Interested participants may RSVP with the library by sending an email to washington.communityrelations@dhs.gov, though advance registration is not required. More information may be found here. 

Until now, NO right to free legal help was available to even the most vulnerable individuals in immigration proceedings. However, this is now (finally) changing. This year is the 50th anniversary of Gideon v. Wainwright, a groundbreaking case that established that poor criminal defendants facing potential jail time must be appointed a lawyer when they cannot afford to hire one. In Gideon, the Supreme Court held that poor defendants in criminal matters had a right to free counsel. However, it did nothing for non-criminal proceedings. Although the immigration proceedings are complex, and the consequences can at times literally be life-or-death, even the most vulnerable were often forced to attend Court without help. Until now.

A case was initiated by the ACLU and other organizations in 2010 on behalf of severely disabled lawful permanent residents who had been detained for years. The case was expanded to a class action lawsuit known as Franco-Gonzales v. Holder. On April 23, 2013, the U.S. District Court issued an order in favor of the immigrant plaintiffs. The Judge ruled that detainees with serious mental disabilities must be provided with qualified lawyers at government expense and must be given a bond hearing.

In light of the Court’s decision, the Departments of Justice and Homeland Security announced that mentally disabled individuals in removal proceedings will be screened for mental competency, and those who are unable to understand the proceedings will be provided with free legal counsel. ACLU spokesperson Ahilan Arlanantham stated, “As our country moves to implement common-sense immigration reform, we must insist that the rights of vulnerable groups caught in the immigration prisons are protected. Providing legal representation to people with significant mental disabilities is not only legally sound, but also the only humane way to run our immigration system.”

While it is still troubling that more than half of individuals in removal/deportation proceedings do not have lawyers, this key decision is an important protection for those most in need.

Photo: Toni Maschler

By Mihaela Petre

The newly proposed immigration bill titled “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013” was filed in the Senate today. If enacted, the bill would significantly impact the approximately 11 million undocumented immigrants currently living in the United States and would also have a huge effect on aliens holding or desiring to hold valid immigrant or nonimmigrant status in the United States.  If approved, the bill would affect the most important areas of the current immigration law system. We have summarized below the most relevant aspects of this proposal:

• Registered Provisional Immigrant Status

The bill creates a temporary immigration status – “Registered Provisional Immigrant Status” (RPI), which is described as being an intermediate immigration status that could be granted if the alien meets certain eligibility criteria, such as: presence in the United States prior to December 31, 2011; lack of criminal record; payment of penalty fees, taxes and payment of all the necessary application fees. An alien holding provisional immigrant status would be eligible to receive a non-restricted work permit and would also be able to travel outside the United States. According to the proposed bill, the temporary immigration status would be granted for an initial six-year period, which could be extended upon payment of a penalty fee and proof of clean criminal record. After ten years, aliens in RPI status would be able to apply for lawful permanent residence upon fulfillment of certain eligibility criteria. The proposed bill provides for a shorter path to citizenship for individuals in Dream Act Status, who could get green cards in only five years and be eligible for citizenship immediately after adjusting to lawful permanent status.

• Border Security Triggers

The new law seeks to strike a balance between the undocumented immigrants’ path to citizenship and border security. Undocumented immigrants would not be able to adjust to Registered Provisional Immigrant Status or to Lawful Permanent Resident Status unless certain border security measures are enforced. A “Comprehensive Southern Border Security Strategy” must be submitted within six months from the passage of the new law. Before that date, no applications for Registered Provisional Immigrant Status will be accepted. 

• W Visa for Lower-Skilled Workers

Under the new law, aliens interested to work in fields like construction, hospitality and janitorial services would be eligible to obtain the newly created W visas. In order to obtain a W nonimmigrant visa, an alien must apply for a certification process at the US Embassy in his or her home country. To become a “certified alien”, an individual must pass a criminal background check and agree to accept only “registered positions” for “registered employers.” The bill provides for the creation of the “Bureau of Immigration and Labor Market Research”, a new statistical entity within US Citizenship and Immigration Services that will determine the annual cap for this type of visa.  W visas could be granted for an initial period of three years and extended for additional three-year periods.  The maximum annual number of registered positions that can be approved initially is 20,000; this cap can be increased to 35,000 the second year, 55,000 the third year and 75,000 the fourth year.       

