News from the Alliance of Business Immigration Lawyers Vol. 8, No. 1A • January 01, 2012

Headlines:

1. ETA Announces 2012 Adverse Effect Wage Rates for H-2A Workers – The AEWRs range from a low of $9.30 per hour in Mississippi and Louisiana to a high of $12.26 per hour in Hawaii.

2. USCIS Changes Stand-Alone I-130 Filing Locations – USCIS has changed the filing locations for Form I-130, Petition for Alien Relative.

3. California Steel Foundry Fires a Third of Its Workers After I-9 Audit – The audit had identified about 200 employees allegedly working without legal status.

4. Justice Dept. Accuses Arizona Sheriff of Civil Rights Violations; Federal Judge Issues Ruling – A Civil Rights Division investigation found that the Maricopa County Sheriff’s Office engages in racial profiling of Latinos and unlawfully retaliates against individuals who criticize MCSO’s policies or practices; and a federal judge ruled that MCSO’s deputies may not detain people based solely on the suspicion that they may be in the U.S. illegally.

5. USCIS Ombudsman Now Requires Form DHS 7001 for EAD Cases – Those who have already submitted an EAD case inquiry do not need to submit the DHS 7001, but the form must be completed for all future inquiries.

6. New Publications and Items of Interest – New Publications and Items of Interest

7. Member News – Member News

8. Government Agency Links – Government Agency Links

Details:

1. ETA Announces 2012 Adverse Effect Wage Rates for H-2A Workers

On December 22, 2011, the Department of Labor’s Employment and Training Administration (ETA) announced the 2012 adverse effect wage rates (AEWRs) for the employment of temporary or seasonal nonimmigrant foreign workers to perform agricultural labor or services (H–2A workers). AEWRs are the minimum wage rates employers must offer and pay to H–2A workers and workers in corresponding employment for a particular occupation and area so that the wages of similarly employed U.S. workers will not be adversely affected. The Department’s H–2A regulations provide that employers must pay their H–2A workers and workers in corresponding employment at least the highest of: (i) the AEWR; (ii) the prevailing wage; (iii) the prevailing piece rate; (iv) the agreed-upon collective bargaining wage, if applicable; or (v) the federal or state minimum wage in effect at the time the work is performed.

The AEWRs range from a low of $9.30 per hour in Mississippi and Louisiana to a high of $12.26 per hour in Hawaii.

The notice is available at http://www.gpo.gov/fdsys/pkg/FR-2011-12-22/pdf/2011-32842.pdf.

2. USCIS Changes Stand-Alone I-130 Filing Locations

U.S. Citizenship and Immigration Services (USCIS) announced that effective January 1, 2012, it has changed the filing locations for Form I-130, Petition for Alien Relative. Domestic petitioners should mail their stand-alone I-130 applications to either the Chicago Lockbox or the Phoenix Lockbox, depending on where they reside in the United States.

There will be no change in filing locations when submitting an I-130 along with Form I-485, Application to Register Permanent Residence or Adjust Status. Individuals filing these forms together should continue to mail them to the Chicago Lockbox facility. Petitioners filing from overseas addresses in countries without USCIS offices should also continue to file at the Chicago Lockbox facility. Petitioners residing in a country with a USCIS office may send their I-130s to the Chicago Lockbox, or may file their I-130s at the international USCIS office having jurisdiction over the area where they live.

Those who submit their I-130 packages to the incorrect Lockbox location may experience a delay in processing. The new filing locations are available on the Form I-130 Direct Filing Locations webpage at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=6583ecb23683a210VgnVCM100000082ca60aRCRD&vgnextchannel=fe529c7755cb9010VgnVCM10000045f3d6a1RCRD.

3. California Steel Foundry Fires a Third of Its Workers After I-9 Audit

Pacific Steel Casting Company, based in Berkeley, California, has fired about a third of its workers after U.S. Immigration and Customs Enforcement (ICE) conducted an I-9 work authorization audit in February 2011 and identified about 200 employees allegedly working without legal status.

