to you, and any income earned or received by your dependents,
Any evidence of humanitarian considerations (e.g., disability, age, homelessness, unemployment),* and
Any other information that you believe supports your inability to pay the fees that you would like waived.

*Although these starred items are not mandatory requirements, such evidence will be given significant weight in determining your eligibility for a fee waiver.

Q. How will USCIS determine if I qualify for a fee waiver?
A. We will determine that you qualify if you are able to demonstrate that it is more probable than not that your gross income for the three-month period prior to the filing of your fee waiver request was equal to or less than your essential expenses (e.g. reasonable expenditures for rent, utilities, medical expenses, child care) during that same period AND you do not own, possess or control ASSETS sufficient to pay the fee without substantial hardship.

We will review your fee waiver request according to the following 5 steps:

Step 1. Are you receiving a federal-means tested benefit? If you are and you have provided sufficient evidence, your fee waiver will normally be approved.

Step 2. Is your household’s income over the three months preceding the filing of your fee waiver request less than the Federal Poverty Guidelines?

Step 3. Did your essential expenses over the three months preceding the filing of your fee waiver request equal or exceed your gross income during that period?

Step 4. Do you have a humanitarian consideration (e.g, disability, age, etc.) or an extraordinary economic situation (e.g., recent unemployment) that you believe has a sufficiently negative financial impact to make you eligible for a fee waiver? If so, you must provide sufficient evidence to support your claim.

Step 5. Do you have any other reasons and supporting evidence that would support your inability to pay the fee(s)? If so, you must provide the evidence and explain how it makes you unable to pay the fee.

By utilizing the step-by-step process above, USCIS will look at your entire situation to determine whether to grant you a fee waiver based on whether you have sufficient assets to pay the fee without substantial hardship.

Q. What is a federal means-tested benefit and what effect does it have on my eligibility for a fee waiver?
A. A federal means-tested benefit is any benefit funded in whole or part by the Federal government that requires you to demonstrate your “means” (e.g., your income, assets and related resources) as part of the eligibility requirements for the benefit. The federal agency administering the funds determines whether the benefit is a Federal means-tested public benefit under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193.

Many federal-means tested benefits are administered by state, county and city social service agencies. All benefits, whether they are provided by the federal or local government agencies, carry equal weight in our consideration of your fee waiver request.

Examples of federal means-tested benefits include Supplemental Nutrition Assistance Program (SNAP) benefits (formerly called “Food Stamps”), Medicaid, Supplemental Security Income (SSI), and Temporary Assistance to Needy Families (TANF).

You should provide evidence you are receiving these benefits if you wish USCIS to take into account the fact that you have previously demonstrated low income and limited resources to a different agency as part of USCIS’ determination of your eligibility for a fee waiver. This evidence should be a copy of a letter or other documentation bearing the letterhead or logo of the agency granting the benefit, the name of the recipient of the benefit and that you are currently receiving the benefit.

Q. What if someone else in my family is receiving federal means-tested benefits?
A. The person applying for the fee waiver must be the person who is receiving the Federal means-tested benefits.

The only exceptions are:

1. If an applicant is receiving a federal means-tested benefit, then a dependent spouse who lives in the same household of the applicant will also qualify for a fee waiver unless the spouse owns, possesses or controls assets sufficient to pay the fee without substantial hardship; and,
2. If a parent is receiving federal means-tested benefits, then his or her unmarried children under 18 living with him or her would also qualify for a fee waiver.

However, the reverse situation does not apply. For example, if a child or grandchild is receiving Federal means-tested benefits, eligibility for a fee waiver does not automatically extend to parents or other family members. Similarly, if a parent is receiving SSI, his or her adult children do not automatically qualify for a fee waiver as a result.

Q. If I am not receiving a federal-means tested benefit, how will you determine my eligibility for a fee waiver?
A. If you are not receiving a federal-means tested benefit, we will look at other factors, such as the income level of your household and compare it to Federal Poverty Guidelines. We will also consider assets, humanitarian factors, and all evidence that you submit regarding your inability to pay to determine whether your request merits a discretionary grant of a fee waiver.

Q. How will you use my household income information to determine my eligibility for a fee waiver?
A. We will compare your household income with the "Federal Poverty Guidelines". We use the Federal Poverty Guidelines, as established by the Secretary of Health and Human Services.

If your household income is greater than the Federal Poverty Guidelines, then you are not likely to qualify for a fee waiver. However, even if your household income exceeds that of the Federal Poverty Guidelines, if you have a humanitarian consideration or an extraordinary economic situation such as medical bills or unemployment, then USCIS will take this account in an overall assessment of your inability to pay the fees. See further Q&A’s below.

Q. What evidence should I provide concerning my household income?
A. In addition to your written statement, you are strongly encouraged to submit documentary evidence of your household income which includes all forms of income, including income received or earned by any dependent in the United States, and financial assistance. Such evidence may include:

If available, a copy your Federal tax return for the last tax year; or
If you did not file a federal tax return, submit other forms of evidence which may include paycheck stubs, employment contracts, statement(s) from your employer(s) own business stationary showing salary or wages paid etc, for the past 3 months; or
Official transcripts of your tax returns and W-2s. These can be obtained without fee from the Internal Revenue Service by filing an IRS Request for Transcript of Tax Return, (Form 4506T).

Q. Who should I include when determining my household size?
A. You should include:
Yourself;
Your spouse;

The following family members:
- Your children or legal wards, who are unmarried and under 21, and who live with you;
- Your children or legal wards, who are unmarried, under 23, full-time students, and who live with you when not at school;
- Your children, or legal wards, who are unmarried, and for whom you are the legal guardian because they are physically or mentally disabled to the extent they cannot adequately care for themselves and cannot establish, maintain, or re-establish their own household;
- Your parents, if:
  - You are unmarried, under 23, a full-time student, and you live with your parents when you are not at school; or
  - They are retired and living with you.

Q. Will you include the income of a person living with me if that person is not part of my household for tax purposes?
A. If a person is living with you but is not claimed as a member of your household for tax purposes, that person’s income will not be considered when determining your household income. You do not need to provide this person’s income information.

Q. If I am separated, do I need to count my husband or wife, and children living with him or her?
A. If you are legally separated, you do not need to include your spouse in your family size, and do not need to include your spouse’s income information. However, be sure you include in your household income any support that your spouse is still legally required to provide to your household under court order or state law.

If you are legally separated but continue to live together, your spouse’s income information must be included with your fee waiver request.

If you are not legally separated, even if you are living apart, then you need to include your spouse’s income information in your fee waiver request.

Evidence of legal separation should be included with your fee waiver request. This may be a copy of the court order or a letter from the attorney that is managing your case.

Q. If I am applying for immigration benefits under the provisions of the Violence Against Women Act, do I need to provide my spouse’s financial information?
A. Individuals applying for immigration benefits under provisions of the Violence Against Women Act (VAWA), regardless of current marital status, should only provide their spouse’s financial information if it is readily available. In those cases where the information cannot be obtained, please provide a brief explanation describing the circumstances.

Q. How will my expenses factor into my eligibility for a fee waiver?
A. Essential expenses for this purpose are limited to reasonable expenditures for: rent, food, utilities, child care, medical expenses, commuting costs, clothing, and laundry. Temporary Protected States (TPS) fees are also considered an essential expenditure.

Q. How will my assets and/or the assets of my dependents factor into my eligibility for a fee waiver?
A. In addition to providing us with evidence that your essential expenditures have equaled or exceeded your gross income for the last three months, you will need to provide us with information concerning your assets (as well as those of your dependents) and their value.

Assets include: real estate, property, cash, checking, and savings accounts, stocks, bonds, and annuities (except for pension plans and Individual Retirement Accounts (IRAs)).

If we determine that you can pay the fees from your assets without substantial harm, we will deny your fee request. For example if you have $20,000 in the bank and own two cars, we would determine the applicant has the ability to pay.

Q. What if I believe I am eligible for a fee waiver because of a humanitarian consideration or due to a recent extraordinary economic situation?
A. To the extent that your essential expenses over the three month period prior to your filing the fee waiver request were not equal to or greater than your income during that period, we may consider the following in determining your eligibility for a fee waiver:

Whether your age will have an effect on your ability to earn income in the near future;
Any disability that may prevent you from earning an income in the near future; and
Evidence that you recently became unemployed.

Disabilities (physical and emotional) should be documented with a letter from a medical professional and should state the nature of your disability and that it prevents or severely inhibits your ability to earn an income.

Q. What if I am filing on behalf of a special immigrant juvenile (SIJ)?
A. Juveniles in the custody of the state or local government will likely qualify for a fee waiver. The legal guardian, conservator, or similar court-appointed surrogate should sign the fee waiver request and provide one of the forms of evidence listed below:

Evidence that the SIJ is receiving a federal means-tested benefit.
Pay stubs or bank statements indicating the SIJ’s income is under the federal poverty guidelines.
Recent juvenile court order establishing dependency or custodial assignment (within the last 6 months) of the SIJ.
Letter from a foster care home or similar agency overseeing the SIJ’s custodial placement that describes the SIJ’s inability to pay.
Form I-797 Approval Notice for a Form I-360 filed for the SIJ.

Any one of the above types of documentation will meet the evidentiary requirement to support the SIJ’s inability to pay.

Q. Who may request a fee waiver?
A. Anyone who is 18 or older and wants to request a fee waiver for his/her own application.

Anyone who is 18 or older may request a fee waiver for his/her:

1. Unmarried children under 18;
2. Unmarried sons and daughters for whom s/he remains the legal guardian to the extent they cannot adequately care for themselves; and
3. Legal ward who meets either of the above definitions.

Q. Who should sign the fee waiver request?
A. If you are at least 14 years old, you may sign on your own.

Your parent or legal guardian conservator, committee or similar court-appointed surrogate may sign the request for you if you are under 14 years old, or if you are between 14 and 18 years of age, but incapable of signing on your own.

A legal guardian, conservator, committee or similar court-appointed surrogate may also sign the fee waiver request for you if you are 18 years of age or older but a court has appointed a guardian, conservator, committee or similar surrogate for you because you are not capable of managing your own affairs.

Q. If the applicant is a minor and is a ward of the state, who should complete and sign the fee waiver request?
A. The court appointed guardian, conservator, committee or similar surrogate should sign the fee waiver request. The fee waiver request should include a copy of the court order designating the signee as guardian, conservator, committee or similar surrogate.

Q. Some form instructions mention filing fees and biometric fees. Can both be waived? Do I have to file separate fee waiver requests?
A. You do not have to file a separate fee waiver request for the filing fee and the biometric fee. If we approve your fee waiver request, we will waive both the filing and biometric fees.

Q. Do I need English translation of documents?
A. If any document that you submit with your application is not in English, you must submit both the document itself (in the other language) and a full and complete English translation.

The individual who translated the document into English must certify that he or she is competent to translate from the other language into English, and that the translation is a full, complete and accurate translation of the entire document.

The translator must include his or her name, signature, full address, phone number, e-mail address and any related license or registration number.

Q. What if I have questions?
A. If you have questions, refer to our Web site (http://www.uscis.gov ) or call customer service at the National Customer Service Center (NCSC): 1-800-375-5283 or 1-800-767-1833 (TDD for the hearing impaired).

Change of Filing Location for Form I-601, Application for Waiver of Ground of Inadmissibility

2010-01-28T10:38:00.000-08:00

WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) today announced revisions to Form I-601, Application for Waiver of Ground of Inadmissibility.

As of January 4, 2010, infection with the Human Immunodeficiency Virus (HIV) is no longer a ground of inadmissibility. If you have the HIV infection, you are no longer inadmissible to the United States, and are no longer required to file Form I-601 because of your HIV infection. As part of the revisions to Form I-601, any reference to HIV infection in the form and the instructions were removed.

In addition, USCIS today announced that there are revised filing instructions and addresses for applicants filing Form I-601, Application for Waiver of Ground of Inadmissibility. The change of filing location is part of an overall effort to transition the intake of benefit forms from USCIS local offices and Service Centers to USCIS Lockbox facilities. By centralizing form and fee intake to a Lockbox environment, USCIS can provide customers with more efficient and effective initial processing of applications and fees.

Beginning 1/27/2010, the following filing location changes are in effect for applicants located in the United States:

Applicants who a) have an approved Form I-360 based as a Self-petitioning spouse or child of an abusive U.S. Citizen or Lawful Permanent Resident, or b) are a T nonimmigrant seeking adjustment of status, and who are filing Form I-601, must file their application at the USCIS Vermont Service Center;

USCIS Vermont Service Center
75 Lower Welden Street
St. Albans, VT 05479-0001.

Applicants who are filing Form I-601 together with Form I-485, Application to Register Permanent Residence or Adjust Status, must file the I-485 and the I-601 at the filing location specified on the Form I-485 instructions.
Applicants who have a pending Form I-485 must file Form I-601 with a USCIS Lockbox facility, based on the first 3 letters in their application receipt number. Detailed guidance can be found in updated Form I-601 instructions as well as at www.uscis.gov. Applicants must include a copy of the I-797C, Notice of Action, showing that their Form I-485 was accepted.
Applicants for Temporary Protected Status (TPS) under the Immigration and Nationality Act Section 244, must file Form I-601 with Form I-821, Application for Temporary Protected Status. Consult the applicable Federal Register notice for the applicant's country’s TPS designation.
Individuals in removal proceedings, must file Form I-601 with the Executive Office for Immigration Review (EOIR) office with jurisdiction over your case and according to the instructions that are provided to the individual in court.

USCIS Offices will forward incorrectly filed I-601 applications to the USCIS Lockbox facilities for 30 days, until 2/27/2010. After that, incorrectly filed applications will be returned to the applicant, with a note to send the application to the correct location.

Applicants located outside of the United States will continue to file their Form I-601 with the U.S. Embassy or consulate where they are applying for a visa.

When filing Form I-601 at a Lockbox facility, applicants may elect to receive an email and/or text message notifying them that USCIS has accepted their applications. To receive notification, the applicant must complete an E-Notification of Application/Petition Acceptance (Form G-1145), and attach it to the first page of the application.

For more information on USCIS programs or to download a copy of a USCIS Form, visit www.uscis.gov or call the National Customer Service Center at 1-800-375-5283.

USCIS to Reissue Advance Parole Documents

2010-01-28T10:37:00.000-08:00

WASHINGTON - U.S. Citizenship and Immigrations Services (USCIS) announced today that it will reissue Advance Parole documents (Form I-512) in response to documents that were mailed to applicants with an incorrect issue date of January 5, 1990. All affected documents have been identified and USCIS will automatically reissue documents to individuals who have received a document with the incorrect issue date.

