Students at at UNNJ lose their visa!

ICE cancels F-1 Student visas

On April 4 and 5, 2016, the Student and Exchange Visitor Program (SEVP) terminated the visa of nonimmigrant students who had enrolled at the University of Northern New Jersey (UNNJ), and the visas of nonimmigrant students who had transferred from UNNJ.

Why?

The students were found to have knowingly participated in visa fraud because they enrolled at UNNJ to obtain an illegal to maintain their F-1 nonimmigrant status.

UNNJ is a school operated by Homeland Security Investigations (HSI) Newark. It was created as a part of an enforcement action that targeted SEVP-certified schools and officials who sought to fraudulently utilize SEVP and the Student and Exchange Visitor Information System (SEVIS) to commit various violations of federal law.

There are approximately 60 students who are affected and who will receive notification of cancellation of their visa.

Students who are terminated because they were currently  or  enrolled before at UNNJ and choose not to file for reinstatement or have applied to USCIS for reinstatement and whose application is denied, must depart the country immediately.

Not Eligible for Transfer

These students are not eligible for to transfer to another SEVP-certified school unless U.S. Citizenship and Immigration Services (USCIS) approves the student for reinstatement following the student’s termination. Students who transferred to another school from UNNJ will also be terminated and their new school will be notified of the cancellation of their visa.

What to do now?

Call SEVP Response Center at 703-603-3400. This number is staffed from 8 a.m. to 6 p.m. (ET), Monday through Friday, except holidays. The SEVP Response Center is closed every Wednesday from 12:45 to 1:30 p.m. ET for system maintenance and testing.

Provide the following information when calling:

  • First and last name
  • SEVIS ID number
  • Address
  • Telephone number where you can be reached
  • E-mail address
  • Current SEVP-certified school

Nalini Mahadevan JD, MBA

Attorney at Law

314-932-7111 office

nsm@mlolaw.us

website: Mlolaw.us

Disclaimer:  Not meant as legal advice. NOT meant to create an attorney client relationship.  Please call an attorney to obtain advice pertaining to your legal situation.

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A Second Look at Comprehensive Immigration Reform

In February, I wrote about why comprehensive immigration reform has a chance to pass this year; now, it’s time to discuss how immigration reform can strengthen the US as a whole.

Immigration reform has heavy bipartisan support, spearheaded by President Obama and Republican Sen. Marco Rubio (FL). Sen. Rubio is a member of the “Gang of Eight”, the four Democrat and four Republican Senators who have introduced new immigration legislation to Congress — Rubio has also assumed the role of spokesperson for the pending bill in the Senate. The House is also sponsoring several other bills on immigration.

There are security and economic reasons for the US to reform its immigration policy, both of which will have a major impact on the US economy.

The Security Side and the Impact on Employers

Immigration reform is not going to happen without enhanced border security and metrics to measure the levels of security reached. Another measure of security to guarantee a legal workforce is to make both E-verify and Form I-9 compliance mandatory for all employers.  Senate has already earmarked $110 million dollars to these programs — employers should see new compliance regulations soon after a new immigration bill has passed.

In addition, electronic checking of departures by CBP will ensure that non-immigrants depart on the date their authorized stay expires, according to their Form I-94 record. Departures are currently recorded with a paper I-94, which is surrendered upon exiting the US. The new electronic I-94 will record departures from passenger manifests issued by airlines. Entries are currently recorded, but exits from the US are not recorded uniformly at all ports. In addition, the new bill will mandate that all passports be electronically read, which would reduce human error.

It is a misconception that highly skilled visa holders somehow depress US wages. On the contrary, where certain technical skills are in short supply, employers pay top dollar wages for visa holders and high fees to the federal government, as well as jump through legal hurdles to employ these workers. The cost of employing a foreign worker is more expensive than a domestic worker.

The Economic Side

Granting legal status to more immigrants will relieve our labor shortages in both high-skill and low-skill arenas. The educational background of native-born Americans typically includes high school and college education — few are without high school diplomas, and hardly any have Ph.D.s in science, technology, engineering or mathematics (STEM). The educational background of immigrants, on the other hand, is quite different: while many lack high school education, others hold Ph.D.s in STEM fields.

Most of the debate on immigration reform has focused on giving legal status to undocumented immigrants, upon the condition that they pay fees and back taxes. This will certainly have positive effects on our economy; however, we have more to gain from immigrants, both young and old, who, after gaining legal status, decide to further their careers in the US. Once these immigrants feel reassured about their future in the US, they will be more willing to invest in their careers.

