KEEPING TRACK: SELECT ISSUES IN EMPLOYER SANCTIONS AND IMMIGRATION COMPLIANCE

By
Gary Endelman* and Cyrus D. Mehta**


The Form I-9, Employment Eligibility Verification, that was established under the Immigration Reform and Control Act of 1986 (IRCA)1 is a deceptively simple form, but it involves a most complex process that an employer in the United States has to comply with when hiring any employee.2 ¤274A(a)(1) of the Immigration and Nationality Act (INA) states that it is unlawful to hire, recruit or refer for a fee, a person who is not authorized to work in the US.  Mandated by INA ¤274A(b), an employer must verify an  employeeХs eligibility to work in the US and attest under penalty of perjury on Form I-9 that the employee submitted to the employer documents that establish both employment authorization and identity. Although this advisory does not cover the entire gamut of I-9 compliance, the authors focus on the most salient aspects that will assist the employer to remain compliant, along with a discussion of selected issues.

I-9 Basics

The Form I-9 contains three lists, A, B and C. List A allows an employer to verify a document establishing both employment and identity.3 Documents that can be verified under List A of Form I-9 include:

  • U.S passport (expired or unexpired) or passport card;
  • Permanent Resident Card or Alien Registration Receipt Card (Form I-551);
  • Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa;
  • Employment Authorization Document (unexpired) with photograph (Form I-766);
  • Unexpired foreign passport, which includes a Form I-94 containing a nonimmigrant visa endorsement authorizing the employee to work; and Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands with Form I-94 or I-94A indicating nonimmigrant admission under the Compact of Free Association Between the US and the FSM and RMI.

 If an employee presents a document that is included in List A, the employer must not ask for further documents to verify employment eligibility under the Form I-9.

Documents evidencing identity are listed under B include:4

  • DriverХs license or State ID  or ID of outlying possession of the US with photo or other information such as name, date of birth, gender, height, eye color and address;
  • ID card issued by federal, state or local government agency or entities, provided it contains the same biographical information as above;
  • School ID card with a photograph;
  • Voter registration card;
  • US military card or draft record;
  • Military dependantХs ID card;
  • US Coast Guard Merchant Mariner Card;
  • Native American tribal document;
  • DriverХs license issued by a Canadian government authority; and
  • For persons under the age of 18 who are unable to present the above documents:
    •        – A school record or report card;
    •        – A clinic doctor or hospital record;
    •        – A day care or nursery school record.

Unlike a document presented under List A, an employer cannot only accept a document listed under B. If the employee presents a document under List B, the employee must also submit a document listed under C, which provide for employment authorization, which include:5

  • Social Security card (but does not include a card stating Тnot authorized for employmentУ);
  • Certification of Birth Abroad issued by Department of State (DOS) (Form FS-545);
  • Certification of Report of Birth issued by DOS (Form DS-1350);
  • Original or certified copy of birth certificate issued by a State, county, municipal authority, or outlying possession of the US bearing an official seal;6
  • Documentation evidencing authorization for employment in the US without a photo;
  • Native American tribal document;
  • US Citizen  or resident citizen ID Card (Form I-197).

Part 1 of Form I-9 must be completed no later than at the time of hire, which requires the employee to state under penalty of perjury his or her name and address, date of birth, social security number (but this is optional), and most importantly, whether the employee is: a) a citizen of the US; b) a non-citizen national of the US; c) a lawful permanent resident (with a listing of the A#); or d) is an alien authorized to work in the US, with a listing of the Alien # or Admission # and the date of expiration of such authorization.7

The employer is required to verify the document under List A or List B and List C within three business days of hire.8 If the employee is hired for less than three days, then the verification must take place at the time of hire.9

There is no requirement for the employer to photocopy the documents it has verified for the I-9, but if the employer does choose to photocopy documents, it must do so for everyone. The advantage in retaining photocopies is that if Section 2 has not been filled out correctly, but the documents that were verified were correct, as proved by the photocopies, the employer fill face lesser penalties for not completing the form properly. The retention of photocopies will also assist the employer in establishing an internal compliance program and to conduct self-audits. On the other hand, if the employer did not properly verify the documents, and retains photocopies of unacceptable or fraudulent documents, the photocopies will incriminate the employer even further in an enforcement action.

Although the employer is required to verify an employeeХs eligibility to work in the US, he or she walks on thin ice. If an employer is careless with the verification process, and accepts documents that appear to be patently false, or employs a worker who is unable to submit documents under List A or List B and C, the employer faces the possibility of civil and criminal sanctions.10 On the other hand, if the employer requires specific documents, or more or different documents than are required, or refuses to honor documents which on their face reasonably appear to be genuine, the employer runs the risk of violating the provision relating to Unfair Employment Practices if there is discriminatory intent.11 Protected individuals under IRCA include US citizens or nationals, lawful permanent residents, refugees, asylees, and temporary residents who were granted legalization under INA ¤210(a) or $245A(a)(1). However, even those who are not protected under IRCAХs anti-discrimination provisions may seek redress under other anti-discrimination statutes such as Title VII.12 If an employeeХs work authorization expires or DHS provides notification that the work authorization is insufficient, the employer must re-verify the I-9 or terminate the employee.13 The I-9 must be retained for either 3 years after the date of hire or 1 year after termination, whichever is later.14

For further details, we strongly recommend that practitioners and their clients also review the USCISХ M-274, Handbook for Employers Р Instructions for Completing Form I-9 (Employment Eligibility Verification Form), available at http://www.uscis.gov/files/form/m-274.pdf, supra.

ТKnowingУ Requirement

Because of the proliferation of fraudulent documents that pass off as genuine to the untrained eye of the employer, the I-9 verification may not always deter the hiring of a person who is not authorized to work in the US. An employer can also be snared if during the course of an audit an Immigration and Customs Enforcement (ICE) Notice of Suspect Documents indicates that certain employees are not authorized to work because the documents presented belong to other people, there is no record of the alien registration numbers being issued, or the individual is not employment authorized according to DHS records or the personХs EAD has expired.

While INA ¤274A(a)(1)(A) clearly makes it unlawful to hire Тan alien knowing (emphasis added)  the alien is an unauthorized alien,У an employer cannot bury his or her sand in the ground like an ostrich, and ignore telltale signs that the person may indeed not be authorized. The regulations at 8 C.F.R. ¤274a.1(l)(1) defining ТknowingУ  includes Тconstructive knowledgeУ and defines the term as follows:

    The term knowing includes not only actual knowledge but also knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition. Constructive knowledge may include, but is not limited to, situations where an employer:

    (i) Fails to complete or improperly completes the Employment Eligibility Verification Form, I-9;

    (ii) Has information available to it that would indicate that the alien is not authorized to work, such as Labor Certification and/or an Application for Prospective Employer; or

    (iii) Acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf.

2) Knowledge that an employee is unauthorized may not be inferred from an employee’s foreign appearance or accent. Nothing in this definition should be interpreted as permitting an employer to request more or different documents than are required under section 274(b) of the Act or to refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual.

Yet, not all courts or administrative tribunals have found that an employer had knowledge that an alien was unauthorized to work in the US. In Collins Food International, Inc. v. INS,15 a seminal case involving the application of constructive knowledge, an employer was sanctioned for knowingly hiring an alien as he made a job offer prior to checking the alienХs documents and because the employer did not verify the back of the social security card. The Ninth Circuit rejected the governmentХs charges under both the factual circumstances. First, there was nothing in the law or regulations that required an employer to verify documents at the time of the job offer and prior to the hire of the alien. In fact, pre-employment questioning concerning the prospective employeeХs national origin, race or citizenship would expose the employer to charges of discrimination under Title Seven.  Regarding the employerХs failure to properly verify the back of the social security card, the Ninth Circuit held that under INA ¤274A(b)(1)(A) an employer will have satisfied its verification obligation by examining a document which Тreasonably appears on its face to be genuine.У There was also nothing in the statute that required the employer to compare the employeeХs social security card with the example in the handbook of the Immigration and Naturalization Service, and the Тcard that Rodriguez presented was not so different from the example that it necessarily would have alerted a reasonable person to its falsity.У Finally, the Ninth Circuit was concerned that if the doctrine of constructive knowledge was applied so broadly, the employer may be tempted to avoid hiring anyone with appearance of alienage to avoid liability.

The facts in Collins Food International ought to be contrasted with situations where an employer has been notified by the government after a visit to its premises that certain employees are suspected to be unlawful aliens and is asked to take corrective action.16 Thus, in US v. El Rey Sausage, where the INS found several employees using improper or borrowed alien registration numbers, and the INS warned in a letter that unless these individuals provide valid employment authorization they will be considered unauthorized aliens, and the employer simply accepted the word of the aliens as to their legal status, the Ninth Circuit found constructive knowledge. Therefore, it is one thing when an employee who is untrained accepts a false document, as in Collins Food International, and quite another when an employer receives notice from ICE that certain employees may not have proper work authorization. Yet, even under these circumstances, an employer should still give the employee an opportunity to explain the allegation, and if such an employee insists that the documentation is valid, the employer must communicate this to ICE and inform that the employer will continue to employ the worker but if ICE disagrees, it should inform employerХs counsel immediately.17 Of course, if the employer gains knowledge of the employeeХs unlawful status through a genuine confession, then the employer must terminate the employee immediately. Any termination must be effectuated in a non-discriminatory manner. Even if 8 C.F.R. ¤274a.1(c)(1)(iii)(A) attributes an employer with constructive knowledge if the employee requests sponsorship through a labor certification, it should not be automatically assumed that the individual is not authorized to work in the US. Such an employee could possess a valid employment authorization as one who has been granted withholding of removal or temporary protected status, which without a sponsorship through the employer, may not provide him or her with any opportunity to obtain permanent residence.18

With regards to a social security Тno-matchУ letter, the issue of whether the employer is deemed to have constructive knowledge continues to remain fuzzy. The DHS promulgated a rule in 2007 that would have imputed constructive knowledge to an employer who received either a Тno-matchУ letter from the Social Security Administration (SSA) or a DHS notice.19 The rule would have provided a safe harbor to an employer if it took the following steps to remedy the no-match within 90 days. The employer first checks its own records to determine whether there is a typographical error or similar clerical error. If itХs not the employerХs error, the employer asks the employee to confirm the information. If the employee says that the information is incorrect, the employer must correct its records and send the correct  information to the SSA. If the employee insists that the information he or she gave to the employer is correct, the employer must request the employee to resolve the discrepancy with the SSA. If the employer is unable to verify with the SSA that the erroneous information has been corrected within 90 days, the employer must allow the employee to present new verification documents without relying on the documents that created the mismatch. The regulation was stayed as a result of a challenge in federal court,20 and the rule was finally rescinded.21

In light of the vacuum resulting in the rescinding of this regulation, what guidance can employers rely on? Paul Virtue, former General Counsel of the INS, issued a letter stating that a no-match letter from the SSA did not, standing on its own, provide notice to the employer that the employee is not working without authorization in the US.22 However, in the same letter, Mr. Virtue stated that a subsequent action or inaction by the employer, after receipt of such a letter, would be viewed under the Тtotality of circumstancesУ in determining whether the employer possessed constructive knowledge of whether the employee was authorized or not in the US. Notwithstanding, employers must not be too hasty in terminating employees if they receive no match letters. A recent decision, Aramark Facility Services v. Service Employees International,23 is a case in point. There, the employer upon receiving no-match letters from the SSA gave its affected employees three days from the post mark of its letter to either get a new social security card or a receipt from the SSA that it has obtained a new one, and if the employee produced a receipt, the employee had 90 days to submit the new card. Those employees who could not comply with this demand were fired, but were told that they could be rehired if they obtained the correct document. Moreover, the employer did not have any specific basis to believe that the employees who were the subject of the no match letters were not authorized to work, and each of these employees had properly complied with the I-9 verification requirements at the time of their hire.  The Ninth Circuit had to decide whether to set aside an arbitratorХs award under a narrow exception that the award violated public policy in ordering back pay and reinstatement as the firings were without cause. AramarkХs main argument under the public policy exception was that if it continued to employ these workers it would be sanctioned for knowing that they were not authorized to work in the US. The Ninth Circuit disagreed with the district courtХs decision setting aside the arbitratorХs award and held that the mere receipt of no-match letters from the SSA without more did not put Aramark on constructive notice, and forcefully stated that by its own admission the SSA has acknowledged that Т17.8 million of the 430 million entries in its database (called ТNUMIDENTУ) contain errors, including about 3.3 million entries that mis-classify foreign-born U.S.citizens as aliens.У24 The Ninth Circuit, which relied on Collins Food International, further noted that employers do not face any penalty from SSA, which lacks an enforcement arm, for ignoring a no-match letter. Furthermore, the Ninth Circuit also gave short shrift to AramarkХs second argument that the employeeХs reaction to the notification to take corrective action imputed constructive knowledge on the ground that the arbitrator found no proof of any employee having undocumented status as well as to the fact that the employerХs demand to take corrective action was even more demanding than the DHSХs proposed 2007 regulations. Finally, the Ninth Circuit refused to upset the arbitratorХs award in failing to consider that Aramark had offered to rehire the workers if they came back with the corrected document even after the time frame that it had stipulated in its notification to its employees.

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices recently issued the following do’s and don’ts for employers on Social Security Number “no-match” letters, which provide useful nuggets on what one can do and one cannot do when an employer receives a no-match letter.

DO:

  • Recognize that name/SSN no-matches can result because of simple administrative errors.
  • Check the reported no-match information against your personnel records.
  • Inform the employee of the no-match notice.
  • Ask the employee to confirm his/her name/SSN reflected in your personnel records.
  • Advise the employee to contact the SSA to correct and/or update his or her SSA records.
  • Give the employee a reasonable period of time to address a reported no-match with the local SSA office.
  • Follow the same procedures for all employees regardless of citizenship status or national origin.
  • Periodically meet with or otherwise contact the employee to learn and document the status of the employee’s efforts to address and resolve the no-match.
  • Submit any employer or employee corrections to the SSA.

DON’T:

  • Assume the no-match conveys information regarding the employee’s immigration status or actual work authority.

  • Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee.
  • Attempt to immediately re-verify the employee’s employment eligibility by requesting the completion of a new Form I-9 based solely on the no-match notice.
  • Follow different procedures for different classes of employees based on national origin or citizenship status.
  • Require the employee to produce specific documents to address the no-match.
  • Ask the employee to provide a written report of SSA verification.25

What Is E-Verify? 

Start at the USCIS E-Verify website.26

E-Verify allows employers to run online employment authorization checks against Social Security Administration and DHS databases using Social Security Numbers  and alien registration numbers. When an employer elects to participate in the program and verifies work authorization under E-Verify, a rebuttable presumption is created that it has not knowingly hired an unauthorized alien. Enrollment in E-Verify only goes so far; it does not guarantee a Тsafe harborУ from worksite enforcement, however. An employer can still be raided or otherwise held liable for employer sanctions despite enrollment in E-Verify. Moreover, E-Verify does not protect against identity theft.

The National Conference of State Legislatures has compiled a user-friendly FAQ on E-Verify that is an  excellent ready reference tool. 27 Beyond that, USCIS put together an easy to follow power point slide show that explains the basics of the program.28 Recently, USCIS also launched an E-Verify newsletter.29

The decision to enroll in E-Verify is strictly voluntary for most employers, save for those employers who come under the coverage of various State E-Verify laws or who are federal contractors.  Employers who voluntarily participate may also elect to terminate their participation at any time. E-verify began as a pilot program under the Illegal Immigration Reform and Immigrant Responsibility Act and but has been expanded and extended since then. Most recently, the FY10 Homeland Security spending bill (H.R.2892), extended the E-Verify program through September 30, 2012.30

Employers can register for E-Verify on-line at the DHS website.31 The nature and scope of the participation is set by a Memorandum of Understanding between the Employer, DHS, and SSA. Employers with multiple locations may elect to sign up all of their locations or only select locations.32  

E-Verify is NOT a substitute for the Form I-9 which must be completed first before enrollment in E-Verify. While the I-9 is required for all employees, E-Verify is used for new hires rather than current employees, unless they are working directly under a federal contract with an E-Verify clause.

When an Employer signs up for E-Verify it makes certain basic promises. What are they?

They are set forth in the Memorandum of Understanding:

(1) that it will not initiate electronic verification until after the employee has been hired and the Form I-9 completed; (2) that it will verify all, not just some, of its new employees; (3) that it will display posters in public and clearly visible locations announcing the E-Verify enrollment and providing warnings against employment discrimination; (4) that it will not discipline, terminate or otherwise act in an adverse manner against an employee while the SSA or DHS is processing a verification request; specifically, no action must be initiated in response to a tentative non-confirmation unless the employer learns definitively from another source that the employee is unauthorized; (5) that it will allow both DHS and SSA to examine its employment records and (6) that it will use the information only to verify the identity and work authorization of newly hired employees and not for any other purpose.

You can join or quit the program at any time. DHS may also terminate E-Verify employer eligibility should it determine conclusively that the employer Тhas substantially failed to comply with its obligationsУ under the program.

Are there any situations where participation in E-Verify is mandatory?

Yes, consider the following: (1) employers who have been found to have violated the employer sanctions or anti-discrimination provisions of IRCA may be compelled to join; (2) employers who hire F-1 students in science, technology, engineering and mathematics (STEM) fields of study and wait a 17 month extension of optional practical training once the initial 12 months of OPT has expired; and (3) employers with federal contracts that include a clause requiring the contractors to use the E-Verify program for all new hires as well as current employees working in direct support of the federal contract; (4) employers who are subject to state E-Verify laws, usually due to state contracts..

Can you tell me more about the 17 month STEM OPT Extension?

On April 8, 2008, the DHS published an interim final rule allowing for a 17-month extension of Optional Practical Training (OPT) for college graduates in science, technology, engineering and mathematics (STEM) disciplines.33 The rule requires employers to be registered in the E-Verify program at the specific location of employment as a condition of the OPT extension.  The STEM graduate must file a Form I-765, along with the I-765 filing fee, asking for a renewal of work permission before the expiration of the initial OPT extension. The I-765 must include the employer’s E-Verify identification number or a valid E-Verify Client Company Identification Number if an outside vendor or agent handles the verification. It is important to remember that,  if the STEM graduate is already working for the employer before the 17-month extension request is filed, the employer may not run the graduate’s information through E-Verify. Why?  Because verification of existing employees is prohibited under the E-Verify rules and applying E-Verify to existing employees unless required to do so by federal contract can be considered a discriminatory act.

Do federal contractors have to sign up for E-Verify?

On June 6, 2008, President George W. Bush issued Executive Order (EO) 13465, which amended President Clinton’s Executive Order 12989, dated February 13, 1996 banning federal contracts with employers who violated IRCA. The new EO requires businesses entering into a contract with an agency or department of the federal executive branch to use E-Verify.34

In November 2008, DHS published a rule that would implement the Executive Order 13465.35 The regulation, which is an amendment to the Federal Acquisition Regulations (FAR), ordered government contracting officers to include an E-Verify clause in certain federal contracts as applied to new hires within three days of hire and existing employees directly assigned to work on the federal contract. The contracts have to last more than 120 days with a value over $100,000. Subcontracts must also have an E-Verify clause, if the value of the subcontract is over $3,000. It does not matter if the performance period of the subcontract is less than 120 days.

Initially, the requirement was to become effective on January 15, 2009. The US Chamber of Commerce and several business groups went into federal court to invalidate the FAR E-Verify regime but ultimately lost in August 2009.36 Consequently, the rule went into effect on September 8, 2009.

Since then, federal contractors must enroll in E-Verify within 30 days of the contract award date. E-Verify applies to all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts . It is up to the federal contracting agency, not the private employer, to insist upon insertion or adoption of the E-Verify clause. Contractors are responsible, however, for ensuring that certain covered subcontracts include the E-Verify clause where necessary. That this is so reflects the extent to which the demands of US immigration law trump the traditional Тhands offУ attitude that contract law has always displayed. How can such assurances of I-9 compliance be provided and at what cost? Will the failure to provide them be grounds for contract termination or should any prudent federal contractor now insist upon indemnity for breach of I-9 warranties? As the authors conclude infra, the need to ask such questions, not to mention the absence of ready answers, eloquently illustrates the exquisite interdependence between immigration law and the wider economy. This is particularly so now that President Obama has decided to focus less on mass raids that terrorize the undocumented and more on criminal and civil prosecution of employers who hire those that lack permission to work.37

Remember that E-Verify would not apply for work that will be performed outside of the U.S.; (3) if the contract lasted less than120 days; or (4) contained only  Тcommercially available off-the-shelfУ (COTS) items or for items that would be COTS but for minor modifications. A COTS item is a commercial item that is sold in substantial quantities on the open market and is sold to the government in the same way or with slight changes. Food and agricultural products are typical illustrations of COTS items.

In general, the rule applies only to contracts awarded after the effective date of the rule. Current federal contracts will not be affected unless they are extended, renewed, or otherwise amended. 

Only the corporate entity that enters into the contract with Uncle Sam is covered, not its parent or affiliate companies.

