December 2012 Immigration Update

Headlines:

1. House Passes STEM Bill; ‘Achieve Act’ Introduced in Senate, Congressional Hispanic Caucus Reacts; Obama, Dems Advocate Comprehensive Immigration Reform – The STEM bill would allocate visas to STEM graduates without increasing overall immigration, by eliminating the diversity visa program. Neither the STEM bill nor the Achieve Act are likely to survive in the Senate.

2. U.S. Mission in India Expands Interview Waiver Program – The U.S. embassy in New Delhi expects this expansion to affect thousands of visa applicants in India.

3. DACA Filings/Approvals Soar After Election; USCIS Releases Guidance for Employers, Filing Tips – USCIS has received more than 300,000 requests for DACA. Most applicants are from Mexico (212,514).

4. USCIS Expands e-Request Services – The Web-based tool allows users to ask about applications and petitions submitted to USCIS.

5. USCIS Holds Teleconference on I-601 Waivers –  Beginning on December 5, 2012, applications for waivers of grounds of inadmissibility must be filed in the United States unless the applicant meets criteria allowing him or her to file at an international USCIS office.

6. Head of Law Firm Sentenced to Prison for Visa Fraud – Participants in the scheme to file at least 137 fraudulent employment-based visa petitions “buried” a portion of the profits by purchasing cemetery plots and grave monuments.

7. OFLC, USCIS Issue Guidance on Hurricane Sandy Relief; USCIS Extends RFE Deadlines -The Department of Labor’s Office of Foreign Labor Certification issued a FAQ on Hurricane Sandy-related extensions and accommodations. Also, U.S. Citizenship and Immigration Services issued a reminder on immigration benefits or relief that may be available to those affected.

8. State Dept. Projects Visa Numbers; Cut-Off Date Likely for China Employment Fifth Preference Later in FY 2013 – If it happens, this would be the first time a cut-off date has been established in the China employment fifth preference category.

9. ABIL Global: Canada – Update on Federal Immigrant Investor Program and Federal Skilled Worker Program – Pauses on new applications under the two programs will continue until further notice.

10. Firm In The News…

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Details:

1. House Passes STEM Bill; ‘Achieve Act’ Introduced in Senate, Congressional Hispanic Caucus Reacts; Obama, DemsAdvocate Comprehensive Immigration Reform

The U.S. House of Representatives passed H.R. 6429, the “STEM Jobs Act of 2012,” by a 245-139 vote on November 30, 2012. The bill would allocate 55,000 immigrant visas for certain foreign graduates of advanced degree programs in science, technology, engineering, and mathematics (STEM). It would exclude students with degrees in biological and biomedical fields. Among other things, it also would eliminate the diversity visa (DV) program so that there would be no overall increase in the level of immigration.

Rep. Jeff Flake (R-Ariz.), said, “We should staple a green card to [foreign STEM graduates’] diplomas.” Rep. Darrell Issa (R-Cal.), who also voted in favor of the bill, said,”We need to break up the elephant into bite-size pieces. I want to break this up into passable bill by passable bill.”

H.R. 6429 is considered unlikely to pass in the Senate.Democrats said they support STEM visas but did not think the DV program should be eliminated and believe that STEM legislation should be part of a larger immigration reform package. Similarly, the Obama administration said in a statement that it “strongly supports” legislation to attract and retain foreign students who graduate with advanced STEM degrees, to establish a start-up visa for foreign-born entrepreneurs “to start businesses and create jobs,” and to “reform the employment-based immigration system to better meet the needs of the U.S. economy.” However, the administration said it does not support “narrowly tailored proposals that do not meet the President’s long-term objectives with respect to comprehensive immigration reform.” The statement advocated an approach that would “provide for attracting and retaining highly skilled immigrants and uniting Americans with their family members more quickly, as well as other important priorities such as establishing a pathway for undocumented individuals to earn their citizenship, holding employers accountable for breaking the law, and continuing efforts to strengthen the Nation’s robust enforcement system.”

Also, on November 27, 2012, Sens. Jon Kyl (R-Ariz.) and Kay Bailey Hutchison (R-Tex.) introduced the “Achieve Act,” S. 3639, which would allow certain undocumented youth to attain a visa. They would have to apply for employment authorization after they have completed higher education or served in the military. “We have to get this ball rolling … and this particular part of immigration reform seemed a logical place to begin,” Sen. Kyl said. The bill is more restrictive than the previously proposed DREAM Act and would limit eligibility to those who entered the United States under the age of 14, among other things. Sen. Hutchison also noted that the bill “doesn’t allow them to cut in line [for U.S. citizenship] in front of people who have come and abided by the rules of our laws today. It doesn’t keep them from applying under the rules today, but it doesn’t give them a special preference.” The Achieve Act is also considered unlikely to pass in the Senate.

The Congressional Hispanic Caucus rejected the Achieve Act, outlining nine principles that they said should be part of any effort toward comprehensive immigration reform: (1) requiring the estimated 11 million undocumented persons in the United States to register with the government, among other things, and “earn a path to permanent residency and eventual citizenship”; (2) reducing family backlogs to keep spouses, parents, and children together, including same-sex couples; (3) attracting “investors, innovators, and skilled professionals,” including those in STEM fields; (4) building on the DACA program and incorporating “DREAMers”; (5) including a “balanced, workable solution for the agriculture industry” that ensures that agricultural workers have a route to citizenship and employers have the workers they need; (6) providing legal avenues for foreign workers to fill gaps in the workforce, including labor rights, protection from discrimination, and a “reasonable path to permanency”; (7) ensuring enforcement that both protects the borders and fosters commerce; (8) establishing a “workable” employment verification system; and (9) ensuring that all workers “pay their fair share of taxes, fully integrate into our way of life and bear the same responsibilities as all Americans” and reaffirming “our shared belief that the Citizenship Clause of the Constitution is a fundamental freedom that must be preserved.”

