Immigration Law

Bender’s Immigration Bulletin – February 15, 2011 - Immigration Attorneys Disciplined

FY 2011 H-1B Cap Reached

USCIS has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year 2011, it announced on January 27. The final receipt date for new H-1B petitions requesting an employment start date in FY2011 is January 26, 2011. The final receipt date is the date on which USCIS determines that is has received enough cap-subject petitions to reach the limit of 65,000. Properly filed cases will be considered received on the date that USCIS physically receives the petition, not the date the petition was postmarked.

As in the past, USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on January 26. All remaining cap-subject petitions will be rejected and returned, with the accompanying fee, to the petitioner.

USCIS will continue to accept and process petitions filed to:

   extend the amount of time a current H-1B worker may remain in the United States;

   change the terms of employment for current H-1B workers;

   allow current H-1B workers to change employers; and

   allow current H-1B workers to work concurrently in a second H-1B position.

By December 20, 2010, USCIS had also received more than 20,000 H-1B petitions filed on behalf of persons under the “advanced-degree” exemption from the cap. USCIS will continue to accept and process H-1B petitions that are exempt from the cap.


Fifteen Countries Added to H-2A/H-2B Programs

USCIS, in consultation with the Department of State, has identified fifty-three countries whose nationals are eligible to participate in the H-2A and H-2B programs for the coming year. Fifteen countries were designated for the first time. See Appendix A.

The H-2A program allows U.S. employers to bring foreign nationals to the United States to fill temporary agricultural jobs; the H-2B program is reserved for nonagricultural jobs. With limited exceptions, USCIS approves petitions only for nationals of countries designated by the Secretary of Homeland Security as eligible to participate in these programs.

Effective January 18, 2011, nationals from the following countries are eligible to participate in the H-2A and H-2B programs. Those in bold type are new to the program this year: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, the Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu.

After considering a number of factors, the Departments determined that Indonesia currently does not warrant a renewed designation as a participating country for 2011.

This new list of countries does not affect the status of individuals who currently hold valid H-2A or H-2B visas or status.


DOL Revises Wage Calculations for H-2B Program

The Department of Labor’s Employment and Training Administration published a final rule that revises the methodology by which it calculates the prevailing wages to be paid to H-2B workers and U.S. workers recruited in connection with a temporary labor certification for use in petitioning the DHS to employ an H-2B worker. The final rule was published on January 19 and is reprinted at Appendix B.

On August 30, 2010, the U.S. District Court for the Eastern District of Pennsylvania ruled that the regulations issued by Department of Labor in 2008 had violated the Administrative Procedure Act. The court ordered the Department to promulgate new rules that comply with the APA on the calculation of the prevailing wage rates in the H-2B program.

The final rule addresses concerns that the calculation method enacted in the 2008 rulemaking did not adequately reflect the appropriate wages necessary to ensure that U.S. workers are not adversely affected by the employment of H-2B workers. DOL anticipates future rulemakings to address other aspects of the H-2B program.

The new wage rates will apply to wages paid for work performed on or after January 1, 2012. The final rule requires employers to pay H-2B and U.S. workers recruited in connection with an H-2B job application a wage that meets or exceeds the highest of the following: the prevailing wage, the federal minimum wage, the state minimum wage, and the local minimum wage. The final rule also permits the use of private wage surveys in very limited circumstances.

Under the final rule, the prevailing wage would be based on the highest of the following:

   A wage established under an agreed-upon collective bargaining agreement.

   A wage rate established under the Davis-Bacon Act or the Service Contract Act for an occupation in an area of intended employment if the job opportunity is in an occupation for which such a wage rate has been determined.

   The arithmetic mean wage rate established by the Occupational Employment Statistics wage survey for an area of intended employment.

“This final rule improves protections for both the U.S. and foreign workers by aligning wages with marketplace realities and ensuring that the H-2B program is used as it was intended,” said Secretary of Labor Hilda Solis.


EOIR Disciplines Nineteen Attorneys

The Executive Office for Immigration Review recently took disciplinary action against nineteen attorneys for violations of the Rule of Professional Conduct for immigration practitioners. Three attorneys were reinstated.

The following five attorneys were issued orders of immediate suspension: Christina S. Denison, suspended for one year based on her suspension in Washington; Timothy Darnell Flowers, suspended for one year based on his suspension in Tennessee for multiple violations of the state Rules of Professional Conduct; Stuart Irwin Folinsky, suspended based on his involuntary inactive enrollment status in California; Cheryl Nance, suspended based on her suspension by Washington for failure to pay state bar dues; Gary P. Royle, suspended based on his involuntary inactive enrollment status in California.