For the first time, rather than being discriminatory, the verification of existing employees is not  only allowed but required if they are assigned to and directly performing work under a covered federal contract.

Who are these employees?

First, they must be hired after the I-9 requirement became the law on November 6, 1986; anyone hired before then is grandfathered for E-Verify purposes. It does not matter how much time the existing employee so designated spends on contract-related activities, if there are large gaps between such involvement or if most of their job has nothing to do with t

Analysis of Selected Recent BALCA Decisions as Practice Pointers to Avoid PERM Denials

The Board of Alien Labor Certification Appeals (BALCA) has been incredibly busy issuing a number of decisions. BALCA will be issuing decisions with even greater frequency as it is adding two more panels comprising three administrative law judges each.[1] The current time for BALCA to render a decision is taking about six months, which is a sea change from the recent past when the average time for a BALCA appeal was two years or more. It is important for practitioners to stay abreast of these decisions as they offer interesting insights into how to avoid some of the pitfalls in preparing and filing a Program Electronic Review Management (PERM) application. This advisory highlights some of the recent BALCA decisions in the areas of alternative requirements, recruitment, roving employees, and errors, which in this author’s opinion; provide important practice pointers that would improve the odds for obtaining a PERM approval.[2]

Alternative Requirements

BALCA has issued important decisions regarding alternative requirements. As a background, 20 Code of Federal Regulations (CFR) §656.17(h) requires that an alternative requirement must be substantially equivalent to the primary requirement of the job opportunity. If the alien does not meet the primary job requirement, and while already employed by the sponsoring employer, only meets the alternative requirement, the labor certification will be denied unless the application states that any suitable combination of education, training or experience is acceptable (emphasis added). 20 CFR §656.17(h)(4)(ii) essentially adopts the holding of BALCA in Francis Kellogg, 1994-INA-00465, although in that case the primary and alternative requirements, namely, experience as a cook or salad maker, were not substantially equivalent, thereby necessitating that the employer accept any suitable combination of education, training or experience. In contrast to Kellogg, 20 CFR §656.17(h) requires consideration of this language even if there is substantial equivalence between the primary and alternative requirement.

Practitioners must therefore be mindful of the “magic language,” and in addition to its talismanic invocation on the ETA-9089, must also advise the employer to actually consider candidates with any suitable combination of education, training or experience in the event that these candidates do not meet the exact requirements of the position. The current ETA-9089 does not have a special entry for inserting this language, although the practice has been to insert it in Box H.14. Fortunately, if this language does not appear on the form, it is no longer fatal and practitioners can challenge a denial if the sole reason for the denial was for failure to insert this “magic language” on the application. In Federal Insurance Co., 2008-PER-00037 (BALCA Feb. 20, 2009) the fact that the Kellogg language did not appear on the form could not be a ground for denial as there is no space on the ETA-9089 form for such language; and the Kellogg language also does not need to appear in recruitment materials. In Federal Insurance BALCA held that a denial would offend fundamental fairness and due process under HealthAmerica, 2006-PER-0001 (BALCA July 18, 2006). HealthAmerica is a seminal BALCA decision, which rejected the certifying officer’s (CO) denial of the labor certification based on a typographical error recording a Sunday advertisement on the form, although the employer possessed actual tear sheets of the advertisement. BALCA rejected the CO’s position that no new evidence could be submitted as the advertisement tear sheets were part of the PERM compliance recordkeeping requirement and thus was constructively submitted by the employer.

Pursuant to the holding in Kellogg, not every situation requires consideration of the “magic language” even when the position has a primary and an alternative requirement, and the alien qualifies only through the alternative requirement. In AGMA Systems LLC, 2009-PER-00132 (BALCA Aug. 6, 2009), a job requirement of an M.S. degree plus three years of experience, and in the alternative, a B.S. degree plus five years of experience were substantially equivalent, and thus Kellogg “magic language” was not required. The employer successfully argued that 20 CFR §656.17(h), like Kellogg, requires that when an alternative requirement is substantially equivalent to the primary requirement of the job opportunity, there is no need to consider U.S. worker job applicants with a suitable combination of training, education or experience. In AGMA Systems, BALCA held that since an M.S. plus three years of experience or a B.S. plus five years had the same specific vocational preparation (SVP) or lapsed time to prepare for the occupation (seven years), they were substantially equivalent, and were not even primary or alternative requirements, and, thus, the absence of the Kellogg “magic language” on the application was not fatal.[3]

The most problematic BALCA case on alternative requirements is its most recent, Globalnet Management, 2009-PER-00110 (BALCA Aug. 6, 2009). In Globalnet Management (BALCA Aug. 6, 2009), BALCA held that a bachelor’s degree plus two years of experience was not substantially equivalent to 14 years of experience. BALCA did not accept the argument that the alternative requirement of 14 years of experience comported with the well established formula to determine equivalency under the H-1B visa, three years of experience is equal to one year of education,[4] and held that the primary and alternative requirements were not substantially equivalent. BALCA relied on Field Memorandum No. 48-94 that set forth the years under its SVP levels for different educational attainments (e., B.S. is equal to two years of experience).[5] Therefore, the appropriate alternative for a position requiring a B.S. degree plus two years of experience would have been four years of experience rather than 14 years of experience. While BALCA noted that 8 CFR §214.2(h)(4)(iii)(D)(5) may be persuasive in the absence of other guidance, citing Syscorp International, 1989-INA-00212, it nevertheless relied on Field Memo No. 48-94 in affirming the denial of the labor certification. This decision is most troubling because BALCA reaffirmed the denial despite the existence of the Kellogg “magic language” on the labor certification.[6]

The reason why practitioners include such an alternative requirement is to ensure that the requirement is consistent with the H-1B visa petition. It is not unusual to qualify an alien for an H-1B visa who may have the equivalent of a three year degree, and then makes up the fourth year through the equivalent of three years of experience. Will this put into jeopardy ETA-9089 applications that define an equivalent degree, as follows: “Employer will accept a three year bachelor’s degree and three years of experience as being equivalent to one year of college?” Clearly, if the employer does not include what it means by an equivalent degree on the ETA-9089, the subsequent I-140 petition will fail. If an employer requires a bachelor’s degree, and if the alien does not have the equivalent of a four year degree, and the ETA-9089 does not include a definition with respect to what it means by an equivalent degree, U.S. Citizenship and Immigration Services (USCIS) will assume that the employer required a four year degree and the alien would not be able to qualify for the position by virtue of not possessing such a degree.[7]

On the other hand, in light of Globalnet it no longer remains viable to insist on consistency between the H-1B and the labor certification. Hence, if the primary requirement is a bachelor’s degree and two years of experience, and the alien does not have a degree whatsoever, the substantially equivalent alternative that would be acceptable to DOL would be four years of experience, as opposed to 14 years of experience. There may be some concern that requiring this formula on the labor certification, which may pass muster for DOL, may still be problematic when the alien has filed an I-140 petition and is also extending the H-1B visa using the “3 for 1” equivalency formula to establish the equivalent degree to qualify for the H-1B occupation.[8] However, if this issue comes up during an H-1B adjudication, it should be argued that the discrepancy lies in the USCIS regulations and USCIS interpretations relating to H-1B and I-140 petitions, not in the beneficiary’s job or the beneficiary’s qualifications. USCIS ought not to be denying an H-1B solely because a beneficiary who has been classified for an H-1B visa through an equivalent degree, either based on a combination of education and experience, or purely through a requirement of 12 plus years of experience, is classified on an I-140 under the EB-3 skilled worker preference requiring something less than a bachelor’s degree.[9] One possible way out of the Globalnet trap (and to achieve consistency with the H-1B) is to have only one single requirement, and eliminate the primary and alternative requirement. For example, the employer can require the equivalent of a bachelor’s degree as a sole requirement rather than insist on a bachelor’s degree or the equivalent of such a degree.[10]

Recruitment

Recruitment lies at the heart of a successful PERM case. It is generally conducted prior to the filing of the application, and the recruitment method differs between professional and non-professional occupations.[11] A review of recent BALCA decisions will provide invaluable insights to the practitioner on how to properly advise the employer on what it can and cannot do with respect to the different recruitment steps as specified in the regulations.[12] If the recruitment is not done correctly, it is often fatal and the employer must start all over again.

Employee Referral Program

For a professional position, one of the three additional recruitment steps that an employer may rely on is an employee referral program with incentives. 20 CFR §656.17(e)(1)(ii)(G) allows an employer to document this type of recruitment “by providing dated copies of the employer notices or memoranda advertising the program and specifying the incentives offered.”

In the March 25, 2010, liaison minutes of the teleconference between DOL and stakeholders followed by PERM FAQ 11,[13] DOL indicated that it requires more from employers who utilize the employee referral program. Specifically, DOL has imposed new requirements as to what is considered “acceptable” evidence to demonstrate the “existence and use” of the employee referral program. Thus far, employers have been able to utilize their existing employee referral programs and to document its use by submitting a description of the program. In response to audits, DOL has previously accepted photocopies of pages from the employer’s employee handbook describing the ongoing program.

Now, DOL requires documentation that employees were made aware that they could refer applicants to the specific position sponsored for PERM. DOL wants to see dated copies of correspondence to employees linking the employee referral program to job openings within the company and to the PERM position in particular! The new guidance suggests that employers execute a memo confirming the existence of an ongoing employee referral program and addressing how the company’s employees were made aware that they could refer applicants to the PERM position.

While 20 CFR §656.17(e)(1)(ii)(G) does not require documentation that employees were made aware of the specific PERM position, to be on the safe side and prevent a possible PERM denial and then motion/appeal down the road, employers may want to consider adding an “available positions” section at the end of the employee referral program description, including a copy of the specific PERM ad(s) and posting the program in a conspicuous location on the business premises for a specific number of days (and publishing via employer’s intranet, if any) as they do with the posting notice.

If an employer is challenged regarding whether it adequately relied on its recruitment referral program, it can rely on Clearstream Banking, 2009-PER-00015 (BALCA Mar. 30, 2010), where BALCA held that an intranet posting was acceptable, and went on to state: “In other words, a generic employee referral program with incentives, the description of which is available to employees may be sufficient to be a step under section 656.17(e)(1)(ii)(G), even if the particular job for which labor certification is being sought is not individually promoted under the program.” However, two recent decisions seem to partially affirm the DOL’s new position in FAQ 11. In Matter of Sanmina-Sci Corporation, 2010-PER-00697 (BALCA Jan. 19. 2011) and Matter of AQR Capital, 2010-PER-00323 (BALCA Jan. 26, 2011), BALCA established a three-pronged test for an employer to ensure its compliance with 20 C.F.R. §656.17(e)(1)(ii)(G), namely, that the employer must document that (1) its employee referral program offers incentives to employees for referral; (2) the program was in effect during the PERM recruitment period; and (3) the employees were on notice of the job opening. BALCA, however, rejected the CO’s argument that the employee referral program needed to be dated within the 180-day recruitment period, and the only purpose of the establishment of the date of the referral program, according to BALCA, was to demonstrate that it was in effect during the PERM recruitment period.[14]

It is worth reminding readers at this juncture that one should continue to forcefully argue that DOL is violating the Administrative Procedure Act by imposing new requirements without providing stakeholders with the opportunity of notice and comment. Remember what BALCA said about attempts by DOL to make law through promulgating FAQs. In Matter of HealthAmerica, it criticized the CO’s reliance on PERM FAQ No. 5 and, tracking the standard of deference articulated by the U.S. Supreme Court in Skidmore v. Swift & Co., 323 U.S. 134 (1944), held that the FAQ impermissibly imposed substantive rules.[15] In the case of the employee referral program with incentives, DOL has imposed new burdens via a DOL stakeholder teleconference and FAQ. One should argue that the new imposition without notice and comment is an unlawful violation of the Administrative Procedures Act (APA) P.L. 79-404 and is, at most, entitled to Skidmore

Employer’s Website Advertisement

Under 20 CFR §656.17(e)(1)(ii)(B), one of the additional recruitment steps for a professional occupation is to allow an employer to advertise the position on its own website, which “can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.”

PERM FAQ Round 10[16] states that if there is no copy of the website posting, “the employer may provide an affidavit from the official within the employer’s organization responsible for the posting of such occupations on the website attesting, under penalty of perjury, to the posting of the job.” In PSI Family Services, 2010-PER-00097 (BALCA Apr. 16, 2010), while acknowledging that web pages were ephemeral, BALCA held that 1) the attorney’s cover letter stating dates of posting, 2) employer’s vice president for human resources’ (HR) reference in the recruitment report to the dates of posting, and 3) an undated document showing a list of open positions and showing the website address at the bottom of each page were not sufficient documentation to establish proof of a website posting. BALCA specified that the statements of the attorney or the HR vice president were not in affidavit form, nor attested to. Nor did the statements indicate whether the attorney or the HR vice president were the officials within the employer’s organization responsible for the posting of such occupation on the website. A subsequently prepared affidavit that was submitted in conjunction with the motion for reconsideration was not accepted pursuant to 20 CFR §656.24(g)(2). Under this regulation, evidence cannot be submitted with a motion for reconsideration unless the employer did not have an opportunity to previously submit it to the CO. In PSI Family Services, such an opportunity existed at the time of the audit.

As a practice pointer, it would be best if the employer printed out the advertisement each day with a printing label on each page reflecting the date of printing. While this may not be practical, the next best solution is to print out the text of the website advertisement, and have the person responsible for posting the advertisement within the employer submit an affidavit.

Practitioners must also ensure that the website advertisement, and for that matter, any advertisement, complies with 20 CFR §656.17(f), which requires that advertisements placed in newspapers of general circulation or in professional journals, contain, inter alia, the name of the employer, directions on how to contact the employer, a description of the job specific enough to apprise U.S. workers of the job opportunity; and the geographic area of employment. In Credit Suisse Securities, 2010-PER-00103 (BALCA Oct. 19, 2010), BALCA held with respect to a website advertisement that a “generalized list of several broad and vague areas of employment” did not “contain the information required under the regulations to apprise U.S. workers of the job opportunity in the labor application.” In Credit Suisse Securities the occupation in the labor certification was for “Computer Software Engineer, Applications,” but the website under “Center of Excellence” listed career opportunities in a multitude of areas and did not comply with the regulation. BALCA also rejected the employer’s argument that 20 CFR §656.17(f) was only applicable to newspaper and professional journal advertisements and not to the additional recruitment steps for professional occupations, holding that the regulation in fact governs all forms of advertisement.

While practitioners must heed the admonition in Credit Suisse Securities that all forms of recruitment must comply with §656.17(f), not all the additional recruitment methods for professional positions will readily lend themselves to these requirements (such as recruiting through private employment firms, where it makes no business sense to indicate the name of the employer as an applicant could then apply directly, bypassing the headhunter entirely). Indeed, even in Credit Suisse Securities, BALCA acknowledged in note 7 that the requirements of §656.17(f) only applies to advertisements, and that it was not making a determination with respect to job fairs, on-campus recruiting, private employment firms and campus placement offices.[17]

Other Recruitment and Related Issues

The following brief summaries of BALCA decisions on an assortment of recruitment issues also serve as important practice pointers. While the notice of filing (NOF) is not precisely a recruitment step, recetions.nt cases pertaining to the NOF have been included as the requirements of 20 CFR §656.17(f) also apply to a NOF, and it is also worth including an important BALCA case on a NOF and wage issue.

Noll Pallet & Lumber, 2009-PER-00082 (BALCA Dec. 16, 2009)—where advertisement asked for “criminal and background check” but ETA-9089 did not, it was violative of §656.17(f)(7) as the conditions in the advertisements were less favorable than those offered to the alien.

Xpedite Technologies Inc., 2010-PER-00100 (BALCA Apr. 7, 2010)—here too, as in Noll Pallet & Lumber, where advertisement had a travel requirement, but the ETA-9089 did not, the conditions in the advertisements were less favorable to U.S. workers than those offered to the alien, as reflected on the ETA-9089.

Dunkin Donuts, 2008-PER-00135 (BALCA Jan. 5, 2009)—Employer’s name must appear on the advertisements; a fax number does not suffice.

Skin Cancer & Cosmetic Dermatology Center P.C., 2009-PER-00072 (BALCA June 23, 2009), published on AILA InfoNet at Doc. No. 09081167 (posted 11, 2009)—Even though the employer did not require a bachelor’s degree for a Dietician and Nutritionist, if the occupation is found on Appendix A, it must recruit under the additional steps criteria for professional posi

Robert Venuti Landscaping, Inc., 2009-PER-00453 (BALCA Oct. 27, 2010), published on AILA InfoNet at Doc. No. 10102960 (posted 29, 2009)—In Stone Tech Fabrication, 2008-PER-00187 (BALCA Jan. 5, 2009), if the NOF lacked employer’s name, the employer must demonstrate that the NOF applied to the sponsoring employer, which it did not do in that case. BALCA recognized that notions of fundamental fairness are applicable to PERM processing. Cf. HealthAmerica.[18] In Robert Venuti Landscaping, Inc., BALCA held that there was no longer room for the employer to argue the Stone Tech exception and in effect overruled Stone Tech.

Il Cortile Restaurant, 2010-PER-00683 (BALCA Oct. 12, 2010)—The 10 business day definition need not be limited to Monday–Friday, and could include weekends provided the employer, such as the restaurant in this case, was open on weekends and employees are on the worksite during the weekend.

Thomas L. Brown Associates, P.C., 2009-PER-00347 (BALCA Sep. 1, 2009)—The NOF, pursuant to §656.17(f)(5), states that an advertisement must “not contain a wage rate lower than the prevailing wage rate.” But this section does not mean that if the actual wage offer is higher, the NOF may only list the lower prevailing wage. Here the prevailing wage for the position was $78,478 but the actual salary offer was $90,001. The employer’s internal posting notice (NOF) only listed $79,000, which was lower than the offered wage of $90,001. Query whether BALCA would have the same objection to a wage range, where the lower end equals the prevailing wage and the higher end reflects the wage offered or a wage even higher than the offered wage. This practice appears to be risky after Thomas L. Brown Associates even though it was approved by BALCA in Sterling Mgt Systems, 1989-INA-00216 (BALCA Mar. 18, 1991). Even under the holding in Thomas L. Brown Associates, the employer can argue that it need only state the wage when the alien was initially hired and not what he or she is currently paid. See University of North Carolina, 1990-INA-00422 (BALCA 1992). Of course, an employer should not rely on University of North Carolina if it is relying on “on the job” experience under the theory that the duties of the sponsored position are 50 percent different from the duties of the earlier position with the same employer under 20 CFR §656.17(i)(5)(ii).

Roving Employees

Filing a labor certification for a roving employee is extremely tricky and fraught with potential pitfalls. There are several types of roving employees. The most common is the IT consultant who is sponsored by an employer, but this worker will never work in the office of the employer and will always be assigned to a client site. This worker may either be assigned to one client site or to several unanticipated client sites. Another variation of the roving employee is one who may not be assigned to a client site, but is able to work from home while frequently visiting clients within a geographical region or the whole country.

The most recent BALCA decision concerning roving employees is Amsol, Inc., 2008-INA-00112 (BALCA Sept. 3, 2009), which consolidates several cases based on the same employer and facts. Although it is based on a pre-PERM labor certification, Amsol is nevertheless highly instructive as a practice pointer for PERM cases involving similar roving employee situations. The employer filed several labor certifications based out of its office in Caspar, WY, and indicated on the labor certification that the aliens would work in “Caspar, WY and any other unanticipated location in the U.S.” Since the statute and regulation are silent on the location from which such labor certification must be filed, BALCA agreed that the guidance in Employment and Training Administration’s Field Memorandum No. 48-94 (May 16, 1994) was controlling. Field Memorandum No. 48-94 provides that “[a]pplications involving job opportunities which require the Alien beneficiary to work in various locations throughout the United States that cannot be anticipated should be filed with the local employment service office having jurisdiction over the area in which the employer’s main or headquarters office is located.” In a prior BALCA case with similar facts, Paradigm Infotech, 2007-INA-3,4,5 and 6 (BALCA June 15, 2007), BALCA held that a labor certification filed out of an office in Erie, PA, was not the appropriate place for a labor market test as the wage in Erie, PA, was lower for a job with national scope, and that the area of intended employment covering the employer’s headquarters, which was in Columbia, MD, reflected a higher prevailing wage. On the other hand, in Amsol, the Caspar, WY, office was the employer’s first office and its place of incorporation even though it had an office in Newark, DE. Importantly, BALCA further found that the offered wage was higher than the prevailing wages in both Caspar, WY and Newark, DE. Moreover, the employer submitted ample evidence of a business premise and even advertised the position in Computerworld, a national magazine. BALCA remanded back to the CO to determine whether the reduction in recruitment (RIR) was sufficient or whether supervised recruitment would be required.

Practitioners must ensure that like in Amsol there needs to be a sufficient business connection with the office through which the labor certification is filed. Moreover, the client must also be advised that this location is not being selected for the filing in order to obtain a lower prevailing wage or to bypass other locations where there will be a greater chance to attract U.S. workers. Finally, although the mandatory recruitment must occur in a newspaper of general circulation in the area of intended employment, also endeavor to advertise nationally under the three additional recruitment methods.

