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    Published on 03-11-2013 10:10 AM

    The Status of Internet Proxy Marriages Under Immigration Law

    by Cyrus D. Mehta

    A recent article in the New York Times entitled You May Now Kiss the Computer Screen caught my interest.  The article highlights a rise in marriages over the internet, especially through a video chat program Skype, among immigrant communities. “The practice is no new that some immigration authorities said they were unaware it was happening and did not provide extra scrutiny to ensure these types of marriages were not being misused to secure citizenship,” the article states. 


    A “Skype marriage” takes place in another country where it is legally registered while the other party participates via video in the United States. If the marriage is considered legally valid in the foreign country, it will generally be recognized in the US. On the other hand, such a marriage is considered a proxy marriage, and under §101(a)(35) of the Immigration and Nationality Act (“INA”), if the parties were not in each other’s presence at a marriage ceremony, there must be proof of consummation for such a marriage to be recognized under immigration law. This is true even in the case of a couple who were previously married and had consummated their marriage through the birth of three children, and then divorced. They remarried through a proxy marriage that was valid in Italy, but since there was no proof of consummation following that marriage, the visa petition filed on behalf of the spouse was denied. See Matter of B-, 5 I&N Dec. 698 (BIA 1954). 

    Thus, internet marriages, even on the rise, will not be recognized under immigration law unless the parties establish that there was consummation. In addition, there is a requirement that every marriage, proxy or not, be bona fide and not be entered into solely to obtain a green card. Indeed, INA §204(c) imposed a lifetime bar to a new petition being approved on behalf of a beneficiary who was previously involved in marriage fraud. 

    The immigration authorities do not require definitive proof of consummation, and proof of the two parties being together physically after the celebration of their proxy marriage, along with a statement affirming consummation, ought to suffice. In fact, non-proxy marriages do not require consummation to satisfy the bona fide marriage test. In Matter of Peterson, 12 I&N Dec. 663(BIA 1968), the fact that an elderly couple lived in separate bedrooms and had not engaged in sexual intercourse did not preclude the demonstration of a bona fide marriage. Also, a marriage would still be considered bona fide even though it is no longer viable because the couple have separated as a result of marital discord.  See Matter of McKee, 17 I&N Dec. 332 (BIA 1980).  
    Published on 03-08-2013 10:59 AM

    Notes From The 2/26/13 U.S.C.I.S. Teleconference on I-601A Provisional Unlawful Presence Waivers

    Alan Lee, Esq.

    In the teleconference with representatives of U.S.C.I.S. and the Department of State, processing issues for the upcoming I-601A acceptances were discussed. The below is a listing of many of the important points covered in the teleconference.

    1. Some who took part in the teleconference were confused as to who could be a qualifying petitioner and who could be a qualifying immediate relative to whom extreme ...
    Published on 03-08-2013 10:52 AM

    Bill Clinton Calls For Overturning DOMA. What About IIRIRA?

    by Roger Algase

    Bloggings: Bill Clinton Calls For Overturning DOMA. What About IIRIRA? By Roger Algase

    In a March 7 Washington Post oped, former President Bill Clinton called on the US Supreme Court to declare the Defense of Marriage Act (DOMA), which bars same sex spouses from receiving federal benefits (including green cards) available to spouses in opposite sex marriages, unconstitutional. Clinton said that 1996, when he signed DOMA, "was a very different time". He also stated:

    "On March 27, DOMA will come before the Supreme Court, and the justices must decide whether it is consistent with the principles of a nation that honors freedom, equality and justice above all, and is therefore constitutional. As the president who signed the act into law, I have come to believe that DOMA is contrary to those principles and, in fact, incompatible with our Constitution."

    DOMA is not ...

    Published on 03-07-2013 03:44 PM

    Recognizing Gay Marriage in Immigration
    A Look ahead to what same-sex immigration benefits could look like if DOMA meets its demise, but Proposition 8 stands.

    by Christopher M. Pogue, Esq.

    This article is a brief thought experiment, which assumes for a moment that the 1996 Defense of Marriage Act (DOMA) is unconstitutional, but that California’s Proposition 8 will stand. Based upon this assumption we will look to the impacts this will have in US immigration law, in particular on immigration ...