All documents continue to be valid as the expiration dates remain accurate, therefore it is not necessary for applicants to contact USCIS regarding their pending application unless their application is outside the normal processing time of 90 days.

If you need to travel urgently and you have received a document with an invalid issue date, then you may travel using the incorrect document. U.S. Customs & Border Protection (CBP) has been alerted however, you may be questioned about the issuance date. Therefore, please print this explanation to share with CBP if necessary.

For more information on USCIS programs, visit www.uscis.gov or call the National Customer Service Center at 1-800-375-5283.

USCIS Update: USCIS Warns of Immigration Scams Targeting Haitian Applicants for Temporary Protected Status

2010-01-26T09:33:00.000-08:00

WASHINGTON—U.S. Citizenship and Immigration Services has announced that eligible Haitian nationals in the United States may file for Temporary Protected Status (TPS). Details and procedures for applying for TPS are available in the Federal Register notice published on January 21, 2010.

Please be aware that some unauthorized practitioners may try to take advantage of you by claiming they can file TPS forms. These same individuals may ask that you pay them to file such forms. We want to ensure that all potential TPS applicants know how to secure legitimate, accurate legal advice and assistance.

A list of accredited representatives and free or low-cost legal providers is available on the USCIS website under Resources/Finding Legal Advice. Please see our Fact Sheet, “USCIS Warns of Immigration Scams Targeting Haitian Applicants for Temporary Protected Status” for helpful tips and further information on how to protect yourself from becoming a victim of fraud. We hope you will use this resource.

Questions & Answers: Information for U.S. Citizens in the process of adopting a child from Haiti

2010-01-26T09:32:00.002-08:00

Introduction

On Jan. 12, 2010, Haiti experienced an earthquake of devastating proportions. This set of questions and answers provides information for United States citizens in the process of adopting a child from Haiti.

Questions and Answers

Q. I am in the process of adopting a child from Haiti, what can I do to bring the child to the United States?
A. Department of Homeland Security (DHS) Secretary Janet Napolitano has authorized the use of humanitarian parole for the following categories of orphans in Haiti:

Category 1 Cases

Description: Children being adopted by U.S. citizens prior to Jan. 12, 2010, who have been legally confirmed as orphans available for inter-country adoption by the Government of Haiti (GOH) through an adoption decree or custody grant to suitable U.S. citizen adoptive parents.

Required Criteria:

Evidence of availability for adoption MUST include at least one of the following:
- Full and final Haitian adoption decree; or
- GOH custody grant to prospective adoptive parents for emigration and adoption; or
- Secondary evidence in place of the above.
Evidence of suitability MUST include one of the following:
- Approved Form I-600A, Application for Advance Processing of an Orphan Petition; or
- Current FBI fingerprints and security background check; or
- Physical custody in Haiti plus a security background check.

Please note, some of the children in this category will receive immigrant visas and others will receive humanitarian parole, depending on the completeness of the cases. Those who enter with immigrant visas will enter as aliens lawfully admitted for permanent residence. Those who enter with humanitarian parole will need to have their immigration status finalized after arrival through an application for adjustment of status.

Category 2 Cases

Description: Children who have been identified by an adoption service provider or facilitator as eligible for intercountry adoption, were matched to prospective American adoptive parents prior to Jan. 12, 2010 and meet the below criteria.

Required Criteria:

Significant evidence of a relationship between the prospective adoptive parents and the child; AND of the parents' intention to complete the adoption, which could include the following:
- Proof of travel by the prospective adoptive parents to Haiti to visit the child;
- Photos of the child and prospective adoptive parents together;
- An Adoption Service Provider (ASP) "Acceptance of Referral" letter signed by the prospective adoptive parents;
- Documentary evidence that the prospective adoptive parents initiated the adoption process prior to Jan. 12, 2010, with intent to adopt the child (filed Form I-600A, Application for Advance Processing of an Orphan Petition, and/or Form I-600, Petition to Classify an Orphan as an Immediate Relative, completed a home study, located an ASP to work with in Haiti, etc.).
Evidence of the child's availability for adoption, which would include the following:
- IBESR (Haitian Adoption Authority) approval;
- Documentation of legal relinquishment or award of custody to the Haitian orphanage;
- Secondary evidence in place of the above.
Evidence of suitability MUST include one of the following:
- Approved Form I-600A, Application for Advance Processing of an Orphan Petition; or
- Current FBI fingerprints and security background check.

If the child you have adopted or are adopting meets these criteria, please send U.S. Citizenship and Immigration Services (USCIS) detailed information about the adoption case atHaitianAdoptions@dhs.gov. This e-mail address is dedicated to collecting information about adoption cases still pending in Haiti. Please include the name of the prospective adoptive parent in the subject line of the e-mail. Once we have your information, we will contact you with further information.

Q. If parole is authorized, how will my child get out of Haiti?
A. The Consular Section and USCIS Office is coordinating the arrival of children at the Embassy so that they are able to arrive safely. We urge families not to make individidual arrangements and to assist us in coordinating with the ophanages on the ground. Orphanage directors should wait to receive instructions either from the Embassy or USCIS Headquarters in Washington before taking their group of children to the Embassy for processing. Individuals or groups that appear at the Embassy without prior coordination may be turned away.

Q. If humanitarian parole is authorized, may I travel to pick up a specific child?
A. The Department of State (DOS) Travel Warning, urges U.S. citizens to avoid travel to Haiti. Communications and transportation in Haiti is extremely limited and nearly all available resources are dedicated to the immediate search and rescue of Haitians. Updates to the DOS travel warnings for Haiti are available online athttp://www.travel.state.gov/travel/cis_pa_tw/tw/tw_4632.html.

Once a child receives a visa or is authorized for humanitarian parole, we encourage you to work with your U.S. adoption agency and the orphanage staff in Haiti to identify an escort to bring the child to the United States.

Q. Many documents were destroyed in the earthquake. What kind of secondary evidence can be submitted in the place of primary documents?
A. Secondary evidence may include, but is not limited to, copies of records or correspondence referring to the existence of the destroyed or missing document, as maintained by an Adoption Service Provider or the prospective adoptive family, as well as affidavits of individuals with knowledge of the document or event.

Q. I am a prospective adoptive parent in the process of adopting a child in Haiti, but the adoption was not finalized prior to the earthquake. If DHS authorizes humanitarian parole for a child who was not legally adopted in Haiti, how will I obtain the legal authority to take the child into my home?
A: If you received an order from the Government of Haiti granting custody of the child to you, then the child may be paroled into your custody upon verification of the order, your identity and that of the child after the child's arrival in the United States.

If you have not received a formal order granting you custody from the Government of Haiti, then the child may be placed in your care but some additional procedures must be followed. These procedures are intended to protect children and ensure that those without final adoptions are placed with families that are able to care for them. These additional procedures may take a little time, but they are critical for keeping children safe. Children who cannot be placed with prospective adoptive parents will be well cared for. ORR has contracts with organizations around the country to care for unaccompanied children who are not U.S. citizens.

Whether you become a sponsor or not, you will need to adopt the child under the adoption laws of your place of residence in order for the child to acquire permanent residence in the United States.

Q. How do I request Humanitarian Parole for the child I am in the process of adopting?
A. If you want to request humanitarian parole for a specific child you are in the process of adopting from Haiti, please send the request to HaitianAdoptions@dhs.gov. Please include the name of the prospective adoptive parent in the subject line of the e-mail. You do not need to file Form I-131 or submit a fee for these cases.

Q. I am a prospective adoptive parent in the process of adopting a child from Haiti. What should I do if my Fingerprint Clearance has expired?
A. USCIS will review each prospective adoptive parent's request for humanitarian parole on a case-by-case basis. If we determine that your fingerprint clearance(s) has expired, you do not need to take any action. USCIS will electronically rerun your prints. (Please do not send a request for updated fingerprint to HaitianAdoptions@dhs.gov.) If you have not been fingerprinted by USCIS at any stage of your adoption process, please send an e-mail message to HaitianAdoptions@dhs.gov and we will arrange a fingerprint appointment for you. Please include "FP Request" in the subject line of the e-mail.

Q. Is there any other way I can help orphans in Haiti?
A. We understand that some Americans want to respond by offering to open their homes. We certainly appreciate this generous impulse, but note that it can be extremely difficult to determine whether children are truly orphans. Children may be temporarily separated from their parents or other family members, and their parents or other relatives may be looking for them. In the first instance, we believe it is most important to focus on re-uniting separated children with their relatives. Some individuals may wish to assist by contributing to a reputable relief or humanitarian organization working in that country. More information can be found at the following Web sites linked on the right:

Department of State
United States Agency for International Development (USAID)
International Committee of the Red Cross (ICRC)
Interaction

USCIS Update: Registration Begins for Temporary Protected Status to Haiti

2010-01-26T09:32:00.001-08:00

WASHINGTON - U.S. Citizenship and Immigration Services announced today that eligible Haitian nationals in the United States may begin the application process for Temporary Protected Status. Details and procedures for applying for TPS are provided in the Federal Register notice published today.

On Jan. 15, 2010, Secretary of Homeland Security Janet Napolitano designated TPS for eligible Haitian nationals as a result of the catastrophic earthquake that occurred in Haiti on Jan. 12, 2010.

The TPS designation for Haiti is effective today and will remain in effect through July 22, 2011. The designation means that eligible Haitian nationals will not be removed from the United States and will also be eligible to apply to work in the United States. The 180-day registration period for eligible Haitian nationals to apply for TPS begins today and will end on July 20, 2010.

The designation applies only to those Haitians who resided in the United States on or before Jan. 12, 2010; TPS will not be granted to Haitian nationals who entered the United States after Jan. 12, 2010.

Haiti joins El Salvador, Honduras, Nicaragua, Somalia, and Sudan as countries currently designated for TPS.

Questions & Answers: Filing Instructions for the E-2 CNMI Investor Classification

2010-01-26T08:23:00.000-08:00

Background

On May 8, 2008, President Bush signed into law Public Law 110-229, the Consolidated Natural Resources Act of 2008 (CNRA). Title VII of this law amended Pub. L. 94-241, the Act approving the Covenant to Establish a Commonwealth of the Northern Mariana Islands (CNMI) in Political Union with the United States. Title VII fully extends certain provisions of the immigration laws of the United States to the CNMI for the first time in history. The transition period for this change began November 28, 2009.

Under the CNRA, USCIS is establishing an E-2 CNMI Investor classification. This classification would allow foreign nationals who were admitted as long-term investors under the CNMI immigration laws a classification that allows them to remain in the CNMI through the transition period.

Questions and Answers

Q. Can I file for classification as an E-2 CNMI Investor now?

A. No. The E-2 CNMI Investor rule has not been finalized, so you cannot file for the E-2 CNMI Investor classification. All petitions filed seeking classification as an E-2 CNMI Investor will be returned to the petitioner until the final rule is published. The proposed rule was posted in the Federal Register on September 14, 2009 for a public comment period; that period is now closed.

Q. What is the purpose of the E-2 CNMI Investor Program?

A. The E-2 CNMI Investor Program will allow foreign nationals who were previously admitted to the CNMI under certain long-term CNMI investor classifications to obtain a transitional INA-based E-2 CNMI Investor classification. Thus, the E-2 CNMI Investor classification offers a lawful U.S. immigration status to foreign nationals who were previously admitted to the CNMI as long-term investors but are unable to establish eligibility for the regular E-2 investor classification.

Q. Will the E-2 CNMI Investor Program and classification be permanent?

A. No. The E-2 CNMI Investor Program is only in effect during the transition period which is currently scheduled to expire on December 31, 2014. E-2 CNMI Investor classification and visas will expire that day. The transition period may be extended by the Secretary of Homeland Security. Notification will be provided if that occurs.

Q. If I am in the CNMI now, do I have the option of filing for an E-2 Treaty Investor classification?

A. Yes. Federal immigration law took effect in the CNMI on November 28, 2009, so all nonimmigrant classifications available to nonimmigrants in the United States are now available for nonimmigrants in the CNMI. If you believe that you qualify for the E-2 Treaty Investor classification, you may proceed with the steps to obtain such classification. Please note: If you are currently present in the CNMI with a work permit based on CNMI law, you are required to process your E-2 classification at a consulate abroad as you do not currently have an INA-based classification from which you can change status.

USCIS Update: Registration Begins for Temporary Protected Status to Haiti

2010-01-22T09:15:00.001-08:00

On Jan. 15, 2010, Secretary of Homeland Security Janet Napolitano designated TPS for eligible Haitian nationals as a result of the catastrophic earthquake that occurred in Haiti on Jan. 12, 2010.

Haiti joins El Salvador, Honduras, Nicaragua, Somalia, and Sudan as countries currently designated for TPS.

Petition Filing and Processing Procedures for Form I-140, Immigrant Petition for Alien Worker

2010-01-22T08:58:00.000-08:00

Form I-140

The Form I-140, Immigrant Petition for Alien Worker, is used to petition U.S. Citizenship and Immigration Services (USCIS) to classify an alien beneficiary as eligible for an immigrant visa based on employment. The employer generally files the Form I-140 on behalf of the alien.

What steps can I take to ensure that my Form I-140 petition will not be rejected by USCIS?

Be sure to submit your Form I-140 petition with correct information and well-organized supporting documentation or your petition may be rejected or a final decision can be delayed.

Below are tips to ensure that your Form I-140 petition is accepted for processing:

Use the most current edition of the form, although older editions may be accepted.

Make sure you follow the instructions carefully in regards to which location to file your Form I-140 petition.

Select only one visa preference category in Part 2 of the Form I-140. (USCIS will reject the Form I-140 petition if Part 2 is left blank or when more than one visa preference category is selected in Part 2.)

Respond to all questions and provide information in all of the "answer" and "check" boxes. Please write "none" or "n/a" in an answer box if a question does not apply to you.

Print or type information using black ink only. Please do not "highlight" or "background shade" your entries.

Make sure the petitioner signs the Form I-140.

Include the correct fee specified in the form instructions. If you file the petition with other related applications for the alien beneficiary, attach the fee to the petition by paper clip or staple, and indicate the name of the applicant on the payment document (i.e., in the memo field).

Submit one check per application. If more than one petition or application is filed using a single check, and any of the forms are found to be improperly filed, ALL forms will be rejected.

Submit Form G-28, Notice of Entry of Appearance as Attorney or Representative, if applicable (with original signatures of both the representative and the applicant or petitioner).