One of our current problems is that many skill workers have trouble gaining a foothold onto the path to citizenship. Foreign entrepreneurs and technologists who study in the US are often denied works visas and return to their home country to find success. This issue is both stunting economic growth and causing a brain drain in America.

The number of available temporary visas is rarely revised and is still dependent upon caps and quotas. Our economic conditions have not been taken into consideration. Increasing visas both for high skilled workers, and lower skilled entrants in agriculture and forestry, could have a positive effect on wages and reduce the number of illegal entrants and overstays.

Immigrants also bolster our productivity growth. According to the Wall Street Journal, foreign scientists and engineers, who came to the US with an H1B visa, contributed 10-20% of the yearly productivity growth in the US from 1990-2010. Attracting innovators to our country will undoubtedly create more jobs, as more innovation means more labs, universities and companies doing research. Yet, the US’s H1B visa program only creates 65,000 visas per year for highly skilled workers. That amount has proved to be insufficient, as H1B visas quotas fill very quickly as in the last cap.

There are clear economic and security needs for streamlined and comprehensive immigration reform, and lawmakers and politicians must take action. Congress is set to vote on immigration reform before the July 4 congressional recess.

See you in my next blog.

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

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 2013. All rights reserved.

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Justice Department Finds Practices of Discriminatory Policing in North Carolina

The Justice Department found that the Alamance County Sheriff’s Office (ACSO) in North Carolina operates in a practice of discriminatory policing, specifically targeting Latinos.

Policing Practices in Violation of the Constitution and Federal Law

By using methods that discriminate against Latinos, ACSO has violated the Equal Protection Clause of the Fourteenth Amendment; the Fourth Amendment; the Violent Crime Control and Law Enforcement Act; and Title VI. ACSO’s modes of discriminatory policing are as follows:

  • ACSO deputies target Latino drivers for traffic stops;
  • A study of ACSO’s traffic stops on three major county roadways found that deputies were between four and 10 times more likely to stop Latino drivers than non-Latino drivers;
  • ACSO deputies routinely locate checkpoints just outside Latino neighborhoods, forcing residents to endure police checks when entering or leaving their communities;
  • ACSO practices at vehicle checkpoints often vary based on a driver’s ethnicity.   Deputies insist on examining identification of Latino drivers, while allowing drivers of other ethnicities to pass through without showing identification;
  • ACSO deputies arrest Latinos for minor traffic violations, while issuing citations or warnings to non-Latinos for the same violations;
  • ACSO uses jail booking and detention practices, including practices related to immigration status checks, that discriminate against Latinos;
  • The sheriff and ACSO’s leadership explicitly instruct deputies to target Latinos with discriminatory traffic stops and other enforcement activities;
  • The sheriff and ACSO leadership foster a culture of bias by using anti-Latino epithets; and
  • ACSO engages in substandard reporting and monitoring practices that mask its discriminatory conduct. (source)

Policing Reforms

The Justice Department’s inquiry allowed for a thorough investigation, comprising of a detailed analysis of ACSO policies, procedures, training materials and records on traffic stops, arrests, citations, vehicle checkpoints and other archived evidence. For the inquiry, the Justice Department also interviewed former ACSO employees and Alamance County residents.

In order to reform ACSO’s discriminatory policing, the police department must accept structural and fundamental change by creating and employing new policies, procedures, and training so as to promote constitutional policing. ACSO must also be held accountable for their actions, and guarantee the Justice Department that any unlawful bias has been eradicated. The Justice Department will request a court-enforced, written document that will help to solve ACSO’s violations.

See you in my next blog.

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

Tara Mahadevan

Copyright 2012. All rights reserved.

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New PERM Issues for Employers – Interviewing US applicants

Consider these facts: ABC company has a valuable employee for whom they have filed a PERM application with the Department of Labor. The job requirements are a Master’s degree with a very specific set of skills.

Select International Inc.

In the matter of Select International, Inc., a decision issued by Board of Alien Labor Certification Appeals (BALCA) on 19 September 2012, the board held that if a US worker submits a broad resume in response to an advertisement for a job opening, the employer must not only review the application, but must also provide in-depth reasoning as to why the US worker does not meet the minimum experience requirements for the job advertised.

Select International advertised a position for an industrial/organizational psychologist. The company stated that they would accept any suitable combination of experience, training and education (Kellogg language). Resumes from three potentially qualified applicants were rejected for not meeting the employer’s minimum requirements. Select International did not interview the applicants or send letters of rejection. The employer in particular rejected Avi Avigdor, a US worker who applied for the job opportunity. BALCA denied labor certification because no further consideration was given to his resume beyond a review.

