Business Immigration Monthly Update - August 2009

Date: 7/31/2009

Fraudulent ICE Letter Sent to Employers in California

Several employers in California have received a disturbing letter alleging to be from U.S. Immigration Customs Enforcement (ICE) that requests the employer return information regarding unauthorized employment. ICE has confirmed that the letter is a fraud and that they are conducting a full investigation to determine who created and distributed it. Employers are reminded that they should always check first with their attorney regarding a request by any government official for sensitive information relating to their employees or their employment practices.

ICE Releases Fact Sheets: Driver's Licenses & Cap Gap Extension Functionality

This week ICE released two fact sheets relating to the issuance of driver's licenses and cap gap extension functionality. The first sheet entitled, "Applying for a Driver's License or State Identification Card" provides links to state Department of Motor Vehicles (DMV) websites and general guidelines for F, M, and J nonimmigrant visa holders on how they can obtain a diver's license. The fact sheet also addresses the most commonly asked questions such as name discrepancies, documents needed, driver's license refusals, and spouse/dependent eligibility. The ICE fact sheet is available at:

The second fact sheet, "Supplemental Guidance on the Cap-Gap Extension" provides general information on how students can receive interim cap-gap extensions when their Optional Practical Training or status ends before the US Citizenship and Immigration Service (USCIS) receives their H-1B petition and has a chance to enter it into the CLAIMS system. The fact sheet instructs DSOs on when they should use extension functionality and provides various scenarios of when it would be inappropriate. The ICE fact sheet is available at:

USCIS Agrees to Reopen Previously Denied H-1B Petitions for Certain Healthcare Workers

The U.S. Citizenship and Immigration Services (USCIS) recently announced that it will reopen on its own motion H-1B petitions which were denied for healthcare specialty occupations because the beneficiary did not possess a Master's or higher degree in the field. Additional information about the USCIS Headquarters Memorandum reversing the interpretation limiting the H-1B classification for a certain healthcare occupations is contained in our firm's previous Immigration Update dated June 1, 2009.

In its guidance regarding the Motions to Reopen, the USCIS indicated that it will only review denied petitions for which it has received a written request for review from the petitioning employer or its representative. These requests must be received by August 14, 2009. The request must be sent to the initial adjudicating Service Center by e-mail. The USCIS has established special e-mail addresses for both the California Service Center and the Vermont Service Center for this issue. The USCIS stated that Petitioners should explain in the e-mail how the beneficiary meets the standard set forth in its previous Memorandum. If sufficient evidence about the eligibility of the beneficiary for H-1B classification is not contained in either the e-mail and/or the initial filing, the USCIS indicated that it may request additional evidence. If the Petition was denied on other grounds or the Petitioner can not evidence the Beneficiary's eligibility for H-1B status, the USCIS indicated that the original denial of the Petition will be affirmed.

ICE SEVP Provides Update Regarding the SEVIS Program

ICE Student Exchange Visitor Program (SEVP) recently provided an update about the SEVIS program. The following are some highlights from the updates:

1. SEVP's new Response Center which was launched in January 2009 has received more than 3,000 inquiries since its inception. The number of inquiries continues to increase each month. SEVP stated that approximately 82% of the inquiries are resolved during the initial contact.

2. SEVP indicated that its Help Desk is receiving more inquiries this year than during the comparable period last year. SEVP indicated that approximately 85% of the Help Desk inquiries are resolved in the month of which they are received.

3. SEVP indicated that it will be issuing a proposed regulation to modernize its current regulations. SEVP indicated that it expects to publish the proposed regulation by the end of summer 2009. SEVP also indicated that it will be issuing recertification guidance and Curricular Practical Training (CPT) guidance in the future.

4. SEVP indicated that it will be coordinating recertification and SEVIS II implementation. Recertification was postponed by SEVP in January 2009.