For petitions that are filed electronically, send the supporting documentation to the address identified in the directions for e-filing. Do not submit any other paper-filed applications or petitions with the supporting documentation for the electronically filed I-140.

What if an incorrect visa category is selected in Part 2 of the Form I-140?

When USCIS creates the electronic record for the Form I-140 petition it will issue and mail a Form I-797 Receipt Notice to the petitioner or the Form G-28 representative. The receipt notice will indicate the visa category that the petitioner requested on Part 2 of their Form I-140. Make sure this category is correct. If it is not correct (i.e., in cases where either the petitioner or USCIS has made a clerical error), then immediately request a change in visa classification through the USCIS National Customer Service Center [1-800-375-5283, 1-800-767-1833 (TTY)] prior to the adjudication of the petition.

Although you may request a change of classification prior to adjudication to correct a clerical error in Part 2 of the form, the determination regarding whether to change the visa preference classification will be made by USCIS, based on the totality of the record. Denial of the I-140 based upon ineligibility for the visa preference category will result in denial of the Form I-485, Application to Register Permanent Residence or Adjust Status, if one was filed with the I-140. Requests for a change in visa preference category cannot be granted in petitions that have already been adjudicated. A post-adjudication alteration of the requested visa classification constitutes a material change in the petition and is prohibited.

What if the petitioner wants to request consideration of multiple visa categories on behalf of an alien beneficiary?

If you want to classify the alien beneficiary under multiple visa preference categories, file a separate Form I-140 petition, with the required fee and supporting documentation for each requested visa category.

What special steps should be taken to file a Form I-140 petition that requires a DOL-approved labor certification?

USCIS reviews Form I-140 petition filings in visa categories that require DOL-approved labor certification to verify that the petition is supported by a valid labor certification. In order to be valid at the time of filing of the Form I-140 petition, the labor certification must be submitted with the Form I-140 during the 180-day validity period annotated at the bottom of every page of the labor certification by DOL. Petitions that are not supported by a valid labor certification will be rejected.

Below are tips to help ensure that your Form I-140 petition that requires a DOL-approved labor certification is accepted for processing:

Package your Form I-140 with the Form G-28, if any, on top, followed by the form itself. Place the original labor certification directly under the I-140 petition, followed by the other supporting documentation.

In instances where the ending date of the labor certification's validity period expires on a Saturday, Sunday or legal holiday, petitions will be accepted with the labor certification on the next business day. Petitions filed with expired labor certifications filed after the next business day will be rejected.

DOL-approved labor certifications that are filed electronically with DOL must be signed by the employer, the agent/representative, and the alien beneficiary prior to submission with the I-140 petition. Form I-140 petitions will be rejected if filed with unsigned labor certifications. If an I-140 is inadvertently accepted with an unsigned labor certification, the petitioner will be issued a Request for Information (RFE) requesting the required signatures.

Place a brightly colored piece of paper directly under the Form I-140 petition requesting in large bold font a duplicate labor certification if you need one.

If the petition that is being filed is an amended petition and the original labor certification has already been submitted with another Form I-140 petition, place a brightly colored piece of paper directly under the petition that indicates in large bold font that the petition is an amended petition and that the labor certification has already been submitted. Also provide the receipt number of the previously filed petition, if available.

When filing my Form I-140, how should I organize the evidence with the petition?

The various categories of evidence provided in support of the petition should be grouped according to the area of eligibility that the category of evidence is seeking to establish.

Follow the tips below for how to organize your evidence:

Provide all required documentation and evidence with the petition when filed. Form I-140 petitions may be denied without issuing a request for evidence in the instances where the required evidence described in the instructions and regulations are not initially provided.

If providing photocopies of documents, please provide clear legible copies. (Note: Original DOL-approved labor certifications, signed by the petitioner, alien and representative, if any, must be submitted if they are required by the visa category.)

All foreign language documents must be submitted with a corresponding English translation. The English translation must be certified by a translator who is competent to translate and must verify in writing that "the translation is true and accurate to the best of the translator's abilities." It is helpful if the English translation is stapled to the foreign language document.

If the alien beneficiary may be entitled to an earlier priority date based on a previously approved Form I-140 petition, please provide a statement to that affect, along with a copy of the Form I-797 approval notice for the previous petition. (See 8 C.F.R. 204.5(e))

If documenting the alien's publications or citations of the alien beneficiary's work, please highlight the alien's name in the relevant articles. It is not necessary to send the full copy of a dissertation, thesis, or research paper written by the alien beneficiary, or one in which the alien beneficiary's work has been cited. Include the title page and the portion(s) that cite the alien's work and the "works cited" or bibliography.

Tab and label the evidentiary exhibits at the bottom of the first page of each exhibit, and provide a list of the evidentiary exhibits and the eligibility criteria that each exhibit is submitted to establish for petitions supported by a substantial amount of documentation. An exhibit that is being provided to meet multiple eligibility criteria should be so identified in the exhibit list.

In the case of:

E11, Alien of Extraordinary Ability petitions (Form I-140, Part 2. option a.)

Identify which of the ten regulatory criteria the alien is attempting to satisfy and the relevant evidence for each individual criterion.

Provide a statement and evidence that the alien beneficiary is coming to the U.S. to continue to be employed in his/her area of sustained national or international acclaim. (See 8 C.F.R. 204.5(h).)

E12, Outstanding Professor or Researcher petitions (Form I-140, Part 2. option b.)

Identify which of the six regulatory criteria the alien is attempting to satisfy and the relevant evidence for each individual criterion.

Provide evidence that the alien has at least three years of experience in teaching and/or research in the academic field.

Submit a copy of the petitioner's actual job offer issued to the alien beneficiary. This letter or contract must set forth the title, terms and conditions of the position offered.

Send documentation as outlined above for each position if the beneficiary has changed positions since s/he was initially hired. (See 8 C.F.R. 204.5(i).)

E13, Multinational Executive or Manager (Form I-140, Part 2. option c.)

Provide evidence and a cover letter that describes the name of the foreign employer, the position offered in the U.S., the position held abroad and the years of employment as well as the date the beneficiary transferred to the U.S. State the claimed relationship between the foreign employer and the U.S. petitioner, i.e. affiliates, subsidiary, joint venture etc.

Provide evidence that the U.S. employer has been doing business for at least one year prior to the filing of the petition. (See 8 C.F.R. 204.5(j).)

E21, Alien of Exceptional Ability (Form I-140, Part 2. option d. or i.)

Identify which of the six regulatory criteria the alien is attempting to satisfy and the relevant evidence for each individual criterion.

Provide evidence that the alien beneficiary meets the minimum education and experience requirements specified in the supporting labor certification if filing under Form I-140 Part 2. option d. (See 8 C.F.R. 204.5(k)(3).)

E21, Member of the Professions Holding an Advance Degree or an Alien of Exceptional Ability, requesting a National Interest Waiver (Form I-140, Part 2. option i.)

Identify how the alien qualifies for classification as a member of the professions with an advanced degree (e.g. the alien holds an advanced degree, the alien holds a Bachelor's degree in addition to five years of progressive experience, or the alien qualifies as an alien of exceptional ability).

Identify each of the three criteria (e.g. intrinsic merit, national scope, and national interest) that must be satisfied and provide the evidence needed to satisfy each criteria. (See 8 C.F.R. 204.5(k) and Matter of New York State Department of Transportation (NYSDOT), 22 I&N Dec. 3363, Int. Dec. 3363 (Act. Assoc. Comm. 1998).

How can a petitioner request the withdrawal of a Form I-140 petition?

The petitioner or the Form G-28 representative may send a letter requesting to withdraw the I-140 petition to USCIS (See Question #10 regarding the submission of a petition withdrawal request).

Withdrawal requests should include:

A statement indicating that the Form I-140 petitioner wishes to withdraw the petition;

The Form I-140 petition receipt number;

The name, address and phone number of the petitioner;

The name of the alien beneficiary;

The alien registration number of the alien beneficiary, if known;

The petitioner's signature or the Form G-28 representative.

Who is eligible to submit a request to change employers under INA 204(j), which is commonly known as "porting" under INA 204(j)?

An alien beneficiary of a pending or approved Form I-140 petition whose application for adjustment of status (Form I-485) has been filed and remains un-adjudicated for 180 days or more and who seeks to change jobs to a new job that is the same or similar occupational classification may submit a request to "port" under AC21.

Note: Determinations of eligibility for INA §204(j) portability are made within the adjudication of Form I-485 applications and not the adjudication of Form I-140 petitions.

How can an alien beneficiary submit a request to change employers under INA 204(j)?

An alien beneficiary may supplement the Form I-485 record of proceeding with documentation relating to the new job offer that forms the basis of the INA §204(j) portability request. The alien beneficiary or the Form G-28 representative for the Form I-485 application must send a letter from the new intended permanent employer specifying the job title and duties of the offered position, the minimum educational or training requirements, the date the alien beneficiary began (or will begin) employment and the offered salary or wage. The letter must be issued and signed by the appropriate authority within the new employer's organization who is authorized to make or confirm an offer of permanent employment. In addition, a copy of the Form I-140 approval notice or receipt notice and a copy of the Form I-485 receipt notice should be provided to locate the alien's beneficiary's case file and to confirm that the application has been pending for at least 180 days.

May an alien beneficiary request to "port" to a different employer or job under INA 204(j) if his or her Form I-140 petition is still pending?

Yes, an alien beneficiary may request to change employers under INA 204(j) while the Form I-140 petition is pending, as long as his or her Form I-485 adjustment application has been pending for at least 180 days. However, in order for the Form I-140 petition to "remain valid" for INA §204(j) purposes, it must be determined that the petition was "valid" when filed, i.e., that the I-140 petition was filed on behalf of an alien who was entitled to the employment-based classification and that the petition contained a valid job offer at the time that the petition was filed. Therefore, the petition must be approved prior to a favorable determination regarding a portability request made under INA §204(j).

Guidance on the adjudication of requests to change employers (or jobs) under INA §204(j) was published in USCIS's December 27, 2005 memorandum entitled, Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313). This memo specifically dealt with how USCIS processes unapproved I-140 petitions that were concurrently filed with I-485 applications in the portability context. If evidence is submitted to USCIS that an alien seeks to adjust on the basis of a new job offer under INA 204(j), then, the adjudicator will first determine if the alien is the beneficiary of an approved I-140 petition. If he or she is not, the adjudicator will proceed to determine whether the unapproved, pending I-140 wasapprovable when filed (this may involve issuance of an RFE if the I-140 cannot be approved without further evidence of its merits). Then, only if the I-140 can be approved, the adjudicator will adjudicate the adjustment of status application and also determine if the new position is the same or similar for I-140 portability purposes.

Where do I mail Form I-140 petition withdrawal requests and AC21 106(c) portability requests?

The Texas Service Center (TSC) and the Nebraska Service Center (NSC) have established a dedicated U.S. Post Office Box for the submission of:

Form I-140 petition withdrawal requests, and;

AC21 106(c) portability requests.

The use of the Post Office Box addresses is limited to the submission of Form I-140 petition withdrawal requests and AC21 portability requests. The submission of correspondence that is unrelated to this will be sent to the Service Center's General Correspondence Unit.

If the Submission is...	For a...	Then the Submission should be Mailed to...
A Form I-140 Withdrawal Request	Form I-140 Petition that is pending or was approved at the TSC	USCIS Texas Service Center PO Box 851745 Mesquite, TX 75185
A Form I-140 Withdrawal Request	Form I-140 Petition that was approved at the Vermont Service Center (VSC)
An AC21 106(c) Portability Request	Form I-485 Application that is pending at the TSC
A Form I-140 Withdrawal Request	Form I-140 Petition that is pending or was approved at the NSC	USCIS Nebraska Service Center P.O. Box 87105 Lincoln, NE 68501-7105
A Form I-140 Withdrawal Request	Form I-140 Petition that was approved at the California Service Center
An AC21 106(c) Portability Request	Form I-485 Application that is pending at the NSC
Unrelated to a Form I-140 Withdrawal Request or an AC21 106(c) Request		An address other than the addresses noted above. Please go to the Related Links to determine the correct USCIS mailing address.

How can a successor employer establish a successor-in-interest (SII) relationship with a predecessor employer in order to use that employer's approved labor certification when filing an I-140 petition on behalf of the alien beneficiary named on the labor certification?

On August 6, 2009, USCIS issued a memorandum, entitled

"Successor-in-Interest Determinations in Adjudication of Form I-140 Petitions; Adjudicators Field Manual ("AFM") Update to Chapter 22.2(b)(5)" which amended the Adjudicator's Field Manual guidance on factors for making successor-in-interest (SII) determinations in the adjudication of Form I-140, Immigrant Petition for Alien Worker. This memorandum also superseded all previously issued policy guidance on SII relationship determinations for Form I-140 purposes. This updated guidance is intended to allow flexibility in the adjudication of I-140 petitions that present novel, yet substantiated and legitimate SII scenarios.

Per the memo, the following factors noted below will determine whether a valid SII exists:

Three Successor-In-Interest Factors

The job opportunity offered by the successor must be the same as the job opportunity originally offered on the labor certification;
The successor bears the burden of proof to establish eligibility in all respects, including the provision of required evidence from the predecessor entity, such as evidence of the predecessor's ability to pay the proffered wage, as of the date of filing of the labor certification with DOL, and;
For a valid successor-in-interest relationship to exist between the successor and the predecessor that filed the labor certification, the petitioner must fully describe and document the transfer and assumption of the ownership of the predecessor by the successor.

To which I-140 visa classifications does the SII guidance apply?

The SII guidance only applies to I-140 visa classifications that require a job offer, do not have classification-specific eligibility requirements for petitioners, and must be supported by a DOL-approved individual labor certification. Note: The SII guidance does not apply in cases where the Form I-140 petition is the basis for a portability claim under INA 204(j), as no new successor Form I-140 petition is required as part of the INA 204(j) determination.

The following table outlines which visa classifications that the SII guidance applies to.

