New Look to Green Cards & EAD Cards  

USCIS will start issuing redesigned cards with enhanced graphics to applicants.  The new cards will start being issued on May 1, 2017.

These redesigns use enhanced graphics and fraud-resistant security features to create cards that are highly secure and more tamper-resistant to prevent document tampering, counterfeiting and fraud; than the ones currently in use.

The Redesigned Cards

The new Green Cards and EADs will:

  • Display the individual’s photos on both sides;
  • Show a unique graphic image and color palette:
  • Green Cards will have an image of the Statue of Liberty and a predominately green palette;
  • EAD cards will have an image of a bald eagle and a predominately red palette;
  • Have embedded holographic images; and
  • No longer display the individual’s signature.

Also, Green Cards will no longer have an optical stripe on the back.

How To Tell If Your Card Is Valid

Some Green Cards and EADs issued after May 1, 2017, may still display the existing design format as USCIS will continue using existing card stock until current supplies are depleted. Both the existing and the new Green Cards and EADs will remain valid until the expiration date shown on the card.

Certain EADs held by individuals with Temporary Protected Status (TPS) and other designated categories have been automatically extended beyond the validity date on the card.

Employers, please note that both the older version and the new cards are acceptable for Form I-9, Employment Eligibility Verification, E-Verify, and Systematic Alien Verification for Entitlements (SAVE).

Some older Green Cards do not have an expiration date.  These older Green Cards without an expiration date remain valid.

Individuals who have Green Cards without an expiration date may want to consider applying for a replacement card bearing an expiration date. Obtaining the replacement card will reduce the likelihood of fraud or tampering if the card is ever lost or stolen.

Nalini S Mahadevan, JD, MBA ▪ nsm@mlolaw.us ▪ Office: 314.932.7111 & 314.402.2024

Disclaimer:  Not meant as legal advice! For information purposes only.

 

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Pointers for Corporate Executives Applying for U.S. Citizenship

Are you a globetrotting corporate executive, here in the America one day and the next in China or Europe?

Do you have permanent residency in America?

If you answered in the affirmative, then we need to talk and plan.

Plan your stay in the U.S. and travel outside the country, so that you have at least 6 months during a calendar year in the U.S.

If there is a possibility of being transferred overseas to another country for a new job with your American company, file an application to preserve U.S. residency.

Join Global Entry to bypass long lines at international and domestic airports.

Lastly, don’t forget your family.  Update their green cards if they were issued when the children were little.  That may avoid an unpleasant interview when they enter the U.S.   Apply for re-entry permits for your family if they plan on staying overseas for a year or more while you travel.

Nalini Mahadevan, JD, MBA   Attorney, MLO Law LLC

www.mlolaw.us      nsm@mlolaw.us    314.932.7111

Of course this is not meant as legal advice, but information shared in the expectation it may help employers, employees and their representatives.

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USCIS wants to increase fees!

USCIS proposes increasing filing fees of a lot of commonly used applications.  Most of them are for business immigration filings and family based immigration applications.  See some of the proposed fee increases below.

You can make a comment on the fee increase until July 5, 2016. USCIS depends on the fees to pay for its services. So USCIS was one of the few agencies not affected by the government shut down last year.

Proposed fees

Form Purpose Current Fee Proposed Increase Change
I-129 For Worker $325 $460 +$135
I-130 For Family immigration $420 $535 +$115
I-140 For Work based immigration $580 $700 +$120
I-485 Work/Family GC* $1,070 $1,225 +$155
I-539 Change visas $290 $370 +$80
I-765 Work authorization $385 $410 +$30
I-90 Renew GC $365 $455 +$90
I-129F Fiancé Visa $340 $535 +$195
I-751 Get a 10 year GC* $505 $595 +$90
N-400 Naturalize $595 $640 +$45
N-600 Citizenship Certificate $600 $1170 +$570

*Green Card

Nalini S Mahadevan, Esq

P: 314.932.7111  nsm@mlolaw.us   www.mlolaw.us

Disclaimer: Please do not rely on this blog for legal advice.  Call me if you want to get advice and sign an engagement letter with my law firm.

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PERM Plans to Modernize Recruitment Process

The US Department of Labor announced that it is modernizing US worker recruitment for the PERM process.

DOL has not comprehensively examined and modified the permanent labor certification requirements and process since their inception 10 years ago. Over the last 10 years, much has changed in our country’s economy, affecting employers’ demand for workers as well as the availability of a qualified domestic labor force. This past fiscal year, employers submitted over 70,000 PERM applications requesting foreign workers. The majority of those job openings were for professional occupations in the Information Technology and Science fields.