The STEM bill text and additional information are available at
http://judiciary.house.gov/issues/issues_STEM%20Jobs%20Act.html.A statement on the STEM Jobs Act from Rep. Lamar Smith (R-Tex.), chairman of the House Judiciary Committee, is available at
http://judiciary.house.gov/issues/STEM/Fact%20Sheet%20STEM%20Bill.pdf. The Obama administration’s statement is available at
http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saphr6429r
_20121128.pdf
. Information on the Achieve Act, including the text of the bill, is available at
http://thomas.loc.gov/cgi-bin/query/D?c112:1:./temp/~c1125BosaL::. The Congressional Hispanic Caucus’ statement is available at
http://gutierrez.house.gov/sites/gutierrez.house.gov/files/One%20Nation_Principles
%20on%20Immigration%20Reform.pdf
.

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2. U.S. Mission in India Expands Interview Waiver Program

The U.S. Mission in India has announced expansion of the Interview Waiver Program (IWP), launchedin March 2012, which allows qualified individuals to apply for additional classes of visas without being interviewed in person by a U.S. consular officer. The U.S. embassyin New Delhi expects this expansion to affect thousands of visa applicants in India.

Under the current IWP, Indian visa applicants who are renewing visas that are still valid or expired within the past 48 months may submit their applications for consideration for streamlined processing, including waiver of a personal interview, within the following visa categories:

  • Business/Tourism (B-1 and/or B-2)
  • Dependent (J-2, H-4, L-2)
  • Transit (C) and/or Crew Member (D) – including C-1/D
  • Children applying before their seventh birthday traveling on any visa class
  • Applicants applying on or after their 80th birthday traveling on any visa class

Under the expanded IWP, the following Indian applicants may also be considered for streamlined processing:

  • Children applying before their 14th birthday traveling on any visa class
  • Students returning to attend the same school and same program
  • Temporary workers on H-1B visas
  • Temporary workers on individual L-1A or individual L-1B visas

The renewal application must be within the same classification as the previous visa. If the previous visa is annotated with “clearance received,” however, that applicant is not eligible for a waiver of a personal interview.

Not all applications will be accepted for streamlined processing. As always, consular officers may interview any visa applicant in any category. Applicants who are renewing their visas may still need an appointment for biometrics (fingerprint and photograph) collection. All applicants must submit all required fees and the DS-160 application form.

The U.S. embassy in New Delhi said that this is “one of many steps the Department of State is taking to meet increased visa demand in India.”The embassy explained that in 2011, consular officers in India processed nearly 700,000 nonimmigrant visa applications, an increase of more than 11 percent over the previous year. Currently, applicants generally wait fewer than 10 days for visa interview appointments and spend less than one hour at U.S. consular facilities in India. In September 2012, the U.S. Diplomatic Mission to India implemented a new visa processing system throughout India that further standardizes procedures and simplifies fee payment and appointment scheduling through a new website at http://www.ustraveldocs.com/in.

For more details about procedures for submitting a renewal application, see
http://www.ustraveldocs.com/in/in-niv-visarenew.asp.

In relation to this development, Cyrus Mehta authored an article that was published in Quartz, “A Trade War Wages Across U.S. Consulates in India Over H-1B Visas. Is a Truce in Sight?”, available at
http://qz.com/32376/a-trade-war-wages-across-us-consulates-in-india-over-h-1b-
visas-is-a-truce-in-sight/
.

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3. DACA Filings/Approvals Soar After Election; USCIS Releases Guidance for Employers, Filing Tips

Following the results of the presidential election, the Obama administration released statistics showing that 53,273 undocumented persons have received relief as of November 15, 2012, under the deferred action for childhood arrivals (DACA) program. U.S. Citizenship and Immigration Services (USCIS) has received more than 300,000 such requests, of which the largest number by far are from Mexicans (212,514). The Immigration Policy Center estimates that approximately 1.8 million persons may be eligible.

USCIS noted that filing a request for consideration of deferred action for childhood arrivals involves several steps. You need to submit multiple forms, evidence and fees. Small mistakes in preparing your request could lead to it being rejected. USCIS released the following tips below to help avoid having your request rejected or delayed because of common filing errors:

1.Mail all forms together Р You must mail the following forms in one package:

a. Form I-821D, Consideration of Deferred Action for Childhood Arrivals

b. Form I-765, Application for Employment Authorization

c. Form I-765WS, Worksheet

Read the mailing instructions to see where to mail the forms based on the state you live in. Remember to send it to the P.O. Box address if mailing through the U.S. Postal Service. All forms are available on http://www.uscis.gov/ for free. Do not pay for blank USCIS forms either in person or over the Internet.

2. Carefully review age guidelines before filing РIf you have never been in removal proceedings, or your proceedings have been terminated, you must be at least 15 years of age or older at the time of filing.

You cannot be 31 or older as of June 15, 2012, to be considered for deferred action for childhood arrivals.

3. Write your name and date of birth the same way on each form РVariations in the way information is written can cause delays. For example, you should not write Jane Doe on one form and Jane E. Doe on another form. It is important to read all instructions on the forms carefully.

4. Sign your forms РYou must sign both your Form I-821D and Form I-765. If someone helps you fill out the forms, that person must also sign both Form I-812D and Form I-765 in the designated box below your signature.