While there are no reported BALCA cases involving home offices, the following extract from the March 15, 2007, DOL Stakeholder’s meeting, published on AILA InfoNet at Doc. No. 07041264 (posted 12, 2007), is worth repeating here:

Roving and Telecommuting Employees

  1. For an employee who is based out of a company’s headquarters and is assigned to various work sites around the country (i.e., roaming employee not assigned to a designated region), please confirm that the notice of posting, recruitment, and prevailing wage determination should be based on the location of the company’s headquarters.
  • Correct, if the area of intended employment is certain.
  1. If an employer requires an employee to work from home in a region of intended employment that is different from the location of the employer’s headquarters (i.e., work is required to be performed in a designated county or state that differs from the employer’s headquarters), please confirm that the prevailing wage determination and recruitment can take place in the location of the employee’s region of intended employment. Please confirm that the notice of posting under this circumstance should be posted at the company’s headquarters.

If the 9089 form shows the worksite at a designated location other than headquarters, the PWD [prevailing wage determination] and recruitment would be for the worksite.

AILA note: this issue essentially requires a strategy decision. The PERM form can state that the worksite is the home office, in which case the PWD and recruitment can be for the area of the home office, but the fact that the worksite is the same as the foreign national’s home address will be picked up by the PERM system and the case will likely be audited. This can then be addressed in the audit response and should not be a problem, if the case is otherwise approvable. Alternatively, the PERM form can state that the worksite is the headquarters office, but then the PWD and recruitment must be done for that location.

  1. In the case of a telecommuter or an employee whose location is not specific to the job, please confirm that the notice of posting, recruitment, and prevailing wage determination should be based on the location of the employer’s headquarters.
  • Please see answer to number 19 above.
  1. For purposes of completing ETA-9089, if an employee works from home, what address should be identified in H.1 and H.2—the actual home address of the employee or the address of the employer’s headquarters or office from which the employee is based/paid?
  • Please see answer to number 19 above.

FINAL NOTE: When a job is regional, such as an employee working out of a home office but travelling throughout a specific geographic area, the analysis of where to obtain the prevailing wage and recruit can be thorny. Prior to PERM, guidance was that the prevailing wage would be determined where the majority of duties are performed. Best practice under PERM would be to use the highest wage within the region/MSA and recruit in the regional edition of a nationwide paper. This gets complicated as there are few nationwide papers with regional editions or newspapers that could be considered regional.

And here’s a final pointer: If the position allows work out of the home office, remember to ensure that the advertisement indicates that a home benefit is available and/or that travel is also required. All of these terms and requirements must be repeated in ETA-9089, H.14.[19]

Errors

This section has been deliberately placed last in this practice advisory because practitioners should be discouraged from making mistakes on ETA-9089 or in relation to any documentation. Moreover, not every mistake can be overcome by invoking HealthAmerica, especially mistakes that are clearly in violation of the regulations. It should also be noted that the beneficial impact of HealthAmerica has been somewhat negated by 20 CFR §656.24(g)(2)(ii), which limits documents accompanying a motion for reconsideration to “[d]ocumentation that the employer did not have an opportunity to present previously to the certifying officer, but that existed at the time the application for permanent labor certification was filed, and was maintained by the employer to support the application for permanent labor certification in compliance with the requirements of §656.10(f).” Still, we see BALCA continuing to rule in favor of applicants who have made errors based on fundamental fairness and in recognition of the fact that the PERM process is an exacting an unforgiving one. Indeed, even in Federal Insurance, which involved a failure to state the Kellogg language, BALCA’s decision was grounded in the fundamental fairness doctrine enunciated in HealthAmerica, especially since there was no place on the ETA-9089 that signaled to an employer to insert this language. However, as noted below, the trend is for BALCA to be far less forgiving and to apply HealthAmerica very narrowly.

Recently, BALCA issued an important decision, Denzil Gunnels, 2010-PER-00628 (BALCA Nov. 16, 2010) setting forth standards under which the CO must consider an appeal as a request to reconsider rather than treat is as a request for review. 20 CFR 656.24(g)(4) provides that “[t]he Certifying Officer, may, in his or her discretion, reconsider the determination or treat it as a request for review.” In Denzil Gunnels BALCA found that the CO abused his discretion by failing to consider the employer’s request as a motion, and instead, treating it as a request for review. Even though the employer filed a “Request for Review of Denial of Form ETA 9089,” it was attempting to submit supplementary evidence, a corrected ETA 9089, after the originally filed ETA 9089 failed to state “yes” or “no” in Section M1. The employer was thus attempting to request a motion for reconsideration, even though it did not say so clearly, and BALCA admonished the DOL indicating that its FAQs did not make clear that if the employer omits the magic word “reconsideration,” it will result in the request being placed in the BALCA queue. Note that if the CO sends the file to BALCA, an employer is unable to correct or supplement the record under HealthAmerica as BALCA is unable to consider new evidence.

BALCA in Denzil Gunnels concluded by setting forth circumstances under which the CO may exercise his discretion properly and the circumstances under which it will be found to be an abuse of discretion:

Step 1. Where an employer unambiguously requests BALCA review, the employer has made a tactical decision to appeal to BALCA and can no longer supplement the record. BALCA, however, left open the possibility that even where an employer uses the words “request for review,” but it is clear that the employer is seeking consideration or where there is ambiguity, BALCA will determine whether the CO abused his discretion by sending the file into the BALCA queue without first treating it as a request for reconsideration and reviewing the supplemental evidence.

Step 2. BALCA recognized that not all supplemental evidence can be accepted, and  could be barred under 20 CFR §656.24(g)(2)(ii) where the employer did have a prior opportunity to submit evidence to the CO during an audit. This would be a case, labeled as Situation 1, where “Application is Filed è Audit è Audit Response è Final Determination è Reconsideration based on evidence submitted in audit response.” Under Situation 1,  BALCA will not find that the CO abused his discretion as the supplemental evidence was squarely barred under § 656.24(g)(2)(ii), and the CO was justified in treating the request for reconsideration as an appeal to BALCA.  On the other hand, under Situation 2 –  “Application is Filed è Denial of Application è Reconsideration based on evidence that would have been submitted as part of the audit response” – if a PERM application is denied without an audit, and the employer submits supplemental evidence that could be considered as part of the record under HealthAmerica, the CO should treat it as a request for reconsideration rather than a request for review. [20]

Step 3. BALCA further recognized that even in cases that fall squarely under Situation 1, the circumstances of an audit may not have been specific enough to put the employer on notice regarding a specific deficiency. Thus, these cases would be treated under Situation 2, even if an employer received an audit, but argues that it did not receive specific notice, the request for review should be treated as a request for reconsideration so that the employer has a fair opportunity to present  supplemental evidence to the CO.

Denzil Gunnels, thus, opens the door for an employer to argue that it may not have received adequate notice of the deficiency and appears to provide a way around a strict application of the prohibition to present supplementary evidence that would otherwise be barred by 20 CFR §656.24(g)(2)(ii). Thus, as an example, in its denial CO objected to whether a Sunday newspaper was appropriate or whether a specific US worker was lawfully rejected or not, one can argue that the generic boilerplate audit notice, even if it asked for evidence of the employer’s recruitment,  did not adequately apprise the employer of these potential deficiencies, and can seek to supplement the record through a motion to reconsider. On the other hand, if an employer inadvertently submits an erroneous copy of an advertisement in response to an audit notification for evidence of recruitment, BALCA has held that this situation is the precise type of evidence barred by § 656.24(g). SeeTechdemocracy LLC, 2009-PER-00459, 2011-PER-00058 (BALCA Nov. 16, 2010).

Below is a review of how BALCA has generally treated errors prior to Denzil Gunnels.

Regarding not submitting a completed application, BALCA has indicated that some omissions may not be material to the review of the substance of the application. See Yasmeena Corp., 2008-PER-00073 (BALCA Nov. 14, 2008). In Yasmeena Corp. the only ground of denial was that the employer failed to indicate the date in the employer’s declaration on the ETA-9089, which was filed by mail rather than electronically. Moreover, BALCA has also held that if the CO denies a motion to reconsider without explaining why the omissions are material it would be arbitrary and capricious. See Ben Pumo, 2009-PER-00040 (BALCA Oct. 29, 2010). Practitioners should on the other hand not take too much comfort in Yasmeena Corp and bear in mind that DOL has clearly indicated that an error resulting from an employer’s disregard of the system prompts will result in a denial and will not be considered in a motion for reconsideration.[21]

Here are further summaries of relevant BALCA decisions:

Luigi’s Restaurant, 2009-PER-00357 (BALCA Aug. 31, 2009)—Failure to submit the NOF with the audit response when the employer in good faith thought it had submitted the NOF was not a ground for denial in the interest of fundamental fairness, although BALCA stated that its “decision is expressly limited to the precise circumstances of this case, and should not be construed as support for requiring the CO to reconsider if the employer merely forgot to submit requested documentation.” It remains to be seen how viable Luigi’s Restaurant is in light of Techdemocracy and Denzil Gunnels, which hold that such evidence will be barred if the employer had a prior opportunity to submit it at the time of audit, but did not inadvertently submit the correct document. [22]

Pa’Lante, 2008-PER-00209 (BALCA May 7, 2009)—Failure to list prior experience in Section K, and not consider evidence of such experience in audit response, was not fatal to the application, as the employer is constructively considered to have kept and submitted such evidence under PERM’s recordkeeping provisions pursuant to HealthAmerica. While this was not a typographical error as in HealthAmerica, it was similar to that case since the documentation needed to prove that the application actually complied with the regulations was documentation constructively considered to have been submitted by the employer under PERM’s recordkeeping provisions.[23]

Geoffrey Allen Corporation, 2008 PER-00234 (BALCA May 7, 2009)—Employer’s failure to list prior experience was fatal. Unlike the facts in Pa’Lante, employer appeared to submit extrinsic evidence, which was not part of the PERM recordkeeping requirements, such as an H-1B petition, LCA and an old ETA 750.

Southern Occasions Catering LLC, 2009-PER-00011(BALCA Jan. 9, 2009)—In this case the CO alleged that employer did not advertise on Sunday, and instead of rebutting, employer re-advertises in a Sunday edition. BALCA held that HealthAmerica is inapplicable as the new recruitment did not previously exist in the PERM recordkeeping file.

Hawai’i Pacific University, 2009-PER-00127 (BALCA Mar. 2, 2010)—In an en banc decision BALCA upheld denial of the labor certification since the NOF listed the CO’s address in San Francisco rather than the National Processing Center’s address. BALCA reversed its earlier panel decision in the same case, which reasoned that given the lack of assistance provided to practitioners and the system being far from friendly, the erroneous address on the NOF was not fatal and found that the facts in this case similar to an earlier decision. See Brooklyn Amity School, 2007-PER-00064 (BALCA Sep. 19, 2007) (listing of NY DOL address was not fatal since this office was still open even after PERM, and only 120 days passed since the establishment of the National Processing Centers). In its new decision, BALCA held that the facts were no longer similar to Brooklyn Amity School since the PERM regulations had been in effect for more than two years and DOL has provided the public with sufficient notice.

In closing, practitioners should take note of this admonition by BALCA in Robert Venuti Landscaping, supra as a take home present:

We encourage future applicants to offer thorough documentation of their applications when first directed to do so, to interpret requests for information broadly, and to continually anticipate the documentation that will support each portion of the PERM application. It is the employer’s responsibility to build the record in support of the application. The regulations that stipulate the content of the NOF are not unclear or difficult to find. When an employer fails to follow the regulations, it bears the difficult burden of offering sufficient evidence in a procedurally appropriate manner in order to show that the application should otherwise be granted.[24]

Conclusion

This advisory represents only a slice of the decisions that BALCA has been issuing of late, although the author wishes to underscore the importance for practitioners to constantly keep a vigilant eye on decisions in order to gain invaluable insights when representing a client through the labyrinthine PERM process.[25] Reviewing that one single BALCA case can make all the difference between an approval and a denial, or to put it more dramatically from the alien’s point of view, between life and death. Also, by ensuring that practitioners have a proper perspective of the latest interpretations through BALCA decisions, the PERM case is more likely to be successful and there will be less of a reason for your case to be taken to BALCA. On the other hand, since DOL is constantly shifting the goal posts in the PERM process, one can never be completely sure and even the most, well prepared and documented PERM cases can result in a denial. It is hoped that this advisory, which discusses many favorable BALCA cases, will encourage practitioners to take meritorious cases to BALCA in the event of unfair and arbitrary denials.

Copyright © 2011 Cyrus D. Mehta. All rights reserved. A prior version of this article appeared in the 13th  Annual AILA New York Chapter Immigration Symposium Handbook (December 1, 2010).  

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. Mr. Mehta is the chair of AILA’s National Pro Bono Committee and is also the past co-chair of the AILA-NY Chapter Pro Bono Committee. He is a former chairman of the Board of Trustees of the American Immigration Law Foundation (2004–06). He was also the secretary and member of the Executive Committee (2003–07) and the chair of the Committee on Immigration and Nationality Law (2000–03) of the New York City Bar. He is a frequent speaker and writer on various immigration-related issues, and is also an adjunct associate professor of Law at Brooklyn Law School, where he teaches a course entitled “Immigration and Work.” He received the AILA 2010 President’s Commendation for leadership of AILA’s pro bono efforts.

The author thanks Blaise L Tottenham and Cora-Ann V. Pestaina for their helpful comments, suggestions and editorial assistance.

[1] See AILA Teleconference with Judge Colwell and Todd Smyth at BALCA by Susan Maclean and Josie Gonzales, available on  AILA InfoNet at Document No. 10111730 (posted on 11/17/2010).

[2] AILA InfoNet has an exhaustive collection of Board of Alien Labor Certification Appeals (BALCA) cases under “Cases and Decisions,” www.aila.org/content/default.aspx?docid=9511. A digest of BALCA cases can also be found on the Department of Labor (DOL) website at http://www.oalj.dol.gov/PUBLIC/INA/REFERENCES/REFERENCE_WORKS/BALCA_PERM_
DIGEST.HTM
.

[3] Beware that not all claims of substantial equivalence between the primary and alternative requirements will be accepted. See Demos Consulting Group, Ltd., 2007-PER-00020 (BALCA May 16, 2007) (where position’s primary requirement was three years experience in the position of Senior Quantitative Analyst/Developer or, alternatively, three years of experience in a position in software development with distributed multi-tier client server applications. BALCA held that the alternative requirement was not equivalent to the primary and since alien only qualified under the alternative prong it upheld denial as the application lacked Kellogg language). While Demos Consulting was decided before Federal Insurance, it is still instructive as it requires the practitioner to take pains to demonstrate that there is equivalence between the primary and alternative requirement.

[4] See 8 Code of Federal Regulations (CFR) §214.2(h)(4)(iii)(D)(5).

[5] Actually, Field Memorandum No. 48-94 states that a bachelor’s degree takes up two years of specific vocational preparation (SVP) time, which is very different from taking up two years of experience. See E. Greenfield, “An Examination of Recent PERM Denials,” 43rd Annual Immigration & Naturalization Institute Handbook, Practising Law Institute.

[6] See M. Jaidi, The Best PERMs in Life Are Simple: The Globalnet Moral, available at www.cyrusmehta.com.

[7] Establishing that an alien has the equivalent of a degree on an I-140 petition is a highly complicated area with its own minefields and pitfalls, and readers will certainly profit if they purchase AILA’s Focus on EB-2 and EB-3 Degree Equivalency by R. Y. Wada, available at http://www.ailapubs.org/eb2andeb3.html.

[8] The Appeals Administrative Office (AAO) recently issued a “Notice of Derogatory Information and Request for Evidence” on an EB-3 I140 petition where the H-1B position for market research analyst required a bachelor’s degree but the I-140 petition required a high school education and 24 months of experience, which according to the AAO, “calls into doubt the veracity of the position requirements and the bona fides of the position.” See  R.Y. Wada, The Nth Degree – Issues And Case Studies In Degree Equivalency: Two Emerging Issues Affecting The EB-3 “Safe Harbor,” 15 Immigr. Bull. 1601, Nov. 15, 2010.

[9] An I-140 petition filed under Immigration and Nationality Act (INA) §203(b)(3) (EB-3) sets forth different equivalency standards from the H-1B. An I-140 petition filed under EB-3, where an alien cannot demonstrate a four year single source bachelor’s degree, must be filed under the EB-3 Skilled Worker category pursuant to 8 CFR §204.5(l)(3)(ii)(B). Under no circumstances can such an individual who possesses a three year degree and experience be the beneficiary of an I-140 petition filed under the professional category pursuant to 8 CFR §204.5(l)(3)(ii)(C), which provides:

“Professionals. If the petition is for a professional, the petition must be accompanies by evidence that the alien holds a United States baccalaureate degree or a foreign equivalent degree and by evidence that the alien is a member of the professions…”

Therefore, to qualify as a professional, USCIS has interpreted 8 CFR §204.5(l)(3)(ii)(C) to require the alien to demonstrate that he or she either has a U.S. baccalaureate degree or a foreign equivalent degree, which USCIS has interpreted to be a four-year single source degree. Any other equivalent degree, even though it may be recognized as a U.S. bachelor’s degree for H-1B purposes under 8 CFR §214.2(h)(4)(iii)(D) will not be recognized under the EB-3 Professional category pursuant to 8 CFR §204.5(l)(3)(ii)(C). Moreover, even USCIS has asserted that if the beneficiary possesses less than a four year degree and treats it as a professional position, the I-140 will be denied unless the position is listed as requiring a foreign degree or its equivalent (which must properly define the educational equivalence), and then it will be treated as a skilled worker position. See e.g., Matter of ___, SRC 07-174-51943 (AAO Dec. 18, 2007) reprinted in 13 Bender’s Immigr. Bull. 371, 410–412 (Apr. 1, 2008).

[10] DOL has also confirmed in Program Electronic Review Management (PERM) FAQ 10 that there is no need to indicate the Kellogg language when the employer does not require experience in the primary requirement, www.foreignlaborcert.doleta.gov/pdf/perm_faqs_5-9-07.pdf.

[11] 20 CFR §§656.17(e)(1)–(2).

[12] For an in depth analysis on the role of the lawyer in the recruitment and labor certification process, see G. Endelman and C. D. Mehta, “Walking the High Wire Without a Net—The Lawyer’s Role in the Labor Certification Process,” 11th Annual AILA New York Chapter Immigration Law Symposium Handbook (AILA 2008 Ed.); a revised and substantially expanded version of the same article was published in 14 Bender’s Immigr. Bull. 1387 (Feb. 1, 2009).

[13]See AILA InfoNet Doc. No. 10040533. PERM FAQ 11 is also available at http://www.foreignlaborcert.doleta.gov/pdf/PERM_Faqs_Round_11_08032010.pdf.

[14] For a further analysis of these two decisions, See C.V. Pestaina, BALCA On Employee Referral Programs Under PERM, The Insightful Immigration Blog, http://cyrusmehta.blogspot.com/2011/02/balca-on-employee-referral-programs.html..

[15] The Board held:

[w]hether FAQ No.5 provides persuasive authority depends on the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements and all those factors which give it power to persuade…We find that FAQ No.5 imposes substantive rules not found in the PERM regulations, nor supported by PERM’s regulatory history, nor consistent with notions of fundamental fairness and procedural due process.” HealthAmerica at 14. See also Skidmore, 323 U.S. at 140.

[16] http://www.foreignlaborcert.doleta.gov/pdf/perm_faqs_5-9-07.pdf.

[17] In Dr. Deza’s Dental Office, 2010-PER-00113 (BALCA Feb. 11 2011), BALCA reversed the CO in a case where a job search website’s introduction to the position did not contain the name of the employer, but upon a click of the mouse, the viewer would be taken to the actual advertisement, which listed the name of the employer. Interestingly, BALCA distinguished an internet advertisement of this nature to a print advertisement with a blind listing, which requires the reader to contact either a mailbox or a telephone number to reach the employer. Unlike a blind print advertisement, which required more effort to contact and find out the identity of the employer, the name of the employer would appear in an internet advertisement upon the click of the mouse.

[18] HealthAmerica, 2006-PER-00001 (BALCA July 18, 2006).

[19] The latest Minutes from DOL Stakeholders Meeting, October 28, 2010, published on AILA InfoNet at Doc. No. 10111762 (posted 11/17/2010) do not shed any more significant light on roving employees. DOL advised: “When there is more than one worksite and more than one prevailing wage, list the wage of the primary work location where recruitment will take place on the Eta 9089.”Id. at page 15. DOL has indicated that it is preparing a FAQ on this issue, given the numerous complicated situations examples of scenarios to be considered in the FAQ.

[20] See CVS RX Services, Inc., 2010-PER-01108 (BALCA Nov. 16, 2010) (CO abused his discretion by referring file to BALCA when employer submitted supplemental evidence, after denial without audit,  justifying that a professional journal was appropriate even though the position required a bachelor’s degree with no experience).

