DO:

• Develop a transparent process for interacting with employees during the audit, including communicating with employees that the employer is subject to an ICE audit.
• Provide all workers with a reasonable amount of time to correct discrepancies in their records identified by ICE. Treat all workers in the same manner during the audit, without regard to national origin or citizenship status. This means that all workers with like discrepancies who are asked to present additional documents are provided with the same timeframes and the same choice of Form I?9 documents to present.
• If your workers are represented by a union, inform the union of the ICE audit and determine whether a collective bargaining agreement triggers any obligations.
• Inform employees from whom you seek specific information that you are seeking this information in response to an ICE audit.
• Communicate in writing with employees from whom you seek information, and describe the specific basis for the discrepancy and/or what information you need from them. Follow the instructions on the ICE notice and the instructions for the Form I?9 when seeking to correct Form I?9 defects, including the Lists of Acceptable Documents and the anti?discrimination notice.

DON’T:

• Selectively verify the employment eligibility of certain employees based on their national origin or citizenship status based on the receipt of an ICE Notice of Inspection.
• Terminate or suspend employees without providing them with notice and a reasonable opportunity to present valid Form I?9 documents.
• Require employees to provide additional evidence of employment eligibility or more documents than ICE is requiring you to obtain.
• Limit the range of documents that employees are allowed to present for purposes of the Form I?9.
• Treat employees differently at any point during the audit because they look or sound foreign, or based on assumptions about whether they are authorized to work in the U.S.

USCIS refused to discuss what it would do about pending EB-5 petitions if Congress fails to renew the regional center pilot program by September 30, 2012. Approximately 92 percent of I-526 petitions (Immigrant Petition by Alien Entrepreneur) filed each year are filed by investors in regional centers. Historically, about 80 to 85 percent of I-526 and I-829 EB-5 petitions are approved each year. The California Service Center (CSC) now has four teams of EB-5 adjudicators, an increase from one team a year ago. Despite the increased staffing, case adjudication times have not improved because of the increase in case filings.

USCIS also announced that it would defer to state determinations on what constitutes a targeted employment area (TEA) for EB-5 purposes. The agency will check the data behind states’ methodology, however. USCIS did not say whether a single census tract may qualify as a geographic area. USCIS said that would be covered in written materials not yet available publicly, and referred stakeholders to its December 2009 memorandum for further details (PDF).

USCIS acknowledged that many regional center applications are being held up at headquarters pending resolution of economic methodology issues. The USCIS hopes to resolve those issues soon. USCIS is analyzing all the I-924A forms submitted by regional centers and will draft a report that includes regional center-specific information sometime this year. The USCIS acknowledged growing pains in determining what constitutes a “shovel-ready” project for EB-5 purposes. It hopes to address this issue later this year when it revises the I-924 form to provide greater consistency.

USCIS also released its latest data on EB-5 filings and regional centers (RCs):

• RC approvals continue to increase. As of January 28, 2012, there are 217 approved RCs operating in 40 states, including the District of Columbia and Guam.
• The agency reported 41 initial RC proposal filings in the first quarter of fiscal year (FY) 2012, compared to 192 initial filings in all of FY 2011 and 110 initial filings in all of FY 2010. The number of amended RC proposal filings was 17 by the end of the first quarter; there were 86 filings received for all of FY 2011 and 42 filings received for all of FY 2010.
• In the first quarter of FY 2012, the agency approved 14 of the 41 initial RC proposals and denied 22, an approval rate of 39 percent. In FY 2011, when USCIS approved 80 and denied 51, an approval rate of 61 percent. The approval rate of amended RC proposals in the first quarter of FY 2012 was 57 percent, with 4 approvals and 3 denials. By comparison, in FY 2011 USCIS approved 43 amended RC proposals and denied 7, an approval rate of 86 percent.
• USCIS also reported significant increases in individual I-526s and I-829s (Petition by Entrepreneur to Remove Conditions). In the first quarter of FY 2012, USCIS received 1,293 I-526 petitions, compared to 3,805 for all of FY 2011. USCIS received 250 I-829 petitions in the first quarter of 2012. By comparison, USCIS received 2,345 I-829 petitions in all of FY 2011.
• In the first quarter of FY 2012, the agency approved 1,076 I-526 petitions and denied 222, an approval rate of 83 percent, while in all of FY 2011 USCIS approved 1,563 and denied 11, an approval rate of 93 percent. USCIS approved 1,067 I-829 petitions and denied 46 in all of FY 2011, an approval rate of 96 percent.

See also:

• The full list of RCs by state
• The next USCIS stakeholder engagement meetings are scheduled for May 1, 2012 (general EB-5 discussion); July 26, 2012 (regional center discussion); and October 18, 2012 (general EB-5 discussion).

The new office, located at 27-35 Jackson Avenue, includes an Application Support Center (which offers fingerprinting and photographic services as part of the application process), a naturalization ceremony room, and interview and file rooms. The hours are 7 a.m. to 3:30 p.m. The Queens office is expected to serve about 500 people each business day.

Approximately 100 employees were transferred to the Queens office from the now-closed Garden City, Long Island, office. USCIS recently opened an additional office in Holtsville, Long Island.

See also: USCIS Announcement

USCIS generally may only approve H-2A and H-2B petitions for nationals of countries the Secretary of Homeland Security has designated as eligible to participate in the programs. USCIS may approve H-2A and H-2B petitions for nationals of countries not on the list if it is determined to be in the interest of the United States.

In addition to the 53 countries currently on the list, Haiti, Iceland, Montenegro, Spain, and Switzerland were designated for the first time this year.