5. Use the correct version of Form I-765 РAlways make sure you have the most recent form when submitting your request with USCIS. Review the USCISForms page to download the most recent version. You can download all USCIS forms and instructions for free athttp://http://www.uscis.gov/.

6. Use Form I-821D NOT Form I-821 Р Form I-821D is used to request consideration of deferred action for childhood arrivals. Form I-821 is a different form used to apply for Temporary Protected Status, an entirely different process.

7. Do NOT e-file Form I-765 Р Requests for consideration of deferred action cannot be e-filed. You must mail your package (Forms I-821D, I-765, I-765WS, evidence and fees) to the appropriate USCIS Lockbox.

8. Submit correct fees РThe fee to request consideration of deferred action for childhood arrivals is $465 and cannot be waived. There are fee exemptions available only in limited circumstances. You may submit separate checks of $380 and $85, or one single check of $465.

9. Answer all questions completely and accurately РIf an item is not applicable or the answer is “none,” leave the space blank. But do not leave date fields blank. See Tip #11, below. To ensure your request is accepted for processing, be sure to complete these required form fields:

  • Form I-821D: Name, Address, Date of Birth
  • Form I-765: Name, Address, Date of Birth, Eligibility Category

10. Provide all required supporting documentation and evidence РYou must submit all required evidence and supporting documentation. These documents are required for USCIS to make a decision on your request. Please organize and label your evidence by the guideline it meets. USCIS may issue a request for evidence if additional information is needed to make a decision on your request.

11. Do not leave date or place of entry responses blank РYou must fill in all fields related to dates and places of entry on Form I-821D. You may fill in your closest approximation of the date or place of entry if you do not know the exact information. You must enter dates in MM/DD/YYYY format.

12. Personal information to prove economic need Р USCIS will consider whether you have an economic need to work by reviewing your personal current annual income, current annual expenses, and the current value of your assets. You do not need to include other household memberХs financial information to establish your own economic necessity. It is not necessary to submit supporting documentation, though it will be accepted and reviewed if you choose to submit it.

13. If you make an error on a form, start over with a clean form РUSCIS prefers that you type your answers into the form and then print it. If you are filling out your form by hand, use black ink. If you make a mistake, please start over with a new form. Scanners will see through white out or correction tape and this could lead to the form being processed as incorrect, and lead to processing delays or denial.

14. Review your entire request package Р To ensure that your request is accepted for processing, it is important that you review your entire request package before you file with USCIS.

For more information on consideration of deferred action for childhood arrivals, visit www.uscis.gov/childhoodarrivals. If you have questions about filing a request, please call USCIS at 1-800-375-5283.

USCIS also released guidance for employers on DACA for childhood arrivals, available at
http://www.uscis.gov/USCIS/Humanitarian/Deferred%20Action%20for%20Childhood
%20Arrivals/DACA-Fact-Sheet-I-9_Guidance-for-employers_nov20_2012.pdf
. The latest DACA statistics are available at
http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/Immigration
%20Forms%20Data/Static_files/2012-1116%20DACA%20Monthly%20Report.pdf
. The tips are available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1
a/?vgnextoid=4c597039a591b310VgnVCM100000082ca60aRCRD&vgnextchannel
=f2ef2f19470f7310VgnVCM100000082ca60aRCRD
.

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4.         USCIS Expands e-Request Services

U.S. Citizenship and Immigration Services(USCIS) has expanded the services available via its e-Request system. The Web-based tool allows users to ask about applications and petitions submitted to USCIS. Users can now:

  • Create a service request for all forms to either inquire about the status of an application or petition if it is outside of the normal processing time or notify USCIS about an administrative error in a notice or document USCIS sent.
  • For Forms I-90 and N-400 only, ask about an Application Support Center appointment notice or other notice the user was expecting to receive.
  • Access servicesfor individuals with disabilities (508 compliant).

To submit an e-Request,go to the USCIS e-Request home page (https://egov.uscis.gov/e-request/Intro.do) and have the receipt number available.

The USCIS notice is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f61417654
3f6d1a/?vgnextoid=2f7b7039a591b310VgnVCM100000082ca60aRCRD&v
gnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD
.

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5. USCIS Holds Teleconference on I-601 Waivers

On November 13, 2012, U.S. Citizenship and Immigration Services(USCIS) held a teleconference to discuss the transition to centralized Lockbox filing of Form I-601, Application for Waiver of Grounds of Inadmissibility, filed by applicants outside the United States.

As background, on June 4, 2012, USCIS phased in a new requirement that I-601s and associated Forms I-212 and I-290B be filed and adjudicated in the United States. An exception was made for applications filed at the U.S. consulate in Ciudad Juarez, Mexico, for six months. Beginning December 5, 2012, I-601s and associated forms must be filed in the United States unless the applicant meets criteria allowing him or her to file at an international USCIS office. The criteria include circumstances such as applicants residing in Cuba, or applicants facing urgent issues such as a medical emergency, a threat to personal safety, being close to aging out of visa eligibility, or having adopted a child locally and needing to depart the countryimminently.

The teleconference notice, which includes a link to international USCIS offices, is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1
a/?vgnextoid=3ade4872162ea310VgnVCM100000082ca60aRCRD&vgnextchannel
=994f81c52aa38210VgnVCM100000082ca60aRCRD
. The memo listing the exceptions is available at
http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Interim%20Guid
ance%20for%20Comment/I601_Centralization_Exception_PM_2.pdf
.

This new process is separate from the notice of proposed rulemaking that was announced on March 30, 2012, outlining a proposed process for provisional unlawful presence waivers. A USCIS announcement concerning that notice is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a
/?vgnextoid=e784875decf56310VgnVCM100000082ca60aRCRD&vgnextchannel=6
8439c7755cb9010VgnVCM10000045f3d6a1RCRD
.