[21] DOL’s PERM FAQ Round 2 (Mar. 31, 2008), published on AILA InfoNet at Doc. No. 08040234 (posted Apr. 2, 2008).

[22] But in  Hawthorne Suites Golf Resorts, LLC, 2009-PER-00200 (BALCA Jan. 12, 2011), the employer submitted proof of its website advertisement with a wage below the prevailing wage on January 4, 2007, but in its request for reconsideration submitted  proof of subsequent website advertising, from January 5, 2007 till February 20, 2007,  with the correct prevailing wage. BALCA held that under HealthAmerica the website advertisements depicting the correct prevailing wage were clearly held by the employer under the PERM record keeping provisions, and because the web pages contained the date during the relevant period, they could not have been fabricated.  BALCA ruled against the CO’s objection that the additional evidence was barred by 656.24(g)(2), by holding that documentation “submitted” in support of a labor certification application constructively includes the materials held by am employer under the recordkeeping provisions of PERM.  It was not clear from the decision, though, whether the employer submitted the website pages with the correct prevailing wage for the first time during reconsideration or whether they were previously submitted in response to the audit notice, but interestingly, BALCA held that they had in any event been constructively submitted under the employer’s PERM record keeping requirements.

[23] While Pa’Lante is a good decision as it affirmed HealthAmerica, BALCA suggested in dicta that the alien’s prior experience may have arisen through entities owned by the same employer and may thus be disqualifying experience (see note 2). In reaching this conclusion, BALCA relied on a line of cases which was overturned by 20 CFR §656.17(i)(5)(i), (which refers to “employer” as an entity with the same Federal Employer Identification Number [FEIN]). Thus, under current regulation if two entities, even if owned by the same person, or where one is a subsidiary and the other a parent, have two FEINs, then experience with one entity can be used as a job requirement by another entity. For more commentary on this disturbing observation by BALCA, See C. D. Mehta, BALCA Disregards Separate Entity in Matter of Pa’Lante, The Insightful Immigration Blog, available at http://cyrusmehta.blogspot.com/2009/12/balca-disregards-separate-entity-in.html.

[24] Robert Venuti Landscaping, Inc., 2009-PER-00453 (BALCA Oct. 27, 2010), published on AILA InfoNet at Doc. No. 10102960 (posted Oct. 29, 2009) at 6.

[25] One cannot also help but include Wissen, Inc., 2009-PER-00405 (BALCA Apr. 15, 2010) published on AILA InfoNet at Doc. No. 10041930 (posted Apr. 19, 2010), where BALCA held that the SVP level of “7.0<8” means an SVP of 7 and not 8, which permits a maximum lapsed time of preparation up to and including four years and not more. If an employer is making a business necessity argument to justify allegedly excessive arguments, attacking the opaqueness of “7.0<8”, which may justify requirements in excess of an SVP of 7, it will not get you anywhere after Wissen. While again, DOL has defined “7.0<8.0” as being equal to an SVP of 7 without promulgating a regulation, unless a practitioner wishes to challenge this in federal court, it would be unwise to rely on this argument when making a business necessity argument and to instead rely on the traditional two prong test set forth in Information Industries, Inc., 1988-INA-00082 (BALCA Feb. 9, 1989).

December 2010 Immigration Update

Details…

1. DOS Discusses Upcoming Employment Visa Number Priority Cut-Off Dates

The Department of State’s Visa Bulletin for December 2010 notes that it is unlikely that any cut-off dates will be set in the employment first preference during the coming months. It also appears unlikely that it will be necessary to establish a cut-off date other than those already in effect for the employment second preference category. Cut-off dates continue to apply to the China and India second preference categories due to heavy demand.

Based on current indications of demand, the Department said the "best case scenarios" for cut-off date movement each month are:

Employment Second:

  • China: none to two weeks
  • India: no movement

Employment Third:

  • Worldwide: three to six weeks
  • China: one to three weeks
  • India: none to two weeks
  • Mexico: although continued forward movement is expected, no specific projections are possible now
  • Philippines: three to six weeks

The Department noted that the above ranges are estimates based on current demand patterns, and will be subject to possible fluctuations during the coming months.

The December 2010 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5197.html.

2. USCIS Issues Q&A on New Fee Schedule; Makes Corrections, Clarifications

The new fee schedule for immigration-related applications and petitions took effect on November 23, 2010. Applications or petitions postmarked or otherwise filed on or after this date must include the new fee or they will be rejected.

USCIS published the new fee schedule in the Federal Register on September 24, 2010, following a review of public comments received after publication of the proposed rule this past summer. The new fee schedule increases application and petition fees by an average of about 10 percent but does not increase the naturalization application fee.

USCIS issued a related Q&A that notes, among other things, that if mailed through a courier service, the date the item is entered into the courier’s service system is considered the postmark date.

Meanwhile, the American Immigration Lawyers Association (AILA) reported on November 19, 2010, that USCIS has confirmed that a receipt notice from a courier service or overnight mailing service will be considered a "postmark" for fee determination purposes.

USCIS has also corrected the new fee for refugee travel documents. As discussed in the preamble to the final rule, the agency had determined that the fee for a refugee travel document for an adult age 16 or older should match the fee charged for the issuance of a passport to a U.S. citizen ($110 plus a $25 execution fee). Accordingly, USCIS intended to reduce the fee for filing an Application for Travel Document, Form I-131, for refugees to $135 for an adult age 16 or older. The final rule inadvertently listed a fee of $165 for the I-131 refugee travel document for an adult age 16 or older. No other changes were made under this correction.

The Q&A is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1
a/?vgnextoid=67b73dc5cb93b210VgnVCM100000082ca60aRCRD&vgnextchanne
l=5b33aca797e63110VgnVCM1000004718190aRCRD
. The USCIS alert is available at
http://www.aila.org/content/default.aspx?docid=33665. The correction notice is available at
http://edocket.access.gpo.gov/2010/pdf/2010-28719.pdf. A table listing the old and new fees is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1
a/?vgnextoid=92c5e116de9eb210VgnVCM100000082ca60aRCRD&vgnextchanne
l=68439c7755cb9010VgnVCM10000045f3d6a1RCRD
. The final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-23725.pdf. К

3. Do’s and Don’ts, Tips on SSN "No-Matches" Released

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices recently issued the following do’s and don’ts for employers on Social Security Number "no-match" letters. These are letters issued by the Social Security Administration (SSA) to employers stating that information supplied to the SSA does not match SSA records.

DO:

  • Recognize that name/SSN no-matches can result because of simple administrative errors.
  • Check the reported no-match information against your personnel records.
  • Inform the employee of the no-match notice.
  • Ask the employee to confirm his/her name/SSN reflected in your personnel records.
  • Advise the employee to contact the SSA to correct and/or update his or her SSA records.
  • Give the employee a reasonable period of time to address a reported no-match with the local SSA office.
  • Follow the same procedures for all employees regardless of citizenship status or national origin.
  • Periodically meet with or otherwise contact the employee to learn and document the status of the employee’s efforts to address and resolve the no-match.
  • Submit any employer or employee corrections to the SSA.

DON’T:

  • Assume the no-match conveys information regarding the employee’s immigration status or actual work authority.
  • Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee.
  • Attempt to immediately reverify the employee’s employment eligibility by requesting the completion of a new Form I-9 based solely on the no-match notice.
  • Follow different procedures for different classes of employees based on national origin or citizenship status.
  • Require the employee to produce specific documents to address the no-match.
  • Ask the employee to provide a written report of SSA verification.

The document is available at
http://www.justice.gov/crt/osc/pdf/publications/SSA/Employers.pdf. A similar document for employees is available at http://www.justice.gov/crt/osc/pdf/publications/SSA/Employees.pdf. A related FAQ is available at http://www.justice.gov/crt/osc/pdf/publications/SSA/FAQs.pdf.

Also, the National Employment Law Project issued "Top 10 Tips for Employers" on Social Security no-match letters. The tips are available at http://www.nilc.org/immsemplymnt/ssa-nm_toolkit/top_ten_tips_11-07-07.pdf, and are linked to a National Immigration Law Center "No-Match Letter Toolkit" available at http://www.nilc.org/immsemplymnt/ssa-nm_toolkit/index.htm.

4. USCIS Revises I-129 Petition Form

U.S. Citizenship and Immigration Services (USCIS) has issued a new version of the Petition for a Nonimmigrant Worker (Form I-129) to include the new fee increases. USCIS will accept previous versions of the form until December 22, 2010. Beginning on December 23, 2010, USCIS will only accept the revised form and will reject previous versions.

Among other changes, the revised I-129 form requires employers who are sponsoring foreign nationals for certain work visas to certify that they have made an export licensing determination regarding each employee sponsored. More specifically, employers must certify that they have evaluated the applicable export control regulations and have determined whether the employee will require an export license to perform the job.

Under the Department of CommerceХs export control regulations, the release of technical information to a foreign national is deemed an ТexportУ to that personХs country of origin. That remains true even if the foreign national is lawfully employed. Compliance with this Тdeemed export ruleУ can be complex.

Instructions and a link to the revised form (http://www.uscis.gov/files/form/i-129.pdf) are available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1
a/?vgnextoid=f56e4154d7b3d010VgnVCM10000048f3d6a1RCRD
.

5. DOL Hits H-2A Employer With $1.3 Million in Back Wages, $136,500 in Fines

The Department of Labor’s Wage and Hour Division (WHD) is assessing J&R Baker Farms LLC of Ellenton, Georgia, $1,311,644 in back wages owed to 244 workers and $136,500 in fines for violating provisions of the H-2A temporary agricultural worker program.

WHD found that the vegetable farm allegedly failed to provide at least 75 percent of the hours promised in the work contract. WHD is asking an administrative law judge to order the farm to pay $1,311,644 in back wages to 148 U.S. workers and 96 H-2A workers and pay a fine of $122,000.

The investigation also discovered that the farm failed to provide a copy of the H-2A work contract at the time of recruitment to 29 U.S. workers who performed the same type of work as the H-2A workers. The Department is recommending a fine of $14,500 for that offense.

A press release announcing the findings is available at http://www.dol.gov/opa/media/press/whd/WHD20101532.htm.

6. DOS Final Rule Revises Exchange Student Regs

In a final rule effective November 26, 2010, the Department of State is revising existing secondary school student regulations regarding the screening, selection, school enrollment, orientation, and quality assurance monitoring of exchange students, host families, and field staff. The Department also is adopting a new training requirement for all organizational representatives who place and/or monitor students with host families.

A proposed requirement to conduct FBI fingerprint-based criminal background checks will not be implemented now. The agency said it continues to examine that proposed requirement and a subsequent final rule will be forthcoming.

The final rule governs the designated exchange visitor programs under which foreign secondary school students (ages 15 to 18 1/2) may study in the U.S. at accredited public or private secondary schools for an academic semester or year while living with American host families or residing at accredited U.S. boarding schools.

Compliance with a new requirement for a mandated training module for local coordinator training will not be required until the development of an online training platform is completed and launched, which is anticipated to be in January 2011. A subsequent Federal Register notice will be published when that occurs.

The final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-27200.pdf.

7. DHS Extends TPS Designation for Somalia

The Department of Homeland Security (DHS) has extended the designation of Somalia for temporary protected status (TPS) for 18 months, from its current expiration date of March 17, 2011, through September 17, 2012. DHS determined that an 18-month extension is warranted because conditions in Somalia prompting the TPS designation continue to exist. Armed conflict in Somalia is ongoing. Due to that conflict and "other extraordinary and temporary conditions," requiring the return of eligible individuals with TPS to Somalia "would pose a serious threat to their personal safety," the agency said.

The notice also sets forth procedures necessary for nationals of Somalia (or those having no nationality who last habitually resided in Somalia) with TPS to re-register and to apply for an extension of their employment authorization documents (EADs) with U.S. Citizenship and Immigration Services (USCIS). Re-registration is limited to persons who previously registered for TPS under the designation of Somalia and whose applications have been granted or remain pending. Certain nationals of Somalia (or those having no nationality who last habitually resided in Somalia) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions.

USCIS will issue new EADs with a September 17, 2012, expiration date to eligible TPS beneficiaries who timely re-register and apply for EADs. The 60-day re-registration period begins November 2, 2010, and will run until January 3, 2011.

The USCIS notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-27613.pdf. A related Q&A is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnex
toid=1dffae8ac980c210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9
010VgnVCM10000045f3d6a1RCRD
. Additional information on TPS for Somalians can be found at
http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d
1a/?vgnextoid=928f3e4d77d73210VgnVCM100000082ca60aRCRD&vgnextchann
el=928f3e4d77d73210VgnVCM100000082ca60aRCRD
.

USCIS NEW FEE INCREASE EFFECTIVE ON November 23, 2010

US Citizenship and Immigration (USCIS) issued a reminder that its new fee schedule will take effect on Tuesday, November 23, 2010.К Applications or petitions postmarked or otherwise filed on or after this date must include the new fee or they will be rejected.

As a practical matter, it is clear that if the application or petition is postmarked on Monday, November 22, 2010 but arrives on or after Tuesday, November 23, 2010, the old filing fee would be applicable and the application should not be rejected. КThe ТpostmarkУ need not be issued from the U.S. Postal Service.К КThe American Immigration Lawyers Association (AILA) has received further guidance [see AILA Infonet Doc. No. 10111962 (posted on Nov. 19, 2010)] from the USCIS confirming that a receipt notice from a courier service or another mailing service will be considered ТpostmarkedУ for determining whether the old or the new fee schedule is applicable.К In the meantime, we refer you to USCIS Frequently Asked Question # 2 dated July 2, 2007, http://www.uscis.gov/files/pressrelease/FAQ2.pdf, which discussed the meaning of ТpostmarkУ relating to a courier service with respect to filings during the July Visa Bulletin 2007 period.

Q.25: Does a receipt notice from a courier service or overnight mailing service constitute a ТpostmarkУ?

A.25. Yes, the date the item is entered into the courierХs service system will be the postmark date for fee determination purposes.

USCIS published the new fee schedule in the Federal Register on September 24, 2010, following a review of public comments received after publication of the proposed rule this past summer. The new fee schedule increases application and petition fees by an average of about 10 percent but does not increase the naturalization application fee.

A table listing the old and new fees is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?v
gnextoid=92c5e116de9eb210VgnVCM100000082ca60aRCRD&vgnextchannel=68439
c7755cb9010VgnVCM10000045f3d6a1RCRD
. The final rule is available at http://edock
et.access.gpo.gov/2010/pdf/2010-23725.pdf
.

November 2010 Immigration Update

Headlines:

 

Details…

1. WHD Plans Nationwide Audit of Independent Contractor Misclassifications

The Department of Labor’s Wage and Hour Division (WHD) reportedly plans a nationwide audit this fall of misclassifications of employees as independent contractors, and U.S. Immigration and Customs Enforcement sent notices of inspection to employers nationwide in September 2010. WHD and ICE are working together on the independent contractor issue, and some analysts believe that WHD may be providing leads to ICE on potential Fair Labor Standards Act violators.

It is unclear which industries are targeted, but it is expected that they may include agriculture, construction, distribution, food processing, hospitality, janitorial services, landscaping, manufacturing, restaurants, and sanitation, according to the Society for Human Resource Management.

CDMA recommends preparing for audits in advance and contacting us for guidance on how to classify workers as employees or independent contractors, and how to conduct an internal audit to correct errors or omissions in I-9 work authorization verification forms and other relevant documentation.

2. District Court Finds NY Education Law Limiting Pharmacist Licenses to U.S. Citizens, LPRs Unconstitutional

The U.S. District Court for New York ruled in a consolidated case on September 29, 2010, that a New York education law was unconstitutional because it violated the plaintiffs’ rights under the Equal Protection Clause of the U.S. Constitution and encroached on federal immigration authority.

The plaintiffs were 26 otherwise qualified pharmacists with temporary authorization to work in the U.S. Twenty-two of them had obtained H-1B visas. Most had applied for permanent residence and all had remained in the U.S. in compliance with federal immigration laws while their cases were pending. New York Education Law ¤ 6805(1)(6) provides that “[t]o qualify for a pharmacistХs license, an applicant shall…be a United States citizen or an alien lawfully admitted for permanent residence in the United States.” The law excludes, among others, those who have received federal authorization to work in the U.S. temporarily.

Among other things, the court said:

The theory is that courts must be wary of state laws that exploit aliens’ political powerlessness by denying them the fruits of their societal contributions. Here, the State does not explain why this theory would apply any less to nonimmigrants, who also work, pay taxes, contribute to society, and have no political voice while they remain in this country. At one point, the State seems to suggest that non-LPR classifications should not receive strict scrutiny because non-LPRs have a different “constitutional status” by virtue of their weaker ties to the country….But what does it mean to say that nonimmigrants have a different “constitutional status” than LPRs, or that nonimmigrants “need not” be protected to the same extent as LPRs? The Supreme Court has already established that all aliens, even undocumented aliens, have rights under the equal protection clause.

The court pointed out that New York purported to ameliorate the dangers posed by transient or judgment-proof pharmacists through ¤ 6805(1)(6), which was aimed at only a tiny subclass of pharmacists, instead of imposing generally applicable insurance or similar malpractice-related requirements upon the entire profession. The state also did not put forth any evidence that transience among New York pharmacists threatened public health or that nonimmigrant pharmacists, as a class, were considerably more transient than LPR and U.S. citizen pharmacists. As a consequence, the court said, the law did nothing to reduce the dangers of transience among citizen and LPR pharmacists while at the same time excluding longtime nonimmigrant residents, many of whom will become LPRs as soon as their pending green card applications are processed. “The question is not close; under any form of heightened scrutiny, ¤ 6805(1)(6) fails,” the court concluded.

The decision is available at http://engnishimura.com/files/PhamacistLawUnconstitutional.pdf.

3. USCIS Designates Two AAO Decisions As Binding Precedent

U.S. Citizenship and Immigration Services (USCIS) announced on October 20, 2010, that it has issued two decisions from the Administrative Appeals Office (AAO) as binding precedent for the agency.

The first decision, Matter of Al Wazzan, affirms USCIS’s denial of an application to adjust status to permanent residence and holds that an employment-based petition must be “valid” initially if it is to “remain valid with respect to a new job.” The second decision, Matter of Chawathe, reverses USCIS’s denial of an application to preserve residence for naturalization purposes and clarifies the definition of employment by an “American firm or corporation.”

Matter of Al Wazzan states that to be considered “valid,” a petition must have been filed for a person who is entitled to the requested classification and a USCIS officer must have approved the petition. An unadjudicated immigrant visa petition is not made “valid” merely through the act of filing the petition with USCIS or through the passage of 180 days, even though the law states that an employment-based immigrant visa petition remains valid with respect to a new job if the beneficiary’s application for adjustment of status has been filed and remains unadjudicated for 180 days.

Matter of Chawathe states that for purposes of establishing the requisite continuous residence in naturalization proceedings, a publicly held corporation may be deemed an “American firm or corporation” if the applicant establishes that the corporation is both incorporated in the U.S. and trades its stock exclusively on U.S. stock exchange markets. The decision also states that when an applicant’s employer is a publicly held corporation incorporated in the U.S. and trading its stock exclusively on U.S. stock markets, the applicant need not demonstrate the nationality of the corporation by establishing the nationality of those persons who own more than 51 percent of the stock of that firm. The decision further states that even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “more likely than not” or “probably” true, the applicant has satisfied the standard of proof. If the director can articulate a material doubt, he or she may request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, may deny the application or petition, the decision states.

Matter of Al Wazzan is available at http://www.justice.gov/eoir/vll/intdec/vol25/3699.pdf, and Matter of Chawathe is available at http://www.justice.gov/eoir/vll/intdec/vol25/3700.pdf.

4. State Dept. Seeks OMB Approval, Comments on Exchange Visitor Program Annual Reports

The Department of State (DOS) has sent for Office of Management and Budget (OMB) approval a notice and request for comments on annual reports required from designated exchange visitor program sponsors to assist DOS in overseeing and administering the J-1 visa program. The reports provide statistical data on the number of exchange participants an organization has sponsored per category of exchange, a summary of the activities in which exchange visitors were engaged, and an evaluation of the program’s effectiveness. Program sponsors include government agencies, academic institutions, and private sector not-for-profit and for-profit entities. The estimated number of respondents annually is 1,460.

Annual reports are completed through the Student and Exchange Visitor Information System (SEVIS), printed and signed by a sponsor official, and sent to DOS by mail or fax. DOS said it is working with the Department of Homeland Security (DHS) to expand SEVIS functions and enable the collection of electronic signatures. Annual reports will be submitted to DOS electronically “as soon as the mechanism for doing so is approved and in place,” the agency said. DHS announced a delay in implementing SEVIS II in April 2010. Phase one, the creation of customer accounts and the migration of school and sponsor records, was planned to start in March 2010, and phase two, full operating capability, was planned to deploy in October. DHS said a final decision on the schedule has not been reached, but confirmed that SEVIS II will not be deployed this year.