Effective January 18, 2012, nationals of the following 58 countries are eligible to participate in the H-2A and H-2B programs: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Haiti, Honduras, Hungary, Iceland, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Montenegro, Nauru, the Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Spain, Switzerland, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay and Vanuatu.

This new list does not immediately affect the status of beneficiaries who are currently in the United States in H-2A or H-2B status, unless they apply to change or extend their status.

See also: PDF

DHS determined that an extension is warranted because the conditions in El Salvador that prompted the TPS designation continue to be met. There continues to be a “substantial, but temporary,” disruption of living conditions in El Salvador resulting from a series of earthquakes in 2001, and El Salvador “remains unable, temporarily, to handle adequately the return of its nationals.”

The notice sets forth procedures necessary for nationals of El Salvador (or those having no nationality who last habitually resided in El Salvador) with TPS to re-register and to apply for an extension of their employment authorization documents (EADs) (Forms I-766) with U.S. Citizenship and Immigration Services (USCIS). Re-registration is limited to persons who previously registered for TPS under the designation of El Salvador and whose applications have been granted or remain pending. Certain nationals of El Salvador (or those having no nationality who last habitually resided in El Salvador) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions.

USCIS said it will issue new EADs with a September 9, 2013, expiration date to eligible Salvadoran TPS beneficiaries who timely re-register and apply for EADs under this extension. DHS recognizes that all re-registrants may not receive new EADs until after their current EADs expire on March 9, 2012. Accordingly, the notice automatically extends the validity of EADs issued under the TPS designation of El Salvador for six months, through September 9, 2012, and explains how TPS beneficiaries and their employers may determine which EADs are automatically extended and their impact on the I-9 and E-Verify process.

See also: PDF

To participate in the program, applicants must currently possess a valid 10-year U.S. passport book with at least 12 months of validity remaining, upload an acceptable digital photograph, and make an online payment in U.S. dollars via Pay.gov. Applications accepted through the program will be subject to the same adjudication standards as in-person or mail-in applications.

The Department of State began producing the passport card in 2008 in response to travel document requirements imposed by the Western Hemisphere Travel Initiative. Since then, more than 4.5 million cards have been issued.

See also:

• The notice
• Online passport card application

Specifically, the AAO said that the evidence incontrovertibly established that the applicant proposed that “investors” would purchase a vacation suite as either a “primary residence,” “second home,” or “investment property.” The AAO affirmed the California Service Center director’s determination that such a real estate purchase of a private residence, even if still under construction, “is not an at-risk investment of capital that can be credited with direct or indirect job creation.” The purchase of individual residential suites by alien “investors,” even if concentrated in one resort complex, is also not the type of “pooled investment” concept Congress envisioned for the regional center program, the AAO noted. In summary, the AAO said:

[T]he applicant has proposed an investment plan whereby alien investors would make independent, passive, personal real estate investments that garner them no equity ownership in a new commercial enterprise. Instead of presenting a plan for a pooled equity investment of capital into a new commercial enterprise, the applicant has merely put forth a marketing strategy to attract sufficient buyers to fund later phases of development. This plan does not meet the letter or spirit of [the law and regulations] designed to encourage pooled investments in a new commercial enterprise benefitting a geographic region.

More info at: April 26, 20122 Decision

For February, the China employment-based second preference cut-off date has advanced a year to January 1, 2010. Also for February, the China employment-based third preference cut-off date is December 1, 2004, advancing a month and a half from January’s cut-off date, when it was October 15, 2004. The third preference “Other Workers” category remains unchanged at April 22, 2003.

For February, the India employment-based second preference cut-off date is January 1, 2010, also advancing a year. Also for February, the India employment-based third preference cut-off date is August 15, 2002, advancing a week from January’s cut-off date. The third preference “Other Workers” category for India in February is August 15, 2002, a two-week advance from January. The Visa Office explained in the February bulletin:

China and India: Reports from U.S. Citizenship and Immigration Services (USCIS) indicate that the rate of new filings for adjustment of status in recent months has been extremely low. This fact has required the continued rapid forward movement of the cut-off date, in an attempt to generate demand and maximize number use under the annual limit.  Once the level of new filings or USCIS processing increases significantly, it will be necessary to slow or stop the movement of the cut-off.  Readers are once again advised that an eventual need to retrogress the cut-off date is also a distinct possibility.

Also, in the January bulletin, the Visa Office noted:

The China and India Employment Second preference cut-off date has been advanced at a rapid rate in recent months. As previously noted, this action was intended to generate significant levels of new filings for adjustment of status at U.S. Citizenship and Immigration Services (USCIS) offices. USCIS has reported that the rate of new filings is currently far below that which they had anticipated, prompting an even more aggressive movement of the cut-off date for January and possibly beyond. While this action greatly increases the potential for an eventual retrogression of the cut-off at some point during the year, it also provides the best opportunity to utilize all numbers available under the annual limit.

The February 2012 bulletin notes that those categories with a “Current” projection will remain so for the foreseeable future. The Visa Office estimates that other employment-based categories not discussed above could also advance by up to one month per month in the near future, including the Worldwide, Mexico, and Philippines categories, depending on demand.

Specifically, the Department’s complaint alleged that the medical center subjected newly hired non-U.S. citizens to excessive demands for documents to verify their employment eligibility but did not require the same of U.S. citizens.

Under the terms of the settlement agreement, the medical center agreed to implement new employment eligibility verification policies and procedures that treat all employees equally regardless of citizenship status. In addition, the medical center agreed to pay a civil penalty of $115,000, conduct supplemental training of its human resources personnel on their responsibilities to avoid discrimination in the employment eligibility verification process, and work with the Department to ensure compliance with proper employment eligibility verification processes across all University of California campuses, medical centers, and facilities.

See also, The Department’s announcement.