Class/Subcategory	Does SII Guidance Apply?	If Not, Why?
E11, Alien of Extraordinary Ability	No	The E11 visa classification does not require a job offer.
E12, Outstanding Professor or Researcher	No	The E12 visa classification has classification-specific eligibility requirements for petitioners, i.e. the petitioning employer must be shown to be an institution of higher learning or a private research firm that employs at least 3 full-time researchers. [See 8 CFR 204.5(i).] Also, no individual labor certification is required.
E13, Multinational Manager or Executive	No	The E13 visa classification has classification-specific eligibility requirements for petitioners, i.e. the entity must be "multi-national, and have a qualifying relationship with the foreign entity which employed the alien abroad. [See 8 CFR 204.5(j).] Also, no individual labor certification is required.
E21, Advanced Degree Alien or Alien of Exceptional Ability, with Individual Labor Certification	Yes	N/A
E21, NIW	No	The E21 - NIW visa classification does not require a job offer nor a labor certification.
E21 or "EB3", Schedule A, Group I or II	No	The Schedule A classification subcategories have specific requirements for the job offered by the petitioner which must occur prior to the filing of each petition with USCIS. [See 20 CFR 656.]
E32, Professional	Yes	N/A
E31, Skilled Worker	Yes	N/A
EW3, Other Worker	Yes	N/A

Does the SII guidance impact the ability of an alien beneficiary to retain the priority date established in a previously approved Form I-140 petition under 8 CFR 204.5(e)?

Generally, the alien beneficiary in an SII case may retain the priority date of the predecessor's approved Form I-140 petition, if any. Also it is important to note that an alien beneficiary of an approved petition may be able to retain the priority date from the previously approved petition even if an SII relationship is not established by a company as result of an acquisition, merger, etc. However, the resultant company must test the labor market anew through the labor certification process, obtain a DOL-approved labor certification and then file a new Form I-140 petition on the alien beneficiary's behalf. A copy of the approval notice for the previously filed petition, or an annotation on the new petition noting the receipt number of the previously filed petition should be provided if an alien beneficiary seeks to retain the priority date of the prior I-140 petition.

Generally, an alien beneficiary may also retain the priority date established by an approved E12 or E13 petition for subsequent petitions filed in his or her behalf by a new employer in the E12 or E13 categories.

Is the SII analysis adversely impacted if the job title for the position with the successor company differs from the job title noted in the predecessor company's labor certification?

When determining whether the job opportunity is the same as the job opportunity originally offered on the labor certification, adjudicators will examine the job duties of the position to determine if the job is still the same. Changes in job title, and other ancillary changes such as a change in computer software used in the job are not in and of themselves disallowed. Further, changes in the wage offered due to wage increases that have occurred over the passage of time do not impact the determination as to whether the job is the same.

How can a successor employer request consolidated processing of SII cases as outlined in the SII memo?

A request for consolidated processing of SII cases should be directed to the National Customer Service Center (NCSC). The NCSC will forward the request to the appropriate service center(s) for a decision, which should be received within 30 days of the request. The center director(s) will determine if the consolidated processing request can be granted based upon whether such a request would adversely impact the service center's ability to timely address other pressing work priorities.

Last updated:01/20/2010

Papeles falsos

2010-01-20T15:46:00.000-08:00

El usuario identificado con el nombre de 'tito' preguntó: "Soy Venezolano. Llegué a Estados Unidos en septiembre de 1999 con una visa de turista (B1/B2). En octubre de 2006 me casé con una ciudadana estadounidense, vivo con ella y estoy en proceso de sacar la residencia permanente".

"Ya recibí el permiso de trabajo y la tarjeta del Seguro Social, y tuve la entrevista con el agente de inmigración. Fuimos los dos, mi esposa y yo, pero se programó otra cita porque yo no llevé a una persona que me tradujera en inglés".

"Ahora el problema es que al salir de la cita el agente de inmigración le preguntó a mi esposa en qué trabaja yo, y ella respondió que yo estaba estudiando en las mañanas y que en las tardes me dedica a trabajos de cortar pasto, pintar o lavar carros. Entonces el agente de inmigración le respondió que él sospechaba que yo había trabajado con papeles falsos y que por favor para la próxima cita llevara los papeles falsos con que había trabajado y que no iba a hacerme nada".

El abogado Gonzalez respondió: "Hay un gran peligro en su caso, porque lo pueden acusar de ocupar o usar documentos fraudulentos. Pero la única manera de que el servicio de inmigración se vaya a enterar (de que existe algo anómalo en su caso) es si ustedes mismos le entregan los documentos falsos a la agencia federal".

"El haber trabajado ilegalmente no es ningún problema porque hay un perdón automático para los familiares inmediatos por haber estado o trabajado sin papeles, que son por ejemplo los cónyuges de ciudadanos americanos".

La ley 300

2010-01-20T15:44:00.000-08:00

La usuaria identificada con el nombre de 'Sutanita' preguntó: "Me urge saber si es posible que mi maestra me adopte. Estoy a tres meses de cumplir 18 años. Entré a Estados Unidos con visa de turista, que ya está vencida".

"Estoy a punto de graduarme de la escuela secundaria (High School) y me ofrecen muchas becas, pero no puedo tomar ninguna por la falta de papeles, ni ingresar a un colegio o una universidad a causa de la Ley 300 aprobada en Arizona".

"Quiero saber si todavía es posible ser adoptada por mi maestra. Estoy abierta a cualquier posibilidad".

El abogado Gonzalez respondió: "El problema es que para obtener un beneficio de inmigración, por ejemplo a través de una adopción, esta tiene que ocurrir antes de los 16 años y si usted ya tiene 18 años. Es imposible obtener un beneficio de inmigración a través de a adopción".

"Le recomiendo que espere un cambio en la ley o que busquemos otra alternativa, como la petición de algún familiar".

Nota del editor:
La Ley 300 fue aprobada por los electores del estado de Arizona en los comicios de medio tiempo del 7 de noviembre de 2006.

La ley exige que los estudiantes indocumentados sean clasificados como residentes de otro estado o extranjeros a la hora de pagar su matrícula en colegios y universidades estatales, y es prohibido que recibir asistencia financiera.

La medida afecta a estudiantes que no cuentan con un número de seguro social aunque tengan excelentes calificaciones, se hayan graduado de una escuela secundaria local o lleven años viviendo en el estado.

La iniciativa 300 amplía el alcance de la ley 200 aprobada por los votantes en 2004 y niega algunos servicios públicos financiados por el estado a los inmigrantes indocumentados.

También obliga a los empleados de estas dependencias públicas a informar ante el servicio de inmigración a los indocumentados que acudan a solicitar ayuda. Los inmigrantes que sean denunciados quedan expuestos a ser deportados de Estados Unidos.

La norma también niega ayuda a los inmigrantes indocumentados para el cuidado de menores, a pesar de que sus hijos puedan ser ciudadanos estadounidenses, y niega el acceso a los indocumentados a programas de educación para adultos.

Pida perdón

2010-01-20T15:37:00.000-08:00

La usuaria identificada con el nombre de 'Fulanita' preguntó: "En 2002 me negaron la visa de estudiante, en México. Me dijeron que mi documentación era falsa. No se si esto me afectará ahora que mi esposo, ciudadano estadounidense, me está pidiendo".

"¿Qué tipo y cantidad de documentos tengo que llevar a la cita en el Consulado de Estados Unidos en Ciudad Juárez? Desde que me casé vivo en México. Nunca he entrado de forma ilegal a Estados Unidos y la Cónsul que me atendió me dijo que esperara un año y lo intentara de nuevo".

"Pero tengo miedo que eso me salga (el rechazo de la visa de estudiante) cuando me tomen las huellas. Cuando fui al Consulado sólo me tomaron la huella digital del dedo índice, como lo hacen con todo el mundo. Y problemas en Estados Unidos no tengo, pues nunca he estado allá".

"¿Tengo alguna posibilidad de que me den la visa o de plano me la negarán? Y si me la niegan ¿tengo derecho a un perdón o algo así?"

El abogado Gonzalez respondió: "Claro que tiene posibilidades de que le aprueben la visa ahora que su esposo ciudadano estadounidense la ha pedido. Pero sí tiene razón en que le pueden poner un cargo de fraude por lo que le ocurrió anteriormente, en el año 2002".

"Si esto ocurre, se puede pedir al Cónsul que le de la oportunidad de presentar un perdón que se tramita por medio del formulario I-601. Estos perdones no son fáciles de ganar. Pero no hay peor guerra que la que no se hace".

Rivera explicó que hay 3 tipos de inmigrantes que necesitan pedir un perdón si han cometido faltas o delitos, y piensan solicitar la residencia o algún otro beneficio inmigratorio.

Ellos son: Quienes están en proceso de hacerse residentes, los extranjeros que piden una visa de turismo o de residencia en una embajada y aquellos residentes que el servicio de inmigración ha puesto en proceso de deportación después de un arresto, un viaje, renovar su residencia o solicitar la ciudadanía.

El perdón se pide por medio del Formulario I-601 que tiene un costo de 265.00 dólares, y a partir del 30 de julio costará $545.00 Dolares.

No se trata de un perdón automático que se logra una vez presentado el formulario. Rivera advirtió que es un proceso difícil, "puesto ellos deciden si lo dan", subrayó.

La mayoría de los perdones son denegados, "pero siempre se puede apelar", añadió.

En cuanto a las apelaciones, a partir del 30 de julio cada recurso tendrá un costo de $585.00 Dolares, según indica el nuevo listado de tarifas de la Oficina de Ciudadanía y Servicios de Inmigración (USCIS).

El incremento de 52 por ciento al Formulario I-290B significa que el sólo hecho de pedir la revisión de un caso, en inmigrante tendrá un costo en efectivo para poder realizarlo.

"Significa que se le va a hacer más difícil al inmigrante obtener justicia", comentó el abogado Luis Salgado, en Washington.

Rivera recomendó a los inmigrantes que, antes de dar un paso consulten con un abogado de inmigración, porque un error puede significar perder sus derechos en Estados Unidos.

Tarifas por las nubes

2010-01-20T15:32:00.000-08:00

El padre de Fulano se hizo ciudadano de Estados Unidos, está pidiendo a su hijo pero no sabe si sus nietos entran dentro de la misma solicitud.

'Morenita', en cambio, quiere saber si un error cometido en el Consulado en 2002 afectará su trámite de residencia ahora que se casó con un ciudadano estadounidense.

Estos y otros temas fueron motivo de consulta.

Aumento de precios

El usuario identificado con el nombre de 'Fulano' preguntó: "Hace un año me negaron la residencia. Mi papá me estaba arreglando. Él acaba de hacerse ciudadano de Estados Unidos. Yo tengo 38 años, dos hijos y mi esposa. ¿Qué formulario es el que debe someter mi papá para poderme pedir? ¿Y pueden entrar -en esa petición- mis hijos que son menores de edad y mi esposa? ¿Cuánto cuestan los formularios?"

El abogado Gonzalez respondió: "El formulario que se ocupa –para este tipo de trámites- es el I-130, que corresponde a la petición (de un) familiar".

"(Ese formulario) tiene un valor de $190 y dentro de la petición por usted están automáticamente incluidos su esposa e hijos menores de 21 años de edad".

"Le recomiendo que presente la petición lo antes posible porque las tarifas del servicio de inmigración aumentarán proximamente".

Nota del editor:
El 30 de julio entran en vigor nuevas tarifas en el servicio de inmigración de Estados Unidos.

La solicitud de petición familiar (Formulario I-130) subirá de $190 a $355, mientras que la petición de ciudadanía (Formulario N-400), subirá de $330 a 675 dólares, sin incluir el pago de toma de huellas digitales y fotografía.

A su vez, el costo para la residencia permanente aumentará de $395 a $1,010 (incluyendo huellas y fotografía digital), todo esto como parte de un aumento general de beneficios de inmigración que, según el gobierno, tiene como fin cubrir los costos de operación y proceso de la USCIS y reducir los casos atrasados.

Otras alzan sensibles afectan el trámite de la remoción de condiciones de un residente (Formulario I-829), de $475 a $2,930, la petición de ciudadanía (Formulario N-400), de $330 a $675, y el costo de las apelaciones (Formulario I-290B), de $385 a $585.

Estas tarifas no incluyen los $80 dólares exigidos por el gobierno para la toma de datos biométricos (huellas dactilares y fotografía).

Tampoco incluyen los servicios de abogados que ayudan a preparar las solicitudes.

The Many Ways Illegal Immigrants are Discriminated Against

2010-01-20T09:56:00.000-08:00

Every state in the U.S. has a kaleidoscope of cultures present largely due to the influx of immigrants over a vast period of time. While many have settled in the country through legal means, there is a large population that has entered illegally or has overstayed their visa permits and has no plans to return to the country of origin. California is reputed to be the home for the largest population of immigrants both legal and illegal. This is largely due to the size of the state and also due to its proximity to Mexico. So, it is no surprise that Mexicans are the largest group of immigrants in California.

The issue of illegal alien is causing problems not only to the states in which they live, but also to the legal immigrants who face numerous difficulties including discrimination. In a case of unavoidable stereotyping, any Mexican in California is considered to be an illegal immigrant simply because the numbers of illegal Mexicans in the state is huge. Even the police are subject to harassment charges when they flag down cars driven by Mexicans in an effort to enforce the law. Similarly, Middle Eastern Americans have been discriminated against ever since the September 11th attack. The discrimination is based on appearance as well as religion, in this case Islam.

This problem cannot be solved until a workable and sustainable immigration law is developed and passed, also until people living in the U. S. realize that immigrants may come in all shapes, colors, and sizes but everyone of them is a human being as them and should be treated as such.

Illegal Immigrants Could Bring Legal Costs

2010-01-20T09:50:00.000-08:00

United States of America's illegal immigration mess keeps growing by the minute. Recently, a Houston-based company paid over $1.5 million in fines and three of the company’s managers where arrested for “guilty of harboring an illegal immigrant”. The U.S. Immigration and Customs Enforcement Agency (ICE) has stepped up operations to ensure that businesses do not abuse illegal workers. If businesses are diligent during the hiring process as well as with current employees, they can stay out of unnecessary cost and trouble.

New hires have to have a completed I-9 Form. Discrimination is an issue, so employers should take special care in the way they treat and check up on employees, future and present. For example in the I-9 Form, the applicant must be told that they need “either one form of documentation from column A or one each from columns B and C”. The employer cannot ask the applicant to produce documentation based on ethnicity. Neither can they ask for any form of identification, since this is not part of the I-9’s instructions.

However, the Social Security Number provided on the form can be verified using the free E-Verify service. But then, there is a catch.

Employers cannot verify SSN’s of current employees based on suspicion. Instead, they must run an SSN check on all current employees. This is done to avoid discrimination or wrongful termination claims and is part of the I-9’s guidelines.

To stay clear of the immigration mess, seek the help of an expert. The legal mess you or your business could get into is easily avoidable.

Immigration Bail Bond

2010-01-20T09:45:00.000-08:00

A person detained for immigration purposes is kept in a cell for a certain period of time. These person often needs representation to help him/her through the process so him/her can either get back to work at the very least. There are firms out there who can help people gain their freedom through the bond process. It is always helpful when the firms have a bilingual nature or personnel and work on a nationwide basis.

