Click Here for a PDF of the Immigration Insights - July Issue
Permanent Residents Who Undertake Temporary Foreign Assignments Should Apply for Re-Entry Permits -
Recent Development Regarding the Application Process
U.S. permanent residents sometimes are asked by their employers to undertake a temporary foreign assignment. If such assignment might last longer than six months, it is advisable for the permanent resident to apply for and obtain a re-entry permit issued by the Department of Homeland Security. We make this recommendation even though the permanent resident can technically use an unexpired permanent resident card ("green card") to re-enter the U.S. after foreign travel of less than 365 continuous days.
There are several reasons for our recommendation. First, a returning permanent resident has the burden of proving that he or she has not abandoned the intention to reside permanently in the U.S. The filing of a re-entry permit application serves to record the permanent resident's intention to return to the U.S. after the temporary assignment abroad and helps to protect the returning permanent resident from a challenge at the port of entry by a U.S. Customs and Border Protection ("CBP") official. Sometimes the employer may unexpectedly extend an employee's foreign assignment so filing a re-entry permit application is generally advisable if, again, the assignment is expected to last a half year or longer. Second, according to U.S. Citizenship and Immigration Services ("USCIS") rules, there is a rebuttable presumption that an absence from the U.S. of six to 12 months’ duration will break the continuity of residence required for U.S. naturalization eligibility. The issuance of a re-entry permit helps to overcome this presumption.
While filing a re-entry permit application is typically a straightforward exercise, USCIS now requires re-entry permit applicants to provide biometrics (fingerprints, photograph, and signature specimen) at an Application Support Center before they first depart the U.S. Historically, re-entry permit applicants could simply file the application, verify the delivery by overnight courier, and then depart the United States. Having to remain in the U.S. to receive the biometrics appointment notice may pose a hardship for some applicants because typically USCIS takes several weeks (or longer) to issue biometrics appointment notices on many types of cases. USCIS has said that it might deny applications where the applicant departs the U.S. before receiving the biometrics appointment notice and providing biometrics. USCIS has suggested that applicants should apply at least 60 days in advance of their U.S. departure date to avoid a problem.
__________________________________________________________________________________________
The Latest on U.S. Department of Labor ("DOL") Audits of PERM Labor Certification Applications
Attorneys from our firm attended the American Immigration Lawyer Association ("AILA") annual conference in June. At the conference, the U.S. Department of Labor ("DOL") indicated that the percentage of PERM labor certification applications under DOL audit is approximately 30%. For many employers who seek to sponsor a foreign national employee for permanent resident status, the PERM labor certification application process is the first required step. The process involves the employer conducting a good faith test of the labor market to determine if there are qualified, willing and available U.S. workers who are qualified to perform the offered job.
DOL also indicated that the time frames for decisions on cases being audited has markedly slipped. Not long ago, the DOL National Processing Center in Chicago issued PERM decisions in a matter of weeks after receiving an employer's audit reply and the NPC in Atlanta generally took several months. Now, DOL reports that it may take a year or longer for a decision after DOL receives an employer's response to an audit notice. Part of the problem is that DOL is auditing all PERM cases filed by the largest immigration law firm in the United States, so resources that otherwise would be committed to PERM audit reviews across the board and now being re-directed to focus on applications filed by one law firm.
__________________________________________________________________________________________
Department of Homeland Security's Office of Inspector General's Review of the USCIS Benefit Fraud Referral Process
The U.S. Department of Homeland Security ("DHS")'s Office of Inspector General ("OIG") recently published a report after conducting a detailed "Review of the USCIS Benefit Fraud Referral Process." The Report contains some interesting facts and observations. U.S. Citizenship and Immigration Services ("USCIS") processes approximately 6 million applications and petitions seeking immigration benefits annually. USCIS employs approximately 3,500 adjudicators whose mission is to decide those petitions and applications. The USCIS Office of Fraud Detection and National Security ("FDNS") employs approximately 315 officers. Therefore, there is approximately 1 fraud officer for each 100 USCIS adjudicators.
The OIG examined the eight areas of benefits fraud assessment that the DHS FDNS initiated in March 2005. In the employment-based area, these included but were not limited to H-1B, L-1A and I-140 Immigrant Petitions. The general observations of the Report are that the greatest prevalence of fraud is in religious worker visa petitions. In addition, USCIS adjudicators are required to refer all articulable instances of fraud to U.S. Immigration and Customs Enforcement ("ICE") under a "100%"referral policy. However, OIG found that this was a waste of resources because ICE generally only has the resources to pursue pervasive (more than "single incident") cases of fraud, and USCIS does not do a good job of exhausting its means of administrative remedies to combat and punish fraud, such as by issuing Notices to Appear for removal (deportation) proceedings rather than by issuing just denials, when ICE declines to investigate a fraud referral from USCIS.
The OIG report makes a number of recommendations including that USCIS should redesign its databases to enhance already in existence data mining capability to assist USCIS in identifying and punishing fraud. In addition, the OIG suggests a revamping of USCIS’ fraud referral and handling policy.
The OIG report contains interesting quotes from FDNS and USCIS officers who were interviewed for the report. One FDNS officer is quoted as stating, "Congress has been told by FDNS that there is a bunch of fraud, so Congress is asking for the proof. HQ FDNS is asking the field to find the fraud so it can be shown to Congress. And I sense HQ FDNS' frustration with the field because we aren't finding it. Some of the leadership personnel have never been adjudicators, so they are completely out of touch with reality." Of course, USCIS did find fraud in a number of petitions and applications, and those who perpetrated such fraud typically had their petitions or applications denied and, in some instances, received a referral for removal (deportation).
Petitioners and applicants should carefully check all representations contained in their petitions and applications filed with USCIS to ensure that all statements of fact are accurate and defensible. Information contained in immigration cases can emanate from a variety of parties including the employee, managerial staff, and third parties so it is critical to ensure that the information that is often synthesized from multiple sources is carefully checked for accuracy and truthfulness.