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6. Head of Law Firm Sentenced to Prison for Visa Fraud

Joseph Wai-Man Wu, the head of East West Law Group, a former law firm in Los Angeles, California, was sentenced to 10 months in prison on November 15, 2012. For approximately 13 years, from 1996 to 2009, he and others in his firm filed at least 137 employment-based visa petitions fraudulently for nearly 100 clients.

They also set up almost a dozen shell companies as part of the scheme, and laundered a portion of the profits by purchasing cemetery plots and grave monuments. The clients paid from $6,000 to $50,000 each. “Our agents encounter a lot of unusual money laundering schemes, but this is the first time we’ve come across a case where the suspects sought to bury their profits by buying cemetery plots,” said Claude Arnold, special agent in charge for HSI Los Angeles.

The press release is available at http://www.ice.gov/news/releases/1211/121115losangeles.htm.

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7. OFLC, USCIS Issue Guidance on Hurricane Sandy Relief; USCIS Extends RFE Deadlines

The Department of Labor’s Office of Foreign Labor Certification (OFLC) issued a FAQ on extensions and reasonable-case accommodations in light of the damage done to certain East Coast areas in the United States as a result of Hurricane Sandy. Also, U.S. Citizenship and Immigration Services (USCIS) issued a reminder on immigration benefits or relief that may be available to those affected.

OFLC

The OFLC FAQ notes that the agency recognizes that some employers may not be able to respond in a timely manner to requests for information or documentation. Accordingly, OFLC said it will review storm-related requests for extensions individually.

OFLC provided the following contact information:

For questions or requests for extensions in replying to audits from the OFLC Chicago National Processing Center related to the programs listed below, e-mail TLC.chicago@dol.gov; Subject: Hurricane Sandy; or telephone the Center at (312) 886-8000.

  • H-2A Temporary Agricultural Program
  • H-2B Temporary Nonagricultural Program
  • H-1B Specialty Occupations Program

For questions or requests for extensions related to the issuance of a prevailing wage determinationfrom OFLCХs National Prevailing Wage Center, e-mailFLC.PWD@dol.gov,Subject: Hurricane Sandy; or telephone the Center at (202) 693-8200.

Forpermanent labor certification (PERM) program-related questions or requests for extensions related to responding to auditsor supervised recruitment instructions, including draft advertisements, e-mailPermSandy@dol.gov; Subject: Hurricane Sandy; or telephone the Center at (404) 893-0101.

The OFLC FAQ is available at
http://www.foreignlaborcert.doleta.gov/pdf/Sandy_Extension_FAQ11-8-2012.pdf
.

USCIS

USCIS reminded those affected by Hurricane Sandy of certain U.S. immigration benefits or relief that may be available to them.

USCIS said it understands that a natural disaster can affect an individual’s ability to maintain lawful immigration status or obtain certain other immigration benefits. Eligible individuals may request or apply for temporary relief measures, including:

  • a change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;
  • extension or re-parole of individuals previously granted parole by USCIS;
  • expedited adjudication of off-campus employment authorization applications for F-1 students experiencing severe economic hardship;
  • expedited adjudication of employment authorization applications; and
  • assistance to legal permanent residents (LPR) stranded overseas without immigration or travel documents, such as permanent resident cards (green cards). USCIS said it and and the Department of State will coordinate on these matters when LPRs are stranded in places that do not have a local USCIS office.

Where appropriate, USCIS said it may exercise its discretion to allow for delays in filing resulting from the hurricane. This may include, for example:

  • assistance to those who have not appeared for an interview or submitted required forms of evidence. The affected person may show how the disrupting event affected his or her connection to USCIS and the ability to appear or submit documents as required; and
  • assistance to those who have not been able to respond to Requests For Evidence (RFEs) or Notices of Intent to Deny (NOID). USCIS said it “will extend the deadline for individuals to respond to RFEs or NOIDs by 30 days. This will apply to all RFEs and NOIDs with a deadline of October 26 through November 26, 2012. During this time, USCIS will not issue denials based on abandonment of an application or petition.”

Visitors traveling under the Visa Waiver Program may visit a local USCIS office for assistance. USCIS asks that affected visitorscheck whether their local USCIS office is open before going. Individuals affected by the hurricane who are at a U.S. airport may contact the nearest U.S. Customs and Border Protection office for assistance.

Lists of local USCIS offices are available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=e39c0b89284a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=e39c0b89284a3210VgnVCM100000b92ca60aRCRD. Office closures are updated at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=fb385723f88aa310VgnVCM100000082ca60aRCRD&vgnextchannel=e7801c2c9be44210VgnVCM100000082ca60aRCRD.

USCIS’s announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4a2c5cb3071ca310VgnVCM100000082ca60aRCRD&vgnextchannel=e7801c2c9be44210VgnVCM100000082ca60aRCRD.

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8.       State Dept. Projects Visa Numbers; Cut-Off Date Likely for China Employment Fifth Preference Later in FY 2013

The Department of State’s Visa Office released projections for the next several months in its Visa Bulletin for December 2012.

Among other things, it appears likely that a cut-off date will need to be established for the China employment fifth preference category during the second half of fiscal year 2013, the Visa Office said, noting that “[s]uch action would be delayed as long as possible, since while number use may be excessive over a 1 to 5 month period, it could average out to an acceptable level over a longer (e.g., 4 to 9 month) period.” This would be the first time a cut-off date has been established in this category, the Visa Office noted, explaining that this is why “readers are being provided with the maximum amount of advance notice regarding the possibility.” The Visa Office noted that this advisory is based strictly on the current demand situation, and that demand patterns can change over time. Therefore, “this should be considered a worst case scenario at this point,” the Visa Office said.