• Merit-Based Visa Category

The bill provides for the creation of a merit-based visa category within five years after its enactment. According to this new system, aliens would earn points based on their education, employment, and length of residence in the United States. Those who earn the most points will have priority in obtaining the merit-based visas. The annual number of visas to be allocated can range from 120,000 to 250,000, depending on demand and unemployment rate. The bill provides for the allocation of merit-based visas starting on October 14, 2014 for the certain categories of applicants: (1) employment-based visas that have been pending for more than three years; (2) family-based petitions that have been pending for five years and filed prior to enactment; and (3) long-term alien workers and other merit-based immigrant workers.     

• H1-B Visa

The bill proposes an increased number of H1-B visas allocated yearly; the cap will be raised from 65,000 to 110,000 and the current 20,000 exemption provided for US advanced degree holders will be raised to 25,000. In future years, the cap could be increased to 180,000; however, the cap increase or decrease is limited to 10,000 visas yearly. Under the new legislation, employers would be required to pay significantly higher wages to the H1-B workers than under the current law. Also, employers would be required to first advertise the job to American workers before hiring an H1-B worker. This would be done by posting a detailed job description on a special website created by the US Department of Labor within 90 days of the passage of the new law.   Spouses of H1-B workers would be eligible to receive work permits if the alien’s home country provides reciprocal treatment to spouses of US workers.

• Family Sponsorship Visas

The current legislation provides for four preference categories based on family relationships. The proposed law combines the current categories and establishes only two family preference categories. It is concerning that the bill eliminates the availability of visas for siblings of US citizens – such visas will be available only for 18 months from the enactment date.

• No More Diversity Visas

If enacted, the proposed bill would repeal the Diversity Visa Program. However, individuals who are selected for fiscal years 2013 and 2014 would still be eligible to receive the visas.

The “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013” is a complex piece of legislation which will most certainly be amended during the following months. The fate of this bill is still uncertain and we want to warn our readers not to trust unscrupulous “immigration specialists” or “notarios” and to seek competent legal advice before filing any immigration application with the US Government. For more information see www.stopnotariofraud.org. Please check back soon on our website and Facebook page for the most recent developments of this exciting process. You can also sign up for our newsletter at www.bromberglaw.com.  

On Friday, March 15, 2013, President Obama announced his decision to extend Deferred Enforced Departure (DED) for certain Liberians, allowing them to lawfully remain in the United States with employment authorization eligibility through September 30, 2014.  The current period of DED was set to expire on March 30, 2013.  USCIS subsequently announced that it would automatically extend work permits for those Liberians with DED for six months to allow them to apply for new cards and to give the agency time to process the applications.  DED, similar to Temporary Protected Status (TPS), is authorized by the President, where a country is designated for TPS by the Secretary of the Department of Homeland Security (DHS). 

USCIS Publishes New I-9 Form

USCIS published a new version of the Form I-9, which all employers are required to complete for new employees.  The form went into effect on March 8, 2013, however employers may continue to use the prior version through May 7, 2013.  A new I-9 form is not necessary for current employees that have a valid executed I-9 on file.  Employees completing the form should be advised that falsely declaring to be a US citizen on the form will raise a ground of inadmissibility, for which there is no waiver and only a limited exception.  An employee who is required to complete the form and is uncertain of his or her immigration status and/or eligibility to work in the US should seek competent legal counsel.

USCIS to begin accepting H-1B petitions on April 1, 2013

The first day that an employee can file an H-1B visa petition for a skilled or professional employee is Monday, April 1, 2013 for positions starting on October 1, 2013.  The amount of H-1B specialty occupation nonimmigrant visas are limited annually by a statutory cap of 65,000.  Additionally the first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degree or higher are exempt from the fiscal year cap of 65,000.  USCIS has indicated that it anticipates a high level of petition submission and that there is a possibility that all statutory numbers will be used within the first five days of accepting petitions.  Applicants can request premium processing for an additional fee of $1225.00.  Under premium processing, USCIS will adjudicate the petition and issue either a decision, a request for evidence or a notice of intent to deny within fifteen (15) days of filing.  Due to the high volume of petitions it is expecting, USCIS will not begin the premium processing of H-1B petitions until April 15, 2013. 