A company which has no application fee when you apply for immigrant bail bond is certainly the way to go. Some firms who deal with immigration bail bonds require a two-year renewal fee. There are legal grounds on which it can be said that such a fee is not justified. If you are an employer of a person who has been arrested due to their immigration status, you do have the legal standing to help them through the immigration bond process if you want to do so. In many situations, ICE may get involved and this in particular may be a good time for an employer to help their employee work their way through immigration barriers and questions regarding the legality of a work visa.

The company which assists with your immigration bail needs to be well-versed when it comes to both state and federal immigration laws. The fact of the matter is that a federal immigration bail bond is quite different from a state immigration bail bond due to the fact that there are performance requirements attached to the federal bond process.

Do Illegal Aliens Receive Social Security Benefits?

2010-01-20T09:38:00.000-08:00

Many people believe that illegal immigrants or undocumented workers receive social security benefits. That is false. Talk show hosts such as Rush Limbaugh and Michael Savage not only seem to be part of spreading the untrue piece of information, it also leads to the message being passed around by word of mouth, via emails and online petitions.

Illegal immigrants apparently get in on the Social Security’s administrative system and receive benefits. Not true. Undocumented workers will never be entitled to claim social security benefits. Illegal immigrants are known to provide false social security numbers in order to prove they are documented workers, thus giving them to chance to start working. In October 2005, the earnings on which workers contribute towards Social Security racked up $520 billion.

However, some people still seem to believe that illegal immigrants are entitled to Social Security benefits. One fact that probably pushed the rumour is the vote in 2006 for an amendment to immigration reform laws. Even though the amendment was passed by Senate with a 50-49 vote, the bill died and there ended the amendment. Therefore, the truth is that illegal immigrants will only have a right to Social Security once they are granted amnesty, and when that does happen, they will have a right to Social Security benefits for prior work done in the country.

Undocumented workers also contribute towards Social Security taxes - the figure stands at a surprising $6 billion annually. The National Immigration Law Center says the money is directed towards the Earnings Suspense File, which is a repository for Social Security taxes which are paid by illegal immigrants who have either used false identities, forged document or incorrect Social Security numbers.

Secretary Napolitano Announces Streamlined Citizenship Application Process For Members Of The Military

2010-01-20T09:35:00.000-08:00

Department of Homeland Security (DHS) Secretary Janet Napolitano today announced the publication of a rule formalizing DHS' longstanding policy to expedite and streamline the citizenship process for men and women bravely serving in America's armed forces.

"The foundation of our national security is the patriotic service and extraordinary sacrifices made by the men and women of our armed forces," said Secretary Napolitano. "Expediting the citizenship process for service members reflects our commitment to honoring those who come from all over the world to serve our country and become its newest citizens."

The rule amends DHS regulations to conform to the National Defense Authorization Act of 2004, reducing the time requirements for naturalization through military service from three years to one year for applicants who served during peacetime, and extending benefits to members of the Selected Reserve of the Ready Reserve of the U.S. Armed Forces. Service members who have served honorably in an active-duty status or in the Selected Reserve of the Ready Reserve for any time since Sept. 11, 2001, can file immediately for citizenship.

The rule also eliminates the requirement for members of the military to file biographic information forms (Form G-325B) with their naturalization applications-removing administrative redundancy and increasing efficiency for those who risk their lives for the nation’s security.

For more information on USCIS and its programs available to the military, visit the Related Link on the right.

Catholic Legal Services help hundreds of Haitians with immigration papers

2010-01-19T09:03:00.000-08:00

Catholic Legal Services help hundreds of Haitians with immigration papers

BY ALFONSO CHARDY CRLINE ACHARDY@MIAMIHERALD.COM

ACHARDY@MIAMIHERALD.COM

Hundreds of undocumented Haitian immigrants crowded inside Notre Dame D'Haiti Catholic Church on Monday morning for help in filing applications for Temporary Protected Status, or TPS, a federal immigration program that will allow them to remain legally in the United States and obtain work permits.

A work permit was the priority for many of the more than 500 people who rushed into the church in Little Haiti seeking to file for TPS. Those interviewed at the church said they need jobs to send money to surviving or injured relatives back home, so they can rebuild their lives.

``My house in Port-au-Prince collapsed during the earthquake,'' said Jacques Claudore Deravil, 50, one of the Haitians seeking TPS at the church in Little Haiti. ``I need to work to send money to my wife and children who have been sleeping in the streets since the earthquake.''

Church officials set up an office at the church, 110 NE 62nd Street, to help Haitian immigrants at no charge with the federal TPS application process.

Though Catholic Legal Services is helping Haitian migrants fill out TPS forms for free, the migrants still have to pay the TPS filing fee plus fees for fingerprints and work permits: a total of almost $500. The TPS-related work permit is $340, the TPS filing fee is $50 and the fingerprint fee is $80.

Those who cannot afford to pay can file a separate form requesting a fee waiver. But Randolph McGrorty, executive director of the Archdiocese of Miami's Catholic Legal Services, said he is advising Haitian migrants to pay if they can because asking for a waiver will delay delivery of the TPS status and the work permit.

``Anyone who can get together the fees we are telling them to go head and do it because it will make the process go more quickly,'' said McGrorty. ``Obviously it's a lot of money.''

For now, McGrorty said, Catholic Legal Services staffers are mainly explaining the TPS process to all those who show up. If they have their paperwork ready, staffers fill out the TPS forms. If not, they have to return at a later date. McGrorty said U.S. Citizenship and Immigration Services, the Homeland Security agency that will process the permits, is not yet prepared to accept applications.

Catholic officials will be at the Little Haiti church from 9 a.m. to 5 p.m. for the rest of the week and later Catholic Legal Services plans to open additional TPS clinics elsewhere in South Florida, said McGrorty.

Catholic Legal Services will also assist TPS applicants at its main office, 150 SE 2nd Avenue, Suite 200, Miami, from 9 a.m.-5 p.m. daily. The office, however, was closed Monday due to the Martin Luther King holiday.

U.S. Citizenship and Immigration Services, a federal agency, will process the large number of applications expected from more than 30,000 undocumented Haitians estimated nationwide -- the majority in South Florida.

The Obama administration announced Friday it would grant TPS to undocumented Haitians who were present in the United States as of Jan. 12 -- the day of the catastropic earthquake that left large portions of Port-au-Prince and other cities in ruins, killing tens of thousands of people.

Those who might arrive after Jan. 12 will be repatriated to Haiti, officials said -- though all deportations to Haiti are suspended for now. While shielded from deportation, Haitian TPS holders cannot become permanent U.S. residents or U.S. citizens. TPS does not provide a path to a green card.

For now, a work permit to land an immediate job is the priority for undocumented Haitian migrants so they can start sending money home to help their families.

``My wife was injured in the earthquake and I need to send money to her to help,'' said Jean Mon, 62, who was at the Little Haiti church asking for TPS.

Homeland Security Department Secretary Janet Napolitano said in a statement that the TPS designation was part of the administration's effort to support Haiti's recovery following ``a disaster of historic proportions.''

But she also made it a point to discourage Haitians from leaving the country -- a sign the administration would crack down on illegal immigration.

TPS will enable the Haitians without legal immigration status to remain here legally for 18 months.

TPS is granted to selected immigrants in the United States who cannot safely return to their homelands because of natural disasters, armed conflicts or other emergencies. Those eligible are allowed to remain here, obtain work permits and temporary stays for specific periods -- a status often renewed indefinitely.

In addition to Haiti, the Department of Homeland Security has designated citizens from El Salvador, Honduras, Nicaragua, Somalia and Sudan eligible for TPS.

Oversight Committee Hearing on the 'Diversity Visa Program'

2010-01-19T09:01:00.000-08:00

Because of the overwhelming role family connections play in current immigration law, most newcomers to the United States tend to come from a handful of countries, mostly in Latin America and Asia. In 1986 and again in 1990, Congress used this lack of immigrant diversity as a pretext for re-embracing the spirit of the discredited national origins quotas, in the form of a "diversity lottery."

Originally devised as a means of amnestying Irish illegal aliens, the program continues even in the absence of any more Irish illegals -- in fact, Ireland is now a country of immigration for the first time in centuries. Nonetheless, the lottery (as often happens with government programs) has taken on a life of its own. It has evolved over the years, and now offers 50,000 visas per year to people from "underrepresented" countries, i.e., all the nations of the world other than the top sending countries.¹ In practice, this means that most visa lottery winners come from the Islamic world, Eastern Europe, and sub-Saharan Africa; in the results of the FY 2005 lottery,² announced in June 2004, Ireland fell to 60^th place, behind Kyrgyzstan, and in FY 2003 only 120 people from Ireland ended up actually getting green cards via the lottery.

It's long past time to get rid of the lottery. Here's why:

No Actual Diversity. Despite the moniker, the lottery has done nothing to diversify the immigrant flow. In FY 2003, the top ten immigrant-sending countries were the source of more than half of that year's total legal immigration, almost exactly the same percentage as ten years earlier. In fact, taken as a whole, the nation's total immigrant population (legal and illegal) has actually become less diverse during the course of the lottery; a recent analysis of Census data by the Center for Immigration Studies found that from 1990 to 2000, Mexicans went from 22 percent of all immigrants to 30 percent, while immigrants from all of Spanish-speaking Latin America combined went from 37 to 46 percent of the total foreign-born population.³

Truly diversifying immigration would entail one of two things: huge reductions in immigration from Mexico, or huge increases in immigration from everywhere else. The lottery as it exists simply cannot do what it purports to.

Inadequate Requirements. Flawed as it is, the lottery might appear more plausible if it took the 50,000 most qualified people among the millions who apply. But instead, the requirements for entry are so low as to be meaningless -- they do nothing to ensure that applicants have skills that a modern economy needs. Applicants must have (or lie about having; see below) either a high school education or equivalent, or "two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform." The Labor Department's Occupational Information Network (online.onetcenter.org) lists the jobs that fall under this convoluted formulation, including many that are hardly the supposed "jobs Americans won't do": travel agents, insurance agents, restaurant hostesses, actors, "Mental Health and Substance Abuse Social Workers," "Caption Writers," "Title Examiners and Abstractors," and "Costume Attendants." Many lesser-skilled individuals can also qualify in jobs such as Recreation Worker, Pipe Fitter, Baker, or Computer Operator.

Rampant Fraud. Even this low threshold for participation assumes, of course, that the credentials presented are valid. Given the countries that lottery applicants are coming from, this is unlikely, to say the least. The two most corrupt nations in the world, according to Transparency International's Corruption Perceptions Index 2004⁴, are Bangladesh and Nigeria -- which are also perennially among the top-ten lottery winners.

State Department records from 1996 (we can't get more recent numbers for most countries) show that lottery winners are even more likely than other immigration applicants to be refused a visa due to fraud. Among the top ten nations in the FY 2005 lottery, diversity visa refusal rates from 1996 were as follows: Poland 24%, Ethiopia 38%, Bangladesh 44%, Egypt 46%, Ghana 62%, and, Nigeria 80%.⁵ And last year, the State Department's Deputy Inspector General testified before this subcommittee that the refusal rate for lottery visa applicants in Bangladesh had climbed to a whopping 85%.⁶ And these rates would be even higher but for the State Department's laxity with regard to fraud in the visa process. Apart from the general prevalence of fraud in these countries, the lottery itself is a problem, since it invites applications from almost anyone, and only requires them to show they qualify after they are selected, prompting a mad rush for bogus documents once the winners are notified.

Even if the fraud is detected in the limited amount of time consular officers have to investigate the applications, there is no punishment imposed, other than disqualification for that particular year. Anyone found out is welcome to try to cheat again in future years.

Now, corrupt Third World countries are precisely the places that people want to get out of, so it makes sense that that's where the demand for immigration comes from. But this poses enormous problems for a modern system of regulation that attempts to apply even the most minimal of documentary or paper-based requirements.

Security Threat. Of course, fraud is bad enough when people lie about their education or work experience. But after 9/11, immigration fraud of any kind poses a dire security threat. First of all, weeding out fraudulent lottery applications, and even processing legitimate ones, is a diversion for an agency that's supposed to be identifying terrorists among the millions seeking to come to America. An internal audit conducted by the State Department in the 1990s characterized the visa lottery as a costly unfunded mandate that saps personnel resources.⁷

For an illustration of the visa lottery's role in diverting scarce State Department resources from more important functions, we may look at visa issuance statistics for FY'04 (most recent available). There are 16 consular posts where the lottery visa issuances make up a significant share of the immigrant visa workload (more than 20%) and where the post issues a large number of diversity visas (more than 450 per year), making the lottery program a very significant portion of the consular work there. (There are also many posts where lottery visas are a very high proportion of the workload, but where there are few visas issued overall; in Benin, for example, 95% of the visas were for the lottery, but that was 43 out of only 45 total visas). These are the posts:

Cameroon 76% of immigrant visas are that country's lottery winners, adding 495 extra visas a year.

Ethiopia 79% " 3,659 "

Ghana 34% 805

Kenya 77% 1,993

Liberia 58% 488

Nigeria 56% 3,335

Togo 93% 1,314

Albania 75% 2,207

Bulgaria 81% 2,470

Poland 22% 3,255

Romania 49% 1,147

Turkey 29% 1,192

Egypt 45% 1,726

Morocco 82% 1,753

Bangladesh 29% 1,837

Nepal 89% 1,775

These numbers do not count the additional impact of lottery winners from other countries; for example, if someone in Angola wins, they travel to Harare, Zimbabwe, to get the visa, because the Angolan capital of Luanda does not issue immigrant visas. Processing winners from other countries has a noticeable impact on the consular posts' already-swollen caseload -- for example, the nearly 3,200 Ukrainian winners from 2004 were processed in Warsaw, doubling the numbers there.

This presents both workload and fraud issues. The State Department has consolidated lottery visa issuances to the medium and large posts, making quality control much more difficult. How is a Polish-speaking officer in Warsaw, for instance, able to evaluate the credentials of Lithuanian or Ukrainian applicants?

Some of these consular posts are already having difficulty providing good service without having to manage the burden the lottery program imposes. In Poland, for example, tourists have to wait eight days to get an interview appointment and then two more days to get their tourist visa. In Cairo, even the expedited visa applications must wait between one week and one month for an interview. And of course, processing so many lottery visas is a distraction for officers in Egypt, Morocco, Turkey, and Bangladesh, whose work has changed significantly since 9/11.

