US Labor Department Vigorously Combats Visa Fraud

In line with President Donald Trump’s “America First” campaign promise, US Labor Secretary Alexander Acosta recently announced that they will be more aggressive in their investigation of foreign visa programs that are used by entities in committing fraud and abuse and consequently harming American workers.

Secretary Acosta said that they will work together with the Department of Justice and the Department of Homeland Security to further investigate and detect visa fraud.

Last April, the Department of Homeland Security zeroed in on the H-1B program and announced further anti-fraud measures on said program. Under the H-1B visa program, US companies can recruit highly-skilled foreign nationals to fill in gaps when there is a shortage of qualified workers in the country. Critics of the program however have argued that the governing laws for this program is lax and the investigative authority of the Labor Department is restricted and has then resulted in companies replacing US workers with cheap foreign labor.

To combat fraud under this program, USCIS will take a more targeted approach in making site visits across the country and focus on cases where USCIS cannot validate the employer’s basic business information through commercially available data. They will also focus on H-1B dependent employers or those having a high ratio of H-1B workers compared to US workers and employers petitioning for H-1B workers who work off-site at another company or organization’s location.

For their part, the US Department of Labor will vigorously enforce all laws within their jurisdiction to deter fraud in the visa issuance programs. Several divisions under the DOL are made to maximize its tools to enforce labor protection laws while reinforcing civil investigations and making criminal referrals to the Office of the Inspector General.

The department has also begun promoting the hiring of Americans and making sure workers are under safe working environment. They have recently brought a case against G Farms for illegal and life-threatening housing conditions of agricultural workers in Arizona. The department was successful in obtaining a preliminary injunction under the H-2A visa program against the company.

Part of the department’s efforts not only zero in on companies but also lawyers, recruiters, government employees and labor brokers. In fact, even prior to this recent announcement from the DOL, a New York-based health care company owner and her husband, who is an immigration attorney, were sentenced to 24 months of probation and ordered to pay $1 million in forfeiture after being found guilty of conspiring to defraud the H-1B program. Their company, NYC Healthcare Staffing and LHK Consulting filed H-1B petitions for registered nurses. Because registered nurses are not H-1B positions, they falsified their job titles and duties and even work locations and they were able to obtain work visas for over 100 mostly Filipino nurses. They even misled the USCIS to make it appear that they were not a staffing company.

Many more cases have been filed and many more are expected as the DOL vowed to aggressively use criminal referrals to achieve their end.

Consular Scrutiny on Spouse and Fiancé(e) Petitions

By Reuben Seguritan

July 5, 2017

Marriage is a big change in one’s life.  A lot of preparation goes into planning the wedding and how the couple will start their life together. The process will be longer and often times more complicated if the United States citizen will marry a foreigner who is not in the United States. If the United States citizen has already married the foreign spouse outside the United States, bringing the spouse to the United States is also complicated. Both situations could encounter the same problems when their petitions are being processed by the United States Consular office in the foreign country.

In order for the United States citizen to bring his/ her fiancé(e) to the United States, the United States citizen must file the I-129F petition with the USCIS along with evidence of the relationship, including evidence that the two have met in person within the last two years. Both must also be free to marry and have a bona fide or good faith intention to marry. If the petition is approved, the foreign fiancé(e) will apply for the K-1 visa at the United States consulate or embassy abroad.

If the United States citizen and the foreign fiancé(e) already married abroad, the United States citizen must file the I-130 petition with the USCIS along with evidence of the marriage in order for the foreign spouse to obtain a green card and move to the United States.

The first challenge for the couple at the Consular level is a review of the relationship on the ground of fraud. The Consulate might deny the petition if it finds that the marriage is a sham and it was only entered into to bring the foreigner to the United States. The following grounds may trigger a fraud review: 1. Age difference between the United States citizen and the foreigner; 2. Foreigner is from a country where marriage fraud and marriage arrangements for money are common; 3. Marriage occurred shortly before the filing; 4. Marriage was triggered by another event (business or job opportunity in the United States, etc.); 5. Previously married in high-fraud place or in a country where bigamy is culturally accepted; 6. Either party has sponsored, or has been sponsored for a marriage-based case before and abandoned the case or did not explain why the previous case was withdrawn or denied; 7. The couple does not speak the same language; 8. Missing proof of daily contact between the couple.

