By Michael Phulwani
US immigration officials are taking H-1B enforcement from the desk to the field with a plan to conduct 25,000 on-site inspections of companies hiring foreign workers over this fiscal year.
The move marks a nearly five-fold increase in inspections over last fiscal years, when the agency conducted 5,191 site visits under a new site inspection program. The new federal fiscal year began on October 1.
Tougher enforcement from US Citizenship and Immigra-tion Services comes in respon-se to a study conducted by the agency last year that found fraud and other violation in one-in five H-1B applications.
In a letter to the US Sen. Charles Grassley (R-Iowa), Alejandro Mayorkas, director of the Citizenship and Immigration Services, said the agency began a site visit and verification program in July to check on the validity of H-1B applications.
“The inspection program determines whether the location of employment actually exists and if a beneficiary is employed at the location specified, performing the duties as described, and paid the salary as identified in the petition,” said Mayorkas, in his letter to Grassley.
Mayorkas is a former federal prosecutor, who was recently appointed by President Barack Obama. He was sworn in during August and since then, “I have worked tirelessly to learn of the condition of our anti-fraud efforts and other critical programs in our agency.”
In September, Grassley, an ardent critic of the H-1B program, asked Mayorkas to outline the steps his agency was taking in regard to H-1B enforcement. Among the issues that Grassley asked for was specific information about companies that are hiring H-1B workers for jobs that don’t exist, and who instead are not paid until contract work is found.
As part of its enforcement effort, Mayorkas said the Citizenship and Immigration Services has hired Dunn and Bradstreet Inc., which provides credit reports among other services, to act as “an independent information pro-vider” and help verify information submitted by companies hiring H-1B workers.
Grassley, a co-sponsor of legislation that will increase H-1B program enforcement, said recently, that “if employers are hiring visa holders without actual jobs lined up, American workers are losing out. Employers must be held accountable, and should be required to submit contracts and itineraries to prove that a job exists. Simply having them attest that they are complying with the law isn’t good enough.”
Immigration attorneys have seen an increase in demands for documentation from the Citizenship and Immigration Services as part of the approval process.
CBP warns of tougher stance on returning lawful permanent residents with criminal convictions
On September 29, 2009, Customs and Border Protection (CBP) National Headquarters verified that as of October 1, 2009, there is an increased likelihood that Legal Permanent Residents (LPRs) with criminal convictions (even if the convictions have been expunged) will be issued a “Notice to Appear” (NTA) for immigration court proceedings at the port of entry into the United States, rather than being granted deferred inspection. Deferred inspection occurs when a decision on the immigration status of an arriving traveler cannot be immediately determined at the port of entry due to a lack of documentation. Conducted by CBP officers on a subsequent occasion, after the foreign national is granted admission to the United States, deferred inspection is often used to correct errors made (on I-94 arrival/departure documents for instance) at the time of entry. The issuance of an NTA is harsher posture by the CBP, because it is a charging document ordering the foreign national to appear before an immigration judge. A failure to appear in the immigration court when scheduled, in the absence of an exceptional reason, results in an order of deportation” in absentia.” A missed deferred inspection appointment can result in the issuance of an NTA.
While deferred inspection for returning LPRs with criminal convictions is still an option, it is alarming that the issuance of NTAs is more probable. It is especially disturbing that CBP has signaled that they may begin to detain more LPRs who issued NTAs depending on factors such as the nature of the conviction, available space in detention centers, and CBP staffing. This shift in CBP policy is apparently intended to minimize missed deferred inspection appointments. This change in policy has already been instituted in Georgia and Florida.
Under Immigration and Nationality Act (INA), LPR cannot be detained at the port of entry as long as they provide evidence proving their conviction is not grounds of inadmissibility, or a bar to entry. In addition, the INA provides LPRs with criminal convictions prior to 1997 cannot lawfully be found inadmissible by CBP.
We recommend that any LPRs with previous arrests or convictions, even if they have been expunged, consult with an attorney prior to leaving the United States, as these policies may affect their re-entry and ability to maintain permanent resident status.
Michael Phulwani is a prominent attorney admitted to practice law in New York, New Jersey and India. He practices immigration and nationality laws and visa matters in the USA and abroad. He is a frequent lecturer on immigration laws and co-hosts several TV and radio programs on immigration. In this column, Phulwani will discuss frequent problems relating to immigration legislation and answer questions from our readers. All questions should be forwarded to Michael Phulwani, 888 Maywood Avenue, Maywood, NJ 07607.