This points to the additional fact that the lottery does not draw people randomly from around the globe, but instead artificially generates immigration from the very countries where al Qaeda is active. Winners come disproportionately from the Islamic world, with about one-third coming from Muslim-majority countries. In fact, the lottery is a disproportionately important means of immigration for people from those countries; while only about 7% of all people who got green cards in FY03 were beneficiaries of the lottery, the proportion for most large Muslim countries was much higher. Around 10% of last year's immigrants from Saudi Arabia, Pakistan, and Yemen came via the lottery, plus 16% of Bangladeshis, 23% of Egyptians, 29% of Turks, 37% of Sudanese, 53% of Moroccans, and 60% of Algerians.

This isn't simply gratuitous profiling. A number of lottery winners have already been involved in terrorism in the United States. Michigan sleeper cell member Karim Koubriti, convicted in 2003 of terrorism-related charges, was a lottery winner from Morocco, along with Ahmed Hannan, who was acquitted of terrorism charges in the same trial but convicted of document fraud.

The most notorious lottery winner is Hesham Mohamed Ali Hedayet, the Egyptian immigrant who went to Los Angeles International Airport to kill Jews on Fourth of July, 2002. Hedayet came to this country in 1992 on a temporary visa, became an illegal alien when he overstayed his welcome, then applied for asylum, was denied, again becoming an illegal alien, and finally got a green card when his wife won the lottery after repeated attempts.

Not only does the visa lottery actively recruit extra immigrants from the Middle East, but the fact that it allows people into the United States with no family or other significant connections to the country makes it ideal for someone planning an attack our country. While there are other ways for a person with no connections to enter the United States, a green card is far more valuable to terrorists than a temporary visa, such as those for tourists or students -- a green card lets a person stay in the United States indefinitely and would thus give terrorists the time they would need to plan a sophisticated plot. Moreover, permanent residency allows the recipient to work at almost any job, get a license to handle hazardous materials, and to travel freely in and out of the country. It would be hard to design a visa program that was better suited to the needs of terrorists.

Some argue that the lottery is a highly unlikely and uncertain way for terrorists to gain entry to the United States, because it involves chance. But it is not the entry process that is most vulnerable (although it doesn't cost terrorists anything to try). It is the final application process that is so vulnerable to terrorists and other perpetrators of immigration fraud. For instance, the State department's Deputy Inspector General testified last year about a fraud ring in one consular post where the locally hired employees were buying lottery winners' applications for $4,000 and then re-selling their winning numbers to others for much more money.⁸ That is precisely the kind of opening that al Qaeda would seek to utilize.

Momentum for Illegal Immigration. No one wakes up in Cairo and says, "Today, I will move to Hoboken!" Immigration takes place by way of networks of relatives, friends, acquaintances, or fellow countrymen already in the United States, and the lottery helps create new networks where none previously existed. Thus established, these networks plant the seed of a new idea -- immigration to America -- in the minds of millions, leading not only to further legal immigration, but also to new streams of illegal immigration.

The forces set in motion by the lottery are so powerful that even 9/11 didn't make much of a dent. The application period for the FY 2003 lottery began just three weeks after the 9/11 attacks, and although the number of applicants was indeed down from the previous year, it was still a colossal 8.7 million, about two and half million of them from Muslim-majority countries.⁹

Troll the Internet and you can see the lottery's power to spark interest in coming to America. In response to "green card lottery," Google returns 709,000 hits, including sites like dreamofusa.com, visaforyou.org, mygreencard.com, rapidimmigration.com, greencardgratis.de, and hundreds of others, some legitimate, many not. The frenzy surrounding the lottery is so intense that crooked attorneys and "consultants" have grown fat off of unsuspecting would-be immigrants, claiming that, for a fee, they can guarantee a winning application. This prompted the Federal Trade Commission to issue a Consumer Alert in October 2003 warning of the scams.¹⁰

The forces unleashed by the lottery manifest themselves outside cyberspace, as well. In 1997, police in Freetown, Sierra Leone, fired on stone-throwing rioters who attacked the central post office after thousands of completed lottery applications were found dumped in the sea.¹¹ A local newspaper speculated that the government ordered the applications thrown away to hide the locals' eagerness to leave. After the U.S. embassy in Freetown was closed due to political turmoil later that same year, hundreds of Sierra Leonean lottery applicants went to Ghana to pursue their applications. Only five actually received visas, prompting many of the losers to demand refugee status in Ghana.

Cutting in Line. The list of people who have family-based immigration applications pending, but who have to wait because of various category and per-country limits, is perhaps four million. Spouses and children of legal permanent residents from India or the Philippines now getting their green cards have been waiting since 2001, and the same category of people from Mexico have been waiting since 1998. If, for some reason, we decide that we need 50,000 additional people each year, wouldn't it make more sense to take the next 50,000 husbands, wives, and little kids of legal permanent residents on the list, rather than complete strangers with no family, no skills, and no jobs?

Conclusion. There is a Chinese saying, to justify gambling, that it's always advisable to "leave the window open to chance." There is always the chance some lottery winner will be a future inventor, entrepreneur, or even just a decent, God-fearing citizen pulling his own weight. Unfortunately, "chance" can go both ways, and, in the case of the lottery, it already has. The sooner we bring an end to this program, the better.

Low Salaries for Low Skills Wages and Skill Levels for H-1B Computer Workers

2010-01-19T08:58:00.000-08:00

Summary
Technology sector employers, who represent the largest share of H-1B visa users, tell the public that the H-1B program is vital to their ability to find the highly skilled workers they need. Yet Department of Labor data tell a different story. Previous studies have found that the H-1B program is primarily used to import low-wage workers.¹ This report examines the most recently available wage data on the H-1B program and finds that the trend of low prevailing wage claims and low wages continues. In addition, while industry spokesmen say these workers bring needed skills to our economy, on the H-1B Labor Condition Applications (LCAs) filed with the Department of Labor, employers classify most of their H-1B workers as being relatively low-skilled for the jobs they are filling. This report compares prevailing wage claims and wages employers reported for H-1B workers in computer programming occupations in FY 2005 to wages for U.S. workers in the same occupation. Although the H-1B program stipulates that employers must pay H-1B workers at least the prevailing wage for their occupation and location, the results of this report clearly demonstrate that the regulation does not produce that result. The findings in this report clearly demonstrate that the legal definition of the prevailing wage requirement does not ensure H-1B workers are paid the actual market prevailing wage. Employer prevailing wage claims and reported wages for H-1B workers are significantly less than those for U.S. workers in the same occupation and location. This suggests that, regardless of the program�s original intent, the H-1B program now operates mainly to supply U.S. employers with cheap workers, rather than with essential skilled workers.

Key Findings

Very few H-1B workers are "highly-skilled." Employers who used the Department of Labor�s skill-based prevailing wage system classified most workers (56 percent) as being at the lowest skill level (Level I) as did most State Employment Security Agency (SESA) wage determinations (57 percent). This suggests that most H-1B computer workers are low-skilled workers who make no special contribution to the American economy, or that employers are deliberately understating workers� skills in order to justify paying them lower salaries.
According to the applications filed in 2005, it appears that employers may be significantly understating what U.S. computer workers are earning in order to justify paying low wages to H-1B guestworkers in those occupations. In FY 2005, H-1B employer prevailing wage claims averaged $16,000 below the median wage for U.S. computer workers in the same location and occupation.
90 percent of H-1B employer prevailing wage claims for programming occupations were below the median U.S. wage for the same occupation and location, with 62 percent of the wage claims in the bottom 25th percentile of U.S. wages.
While higher than the prevailing wage claims, the actual wages reported for H-1B workers were significantly less than those of their American counterparts. Wages for H-1B workers averaged $12,000 below the median wage for U.S. workers in the same occupation and location.
The reported wages for 84 percent of H-1B workers were below the median U.S. wage; 51 percent were in the bottom 25th percentile of U.S. wages.
Many employers make prevailing wage claims using wage sources that are not valid under the law. The Department of Labor routinely approves prevailing wage claims based on these invalid sources.

Purpose
The purpose of this report is to examine the effectiveness of the prevailing wage requirements in the H-1B program and to determine whether there is a difference between wages for H-1B workers in computer programming fields and wages for U.S. workers in the same fields. This report uses the Bureau of Labor Statistics Occupational Employment Statistics (OES) as the measurement of U.S. wages and the H-1B Labor Condition Application disclosure data to measure H-1B wages.

This report updates a December 2005 Backgrounder, "The Bottom of the Pay Scale: Wages for H-1B Computer Programmers."² The previous report examined Labor Condition Applications filed in FY 2004. The procedures used in this report are nearly identical to those used in its predecessor.

There were three reasons for producing a new report based on the same type of data. First, this new report confirms that the results from 2004 were not a fluke. Repeating the same measurement on the subsequent year�s data produced nearly identical results. Another reason for a new report is that new data became available. Last year, for the first time, the Department of Labor made available the skill-based wage data. This makes it possible to examine how employers classify the skills of the H-1B workers they are seeking. Finally, a second look allowed investigation in more detail on exactly how employers produce the extremely low prevailing wage claims.

The H-1B Visa Program
This H-1B visa was created in 1990 to provide a separate guestworker program for certain specialty occupations. A specialty occupation is one that requires a college degree or equivalent professional experience. There is no specific skill requirement for an H-1B visa.

The H-1B program is, in theory, a non-immigrant program, although it is widely used as a stepping stone to permanent residency. H-1B visas are valid for up to three years and can be renewed once for an additional three years. H-1B visas also are tied to employment, so an H-1B visa becomes invalid if a worker loses his or her job. While employed, it is relatively easy for a worker on an H-1B visa to transfer the visa to another employer. However, H-1B workers seeking permanent residency are effectively bound to their employer because changing jobs requires restarting the application process, making it unlikely that it will be completed before the visa expires. Transfers do not extend the time limit on the original visa.

The first step in the H-1B visa process is the filing of a Labor Condition Application (LCA) by the employer with the Department of Labor. The employer attests that workers will be paid the prevailing wage and that there is no strike or lockout in progress. The LCA shows the number of workers covered, the prevailing wage, and the wage to be paid. The statutes specifically limit the Labor Department review process to checking for "completeness and obvious inaccuracies," making this step effectively a rubber stamp process. After the LCA is approved (less than 1 percent are rejected), the employer can file an H-1B petition (I-129) with United States Citizenship and Immigration Services (USCIS). In FY 2005, over 300,000 LCAs were filed, covering about 700,000 workers. USCIS approved 117,000 visas in FY 2005. While the law does not constrain the petition review process in the same manner as the LCA approval process, the approval rate for visa petitions (99.5 percent)³ is nearly as high as the approval rate for LCAs (99.7 percent). If the petition is approved, the employee can then apply for the H-1B visa, either in the country of residence, if living overseas, or at a USCIS office, if already living in the United States. The State Department has a slightly higher rate of H-1B refusals; its consulates refused between 5 and 10 percent of all H-1B applications in 2005.⁴

Methodology
This report compares prevailing wage claims and wages for H-1B workers to U.S. wages in computer programming-related occupations. The source for H-1B wages was the FY 2005 LCA disclosure data available at www.flcdatacenter.com . This report only used approved LCAs in its calculations. However, the number of rejected LCAs is so few (<1 percent) that including them would have made no measurable difference in the
results.

The disclosure data are divided into two databases, one representing electronic filings, the other representing fax filings, with the electronic filing database containing the bulk of the records. These two databases have different structures so integrating them is not as simple a process as it might be. For completeness, this report includes the data from both sources. However, other researchers could legitimately ignore the fax data as they increase the average H-1B wage by only $2.

The reason for using the disclosure data as a measure of H-1B wages is that they are the best data available on wages for H-1B workers. This is the data Congress mandates be made available to monitor the H-1B program. In the future the author hopes to be able to repeat this analysis using the data from visa applications. So far, USCIS has responded to requests for this data by stating it cannot find the information. The disclosure data provide the best possible source for employer prevailing wage claims. Unlike the measurements of H-1B wages, all the prevailing wage comparisons to U.S. wages are direct comparisons. As such, they leave no doubt that employer prevailing wage claims do not reflect the actual prevailing wage.

The source for U.S. wages was the May 2004 National Occupational Employment and Wage Estimates available at http://www.bls.gov/oes/2004/may/oes_nat.htm . The May 2004 data were the last released before the start of FY 2005. Therefore, they were the last published before any of the LCAs examined were submitted.

This study also uses the 2005 FLC wage data (available at www.flcdatacenter.com) to match specific employer prevailing wage claims to their sources. These data were used to identify the job title used for prevailing wage claims and to analyze the nature of specific claims. They were not used for H-1B/U.S wage comparisons.

The biggest challenge in analyzing the LCA data is to match employer job titles to the Standard Occupation Codes (SOC) used to classify jobs in the Occupational Employment Statistics (OES) produced by the Bureau of Labor Statistics. Rather than using SOCs, LCAs use broad numeric classifications in which managers of programmers get lumped in with programmers. Analysis of these data is made even more difficult because the job code entered by employers is frequently wrong. In assigning SOC codes to LCAs, this study tries to be conservative and take the path that would minimize the difference between H-1B and U.S. wages.

The first step in this process was to select all records with computer-related job codes ("030" to "039") on the LCA.

The next step was to match LCAs using OES as the prevailing wage source to the actual OES data to get an SOC code. The job title in each matching record was verified using pattern matching (e.g. using "*soft*eng*" for "software engineer"). For those records where pattern matching failed, they were individually checked to ensure that the SOC code actually reflected the job title.

Pattern matching was used both to eliminate LCAs that were not programming related and to assign job codes. For example a pattern like "*vice president*" would be used to eliminate records for certain managerial employees and "*database admin*" to assign the SOC for "database administrator" to other LCAs.

Some job titles created special difficulties. There are separate SOC codes for "Software Engineers, Applications" and "Software Engineers, Systems," with wages for the latter tending to be higher. In this study, all software engineers were classified as "Applications" unless "Systems" was specified in the job title or the prevailing wage claim had been matched to an OES record specifying systems software engineer.

The most common job title was "Programmer/Analyst" (44 percent of programming workers). That could be either a "programmer" or a "systems analyst." This study chose to treat "Programmer/Analysts" as programmers except for the few cases (4 percent of "Programmers/Analysts") where the LCA�s prevailing wage claim had been matched to a specific OES record with a different job title. Classifying "Programmer/Analysts" as "Programmers" rather than "Systems Analysts" reduces the average H-1B to U.S. wage difference by about $4,000.

