USCIS Fraud Investigations of Religious Workers CauseProblematic Delays

As previously reported in Immigration Newswire, USCIS is conducting a massive fraudinvestigation into religious worker visa fraud after an audit which revealed a high rate offraud in these petitions.Our office noticed a dramatic slow down in R-1 and I-360processing in the months preceding USCIS’s announcement of the fraud investigations.A few of our I-360 Religious Worker petitions have been pending for approximately oneyear now (since last March),and there is no end in sight to the delay.USCIS sent outboilerplate Requests for Evidence on all pending I-360 petitions in December 2006,andwhile many attorneys have submitted responses tothese RFEs,none report that these I-360 petitions are beingadjudicated.The longer these delays extend,the morereligiousworkers are going to be placed in an impossiblesituation which may force them to leavethe U.S. and wait abroad while their I-360s are adjudicated.There is a similar stand-stillin R-1 adjudications,although boilerplate RFEshave not been sent out on these petitions.

In recent minutes between the American Immigration Lawyers Association and theUSCIS Nebraska Service Center,USCIS stated:

Subsequent to the benefit fraud assessment the agency conducted,we received a directive that no religious worker petition could be adjudicated without a site visit having been performed.Therefore, we are unable to take any action on these long-pending cases until the site visit has been completed.

(Emphasis added).

This means that USCIS investigators must appear at every religious organization toconduct an investigation before it can issue a decision on either an I-360 immigrantreligious worker petition or an R-1 nonimmigrant religious worker petition.This is likelyto dramatically slow down adjudications.To date, only one of our clients has received asite visit, and it was for an R-1 extension petition that had been pending for sevenmonths. Approximately 45 days after the cite visit,a decision was finally issued.

I-360 Adjudications Delays:Problems and Possible Solutions

Most religious workers enter the U.S. in R-1 nonimmigrant status and if they decide topursue permanent residency,later file I-360 petitions as the first step in becomingpermanent residents.R-1 status is valid for an initial period of three years and can beextended for one additional two-year period, for a maximum period of stay of five years.Religious workers must maintain their R-1 nonimmigrant status during the entire periodthat the I-360 petition is pending.(Once the I-360 is approved,they can apply foradjustment of status and a separate Employment Authorization Document based on thepending adjustment of status application).It used to be that I-360s were adjudicatedwithin a few months, but the recent, unexpected and very lengthy delay in adjudication ofI-360s means that some religious workers will not have enough time left on their R-1s toremain in the country while the I-360 adjudication is completed.

Some religious workers currently in R-1 status may be eligible for H-1B status,if theypossess a U.S.Bachelor’s Degree or its equivalent in a foreign degree and/ or experience;and if their employers require that degree for entry level positions in the occupation.Theemployer would also need to be able to pay the beneficiary the prevailing wage for theoccupation, which is often higher than what religious workers make.Changing statusfrom R-1 to H-1B requires careful planning in order to come under the H-1B capimposed by Congress (see our article explaining the H-1B cap athttp://www.usvisahelp.com/art_h1bcap.html).While changing status to H-1B will allowsome religious workers to remain in the U.S.long enough to see their I-360 petitionsadjudicated,not all R-1 beneficiaries will qualify for an H-1B.There may very well beseveral religious workers with no legal options for remaining in the U.S. while I-360adjudications drag on.

Another possibility would be for religious workers’ employers to file labor certificationsand I-140 petitions on their behalf in addition to the pending I-360 petitions.This is acostly proposition,however,and there are probably few religious workers for whom thisis a real option.A labor certification requires that the employer place severaladvertisements for the religious worker’s job to test the labor market.If any qualified,willing,and available U.S. workers apply for the job,the case cannot go forward.Notonly are the advertisements expensive (e.g. two Sunday ads are required in a largenewspaper),but the employer must also pay the religious worker the prevailing wageupon the granting of his permanent residency.The employer must document ability topay the wage in the form of federal income tax returns or audited financial statements,which many tax-exempt religious organizations do not have.Where a religiousorganization has over 100 employees,however,USCIS may accept the attestation of anofficer of the organization that the company has the ability to pay the proffered wage.

Even if a religious worker does get a labor certification and I-140 petition approved,therewill still be a delay before a visa number becomes available,unless the religious workerhas the equivalent of a U.S. Masters Degree and the job requires that degree.Obviously,given the difficulties involved with a labor certification and I-140, this is not a sure-firesolution for every religious worker.However,there may be some situations in which thisworks out to the advantage of the worker.These options should be discussed with animmigration attorney before proceeding,as the unique facts of each case must beconsidered before choosing the appropriate strategy.