    Published on 03-07-2013 03:30 PM

    Build Better Practice-Group Leadership

    by Ed Poll

    As large law firms have developed into "corporate" organizations to better serve corporate clients, the practice-group structure has become an accepted organizational model.

    Such groups can also be called departments, teams or some other designation, but the concept behind them is fundamental: Practice groups organize ...

    Published on 03-07-2013 02:53 PM

    April 2013 Visa Bulletin Predictions

    by Tahmina Watson

    So many of my readers are waiting anxiously for the April 2013 Visa Bulletin, that I thought I should post this from AILA, I have made bold the notes I think my readers will find important, particularly that EB2 India might have further retrogression this year.

    Visa Office Update on Priority Dates and Demand (Updated 2/22/13)

    Cite as “AILA InfoNet Doc. No. 12012349 (posted Feb. 22, 2013)” 

    On Thursday, January 31, 2013, Roberta Freedman, AILA Students & Scholars Committee member, and Mike Nowlan, Chair of the AILA Business Committee, discussed the Visa Bulletin, visa demand in the employment and family preference categories, and predictions for the remainder of FY2013 with Charlie Oppenheim of the Department of State’s Visa Office. Below are notes from that call. These notes are Mr. Oppenheim’s impressions at this time, and are subject to change based on usage or new developments.

    • Mr. Oppenheim’s office has spent considerable time over the past several weeks looking at various proposals for immigration reform, and how they would impact backlog numbers. The office’s predictions as to how the priority dates will move for the next several months are in the March Visa Bulletin.
    • His ...
    Published on 03-06-2013 11:04 AM

    Form I-9 and H-1B Enforcement and Employers' Best Practices to Preclude Liability

    Jane W. Boldblum and Jeffrey D. Azarva

    Introduction

    As President Barack Obama begins his second term in office, comprehensive immigration reform has catapulted to the top of his legislative agenda. But while Congress’ ability to agree to a meaningful overhaul remains uncertain, employers can be certain that Congress, like the administration, is focused on comprehensive immigration enforcement. This article will discuss the two main areas of employment-based immigration enforcement, reflected in governmental audits and, in so doing, will divide this article in two parts: in Part 1, the authors will discuss Form I-9 audits which potentially face all U.S. employers and are conducted by the U.S. Immigration and Customs Enforcement (ICE), a division of Homeland Security Investigations (HSI); and, in Part 2, the authors will discuss H-1B audits which potentially face any employer that employs an H-1B worker and are conducted by the office of Fraud Detection and National Security (FDNS), a division of U.S. Citizenship and Immigration Services (USCIS), as well as audits conducted by the U.S. Department of Labor’s Wage and Hour Division.

    Message: this article, in no way, seeks to panic any employer. Indeed, these authors believe that our country’s applicable immigration laws are relatively easy to comply with. However, as evidenced, since 2009, when USCIS adopted an aggressive strategy to target employers perceived as not complying with the letter or spirit of our immigration laws, substantial fines have ensued. Since 2009, ICE has ‘raised’ over $87 million in employer sanctions. The Wage and Hour Division also has exacted sizable fines against non-compliant employers. Thus the critical message of this article: all employers need to be aware of their responsibilities and to meticulously comply with same. In order to do so, employers should seek the counsel of reputable immigration counsel who will not tell the employer what it wants to hear, but will clearly tell the employer what it needs to hear to avoid liability and to adhere to the requirements of the law. It is our hope that this article will help.

    Part 1: Form I-9 and HSI Enforcement

    John Morton, Director of U.S. Immigration and Customs Enforcement, underscored his agency’s priority when he delivered in March 2012 his 2013 budget address to Congress:

    We are focused on smart and effective enforcement of our immigration laws, including making sure that employers have the tools they need to maintain a legal workforce and face penalties if they knowingly violate the law… By focusing on employers that are willing to hire illegal workers, we can eliminate the incentive that leads illegal aliens to violate our nation’s immigration laws… This focus will continue this coming fiscal year. [1] (Emphasis supplied)

    Director Morton then described one such “tool”:

    We have also established the ICE Mutual Agreement between Government and Employers program (IMAGE) — designed to promote voluntary compliance, educate employers about best practices and help companies train their employees to comply with the nation’s immigration-related employment laws. Last year, ICE entered into IMAGE agreements with well-known companies, including Chick-fil-A, Smoothie King, Best Western, Toyota, Tysons Food, and Kelly Services, among others. These companies agree to use E-Verify, conduct self-audits, and submit to an ICE audit. In FY 2013, ICE will continue to expand IMAGE outreach nationwide… [2]

    John Morton’s address makes clear that ICE, through its Homeland Security Investigations (HSI), will be aggressively auditing employers in those industries believed to be employers of the undocumented. By way of example, in 2012, Infinite Visions, a clothing manufacturer in Secaucus, New Jersey, was audited after ICE received an anonymous tip alleging that the company hired illegal aliens. The audit revealed unspecified violations of the Immigration Act and “serious deficiencies with the company’s employment records.” [3] In other words, I-9 violations. In July 2012, the company reached a final settlement with HSI in the amount of $625,000. [4]

    The special agent in charge of HSI’s Newark, New Jersey office, Andrew McLees, stated:

    HSI is focused on protecting lawful business owners by continuing to investigate employers who repeatedly and egregiously hire illegal workers. [5]

    Employers in New Jersey and elsewhere may believe that the above statement suggests that the ‘compliant’ employer can relax, and that only the egregious employer is being targeted. The authors of this article know otherwise.

    In 2012-2013, the authors were asked to represent, what they (still) believe to be, a ‘compliant’ southern New Jersey employer in a Form I-9 audit. The employer had received I-9 training a few years before the audit and knew they had I-9s for each worker and knew that each worker had produced documents, as required, confirming their identity and work authorization. Although the employer somehow had misplaced about 15 original Forms I-9, they had exact copies of same and, after searching for the missing original forms, submitted an attestation attesting to the fact that the forms were a true and correct copy of their original. The employer, despite easily corrected technical deficiencies (such as the easily missed ‘date of hire’), in pertinent part, was a good example of what an employer should be doing in an industry that is perceived to be non-compliant. The authors expected HSI to accept the employer’s attestation that each Form I-9 produced was a true copy of its original, find ‘good faith compliance’, and hold the company up as an example of an employer that evidenced a commitment to hire an authorized workforce. Instead, HSI issued a Notice of Intent to Fine containing a punitive, substantive fine for each of the 15 copies of the Forms I-9 produced. The amount of the fine, of course, will be negotiated and reduced. However, this case underscores the importance of the most seemingly compliant employer in New Jersey to be vigilant and pro-active about their employment verification responsibilities, as HSI does not intend to show any mercy.

    Indeed, recent years have witnessed a marked escalation in worksite enforcement. As alluded to above, since January 2009, ICE has ratcheted up its enforcement efforts, auditing more than 8,000 employers, debarring 726 companies from participation in federal contracts and other immigration programs, and levying more than $87.9 million in financial sanctions. [6] In FY 2012 alone (October 1, 2011 to September 30, 2012), ICE served 3,020 Notices of Inspection (initiating a government inspection of an employer’s Forms I-9), which led to 495 “Final Orders” totaling nearly in $12.5 million in administrative fines. [7] If the skeptical or complacent employer needed any further convincing of the Department of Homeland Security’s (DHS) newfound resolve, they need only look to the $18 billion spent on immigration enforcement initiatives in 2012—a figure which dwarfed spending by all other major federal law enforcement agencies combined. [8] As the above statistics suggest, DHS is serious about immigration enforcement, and there is every reason to expect more of the same in 2013 and beyond.

    i. The Mechanics of Form I-9 Completion

    The passage of the Immigration Reform and Control Act (IRCA) imposed an affirmative duty on employers to verify the identity and work authorization of all persons hired after November 6, 1986. [9] The mechanism for documenting same is the Employment Eligibility Verification Form, better known as simply Form I-9. This all-important form must be completed by all employees and by an authorized representative of the employer within three business days of hire. [10] Specifically, newly-hired employees must be given a sheet on which is listed those documents that, if provided (in the original), will establish the employee’s identity and employment eligibility. The employee is given full discretion to choose his/her documents to present. The employee may present one original, unexpired document which establishes both employment authorization and identity, or may present two original, unexpired documents: one which establishes employment authorization and a second document which establishes identity. [11] The employee, after submission of his/her documents, is required to complete and execute Section 1 of Form I-9. [12]