The second challenge for the couple is the lack of transparency at the Consulate. The Consulate is not required to directly speak with the foreign spouse or fiancé(e) and explain why the petition was denied or why the fraud review was triggered. The Consulate will give a brief response only. This lack of transparency is linked to the fact that there is no system of external oversight for visa issuance decisions. It is possible for the consular office to be bias and apply inconsistent standards to the visa applications.

However, after a denial of the petition, the United States citizen has the right to reconsideration. That is, he has the right to know the legal basis for the decision and be given an explanation in writing. The United States citizen may also request for an advisory opinion from the Visa Office Advisory Opinions Division after the decision.

The third problem for the couple is the fact that consular decisions cannot be reviewed by the courts. The couple cannot file a suit against the consular office because the petition was denied. The United States government has the right to decide who may or may not enter its country. Furthermore, the right of due process does not apply to foreigners residing abroad, even if they are married to United States citizens.

In conclusion, it would be best for the couple to consult an attorney before submitting any petitions and evidence to the USCIS. The best course of action would be to file everything correctly and completely from the start.

Identifying Overstaying Nonimmigrants

Identifying Overstaying Nonimmigrants

By Reuben Seguritan

May 31, 2017

Foreigners who overstay their visas face grave consequences for not leaving when they are supposed to. If the foreign national remains in the United States beyond his authorized period of admission, then he is overstaying. All foreign nationals who have overstayed will be considered out-of-status and hence, deportable under US immigration laws.

Another consequence of overstaying is that the visa which he used to enter the United States would be automatically cancelled. For example, a foreign national enters the United States on a Tourist Visa (B-2) and is given 6 months at any given time. If he overstays beyond the 6-month period, then his B-2 visa even if it has a 10-year validity, is automatically cancelled. There is no waiver or forgiveness for this and a new visa must be obtained from the US Consulate in his home country to return to the United States in the future.

Furthermore, if the foreign national overstays for 180 days or more, then he will be barred from returning to the United States for 3 years. If the foreign national overstays for a year or more, then he will be barred for 10 years.

Despite these severe penalties, there are thousands of people who overstay their visas. The Department of Homeland Security (DHS) has recently reported that of the 50,437,278 in-scope nonimmigrant admissions through air or sea ports in fiscal year 2016, 739,470 individuals overstayed their visas.

Since 2007 according to the DHS, the number of people overstaying their visas has exceeded the number of people crossing into the United States illegally every year. It is estimated that 40% of the undocumented immigrants in the United States entered the United States legally with valid visas, but then overstayed. There are two types of overstays. The first refers to those with no record of departures. These are known as “suspected In-Country Overstays.” The second refers to those with record of departure after their authorized stay expired. They are called “Out-of-Country Overstays.”

For the fiscal year 2016, the country with the highest number of in-country overstays was Canada with 1.33% of the 9,008,496 who were lawfully admitted. Mexicans came in second with 1.52% of the 3,079,524 that entered the United States.

Out of the 250,753 tourists (business or pleasure) from the Philippines 562 were out-of-country overstays and 4438 were suspected in-country overstays or a total of 5000. There were also 934 students and exchange visitors who overstayed out of the 10,169 who entered. Overstays for other in-scope nonimmigrants were 6523 out of the 22604 who were admitted.

The Immigration and Customs Enforcement (ICE) has increased the enforcement of laws relating to visa overstays. It has continued to require biometric and biographic information from all foreign nationals entering the United States. The ICE has also required biometric information during the departure of foreign nationals from the United States since 2013, but only as tests. In June 2016, the Customs and Border Patrol (CBP) implemented the first operational facial biometric trial for persons leaving the United States through the Hartsfield-Jackson Atlanta Airport. This biometric exit verification utilized mobile devices to biometrically verify the departures.

The CBP will continue to implement the biometric exit requirement in 3 phases. The first phase is already being conducted in the Hartsfield-Jackson Atlanta Airport. The second phase is the building of biometric services for persons leaving the United States in all airports. The third phase is to create the data infrastructure to support the requirements of biometric data collection for all persons leaving the United States.