USCIS announces 30 day timeframe to respond to Requests for Evidence (RFE) on Form I-601A Stateside Provisional Waiver Applications

On March 4, 2013 USCIS issued the new I-601A Application for Provisional Unlawful Presence Waiver, allowing certain individuals who will seek an immigrant visa at a US Consulate and will need a waiver for unlawful presence to apply for a provisional approval before leaving the US.  More detailed information about the program can be found in a recent BKM&M blog post. The goal of the program is to minimize the time that US citizens are separated from their close family members while they return to their native countries to apply for the immigrant visa.  For this reason, USCIS recently announced that it will allow only thirty (30) days for applicants to reply to requests for evidence (RFE).  If the RFE is mailed to the applicant there is an additional three (3) days provided by regulation.  For most other applications and petitions USCIS allows 84 days for response.  Only RFEs for an I-539, extension or change of status also allow for only 30 days to respond.  Given this tight timeframe and the benefits of I-601A approval, applicants are well-advised to work with a competent immigration attorney to prepare and submit a thoroughly documented and well-supported initial application to minimize the likelihood of receiving an RFE and to be ready to promptly reply in the event one is issued.

Almost 250,000 granted DACA

As of March 14, 2013, USCIS had accepted 453,589 DACA applications.  Of these, 245,493 DACA applications were approved.  While the processing time was as little as one to two months for many applications filed in August 2012, many cases filed in September or October are still pending. 

In Chaidez v. United States, the Supreme Court affirmed the Seventh Circuit’s opinion that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the earlier Supreme Court case which held that criminal attorneys are obligated to inform clients of the immigration consequences of pleading guilty, established a “new rule.”  Although most competent criminal attorneys have been advising their clients of immigration consequences for many years, Chaidez held that Padilla imposed a new obligation, rather than simply clarifying an old one.  This means that, in most cases, individuals who pled guilty without being informed of the immigration consequences of so doing can reopen their criminal cases only if the pleas were entered after the Supreme Court issued the Padilla decision on March 31, 2010. Individuals who were explicitly misinformed by counsel that there would be no adverse immigration consequences of their pleas should still be able to have their cases reopened under Strickland v. Washington, 466 U.S. 668 (1984), even if their pleas were entered long before the 2010 decision.  However, reopening requires a showing that they were explicitly given misinformation by their attorney (not merely that their attorney said nothing about any adverse consequence), and that they would likely have made a different decision had their attorney advised them accurately.

The Chaidez case involved a 55-year-old Chicago woman who entered the United States in the 1970s and became a lawful permanent resident in 1977. Approximately 10 years ago, Ms. Chaidez pled guilty to involvement in a crime involving insurance fraud, and was sentenced to 4 years of probation.  Her criminal defense attorney failed to inform her that the offense to which she was pleading guilty was an “aggravated felony” and she would therefore be subject to mandatory deportation/removal.

At the time, ICE was not informed of the conviction, and Ms. Chaidez completed her probation without incident, and continued to live in the United States as a law-abiding resident.  However, in 2007, she applied to become a U.S. citizen.  She truthfully answered the question about any criminal history and disclosed her fraud conviction as part of the application process. What Ms. Chaidez did not know when she pled guilty years earlier was that – because more than $10,000 was involved in the total fraud – the crime to which she had pled guilty was considered an “aggravated felony.”  Although she herself had only received a small fraction of the profit from the fraud because of her minor role in the scheme, she was permanently barred from citizenship, and subject to mandatory deportation.  An individual convicted of an aggravated felony is barred from virtually all immigration benefits. If deported, Ms. Chaidez would be permanently ineligible to return legally to the United States.  In 2009, immigration officials put Ms. Chaidez in removal (deportation) proceedings.

In early 2010, Ms. Chaidez asked the Federal District Court in Illinois to vacate her conviction, arguing that her criminal defense attorney  failed in his duty to inform her that pleading guilty would result in automatic deportation. While her petition was pending, the Supreme Court decided Padilla, which confirmed that Ms. Chaidez’s attorney was obliged to advise her of the immigration consequences of her conviction. In light of this opinion, the District Court Judge found that Padilla was simply an application of the traditional rule that attorneys must inform their clients of the repercussions of a plea. The Government appealed to the Seventh Circuit, arguing that Padilla should not apply to cases decided prior to the decision.  By a 2-1 vote, the Seventh Circuit disagreed with the lower court’s decision and reversed. In December 2011, Ms. Chaidez filed a Petition for a Writ of Certiorari to have the Supreme Court of the United States hear the case. Ms. Chaidez asked the court to find Padilla retroactive, and to vacate her conviction. Unfortunately, on February 20, 2013, the Court decided the case, and affirmed the Seventh Circuit’s decision. See the decision here. 