Over time, demands for labor have increased, and surpluses for various types of workers have changed. Advances in technology and information dissemination have dramatically altered common industry recruitment practices, and the DOL has received ongoing feedback that the existing regulatory requirements governing the PERM recruitment process frequently do not align with worker or industry needs and practices.

To respond to change, the DOL is working on new regulations for the following:

  • Options for identifying labor force occupational shortages and surpluses, and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;
  • Methods and practices designed to modernize U.S. worker recruitment requirements;
  • Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
  • Ranges of case processing timeframes and possibilities for premium processing; and
  • Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

The objective of the DOL is to align DOL recruitment methods with that of the U.S. immigration system and needs of workers and employers, and to enhance the integrity of the labor certification process.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Copyright 2014. All rights reserved.

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TN and L Visa Holders Enter at Select Ports of Entry to US from Canada

Beginning in mid-September, US Customs and Border Protection (CBP) is streamlining the entry process for first-time Canadian TN and L applicants seeking entry into the US under NAFTA. CBP has designated ports of entry that will ensure a more efficient approach to processing the high volume of TN and L applicants.

The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the US to engage in business activities at a professional level. The L-1 nonimmigrant classification — Intracompany Transferee Executive or Manager — enables a US employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the US. This classification also enables a foreign company that does not yet have an affiliated US office to send an executive or manager to the US with the purpose of establishing one.

While there is no requirement to go to these designated ports of entry, first-time applicants are encouraged to enter through these ports for ‘optimized processing’ at 14 ports, including 4 pre-clearance centers.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Copyright 2014. All rights reserved.

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Massachusetts’ Immigrant Program for Students

Massachusetts has created a loophole program, called Global Entrepreneur in Residence (GER), to permit foreign students to stay legally in the US.

Foreign students who attended college in Massachusetts and who want to pursue entrepreneurial activities in the state can apply to the GER Program, which is being run by the Massachusetts Tech Collaborative, an independent state agency designed to promote the advancement of technology in the state. Chosen individuals will be given a job at a participating universities in Massachusetts—the students will work part-time and will submit visa applications sponsored by the university. The program is expected to grow 46,000 jobs for students.

US immigration law dictates that foreign students can study at US colleges and universities under a student visa—after they graduate, their visas expire and they have to find a US employer to sponsor them for an H-1B visa. The H-1B visa system inherently poses a disadvantage for entrepreneurs, the system only allows for a once-per-year application process—in the form of a lottery—and the slots fill up quickly. On April 7, 2014, USCIS reported that it had secured its quota of 85,000 H-1B visa petitions only five days after it began receiving applications.

This is why the GER Program’s loophole is important: colleges and universities are immune to the cap and can submit applications for employers at any time. This means foreign graduates have a higher chance of obtaining a visa through the GER Program, and through employment with higher-education institutions, because these institutions are exempt from the cap.

The House bill proposed to devise a new category of startup visas for foreign entrepreneurs, while also raising the amount of H-1B visas accessible to immigrants with advanced degrees. While the Massachusetts program is yet to be funded, this is a great start for foreign graduates whom the US needs to retain!

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Copyright 2014. All rights reserved.

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The Good Faith Criterion: Lessons Learned From US vs. M&D Masonry and Form I-9

In 2010, ICE alleged in two counts that M&D Masonry committed 364 violations against the Immigration and Nationality Act (INA). The first count charged that 277 of M&D’s employees didn’t correctly complete section 1 and 2 of Form I-9; the second count charged that M&D didn’t have proper paperwork for 87 additional employees. The company refuted ICE’s allegations, and protested to 40 of the 277 violations named in Count I, and six of the 87 violations named in Count II.

For Count I, the government contests that M&D failed to ensure that:

  • 34 employees signed the attestation in section 1 of Form I-9;
  • 60 employees checked a box in section 1;
  • three employees attested to only one status in section 1; and
  • 10 employees who attested to status as lawful permanent residents entered their respected alien numbers on the adjacent line.

For Count II, M&D failed to:

  • complete section 2 of Form I-9 properly;
  • sign section 2;
  • record the issuing authority for a List B document;
  • provide the document number for List A, List B, and List C documents; and
  • review both List B and C documents.

Additionally, M&D instead accepted unacceptable documents, and didn’t examine or authenticate many I-9 forms within three business days of the individual’s hire date.

Among the defenses, the company alleges that the proposed monetary fines are exorbitant and do not consider the M&D’s financial abilities; and that ICE’s enforcement practices are unreasonable and impulsive. On January 6, 2014, ICE revised its complaint and retracted 25 of the named persons in Count I. According to the US government, M&D supplied satisfactory evidence that demonstrated that those employees had been dismissed before ICE’s inquiry, and wasn’t within the purview of the audit.