The Visa Office said that categories with a “Current” projection “will remain so for the foreseeable future,” with the possible exception of the China employment fifth preference category mentioned above.

The following is the projected monthly forward progress for the employment-based categories (monthly):

Employment First: Current Employment Second: Worldwide: Current China: five to eight weeks/month India: no movement Employment Third:

Worldwide: three to five weeks/month
China: one to two months/month
India: up to two weeks/month
Mexico: three to five weeks/month
Philippines: one to three weeks/month

Employment Fourth: Current Employment Fifth: Current

The Visa Bulletin for December 2012 is available at http://www.travel.state.gov/visa/bulletin/bulletin_5803.html.

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9.      ABIL Global: Canada – Update on Federal Immigrant Investor Program and Federal Skilled Worker Program

Federal Immigrant Investor Program

On July 1, 2012, Citizenship and Immigration Canada (CIC) imposed amoratorium on the Federal Immigrant Investor Program (FIIP) toreduce the existing large number of applications while the program isreviewed. This pause on new applications will continue until further noticefrom CIC.

In August 2012, CIC invited various stakeholders and the public toparticipate in an online consultation on improving the FIIP, including howsuch a program can best support Canadian economic priorities.

By way of background, the Economic Action Plan 2012 included reforms of businessimmigration programs to target more active investment forCanadian growth companies. In April 2012, the Minister of Citizenship,Immigration and Multiculturalism announced that CIC was considering whetherit should use its authority under the amended Immigration and RefugeeProtection Act (IRPA) to create small short-term programs that may have agreat impact on Canada’s economy.

In response, until September 2012, CIC received numerous submissionsfrom stakeholders and the public on how the Department could:

  • increase the economic benefit that immigrant investment capital brings toCanada;
  • attract experienced international investors with the skills and resourcesneeded to ensure they integrate into Canada’s economy; and
  • develop efficient and cost-effective ways of delivering an investmentprogram.

A summary of the results of the policy papers and recommendations isexpected to be published on the CIC website in early 2013.

Federal Skilled Worker Program

On July 1, 2012, CICalso temporarilystopped accepting applications for the Federal Skilled Worker Program(FSWP). This temporary pause did not apply to those with a qualifying joboffer or applying under the PhD stream. CIC will likely start acceptingapplications again when the revised FSWP selection criteria take effect.Proposed FSWP changes should come into force in early 2013.

For an application to be eligible for processing under FSWP, the applicantmust include the results of his or her official language proficiency test and must fall into one of these categories:

  1. Skilled workers with a valid offer of arranged employment; or
  2. International students enrolled in a PhD program at a provinciallyor territorially recognized private or public post-secondary educational institution in Canada who:
  • have completed at least two years of study toward a PhD
  • are in good academic standing at the time they apply
  • are not recipients of an award requiring them to return to theirhome country to apply their knowledge and skills, or
  1. International students who graduated from a PhD program at a provincially orterritorially recognized private or public post-secondary educational institution in Canada who:
  • graduated no more than 12 months before the date their application s received
  • did not receive an award that required them to return to their home country to apply their knowledge and skills (or did, but have satisfied the terms of the award).

A maximum of 1,000 applications from this category will be considered forprocessing each year. This will not be included in the total for any othercap. Applications will be considered in order they are received. The firstcap year for the PhD stream began on November 5, 2011.

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10.       Firm In The News

Cyrus Mehta and Cora-Ann V. Pestaina were featured speakers at the 15th Annual AILA New York Chapter Immigration Law Symposium on December 3, 2012. Ms. Pestaina was the Discussion Leader of a panel entitled “Jumping Through The Ever Changing Hoops – The Acrobatics Of Compliance With PERM.” Cyrus Mehta was the Discussion Leader of a panel entitled “Lion Taming – Visas For Entrepreneurs.”

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November 2012 Immigration Update

Headlines:

1.         E-Verify Mandated in Four States in 2013 – Georgia, North Carolina, Pennsylvania, and Tennessee have all passed mandatory work authorization verification laws, the final provisions of which take effect in 2013.

2.         EB-2 Priority Dates Become ‘Current’ in November, Except for China and India – For China in November, the EB-2 priority date cut-off is September 1, 2007; for India, the cut-off date is September 1, 2004.

3.         Justice Dept. Settles With Florida Janitorial Services Company – The agreement resolves allegations that the company violated the antidiscrimination provision of the Immigration and Nationality Act when it failed to fully reinstate an employee in retaliation for asserting her right to work in the United States.

4.         Justice Dept. Intervenes in Suit Against Texas Farm for Discriminating Against U.S. Worker – The Department alleges that the company discriminated against one of two U.S. citizen applicants when it refused to hire him based on his citizenship status.

5.         DHS Partners With Loews Hotels & Resorts – Through the new partnership, Loews Hotels offers its YouFirst Platinum loyalty rewards members complimentary enrollment in the Global Entry program.

6.         Joint U.S.-Canada Entry/Exit Pilot Begins  – In October, both agencies began exchanging information so that recording an entry into one country becomes a record of exit from the other country.

7.         USCIS Launches Online I-9 Resources for Employers and Employees in Spanish – The website provides employers and employees one-click access at no charge to Spanish-language resources, tips, and guidance on properly completingthe I-9 and understanding the I-9 process.

8.         Taiwan Joins Visa Waiver Program – In FY 2011, 243,186 visitors from Taiwan traveled to the United States. Eligible Taiwanese will now be able to do so without a visa beginning on November 1.