To conduct a recruitment in good faith, an employer “must take steps to ensure that it has lawful job related reasons for rejecting US applicants, and not stop short of fully investigating an applicants qualifications” (E. Tenn. State Univ.). No US worker should be rejected for lacking the skills necessary to perform the duties involved if they are capable of acquiring the skills during a reasonable period of job training, and there is no lawful job-related reason for rejecting the US worker.

Select International stated that the job opportunity was for a person with a masters degree in industrial/organizational psychology and required 36 months of experience, and that coursework must include personnel selection; employment law; legal issues related thereto; candidate testing and selection; job analysis; development of job candidate selection tools; and advanced statistical analysis using statistical methodologies. Select International also state in Form 9089 that it would accept any suitable combination of education, training or experience.

The job required development of new assessment tools and techniques; in-depth statistical analysis; detailed reports; and recommendations. Select International stated that Mr. Avigdor did not meet minimum experience requirements because his 47 months of experience was not related to the job duties to be performed in the  position offered. The company also noted that none of the positions held by Mr. Avigdor involved skills listed on the PERM application, nor did he have the experience to perform the core duties required by the job. Therefore, he did not have the combination of educational training and experience to qualify for the position.

The PERM certification was denied on the basis that Mr. Avigdor’s credentials were not investigated fully.

What is an employer to do?

Given the facts of this case, perhaps the best course of action for an employer is to interview all suitable applicants and to document job-related reasons for rejection. Kellogg language should be used sparingly on PERM applications, unless employers are willing to accept any suitable combination of education, training and experience from US job applicants with broad resumes.

See you in my next blog.

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

Tara Mahadevan

Copyright 2012. All rights reserved.

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How Employers can Reduce Audit in PERM Filings for Roving, Telecommuting and Traveling Employees

The tech industry is facing many challenges today, notably denials from the Department of Labor (DOL) based on very little understanding of how the industry works. Most large employers in the sector are not the ‘job shops’ that USCIS fears; and DOL is convinced the tech industry is engaged in fraud of some kind, or is somehow interested in recruiting foreign workers when willing and able US workers are available!

US employers in this sector pay a premium in governmental application costs and legal fees because they are unable to find a suitable worker in the advertised job. In fact, most recruiters I speak to would prefer to hire locally rather than internationally.

Both USCIS and DOL target employers who file for an employee with job duties involving roving, telecommuting or travelling; USCIS has recently issued guidance on roving employees placed at client worksites, in the H-1b visa context. DOL continues to audit and issue denials for roving, travelling or telecommuting positions. Current audits require employers to define employees’ positions as either national or regional roving without a residential requirement, or roving with a residential requirement. Additionally, DOL has expressed concern that these jobs may not be bona fide opportunities for the positions advertised at the intended place of hire; and, in the case of roving employees with no fixed ‘intended area of employment’, the location chosen to advertise the job opportunity and the wage may be artificial and misrepresented by the employer.

Where to Advertise for Roving Employees

In the past few years, DOL has audited and denied applications where the residential address of the employee does not match the location of employment. DOL decided that this position was for a telecommuting employee, a benefit the employer did not disclose in the advertisement for the position and therefore not disclosed to an eligible US applicant, but offered to the beneficiary as a benefit. A PERM application can also be denied based on job advertisements in the incorrect Metropolitan Statistical Area (MSA). The employer advertised the job where the client worksites were located, instead of the MSA where the employer’s headquarters was located.

In Paradigm Infotech, Inc (BALCA, June, 2007), the employer advertised the roving position in Erie, Pennsylvania where the client worksite was located, instead of the company headquarters. To reach the PERM denial, DOL conducted research on the employer. DOL ascertained that the employer’s headquarters was in Columbia, Maryland as confirmed by employer’s tax records and DOL interviews with employees. DOL also performed site visits to the Erie location of the employer’s branch to ascertain that sufficient office space existed, and parking space was available for the number of employees who were supposed to work there, in accordance with employer’s documentation filed with Board of Alien Labor Certification Appeals (BALCA). Based on short term contracts with client companies, inadequate office space at Erie, and payroll records that confirmed that employees worked at different locations, PERM labor certification was denied by DOL and the denial was upheld by BALCA. BALCA reasoned that the employer needed to test the labor market at the place where the alien was working, and since this was a roving employee and that geographical area of the labor market was unknown, the job market to be tested for PERM purposes was located at the employer’s headquarters.

Following Paradigm, employers with large business units away from company headquarters should also advertise at headquarters location. This is confirmed by the Barbara Farmers Memo: ETA Field Memorandum 48-94§10, published by DOL in 1994 and still followed by DOL.