    As mentioned above, the employer must refrain from specifying which documents an employee may present in connection with Form I-9 verification, lest liability for discrimination attach. [13] By executing the designated portion of Form I-9, the employee attests, under penalty of perjury, that he or she is authorized to work in the United States as either a U.S. citizen or national, lawful permanent resident (i.e. green card holder), or a nonimmigrant with valid employment authorization. [14] The employer, in turn, must review the proffered documents and accept the documents that are on the list as ‘acceptable’ Form I-9 documents, and which appear genuine. The law specifically precludes employers from ‘investigating’ or looking beyond the documents; it only requires that a document appear facially genuine in order for an employer to find an individual work authorized. [15] To look beyond the face of the documents will subject the employer to liability for discriminatory hiring practices. If, for example, an employer ‘suspects’ that a proffered Social Security Card is fraudulent, the employer is not permitted to reject same or request another document. It only may do so in the event that the document is clearly altered. Once an employer has reviewed the employee’s documents, it must fill out the second portion of Form I-9 by indicating the type of documentation provided, as well as the identification number and expiration date (if any) of same. [16] Finally, employers are required by law to maintain, for inspection purposes, Forms I-9 for all members of their current workforce during the entire time of their employment. In the case of former employees, they are obligated to keep same for a period of at least three years from the date of hire, or one year after the date the individual ceases to be employed, whichever is later. [17] As the authors’ client in southern New Jersey experienced, employers risk ‘substantive’ liability if Forms I-9 are not properly retained—either in paper form (with original signatures) or in electronic form (with acceptable electronic signatures), or via a microfilm or microfiche copy of the original signed version of the Form I-9. [18]

    Although currently just one page, Form I-9 can be deceptively difficult to complete. Employers should not underestimate the importance of meticulously completing each and every item on the form, as the failure to do so can translate into mounting liability, even when no unlawful employment exists. Generally, in the event ICE agents or auditors conduct an inspection of an employer’s Forms I-9 for compliance, they will categorize I-9 violations into two categories: substantive verification errors, and technical or procedural deficiencies. ICE has never promulgated a regulation defining a substantive versus a technical violation. It, however, can be assumed that a substantive violation includes an employer’s failure to complete two key parts of Form I-9: (i) the part that indicates the worker’s ‘immigration’ status; and (ii) the part that indicates that the employee presented a document that confirms employment eligibility. Other omissions—including the commonly missed ‘date of hire’—usually constitute technical violations. Nevertheless, if technical or procedural mistakes have been ...

    Published on 03-06-2013 10:05 AM

    Bloggings On Political Asylum

    by Jason Dzubow

    Russia Angered by UK Asylum Grant

    Recently, I*wrote*about people from friendly countries receiving asylum in the United States. There are few such cases, and they generally seem to be*aberrations. *For these reasons, the source countries are not particularly concerned that we are granting asylum to their nationals. *That is not always the case, however.*

    *

    Russia called.  They want their Baryshnikov back.

    Russia called. They want their Baryshnikov back.

    Earlier this month, the United Kingdom granted asylum to Andrey Borodin, a 45-year-old Russian banking tycoon, who owns Britain’s most expensive private house (it’s quite nice, as you can see*here). Russian authorities accuse Mr. Borodin of bank fraud. *But Mr. Borodin claims that*the charges were trumped up after he accused a key ally of ...

    Published on 03-06-2013 10:01 AM

    Bloggings on Nurse and Allied Health Immigration

    Chris Musillo

    H-1B BENCHING FIRM INDICTED

    by*Chris Musillo

    A*Texas*IT services firm, Dibon Solutions, has just been indicted by federal authorities, who allege that Dibon unlawfully benched H-1B employees,*reports*Computerworld. * Six Dibon Solutions employees*have been arrested.