9.         DHS Extends Haiti TPS, Extends Suspension of Certain Requirements for F-1 Haitian Students – The 60-day re-registration period for current Haiti TPS beneficiaries who wish to maintain their TPS will run through November 30, 2012.

10.       USCIS Announces New Filing Option for Canadian TN Nonimmigrants, Reminds Employers of Canadian L-1 Options – On October 1, USCIS began accepting the Form I-129, Petition for Nonimmigrant Worker, filed on behalf of Canadian citizens outside the United States who seek classification as TN (Trade NAFTA) nonimmigrants.

11.       USCIS Designates Military Physicians as Civil Surgeons To Facilitate Medical Exams – USCIS said the blanket designation will assist members and veterans of the Armed Forces and their eligible dependents in receiving immigration medical examinations in a timely fashion.

12.       USCIS Undercounts H-1B Usage – The data show that the agency has approved approximately 45,000 too few overall between fiscal years 2008 and 2012.

13.       USCIS Releases Latest DACA Statistics  -4,591 requests have been approved so far.

14.       ABIL Global (www.abil.com): Canada Р IT Workers and Work Permits – The IT Worker Program was shut down in all provinces recently, but Canadian work permits for IT workers are still possible in certain circumstances.

15.        Firm In The News…

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Details:

1.         E-Verify Mandated in Four States in 2013

Georgia, North Carolina, Pennsylvania, and Tennessee have all passed mandatory E-Verify laws, the final provisions of which take effect in 2013:

  • Georgia: Larger employers already must use E-Verify, but HB 87 requires all Georgia employers with more than 10 employees to use E-Verify by July 1, 2013.
  • North Carolina: Similarly, larger employers already must use E-Verify, but HB 36 requires employers that employ between 25 and 100 employees to use E-Verify by July 1, 2013.
  • Pennsylvania: Effective January 1, 2013, the Public Works Employment Verification Act (SB 637) requires contractors and subcontractors performing public works projects for Pennsylvania worth at least $25,000 to use E-Verify for newly hired employees.
  • Tennessee: The Tennessee Lawful Employment Act (HB 1378) requires employers with 6 to 199 employees to use E-Verify (or otherwise verify the work authorization of new hires) by January 1, 2013. Larger employers are already required to do so.

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2.         EB-2 Priority Dates Become ‘Current’ in November, Except for China and India

The Visa Bulletin for November 2012 shows that the employment-based second preference (EB-2) immigrant visa priority dates have become “Current” for all countries except China and India. For China in November, the EB-2 priority date cut-off is September 1, 2007; for India, the cut-off date is September 1, 2004.
The November Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5779.html.

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3.         Justice Dept. Settles With Florida Janitorial Services Company

The Justice Department has reached an agreement with Diversified Maintenance Systems LLC, a provider of janitorial and facilities maintenance services based in Tampa, Florida. The agreement resolves allegations that the company violated the antidiscrimination provision of the Immigration and Nationality Act (INA) when it failed to fully reinstate an employee in retaliation for asserting her right to work in the United States.

The charging party alleged that the company failed to provide the employee with proper notice and instructions for contesting an initial data mismatch in E-Verify, resulting in E-Verify issuing an erroneous final response that she was not work-authorized.

Although the employee immediately visited the Social Security Administration (SSA) after receiving verbal notice of the initial data mismatch and instructions from her supervisor, the employee alleged that the supervisor failed to give her the proper E-Verify paperwork that would have enabled the SSA to resolve the mismatch. As a result, the E-Verify program provided an erroneous final response, known as a “final nonconfirmation,” to the employer, stating that the charging party was not eligible to work in the United States. The company subsequently terminated the employee, and the employee contacted the E-Verify hotline for help. An E-Verify agent notified the employer that the employee was authorized to work, but the employee’s manager refused to reinstate her employment, allegedly because she contacted E-Verify and asserted her right to work under the antidiscrimination provision of the INA. The INA protects employees from discriminatory practices in the employment eligibility verification process, including E-Verify, and prohibits employers from retaliating against individuals who assert their rights or oppose a practice that is illegal under the provision.

Under the terms of the settlement agreement, the company agreed to pay $6,800 to the employee, which included back pay and interest, along with a $2,000 civil penalty. The company also agreed to training from the Justice Department on the antidiscrimination provision and training from the Department of Homeland Security on proper E-Verify procedures. The case was settled before the Justice Department filed a complaint.
The announcement is available at
http://www.justice.gov/opa/pr/2012/September/12-crt-1169.html.

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4.         Justice Dept. Intervenes in Suit Against Texas Farm for Discriminating Against U.S. Worker

The Justice Department recently filed a motion to intervene in a lawsuit against Jerry Estopy, d/b/a Estopy Farms, a sorghum and soy farm in McAllen, Texas, which also provides equipment and equipment operators for harvests at other farms. The Justice Department seeks to intervene in a lawsuit filed by two U.S. citizens against the farm. The Department alleges that the company discriminated against one of the U.S. citizens when it refused to hire him based on his citizenship status.

According to the department’s complaint, a U.S. citizen with over 12 years experience operating cotton combines and tractors applied for a position with Estopy Farms as a cotton picker operator around June 2010. Estopy Farms hired a number of seasonal foreign workers but not the U.S. citizen. The department found reasonable cause to believe that the company did not hire the U.S. citizen because it preferred to hire foreign workers under the H-2A visa program.

