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Some Of The More Recent Department Of Homeland Security Immigration Related Programs, Systems, Added Requirements And Internet Inspections With Which You Should Be Familiar

by Alan Lee

In the field of immigration, the Department of Homeland Security (DHS) has recently established a plethora of new programs, systems, added requirements and internet inspections with which members of the public who are or may be in contact with the agency's three immigration components, United States Citizenship and Immigration Services (U.S.C.I.S.- charged with administering immigration benefits), United States Immigration and Customs Enforcement (U.S.I.C.E.- charged with interior enforcement of the immigration laws), and U.S. Customs and Border Protection (CBP - charged with border enforcement) should be aware. Lack of knowledge could have unfortunate consequences in terms of denials, fines, or possibly convictions. The following are some of the most important:

  1. VIBE "Validation Instrument for Business Enterprises" is the new web based tool of U.S.C.I.S. to use commercially available data to validate basic information about companies/organizations petitioning for alien workers. VIBE's current status is that the software is undergoing beta testing, which means that it is being tested upon the public to determine acceptability and detect faults or bugs. VIBE appears to be a staple in the future of employment based cases. It will include most employment based petitions including Forms I-129 and I-140 filed by companies and other organizations. The information will yield business activities such as type of business, trade payment information, status (inactive or active), sales volume, credit standing, number of employees (including onsite and globally), relationships with other entities including foreign affiliates, whether it is a single entity, branch, subsidiary or headquarters, ownership and legal status, such as LLC, partnership or corporation, company executives, date of establishment, and current physical address. The centerpiece of VIBE is Dun and Bradstreet's (D&B) databases, and more employers can expect to receive Requests for Further Evidence (RFEs) and Notices Of Intent to Deny (NOIDSs) when the petition information conflicts with that of D&B. The information may be of particular concern where an employer is claiming a larger number of employees or more sales volume or different ownership than reflected in the databases. Prudent employers may want to check their D&B profiles for mistakes and contact D&B as soon as possible to correct any inaccuracies. Organizations can request a copy of their D&B report either by calling D&B's toll-free customer support center at 1-800-234-DUNS (3867) or using D&B's internet based service, "iUpdate," available at http://iupdate.dnb.com/iUpdate/companylookup.htm. U.S.C.I.S. has further stated that it will not automatically issue an RFE or NOID if an employer's information is not included in the D&B database.
  2. FACEBOOK and GOOGLE are sites being visited by DHS and consular officers to determine the truth of representations being made by visa applicants. It has been reported that CBP now uses GOOGLE to obtain data about applicants, and that consular officers have been using FACEBOOK in adjudicating non-immigrant applications. If an applicant's FACEBOOK profile says that the individual is living and working in the U.S., a B-1/B-2 visa will be denied. In a meeting of the American Immigration Lawyers Association (AILA) Central Florida Chapter with the U.S.C.I.S. Tampa Field Office on November 4, 2010, upon AILA's complaint that officers in marriage cases appeared to be using FACEBOOK information to assess the validity of marriages, the Tampa office answered that it can generally use any public information and that, if it is out there, the information will probably be used by the officer in determining whether the marriage is bonafide.
  3. Secure Communities is a 2008 program of U.S.I.C.E. under which fingerprints of suspects for crimes are not only run through the FBI database, but given to DHS to ferret out who is removable from the United States. The program's stated aim is to remove criminal aliens from this country. However, the program has many critics and has lately come under renewed attack for the type of people who have been targeted and the unwillingness of the federal government to allow disenchanted state and local governmental entities to withdraw from the program. Many of the people who have been identified, detained under U.S.I.C.E. order, transferred to the agency, and deported under the program have only had minor crimes or were never convicted at all. Originally represented as voluntary, states and communities are finding that they cannot opt out and that the Obama Administration wants to make the program nationwide by 2013. As of February 1, 2011, 1006 cities and counties in 38 states were reportedly enrolled in the program. Some states, cities, and local communities have become increasingly leery of the program as it has reduced police cooperation by the alien community. The current U.S.I.C.E. attitude is that there is no opt out from having fingerprints forwarded to DHS. The only option for local communities is to refuse to receive fingerprints results back from DHS, which U.S.I.C.E. believes would leave them vulnerable to charges that they do not care about illegal immigrants in their jails. In New York, Gov. David Patterson signed an amended Secure Communities Memorandum Of Agreement (MOU) with U.S.I.C.E. just prior to leaving office hoping that the addition of language that ICE will be solely responsible for enforcing immigration laws and will use a "risk-based approach" to determine which immigrants to target for deportation would redirect enforcement in New York to those with serious crimes. However, that remains to be seen, and there is hope that current Governor Andrew Cuomo can eradicate or otherwise modify the MOU. In the meanwhile, undocumented immigrants should continue taking steps to avoid the possibility of arrest, especially for common situations such as domestic disturbance, driving while impaired or intoxicated, loud argument with a neighbor, or even something as simple as driving with a broken tail light.
  4. Beginning March 21, 2011, individuals who maintain an address and are physically located in Arizona, Idaho, Colorado, Mississippi, Virginia or the District of Columbia are able to check their own work authorization through the E-Verify secure web portal. (Start with http://www.uscis.gov and then look to the right on the home page for the E-Verify section). U.S.C.I.S. has stated that the E-Verify Self Check service will be expanded to other locations in the future on a rolling basis. This is a two-step process - identity authentication and employment authorization verification. The system's main tool is a commercial assurance third company service provider (IdP) using commercial information verification collected by third-party companies from financial institutions, public records, and other service providers to verify the ID. It collects the name, date of birth, SSN (if any), address, and if the person passes identity check, the system works on employment verification by asking questions on citizenship status and document chosen which can include a Social Security card, permanent residence card, employment authorization document, U.S. passport, and documents and associated numbers which are acceptable for I-9 verification. The Self Check is helpful as U.S.C.I.S. says that once an individual has confirmed employment eligibility using the system, he/she is unlikely to encounter difficulties upon being hired by an E-Verify participating employer. The Self Check is not to be used by an employer to check the status of employees although organizations which are not participating in the regular E-Verify program may be sorely tempted to use the Self Check system by having employees check their statuses with company personnel watching. It should also be remembered that there is nothing that would prevent a job applicant from voluntarily appending to an application or showing a prospective employer verification of employment authorization through the Self Check system in hopes of obtaining an advantage over other job applicants.
  5. EAR/ ITAR - The release of sensitive technology is a burgeoning issue and the current Form I-129 Petition for a Nonimmigrant Worker requires (since February, 20, 2011) that the petitioning employer and form preparer attest to compliance with the Export Administration Regulations (EAR) and the International Trafficking Arms Regulations (ITAR) by certifying that a license is not required or that the license will be obtained prior to the release of covered technology to the foreign national. Petitioning organizations must answer Part 6 of the Form I-129 petition to check off if an H-1B, H-1B Chile/Singapore, L-1, or O-1A nonimmigrant petition beneficiary requires an export authorization license under EAR or ITAR. The EAR lists dual-use items that may be of importance to U.S. government security, and ITAR primarily involves weapons and items modified for defense purposes. The EAR dual-use items (items that can be used for more than one purpose) will affect more petitioners as these are items, e.g., computers or chemical materials, which may be used across different types of businesses.