Elisabeth Jewel, a Pacific Steel spokesperson, said, “It’s terribly disruptive. We have highly trained employees and to lose them is very damaging.” In some cases, the workers had been with the company for decades and have children in local schools who are growing up in the United States.

The Berkeley City Council passed a resolution in June noting that the targeted workers are skilled and “inject hundreds of thousands of dollars into our local economy each month and support other businesses and families. The company and the workers pay taxes that support local schools and services.” The council noted that Pacific Steel’s suppliers could also be harmed by the action, and that the audit and consequent firing of the workers will force them “into an underground economy where illegal wages and conditions are prevalent.” Pacific Steel is the fourth largest foundry in the United States.

In a related action, the American Civil Liberties Union and several unions filed a Freedom of Information Act (FOIA) request in September 2011 seeking records relating to I-9 audits and “silent raids” such as the one ICE conducted on Pacific Steel. An ICE spokesperson reportedly said that in fiscal year 2011, ICE criminally charged 221 owners, employers, managers, or supervisors; conducted more than 2,496 I-9 audits; and initiated 3,291 worksite enforcement investigations, all up from 2010 numbers.

The Berkeley City Council resolution is available at http://www.ci.berkeley.ca.us/uploadedFiles/Clerk/Level_3_-_City_Council/2011/06Jun/2011-06-28_Item_41_Urging_the_U.S._Department_of_Homeland_Security.pdf. The FOIA request is available at http://www.aclunc.org/news/press_releases/asset_upload_file731_10448.pdf.

4. Justice Dept. Accuses Arizona Sheriff of Civil Rights Violations; Federal Judge Issues Ruling

Thomas E. Perez, U.S. Assistant Attorney General, sent a letter on December 15, 2011, to the Maricopa County Attorney, Bill Montgomery, accusing the Maricopa County Sheriff’s Office (MCSO) in Arizona of engaging in a “pattern or practice of unconstitutional policing.”

Meanwhile, a federal judge ruled on December 23, 2011, that Maricopa County’s deputies may not detain people based solely on the suspicion that they may be in the United States illegally. U.S. District Judge Murray Snow noted, among other things, that Sheriff Arpaio “has made public statements that a fact-finder could interpret as endorsing racial profiling.” A separate federal grand jury investigation of the MCSO related to criminal abuse of power continues.

Mr. Perez’s letter notes that a Civil Rights Division investigation found that MCSO engages in racial profiling of Latinos; unlawfully stops, detains, and arrests Latinos; and unlawfully retaliates against individuals who complain about or criticize MCSO’s policies or practices. MCSO’s “deputies, supervisory staff, and command staff” perpetrated the alleged violations.

The Civil Rights Division also found reasonable cause to believe that MCSO operates its jails in a manner that discriminates against limited English proficient (LEP) Latino inmates, who it said are punished “routinely” for failing to understand commands given in English and are denied critical services provided to other inmates.

The investigation uncovered a number of instances in which MCSO initiated immigration-related crime suppression activities in the community after receiving complaints that described no criminal activity, but rather referred to circumstances such as individuals with “dark skin” congregating in one area, or individuals speaking Spanish at a local business. “The use of these types of bias-infected indicators as a basis for conducting enforcement activity contributes to the high number of stops and detentions lacking in legal justification,” Mr. Perez said.

Mr. Perez noted that the bias affects MCSO from the top down. Maricopa County Sheriff Arpaio, for example, labeled as “intelligence” a letter explicitly equating skin color with law-breaking and instructed a subordinate to address it. Such instances “are striking examples of how Sheriff Arpaio has promoted a culture of bias in his organization and clearly communicated to his officers that biased policing would not only be tolerated, but encouraged.”