Texas Rio Grande Legal Aid filed a lawsuit with the Office of the Chief Administrative Hearing Officer (OCAHO) within the Justice Department’s Executive Office for Immigration Review on behalf of the two U.S. citizens on November 14, 2011. Because a complaint has already been filed, the department seeks to intervene in the existing lawsuit.

The announcement is available at
http://www.justice.gov/opa/pr/2012/September/12-crt-1096.html.

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5.         DHS Partners With Loews Hotels & Resorts

Secretary of Homeland Security Janet Napolitano recently announced a new partnership between the Department of Homeland Security and Loews Hotels & Resorts to promote the Department’s expedited traveler programs, which includes CBP’s Global Entry and the Transportation Security Administration’s (TSA) Pre?Є.
Through the new partnership, Loews Hotels offers its YouFirst Platinum loyalty rewards members complimentary enrollment in the Global Entry program. CBP will review the applicant’s information; conduct an in-person interview at a CBP enrollment center, including providing fingerprints; and complete a background check.
CBP has also worked with American Express and United Airlines,which provide reimbursements for their top-tier customers, and continues to partner with other private-sector entities to expand the network of Global Entry members.

Currently available at 30 U.S. airports, Global Entry streamlines the screening process for trusted travelers through biometric identification and reduces average wait times by 70 percent, according to DHS, with more than 75 percent of travelers using Global Entry processed in under five minutes. More than a million peopleare enrolled in Global Entry, and these travelers have used its automated kiosks more than three million times.

The TSA Pre?Є pre-screening initiative allows eligible passengers to volunteer information about themselves to expedite their screening. Eligible passengers enter a separate security lane where they undergo expedited screening, and may pass through screening technology without removing shoes, light outerwear, belts, laptops, or 3-1-1 compliant liquids/gels from their carry-on. To be eligible, participants must be U.S. citizens traveling through one of the 25 participating U.S. airports and members of CBP Trusted Traveler programs or select frequent flyers of participating airlines. More than 2.8 million passengers have received expedited screening through TSA Pre?Є security lanes since the initiative began in October 2011, DHS said.

The announcement is available at
http://www.dhs.gov/news/2012/09/24/napolitano-announces-partnership-loews-hotels.

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6.         Joint U.S.-Canada Entry/Exit Pilot Begins

The Department of Homeland Security (DHS) and the Canada Border Services Agency (CBSA) have begun the Phase I pilot of the Entry/Exit program, as outlined in the Beyond the Border Action Plan.

Routine biographic information will be collected under the pilot until January 31, 2013. In October, both agencies began exchanging this information so that recording an entry into one country becomes a record of exit from the other country. The pilot will not affect regular port operations in any way.
As part of the pilot, DHS and CBSA will exchange routinely collected data on third-country nationals (those who are citizens of neither Canada nor the United States), permanent residents of Canada, and lawful permanent residents of the United States at the following four ports of entry:

  • Pacific Highway, Blaine, Washington/Pacific Highway, British Columbia;
  • Peace Arch, Blaine, Washington/Douglas (Peace Arch), British Columbia;
  • Lewiston-Queenston Bridge, Lewiston, New York/Queenston-Lewiston Bridge, Ontario;and
  • Rainbow Bridge, Niagara Falls, New York/Niagara Falls Rainbow Bridge, Niagara Falls, Ontario.

DHS said the coordinated entry/exit system will help the U.S. and Canada identify persons who overstay their lawful periods of admission; better monitor the departure of persons subject to removal orders; and verify that residence requirements are being met by applicants for continued eligibility in immigration programs.
DHS noted that the process of sharing personal information will be in accordance with each country’s privacy laws and policies. It will also be consistent with the Beyond the Border Action Plan’s Joint Statement of Privacy Principles and a Letter of Intent agreed to by DHS and CBSA.

The announcement is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/national/09282012.xml.

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7.         USCIS Launches Online I-9 Resources for Employers and Employees in Spanish

On October 4, 2012, U.S. Citizenship and Immigration Services (USCIS) launched a Spanish-language version of I-9 Central, an online resource center providing information and assistance related to the Form I-9 (Employee Eligibility Verification), which is the most frequently accessed form on USCIS.gov. The website provides employers and employees one-click access at no charge to Spanish-language resources, tips, and guidance on properly completingthe I-9 and understanding the I-9 process.

The launch of the Spanish I-9 Central is the most recent in a series of resource guides related to USCIS employment-related forms and processes. These resources include E-Verify Self-Check, a service that allows workers and job seekers in the United States to check their own employment eligibility status online, and an updated Handbook for Employers: Instructions for Completing Form I-9 (M-274). Both are offered in Spanish.

I-9 Central includes sections about employer and employee rights and responsibilities, step-by-step instructions for completing the form, and information on acceptable documents for establishing identity and employment authorization. The site also includes a discussion of common mistakes to avoid when completing the form, guidance on how to correct errors, and answers to employers’ recent questions about the I-9 process.

Spanish I-9 Central is available at http://www.uscis.gov/portal/site/uscis-es/
menuitem.e693c9cf3c2f7d18d52fae1074a191a0/?vgnextoid=
46b65b0325a29310VgnVCM100000082ca60aRCRD&vgnextchannel
=46b65b0325a29310VgnVCM100000082ca60aRCRD
.
The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.
5af9bb95919f35e66f614176543f6d1a/
?vgnextoid=8ad2fa0020d2a310VgnVCM100000082ca60aRCRD&vgnextchannel=
68439c7755cb9010VgnVCM10000045f3d6a1RCRD
.
Spanish I-9 links are available at http://www.uscis.gov/portal/site/uscis-es/menuitem.
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a714e800f4eb3210VgnVCM100000b92ca60aRCRD&vgnextchannel=
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.