Many individuals who would otherwise be eligible for Adjustment of Status are impeded by the accrual of “unlawful presence” and the associated “bars” from doing so.  Because of the expense and trauma of a prolonged separation from family and the uncertainty as to obtaining the required waiver, many individuals with strong cases choose not to apply.  A change in the waiver application process set to take effect on March 4, 2013 will make this process less daunting and traumatic, enabling more individuals to obtain permanent residence, and eventually citizenship.

Individuals who are subject to either the three or ten year bars for unlawful presence may be eligible for a waiver if they can demonstrate that their inability to return or remain in the U.S. would cause their U.S. citizen or lawful permanent resident spouse or parent extreme hardship.  See INA § 212(a)(9)(B)(v).  It is not necessary that the qualifying relative experiencing the extreme hardship be the petitioner as well.

Who Would Be Eligible?

Only individuals whose sole ground of inadmissibility is unlawful presence of more than 180 days may apply for the provisional waiver.  Additionally, the applicant must be the beneficiary of an approved I-130 or I-360 with classification as an immediate relative. The relative(s) suffering the hardship must be a U.S. citizen spouse or parent. The applicant must be physically present in U.S. at the time of filing the provisional waiver application and must appear for biometrics.  All provisional waiver applicants must be at least 17 years old at time of filing. For purposes of this waiver, U.S. citizen children are not “qualifying relatives.”  Therefore, hardship to U.S. citizen children of the applicant is relevant only as it affects the hardship to the applicant’s spouse or parent(s), even if a U.S. citizen son or daughter over 21 is the petitioner for the applicant.   

A would-be applicant is ineligible if he or she has paid the immigrant visa fee and is not actively pursuing the immigrant visa application process.  Under the proposed regulations, someone who received a notice prior to publication of the rule on January 3, 2012 scheduling an immigrant visa interview may not apply for the provisional waiver unless there is a new visa case.  If the individual is in removal proceedings, he or she may not apply for the provisional waiver until such proceedings are terminated or administratively closed.  Other prohibitions to eligibility include having an active  Notice to Appear (NTA), having a final order of removal, or actively applying for Adjustment of Status. 

How Will It Work?

An eligible individual would file the waiver application with USCIS for adjudication while still in the United States.  The waiver will be filed on a new form (I-601A) which USCIS is developing for the process.  There will be a filing fee of $585 as well as a biometrics fee of $85.  Successful applicants would receive a provisional approval and could then proceed with the immigrant visa process.  The provisional approval would become permanent when the individual departs the U.S., appears for an immigrant visa interview at the U.S. Embassy in the country of origin, and is found eligible for immigration except for the sole ground of  unlawful presence pursuant INA 212(a)(2)(9)(B)(i)(I) or (II) which was waived through the I-601A approval..  Alternatively, the provisional approval would be automatically revoked if the immigrant visa were denied or if the Department of State terminated registration under INA §203(g). 

If USCIS believes additional documentation is necessary before granting a provisional approval, it will issue a request for evidence.  However, if the applicant is still unable to satisfy USCIS as to his or her eligibility, the provisional waiver application will be denied.  USCIS will not provide applicants with a Notice of Intent to Deny and the opportunity to respond.  Although there is no appeal procedure for denied provisional waiver applications, a new application (with fee) may be filed if the first application was poorly documented or circumstances have changed. Alternatively, the applicant has the option of submitting to the traditional application process if the provisional waiver application is denied. 

USCIS has indicated that it will follow the guidance set forth in USCIS Policy Memorandum, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens (November 7, 2011) when determining whether to issue an NTA for those individuals whose waiver applications are denied.  Biometrics will be required for applicants, and if other grounds of inadmissibility are found, such as criminal convictions or fraud, the provisional approval could be reopened and denied.  USCIS could also issue an NTA where appropriate. Because the application has potential risks, careful discussion with an experienced attorney is advisable.   If the individual has already departed the U.S. and is in the process of applying for the immigrant visa at the U.S. Embassy when the additional grounds are discovered, he or she will have to apply for another waiver under the regular process.   

This change is very welcome and will benefit many deserving families.  Our office has considerable experience in preparing successful waiver applications through careful and thorough documentation of hardship to qualifying relative(s).  Please contact us to set up a consultation to further discuss waiver eligibility.