5. SEVP confirms that when a student does not have qualifying Optional Practical Training (OPT) employment, time spent outside the United States counts towards the 90-day limit (or with STEM OPT, the 120 day limit) on authorized unemployment. SEVP did acknowledge that some students will encounter a delay in the visa issuance process while outside the United States. SEVP vaguely indicated that such delays may (not will) be taken into account on a case-by-case basis in determining a student's continued eligibility for F-1 classification.

6. SEVP confirmed that tutoring and teaching positions in a student's field of study can be considered employment for OPT if the student works more than 20 hours per week. However, the Designated Student Official (DSO) should indicate in the SEVIS system that the student is self-employed in this situation when not working directly for an employer.

7. According to SEVP, most appropriate action for a DSO to take when a student takes a leave of absence from school is to provide the student with an authorized early withdrawal in SEVIS. If the students leave of absence is less than five months outside the United States, the DSO should open a ticket with a SEVIS Help Desk to request that the student's record be returned to active status within 30 days of the student's return to the United States or the student attending a visa interview at a Consulate outside the United States, whichever is earlier. If the student's absence is for more than five months, the student would be required to apply for a new visa and the DSO should issue an initial Form I-20 to the student.

8. SEVP stated that if a student needs to submit an application for post-completion OPT before the original end date of the pre-completion OPT as recorded in SEVIS, the DSO must contact the Help Desk to request that a second segment of OPT be added to the student's record. SEVP indicated that it will be providing the Help Desk with instructions about how to add a second segment of OPT because the Help Desk has previously informed DSOs that this was not possible. However, the Help Desk can not shorten the period of pre-completion OPT currently in the SEVIS record because that it is a USCIS adjudicated decision.

9. SEVP has issued a Fact Sheet on how students should apply for a driver's license or state identification card. In this fact sheet, SEVP provides that if an issuing Department of Motor Vehicles (DMV) is unable to issue a drivers license or state ID to a F-1 student or his/her F-2 dependents, the DSO should e-mail SEVP for assistance and include in the subject line "DMV Issue-Name of the State." SEVP ask that you provide certain specific information and then SEVP will send an e-mail to the appropriate DMV representative and request that the case be reviewed. When SEVP receives additional information from the DMV, the SEVP will notify the DSO.

Additional information and updates about the SEVIS program will be made available in our firm's future Immigration Updates when it becomes available.

USCIS Resumes Premium Processing Service for Certain R-1 Nonimmigrant Petitions

The USCIS announced that it is resuming the Premium Processing service for R-1 nonimmigrant religious worker petitions filed by certain Petitioners. The USCIS confirmed that only those Petitioners who have successfully passed at least one on-site inspection are eligible to file through the Premium Processing program. The USCIS also confirmed that the Petitioner's site inspection must have occurred at the location where the Beneficiary will be employed. The USCIS stated that prior to accepting the Form I-907 Premium Processing Request, it will conduct a system search to verify whether or not a successful site inspection was completed at the location where the Beneficiary will be employed. The USCIS recommended that Petitioner's requesting Premium Processing may want to submit a copy of a previous R-1 Approval Notice to facilitate the USCIS in locating the Petitioner's site inspection record. The USCIS also indicated that even though a Petitioner has previously passed a site inspection, a prior approved site inspection does not preclude the USCIS from conducting another site inspection or compliance review.

DOS Releases August 2009 Visa Bulletin – EB-2 Category Advances for Indian and Chinese Nationals

The U.S. Department of State (DOS) recently released its August 2009 Visa Bulletin. As previously indicated by the DOS, the EB-3 category remains Unavailable and will continue to remain Unavailable at least until the beginning of the government's next fiscal year on October 1, 2009. Last month, the DOS severely retrogressed the EB-2 category for Indian and Chinese nationals. However, in the August 2009 Visa Bulletin, the DOS significantly advances both categories to October 2003. The DOS has previously warned that the EB-2 category may become Unavailable for Indian and Chinese nationals for the remainder of the government's fiscal year. However, with the advancement of the categories this month, it appears that the DOS has determined that there may be sufficient availability so that the DOS does not have to make the categories completely Unavailable until the beginning of the government's next fiscal year.