    The U.S. defines an export as any transfer to a foreign person and a reexport as a transfer to legal U.S. residents with the knowledge that it will be further transferred to a foreign person. Allowing a foreign person access to technical data or controlled data is referred to as a "deemed" export. This affects co-workers in the same business group with even just one non-U.S. citizen where government-restricted information or equipment needs to be used. Export license authorization can be problematic in these situations as it takes time for approval. However, the foreign worker can be present on-site and is only restricted from performing tasks using the data or equipment in question while the export license authorization is pending.

    A company or its compliance group should check if any of the technology it possesses is subject to either or both the EAR and ITAR in preparation for the above types of visa petitions that it is planning to sponsor. This is important as both the EAR and ITAR can carry denial of export privileges as well as costly civil fines and criminal penalties. Heavy fines and imprisonment can be applied retroactively. Fines can incur with submission of a first-time license application if it is found that the company should have applied earlier for export authorization. Even retired professors have been sentenced for having allowed foreign graduate students access to government-restricted equipment and data. Organizations are therefore strongly encouraged to develop a compliance plan or designate a group or person dedicated to export compliance. See http://www.bis.doc.gov and http://www.pmddtc.state.gov for more information on the export control rules.

The five items discussed above show that DHS's three immigration related agencies are aggressively moving forward with new tools in the areas of monitoring, policing, and enforcing the law in their mandated areas. Readers should stay abreast of these developments and others to avoid entanglements which may not be inevitable.

© Alan Lee, Esq.


About The Author

Alan Lee is a 30+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.


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