The Immigration and Customs Enforcement (ICE) agency of the Department of Homeland Security issued a new memorandum on December 21st revising its policy on the issuance of detainers.  A detainer is a hold that ICE can put on a foreign national that is under state or federal custody pending criminal charges.  The detainer allows ICE to take the individual into immediate custody upon release from the criminal custody.

The memo makes it clear that a detainer does not need to be issued in every circumstance that a potentially removable foreign national is otherwise in criminal custody.  In the memo ICE stresses a uniform policy based on the enforcement priorities that it set forth in prior memos (See Civil Immigration Enforcement:  Priorities for the Apprehension, Detention, and Removal of Aliens).  According to the memo, detainers should only be issued in the following circumstances:   (1) there is reason to believe the individual is an alien subject to removal from the United States; and (2) one or more of the following conditions apply:

• the individual has a prior felony conviction or has been charged with a felony offense;
• the individual has three or more prior misdemeanor convictions;
• the individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense, if the misdemeanor conviction or pending charge involves
  • violence, threats, or assault;
  • sexual abuse or exploitation;
  • driving under the influence of alcohol or a controlled substance;
  • unlawful flight from the scene of an accident;
  • unlawful possession or use of a firearm or other deadly weapon;
  • the distribution or trafficking of a controlled substance; or
  • other significant threat to public safety; 

• the individual has been convicted of illegal entry pursuant to 8 U.S.C.  § 1325;
• the individual has illegally re-entered the country after a previous removal or return;
• the individual has an outstanding order of removal;
• the individual has been found by an immigration officer or an immigration judge to have
• knowingly committed immigration fraud; or
• the individual otherwise poses a significant risk to national security, border security, or public safety.

In theory, this change in policy announced by ICE is a welcome change.  Too often individuals are otherwise ensnared by ICE and placed into removal proceedings after being arrested on minor charges such as driving without a license, or perhaps even mistakenly arrested for something they did not do.  We hope that ICE truly does uniformly implement this policy and refrains from issuing detainers against such individuals.

The Board of Immigration Appeals (“BIA” or the “Board”) has recently ruled that an alien convicted of possession for personal use of thirty grams or less of marijuana and possession of drug paraphernalia is not deportable if both crimes result from the same incident. Through this decision, the BIA clarified the meaning of the phrase “single offense involving possession for one’s own use of thirty grams or less of marijuana” contained in Section 237(a)(2)(B)(i) of the Immigration and Nationality Act (“INA”).

Section 237(a)(2)(B)(i) of the INA regulates the deportability of aliens who have been convicted of drug-related crimes. This section makes deportable “any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance.” However, the same section establishes an exception that refers to aliens who have committed a “single offense involving possession for one’s own use of thirty grams or less of marijuana.”

Pursuant to this exception, an alien with a drug-related conviction will not be deemed deportable if he or she can demonstrate the following: (1) there was a single offense; (2) the offense involved possession for personal use (as opposed to possession with the intent to distribute) and (3) the quantity of marijuana did not exceed thirty grams.

The Matter of Jennifer Adassa Davey established that an alien convicted of more than one statutory crime (related to the same incident) could still be covered by the exception if, in addition to meeting the three above-mentioned conditions, none of the crimes is more serious than simple possession.

In 2010, Jennifer Adassa Davey (“alien” or “respondent”), a native and citizen of Jamaica, was convicted of possession of marijuana and possession of paraphernalia under the Arizona Revised Statutes. The Immigration Judge (IJ) ordered the respondent released from custody during the pendency of her removal proceedings. The Department of Homeland Security (“DHS”) appealed the IJ’s decision arguing that Ms. Davey was in fact subject to mandatory detention pursuant to INA Section 236(c)(1)(B), which states that aliens who are convicted of drug-related offenses under Section 237(a)(2)(B)(i) of the INA are  subject to mandatory detention.

DHS argued that because the respondent had been convicted of two separate drug-related offenses (possession of marijuana and possession of paraphernalia), the non-deportability exception established by Section 237(a)(2)(B)(i) of the INA did not apply to her and therefore she should have been found deportable and the mandatory detention provisions of Section 236(c)(1)(B) should have been enforced.