Civil liberties advocates like the American Civil Liberties Union (ACLU) say the collection of biometric data poses “an extraordinary threat to privacy.” There is also a high risk of inaccuracies by the biometric system with false positives or persons who do pose a risk to national security, but no positive identification is made in the system.

Legalization of Farm Workers Proposed

Legalization of Farm Workers Proposed

By Reuben Seguritan

May 17, 2017

Immigration raids throughout the United States have frightened a lot of undocumented immigrants, especially farm workers. It is estimated that up to 70% of farm workers in California, or about 560,000 people are undocumented immigrants. This is a big problem for the United States because farm workers contribute to the $54 Billion agricultural industry.

If the undocumented farm workers no longer go to work because of fear of arrest, then there would be a substantial lack of manpower to do the necessary job in the farms. Farm labor is essential in ensuring that food is produced and distributed throughout the United States. Hence, addressing the immigration problems within the agricultural industry is important for the continued success of the farm industry in America.

On May 3, 2017, Senator Dianne Feinstein of California proposed the “Agricultural Worker Program Act of 2017.” The bill was co-sponsored by Senators Mazie Hirono of Hawaii, Patrick Leahy of Vermont, Michael Bennet of Colorado and Kamala Harris of California. This bill proposes giving legal status to undocumented immigrant farm workers. Under the bill which provides for a two-step process, the undocumented immigrant farm worker must comply with certain requirements in order to get temporary residence and eventually a green card. The bill also removes the fines that farm employers face when undocumented immigrants are caught on their premises or it is proven that undocumented immigrants work for them.

First, the undocumented immigrant farm worker must apply for a “Blue Card.” The “Blue Card” grants temporary residency and employment authorization to the undocumented immigrant farm worker. The undocumented immigrant farm worker must apply for the “Blue Card” during the one-year application period after the regulations for the Agricultural Worker Program Act of 2017 are published. To qualify, the undocumented immigrant farm worker must prove his employment in the agricultural industry of the United States for at least 100 work days over the last two years, and that he is not excluded by certain immigration laws. He must complete national security and law enforcement clearances. He must not have been convicted of a felony, aggravated felony, 3 or more misdemeanors or certain crimes, and pay an application fee and a fine of $100 fine.

The spouse and children of the undocumented immigrant farm worker who were present in the United States since or before the date of the Agricultural Worker Program Act of 2017’s enforcement would also be eligible for the Blue Card.  Once the undocumented immigrant farm worker and his family have the Blue Cards, they may travel outside the United States and return thereafter using the Blue Cards as their legal travel document.

After maintaining the Blue Card, the second step for the undocumented immigrant worker and his family is to apply for the Green Card or Lawful Permanent Resident (LPR) status. In order to apply for the Green Card, the farm worker must have performed agricultural work for at least 100 days per year for 5 years or 150 days per year for 3 years, pay an application fee and a $400 fine, pay the applicable federal taxes, and continue to meet other admissibility requirements.

This proposed bill is a step in the right direction for reforming the immigration system in the agricultural industry. The contributions of the farm workers in feeding America is undeniable. Hence, passing this bill will ensure that America doesn’t have a food crisis.

Undocumented Immigrants Have Rights

Immigrants and immigration rights have been in focus during the first couple of months of President Trump’s term in office. In one of his first executive orders, Trump barred nationals of certain countries from entering the United States. He also ordered immigration raids across the United States. The Immigration and Customs Enforcement (ICE), the federal law enforcement agency under the United States Department of Homeland Security (DHS), has conducted arrests and scheduled foreign nationals for deportation.

Concerns over the rights of the legal and undocumented immigrants during the arrests conducted by the ICE have arisen. Many arrested foreign nationals do not know that they have rights when they are arrested. But immigrants, including the undocumented, do have rights.

First, every person has the right to remain silent. Everyone has the right not to answer questions from the arresting officer or other government agents. Remaining silent is the best way to respond to the questions asked by the arresting officer and other government agents. Any information that the immigrant gives may be used against him or someone else by the government.

Immigrants must also be aware that arresting officers and government agents sometimes use trickery or lie to them in order to obtain information. Again, the best response is to remain silent. In addition, the immigrant must never lie to the arresting officer or any government agent because this would be a crime.

