We were recently asked to give a second opinion on an I-140 Notice of Intent to Revoke that was issued because the employer filed the application for labor certification based on the client location. The I-140 was approved in May 2009. Five years later, USCIS has issued a Notice of Intent to Revoke:

 

 

This type of revocation could have easily been avoided with proper planning at the labor certification pre-filing stage. A permanent labor certification (PERM) issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. Upon approval of a PERM, the DOL issues a certification that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment. The pre-filing recruitment steps for the PERM process require an employer to advertise the job opening in various media, such as a newspaper of general circulation, State Workforce Agency, campus placement office, etc. For companies in the IT consulting and staffing industry, the area of intended employment for the particular worker being sponsored will likely change throughout the green card process as projects end and new ones begin in various locations across the country. For example, if at the time of filing the application for labor certification the employee is working in California, but the sponsoring company is located in Texas, where is the area of intended employment? When the current position is in California, it may make sense to advertise the job opportunity in California. However, this only works if the job in California is permanent, i.e. the employee will continue at that worksite through the entire green card process. While some such long-term project may exist, it is far more likely that the sponsored employee will eventually move on to a different project in another location. However, when that happens, the labor certification becomes invalid because the employer no longer intends to employ the worker in California. Furthermore, even if the I-140 has already been filed and approved based on that labor certification, it can be revoked.

The purpose of advertising the job opportunity is to test the labor market in the area. If the labor market was tested in California, but the job moves to Ohio, the labor test is invalid. That means the labor certification is invalidated and the I-140 must be revoked for failure to possess a valid labor certification A 1994 policy memo still governs labor certification applications where the worker will be placed at various unanticipated sites:

“Applications involving job opportunities which require the beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer's main or headquarters office is located.”

In other words, the test of the labor market, i.e. all advertisements, should be done in the area of the employer’s headquarters, not at the current worksite. Furthermore, the memo instructs that “the employer should indicate that the alien will be working at various unanticipated locations throughout the U.S.” This means that every advertisement must include language indicating various worksites and so must the prevailing wage and actual ETA 9089 form.

In conclusion, if an IT consulting company is advertising at the current work location rather than its headquarters, the company should be prepared to file a new labor certification every time the project changes or risk invalidation of the labor certification and revocation of the I-140 petition. If previous applications have already been filed in this way, it is recommended that preparations be made to begin re-filing the labor certifications based on the company headquarters.

 

Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Reddy & Neumann, P.C. is highly experienced in working with employment-based visas, adjustment of status, green cards, and PERM labor certification. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.

A Houston woman pleaded guilty Thursday to smuggling a group of nine illegal aliens resulting in the death of one of them, announced U.S. Attorney Kenneth Magidson, Southern District of Texas.

This investigation was conducted by U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI), with assistance provided by U.S. Customs and Border Protection’s (CBP) Border Patrol (BP).

Karin Yamilec Aguilar-Melgor, 22, pleaded guilty June 5 before U.S. District Judge Nelva Gonzales Ramos.

"The tragic loss of life in this case shows the very real risks people face when they put their lives in the hands of smugglers," said Brian M. Moskowitz, special agent in charge of HSI Houston. "Those responsible for illegally moving people into and through our country place personal profit ahead of public safety. Driven by greed, they have little regard for the health and well-being of their human cargo, and that can be a deadly combination."

According to documents filed in this case, on Feb. 25 at about 3:30 a.m., BP agents observed individuals getting into a red Ford pickup truck on a Farm-to-Market (FM) road near Falfurrias, Texas. Finding the activity suspicious, the agents activated their emergency equipment and approached the vehicle. The vehicle then fled.

BP agents remained at the scene and apprehended one illegal alien. The pickup truck was located about five miles away, having crashed into a tree on FM 2191 near Falfurrias. At the scene, eight more illegal aliens were discovered, as well as Aguilar-Melgor, the driver.

One of the illegal aliens in the truck subsequently died due to injuries sustained in the crash. Aguilar-Melgor was arrested at the scene and has remained in custody since then.

Sentencing is set for Oct. 1. At that time, Aguilar-Melgor faces up to 20 years in prison and a $250,000 fine.

Assistant U.S. Attorney Jeffrey S. Miller, Southern District of Texas, is prosecuting this case.

 

Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Reddy & Neumann, P.C. is highly experienced in working with employment-based visas, adjustment of status, green cards, and PERM labor certification. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.

Secretary of Homeland Security Jeh Johnson today announced the process for individuals to renew enrollment in the Deferred Action for Childhood Arrivals (DACA) program. U.S. Citizenship and Immigration Services (USCIS) has submitted to the Federal Register an updated form to allow individuals previously enrolled in DACA, to renew their deferral for a period of two years. At the direction of the Secretary, effective immediately, USCIS will begin accepting renewal requests. USCIS will also continue to accept requests for DACA from individuals who have not previously sought to access the program. As of April 2014, more than 560,000 individuals have received DACA.