R-1 Adjudication Delays:Problems and Possible Solutions

Another problem is caused by the delay in R-1 extensions.If an R-1 beneficiary hasapplied to extend her stay with the same R-1 employer that sponsored the first R-1,thebeneficiary is entitled to 240 days of employment authorization by regulation,followingexpiration of the previous R-1.Employment authorization ends when the extension ofstay is approved or denied.If the adjudication takes longer than 240 days,the beneficiaryis permitted to remain in the U.S. as long as the extension request is pending,withoutaccruing unlawful presence.However,she is not legally permitted to work.In manycases,this leaves R-1 beneficiaries unable to renew their driver’s licenses as well.It usedto be that the R-1 beneficiary could speed up processing by paying an extra $1000 forpremium processing (which guarantees adjudication within 15 days),but USCIS has doneaway with premium processing for religious workers since it began conducting the fraudinvestigations.

Fortunately, religious workers are not required to have USCIS approve an R-1 petition ontheir behalf in order to extend their stay. They have the option of leaving the U.S. andreentering in order to get a new period of R-1 admission authorized.For mostindividuals,this means obtaining an R-1 visa from a U.S. consulate abroad,which entailsoften expensive foreign travel and accommodations.However,for those R-1nonimmigrants whose R-1 visas are still valid just prior to expiration of their current R-1s,it may be possible to leave the U.S. and reenter on the visa just before it expires,andbe readmitted for an additional 2-year period.Customs officers are supposed to admitreligious workers for the total authorized period of stay,regardless of whether the visaitself is about to expire.Canadian citizens are not required to have visas,and would justneed to leave the U.S. and reenter with a new R-1 application to be presented at a port ofentry.Individuals considering these options should consult with an immigration attorneyto determine which option is most strategically viable given the facts of their case.

For those R-1 nonimmigrants still within their first three years,it is best to file the R-1extension as early as possible.Form I-129 instructions now permit all petitions to befiled six months in advance of the expiration date of the previously authorized period ofstay.It would be best to file the R-1 extension six months before the old R-1 expires.This gives the beneficiary six more months on his current R-1 status,plus an additional240 days of employment authorization after his current R-1 expires.This leaves thegreatest chance that the beneficiary will not be forced to stop working while waiting foran extension of stay to be approved,or to leave the U.S. and reenter in order to receive anadditional 2-year R-1.

H-1B Filing Season:Making It Under the Cap &Other Issues

As this year’s H-1B cap opens up,H-1B employers and immigration attorneys all aroundthe country are scrambling to get H-1B petitions ready to file by April 2.(April 1 istechnically the first date new petitions can be filed,but April 1 falls on a Sunday thisyear,so April 2 is the real first filing date).To use one of President Bush’s favoritewords,the “chatter” in the immigration law community seems to indicate that the H-1Bcap will be reached in record time this year.This is logical,given that the cap has been reached earlier and earlier every year since the cap was reduced to 65,000.This trendseems to have so primed employers and their attorneys to file new H-1B petitions in atimely manner that anyone who drags their feet on filing (or, ahem, getting documents totheir immigration attorney) is going to be sorely disappointed when they miss the cap.

Short-Sheeting the LCA

One thing employers and attorneys are doing is filing the Labor Condition Application(LCA),which must be submitted with the H-1B petition,early.The LCA is filedelectronically with the Department of Labor and can only be filed within 6 months of itsfirst validity date.For those who wish to have their H-1B petitions mailed to USCIS onFriday,March 30,and received on the first filing date of Monday,April 2,this presents aproblem.If the start date of the LCA is October 1, which is the first day H-1Bemployment can start,the earliest the LCA can be filed is April 1.This will not get theH-1B petition to USCIS until April 3 at the earliest,and possibly not until the 4th or 5thdue to the time involved in shipping documents off to the employer for signature andgetting them back to the attorney’s office to then submit to USCIS.So,many employersand attorneys are doing what I have termed “short-sheeting the LCA.” For example, if anemployer files an LCA online on March 8, the latest start date for the LCA is six monthslater,or September 8.The I-129 form would still have to request that the H-1Bemployment start date be October 1 or later,but there is no requirement that the LCAvalidity dates begin on or after the H-1B start date.Therefore,if the LCA is valid fromSeptember 8, 2007- September 8, 2010,the requested validity dates for the H-1B petitionwould have to be October 1, 2007- September 8, 2010.The net result is that thebeneficiary forfeits a few weeks of H-1B time in exchange for relative assurance that thepetition will be filed under the cap.