Next, every person arrested is entitled to speak to a lawyer, especially before speaking to any government officer. This is true regardless of the person’s guilt or innocence. Hence, the best course of action would be to ask to speak to a lawyer at the time of arrest. The foreign national does not have the right to a government-appointed attorney and must therefore hire his own attorney.

For all persons, even those who entered or stayed in the United States illegally, the United States Constitution provides rights which can be exercised.

First, under the Bill of Rights, undocumented immigrants are entitled to equal protection of the law. The constitutional guarantee of equal protection of the law does not distinguish between citizens or foreign nationals. The fact that one is an undocumented immigrant does not diminish or remove one’s right to seek redress for any wrongdoing by another.

Secondly, the Fifth Amendment guarantees the right of persons to remain silent. This means one may not be compelled to answer questions by a government agent. If the immigrant refuses to answer questions pertaining to his immigration status, for example, said immigrant may not be arrested or detained purely for such refusal.

Thirdly, the Fourth Amendment guarantees the right against unreasonable searches and seizures. No government agent may search one’s home or office without consent unless the agent has a valid search warrant issued by a judge. A valid search warrant must state in detail the places to be searched, and the things to be seized as these details indicate the limits of the warrant. The search or seizure cannot legally extend to places or things not stated in the warrant. Without such warrant, one may refuse to let the government agent in their house. A valid search warrant does not obligate one to answer the questions of the government agents enforcing such warrant. An exception is made in an emergency such as when a person inside is heard asking for help.

A foreign national may, of course, waive his right to a hearing and agree to leave the United States. In such case, such foreign national may lose the right to apply for immigration status and may find it difficult to re-enter the United States in the future.

Suspension of H-1B Premium Processing Could Hurt Businesses and Workers

By Reuben S. Seguritan

March 8, 2017

On March 3, 2017, the United States Citizenship and Immigration Services (USCIS) announced that starting April 3, 2017, it will temporarily suspend premium processing of H-1B petitions. The suspension may last up to six months. The new policy will apply to all H-1B petitions, including regular cap and master’s cap cases, H-1B cap exempt cases, H-1B extensions and H-1B change of employment.

The H-1B program allows American employers to bring into the United States highly skilled foreign workers. H-1B visas are used by people in different fields, such as teachers, engineers, therapists, journalists, entertainers, professors, researchers and doctors. The cap every year is about 85,000. Standard processing of H-1B is up to 9 months. Premium processing costs an additional $1,225 and ensures a response from the USCIS in 15 days.

H-1B petitions with request for premium processing filed before April 3, 2017 will not be affected. The USCIS will continue to premium process them and may refund the premium processing fees if it is unable to adjudicate the petition within 15 days.

The USCIS justified the suspension by stating that it would help reduce the overall H-1B processing times because it would now have the time to process long-pending petitions and prioritize the adjudication of H-1B extension of status cases that are nearing the 240 day mark from the filing of the petition. The 240 day mark is significant for H-1B extension applicants because they are authorized to work for 240 days while their H-1B extension application is pending.

Although the USCIS has given a believable reason for the suspension, the adverse effects on American citizens, American companies and the highly skilled foreign nationals who want to work in the United States is undeniable.

With the suspension of the premium processing, the foreign nationals who need the H-1B visa quickly are first to suffer. They include physicians in J-1 status who are applying to work in medically underserved areas, graduating students intending to change status so they can work and H-1B workers who intend to travel for emergency reasons.

In the technology field, American companies, especially those in Silicon Valley, depend on the H-1B premium processing for them to quickly hire the best engineers and programmers in the world to work for them. But with the suspension of the premium processing, both the American companies and the highly skilled foreign national are in limbo and cannot proceed with the cutting edge advancements that they could be developing.

It is still possible for a petitioner to request for expedited processing in urgent cases. But this is not easy to get because of the strict criteria. The requester must prove to the USCIS one or more of the following situations to justify the expedited processing: severe financial loss to the company or person; emergency situation; humanitarian reasons; nonprofit organization whose request is in furtherance of the cultural and social interests of the United States; Department of Finance or national security interest situation; USCIS error; or compelling interest of the USCIS.

The suspension of the premium processing for all H-1B petitions looks like it is part of the President’s campaign promise to give jobs to Americans instead of foreigners. But what the current administration may not realize is that their actions may also adversely impact Americans and the United States.