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Backlog News-Breaking News
For those of you who have been anxious to know (and you know who you are) the Department of Labor PERM website at www.plc.doleta.gov now indicates that the Backlog will be eliminated by September 30, 2007.

Volume I-7 August Newsletter

Premium Processing

The CIS recently announced that Premium Processing will be available for most employment based third preference immigrant visa petitions beginning August 28, 2006. For an additional $1000.00 the case will be reviewed in 15 calendar days. If an RFE is issued the Service has an additional 15 days to review the case. Why premium process a third preference I-140? Consider the ability to obtain a three year extension of your H rather than extending in one year increments. The other worker category is ineligible to premium process..

Keep Good Records

We previously have written about the importance of recording your departures from the United States. We have available a work sheet which you can use the record this information. Please contact us at info@inslawonline to request a copy. Attach to this worksheet the following:

• Original boarding passes used to depart the United States
• Photocopies of entry or departure stamps
• Dated records showing transactions in another countryWe suggest that when changing employers, retain your last dated pay record and if at all possible, a letter confirming the exact dates of employment and job title and minimum

If your status is amended as a result of a change in corporate status, maintain copies of

Social Security Mis-Match

ICE (Immigration and Customs Enforcement) has proposed an amendment to the regulations relating to the unlawful hiring or continued employment of unauthorized aliens.

An employer can be in violation of Section 274A(2) of the INA by having constructive rather than actual knowledge that an employee is unauthorized to work. The proposed rule would amend the definition of “knowing” found at 8 CFR 274.a.1(l)(1) in the portion relating to constructive knowledge.

Under the current rule, if an employer fails to take reasonable steps after receive such a letter from the SSA or DHS, and in fact the alien is unauthorized, the employer may be found to have a constructive knowledge of the fact.

The proposed rule would use a “totality of the circumstances” test. The proposed rule specifically sets forth the steps that would be considered reasonable.

1. A reasonable employer would check its records promptly after receiving a no-match letter to determine if there was a clerical or typographical error (within 14 days from receipt of the letter is promptly);
2. If the above actions do not resolve the discrepancy, the employer would promptly request the employee to confirm the employer’s records are correct. If they are not correct, a reasonable employer would ask the employee to personally pursue the matter by visiting the relevant agency.

The proposed regulation provides that a discrepancy will only be considered resolved if the employer then verifies the information with the relevant agency. Employers may contact the SSA at 1-800-772-6270 from 7:00 a.m. – 7:00 p.m.(EST) or on line at www.ssa.gov/employer/ssnv.htm
If the discrepancy is not resolved in 60 days of receipt of the no-match letter, the regulations describes a verification procedure an employer may follow to identify the employer’s employment authorization.

We will provide additional information if ICE adopts this regulation. We wee these additional administrative burdens on the employer as an extreme hardship especially within the time frames provided. We have seen delays of months as the SSA is unable to verify immigration status through the DHS SAVE (Systematic Alien Verification of Entitlements) database. The database is often replete with errors. More to come.

Benefits in Removal Proceedings

If you are in removal proceedings or before the Board, USCIS has updated their website describing the process to apply for various immigration benefits while in removal proceedings. www.uscis.gov/graphics/service/residency/CourtBenefits.htm

U.S. – Visit

The U.S. visit program is an integrated automated biometric entry and exit system that records the arrival and departure of aliens. Aliens subject to U.S. visit (which is almost everyone) may be required to provide finger scans, photographs, or other biometric identifiers upon arrival or departure from the United States.

Those of you who travel frequently on business may have visited a kiosk at the airport prior to departing the United States. Self-serve stations have been set up at many airports for you to insert your passport, do finger scans and a photograph. The machine issues you a receipt for confirmation to board a plane.

Aliens subject to N-SEERS must register their departure (including visits to Canada and Mexico) by appearing in person at a designated port of entry. There are a list of designated ports for departure on the ICE website. Record your FIN (Fingerprint Identification Number) in a safe place. If you are not sure if you are in N-SEERS alien, contact your attorney after reviewing the ICE website.

Chelladurai v. Infinite Solutions

Chelladurai filed a Complaint with the Wage and Hour Department of Labor. The company had filed an LCA (Labor Condition Application) on April 09, 2001. The employer filed an Application To Transfer her H-1B to the company on December 14, 2000 which was ultimately approved on April 16, 2001.

On May 21,2001, the employer notified Chelladurai that they were unable to find work for her. Chelladurai sought back pay from January, 2001 arguing that she was present in the employer’s office receiving training and soliciting potential work for herself as an employee arguing that she intended to take advantage of the portability rules (making her eligible for employment upon the filing of a non-frivilous application)

The employer argued that the supporting letter to the H-1B specifically stated the alien was to begin upon approval of the Petition.

The investigator found that the company owed back wages from April 16, 2001 until the termination date. The alien appealed and the Administrative Law Judge which affirmed the decision of Wage and Hour. The alien appealed to the Administrative Review Board of the Department of Labor. On July 24, 2006 the Board found that the wage listed on the LCA rather than the wage in the employer’s initial offer to Chelladurai, was the appropriate wage to assess back wages against the employer. (The prevailing wage was $54,558.40, the offered wage as $65,000.00) In addition the Board found that the date the alien presented herself for work, in this case in January of 2001 was the date from which wages were to be paid.

We do not suggest employers rely on this case for guidance. The enforceable wage obligation for an employer of an H-1B non-immigrant is the actual wage level or the prevailing wage level listed in the LCA, whichever is greater. In this case the company listed a higher wage in the petition and supporting letter but did not do so on the LCA.

S & K Happenings

Attorney Martin Kascavage will be a presenter at the September 9th Continuing Legal Education Seminar sponsored by the Philadelphia Chapter of the American Immigration Lawyers Association. His topic will be “Defensive Applications in Removal Proceedings.”

Four S&K Attorneys were spotted behind home plate in the Hall of Fame Box during the recent 14 inning Philadelphia Phillies win over the Reds.

Newsletter Archive

The information contained in our newsletter is not meant as legal advice. The information is of a general nature and does not create an attorney client relationship. Please consult a qualified attorney and discuss the specific facts of your case before taking any action.