Maintaining Status Until October 1

For those who are already in the U.S. and seek a change of status to H-1B,it is vital thatthey maintain their current nonimmigrant status until October 1 in order to remaineligible for a change of status.This may be particularly difficult for F-1 studentscurrently on Optional Practical Training (OPT) which will expire before October 1.USCIS has previously issued cap-gap legislation to forgive this lapse of status,but cap-gap legislation has not been enacted for the past two years and there has not yet been anyindication that it will be passed this year.In a January 24, 2007 meeting between AILAand the Vermont Service Center,VSC officials stated that if there is a mere one day gapbetween expiration of the 60-day OPT grace period and October 1,VSC would forgivethe gap and approve a change of status.However,they would not give any specificcomments with regard to larger gaps.

For those who are not able to maintain status until October 1,it will be necessary to leavethe U.S. and wait outside the country for the H-1B petition to be approved,and then getan H-1B visa (unless visa exempt as a Canadian citizen) and reenter the U.S. on the H-1B.The earliest the beneficiary can be admitted is 10 days before the employment startdate.

Returning to H-1B Status After Spending a Year Abroad

Immigration regulations state that if someone has spent six years in H-1B status,he is notpermitted to enter the U.S. in H-1B status again unless he has spent at least a year outsidethe U.S.(The American Competitiveness in the Twenty First Century Act,or AC21,creates large exceptions to this rule for certain nonimmigrants.See our article on AC21at http://www.usvisahelp.com/art_AC21.html).However,what was not clear until aDecember 2006 USCIS memo came out,was whether someone who had spent less thansix years in H-1B status was eligible to return to the U.S. to finish up those six years afterhaving spent a year outside the U.S.The memo clarifies that H-1B nonimmigrants in thissituation who wish to return to the U.S.in H-1B status have the option of (1) obtaining anew H-1B and returning to the U.S.for the amount of time left of the initial six years(e.g. if the person has already spent 5 years in H-1B status,he would only be entitled toone year of H-1B status);or (2) obtaining a new H-1B and returning to the U.S. eligiblefor a full six years of H-1B status.The important distinction between these two optionsis that in the first case,when the H-1B holder returns to finish up his six years,he is notsubject to the cap;in the latter situation,where he gets a full new six years,he is subjectto the cap.

Someone contemplating these two options will have to carefully weigh the pros and consof each scenario,and the conclusion will depend on the unique facts of each case. Thefirst option,of finishing up the initial six years,would seem to be ideal for someone whohas missed the cap (or does not want to risk missing the cap),and who would becomeeligible for post-6th year H-1B extensions under AC21.However,for certain individuals,this is an important way of getting around the H-1B cap.

Updated Filing Instructions

To add an interesting twist to the already harried experience of trying to get cases filed ontime,the USCIS announced on March 5 that effective April 2,2007,all forms I-129 andI-539 are to be filed directly to either the California or the Vermont Service Center, “asapplicable.” However,they have yet to announce the criteria that will be used todetermine which service center a case should go to.They promise to publish informationon their website “prior to April 2,2007” to clarify the new filing rules.It is possible thatUSCIS will return to its prior jurisdiction-based filing system rather than the currentprocess which requires all cases to be filed at the Vermont Service Center so that USCIScan then forward all extension of stay requests to California.It is unclear when exactly,prior to April 2,USCIS plans to release this information.

Update on Proposed USCIS Fee Hike

In the last issue of Immigration Newswire,we reported that USCIS is proposing dramaticfee hikes.The American Immigration Lawyers Association reports that USCIS has setJune 2007 as the target date for implementation of these fee hikes.

Toronto Consulate Visa Expedite Procedures

The U.S.Consulate in Toronto,Canada recently informed our office that it hasprocedures in place to expedite petition-based employment visa appointments in certainlimited circumstances.These procedures apply to H-1B,H-1B1,H-2,L,O,P, and E-3visas where the petitioner is either a for-profit firm with over $25 million in sales and1000 U.S.based staff or the employer is a government,educational,research or medicalinstitution with a total of 1000 U.S.based staff/patients/students. In addition,the visaapplicant must not have any prior U.S. visa ineligibility,no criminal arrest record,not besubject to administrative processing,not be subject to the 2-year foreign residencyrequirement,not be subject to the 6-year limit for H-1B status,not be visiting the U.S.ona B visa or under the visa waiver program,and not unlawfully present in the U.S.

If these conditions are met,the visa applicant can complete an expedite request formavailable on the consulate’s web site and submit it to the consulate by email along withthe requested appointment date.The consulate will then send an email approval or denialof the expedite request within 2 business days.If the request is approved,the applicantwill be given a reference number to use in scheduling a visa appointment on the onlinevisa appointment reservation system.