“Despite the acrimony and partisanship that now exists in Washington, almost all of us agree that a child who crossed our border illegally with a parent, or in search of a parent or a better life, was not making an adult choice to break our laws, and should be treated differently than adult law-breakers,” said Secretary Johnson. “By the renewal of DACA, we act in accord with our values and the code of this great Nation. But, the larger task of comprehensive immigration reform still lies ahead.”

The first DACA approvals will begin to expire in September 2014. To avoid a lapse in the period of deferral and employment authorization, individuals must file renewal requests before the expiration of their current period of DACA. USCIS encourages requestors to submit their renewal request approximately 120 days (four months) before their current period of deferred action expires.

DACA is a discretionary determination to defer removal action against an individual. Individuals in DACA will be able to remain in the United States and apply for employment authorization for a period of two years. Individuals who have not requested DACA previously, but meet the criteria established, may also request deferral for the first time. It is important to note that individuals who have not continuously resided in the United States since June 15, 2007, are ineligible for DACA.

Individuals may request DACA renewal if they continue to meet the initial criteria and these additional guidelines:

- Did not depart the United States on or after Aug. 15, 2012, without advance parole;
- Have continuously resided in the United States since they submitted their most recent DACA request that was approved; and
- Have not been convicted of a felony, a significant misdemeanor or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

The renewal process begins by filing the new version of Form I-821D “Consideration of Deferred Action for Childhood Arrivals,” Form I-765 “Application for Employment Authorization,” and the I-765 Worksheet. There is a filing and biometrics (fingerprints and photo) fee associated with Form I-765 totaling $465. As with an initial request, USCIS will conduct a background check when processing DACA renewals.

USCIS will also host both national and local DACA informational sessions. USCIS will provide further information on these sessions during which USCIS officials will provide additional information on the DACA process and be available to answer your questions. For information on local DACA engagements, please visit www.uscis.gov/outreach.

 

Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Reddy & Neumann, P.C. is highly experienced in working with employment-based visas, adjustment of status, green cards, and PERM labor certification. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.

When international students and visitors travel to the United States, they receive a Form I-94, "Arrival/Departure Record," at their port of entry. The Form I-94 serves as evidence that they have been lawfully admitted to the United States. International students and visitors need this record to verify alien registration and immigration status and obtain employment authorization. New this month, these individuals can access their five year travel history on the Form I-94 website.

Previously, international students and visitors could only access their most recent I-94 arrival/departure record number online, and they had to file a Freedom of Information Act (FOIA) request for previous years' information.

International students and visitors can obtain their Form I-94 record by visiting U.S. Custom and Border Protection's (CBP) Form I-94 Web page. They must agree to the terms listed on the page. From there, they will be directed to the Form I-94 information page. They must enter their name, date of birth and passport information to retrieve their Form I-94 information. The Web page gives you the option to "Get Most Recent I-94" or "Get Travel History."

If you select "Get Most Recent I-94," the Web page will display your I-94 number, most recent date of entry, class of admission and admit until date. If you select "Get Travel History," you can access your last five years of travel history on the Form I-94. Both pages are printer-friendly.

"International students and visitors have been able to access their most recent I-94 arrival/departure record number on the Form I-94 Web page since April 2013," said Lou Farrell, director of the Student and Exchange Visitor Program (SEVP). "This new option streamlines the process for obtaining previous years' travel records and eliminates the need for these individuals to file a FOIA request."

"CBP has seen a steady growth in trade and travel in recent years – including a nearly nine percent increase in non-immigrant arrivals since 2011," said CBP Commissioner R. Gil Kerlikowske. "We continue to work to manage these growing volumes by automating processes, going paperless, and employing mobile technology to maximize our resources and ease processing times for the traveling public."

SEVP monitors approximately one million international students pursuing academic or vocational studies (F and M visa holders) in the United States and their dependents. It also certifies schools and programs that enroll these students. The U.S. Department of State monitors exchange visitors (J visa holders) and their dependents, and oversees exchange visitor programs.

Both agencies use SEVIS to protect national security by ensuring that students, visitors and schools comply with U.S. laws. SEVP also collects and shares SEVIS information with government partners, including CBP and U.S. Citizenship and Immigration Services, so only legitimate international students and exchange visitors gain entry into the United States.

HSI reviews potential SEVIS records for potential violations and refers cases with potential national security or public safety concerns to its field offices for further investigation. Additionally, SEVP's Analysis and Operations Center reviews student and school records for administrative compliance with federal regulations related to studying in the United States.

Learn more about SEVP at www.ICE.gov/SEVP.

 

Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Reddy & Neumann, P.C. is highly experienced in working with employment-based visas, adjustment of status, green cards, and PERM labor certification. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.