LCAs with the job title "Consultant" were treated as systems analysts unless the LCA�s prevailing wage claim had been matched to a specific OES record with a different job title. While classifying "Consultants" as programmers would have given a smaller H-1B/U.S. wage difference, the SOC definition of a programmer is not applicable to consultants.

Many LCA job titles were variations of "Developer." This could mean a software engineer, systems analyst, or programmer. In order to minimize the
H-1B/U.S. Wage difference, "Developers" were classified as "Computer programmers" unless the LCA�s prevailing wage claim had been matched to a specific OES record with a different job title.

A number of LCAs could not be matched to any job code because of unusual job titles that are not common in the industry. Together, these LCAs had a slightly higher average wage than the average wage of those that could be classified. These LCAs were arbitrarily assigned the SOC code for "Computer programmers" because this choice gave the lowest H-1B-to-U.S. wage
difference.

LCAs where the annual wage was less than $10,000 or greater than $300,000 were treated as errors and were excluded. The 130 records (out of 300,000 filed) excluded had an average wage of $11.5 million with the highest value $454 million. In addition, LCAs for part-time work were excluded.

Universities
The statutes governing the H-1B program allow universities to pay the prevailing wage in academia rather than in the technology industry at large (See below). Academic H-1B wages averaged about $6,000 a year less than overall H-1B wages. In order to give a better comparison of what employers should be paying under the law to what they actually are paying, LCAs filed by universities are not included in the results.

The Special Case of Infosys
One company, Infosys, submitted 1,145 LCAs covering over 110,000 workers (up from 13,000 for FY 2004). This company�s low wages combined with its unusually large number of workers significantly lowers the average H-1B wage. Rather than come up with an arbitrary scaling factor, LCAs from Infosys were excluded from the combined results. This choice decreases the H-1B/U.S wage difference by $2,000. It should be noted that Infosys is a large user of H-1B visas and claims to have received 4 percent of the 85,000 visas available under the annual quota.⁵

Employer Prevailing Wage Claims
The requirements for prevailing wage claims are defined by statute and regulation. The statute (8 U.S.C. � 1182(n) (1)(A)(i)) specifies that H-1B workers must be paid the higher of either 1) wages page by the employer to similar employees, or 2) the prevailing wage.

This section also specifies that when the Department of Labor provides a prevailing wage source, it must include at least four pay levels, "commensurate with experience, education, and the level of
supervision."

The regulations (20 C.F.R. � 655.731(a)(2)) specify how the employer determines the prevailing wage. As an illustration of how loosely defined the process is, the first section says "...the employer is not required to use any specific methodology to determine the prevailing wage�." One specific the regulations do give is that the prevailing wage is to be based on either the mean or median depending on the circumstances.

Despite the complexity of the requirements, the statute provides no mechanism for DOL to verify employer claims; the LCA process is essentially an honor system. DOL adjudicators may only check that the form is filled out correctly � they may not investigate whether the LCA data contain bogus prevailing wage claims. There is insufficient information within the LCAs to cross-reference most LCA claims to the source of a prevailing wage claim, so there is insufficient information to determine the possible extent of a bogus prevailing wage problem. The fact that employer claims are not verified does not necessarily mean that the claims are wrong or bogus. The more important question is: How do employer prevailing wage claims compare to actual U.S. wages? What is the result of our reliance on an attestation system to protect U.S. workers?

Table 1 shows how employer prevailing wage claims compare to actual U.S. wages. Employer prevailing wage claims on LCAs for computer programming workers averaged $16,000 below the median U.S. wage based on occupation and location. The median difference between employer prevailing wage claims and the median U.S. wage was $18,000. For employer prevailing wage claims, 90 percent were below the U.S. median wage and 62 percent were in the bottom 25th percentile of U.S wages. Figure 1 compares the distribution of U.S. wages to H-1B prevailing wage claims.

H-1B Wages
Prevailing wage claims are one thing � actual wages are another. Reported wages for H-1B workers tend to be higher than employer prevailing wage claims. However, due to the fact that prevailing wage claims are extremely low, H-1B wages remain significantly lower than overall U.S. wages. Table 2 shows how wages listed for H-1B workers on LCAs compare to those for U.S. workers in the same occupation and location. H-1B wages averaged $12,000 below the median U.S. wage based on occupation and location. The median difference between employer prevailing wage claims and the median U.S. wage was $15,000. Wages for 84 percent of H-1B workers were below the U.S. median wage and 51 percent were in the bottom 25th percentile of U.S wages. The distribution of H-1B wages on LCAs is shown in Figure 2.

H-1B Worker Skills
As described previously, at the end of 2004 Congress amended the H-1B statutes to require the Department of Labor to make available at least four prevailing wage levels based on skills. The Department of Labor defines the skill levels as:

Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment. The tasks provide experience and familiarization with the employer�s methods, practices, and programs. . . . Statements that the job offer is for a research fellow, a worker in training, or an internship are indicators that a Level I wage should be considered.

Level II (qualified) wage rates are assigned to job offers for qualified employees who have attained, either through education or experience, a good understanding of the occupation....

Level III (experienced) wage rates are assigned to job offers for experienced employees who have a sound understanding of the occupation and have attained, either through education or experience, special skills or knowledge. . . . Words such as �lead� (lead analyst), �senior� (senior programmer), �head� (head nurse), �chief� (crew chief), or �journeyman� (journeyman plumber) would be indicators that a Level III wage should be considered.

Level IV (fully competent) wage rates are assigned to job offers for competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification, and application of standard procedures and techniques....

These skill levels only apply when the Department of Labor is used as the prevailing wage source.

In FY 2005, along with defining prevailing wages with four skill levels, the Department of Labor made its skill-based data available in table form for the first time. This allows one to match prevailing wage claims using this data to the specific source record used to make the claim. From a matching record, one can identify the skill level the employer claimed. About two thirds of the computer programming LCAs using this wage source could be matched back to the source record.

An examination of the skill levels reported on the LCAs reveals that employers claim that the majority of their H-1B workers are entry level. In stark contrast to claims that the H-1B program is used for "highly-skilled" workers, employers claim the majority are less-skilled workers. Figure 3 shows the distribution of employer skill claims on LCAs.

Prevailing Wage Sources
This report and its predecessor both found employer prevailing wage claims on LCAs were much lower than actual U.S. wages. This section examines how employers calculate such low prevailing wage claims. Appendix B provides an overall picture of prevailing wage claims, and shows how wage claims are calculated using the most commonly used prevailing wage sources compare to actual U.S. wages.

If one weights the difference between U.S. wages and the claimed prevailing wage for each wage source by the number of workers requested, three wage sources account for about $14,000 of the $15,000 median difference between prevailing wages and the median U.S. wage: Occupational Employment Statistics (OES), State Employment Security Agencies (SESA), and Watson-Wyatt. Together, these wage sources are represented on 87 percent of the LCAs, covering 93 percent of the workers requested.

Occupational Employment Statistics
OES is the most commonly used source for prevailing wage claims. It is used on 70 percent of the LCAs representing 50 percent of the workers. LCAs using OES account for about $8,000 of the total wage difference.

Since OES is the wage source this report uses to measure actual U.S. wages, it might appear contradictory that LCAs using OES as the prevailing wage source contribute the most to the difference between U.S. wages and employer prevailing wage claims. This apparent discrepancy is easy to explain.

When the H-1B program was created, it required employers to pay workers the higher of the prevailing wage for the occupation and location, or the wage paid to similar employees. By requiring H-1B workers to be paid the overall prevailing wage, in theory it would prevent employers from using the H-1B program to import young, lower-paid workers to displace older U.S. workers.

As discussed, in 2004 Congress added a new prevailing-wage option for employers. It mandated that the Department of Labor provide employers with four skill-based prevailing wages. To comply with this change, the Foreign Labor Certification Data Center took the OES data produced by the Bureau of Labor Statistics and used them to create four skill-based prevailing wages. This created a mechanism for employers to justify low wages. Regardless of the actual skills of an H-1B worker, employers need only assert that a worker is in the Level I category for entry level, trainee, or intern employees, and pay according to that prevailing wage.

The findings described above show that, according to employers� LCA claims, the majority of H-1B computer programming workers are indeed at the lowest skill level (Level I). The difference between the Level I wage and the OES median wage averages about $14,000. While the use of Level I wages as the prevailing wage is by far the most significant reason for low prevailing wage claims using the OES data, the LCA data also contain a number of completely bogus prevailing wage claims that purport to use OES as the wage source. Because most LCAs do not contain the information necessary to match a prevailing wage claim back to its source, it is impractical to determine the extent of these bogus claims.

Table 3 shows some examples of OES-based prevailing wage claims that are lower than the Level I wage for the occupation and location. A small number of these low wage claims are the result of employers improperly using the prevailing wage for higher education, as in the last claim. The fact that these erroneous applications were processed at all illustrates that LCAs are not checked for accuracy, much less fraud. This should be a routine aspect of any government benefit issuing process, and is often automated. Clearly, maintaining the integrity of H-1B processing is a low priority for the Department of Labor.

SESA
One alternative H-1B employers have for determining the prevailing wage is to apply to a State Employment Security Agency (SESA)/State Workforce Agency (SWA) for a prevailing wage determination. The procedure for getting a SESA determination varies from state to state. Usually, the employer submits a form describing the job and SESA determines the Standard Occupational Code and the skill level to find the corresponding skill-based OES wage. The disadvantage of getting a SESA wage determination is that the employer has to wait for the state agency to process the application. The advantage is that a SESA prevailing wage determination is
incontestable.

Of LCAs, 9 percent used SESA as the prevailing wage source, representing about 13 percent of the workers requested. The LCAs using SESA account for about $3,000 of the average difference between prevailing wage claims and the median U.S. wage.

Like employer-made, skill level-based OES prevailing wage claims, SESA determinations overwhelmingly tend to be based on low skill levels. Figure 5 shows how SESA determinations classify skill levels.

Watson-Wyatt
Watson-Wyatt was the most commonly used private source for prevailing wage claims. Wage claims using Watson-Wyatt account for about $3,000 of the median difference between the average claimed prevailing wage and the OES median wage. Citing confidentiality, Watson-Wyatt would not provide any information about the nature of their wage survey.

Verifying Wage Claims
Salary.com was the wage source giving the highest prevailing wage claims (averaging about $2,000 below the U.S. median). The 755 LCAs using Salary.com as the prevailing wage illustrate some of the problems in verifying prevailing wage claims. About half of these LCAs list the job title as some variant of "Programmer/Analyst." Due to the fact that this is not a job title listed on Salary.com, one can only guess what job title employers used to determine the prevailing wage.

Salary.com�s prevailing wages are based on three levels for each job title (e.g., Programmer I, Programmer II, and Programmer III). Because most LCAs using Salary.com as the prevailing wage source do not include the level, it is impractical to match large numbers of these wage claims to their sources.

Even LCAs that match the Salary.com job title and level exactly are difficult to match to their source, because Salary.com does not maintain historical data. To illustrate, one LCA is for a "Programmer I" in Edison, N.J. The claimed prevailing wage is $56,500. Unfortunately, that LCA claims to use 2005 data. For August 2006, Salary.com says the median is $58,784. The discrepancy here is probably due to wage variations over time.

Another LCA is for a "Software Engineer I" in Greensboro, N.C., and claims the prevailing wage is $44,497. The August 2006 data from Salary.com give $51,372 as the median wage and $45,129 as the 25th percentile wage. In this case it looks like the employer has improperly given an artificially low prevailing wage by claiming the 25th percentile as the prevailing wage.

On nearly every LCA using Salary.com as the wage source and where the job title could be matched exactly, the claimed wage appeared to come from the 25th percentile rather than the median. Prevailing wage claims based on the 25th percentile are invalid under the regulations. Table 4 shows some typical examples.

Sources of Extremely Low Prevailing Wage Claims
During the LCA approval process, the Department of Labor does not evaluate the validity of the prevailing wage source. Many LCAs use wage sources that are invalid under the law. For example, the law requires the prevailing wage source to be a local measurement of wages. However, many LCAs use national surveys as the wage source. Applications citing such prevailing wage sources tend to be among the lowest prevailing wage claims.

NACE
The wage source used for the lowest prevailing wage claims is National Association of Colleges and Employers (NACA). Their wage survey covers offers made to new university graduates nationwide. As such, it does not meet the requirements of a valid prevailing wage source for H-1B
applications.

MIT
The second-lowest prevailing wage source is the MIT Wage Survey, which reports offers made to MIT graduates nationwide. It, too, is a national survey and does not meet the requirements of a valid prevailing wage source.

Employer Survey
The third-lowest prevailing wage source on LCAs is wage surveys conducted by employers themselves. Not surprisingly, when employers determine the prevailing wage on their own, the resulting prevailing wage claims tend to be among the lowest submitted. Of employers using their own surveys, 38 percent had all of their prevailing wage claims below the 10th percentile of U.S. wages, raising reasonable doubts as to their legitimacy.Extremely low wages are not the only sign that employer surveys are subject to abuse. The median number of workers requested by employers using employer wage surveys was one, with 90 percent requesting three or fewer. It is difficult to explain how so many employers could conduct legitimate salary surveys for one, two, or three employees.

ComputerWorld
ComputerWorld magazine�s wage survey was listed as the source of the fourth-lowest prevailing wage claims. However, ComputerWorld could not verify any of the prevailing wage claims on the LCAs in the database that listed them as the source. They also observed that the wages reported in their survey were "consistently higher" than wage claims made on LCAs. This suggests that DOL should make some effort to verify employer claims, as some may be deliberately providing bogus information on LCAs.

Observations
The preparation of this report involved many weeks of examining LCA data. While outside the scope of this report, a number of questionable patterns were found. Some of those patterns involving computer occupations are listed here in the hope that other researchers might investigate them.

Many employer addresses listed on LCAs are not bona fide business addresses. These include residences and mail drops.

The number of LCAs filed for certain states suggests that the number of H-1B workers exceeds the number of jobs. For example, the number of LCAs filed for New Jersey suggests that the number of H-1B programmers that are supposed to be working in the state greatly exceeds the number of programming jobs created in the state.

Some groups of LCAs contain identical data except for the employer contact information. One such group had five employers, three of which listed a residence as the business address.

Wages for computer programming managers were also significantly below the median for U.S. workers in those occupations.

Conclusion
These findings indicate that if there is any correlation between wages and skills, it is clear that the H-1B program is rarely being used to import "highly skilled" computer programming workers. The newly available data on skills suggest one of two things is happening, neither of which is consistent with the claims of employers pushing for the expansion of the program. Either the H-1B program is used primarily to import relatively less-skilled, entry-level, or trainee workers (and thus is of dubious value to the American economy), or employers are lying about these workers� skills in order to suppress their wages.

