February 2012 ★ Archive of Immigration News

In a recent report, the U.S. Citizenship and Immigration Services (USCIS) Ombudsman noted that stakeholders have raised concerns about consistency in adjudications of extraordinary ability and other employment-based petitions. Recent concerns have focused on the subjective nature of final merits determinations. Stakeholders report that an I-140 policy memo that USCIS issued in December 2010 has not resulted in a clearer adjudicatory standard. The Ombudsman noted that USCIS has been challenged in identifying an objective standard and application for a final merits determination, and some Immigration Services Officers (ISOs) report that the I-140 policy memo did little to change their analysis of I-140 petitions.

The Ombudsman made the following recommendations to USCIS to improve fairness, consistency, and transparency in adjudications of these petitions:

1. Conduct formal rulemaking to clarify the regulatory standard and, if desired, explicitly incorporate a final merits determination into the regulations;
2. In the interim, provide public guidance on the application of a final merits determination; and
3. In the interim, provide ISOs with additional guidance and training on the proper application of the “preponderance of the evidence” standard when adjudicating EB-1-1, EB-1-2, and EB-2 petitions.

The Ombudsman gave the following reasons for these recommendations:

• Stakeholders are concerned that the current I-140 policy memo allows for too much subjectivity for adjudicative petitions.
• Stakeholders presented in an amicus curiae briefing to USCIS’s Administrative Appeals Office that the decision in Kazarian v. USCIS does not require USCIS to implement a two-part review as provided for in the I-140 memo, and that application of the I-140 policy memorandum has not resulted in a clearer adjudicatory standard.
• ISOs lack guidance that clearly demonstrates the nature and type of evidence that typically establishes whether an individual possesses “extraordinary ability,” may be classified as an “outstanding professor or researcher,” or has “exceptional ability.”
• USCIS has not clearly explained the objective factors that USCIS adjudicators should consider when conducting a final merits determination.

Additional Resources:

• The report and recommendations (PDF).
• The December 2010 I-140 policy memo, which the Ombudsman noted rescinded and superseded all previously published USCIS policy guidance regarding EB-1 adjudications (PDF).

U.S. Citizenship and Immigration Services (USCIS) recently announced (PDF) that in December 2011, E-Verify reached a milestone: employers are now using E-Verify at more than one million worksites.

Also, USCIS announced on February 9, 2012, that Self Check, a free online service of E-Verify that allows workers to check their own employment eligibility status, is now available in all 50 states; Washington, DC; Guam; Puerto Rico; the U.S. Virgin Islands; and the Commonwealth of the Northern Mariana Islands. Launched in March 2011, Self Check was developed through a partnership between the Department of Homeland Security (DHS) and the Social Security Administration (SSA) to provide a tool for workers to check their own employment eligibility status and guidance on how to correct their DHS and SSA records. It is the first online E-Verify service offered directly to workers. A Spanish version was added in August 2011.

Other resources:

• “Self Check Information Toolkit” (link)

The U.S. Department of Labor’s Employment and Training Administration and Wage and Hour Division announced on February 10, 2012, a final rule on the H-2B temporary nonagricultural worker program. The rule, which will be effective on April 23 and will be published in the February 21 edition of the Federal Register, includes changes to several aspects of the program intended to ensure that U.S. workers receive greater access to jobs. The H-2B program is limited by law to a cap of 66,000 visas per year.

The final rule creates a national registry for all H-2B job postings and increases the recruitment period for U.S. workers. The rule also requires the rehiring of former employees when available.

In addition, the rule extends H-2B program benefits, such as transportation costs and wages, to U.S. workers performing substantially the same work as H-2B workers. Worker protections also will be strengthened by enhanced transparency throughout the employment process, the DOL said in a press release.

See also: Fact sheets and other information (link).

The Department of Homeland Security (DHS) announced on February 8, 2012, the expansion of TSA Pre?™, a passenger pre-screening initiative, to additional airports across the country following its launch at seven pilot locations.