Prevailing Wage Issues

Employers should also file to obtain prevailing wage determinations from DOL in all the intended areas of potential work sites for the foreign worker. Future locations can be determined from itineraries and statement of work signed with the end client.

Employers with International Locations

In August 2012, BALCA upheld that advertisements in the PERM context also include ‘travel requirements’. The employer in M-IL.L.C., filed a PERM for an employee who was required to travel to international locations as part of the job requirement. This fact was listed on the PERM application Form 9089 and the prevailing wage determination, but not listed on the advertisement for the job opening. 20 C.F.R. § 656.17(f)(4) states, “Advertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must… indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.” The employer’s advertisements did not include the travel requirement. Denial was based on the fact that travel requirements listed on the PERM application and the prevailing wage determination was not matched by the advertisement for the position.

Conclusion

While we cannot with certainty expect every PERM filing with travel requirements to be audited by DOL, we must certainly file like that is a very real possibility. Any filing with the DOL is subject to audit, even if in the past those very same requirements were certified by DOL. The safest course in our uncertain climate is to match information on the prevailing wage with the PERM form, and the employer’s advertisement requirements for the position advertised.

See you in my next blog.

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

Tara Mahadevan

Copyright 2012. All rights reserved.

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Visiting India

India is a very beautiful, colorful place–but like many countries, tourists must apply for a visitor’s visa in order to gain entrance. A foreigner is only granted a tourist visa if he/she does not possess property or a job in India, and whose only goal is recreational: sight-seeing and meeting friends and family.

Apply by Mail

To apply by mail, applicants should fill out and print the application with all the required documents. Send it through a carrier with trackable mail: FedEx, UPS or USPS. Applications sent by mail will take 7-9 business days to process. Once the India Visa Center receives an application, they will notify the applicant of receipt via email and attach an individualized URL that allows the applicant to check on the status of his/her application.

Apply in Person

To apply in person, visit the nearest India Visa Center; bring all required documents and a completed application.

Same Day Visas

Sam day visa applications for US-born US citizens will only be accepted in person by appointment at the India Visa Center. Applicants can choose an appointment time when filling the online application, and will need to pay the application fee in cash or by money order.

See you in my next blog.

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

Tara Mahadevan

Copyright 2012. All rights reserved.

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USCIS Creates a New Online Filing System

Today U.S. Citizenship and Immigration Services (USCIS) launched the first phase of its Electronic Immigration System, known as USCIS ELIS. The system has been created to enable immigration benefit seekers and legal representatives to create an account to file for benefits online.

Who is eligible to file online?

In this first phase, individuals can establish a USCIS ELIS account and apply online to extend or change their non-immigrant status for certain visa types, or file Form I-539. Eligible individuals include foreign citizens who have traveled to the US temporarily to study, conduct business, receive medical treatment, or visit on vacation. You can use USCIS ELIS to extend your status if you are a B-1, B-2, F-1, M-1 or M-2; change your status if want to become a B-1, B-2, F-1, F-2, J-1, J-2, M-1 or M-2; or reinstate your status if you were a F-1 or M-1.

If you are a student on F-1 visa…

Students on F-1 visa may have a date-specific visa, which means there is a completion date and a start date to their course of study. These students are eligible to file and extend their status on USCIS ELIS.

If you are a student and admitted for duration of status, then you should contact your Designated School Official (DSO) to extend your student status. Your I-94 will give the end date as D/S, in which case you cannot change your status on USCIS ELIS.

If you are a student on an M-1 visa, you cannot change your status to an F-1 visa.

If you want to reinstate status, and you were an F-1 or M-1 visa holder, then both you and your spouse can reinstate status on USCIS ELIS, provided you are not subject to any immigration bars and have not overstayed your visa. In other words, you can only reinstate your status if you meet the F-1 criteria for eligibility status under the applicable sections of the Immigration and Nationality Act (INA).

Why use USCIS ELIS?

According to USCIS, this online account will allow you to interact with USCIS; receive email and text notifications; obtain information in real-time; submit electronic evidence; use a US credit card; be represented by an attorney or accredited representative; be assisted by an online setup assistant; and obtain real-time case status information.

To create an account:
Log onto www.uscis.gov/uscis-elis, enter your email, choose a password, answer personal identity questions, and obtain a secure pin number.

See you in my next blog.

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

Tara Mahadevan

Copyright 2012. All rights reserved.

This blog is not intended as legal advice.

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What to Expect at Your Non-Immigrant Visa Interview

See you in my next blog.

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

Copyright 2012. All rights reserved.

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