While the wage data suggest that a few employers use the H-1B program to import a small number of highly skilled workers, these are exceptional cases. Overwhelmingly, the H-1B program is used to import workers at the very bottom of the computer programming wage scale.

Many in the information technology industry have called for an increase in the number of H-1B visas available. However, given the very few H-1B workers earning salaries that highly skilled workers in their profession would make and the fact that employers classify most H-1B workers at low skill levels, this report concludes that the existing number of visas is more than ample for the nation�s needs. Contrary to industry claims, the perennial exhaustion of the H-1B visas due to the cap more likely reflects widespread preference for lower-paid workers and lax enforcement of program rules, not an insufficient supply of visas to meet a deficit of highly-skilled U.S. workers.

Policy Recommendations
The following specific reforms are needed to correct the flawed prevailing wage provisions of the H-1B
program:

Limit the number of H-1B visas that an employer can obtain each year based on the size of its U.S. workforce.

Require employers to have a bona fide business office. Applications from residences and drop boxes should not be not be approved.

Compel employers to use a standard wage source produced by the federal government when making prevailing wage claims for LCAs. This report has shown that employer prevailing wage claims are much lower than the actual prevailing wages, and that some employers make mistakes or deliberately provide bogus prevailing wage claims.

Oblige employers to pay H-1B workers at the 75th percentile of the pay scale, rather than at the prevailing wage. This would provide a strong incentive for employers to use the H-1B program for highly-skilled and needed workers.

Require employers to enter a Standard Occupation Code (SOC) for each employee on the application. Most employers are already looking this information up in order to get OES prevailing wages, so it would require little effort to put this information on the LCA.

In order to better monitor the H-1B program,
USCIS should make wage and employer information available for those H-1B visas actually issued.

Remove the restrictions on the LCA approval process to allow the DoL to verify the content of LCAs.

Remove all restrictions on enforcement. Specifically, eliminate the requirement that the Secreatary of Labor approve investigations and allow random audits of employers.

H-1Bs: Still Not the Best and the Brightest

2010-01-19T08:54:00.000-08:00

In pressuring Congress to expand the H-1B work visa and employment-based green card programs, industry lobbyists have recently adopted a new tack. Seeing that their past cries of a tech labor shortage are contradicted by stagnant or declining wages, their new buzzword is innovation. Building on their perennial assertion that the foreign workers are “the best and the brightest,” they now say that continued U.S. leadership in science, technology, engineering, and mathematics (STEM) hinges on our ability to import the world’s best engineers and scientists. Yet, this Backgrounder will present new data analysis showing that the vast majority of the foreign workers — including those at most major tech firms — are people of just ordinary talent, doing ordinary work. They are not the innovators the industry lobbyists portray them to be.

I presented some initial analyses along these lines in an earlier Backgrounder,¹ showing for instance that STEM foreign students at U.S. universities tend to be at the less-selective universities. Here I present a much more direct analysis, making use of a simple but powerful idea: If the foreign workers are indeed outstanding talents, they would be paid accordingly. We can thus easily determine whether a foreign worker is among “the best and the brightest” by computing the ratio of his salary to the prevailing wage figure stated by the employer. Let’s call this the Talent Measure (TM). Keep in mind that a TM value of 1.0 means that the worker is merely average, not of outstanding talent.

I computed median TM values for various subgroups of interest. A summary of the results is:

The median TM value over all foreign workers studied was just a hair over 1.0.
The median TM value was also essentially 1.0 in each of the tech professions studied.
Median TM was near 1.0 for almost all prominent tech firms that were analyzed.
Contrary to the constant hyperbole in the press that American (and Western European) kids are weak at math in comparison with their counterparts in Asia, TM values for guest workers from Western European countries tend to be higher than those of the Asians.

Again noting that a TM value of 1.0 means just average, the data show dramatically that most foreign workers, the vast majority of whom are from Asia, are in fact not “the best and the brightest.”

Note that the statutory definition of prevailing wage takes into account experience levels. In other words, the TM value for a worker compares him to workers of the same level of experience, not to the workforce as a whole. Thus the modest TM values found here for the guest workers cannot be dismissed by pointing to the fact that many of the guest workers are younger.

This article also presents further data showing an equally important point:

Most foreign workers work at or near entry level, described by the Department of Labor in terms akin to apprenticeship. This counters the industry’s claim that they hire the workers as key innovators, and again we will see a stark difference between the Asians and Europeans.

Methodology
The analysis uses data from the Department of Labor’s Permanent Labor Certification Program (PERM),² which consists of information supplied by employers when they sponsor foreign worker for permanent residency, i.e. green cards. There are advantages to using this database rather than its H-1B cousin.

First, it addresses the concern expressed by some that H-1B Labor Condition Applications (LCAs) are merely requests for permission to hire foreign workers, without specifying actual workers, who may be chosen later. By contrast, each record in the PERM data is for an actual foreign worker, containing his actual salary and other information. (The PERM form allows an employer to specify salary as a range rather than as a single value, but this is rarely used.)

Second, the PERM data include information concerning the nationality of the foreign worker, enabling the between-country comparisons in the analysis here.

Finally, the PERM data show the current visa status of the worker, which is typically H-1B but is sometimes O-1. The law defines the O-1 visa as applying to “workers of extraordinary ability.” Since these are the workers of interest here, it gives us a basis of comparison.

Note that while most workers in the PERM database are H-1Bs, the converse is not true; many H-1Bs are not sponsored for green cards. Typically employers only sponsor their better H-1Bs for permanent residency. Thus if the PERM data show that most workers in the PERM data are not “the best and the brightest,” then even fewer of the H-1Bs overall are in that category.

The analysis uses the 2007 PERM data. The data were first screened, eliminating hourly workers, clear typographical errors, and so on.

Talent Measure Analysis
Again, I take as our Talent Measure (TM) the ratio of a worker’s salary to the prevailing wage claimed by the employer. The employer is legally required to pay at least the prevailing wage, and must state on the PERM application how that wage level was determined.³ Since the application will be rejected if the wage offered is below the prevailing wage, by definition all values of TM will be at least 1.0. The latter value means “the average worker,” i.e. of average talent, so if most workers have TM values close to 1.0, then most are probably not “the best and the brightest.”

With that it mind, let’s look at TM values, both overall and also for some specific occupations:

The trend, both general and for STEM occupations, is clear: Most TM values are only a little higher than 1.0, indicating that most of the foreign workers are not outstanding talents.

The sole exceptional occupation is mathematicians. Though rather few workers are in this category, the TM value is worth some comment. The anomaly is likely due to the recent interest in data mining, which has created a de facto two-tier wage structure among mathematicians, in which those who specialize in data mining are paid much more. Since the prevailing wage figures do not distinguish between these tiers, the official prevailing wage value set for mathematicians will be well below the market wage for data miners. Thus it is probable that even these foreign workers are not “the best and the brightest.”

Lobbyists for the big firms often claim that abuse of the H-1B program occurs mainly in Indian-owned “bodyshops” (firms that subcontract H-1Bs to larger companies), while by contrast the big firms are hiring “the best and the brightest.” Yet neither this scapegoating of the Indians nor the claim of hiring the top talents is warranted. Consider the TM values after disaggregation by firm:

Though these figures are slightly above the overall figures we saw earlier, they still show that the firms are not paying salaries indicating top talents.

Even Microsoft, on the high end of the companies shown here, is not paying top dollar, as seen by restricting attention to Microsoft’s workers holding the O-1 visa. As O-1 is specifically for, in the phrasing of the statute, “workers of extraordinary ability,” this gives us a measure of the salaries Microsoft pays to those foreign workers who in fact are “the best and the brightest.” The median TM for Microsoft O-1 workers is 1.404. That represents a salary premium of more than double what the firm is giving its foreign workers in general, so there does not appear to be much support for Microsoft’s claim that most of their H-1Bs are of extraordinary talent.

Thus again, it is readily apparent that even the most prominent tech firms, which are in the vanguard of the industry movement pressuring Congress to expand foreign worker programs, generally do not hire from “the best and the brightest” league.

East vs. West
The lobbyists love to claim that the industry resorts to hiring foreign workers because Americans are weak in math and science. Various international comparisons of math/science test scores at the K-12 level are offered as “evidence.” The claims are specious — after all, both major sources of foreign tech workers, India and China, refuse to participate in those tests, and India continues to be plagued with a high illiteracy rate. Serious educational research, including an earlier Arizona State university report⁴ and a recent major study by the Urban Institute⁵ show clearly that mainstream American kids are doing fine in STEM.

Nevertheless, the “Asian mystique” persists. The image is that our tech industry owes its success to armies of mathematical geniuses arriving to U.S. graduate schools from Asia. Once again, though, the data do not support this perception. Here is a comparison of TM values for foreign workers from the major Asian countries and their counterparts in Europe and Canada:

The differences here are not large, but nevertheless, all of the Western nations have higher median TM values than all the Asian nations — quite the opposite of the portrayal by the industry lobbyists.

Taking a closer look, let’s tabulate median TM for the major worker-sending nations in both hemispheres, against the major occupations:

While still mild, the trend again indicates that the Western foreign workers are the more talented ones.

Finally, what about individual firms? Interestingly, the gap between East and West widens. Let’s check the firms with the largest numbers of foreign workers:

There are some interesting exceptions for China, but in general the trend follows the previous pattern.

Level of Hire
As noted, recently the industry lobbyists have adopted an innovation theme, in which they claim that the U.S. lead in tech depends on hiring innovators from abroad. The analysis above demonstrates that the foreign workers are in fact generally not outstanding talents, thus casting serious doubt on the claim that innovators are being hired. Here we pursue this point further, by examining the level at which the imported workers are hired.

The PERM data use the following classification scheme:⁶

Level I is defined by the Department of Labor as for “beginning level employees who have only a basic understanding of the occupation [and who] perform routine tasks that require limited, if any, exercise of judgment.” Workers at Level II “perform moderately complex tasks that require limited judgment.” Clearly, neither Level I nor II is for innovators.

Level III implies more sophisticated responsibilities, but only Level IV suggests that innovators are being hired, workers who “plan and conduct work requiring judgment and the independent evaluation....”

Previous work⁷ analyzed H-1B data, finding that most H-1Bs are concentrated in Levels I and II. In the tables below we extend that work in the PERM data, adding analysis by occupation, nationality and firm.

The results first show, once again, that rather few of the foreign workers are at Level IV, the level of real expertise whose description is associated with innovation. Most are in fact in Levels I and II, whose DOL definitions are for apprentice-like positions with only “limited exercise of judgment,” clearly not jobs for innovators.

Second, this pattern also holds individually for the most common job titles.

Third, the East-vs.-West pattern observed earlier for the TM data also holds for levels of expertise, with Asians typically being hired into non-innovative jobs while more Europeans are in the types of positions that could involve innovation.

The last table is striking. Most of the big firms hire almost no workers at all at Level IV. Since it is these very firms that are arguing they need foreign workers in order to innovate, there appears to be a striking disconnect between what they say and do.

Discussion and Conclusions
The lobbyists for the tech industry and the American Immigration Lawyers Association know that crying educational doom-and-gloom sells. Even though it was people born and educated in the United States who were primarily responsible for developing the computer industry, and even though all major East Asian governments have lamented their educational systems' stifling of creativity, the lobbyists have convinced Congress that the industry needs foreign
workers from Asia in order to innovate.

The data show otherwise. Most foreign tech workers, particularly those from Asia, are in fact of only average talent. Moreover, they are hired for low-level jobs of limited responsibility, not positions that generate innovation. This is true both overall and in the key tech occupations, and most importantly, in the firms most stridently demanding that Congress admit more foreign workers.

Note again that the analyses presented here confirm and provide much sharper quantitative insight into previous work showing that the H-1Bs are of just average talent. It has been shown for instance that foreign students in the U.S. tend to be concentrated in the less-selective universities, and that they receive a lower percentage of research awards relative to their numbers in the student population. In the workforce, the foreign nationals in the U.S. participate in teams applying for patents at the same percentage as do the U.S. citizens, and so on.

To be sure, the author is a strong supporter of facilitating the immigration of the world's best and brightest. He has acted on that belief, by championing the hiring of extraordinarily
talented researchers, mostly from India and China, into his department faculty. But as seen here, very few of the foreign workers are of that caliber.

Expansion of the guest worker programs - both H-1B visas and green cards - is unwarranted.

Immigration attorney and associate sentenced on marriage fraud charges Subjects will face removal to their home country

2010-01-19T08:50:00.000-08:00

Subjects will face removal to their home country

COLUMBUS, Ohio - A local immigration attorney and her associate were both sentenced on Friday to two years probation for illegally marrying U.S. citizens for the sole purpose of evading U.S. immigration laws. The convictions make them both eligible for deportation.

Carter M. Stewart, U.S. Attorney for the Southern District of Ohio, and Brian Moskowitz, special agent in charge of the U.S. Immigration and Customs Enforcement Office of Investigations in Detroit (ICE) announced the sentences handed down Jan. 15 by U.S. District Judge Gregory Frost.

Lilian Asante, 37, and her associate, Kwadwo Asante, 39 both pleaded guilty on Sept. 28, 2009 to one count of illegally marrying to evade immigration laws. Kwadwo Asante admitted to marrying a U.S. citizen from Youngstown, Ohio, in a civil ceremony in Franklin County in January 2005. Lilian Asante admitted marrying a U.S. citizen from Florida in a civil ceremony in Franklin County in February 2006. Each defendant admitted that they illegally married the U.S. citizens as part of their plan to obtain U.S. permanent residence status.

Based on these felony convictions, both were immediately entered in to deportation proceedings. They both elected to a stipulated order of removal, which effectively waives their right to a hearing before a federal immigration judge and begins the removal process.

When the defendants were interviewed by U.S. Citizenship and Immigration Services (USCIS) during the process of obtaining U.S. permanent residence status, agents began to suspect the fraudulent marriages and referred the matter for criminal investigation.

The Asantes had been married to each other in Ghana in 1999. They entered the United States legally in 2002, and dissolved their marriage in 2004.

"It is disturbing that anyone would defraud the very system in which they work" said Brian M. Moskowitz, special agent in charge of the ICE Office of Investigations in Michigan and Ohio. "Immigration attorneys hold positions of public trust and are critical to the workings of our nation's immigration system. Based on this felony conviction, both subjects are now amenable to removal proceedings."

U.S. Attorney Stewart commended the investigation by ICE agents and Assistant U.S. Attorney Salvador A. Dominguez, who prosecuted the case.