Lesson 1

A newspaper article is actually what led ICE to inspect and fine M&D Masonry. On April 30, 2010 an article titled “Illegal hiring for airport construction?” was printed in the Atlanta Journal Constitution. The article cited a hiring foreman for M&D who said that the company was hiring people without sufficient work authorization. ICE conducted a worksite enforcement inquiry on May 7, 2010; subsequently, ICE served M&D with a Notice of Inspection (NOI) for current and past employee I-9 forms from May 7, 2007 to May 7, 2010, and for employment records, payroll data, and wage and hour reports. ICE then issued M&D with slew of other notices throughout 2010 and 2012, including a Notice of Technical and Procedural Failures (NTPF), a Notice of Suspect Documents (NSD), and a Notice of Intent to Fine (NIF).

Lesson 2 & 3

M&D was timely in their response to ICE, and filed a Request for Hearing a month after ICE issued the NIF.

After acquiring and studying M&D’s Wage Inquiry by Employer Number records—obtained from the Georgia Department of Labor—Count II of ICE’s allegations concluded that M&D failed to prepare I-9 forms for 87 employees. M&D’s violations in Count II are far more egregious than Count I because failure to properly prepare and/or present I-9 forms destroys the purpose of the INA.

Penalties

M&D believed that ICE should fine the company based on its financial means; however, the governing statute asserts that such consideration is only applicable in five certain circumstances; M&D did not fall within the scope of those circumstances. While some OCAHO cases have previously taken financial means into consideration when determining penalties in a case, such leeway is not required of the government.

ICE fined M&D $332,813.25 for 339 violations, where each violation cost $981.75. Each violation incurred a baseline penalty of $935, also taking into account the employer’s 84% error rate. ICE heightened the penalties by 5 percent for the significance of the violations—over 100 I-9 forms were purportedly verified by signature stamp, although section I of the forms reflected various dates—and 5 percent for the size of the company: M&D had been in business for over 20 years, employed over 400 workers in a three year period, had a payroll of $4.3 million, and a large amount of contracted work. ICE handled the inclusion of unauthorized workers and absence of previous violations as neutral; ICE also lessened the penalties by 5 percent due to the good faith criterion.

ICE was charitable by applying the good faith criterion in M&D’s case. The good faith criterion is gauged by a study of whether the employer tried to comply with the INA obligations before the delivery of the NOI. Since M&D’s case isn’t the most extreme example of the INA violations, the penalties were lessened to a grand total of $228,300.

Takeaway

Incorrectly preparing and/or presenting a Form I-9 is one of the grievous paperwork violations an employer can make. Good faith is only taken into account when an employer actually attempts to determine its legal duties and yield to them. When judging suitable violations of the INA, the following must be favored:

  1. size of the employer;
  2. employer’s good faith;
  3. gravity of violations;
  4. whether an individual is an unauthorized alien; and
  5. employer’s history of previous violations.
See you in my next blog.
Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.Copyright 2014. All rights reserved.

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Employer Defense In a Complaint of Documentary Abuse

The Office of the Chief Administrative Hearing Officer (OCAHO) has direct purview over three types of cases stemming from the Immigration and Nationality Act (INA). In this case—Salim Hajiani vs. ESHA USA, Inc. and Sameer Ramjee—Hajiani, the complainant, alleged that the respondent engaged in two of the three areas of jurisdiction over which OCAHO resides: immigration-related unfair employment practices and immigration-related fraud, which are both in violation of the INA.

Hajiani registered a complaint against ESHA USA and Ramjee, accusing the respondents of document abuse, firing Hajiani due to his citizenship status, and taking revenge on him because of a religious discrimination complaint he filed against a former employer. Salim Hajiani is a lawful permanent resident of the US.

Hajiani was hired on October 10, 2011 at Sameer Ramjee’s gas station and convenience store, ESHA, which is in Philadelphia, Tennessee. Hajiani worked at the store until January 10, 2012, when he was fired. On June 26, 2012, he filed a complaint with OSC, to which OSC responded that the complaint didn’t fall under their jurisdiction. Hajiani then filed a charge with OCAHO in February 8, 2013.

Hajiani’s complaint against his employer was a detailed litany of purported incidents of document abuse and job complaints, such as long hours, no overtime pay, and double shifts. He also specified that one of the reasons he was fired was because Ramjee preferred to employ undocumented workers so that he wouldn’t have to pay them overtime or give them benefits.