Comments or requests for additional information may be sent to the offices listed in the OMB notice, which is available at http://edocket.access.gpo.gov/2010/pdf/2010-26381.pdf. For details on the SEVIS II delay, see http://www.ice.gov/sevis/sevisii/sevisii_update_032010.htm.

5. ETA Publishes Proposed Rule on Wage Methodology for H-2B Temporary Non-Agricultural Employment

The Department of Labor’s Employment and Training Administration has proposed to amend its regulations governing certification of the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment and related enforcement. The proposed rule, published on October 5, 2010, would revise the methodology by which the Department calculates the H-2B prevailing wage.

The proposed rule would establish that the prevailing wage will be the highest of: (1) wages established under an agreed-upon collective bargaining agreement (CBA); (2) a wage rate established under the Davis-Bacon Act (DBA) or McNamara-O’Hara Service Contract Act (SCA) for that occupation in the area of intended employment; and (3) the arithmetic mean wage rate established by Occupational Employment Statistics (OES) for that occupation in the area of intended employment. The employer would be required to pay its workers at least the highest of the prevailing wage as determined by the National Processing Center (NPC) (currently the National Prevailing Wage Center), the federal minimum wage, the state minimum wage, or the local minimum wage.

The proposed rule also would eliminate the use of the current four-tiered wage structure that differentiates wage tiers by level of experience, education, and supervision required to perform the job duties. The Department proposes instead a single OES wage level for H-2B job opportunities based on the arithmetic mean of the OES wage data for the job opportunities in the area of intended employment.

On August 30, 2010, the U.S. District Court for the Eastern District of Pennsylvania in ComitЏ de Apoyo a los Trabajadores Agricolas (CATA) v. Solis, et al., invalidated the Department’s use of skill levels in establishing prevailing wages and the Department’s reliance on OES data in lieu of DBA and SCA rates. The court order required the Department to complete a new rulemaking regarding the calculation of prevailing wage rates in the H-2B program within 120 days.

The Department noted that the types of jobs found in the H-2B program involve few if any skill differentials necessitating tiered wage levels. The Department said that multiple wage rates, particularly in a program in which most job opportunities have few or no skill requirements, “stratify wages and inappropriately allow employers to force much of the wage-earning workforce into a lower wage.” H-2B workers, most of whom fill jobs with low skill levels, are more likely to be classified at the low end of the wage tiers, ultimately adversely affecting the wages of U.S. workers in those same jobs, the Department noted, citing H-2B disclosure data from the last 10 years demonstrating that many jobs for which employers seek H-2B workers (e.g., housekeepers, landscape workers) “clearly require minimal skill to perform, have few special skill or experience requirements, and do not generally have career ladders.” These jobs typically have resulted in a Level 1 (the lowest wage level) determination for the H-2B employer because the jobs themselves do not require the employer to seek workers with higher skill levels, the Department pointed out. The result is a wage determination lower than the average wage paid for many jobs under the same classification as those filled under the H-2B program. “By allowing jobs to be filled by H-2B workers at these lower wages, a tiered wage system can have a depressive effect on wages of similar domestic workers, ultimately adversely affecting the wages of U.S. workers in those same jobs.” The Department said it “cannot continue to allow such wage depression where its mandate is to ensure that the wages of U.S. workers suffer no adverse impact.”

Finally, the H-2B regulations currently allow the use of an employer-provided survey to determine the prevailing wage when that survey meets certain methodological requirements, even if the survey produces a lower wage than the OES wage. The proposed rule would eliminate the use of private wage surveys in the H-2B program. The Department said it has concluded that “the review of such surveys is an inefficient and unnecessary expenditure of government resources. While private surveys can provide useful information, the cost of reviewing the surveys outweighs their utility.”

The Department anticipates further rulemaking that will address other aspects of the H-2B temporary worker program. (The proposed rule notes that temporary labor certification is currently not required for H-2B employment on Guam, for which certification from the governor of Guam is required.)

Comments are due by November 4, 2010, and should be submitted using one of the methods set forth in the proposed rule, which is available at http://edocket.access.gpo.gov/2010/pdf/2010-25142.pdf. See also http://www.foreignlaborcert.doleta.gov/.

6. USCIS Releases Q&A on H-1B and L-1 Fee Increases

U.S. Citizenship and Immigration Services released a frequently asked questions (FAQ) sheet on October 7, 2010, that discusses the new additional fees of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions. The additional fee applies to H-1B or L-1 petitioners that employ 50 or more employees in the United States with more than 50 percent of their employees in the U.S. in H-1B, L-1A, or L-1B nonimmigrant status. USCIS noted that all employees in the U.S., regardless of whether they are paid through a U.S. or foreign payroll, will count toward the percentage calculation.

The fee increase applies to covered petitions postmarked August 14, 2010, or later. For petitions filed by courier service, the fee applies to packets picked up by the courier on August 14 or later.

Among other things, the FAQ notes that until the Petition for Nonimmigrant Worker (Form I-129) and the Nonimmigrant Petition Based on Blanket L Petition (Form I-129S) are revised, the agency recommends that all H-1B, L-1A, and L-1B petitioners include, as part of the filing packet, the new fee or a statement or other evidence outlining why this new fee does not apply. USCIS requests that petitioners include a notation indicating whether or not the fee is required in bold capital letters at the top of the cover letter. The fee, statement, notation, or other evidence should be provided with each petition submitted.

Where the fee or documentation is not submitted with the filing, or where questions remain, USCIS may issue a Request for Evidence (RFE) to determine whether the additional fee applies to the petition. Because an RFE will be issued for the fee, rather than a rejection for the omission of the fee, USCIS will maintain the original filing date as the receipt date. Petitioners should wait to respond to the RFE before sending in the additional fee or an explanation of why the new fee does not apply, USCIS said. Once the revised I-129 and 1-129S are in place, USCIS will reject covered petitions submitted without the new fee. USCIS said it will release those revised forms “as soon as possible.”

The FAQ is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f
6d1a/?vgnextoid=a68794687538b210VgnVCM100000082ca60aRCRD&vgnex
tchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD
.

7. USCIS Seeks Comments on E-Verify Self-Check

U.S. Citizenship and Immigration Services seeks comments on a new E-Verify self-check program. Self-Check will allow workers to enter data into the E-Verify system to ensure that information relating to their eligibility to work in the U.S. is correct. The notice, including instructions on how to submit comments, is available at http://edocket.access.gpo.gov/2010/pdf/2010-24626.pdf.

8. ICE Breaks Immigration Enforcement, Employer Sanctions Records

On October 6, 2010, Department of Homeland Security Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement (ICE) Director John Morton announced record-breaking immigration enforcement statistics achieved under the Obama administration, including the highest-ever numbers of convicted criminal removals and overall removals in fiscal year 2010.

Secretary Napolitano said, “Our approach has yielded historic results, removing more convicted criminal aliens than ever before and issuing more financial sanctions on employers who knowingly and repeatedly violate immigration law than during the entire previous administration.” Among other things, ICE removed more than 392,000 undocumented persons nationwide in 2010; half were convicted criminals. Since January 2009, ICE has audited more than 3,200 employers, debarred 225 companies and individuals, and imposed approximately $50 million in financial sanctions. Debarment excludes persons or entities from government business for up to 3 years for prescribed violations.

The announcement is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6
d1a/?vgnextoid=95a921e7bcc7b210VgnVCM100000082ca60aRCRD&vgnextc
hannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD
. The list of open house dates and locations is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f
6d1a/?vgnextoid=f87f9d6fd9c7b210VgnVCM100000082ca60aRCRD&vgnextc
hannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD
.

9. USCIS Tells TPS Re-Registrants From El Salvador, Honduras, and Nicaragua That EADs May Be Late

U.S. Citizenship and Immigration Services has announced that new employment authorization documents (EADs) for those from El Salvador, Honduras, and Nicaragua who have successfully re-registered for temporary protected status (TPS) may not be issued until “early November 2010.” While awaiting their EADs, USCIS said they may provide their existing EAD as proof of employment authorization. They may also provide their employer with a copy of their country’s most recent Federal Register notice announcing the TPS six-month extension and the automatic extension of EADs.

The Federal Register notices they may provide as proof include the July 9, 2010, notice for El Salvador (http://edocket.access.gpo.gov/2010/2010-16431.htm), and the May 5, 2010, notices for Honduras (http://edocket.access.gpo.gov/2010/2010-10620.htm) and Nicaragua (http://edocket.access.gpo.gov/2010/2010-10619.htm).

The announcement, dated October 7, 2010, is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f
6d1a/?vgnextoid=cfdc94687538b210VgnVCM100000082ca60aRCRD&vgnext
channel=390d3e4d77d73210VgnVCM100000082ca60aRCRD
. A fact sheet about documentation employers may accept and TPS beneficiaries may present as evidence of employment eligibility is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f
6d1a/?vgnextoid=f876090684988210VgnVCM100000082ca60aRCRD&vgnex
tchannel=8a2f6d26d17df110VgnVCM1000004718190aRCRD
.

10. DOS Addresses Diversity Visa Lottery Applications for Persons With Limited Internet Access

At the Department of State’s daily press briefing on October 5, 2010, the following answer was provided to the question of how people in areas with limited Internet access can apply for the Diversity Visa Lottery program:

Lottery applicants may prepare and submit their own entries, or have others, who have Internet access, submit them on their behalf. Regardless of whether an entry is submitted by the individual directly, or assistance is provided by an attorney, friend, relative, etc., only one entry may be submitted in the name of each person, and the entrant remains responsible for ensuring that information in the entry is correct and complete.

There were over 16 million applications entered into the system last year.

The question and answer are available at http://www.state.gov/r/pa/prs/ps/2010/10/149027.htm.

11. USCIS Hosting Open Houses for Stakeholders, Public

U.S. Citizenship and Immigration Services (USCIS) is hosting open houses in October and November 2010 nationwide. The agency is inviting community stakeholders and the general public to the open houses at its offices across the country to meet USCIS personnel and learn more about the agency’s programs. The effort “is designed to enhance USCIS’s presence in the community and strengthen its partnership with stakeholders,” the agency said. In addition to meeting local USCIS staff, attendees will tour USCIS offices and witness mock naturalization interviews.

USCIS Director Alejandro Mayorkas kicked off the series of open houses October 4 at the USCIS Field Office in Baltimore, Maryland.

The announcement is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f
6d1a/?vgnextoid=95a921e7bcc7b210VgnVCM100000082ca60aRCRD&vgnex
tchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD
. The list of open house dates and locations is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f
6d1a/?vgnextoid=f87f9d6fd9c7b210VgnVCM100000082ca60aRCRD&vgnextc
hannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD
.

12. USCIS Opens New Office in Holtsville, Long Island

U.S. Citizenship and Immigration Services (USCIS) recently announced the opening of a new full-service field office in Holtsville, Long Island, New York. The office has the capacity to serve approximately 400 residents of Nassau, Suffolk, and Queens Counties per day, including fingerprinting.

The announcement is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614
176543f6d1a/?vgnextoid=22a20d1fd9bab210VgnVCM100000082ca6
0aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6
a1RCRD
.

13. ABIL Global (www.abil.com): India Changes Work-Related Visa Rules

In an effort to protect India’s lesser skilled workers and attract highly skilled foreign workers, the Indian Ministry of Home Affairs (MHA) has issued an order and released a new FAQ (frequently asked questions) document stating that employment visas are intended for foreigners desiring to come to India to work if the applicant is a highly skilled and/or qualified professional engaged or appointed by a company, organization, or industry undertaking in India on a contract or employment basis.

Employment visas will not be granted for positions for which qualified Indians are available, the FAQ states. Also, employment visas will not be granted for “routine, ordinary or secretarial/clerical jobs.” The foreign national must seek to visit India for employment in a company, firm, or organization registered in India or for employment in a foreign company, firm, or organization engaged in the “execution of some project in India.” Further, the FAQ states, the foreign national being sponsored for an employment visa in any sector should draw a salary above US $25,000 per year, with the exception of ethnic cooks, language teachers (other than English) and translators, and staff working for the “concerned Embassy/High Commission in India.”

The MHA also has announced the elimination of the prior maximum of 1% of the total workforce, or up to 20, for each Indian company that sponsors foreign workers.

The employment visa must be issued from the country of origin or country of domicile of the foreigner, provided the period of permanent residence of the applicant in that country is more than 2 years.

Documentation pertaining to the proposed employment, such as registration of the company under the Companies Act, proof of registration of the firm in the State Industries Department or the Export Promotion Council concerned, or any recognized promotional body in the field of industry and trade, will be reviewed to decide the category of visa that may be issued.

The name of the sponsoring employer or organization must be clearly stipulated in the visa sticker.

The following categories of foreign nationals are also eligible for employment visas provided they meet the basic conditions for an employment visa:

(i)     Foreign nationals coming to India as consultants on a contract for whom the Indian company pays a fixed remuneration (this may not be in the form of a monthly salary).

(ii)    Foreign artists engaged to conduct regular performances for the duration of an employment contract given by hotels, clubs, or other organizations.

(iii)    Foreign nationals coming to India to take up employment as coaches of national or state-level teams or reputed sports clubs.

(iv)   Foreign sportsmen who are given contracts for a specified period by Indian clubs or organizations.

(v)    Self-employed foreign nationals coming to India for providing engineering, medical, accounting, legal or other such highly skilled services in their capacity as independent consultants, provided the provision of such services by foreign nationals is permitted under law.

(vi)   Foreign language teachers and interpreters.

(vii)   Foreign specialist chefs.

(viii)  Foreign engineers or technicians coming to India to install and commission equipment, machines, or tools under the terms of a contract for the supply of such equipment, machines, or tools.

(ix)   Foreign nationals deputed for providing technical support or services, or transfer of know-how or services, for which the Indian company pays fees or royalties to the foreign company.

Regarding the duration of the employment visa, the rules have different validity dates depending on the employment arrangement. These are summarized as follows:

  1. i) A foreign technician/expert coming to India under a bilateral agreement between the Indian government and the foreign government, or pursuant to a collaboration agreement that has been approved by the Indian government, may be granted a multiple employment visa for the duration of the agreement, or for a period of five years, whichever is less.

(ii) Highly skilled foreign personnel being employed in the IT software and IT-enabled sectors may receive a multiple entry employment visa for up to three years or for the term of assignment, whichever is less.

Applicants who are not covered under any of these two arrangements may obtain a multiple entry employment visa for up to two years or the term of assignment, whichever is less.

Finally, the rules provide for extensions beyond the initial visa validity period, up to a total period of five years from the date of issue of the initial employment visa, on a year-to-year basis, subject to the individual’s good conduct, production of necessary documents in support of continued employment, filing of income tax returns and to there being no adverse security inputs relating to the foreign national. The period of extension shall not exceed five years from the date of issue of the initial employment visa.

The FAQ, which contains additional details on business and work-related visas issued by India, is available at http://www.mha.nic.in/pdfs/work_visa_faq.pdf.

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  1. ABIL Global (www.abil.com): Canadian Regulatory Changes Will Affect Canadian Employers, Temporary Foreign Workers

Various changes to Canada’s Immigration and Refugee Protection Regulations will take effect on April 1, 2011, affecting both Canadian employers and their temporary foreign workers. These changes are intended to:

  • Reduce the opportunity for exploitation of temporary foreign workers by employers and third-party agents;
  • Ensure greater employer accountability mechanisms, including a denial of service provision, thereby encouraging greater adherence by employers to the terms and conditions of their job offers with respect to wages, working conditions and occupations; and
  • Clarify that employment facilitated through the Temporary Foreign Worker Program is meant to be temporary in nature.

The changes include:

Rigorous assessment of the genuineness of the employment offer. The amendments establish specific factors to assess the genuineness of an employer’s offer of employment to a foreign worker both in Labour Market Opinion (LMO) cases and in LMO-exempt cases. These factors include:

  • Whether the offer is made by an employer that is actively engaged in the business with respect to which the offer is made;
  • Whether the offer is consistent with reasonable employment needs of the employer;
  • Whether the terms of the offer are terms that the employer is reasonably able to fulfill; and
  • The past compliance of the employer, or any person who recruited the foreign national for the employer, with the federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.

Ban on employers for noncompliance with a previous LMO. The amendments will render an employer ineligible to seek a work permit on behalf of a foreign worker unless, during the period beginning two years before the initial request for an LMO is made to Service Canada or, in the case of an LMO-exempt work permit, beginning two years before the work permit application is received by Citizenship and Immigration Canada (CIC) or the Canada Border Services Agency (CBSA):

  • The employer provided each of its foreign workers with wages, working conditions and employment consistent with the wages, working conditions and occupation set out in the employer’s offer of employment; or the failure to do so was justified.

Justifications include:

  • A change in federal or provincial law;
  • A change in the provisions of a collective agreement;
  • The implementation of measures by the employer in response to a dramatic change in economic conditions that directly affected the employer, provided that the measures were not directed disproportionately at foreign nationals employed by the employer;
  • An error in interpretation made in good faith by the employer with respect to its obligations to a foreign national, if the employer subsequently provided compensation or made sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error;
  • An unintentional accounting or administrative error made by the employer, if the employer subsequently provided compensation or made sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error; or
  • Circumstances similar to those set out above.

The assessment is undertaken when a new LMO is requested or, in the case of an LMO-exempt work permit application, when the work permit application is received by CIC/CBSA. Employers must review all LMO applications to ensure compliance during the two-year period preceding April 2011. An internal immigration audit is recommended.

List of banned employers posted on CIC Web site. The amendments authorize CIC to maintain a list of banned employers on its Web site, listing the names and addresses of each employer and the date that the determination was made. Service Canada will not issue an LMO and CIC/CBSA will not issue a work permit for any employer on the list.

Four-year cap for most temporary foreign workers. The amendments provide for a cumulative four-year cap for most foreign workers. However, exemptions from the four-year cap exist in the following situations:

  • The foreign worker intends to perform work that would create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents. Therefore, work permits based on LMO exemptions, such as significant benefit to Canada and intra-company transferees, along with other LMO exemptions, will be exempt from the four-year cap.
  • The foreign worker intends to perform work pursuant to an international agreement between Canada and one or more countries. Work permits issued under international agreements such as the North American Free Trade Agreement, the General Agreement on Trade in Services, the Canada-Chile Free Trade Agreement, or the Peru Free Trade Agreement will be exempt from the four-year cap.
  • A foreign worker who has reached the four-year cap is not necessarily required to leave Canada. However, the foreign worker would not be eligible for a work permit even under another category. He or she may be permitted to apply for status under a non-work category such as that of a visitor or student.

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October 2010 Immigration Update

Headlines:

Details…
1. USCIS Raises Many Fees, Adds New Fees

In a final rule effective November 23, 2010, U.S. Citizenship and Immigration Services (USCIS) is making changes to its fee structure. Applications or petitions mailed, postmarked, or otherwise filed on or after November 23, 2010, must include the new fees.
Among other things, USCIS is raising fees for most immigration benefits by a weighted average of 10 percent, establishing several new fees, and raising the premium processing service fee. An application to replace a green card will cost $365 instead of $290; an immigrant petition for alien worker will cost $580 instead of $475; and an application for employment authorization will cost $380 instead of $340.

The premium processing fee will increase from $1,000 to $1,225. There will be a new fee for a civil surgeon designation of $615, and a new fee of $6,230 for an application for a regional center designation under the EB-5 immigrant investor pilot program.
USCIS noted that most EB-5-related comments the agency received in response to the proposed rule acknowledged the need for a regional center designation fee. The commenters expressed support for the fee, USCIS said, while also noting the need for improvements in processing times, collaborative efforts, and regulatory development. USCIS said it “continues to strive for improved processing times, has committed to improved stakeholder communications with quarterly stakeholder meetings, and will pursue regulatory development when practical.”

Several commenters on the proposed rule expressed concern that USCIS would raise fees during a time when many employment-based adjustment of status filers are experiencing long waits for their visas. USCIS attributed these long waits to visa retrogression in oversubscribed categories, noting that some have attributed it to USCIS processing inefficiencies and questioned a fee hike in the face of such delays. Others have attributed the long waits to the mismanagement of the visa allocation and coordination process between USCIS and the Department of State (DOS), and noted that many numerically limited visa numbers have gone unused.

USCIS said the notion that processing inefficiencies contribute to the long wait for visas “appears unfounded,” citing an average processing time of four months for an Application to Register Permanent Residence or Adjust Status, Form I-485. “This timeframe meets the processing goal set forth in the 2008/2009 fee rule,” USCIS said, adding that “[s]ignificant improvements have also been made in the visa coordination process between DOS and USCIS.” USCIS said that it confers with DOS monthly on pending visa demand, workload capabilities, and forecasting immigration trends. For example, USCIS noted, if its analysis finds a period of low demand in a particular visa preference category, DOS is able to respond by advancing the priority dates rapidly to ensure that all allotted visas will be used in a particular fiscal year. “USCIS and DOS continue to consider ideas and options to further improve the visa coordination process between the two and reduce the occurrence of visa retrogression or future unused numbers,” USCIS said.