The Board dismissed the DHS’s appeal and found that the IJ was correct in determining that the respondent was covered by the exception provided by INA Section 237(a)(2)(B)(i) and that she was excepted from deportability. In order to reach this conclusion, the BIA engaged in a thorough analysis of the meaning of “single offense”, as mentioned by Section 237(a)(2)(B)(i) of the INA. The DHS’s view that “single offense” meant “single generic crime” (which would have made the exception inapplicable) was rejected by the BIA. Instead, the Board agreed with the IJ’s interpretation of the term as being “the totality of an alien’s specific acts on a single occasion.” The Board further noted that the two offenses were committed at the same time, they involved the simple possession of less than ten grams of marijuana, and the drug paraphernalia was actually a small plastic bag which contained the marijuana.  

We welcome the Board’s conclusion that the two crimes should be treated as one offense for the purposes of Section 237(a)(2)(B)(i) of the INA, as numerous aliens in similar circumstances will benefit from the effects of this decision and will be able to avoid deportation.         

One of the forms of relief available in immigration court is “Cancellation of Removal.” There are two kinds of cancellation, one for Lawful Permanent Residents (LPR’s) who meet certain criteria, and one for others. Unfortunately, a maximum of 4,000 individuals are permitted to receive non-LPR cancellation for the entire country. That means that even those individuals who meet the extremely strict criteria may have to wait until the following year to obtain their green cards. This year, the cap was reached in early December, barely more than two months after the beginning of the government’s fiscal year (which begins on October 1).

Cancellation of removal requires that the individual (1) has been physically present in the United States for a continuous period of ten years or more immediately before having been placed in removal or deportation proceedings, (2) has been a person of good moral character, (3) has not been convicted of a crime (with a few exceptions), and (4) the removal of the individual would cause “exceptional and extremely unusual hardship” to the individual’s U.S. citizen or LPR spouse, parent and/or child.  The last requirement is the one that makes this form of relief so challenging to obtain.  Detailed medical, educational, psychological and economic documentation is required to have a chance of success.  But for the rest of this year, even those individuals who can demonstrate that they meet these criteria, and deserve the relief in the exercise of discretion, will have to wait.

In a time where the U.S. is struggling out of a recession, everyone claims to support small businesses.  Young businesses have been touted, correctly, as an engine of economic growth. It is also true that many new businesses fail. So why does the United States Citizenship and Immigration Service subject small businesses to needless hurdles to growth and success?

In July 2010, the United States Citizenship and Immigration Service (USCIS) was sued to force them to release records regarding their procedures and processes for evaluating applications for H1-B workers.  H1-B workers are foreign individuals with Bachelor’s, Master’s, or Doctoral degrees and specialized skills, often gained in U.S. universities. The lawsuit, brought by the American Immigration Council together with Steptoe and Johnson, relied on the Freedom of Information Act (FOIA) to make public the criteria used by the Service for evaluating H1-B visa applications. The lawsuit was needed because USCIS released almost nothing in response to the FOIA request until court-ordered to do so.

H1-B visas are often sought by American companies in need of employees with specialized skills. Many H1-B beneficiaries are recent graduates of American universities. It is understandable that a small company that had hosted a talented intern would want to be able to hire the student after graduation. However, documents released as a result of the lawsuit show that small and emerging businesses are subjected routinely to almost insurmountable hurdles. A “fraud referral sheet” is completed  when a petitioning business displays any of the following characteristics: (1) a gross annual income of less than $10,000,000; 2) has fewer than 25 employees; and/or has been in business for fewer than ten years.   Other than Fortune 500 companies, a large percentage of American businesses would be burdened by a presumption of fraud for one or more of the listed reasons.

The documents released also revealed that certain job titles were considered to be “fraud indicators.”  Suspect titles include marketing research analysts, public relations managers, and budget analysts — jobs which may be vital to a business seeking to expand its market niche.  Small businesses that wish to employ an H1-B specialty worker have been disproportionately burdened by being forced to answer cumbersome and sometimes nonsensical “Requests for Evidence” (RFE’s) in an attempt to overcome the presumption of fraud due to the business’s size, age, and/or the nature of employee needed. In addition they may be subjected to unannounced site visits by investigators. While USCIS has instituted an “entrepreneur in residence” program to educate USCIS about the realities of small business and identify more appropriate fraud indicators, inappropriate RFE’s continue to be issued.

Clearly, it is in everyone’s interest for USCIS to root out fraud. However, the current approach, while it may result in denials of some fraudulent applications, also results in the denial of many legitimate applications, and places an undue burden on the businesses we need to grow our economy. We sincerely hope that more effective and fairer policies and procedures are in the works.