Hajiani made various allegations against other employees that were not under the scope of OCAHO’s jurisdiction—complaints of undocumented workers also do not fall under the Immigration Reform and Control Act (IRCA). Such instances include cash register shortages, sexual harassment, allegations of tax fraud, selling tobacco to minors, and that he wasn’t hired for store’s first shift because only US citizens were allowed to work that shift. Hajiani also noted in his complaint that his claim was filed timely.

However, his claim of document abuse was not filed in a timely manner. Hajiani alleged that the document abuse occurred in October 2011, but didn’t file the charge with OSC until June 26, 2012. The IRCA strictly says, “no complaint may be filed respecting any unfair immigration-related practice occurring more than 180 days prior ot the filing of a charge with OSC.” Hajiani’s complaint would only have been valid for events after December 29, 2011.

None of Hajiani’s claims—his filed complaint of religious discrimination with the US Equal Employment Opportunity Committee (EEOC), nor his complaints about the terms and conditions of his job—come under the purview of OCAHO, or are protected by IRCA. OCAHO only covers hiring, recruitment, and discharge.

Moreover, Hajiani never submitted evidence that any discrimination occurred. If Sameer Ramjee had been prejudiced against Hajiani, then Ramjee would never have employed Hajiani. Hajiani provided too many explanations of why he was fired, allowing OCAHO to conclude that Hajiani did not divulge his own behaviors that caused Ramjee to fire him.

OCAHO dismissed Hajiani’s complaint against his employer.

See you in my next blog.
Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.Copyright 2014. All rights reserved.

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The US needs more H1B visas

The Visa Lottery

On April 7, USCIS announced that it had received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption.

USCIS received about 172,500 H-1B petitions during the filing period which began April 1, including petitions filed for the advanced degree exemption. On April 10, 2014, USCIS completed a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and 20,000 cap under the advanced degree exemption. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

Advanced Degrees Get Two Bites of the Apple

The agency conducted the selection process for the advanced degree exemption first. All advanced degree petitions not selected then became part of the random selection process for the 65,000 limit.

On March 25, USCIS announced that they would begin premium processing for H-1B cap cases no later than April 28.

Non-Cap-Based H1B Visa Applications

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the Congressionally mandated FY 2015 H-1B cap. USCIS will continue to accept and process petitions filed to:

  •  Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position.

Premium Processing H-1B Visas

USCIS provides premium processing service for certain employment-based petitions and guarantees a 15-calendar-day processing time.

USCIS will continue to accept Form I-907, Request for Premium Processing Service, with fee, concurrently with the Form I-129, Petition for Nonimmigrant Worker, during the time period that premium processing is unavailable. Petitioners may also upgrade a pending H-1B cap petition to premium processing once USCIS issues a receipt notice.

While the Form I-797 receipt notice indicates the date USCIS received the premium processing fee, the 15-day processing period set by 8 CFR 103.7(e)(2) will begin no  later than April 28, 2014. This allows for USCIS to take-in the anticipated high number of filings, conduct the lottery to determine which cases meet the cap, and prepare the volume of cases for premium and regular processing.

The 15-day processing period for premium processing service for H-1B petitions that are not subject to the cap, or for any other eligible classification, continues to begin on the date that the request is received.

Clearly, since there are so many applications, more visas should be issued. The cost of non-availability of specialized knowledge workers for the US economy is enormous!

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan
Copyright 2014. All rights reserved.

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Alternatives to H1B visas

The H1B visa season is upon us, the filing date was on April 1, 2014, and like last year is expected to be oversubscribed. What visas can a company consider once the H1B visas are exhausted for the season?

This year, let us consider non-H1B countries, where alternative visas are available for skilled workers.

For Mexicans and Canadians

The TN visa under the North American Free Trade Agreement (NAFTA). Until this time, only Canadians could apply directly to the consulate or embassy or enter through the Canadian/US border with the proper credentials.

On February 10th, 2014, the US Department of State published a final rule that Mexicans applying for a TN visa could apply at the consulate or embassy in the US without first seeking approval from USCIS, or before applying for a TN visa at the US embassy or consulate in Mexico.

This is a giant leap forward for immigration, according similar trusted status for citizens south of the border.

Of course, applicants must be sponsored by an employer with a genuine job offer, and job duties must conform to the NAFTA guidelines.

While TN visas require non-immigrant intent—which means the applicant cannot apply for a green card from a TN visa status—the visa allows renewal in the US, and under tax treaties, allows the worker to accumulate the equivalent of Social Security in their country of origin.

There used to be a ceiling on admissions of TN, but that is not the case anymore.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan
Copyright 2014. All rights reserved.

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