Some commenters also suggested that USCIS recapture unused visa numbers from recent years as a way to reduce the backlog of pending adjustment of status cases. By recapturing these numbers, they suggested, visa priority cut-off dates would advance, allowing for many new filings and thereby increasing USCIS revenue without a need to raise fees. USCIS noted, however, that the authority to recapture any unused visa numbers from previous years resides with Congress and is not available to USCIS as an administrative remedy. Moreover, increasing the number of filings concurrently increases the amount of work to be performed, thus consuming the fees generated. “Even if legally possible, this solution would not be practical,” USCIS said.

Due to the long wait for visa numbers in particular categories, several commenters disagreed with a fee hike because costs would rise for intending immigrants either seeking to maintain their status in the U.S. or receiving ongoing interim benefits while awaiting visa numbers. USCIS noted, however, that U.S. employers may not recoup the costs required to file for a nonimmigrant employee or his or her extension or change of status; thus, the costs are borne by the employer and not the intending immigrant seeking to maintain status. Furthermore, USCIS said, applicants for adjustment of status who request advance parole and employment authorization are exempt from payment of additional fees while their I-485s are pending.

USCIS said it acknowledges that employment-based I-485 filers who filed under the old fee structure, before August 18, 2007, must continue to pay fees associated with interim benefits. USCIS noted that it has no control over DOS’s allocation of visa numbers or the yearly visa numerical limits established by Congress, but said the agency is “sympathetic to those who have pending adjustment of status applications in categories experiencing extreme visa retrogression.” To alleviate the burden, USCIS initiated a policy in June 2008 of a two-year validity period on employment authorization documents for these affected individuals, “effectively reducing ongoing costs for the benefit by an estimated 50 percent.” USCIS said it is further adopting a policy whereby “those same affected individuals may receive an advance parole document with a two-year validity period to further alleviate their filing burdens. The number of filers affected by FY 2007 visa retrogression continues to decline as visa numbers are allocated.”

One commenter suggested the creation of a variable fee structure depending on the wait for a visa number. USCIS said this would be impractical.

A number of commenters requested that USCIS offer multi-year employment authorization documents (Forms I-765) and travel documents (Forms I-131). Commenters cited the financial burden of submitting multiple applications for both services while their adjustment of status cases are pending. Some commenters also mentioned the administrative burden created when trying to time the filing of the documents so as not to produce instances of overlapping validity.

USCIS said it “has no interest in artificially limiting the validity periods of these documents,” pointing out that in many instances, these validity periods are directly related to the length of the underlying status that created eligibility for the associated benefits. “For example, a permanent resident who remains outside the United States for more than one year may be questioned on his or her return based on the validity of his or her Permanent Resident Card, Form I-551,” USCIS noted. “If that individual applied for a reentry permit before departure from the foreign country, and the application is granted, then the one-year validity of the Form I-551 is extended to two years.” USCIS noted that the current two-year validity of the reentry permit matches this period. Issuing it for a longer validity period “could create confusion and result in some permanent residents remaining abroad for too long and potentially jeopardizing their status. The validity period of a travel document or EAD is generally linked to the validity period of the relating immigration status.”

The final rule, which contains a table showing the fee changes and additional details on how the new fees were calculated, is available at http://edocket.access.gpo.gov/2010/pdf/2010-23725.pdf. A related announcement, fact sheet, and Q&A are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e
66f614176543f6d1a/?vgnextoid=53173dc5cb93b210VgnVCM100000082ca
60aRCRD& vgnextchannel= 68439c7755cb9010VgnVCM10000045f3d6a
1RCRD
, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543
f6d1 a/ ?vgnextoid=5be73dc5cb93b210VgnVCM100000082ca60aRCRD&
vgnextchannel= 68439c7755cb9010VgnVCM10000045f3d6a1RCRD
, and http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543
f6d1 a/ ?vgnextoid=67b73dc5cb93b210VgnVCM100000082ca60aRCRD&
vgnextchannel= 68439c7755cb9010VgnVCM10000045f3d6a1RCRD
, respectively.

2. 2012 Diversity Visa Lottery Program Registration Begins in October

The online registration period for the DV-2012 diversity visa lottery begins at 12 noon eastern time, Tuesday, October 5, 2010, and ends at 12 noon eastern time, Wednesday, November 3, 2010. The Department of State strongly encourages applicants not to wait until the last week of the registration period to enter, because heavy demand may result in online delays and missing the deadline.

For DV 2012, entrant notification will be through the Entry Status Check at http://www.dvlottery.state.gov. Entrants selected will receive further instructions in the mail, including information on fees connected with immigration to the U.S. The “Selection of Applicants” section in the instructions provides information about the DV timeframe and process.

The Department’s announcement notes that there have been instances of fraudulent Web sites posing as official U.S. government sites. Also, some companies posing as the U.S. government have sought money in order to “complete” lottery entry forms. “There is no charge to download and complete the Electronic Diversity Visa Entry Form. The Department of State notifies successful Diversity Visa applicants by letter, and NOT by e-mail,” the announcement notes.

The announcement, with links to the instructions and to DV-2010 and DV-2011 results, is available at http://travel.state.gov/visa/immigrants/types/types_1322.html. The instructions are available at http://travel.state.gov/visa/immigrants/types/types_1318.html.

3. DOS Solicits Comments on Nonimmigrant Treaty Trader/Investor Application

The Department of State has submitted the Nonimmigrant Treaty Trader/Investor Application (DS-156E) to the Office of Management and Budget for approval to extend its validity, and seeks public comments for up to 30 days from September 23, 2010. Copies of the document may be obtained from Stefanie Claus, Office of Visa Services, U.S. Department of State, 2401 E Street, NW, L-603, Washington, DC  20522; telephone (202) 663-2910. Comments should be submitted by one of the methods set forth in the notice, which appears at http://edocket.access.gpo.gov/2010/pdf/2010-23811.pdf.

4. FY 2011 Visa Numbers Available on October 1, 2010; DOS Updates China Reciprocity Schedule

The Department of State sent a memorandum to USCIS on September 15, 2010, noting that effective September 16, there would be no further authorizations of visa numbers for any family preference category, or for employment second, third, third “other workers,” fourth, and fourth “certain religious worker” cases for the remainder of fiscal year (FY) 2010. Numbers once again are available for all of these categories as of October 1, 2010, under the FY 2011 annual numerical limitation. The memo stated that USCIS could continue to process the cases received and that they would be held in the Visa Office’s “Pending Demand” file. “All eligible pending demand cases will be automatically authorized based on the FY-2011 cut-off dates which are announced.”

Also, the Department amended its visa reciprocity schedule for China to allow for 12-month multiple-entry visas for H visa applicants instead of the previous 3-month, 2-entry visa. The updated reciprocity schedule and guide for China is available at http://travel.state.gov/visa/fees/fees_4881.html?cid=3537.

5. DOS Issues Travel Warning for Mexico

The Department of State issued a travel warning on September 10, 2010, to inform U.S. citizens traveling to and living in Mexico about the security situation there. Among other things, the status of authorized departure of family members of U.S. government personnel from U.S. Consulates in the northern Mexico border cities of Tijuana, Nogales, Ciudad Juarez, Nuevo Laredo, Monterrey, and Matamoros ended on September 10 following the expiration of the maximum 180-day period. Based on a security review in Monterrey following an August shooting in front of the American Foundation School in Monterrey and the high incidence of kidnappings in the Monterrey area, U.S. government personnel from the Consulate General have been advised that the immediate, practical, and reliable way to reduce the security risks for all children is to remove them from Monterrey. As of September 10, 2010, the Consulate General in Monterrey is a partially unaccompanied post, meaning no minor dependents of U.S. government employees are permitted to remain in the city. This travel warning supersedes the warning for Mexico dated August 27, 2010, to note the lifting of Authorized Departure status for U.S. Consulates along the U.S.-Mexico border.

The warning, which discusses many other details about the security situation in Mexico and along the border, is available at http://travel.state.gov/travel/cis_pa_tw/tw/tw_4755.html.

6. Dep’t of State Updates Guidance on Medical Grounds of Inadmissibility

Following an update by the Centers for Disease Control and Prevention (CDC) to its technical instructions, the Department of State (DOS) has updated guidance in the Foreign Affairs Manual (FAM) concerning medical grounds of inadmissibility and issued a corresponding cable to the field.

The cable notes that the CDC updated the Technical Instructions for Physical or Mental Disorders with Associated Harmful Behavior and Substance Related Disorders (2010 MH TIs) effective June 1, 2010. Those instructions supersede all previous guidance on physical or mental disorders and substance related disorders. The major revisions in the 2010 MH TIs include changes to the methods of diagnosis of mental disorders and substance-related disorders, the definition and determination of remission, and the alcohol abuse evaluation. The DOS cable includes updates to 9 FAM resulting from this change to the technical instructions.

The CDC’s updated technical instructions for panel physicians are available at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/panel/mental-panel
-technical-instructions.html
. The updated portion of the FAM is available at http://www.state.gov/documents/organization/86936.pdf.

7. USCIS Discusses Effects of Invalid Puerto Rico Birth Certificates on I-9 Process

On July 1, 2010, the Vital Statistics Office of the Commonwealth of Puerto Rico began issuing new, more secure certified copies of birth certificates to U.S. citizens born in Puerto Rico because of a new Puerto Rico birth certificate law. After September 30, 2010, all certified copies of Puerto Rico birth certificates issued before July 1, 2010, will become invalid. However, U.S. Citizenship and Immigration Services (USCIS) noted in recent guidance that employers should not re-verify the employment eligibility of existing employees who presented a certified copy of a Puerto Rico birth certificate for I-9 purposes and whose employment eligibility was verified on the I-9 before October 1, 2010.
USCIS noted that the new law does not affect the U.S. citizenship status of individuals born in Puerto Rico. It only affects the validity of certified copies of Puerto Rico birth certificates. The guidance notes:

New Employees

  • All certified copies of Puerto Rico birth certificates are acceptable for Form I-9 purposes through September 30, 2010.
  • Beginning October 1, 2010, only certified copies of Puerto Rico birth certificates issued on or after July 1, 2010, are acceptable for Form I-9 purposes.
  • Beginning October 1, 2010, if an employee presents for List C a birth certificate issued by the Vital Statistics Office of the Commonwealth of Puerto Rico, the employer must look at the date that the certified copy of the birth certificate was issued to ensure that it is still valid.

Existing Employees

Employers must not re-verify the employment eligibility of existing employees who presented a certified copy of a Puerto Rico birth certificate for Form I-9 purposes and whose employment eligibility was verified on Form I-9 before October 1, 2010.

Federal Contractors

Employers awarded a federal contract that contains the Federal Acquisition Regulation (FAR) E-Verify clause have special Form I-9 rules for the verification of existing employees.

  • If completing new Forms I-9 for existing employees, certified copies of Puerto Rico birth certificates are acceptable as a List C document under the following circumstances:
    • Until October 1, 2010, all certified copies of Puerto Rico birth certificates are acceptable for Form I-9 purposes.
    • Beginning October 1, 2010, only certified copies of Puerto Rico birth certificates issued on or after July 1, 2010, are acceptable for Form I-9 purposes.
  • If updating existing Forms I-9, an employer must not ask an employee to present a new certified copy of a Puerto Rico birth certificate if the employee presented a certified copy of a birth certificate issued in Puerto Rico before July 1, 2010 that was valid and acceptable for the Form I-9 at the time it was presented.

    See the E-Verify Supplemental Guide for Federal Contractors for more information on E-Verify and FAR requirements.

How will this law affect the retention of documents with Form I-9?

The new law prohibits Puerto Rico employers from keeping original certified copies of birth certificates issued in Puerto Rico but allows employers to keep photocopies of these documents. Employers who choose to make photocopies of documents that their employees present when completing Form I-9 must do so for all employees, regardless of national origin or citizenship status.

The USCIS guidance, released on September 9, 2010, is available at http://www.uscis.gov/portal/site/uscis/menuitem. 5af9bb95919 f35e66f614176543f6d1a/?vgnextoid=45e3285ca77fa210VgnVCM100000082
ca60aRCRD&vgnextchannel=68439c7755cb9010
VgnVCM10000045f3d6a1RCRD
.

8. ICE Approves Special Relief for Certain F-1 Haitian Students

U.S. Immigration and Customs Enforcement (ICE) has approved special relief for certain F-1 Haitian students who have suffered severe economic hardship as result of the January 12, 2010, earthquake in Haiti. This relief applies only to students who were lawfully present in the United States in F-1 status on January 12, and enrolled in an institution that is certified by ICE’s Student and Exchange Visitor Program.

The suspension of certain regulatory requirements allows eligible Haitian F-1 students to obtain employment authorization, work an increased number of hours during the school term and, if necessary, reduce their course load while continuing to maintain their F-1 student status.

F-1 students granted employment authorization by means of the notice will be deemed to be engaged in a full course of study if they meet the minimum courseload requirements specified in the notice.

“We want to ensure that students from Haiti, who were here at the time of January’s tragic events, are able to concentrate on their studies without the worry of financial burdens created by the devastation of the earthquake,” said Louis Farrell, director of the Student and Exchange Visitor Program. “These students have the full support of SEVP [the Student and Exchange Visitor Program] and designated school officials for assistance.”
ICE manages SEVP and the Student and Exchange Visitor Information System.

An ICE press release announcing the relief is available at http://www.aila.org/content/default.aspx?bc=1016%7C6715%7C12053%
7C26286% 7C32985
.

9. U.S. Mission in Canada Announces New Appointment Service for Visa Applicants Coming to U.S.

The U.S. Mission in Canada is transitioning to a new appointment service for applicants applying for a visa to come to the United States. As of September 1, 2010, all services, including calling for information and scheduling an appointment, are being provided at no additional cost, with no requirement that applicants pay phone charges or use PIN numbers to access such services. Applicants should go to http://www.usvisa-info.com/en-CA/selfservice/ss_country_welcome to obtain information online or via telephone on how to start their application for a U.S. visa at a consular section in Canada.

Beginning September 1, 2010, applicants must pay their machine-readable visa (MRV) fee before scheduling an appointment. If the applicant has paid the MRV fee before September 1, 2010, but has not scheduled an appointment, there is a grace period from September 1, 2010, until October 1, 2010 during which the applicant can still use the MRV fee for appointment scheduling. If the applicant does not schedule an appointment before October 1, 2010, he or she will have to pay the MRV fee again through the new service to schedule an appointment.

The announcement and related links are available at http://www.consular.canada.usembassy.gov/new_appointment_service.asp.

10. ABIL Global (www.abil.com): Repercussions of the Global Economic Crisis on Mexican Immigration Policies

Due to Mexico’s close interconnection with the United States, the economic crisis has begun to have a significant and profound effect on the domestic economy in Mexico. There have been no specific changes in the immigration laws in Mexico thus far; however, immigration authorities have become stricter in their adherence to one immigration law in particular that regulates the proportion of Mexican and foreign employees in a company legally established in Mexico.

The number of foreign employees in a company in Mexico is regulated by the corresponding legal immigration guidelines. This restriction is established in Article 7 of the Federal Labor Law, which is also supported by Article 123(A) of the Mexican Constitution regarding the rights and obligations of employees. This legal disposition restricts the percentage of foreigners working in a company to a maximum of 10 percent of the total workforce to allow for greater job opportunities for Mexican personnel in areas such as industrial production and other business sectors. Under these terms, a company or establishment’s workers must be 90 percent Mexican.
Some important points to highlight include:

  1. In the technician and professional categories, all workers must be Mexican, except when Mexican personnel with a particular specialization are not available. Under this scenario, foreigners may be authorized on a temporary basis in a proportion that does not exceed 10 percent of such specialists.
  2. The supervisor and foreign workers must have a sole obligation to the Mexican workers in such areas of specialization. The purpose of this policy is to train Mexican personnel in areas in which they do not have expertise or knowledge. In this manner, the domestic trained labor force is expected to grow and to continue to become more specialized in coordination with the foreign labor force.
  3. Medical doctors who provide their services to companies in Mexico must all be Mexican.
  4. All directors, administrators, and general managers are exempt from inclusion in the total computation of the proportion of Mexican to foreign workers. This is because these positions are considered to be key positions and essential to the development of business for the company in Mexico.

Mexican immigration authorities are very particular about the application of this immigration policy, now more than ever. Currently, they allow no flexibility in the percentages mentioned in this article. The main purpose of this regulation is to protect the domestic labor force from being displaced in a disproportionate manner by the foreign work force, especially in these times of economic uncertainty.

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FILING AND ADJUDICATION OF MOTIONS TO REOPEN AND RECONSIDER AFTER DEPARTURE FROM THE UNITED STATES

As interpreted by the Board of Immigration Appeals (ТBIAУ), regulations in effect for more than 50 years have long been thought to prevent an alien who has departed the United States under an order of removal from filing a motion to reopen or reconsider a decision of the BIA or an Immigration Judge (ТIJУ), or continuing to pursue such a motion that was previously filed.  Recent caselaw, however, indicates that this rule is not as uniform as many had previously supposed.

The traditional view can be readily gleaned from the text of the current regulation governing motions before the BIA:

    A motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion.

8 C.F.R. ¤ 1003.2(d).  A similar regulation, 8 C.F.R. ¤ 1003.23(b)(1), applies to motions before an IJ.  The BIA explained in Matter of Armendarez, 24 I&N Dec. 646 (BIA 2008) that in its view, these regulations and their predecessors dating back to 1952, as interpreted in its caselaw, establish Тthat reopening is unavailable to any alien who departs the United States after being ordered removed.У1  Under this traditional view of what is sometimes referred to as the Тdeparture barУ, departure from the United States, whether voluntarily or through forcible deportation, results in the withdrawal of any pending motions and precludes the filing of future motions.

The traditional view, however, has not survived entirely intact in recent years.  Although the trend is not a uniform one, a substantial number of Court of Appeals and BIA cases have opened up the possibility that certain aliens may be able to file or pursue motions to reopen and reconsider even after departing from the United States.

One exception to the departure bar, recognized by the BIA itself subsequent to Matter of Armendarez, is of nationwide application.  In Matter of Bulnes-Nolasco, 25 I&N Dec. 57 (BIA 2009), the BIA distinguished the case in which a motion is made to rescind an order of deportation or removal that was issued in the respondentХs absence, where the motion is based on the respondentХs claim of lack of notice of the proceedings.  In such a case, the BIA explained, Т[a]n in absentia . . . order issued in proceedings of which the respondent had no notice is voidable from its inception and becomes a legal nullity upon its rescission, with the result that the respondent reverts to the same immigration status that he or she possessed prior to entry of the order.У2  Thus, the BIA held Тthat an alien’s departure from the United States while under an outstanding order of deportation or removal issued in absentia does not deprive the Immigration Judge of jurisdiction to entertain a motion to reopen to rescind the order if the motion is premised on lack of notice.У3

Beyond this exception, several Courts of Appeals have recognized the ability of an alien to reopen even an order issued with proper notice.  These cases fall essentially into two categories: those which allow the filing of a motion to reopen or reconsider subsequent to an alienХs departure, and those which hold only that a motion filed before the alienХs departure remains viable if the departure is a result of forcible deportation by the Department of Homeland Security (DHS).

The Court of Appeals for the Fourth Circuit, whose jurisdiction encompasses Maryland, Virginia, West Virginia, North Carolina, and South Carolina, held in William v. Gonzales that the general bar on post-departure motions to reopen contained in 8 C.F.R. ¤ 1003.2(d) is categorically invalid because it conflicts with the governing statute.  Specifically, the Fourth Circuit found a conflict with INA ¤ 240(c)(7)(A), also known as 8 U.S.C. ¤ 1229a(c)(7)(A), which states, inter alia, that Т[a]n alien may file one motion to reopen proceedings under this section….У.  As the Fourth Circuit explained:

      We find that ¤ 1229a(c)(7)(A) unambiguously provides an alien with the right to file one motion to reopen, regardless of whether he is within or without the country. This is so because, in providing that Т

an alien

      may file,У the statute does not distinguish between those aliens abroad and those within the country-both fall within the class denominated by the words Тan alien.У Because the statute sweeps broadly in this reference to Тan alien,У it need be no more specific to encompass within its terms those aliens who are abroad. Thus, the Government’s view that Congress was silent as to the ability of aliens outside the United States to file motions to reopen is foreclosed by the text of the statute.FN2 The statutory language

does

      speak to the filing of motions to reopen by aliens outside the country; it does so because they are a subset of the group (

i.e.

      Тalien[s]У) which it vests with the right to file these motions. Accordingly, the Government’s view of ¤ 1229a(c)(7)(A) simply does not comport with its text and cannot be accommodated absent a rewriting of its terms.

4

This holding was deemed unpersuasive by the BIA in Matter of Armendarez, and was specifically rejected by the Court of Appeals for the Tenth Circuit (covering Utah, Colorado, Wyoming, Kansas, Oklahoma, and New Mexico) in Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir. 2009), but it is still binding for cases arising within the jurisdiction of the Fourth Circuit.5  The same argument could also be pursued in circuits that have not yet addressed the issue.