The Civil Rights Division also found that MCSO deputies are encouraged to make high-volume pretextual traffic stops in targeted locations. “We have identified and interviewed Latinos who, though legally present in the United States, were arrested or detained without cause as a consequence of these operations.” Further, MCSO’s Criminal Employment Squad (CES) deputies, tasked with interdicting undocumented persons by enforcing state forgery and identity theft statutes, “routinely raid businesses in a manner that harms innocent Latino workers. Specifically, CES’s deputies typically detain and investigate the immigration status of all employees at a raided worksite, whether or not the employees are listed in the warrant authorizing the raid. The CES targets worksites where most, if not all, of the employees are Latino,” the letter states.

MCSO officials also have resorted to official harassment to silence critics, the letter says. For example, former Chief Deputy David Hendershott filed “unfounded complaints” with the Arizona State Bar against five attorneys, alleging ethical violations. The attorneys had publicly criticized MCSO’s tactics. Similarly, Mr. Hendershott, acting in his official capacity, filed complaints with the Arizona Commission on Judicial Conduct against judges who had publicly criticized MCSO and Sheriff Arpaio or had rendered decisions deemed detrimental to MCSO’s interests. All of the bar and judicial complaints were dismissed as insufficient to warrant an investigation, the letter notes, adding that Sheriff Arpaio participated as a named plaintiff in a civil federal racketeering suit filed against the same targeted judges and a number of other county officials. The claims against the judges echoed the complaints Hendershott had filed; the suit eventually was abandoned. “The arrests and harassment undertaken by MCSO have been authorized at the highest levels of the agency and constitute a pattern of retaliatory actions intended to silence MCSO’s critics,” Mr. Perez noted.

These violations, along with the absence of clear policies and procedures to ensure effective and constitutional policing and oversight, “have contributed to a chronic culture of disregard for basic legal and constitutional obligations,” Mr. Perez said, adding that the Civil Rights Division found “additional areas of serious concern,” including MCSO deputies using excessive force against Latinos, and MCSO’s implementing its immigration enforcement program in a way that has created a “wall of distrust” between MCSO officers and Maricopa County’s Latino residents, and that “has significantly compromised MCSO’s ability to provide police protection” to residents.

Mr. Perez told Maricopa County that effective resolution of these issues will require a comprehensive written agreement along with federal judicial oversight. “We prefer to resolve this matter without resort to further litigation, although we will not hesitate to file suit, if necessary,” the letter states, setting a deadline of January 4, 2012, for a response to an invitation for “constructive dialogue.” Mr. Perez noted that the Civil Rights Division’s investigation was delayed when MCSO “repeatedly refused to provide the United States with access to pertinent material and personnel,” which was resolved by means of a lawsuit.

MCSO released Sheriff Arpaio’s response implying that political motivations of the Obama administration and Congressional Democrats are behind the actions and noting, among other things, that “2 Democrat Latino US Congress men from Arizona, joined by several other Latino Legislatures want me to resign my office. All of these same Democratic elected officials, throughout the years, have been criticizing my enforcement of State and Federal Illegal immigration laws.” Conversely, Sheriff Arpaio noted, “Candidates for President of the United States – Herman Cain and Michelle Bachmann recently visited me in my office, Texas Governor Rick Perry and Mitt Romney also called me – all interested in my successful enforcement of illegal immigration and asked for my endorsement. Recently in New Hampshire, I endorsed Texas Governor Rick Perry for President of the United States.” (Typographical errors in original.)
Mr. Perez’s letter includes a description of the findings, a legal discussion, and remedial measures required, such as training for deputies; establishment of policies and procedures; data collection and risk management; developing and implementing a complaint, investigation, and disciplinary system; a comprehensive language access program for LEP individuals in jail and in the community; and community outreach. The letter is available at http://www.justice.gov/crt/about/spl/documents/mcso_findletter_12-15-11.pdf. Sheriff Arpaio’s response is available at http://www.mcso.org/MultiMedia/PressRelease/DOJ%20presser%20response%20121511.pdf.