    Dibon's business model, which is permissible for US workers, is impermissible for H-1B workers. *The model called for Dibon to place H-1B employees at third-party client*worksites, as those third-party clients needed IT*services. *When there was no client work, Dibon benched the employees and did not pay the H-1B workers the requisite H-1B wage, which is the alleged*illegal*act.* *

    The U.S. Department of Labor requires that H-1B employers pay H-1B workers their full H-1B wage, even if the H-1B worker is not working. *The H-1B employer has the option of terminating the H-1B worker, which disolves the H-1B employer's wage obligation. *However, if the H-1B employer wishes to re-hire the terminated H-1B employee, the H-1B employer must file a new H-1B petition with the USCIS and may be required to file a new Labor Condition Application with the DOL.* ...

    Published on 03-06-2013 09:52 AM

    Bloggings on Immigration Law and Policy

    by Greg Siskind

    Jeb Bush Latest to Push for Conventional Paths to Citizenship

    The media is largely getting the story wrong and saying some of the more pro-immigration folks in the GOP are against a path to citizenship. Jeb Bush, the former governor of Florida and the brother and son of two Presidents (and very possibly a candidate for the presidency in 2016) is the most recent Republican to speak out against a "special" path to citizenship. This is not the same thing as being against illegally present immigrants being able to eventually get citizenship. It means that we don't create a system that is easier and faster than that available to people currently in line. He has been telling reporters that the key is for people to apply through existing categories which then need to be expanded so there is a realistic chance to get a green card in a reasonable period of time.

    IT Firm Indicted for ...

    Published on 03-06-2013 09:51 AM

    Did Jeb Bush Fall Into An Immigration Sinkhole? Or Did He Let The Cat Out Of The Bag?

    by Roger Algase

    Bloggings: Did Jeb Bush Fall Into An Immigration Sinkhole? Or Did He Let The Cat Out Of The Bag? by Roger Algase

    Last Thursday, the entire nation was shocked by the horrifying story of an innocent 37 year old man, Jeff Bush, whose bedroom in his home near Tampa, Florida was suddenly swallowed up in a huge sinkhole that has, presumably, now become his grave. All of our hearts go out to Mr. Bush's family for this terrible loss.*

    For those of us who may be philosophically inclined. this awful event is a sobering reminder of the unfairness and capriciousness of life. Why did something so devastating happen to a man who, so far as we know, had never hurt a single person in his short lifetime on this planet?*But I leave it to the philosophers to sort out the deeper meaning of this disaster.

    There is, however, another, much better known, Bush, namely Jeb Bush, the former governor of Florida, who may have fallen into a political sinkhole of his own making. This Mr. Bush has also never hurt anyone in his life (except, in the opinion of many, allegedly having helped steal the 2000 election in Florida for his brother, George W. Bush, leading to the latter's having fallen into another alleged sinkhole known as the Iraq war).

    The political sinkhole that Jeb Bush may have fallen into might not be as wide or deep as the sinkhole of electrified border fences which instantly swallowed the Republican primary candidacy of Herman Cain last*year. Nor, arguably, is it as dangerous as the sinkhole of "self-deportation" which played such a large role in burying Mitt Romney's presidential hopes last November. But in one way, Jeb Bush's sinkhole might be even more dangerous for the entire Republican party.

    Specifically, Jeb Bush has just published a book in which he stated that while he supports legalization for up to 11 million unauthorized immigrants, they should ...

    Published on 03-05-2013 02:42 PM

    Immigration Reform: Battling Fear with Facts

    by Sheela Murthy et al.

    It's often said that the road to perdition is paved with good intentions. Given the political machinations surrounding immigration reform, some observers might be tempted to add a corollary: that even the best-intended legislation is no match for misinformed or deliberately tendentious debate.

    According to journalist Juan Williams, President Bush's attempt to pass comprehensive immigration reform, in 2007, was doomed by what he calls the "dagger" of an idea: that our southwestern border had become a literal walkover for illegal immigrants. [See Opinion: Dispensing with a New 'Dagger' Against Immigration Reform, by Juan Williams, The Hill, 18.Feb.2013.] That rhetorical dagger was blunted, Williams says, by "a record number of border patrol agents now in place, along with electronic surveillance and even walls ...


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