The Court of Appeals for the Ninth Circuit, in Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007), limited the reach of the departure bar through a different sort of logic.  The departure-bar regulation as written, that court pointed out, Тis phrased in the present tense and so by its terms applies only to a person who departs the United States while he or she Фis the subject of removal … proceedings.ХУ6  Thus, it should not bar a motion to reopen by someone whose removal proceedings have already concluded and who has been removed.  The BIA subsequently rejected this holding in Matter of Armendarez, claiming the authority under Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) to refuse to apply it even within the jurisdiction of the Ninth Circuit (Alaska, Hawaii, California, Washington, Oregon, Idaho, Montana, Nevada and Arizona).  However, aliens and attorneys within the jurisdiction of the Ninth Circuit may wish to challenge this refusal in the Court of Appeals.

Most recently, the Court of Appeals for the Seventh Circuit, with jurisdiction over Illinois, Indiana, and Wisconsin, limited the effect of the departure bar on yet a third ground.  In Marin-Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010), that court held that while the departure bar might be justifiable as a categorical exercise of the BIAХs discretion if the BIA chose to justify it in that way, it could not be justified based on the BIAХs purported lack of jurisdiction because an agency may not contract its own jurisdiction by regulation.  Unless and until the BIA rethinks the theoretical basis for the departure bar, therefore, motions to reopen survive will survive an alienХs departure in the Seventh Circuit as well.

Even Courts of Appeals which are not prepared to go as far as a blanket rejection of the departure bar sometimes take a stricter view when what is at issue is the BIAХs claim that an alienХs already-filed motion to reopen or reconsider was rendered void by DHSХs forcible removal of that alien from the United States.  Because this reading of the regulations allows DHS, a party to the removal proceedings, to preclude a type of challenge to those proceedings by its own unilateral action, it is particularly lacking in intuitive appeal, and it has been rejected by the Sixth Circuit (covering Michigan, Ohio, Kentucky and Tennessee), in Madrigal v. Holder, 572 F.3d 239 (6th Cir. 2009), and the Ninth Circuit, in Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010).  As Judge Kethledge said in his concurring opinion in Madrigal, quoted in Coyt:  ТThe government forcibly removed Maria Madrigal from the United States, and now claims she abandoned her appeal because she left the country. To state that argument should be to refute it. . . .У7  Unlike the decision in Lin, the Ninth CircuitХs decision in Coyt has not been rejected by the BIA under Brand X, so forcible removal does not withdraw a motion to reopen or reconsider in either the Sixth or Ninth Circuits.

It is important to note that these exceptions to the departure bar may not apply equally to all sorts of motions to reopen.  Some Courts of Appeals, while not specifically rejecting cases such as William and Madrigal, have held that the logic of those cases can at most only extend to motions to reopen (or reconsider) which are timely filed or fall under one of the exceptions to the filing time limit, as opposed to requests that the BIA sua sponte (that is, on its own motion) reopen a case in which an ordinary motion to reopen would be time-barred.  The Court of Appeals for the Fifth Circuit (with jurisdiction over Texas, Louisiana and Mississippi), in Ovalles v. Holder, 577 F.3d 288 (5th Cir. 2010), and most recently the Court of Appeals for the Second Circuit (with jurisdiction over New York, Connecticut and Vermont), in Zhang v. Holder, ___ F.3d ___, Docket No. 09-2628-ag, 2010 WL 3169292, have drawn this distinction, and have thus so far avoided either accepting or rejecting William and the Madrigal/Coyt line of cases.

In the context of a motion to reopen which is filed within 90 days of the final order of removal or which is said to fall into one of the exceptions to that time limit other than the BIAХs authority to reopen sua sponte, however, such cases as William and Marin-Rodriguez provide arguments worth pursuing even outside the Fourth and Seventh Circuits, so long as one is also outside the Tenth Circuit (which, as noted above, has already upheld the departure bar).8  No Court of Appeals, moreover, appears yet to have accepted the BIAХs counterintuitive argument, rejected in Madrigal and Coyt, that forcible removal can ТwithdrawУ a timely filed motion to reopen.  Although pursuing post-departure motions in those portions of the United States where a Court of Appeals has not spoken on the issue may require a willingness to bring the issue all the way to the appropriate Court of Appeals, it is an option that respondents in removal proceedings, and their attorneys, should keep firmly in mind.


* David A. Isaacson is an Associate at Cyrus D. Mehta & Associates, P.L.L.C., where he practices primarily in the area of immigration and nationality law.  DavidХs practice includes asylum cases, other removal proceedings such as those based on criminal convictions or denied applications for adjustment of status, and federal appellate litigation, as well as a variety of family-based and employment-based applications for both nonimmigrant visas and permanent residence.  David also assists clients in citizenship matters and late legalization matters.  He is a graduate of Yale Law School, where he served as a Senior Editor of the Yale Law Journal.  Following law school, David clerked for the Honorable Leonard B. Sand of the United States District Court for the Southern District of New York, and then worked in the Litigation Department at the law firm of Davis Polk & Wardwell, where he devoted a significant amount of time to pro bono immigration matters.  David is the author of Correcting Anomalies in the United States Law of Citizenship by Descent, 47 Ariz. L. Rev. 313 (2005), reprinted in 26 Immigr. & Nat’lity L. Rev. 515 (2006).  He is admitted to practice in New York and New Jersey, in the Courts of Appeals for the Second and Third Circuits, and in the U.S. District Courts for the Southern and Eastern Districts of New York and the District of New Jersey, and is a member of the American Immigration Lawyers Association.

1 24 I&N Dec. at 648 (citing Immigration and Nationality Regulations, 17 Fed. Reg. 11,469, 11,475 (Dec. 19, 1952) (codified at 8 C.F.R. ¤ 6.2); 8 C.F.R. ¤ 1003.2(d) (2008); 8 C.F.R. ¤ 1003.23(b)(1) (2008); Matter of G-N-C-, 22 I&N Dec. 281, 288 (BIA 1998); Matter of Okoh, 20 I&N Dec. 864, 864-65 (BIA 1994); Matter of Estrada, 17 I&N Dec. 187, 188 (BIA 1979), rev’d on other grounds, Estrada-Rosales v. INS, 645 F.2d 819 (9th Cir. 1981); Matter of Palma, 14 I&N Dec. 486, 487 (BIA 1973); and Matter of Yih-HsiungWang, 17 I&N Dec. 565 (BIA 1980)).

2 25 I&N Dec. at 59.

3 Id. at 60.

4 William, 499 F.3d at 332.

5 See Matter of Armendarez, 24 I&N Dec. at 660.  The BIA likely did not feel free to disregard the Fourth CircuitХs decision in cases arising within its jurisdiction because the decision in William  was based on what the Fourth Circuit thought to be the unambiguous text of the statute, and thus Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), did not apply.

6 Lin, 473 F.3d at 982.  The opinion in Lin quotes 8 C.F.R. ¤ 1003.23(b)(1), the regulation pertaining to motions to reopen before an Immigration Judge, but the language of 8 C.F.R. ¤ 1003.2(d), pertaining to motions before the BIA, is in relevant part identical.

7 Madrigal, 572 F.3d at 245-246 (Kethledge, Circuit Judge, concurring), quoted in Coyt, 593 F.3d at 907.

8 The Court of Appeals for the First Circuit, in Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir 2007), rejected an argument superficially similar to that made in William, but, as the Fourth Circuit noted in its decision in William, 499 F.3d at 322 n.1, the First Circuit in Pena-Muriel does not appear to have been confronted with the specific statutory argument at issue in William.  Thus, the issue may still be open in the First Circuit.

September 2010 Immigration Update

Headlines:

Details…

1. USCIS Implements H-1B, L-1 Fee Increases

On August 13, 2010, President Barack Obama signed into law provisions to increase certain H-1B and L-1 petition fees. Effective immediately, the provisions require an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010. The increases will remain in effect through September 30, 2014.

The additional fees apply to petitioners who employ 50 or more employees in the U.S. with more than 50 percent of their employees in the U.S. in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status. Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:

  • initially to grant a worker nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15), or
  • To obtain authorization for a worker having such status to change employers.

USCIS is revising the Petition for a Nonimmigrant Worker (Form I-129) and instructions to comply with the new law (Public Law 111-230). To facilitate implementation, USCIS recommends that all H-1B, L-1A, and L-1B petitioners, as part of the filing packet, include the new fee or a statement of other evidence outlining why the new fee does not apply. USCIS requests that petitioners state whether the fee is required in bold capital letters at the top of the cover letter. If USCIS does not receive such explanation and/or documentation with the initial filing, it may issue a Request for Evidence (RFE) to determine whether the petition is covered by the law. An RFE may be required even if such evidence is submitted, if questions remain.

The additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee, needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.

USCIS’s announcement is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?
vgnextoid=27eac9514bb8a210VgnVCM100000082ca60aRCRD&vgnextchannel=684
39c7755cb9010VgnVCM10000045f3d6a1RCRD
.

For further commentary and articles from the CDMA Law Firm, see
USCIS ISSUES GUIDANCE ON INCREASE IN H-1B AND L FEES
,
http://cyrusmehta.blogspot.com/2010/08/uscis-issues-guidance-on-increase-in-h.html
THE WORLD ACCORDING TO SENATOR SCHUMER: IF IT’S NOT A CHOP SHOP, IT’S A BODY SHOP,
http://cyrusmehta.blogspot.com/2010/08/world-according-to-senator-schumer-if.html  
SILENCE IN A TIME OF TORMENT: THROWING INDIAN IT FIRMS UNDER THE BUS, http://cyrusmehta.blogspot.com/2010/08/silence-in-time-of-torment-throwing.html 

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2. Dep’t of State Finalizes Rule on Electronic Application Alternative for Immigrant Visas

The Department of State has issued a final rule, effective August 3, 2010, on electronic applications. The agency has developed and introduced an electronic application process for immigrant visa applicants to eventually replace the current paper-based application process, which consists of Parts 1 and 2 of Form DS-230, Application for Immigrant Visa and Alien Registration. The Department will continue to accept the DS-230 when necessary, but plans to eliminate the DS-230 eventually and replace it with the DS-260, Electronic Application for Immigrant Visa and Alien Registration, which is designed to be completed and signed electronically.

The final rule’s supplementary information explains that the procedure is the same for the immigrant visa applicant, except that he or she will not be required to print a form to take to the visa interview. All information entered into the DS-260 will be available to the National Visa Center and to the consular officer at the time of application processing and interviewing. The applicant must sign the DS-260 electronically at the time of submission by clicking a “Sign and Submit Application” box in the application. The applicant will also be required at the interview to swear under oath that the information provided on the DS-260 is true, and to provide a biometric signature. Photos, passports, and fingerscans collected as part of the application process will identify the applicant.

A third party may assist the applicant in preparing the DS-260, but the applicant must electronically sign the application. The applicant must identify in the application any third party who has assisted in the preparation of the DS-260.

The final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-19046.pdf.

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3. Dep’t of Labor Releases Round 11 of Permanent Labor Certification FAQ

The Department of Labor’s Office of Foreign Labor Certification released frequently asked questions on permanent labor certification, round 11, on August 3, 2010. Topics include the lack of an expedited filing option, documenting the use of an employee referral program as a step in recruitment for a professional occupation, the effects of submitting unsolicited documentation, and the definition of a “business day.”

The FAQ is available at
http://www.foreignlaborcert.doleta.gov/pdf/PERM_Faqs_Round_ll_0803201O.pdf.

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4. USCIS Changes Filing Location for Several Forms

U.S. Citizenship and Immigration Services (USCIS) has changed the filing location and updated filing procedures for several forms, including among others the Immigrant Petition for Alien Entrepreneur (Form 1-526), the Immigrant Petition for Alien Worker (Form 1-140), and the Application to Extend/Change Nonimmigrant Status (Form 1-539). Details are available for the 1-526 at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176 543f6dla/?
vgnextoid=0eba904c2593a210VgnVCM100000082ca60aRCRD& vgnextchannel=68
439c7755cb9010VgnVCM10000045f3d6alRCRD
; for the 1-140 at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f61417 6543f6dla/?v
gnextoid=eld8904c2593a210VgnVCM100000082ca60aRCRD& vgnextchannel=68439
c7755cb9010VgnVCM10000045f3d6alRCRD
; and for the 1-539 at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f61417 6543f6dla/?v
gnextoid=9d49904c2593a210VgnVCM100000082ca60aRCRD& vgnextchannel=6843
9c7755cb9010VgnVCM10000045f3d6alRCRD
.


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5. CBP Clarifies TN Extensions of Stay While Immigrant Petition Is Pending/Approved

A 2008 letter just recently released from U.S. Customs and Border Protection has clarified that Trade NAFTA (TN) applicants may be admitted and extend their stay while an immigrant petition is pending or approved, provided that they have not filed for adjustment or an immigrant visa – i.e., had an immigrant visa interview – and do not intend to immigrate on this specific visit. Once a TN files an application for an immigrant visa or adjustment of status, the letter notes, the TN would no longer be eligible for admission or an extension of stay as a TN nonimmigrant.

This is consistent with a practice that has not always been followed. A 1996 letter sent by a legacy Immigration and Naturalization Service official stated that the fact that an TN applicant is the beneficiary of an approved I-140 petition is not by itself a reason to deny an application for adjustment, extension, or readmission, if the individual’s intent is to remain in the U.S. temporarily. Some CBP officers, however have not always followed that advice.

The recently released CBP letter was sent on April 21, 2008, from Paul M. Morris, Executive Director, CBP Admissibility and Passenger Programs, to Charles D. Herrington, Senior Assistant General Counsel, Micron Technology, Inc. The letter states that “the mere filing or approval of an immigrant petition does not automatically constitute intent on the part of the beneficiary to abandon his or her foreign residence. This would hold for a TN principal who may be riding on a spouse’s immigrant petition.”

The 2008 CBP letter is available at http://www.abil.com/articles/ABIL%20Report%20-%20TN.pdf.

6. Smartsoft Agrees To Pay Nearly $1 Million in Back Wages, Interest

Smartsoft International Inc., a computer consulting company based in Suwanee, Georgia, has agreed to pay nearly $1 million in back wages and interest to 135 nonimmigrant workers temporarily employed by the company under the H-1B visa program, the Department of Labor (DOL) announced on August 17, 2010. The agency’s Office of the Solicitor reached the agreement following a determination by the Wage and Hour Division that the company violated the H-1B program’s rules. Smartsoft also has U.S. offices in Sunnyvale, California, and North Brunswick, New Jersey.

A Wage and Hour Division investigator determined that some employees were not paid any wages at the beginning of their employment, were paid on a part-time basis despite being hired under a full-time employment agreement, and were paid less than the prevailing wage applicable to the geographic locations where they performed their work.

The company contested the Wage and Hour Division’s conclusions and requested a formal hearing with the DOL’s Office of Administrative Law Judges. As part of the agreement, the company will drop any further challenges.

The DOL’s announcement is available at http://www.dol.gov/opa/media/press/whd/whd20101111.htm.

7. State Dept. Introduces ESTA Fee for Visa Waiver Travelers

The Department of State released a cable to the field in August 2010 that provides information on implementation of the Travel Promotion Act of 2009 (TPA), signed into law on March 4, 2010, and fee collection for the Electronic System for Travel Authorization (ESTA). Under the TPA, fees collected from international travelers from Visa Waiver Program (VWP) countries, matched by private sector contributions, will fund the Corporation for Travel Promotion. The fees will be collected through the ESTA system, which the Department of Homeland Security (DHS) administers.

On August 6, 2010, the DHS announced an interim final rule that requires travelers from VWP countries to pay operational and travel promotion fees when applying for ESTA beginning September 8, 2010. The total fee will be $14, with $4 to recover the cost of administering the ESTA system and $10 as mandated in the TPA.

The announcement, which provides additional details, is available at
http://travel.state.gov/pdf/Introduction%20of%20the%20ESTA%20fee%20for%20Visa%
20Waiver%20Travelers%20-%20August2010.pdf
.

8. DHS Expands List of Dependents of Foreign Officials Eligible for Work Authorization

The Department of Homeland Security (DHS) published a final rule on August 10, 2010, amending its regulations governing the employment authorization for dependents of foreign officials classified as A-1, A-2, G-1, G-3, and G-4 nonimmigrants. The rule, effective August 9, 2010, expands the list of dependents eligible for employment authorization to include any individual who falls within a category designated by the Department of State (DOS) as qualifying.

U.S. Citizenship and Immigration Services (USCIS) will only issue employment authorization documents to those dependents of foreign officials who are recognized by DOS as qualifying. Qualifying dependents must fall within a bilateral work agreement or de facto arrangement, listed on DOS’s Web site at http://www.state.gov/m/dghr/flo/c24338.htm.

To apply for employment authorization documents, eligible dependents first must obtain an endorsement from DOS on an Interagency Record of Request, Form I-566. The individual must then file the I-566 along with an Application for Employment Authorization, Form I-765, with USCIS.

The announcement is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?v
gnextoid=e9867236f9c5a210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c
7755cb9010VgnVCM10000045f3d6a1RCRD
.

9. ABIL Global (www.abil.com): UK Government Introduces Limits on Skilled Immigration

The United Kingdom (UK) announced on June 28, 2010, that it will introduce limits on the numbers of non-European Union (EU) migrants coming to the UK under both the highly skilled and the sponsored routes of the Points Based System (PBS). The new Coalition Government’s main immigration policy will mark the first-ever numerical limits on employment-related migration, which historically has been market-driven. The limits are a response to the levels of net migration to the UK, which have increased significantly since 2004 with the enlargement of the EU.

On July 19, 2010, the Government also introduced an interim limit, in effect until April 2011, aimed at reducing the number of certificates of sponsorship that each employer may assign to migrant workers under Tier 2 (General) and reducing the number of visas issued under the Tier 1 highly skilled category. Many employers, who had been allocated these certificates when they registered as licensed sponsors under the scheme, have had their allocation reduced significantly (in some cases to zero) and must now make requests for additional allocations of certificates, which the UK Border Agency states will be approved only “in exceptional circumstances.”

The interim cap is already the subject of a legal challenge. With those extending their status in the UK given priority within the limits, employers who have paid to be licensed sponsors and have taken on significant compliance duties are now left with uncertainty about whether they can sponsor new hires from outside the EU.

Permanent limits will be introduced in April 2011. The UK government is undertaking a consultation process on how the limits should be imposed and, in particular, whether this should be on a first-come, first-served basis and whether intracompany transferees and family members should be included in the overall limit. For the points-based highly skilled route, a system of pooling, under which the highest-scoring applicants are picked from the pool each month, is also being considered.

There are significant concerns among major UK business groups and companies that the limits will damage the UK’s reputation as a place to do business and its competitiveness in the global economy.

PRESIDENT SIGNS BORDER BILL THAT INCREASES FEES FOR CERTAIN COMPANIES USING MANY H-1B, L WORKERS

On August 13, 2010, President Barack Obama signed into law a border enforcement funding bill, H.R. 6080, that would offset certain border security costs by raising fees for certain H-1B and L petitions. The bill was passed in the House of Representatives by voice vote on August 10, and was passed in the Senate by unanimous consent on August 12.

The new law raises by $2,250 for L nonimmigrants the “filing fee and fraud prevention and detection fee” paid by companies that employ 50 or more employees in the U.S. if more than 50 percent of the applicant’s employees are nonimmigrants admitted on L or H-1B visas. The law also raises by $2,000 for H-1B nonimmigrants the fee paid by companies that employ 50 or more employees in the U.S. if more than 50 percent of the applicant’s employees are nonimmigrants admitted on L visas. The fee increases will take effect as soon as U.S. Citizenship and Immigration Services issues implementing instructions and will stay in effect until September 30, 2014.

Indian businesses such as Infosys and Tata are expected to feel the bill’s primary impact, and some feel it unfairly targets them. Nasscom, a trade association representing high-tech Indian companies, reportedly predicted that the legislation will result in a decrease in foreign investment in the U.S. and that educated foreign workers will seek jobs in other countries instead. The American Council on International Personnel reported that the Indian government is unhappy with the bill.

Sen. Charles Schumer (D-N.Y.) said in remarks before Senate passage of the bill, however, that “[i]f you are using the H-1B visa to innovate new products and technologies for your own company to sell, that is a good thing regardless of whether the company was originally founded in India, Ireland, or Indiana. But if you are using the H-1B visa to run a glorified international temp agency for tech workers in contravention of the spirit of the program, I and my colleagues believe that you should have to pay a higher fee to ensure that American workers are not losing their jobs because of unintended uses of the visa program that were never contemplated when the program was created.”

The full text of the bill is available at http://www.govtrack.us/congress/billtext.xpd?bill=h111-6080.