5. USCIS Ombudsman Now Requires Form DHS 7001 for EAD Cases

U.S. Citizenship and Immigration Services’ Ombudsman’s Office requests that those submitting case inquiries complete Form DHS 7001, Case Problem Submission Worksheet, for all cases, including those related to applications for an employment authorization document (EAD). The Ombudsman is requiring completion of the DHS 7001 to comply with applicable privacy rules. In the past, the Ombudsman allowed case inquiries without the DHS 7001 regarding EAD applications falling outside normal processing times. For same-day submission in urgent cases, the Ombudsman encourages people to use Ombudsman Online Case Assistance when submitting inquiries. Those who have already submitted an EAD case inquiry do not need to submit the DHS 7001, but must complete the form for all future inquiries.

The DHS 7001 is available at http://www.dhs.gov/xlibrary/assets/cisomb_dhsform7001.pdf or may be completed online at https://cisombvos.dhs.gov/vos/form7001.aspx (Ombudsman Online Case Assistance).

6. New Publications and Items of Interest

OIG report on New Delhi embassy. The Department of State’s Office of Inspector General has published a report on the embassy in New Delhi, India, and constituent posts. Among the recommendations are several for ensuring uniform adjudications of H visa applications and revocation of H petitions. The report notes that because of the rapidly expanding bilateral relationship between the United States and India, and the growing Indian economy, the nonimmigrant visa workload could double by 2020. The OIG recommends that stakeholders in the Department of State initiate long-range workload planning and a long-term strategic plan for facilities in India, including the possibility of more posts. The report is available at http://oig.state.gov/documents/organization/169305.pdf.

ABIL Global Comparative Investment & Immigration Options Webinar. The Alliance of Business Immigration Lawyers (ABIL) will present a webinar, “ABIL Global Comparative Investment & Immigration Options,” on January 12, 2012, at 12 a.m. EST/5 a.m. GMT. This webinar will help guide investors and entrepreneurs who are looking for options in various countries. ABIL will cover the immigration options through investment in Australia, Canada, the United Kingdom, and the United States. All participants will receive a file with the PowerPoint presentation, relevant articles, and resources before the webinar, as well as a recording of the webinar afterwards. The cost is $50 to participate live or to receive the recorded version of the webinar. Register at https://securec9.ezhostingserver.com/abil-com/abil_global_comparative_webinar_signup.cfm. For more information, contact Lauren Anderson at lauren@abil.com.

Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.

For more information or to order, visit http://www.greencardstories.com/.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration.

7. Member News

Charles Kuck wrote an op-ed that was published in the December 28, 2011, edition of the Atlanta Journal Constitution. “Path to Legality Falls Way Short” is available at http://www.ajc.com/opinion/path-to-legality-falls-1278722.html.

Cyrus Mehta has published a new blog entry. “It’s 9:00 A.M. – Do You Know Where Your H-1B Employee Is? An Overview of FDNS Site Visits” is available at http://cyrusmehta.blogspot.com/2011/12/its-9oo-am-do-you-know-where-your-h-1b.html.

Angelo Paparelli has published several new blog entries. “The 2011 Nation of Immigrators Awards – the IMMIs” was published at http://t.co/h43UjSyI. “The Immigration Appeaser-in-Chief Should Try Some New Ammunition” is available at http://bit.ly/tfjcvH. “Immigration Governance Unmasked” is available at http://bit.ly/tvSylM.

Mr. Paparelli was recently quoted in the Los Angeles Times and in an Associated Press video about his client, an ex-slave from Egypt and now a U.S. citizen, Shyima Hall. The article is available at http://www.latimes.com/news/local/la-me-1216-shyima-hall-20111216,0,1583100.story and the video is available via Huffington Post at http://www.huffingtonpost.com/2011/12/15/shymia-hall-citizen_n_1151877.html?.