The following is an overview of how the various employment-based preference categories have either progressed or retrogressed since the beginning of the current retrogression in October 2005:

Oct 2005

Dec 2007

Jun 2008

June 2009

July 2009

Aug 2009

EB-3 World







EB-2 China







EB-3 China







EB-2 India







EB-3 India







EB-3 Other Workers







Additional information about the advancement of the employment-based immigrant visa priority dates will be contained in our firm's future Immigration Updates when they become available.

Legislative Update: Senate Passes Appropriations Bill Including a Provision to Make E-Verify Permanent & Require Its Use by Federal Contractors

On Thursday, July 9th the Senate passed the Fiscal Year 2010 Department of Homeland Security Appropriations Bill (H.R. 2892) containing several provisions related to immigration. Most notably, the bill would make E-Verify a permanent program and would require federal contractors to use E-Verify to check the employment authorization of new employees hired for the contract and all employees already working on the contract. E-Verify is an online program run by the federal government where employers can check the employment authorization of employees. The program works by crosschecking the information provided by an employee on the Form I-9, Employment Eligibility Verification, with the Social Security Administration's and Department of Homeland Security's (DHS) databases. Currently, E-Verify is a voluntary program for employers, except where state law requires its use. E-Verify was initially created with the lifespan of 4 years, but has been extended ever since its inception. In 2008, new regulations were issued that would require federal contractors under certain types of contracts to use E-Verify for new hires and employees working on the contract. However, the date the regulations were to go into effect has been extended repeatedly, most recently until September 8, 2009. This week, the DHS Secretary Janet Napolitano announced that DHS fully supports E-Verify and stated that on September 8th, DHS would be ready to implement the regulations requiring federal contractors to use E-Verify as a condition of their contract. H.R. 2892 continues to be under review. We will provide any updates as soon as they become available.

I-9 Audits Continue: Krispy Kreme Fined For Violations

Krispy Kreme Doughnut Corporation (Krispy Kreme) and the ICE reached a settlement on Friday, July 3rd with respect to an audit of the company's I-9 forms that began in 2007. Krispy Kreme was found to have employed individuals who did not have authorization to work in the U.S. and to have violated the Immigration and Nationality Act. Krispy Kreme agreed to pay a $40,000 fine and to put into effect a hiring policy that complies with immigration laws to ensure that future violations do not occur.

The I-9 audit of Krispy Kreme is in line with the federal government's current approach to workplace enforcement. The focus has shifted from investigating the workers themselves to the inspection of employers' hiring practices. As reported in our Business Immigration Monthly update on July 1st, the most recent part of this initiative resulted in ICE's audit of 652 businesses - a record number of audits at any one time. It is imperative that an employer's I-9 records be completed properly and accurately, particularly now that ICE has reshifted its focus to employers. Our firm offers I-9 review services to help ensure that companies are in compliance with U.S. immigration employment laws.

Biometrics Cancellations Issued In Error

Many individuals with applications pending at the USCIS were issued Biometrics appointment cancellation notices during the last few weeks in error. The error was due to too many appointments being scheduled at the same time from July 6 through 10. Applicants who receive a cancellation notice, should not be alarmed, they should receive a second Biometrics appointment for a later date within the next month. If an applicant did not receive a cancellation notice, they should attend their appointment as indicated on the notice.

Additional information about USCIS processing trends will be contained in our firm's future Immigration Updates when it becomes available.


Kathleen Gaber Named Leading Immigration Lawyer In Illinois

Ms. Kathleen Gaber, Chair of Masuda Funai's Immigration Practice Group, was named a Leading Immigration Lawyer in the Women Leading Lawyers category of the Leading Lawyers NetworkSM. Leading Lawyers are chosen based on surveys and discussions with their peers and finalists selected by the Leading Lawyers NetworkSM Advisory Board. Ms. Gaber was one of eight immigration attorneys selected under this category.

For more information about this or any other immigration law topic, please contact Bob White, at 847.734.8811 or via email at

Weekly Immigration Updates are provided in the Immigration Group Section of our firm's website at