For further critical commentaries on the bill, please see: THE WORLD ACCORDING TO SENATOR SCHUMER: IF IT’S NOT A CHOP SHOP, IT’S A BODY SHOP by Gary Endelman and Cyrus D. Mehta, August 15, 2010,  http://cyrusmehta.blogspot.com/2010/08/world-according-to-senator-schumer-if.html  and SILENCE IN A TIME OF TORMENT: THROWING INDIAN IT FIRMS UNDER THE BUS by Gary Endelman and Cyrus D. Mehta, August 11, 2010, http://cyrusmehta.blogspot.com/2010/08/silence-in-time-of-torment-throwing.html

August 2010 Immigration Update

Headlines:

 

Details…

1. Preliminary Injunction Blocks Key Provisions of Arizona Immigration Statute

Following the Department of Justice’s challenge to Arizona’s recently passed immigration law, S.B. 1070, U.S. District Judge Susan Bolton of Phoenix, Arizona, issued a preliminary injunction against key provisions of the new statute. While not striking down the entire law, she blocked the provisions (1) requiring that an officer attempt to determine the immigration status of a person stopped, detained, or arrested if there is a “reasonable suspicion” that the person is unlawfully present, and requiring verification of the immigration status of any person arrested before release; (2) creating a crime for the failure to apply for or carry alien registration papers; (3) creating a crime for an unauthorized alien to solicit, apply for, or perform work; and (4) authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes him or her removable from the U.S.

Meanwhile, the New York City Bar Association issued a report concluding that the new law is unconstitutional under the Supremacy Clause and the First, Fourth, and Fourteenth Amendments.

The NYC Bar report notes that 10 states are currently contemplating similar legislation, including Utah, Georgia, Colorado, Maryland, Ohio, North Carolina, Texas, Missouri, Oklahoma, and Nebraska. The NYC Bar said that the substantive content of these state statutes, as manifested by S.B. 1070, “promotes racial profiling while infringing upon the exclusive role of the federal government to regulate immigration.” The NYC Bar noted that the Arizona statute “adopts a adopts a parallel immigration enforcement program to the one maintained by the federal government through the pretext of conflating civil and criminal provisions of the Immigration and Nationality Act.” At the same time, the NYC Bar said, “the statute fails on due process and Fourth Amendment grounds, in that it offers insufficient guidance to officials administering it as to when ‘reasonable suspicions’ of unlawful presence exist, and will target the foreign-born.”

The report urged states to resist emulating Arizona’s statute, and noted that “[f]ailure to enact comprehensive immigration reform is providing the fuel for states to overreach in this area of exclusive federal regulation.”

The preliminary injunction is available at http://images.bimedia.net/documents/SB1070-order.pdf. A report on Judge Bolton’s opinion is available at
http://www.latimes.com/news/nationworld/nation/la-na-arizona-immigration-20100
723,0,3498774.story
. The New York City Bar report is available at
http://www.nycbar.org/pdf/report/uploads/20071951-ReportonArizonaImmigratio
nLawSB1070.pdf
.

CDMAХs recent links on ArizonaХs Immigration Law are: A PRELIMINARY LOOK AT SOME OF THE CONSTITUTIONAL AND PRACTICAL PROBLEMS WITH ARIZONAХS NEW IMMIGRATION LAW by David Isaacson
http://www.cyrusmehta.com/News.aspx?SubIdx=ocyrus201042724527&Month=&From=Menu&Page=5&Year=All;  NO ROOM AT THE INN: S.B. 1070 AND THE CONSTITUTIONAL RIGHT OF INTERSTATE TRAVEL by Gary Endelman and Cyrus D. Mehta http://cyrusmehta.blogspot.com
/2010/07/no-room-at-inn-sb-1070-and.html
; and UNITED STATES v. ARIZONA: CONSTITUTION WINS OVER THE TYRANNY OF THE MAJORITY by Cyrus D. Mehta http://cyrusmehta.blogspot.com/2010/07/united-states-v-arizona-us-consitution.html

2. ICE I-9 Final Rule Allows for Electronic Signatures, Scanning, Storage

U.S. Immigration and Customs Enforcement (ICE) has issued a final rule, effective August 23, 2010, providing that employers and recruiters or referrers for a fee who are required to complete and retain the Employment Eligibility Verification Form (I-9) may sign the form electronically and retain it in an electronic format. The final rule makes minor changes to an interim final rule promulgated in 2006.

The final rule’s supplementary information notes that the completed I-9 form is not filed with the Department of Homeland Security (DHS) but is retained by the employer, who must make it available for inspection upon a request by ICE investigators or other authorized federal officials. Employers must keep the I-9 in their own files for three years after the date of hire of the employee or one year after the date that employment is terminated, whichever is later. Recruiters or referrers for a fee must keep each I-9 for three years after the date of hire. Failure to properly complete and retain each I-9 may subject the employer or recruiter or referrer for a fee to civil money penalties.

Among other things, the final rule clarifies that:

  • Employers must complete the I-9 within three business (not calendar) days;
  • Employers may use paper, electronic systems, or a combination of paper and electronic systems;
  • Employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations;
  • Employers need not retain audit trails recording each time an I-9 is electronically viewed, but only when the I-9 is created, completed, updated, modified, altered, or corrected; and
  • Employers may provide or transmit a confirmation of an I-9 transaction, but are not required to do so unless the employee requests a copy.

The final rule, which includes “performance standards” for electronic filing processes and systems, is available at http://edocket.access.gpo.gov/2010/pdf/2010-17806.pdf.

3. USCIS Clarifies ‘O’ Validity Period When Gap Exists in Itinerary

There have been several recent developments with respect to O and P visas:

On July 20, 2010, U.S. Citizenship and Immigration Services (USCIS) issued clarifying guidance on the “O” nonimmigrant visa petition with regard to determining the appropriate validity period of an approvable petition when a gap exists between two or more events reflected in the itinerary.

The memo explains that the validity dates for the O-1 visa classification are defined by the specific period of time required to perform or participate in a specific event. When reviewing an O-1 petition, the length of time between the scheduled events, also known as a gap, has sometimes been viewed as a gauge to determine whether an itinerary represented one continuous “event” or separate events requiring separate petitions.

In certain cases where there has been a significant gap between events, adjudicators have sometimes concluded that a single petition was filed for separate events rather than a continuous event. In such cases, the petition may have been approved only for a validity period equal to the length of time needed to accomplish what appeared to be the initial specific event rather than the continuous event as represented by the petition.

The memo notes that there is no statutory or regulatory authority for the proposition that a gap of a certain number of days in an itinerary automatically indicates a new event. “The regulations speak in terms of tours and multiple appearances as meeting the ‘event’ definition.” The statutory and regulatory background provides flexibility on the length of validity period that may be granted, the memo states:

“The statute and regulations allow for an approval of an O-1 petition for a period necessary to accomplish the event or activity, not to exceed 3 years. Adjudicators should evaluate the totality of the evidence submitted to determine if the activities described in the itinerary are related in such a way that they would be considered an ‘event’ for purposes of the validity period. When the validity period requested is established though the submission of appropriate evidence, Service Centers should approve a petition for the length of the validity period requested where the law and regulations permit.”

The memo is available at
http://www.uscis.gov/USCIS/Laws/Memoranda/2010/July/guidance-O-petition-g
ap_memo-07-20-10.pdf
.

In other news, USCIS promised during a public meeting with stakeholders on July 20, 2010, that processing times for regularly filed O and P visas for performers and athletes will not exceed 14 days. In some previous cases, adjudications reportedly have taken up to four months, and delays have led to last-minute scrambles and missed performances. Although arts groups say more needs to be done, many were hopeful about this recent development. The Performing Arts Alliance said it was “extremely pleased with this week’s breakthrough.”

For more, see http://www.nytimes.com/2010/07/23/arts/music/23visa.html and http://www.tcg.org/advocacy/alert.cfm.

4. USCIS Extends Initial Registration Period for Haitian TPS, Extends TPS Designation for El Salvador

On January 21, 2010, the Department of Homeland Security (DHS) designated Haiti under the temporary protected status (TPS) program for a period of 18 months. DHS initially established a 180-day registration period from January 21, 2010, through July 20, 2010. A new notice extends the TPS registration period through January 18, 2011.

Also, USCIS extended the designation of El Salvador for TPS for 18 months, from its current expiration date of September 9, 2010, through March 9, 2012. The notice also sets forth procedures necessary for nationals of El Salvador (or those having no nationality who last habitually resided in El Salvador) with TPS to re-register and to apply for an extension of their employment authorization documents (EADs) with USCIS. Re-registration is limited to persons who previously registered for TPS under the designation of El Salvador and whose applications have been granted or remain pending. Certain nationals of El Salvador (or those having no nationality who last habitually resided in El Salvador) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions.

New EADs with a March 9, 2012, expiration date will be issued to eligible Salvadoran TPS beneficiaries who timely re-register and apply for EADs. Given the timeframes involved with processing TPS re-registration applications, USCIS said it recognizes the possibility that all re-registrants may not receive new EADs until after their current EADs expire on September 9, 2010. Accordingly, the notice automatically extends the validity of EADs issued under the TPS designation of El Salvador for six months, through March 9, 2011, and explains how TPS beneficiaries and their employers may determine which EADs are automatically extended.

The 60-day re-registration period for eligible Salvadorans begins July 9, 2010, and will remain in effect until September 7, 2010.

The Haitian notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-17116.pdf. The Salvadoran notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-16431.pdf. A Q&A is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543
f6d1a/?vgnextoid=9fc4a93adb7b9210VgnVCM100000082ca60aRCRD&vgne
xtchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD
.

5. American Immigration Lawyers Association Sues DHS, USCIS Over H-1B Transparency

The American Immigration Council’s Legal Action Center (LAC) filed a lawsuit on July 20, 2010, against the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) on behalf of the American Immigration Lawyers Association (AILA), seeking the public release of records on agency policies and procedures for the H-1B visa program.

AILA had pursued disclosure of the documents through two Freedom of Information Act (FOIA) requests, both of which were denied. In its complaint filed in the U.S. District Court for the District of Columbia, AILA seeks the court’s intervention to compel the government to release the requested records.

The FOIA litigation centers on the government’s H-1B visa review and processing procedures. The H-1B program, administered by USCIS, allows U.S. businesses to temporarily employ foreign workers, such as scientists, engineers, and computer programmers, in occupations that require theoretical or technical expertise in specialized fields. Since 2008, the LAC noted, USCIS has implemented new, more stringent procedures for review and processing and has dramatically increased the frequency of unannounced H-1B worksite inspections, which are expected to reach 25,000 in 2010. Yet “USCIS has kept secret the rules and guidelines related to the review process,” the LAC said. “The dearth of publicly available information on the government’s heightened scrutiny of H-1B applications makes it particularly difficult for businesses to anticipate and meet agency expectations during the application process.”

“It is in the public and the agency’s interest to release the documents sought by AILA,” said Mary Kenney, an attorney at the American Immigration Council’s Legal Action Center. “The documents will help employers and foreign workers who seek immigration benefits comply with the law. Further, the agency violated FOIA when it issued wholesale denials of AILA’s FOIA requests.” AILA is also represented in the litigation by Steptoe & Johnson LLP.

The announcement is available at http://www.aila.org/content/default.aspx?docid=32657.

6. USCIS Proposes New Standardized Fee Waiver Form

U.S. Citizenship and Immigration Services (USCIS) has proposed for the first time a standardized fee waiver form. USCIS seeks public comments on the proposed new Form I-912, Request for Individual Fee Waiver.

Details and instructions for responding to the request for comments are available at http://edocket.access.gpo.gov/2010/pdf/2010-17114.pdf. The proposed form is available at
http://www.regulations.gov/search/Regs/home.html#documentDetail?R=0900006
480b1a9c1
. More information is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543
f6d1a/?vgnextoid=0fb5ac6b49cd9210VgnVCM100000082ca60aRCRD&vgne
xtchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD
. A related fact sheet is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543
f6d1a/?vgnextoid=2e15ac6b49cd9210VgnVCM100000082ca60aRCRD&vgne
xtchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD
.

7. U.S. Expands Appointment Scheduling for Nonimmigrant Visa Applicants in China

Nonimmigrant visa applicants may now schedule interview appointments at any U.S. Consular Section in China, regardless of the province or city where they live. Consular Sections are located at the U.S. Embassy in Beijing and U.S. Consulates General in Chengdu, Guangzhou, Shanghai, and Shenyang. The U.S. Embassy in Beijing noted that although the basic application process is the same, specific times and application procedures at each visa issuing office may vary. Before applying for a visa, applicants should check each post’s Web site for procedures specific to that post. In 2009, the U.S. Embassy in Beijing noted, almost half a million people received nonimmigrant visas in China.

The notice is available at
http://beijing.usembassy-china.org.cn/visa_interview_appointment_availability.html. Information about making an appointment is available at http://beijing.usembassy-china.org.cn/niv_appointment.html.

8. State Dep’t Explains Biometric Visa Program’s Fingerscan, Photo Requirements

The Department of State has published a notice in the Federal Register that explains when fingerscans and other biometric identifiers are required, and notes exceptions to the general requirements.

The notice explains that the Enhanced Border Security and Visa Entry Reform Act of 2002 has required, since October 26, 2004, that all visas issued by the Department of State (DOS) must be machine-readable and tamper-resistant and use biometric identifiers. DOS determined, in consultation with the Departments of Homeland Security (DHS) and Justice (DOJ), that fingerprints and a photo image should be required as biometric identifiers. When the biometric visa program began, available technology allowed for the efficient capture and comparisons of only two fingerscans. As a result of technological improvements, DOS instituted a 10-fingerscan standard.

DOS’s Biometric Visa Program is a partner program to DHS’s US-VISIT program in effect at U.S. ports of entry that uses the same biometric identifiers. The DOS notice explains that fingerscans and photos of visa applicants are sent to DHS databases. When a person to whom a visa has been issued arrives at a port of entry, his or her photo is retrieved from a database and projected on the computer screen of the U.S. Customs and Border Protection officer, who compares the person’s fingerscans to the fingerscans in the database.

Certain exemptions to the fingerscans under the Biometric Visa Program have been coordinated with DHS to coincide with the exemptions to fingerscans under US-VISIT. Under the Biometric Visa Program, applicants for diplomatic or official visas, for visas to represent their governments at recognized international organizations such as the United Nations or for visas to serve as employees of such organizations, for NATO visas, or for government officials on official transit through the U.S. are exempt from the fingerscans. The aforementioned are represented by these visa categories: A-1, A-2, G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, NATO-6 and C-3 (except for attendants, servants, or personal employees of accredited officials).

In addition, the notice states, persons under age 14 and persons age 80 or above are generally exempt from the fingerscans, unless the person is applying for a visa at a consular post in Mexico and in Yemen. In Mexico, fingerscans are required for applicants beginning at age 7 and above under the program for issuance of biometric Border Crossing Cards (commonly known as “laser visas”), which began in 1998. DOS recently expanded that policy to include visa applicants in Yemen, and may further expand it to include additional countries in the future. DOS retains the authority to require fingerscans of children under age 14 or adults age 80 or above in all other countries.

All visa applicants must submit a photograph with the visa application, the notice explains, except at consular posts in Mexico where most nonimmigrant visa applicants have a live-capture photo taken at the post. All persons, regardless of whether they submit fingerscans, are reviewed against the Department’s facial recognition database.

The notice, published on July 8, 2010, is available at http://edocket.access.gpo.gov/2010/pdf/2010-16671.pdf.

9. Labor Dep’t Launches National H-2A Electronic Job Registry

The Department of Labor’s Employment and Training Administration (ETA) launched a new National Electronic Job Registry for H-2A job orders on July 8, 2010. Under a final rule published in February 2010, the agency must post all job orders filed in connection with H-2A applications until the end of 50 percent of the contract period. This requirement, the notice explains, is intended to “improve the transparency of agricultural jobs available to U.S. workers and provide an unprecedented level of public access to one of the most frequently requested types of records maintained by the Department.”

The job order information is searchable by common data points such as case number, employer name, area of intended employment, work contract period, job title, and primary crop or agricultural activity. All search results are displayed in a table format with sortable column headers. The public is able to view a summary of the job order as well as download a copy of the entire job order and all attachments in Adobe PDF format.

The Office of Foreign Labor Certification (OFLC) noted that since March 15, 2010, it has received more than 620 H-2A applications requesting nearly 11,000 workers. Approximately 450 active H-2A job orders are available to the public.

Public access to the job registry is available through the OFLC iCERT Visa Portal System at http://icert.doleta.gov/. Questions related to job orders placed on the H-2A job registry may be e-mailed to H-2Ajobregistry.chicago@dol.gov. This H-2A job registry Help Desk e-mailbox is monitored from 8:30 a.m. to 5 p.m. Central Time, Monday through Friday. Members of the public may also call the job registry Help Desk at (312) 886-8000 (not toll-free).

The notice, which was published on July 1, 2010, and includes additional details about how the registry will be updated, is available at http://edocket.access.gpo.gov/2010/pdf/2010-16011.pdf. A fact sheet is available at http://www.foreignlaborcert.doleta.gov/pdf/H2A_JobRegistry_Factsheet.pdf.

10. Decisions Not to Hire Persons Based on Need for Visa Sponsorship or Employer Submission OK, Justice Dep’t Says

Katherine A. Baldwin, Deputy Special Counsel for the Department of Justice’s Civil Rights Division, noted in a recent letter that in general, decisions not to hire individuals based solely on their need for visa sponsorship or their need for a written employer submission to U.S. Citizenship and Immigration Services, either currently or in the future, would not be actionable under the antidiscrimination provisions of U.S. immigration law. She noted that only certain classes of individuals are protected from citizenship status discrimination under the law, including U.S. citizens, U.S. nationals, temporary residents, recent lawful permanent residents, refugees, and asylees.

The letter, sent on June 29, 2010, to Angelo Paparelli, partner in the Business Immigration Group of Seyfarth Shaw LLP, is available at
http://www.nationofimmigrators.com/wp-content/uploads/2010/07/OSC%20Rep
ly%20on%20Proper%20Question%20on%20Job%20Application.pdf
.

11. CBP Invites Comments on SENTRI and FAST Commercial Driver Applications

U.S. Customs and Border Protection (CBP) has invited the public and other Federal agencies to comment on an information collection requirement concerning CBP’s Trusted Traveler Programs, including the Secure Electronic Network for Travelers Rapid Inspection (SENTRI), which allows expedited entry at specified southwest land border ports of entry, and the Free and Secure Trade program (FAST), which provides expedited border processing for known, low-risk commercial drivers.

The purpose of the Trusted Traveler programs, the notice explains, is to provide prescreened travelers expedited entry into the U.S. The benefit to the traveler is less time spent in line waiting to be processed by CBP.

Applicants may apply for these programs using paper forms available at http://www.cbp.gov/ or through the Global On-line Enrollment System (GOES) at https://goes-app.cbp.dhs.gov/.

The notice, published on July 6, 2010, is available at http://edocket.access.gpo.gov/2010/pdf/2010-16314.pdf.

12. ABIL Global (http://www.abil.com/): Temporary Business Visas in Peru

To visit Peru to carry out business activities, some aspects of the consular temporary business visa must be taken into account. The temporary business visa enables foreign citizens to perform activities typical of a businessperson in Peru.

The Peruvian “Aliens Law” defines “Business” migratory status as:

Business: Those who come to the country with no intention to reside and in order to perform business, legal or similar arrangements. They are permitted to sign contracts or settlements. They cannot perform remunerated or profit-making activities or earn any income from a Peruvian source, except for fees as directors of companies domiciled in Peru or fees as lecturers or international consultants by virtue of a service agreement. Such service agreement shall not exceed thirty (30) consecutive or accumulated calendar days, within a period of twelve (12) months. [Paragraph (k), section 11, Legislative Decree No. 703 modified by Legislative Decree No. 1043, Aliens Law]

The maximum period of authorized stay for a consular temporary business visa is 183 calendar days, non-extendable internally in Peru.

The consular temporary business visa must be obtained in a Peruvian consulate abroad, complying with the requirements established by the pertinent consulate; i.e., the consulate where the foreign citizen resides or, in absence of a consulate in the city of residence, one nearby.

This type of visa and migratory status allows a foreign citizen to carry out activities in Peru common to a businessperson, not a worker. A temporary business visa does not authorize rendering subordinate services as an employee (worker) of a local company or as an appointed worker of a company abroad.

Permitted activities with a business visa include:

  • Performing business arrangements
  • Performing legal or similar arrangements
  • Attending business meetings or discussions with Peruvian affiliates or related companies
  • Attending sales calls to potential Peruvian clients, provided the alien represents a commercial entity outside Peru
  • Observing operations of a Peruvian affiliate or client
  • Attending “fact-finding” meetings with a Peruvian affiliate or clients
  • Attending seminars
  • Signing documents, contracts, or settlements
  • Acting as an international lecturer or consultant
  • Acting as a director of a company domiciled in Peru
  • Collecting data or information regarding investments and similar activities
  • Supervising business or investments
  • A business visa does not allow the holder to perform labor activities in Peru or to earn income from a Peruvian source. Training or acting in an advisory capacity does not qualify as a business, legal, or similar arrangement.

In sum, if any foreign company is considering sending some of its employees to carry out business activities in Peru as businesspersons, they must enter Peru on a consular temporary business visa according to Peru’s Aliens Law.

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