The fourteen final orders of discipline involved Thomas Archer, expelled based on his conviction in the U.S. District Court for the Eastern District of New York;  Mina Bahgat, expelled based on his disbarment in Maryland; Ben B. Boothe, suspended for seventy-eight months based on his suspension in Texas; Maxime Austria Frias, expelled based on his suspension and ultimate disbarment in Virginia; Satish K. Goli, expelled based on his resignation and ultimate disbarment in New York; Bent Karlsen, expelled based on his disbarment in North Dakota;  Maria Teresa Lopez, expelled based on her permanent disbarment in Florida; Kurt Anthony Miller, suspended for five years based on his disbarment in California; Allen B. Odum, expelled based on his resignation from the Texas bar; Shahryar S. Shahmardian, suspended for one year and one day based on his suspension in Colorado; Melissa Anne Shomber, expelled based on her disbarment in Oklahoma; Brenna L. Stewart, suspended for six months based on her suspension in New York; Toussaint T. Tyson, suspended for three years based on his false claims to be an attorney in good standing in Pennsylvania after he was transferred to inactive status in Pennsylvania in 1993; and Frank X. Weinert, expelled based on his consent to have his name stricken from the roll of attorneys in Illinois.

The three attorneys reinstated are James J. Hoare, who completed his ninety-day suspension; Samson Mparaganda, after completing his three-month suspension and proving that he was reinstated to practice law in Massachusetts; and Tracy N. Tavilla, after the BIA set aside its suspension order and upon proof that she was reinstated in Massachusetts.


Attorney Indicted for Immigration Crimes

Immigration attorney Parmesh N. Dixit of Alpharetta, Georgia, was indicted January 25 by a federal grand jury on twenty-eight counts of visa fraud, forty-two counts of alien harboring, and one count of conspiracy, following an investigation by ICE and the Department of Labor. He was released on $50,000 secured bond and ordered to surrender his U.S. and U.K. passports. “Committing immigration fraud is a serious matter and it is particularly disturbing when it is committed by an immigration attorney,” said Brock Nicholson, acting special agent in charge of ICE’s Homeland Security Investigations in Atlanta.


Tyson Foods and ICE Reach Agreement

Tyson Foods, Inc., and ICE signed an IMAGE (ICE Mutual Agreement between Government and Employers) agreement in late January, making Tyson Foods the first major food company to become a full member of the ICE’s IMAGE program. Tyson Foods employs almost 100,000 people throughout the United States. Prior to signing the agreement, Tyson Foods was subject to an I-9 audit and other checks by ICE. It also met several other IMAGE requirements. During the signing ceremony, ICE Director John Morton announced the creation of an employment compliance inspection center in Crystal City, Virginia. The center will be home to fifteen auditors, who will support agency field offices around the country to expedite I-9 audits of businesses selected for inspection by ICE. From fiscal year 2009 ICE has initiated I-9 inspections against more than 3,750 businesses.


Grants Available

USCIS announced the availability of three congressionally appropriated competitive grant opportunities designed to help prepare LPRs for citizenship and promote immigrant integration in the United States. Two of the grant opportunities will strengthen citizenship-preparation programs that provide direct services in communities across the country. The third will increase capacity of members or affiliates of national, regional, or statewide organization to offer citizenship services in underserved communities. USCIS will offer approximately $8.5 million to an estimated thirty-five recipients in September 2011. This is the third year of this competitive grant program. More information about the grant opportunities is available at and at Applications are due by April 1, 2011.


Tenth Anniversary of BIA Pro Bono Project Celebrated

EOIR celebrated the tenth anniversary of the Board of Immigration Appeals Pro Bono Project on January 26. EOIR implemented the Project to improve access to legal information and increase pro bono representation for individuals whom DHS is detaining while their immigration cases are under appeal. The Project is a joint effort between EOIR and several nongovernmental organizations, including the Catholic Legal Immigration Network, Inc., the Capital Area Immigration Rights Coalition, the National Immigration Project of the Lawyers Guild, and the American Immigration Council. Immigrants in removal proceedings are not entitled to publicly funded legal assistance, and many appear before the immigration courts without representation. Representation can have a meaningful impact on a respondent’s appeal, as well as reduce procedural errors. Since its start, the Project has secured pro bono representation for more than 700 aliens around the country.

[This is an excerpt from the February 15, 2011, issue of Bender’s Immigration Bulletin.]

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