More than 336,000 passengers have been screened through TSA Pre?™ lanes. Under this initiative, the Transportation Security Administration (TSA) focuses its efforts on passengers the agency knows less about while providing expedited screening for travelers who volunteer information about themselves before flying.

TSA Administrator John S. Pistole said the agency is moving away from a one-size-fits-all approach to “a more intelligence-driven, risk-based transportation security system.”

TSA Pre?™ is currently operating with American Airlines at airports in Dallas, Miami, Las Vegas, Minneapolis, and Los Angeles, and with Delta Air Lines at airports in Atlanta, Detroit, Las Vegas, and Minneapolis. US Airways, United Airlines, and Alaska Airlines are all opting in new passengers and will begin operations later this year. TSA will continue expanding TSA Pre?™ to additional airlines and airports as they are ready.

Eligible participants include certain frequent flyers from participating airlines as well as members of U.S. Customs and Border Protection’s Trusted Traveler programs (Global Entry, SENTRI, and NEXUS) who are U.S. citizens and fly on a participating airline. If TSA determines a passenger is eligible for expedited screening following the TSA Pre?™ vetting process, information will be embedded in the barcode of the passenger’s boarding pass. TSA will read the barcode at the security checkpoint and then may refer the passenger to a TSA Pre?™ lane, where they will undergo expedited screening, which could mean no longer removing certain items, such as shoes, laptops, light outerwear, belts, and 311-compliant bags from carry-ons.

TSA said it will continue to “incorporate random and unpredictable security measures throughout the airport” and that no individual will be guaranteed expedited screening. As part of the agency’s risk-based security initiative, TSA is testing several other screening initiatives related to providing positive ID verification for airline pilots and the use of expanded behavior detection techniques.

Additional Resources:

• The announcement, which includes a list of airport locations where TSA Pre?™ will be implemented in 2012 (link).
• Those interested in participating in the pilot may apply via Global Entry at http://www.globalentry.gov/.

In a recent report, the U.S. Citizenship and Immigration Services (USCIS) Ombudsman noted that stakeholders have raised concerns about consistency in adjudications of extraordinary ability and other employment-based petitions. Recent concerns have focused on the subjective nature of final merits determinations. Stakeholders report that an I-140 policy memo that USCIS issued in December 2010 has not resulted in a clearer adjudicatory standard. The Ombudsman noted that USCIS has been challenged in identifying an objective standard and application for a final merits determination, and some Immigration Services Officers (ISOs) report that the I-140 policy memo did little to change their analysis of I-140 petitions.

The Ombudsman made the following recommendations to USCIS to improve fairness, consistency, and transparency in adjudications of these petitions:

1. Conduct formal rulemaking to clarify the regulatory standard and, if desired, explicitly incorporate a final merits determination into the regulations;
2. In the interim, provide public guidance on the application of a final merits determination; and
3. In the interim, provide ISOs with additional guidance and training on the proper application of the “preponderance of the evidence” standard when adjudicating EB-1-1, EB-1-2, and EB-2 petitions.

The Ombudsman gave the following reasons for these recommendations:

• Stakeholders are concerned that the current I-140 policy memo allows for too much subjectivity for adjudicative petitions.
• Stakeholders presented in an amicus curiae briefing to USCIS’s Administrative Appeals Office that the decision in Kazarian v. USCIS does not require USCIS to implement a two-part review as provided for in the I-140 memo, and that application of the I-140 policy memorandum has not resulted in a clearer adjudicatory standard.
• ISOs lack guidance that clearly demonstrates the nature and type of evidence that typically establishes whether an individual possesses “extraordinary ability,” may be classified as an “outstanding professor or researcher,” or has “exceptional ability.”
• USCIS has not clearly explained the objective factors that USCIS adjudicators should consider when conducting a final merits determination.

Additional Resources:

• The report and recommendations (PDF).
• The December 2010 I-140 policy memo, which the Ombudsman noted rescinded and superseded all previously published USCIS policy guidance regarding EB-1 adjudications (PDF).