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8.         Taiwan Joins Visa Waiver Program

On October 2, 2012, the Department of Homeland Security announced the designation of Taiwan for participation in the Visa Waiver Program (VWP). Taiwan thus joins 36 other countries in the VWP, which permits visa-free travel to the United States for eligible travelers coming for 90 or fewer days for business or tourism. In fiscal year 2011, the VWP accounted for 18.3 million visits to the United States, or more than 60 percent of tourist and business travelers entering the United States by air, the Department noted.

Key security and information-sharing requirements for the VWP include enhanced law enforcement and security-related data-sharing, timely reporting of lost or stolen passports, and maintaining high counterterrorism, law enforcement, border control, aviation, and document security standards.

Eligible Taiwan passport holders must apply for advance authorization for the VWP through the Electronic System for Travel Authorization (ESTA). Eligible Taiwan passport holders approved via ESTA may visit the United States without visas beginning on November 1, 2012. In FY 2011, 243,186 visitors from Taiwan traveled to the United States.

The announcement is available at
http://www.dhs.gov/news/2012/10/02/dhs-announces-taiwan%E2%80%99s-
designation-visa-waiver-program
.
ESTA is available at https://esta.cbp.dhs.gov/esta/.

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9.         DHS Extends Haiti TPS, Extends Suspension of Certain Requirements for F-1 Haitian Students

The Department of Homeland Security has published a notice in the Federal Register extending Haitian temporary protected status (TPS) for an additional 18 months, ending on July 22, 2014.
The 60-day re-registration period for current Haiti TPS beneficiaries who wish to maintain their TPS began on October 1, 2012, and will run through November 30, 2012. Individuals who have not continuously resided in the United States since January 12, 2011, are not eligible.

The 18-month extension also allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible Haitian TPS beneficiaries who timely re-register will receive a new EAD, if requested, with an expiration date of July 22, 2014. USCIS recognizes that all re-registrants may not receive their new EADs until after their current EADs expire. Therefore, USCIS is extending currently valid TPS Haiti EADs bearing a January 22, 2013, expiration date for an additional six months, through July 22, 2013.

In addition, DHS is extending the suspension of certain requirements for F-1 nonimmigrant Haitian students. The extension will enable these F-1 students to continue to obtain employment authorization, work an increased number of hours while school is in session, and reduce their course load, while maintaining their F-1 student status. The suspension of the regulatory requirements will remain in effect for an additional 18 months, through July 22, 2014.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/
?vgnextoid=29a2c566e8c1a310VgnVCM100000082ca60aRCRD&vgnextchannel=
68439c7755cb9010VgnVCM10000045f3d6a1RCRD
. The Haitian TPS extension notice was published in the Federal Register at http://www.gpo.gov/fdsys/pkg/FR-2012-10-01/pdf/2012-23826.pdf. The F-1 extension notice was published at
http://www.gpo.gov/fdsys/pkg/FR-2012-10-01/pdf/2012-23825.pdf.

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10.       USCIS Announces New Filing Option for Canadian TN Nonimmigrants, Reminds Employers of Canadian L-1 Options

On October 1, 2012, U.S. Citizenship and Immigration Services (USCIS) began accepting the Form I-129, Petition for Nonimmigrant Worker, filed on behalf of Canadian citizens outside the United States who seek classification as TN (Trade NAFTA) nonimmigrants.

With respect to the TN classification, USCIS currently only accepts the I-129 in connection with a request to extend a TN nonimmigrant’s stay or to change a nonimmigrant’s status to TN. Canadian citizens continue to have the option of applying to U.S. Customs and Border Protection (CBP) for TN classification in conjunction with an application for TN admission to the United States.

USCIS also issued a reminder that an employer has the option of filing an I-129 individual petition with USCIS on behalf of a Canadian L-1 nonimmigrant. A U.S. employer that has an approved L-1 blanket petition also has the option to file a Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, along with supporting documentation, with the USCIS service center that approved the L-1 blanket petition, on behalf of a Canadian citizen (or any visa-exempt beneficiary) who is outside the United States. As before, Canadian citizens may apply for L-1 classification in conjunction with an application for L-1 admission to the United States by presenting the I-129 (individual petition) or I-129S (under an approved blanket petition) and supporting documentation to CBP.

The announcement, which includes links to additional information, is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/
?vgnextoid=c130f4c88ad0a310VgnVCM100000082ca60aRCRD&vgnextchannel=
e7801c2c9be44210VgnVCM100000082ca60aRCRD
.
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11.       USCIS Designates Military Physicians as Civil Surgeons To Facilitate Medical Exams

U.S. Citizenship and Immigration Services (USCIS) has granted military physicians a blanket designation as civil surgeons to facilitate the medical exam required for members and veterans of the U.S. Armed Forces and certain dependents. USCIS said the blanket designation will assist members and veterans of the Armed Forces and their eligible dependents in receiving immigration medical examinations in a timely fashion.

USCIS noted that if medical officers of the U.S. Public Health Services are not available when persons arrive for admission to the United States, USCIS may designate civil surgeons to perform the tests. Physicians qualify for civil surgeon designation if they are licensed and have at least four years of professional experience. The licensing requirement, which defines “licensed physicians” as those licensed to practice medicine in the state where they render medical services, may discourage medical officers of the Armed Forces (military physicians) from becoming designated civil surgeons, USCIS observed. As a result, Armed Forces members and their dependents must pay for the immigration medical examination even though the services could easily be provided by military physicians at no cost. Additionally, the logistics to arrange for a medical exam by a non-military designated civil surgeon can sometimes be a burden to military members and their dependents, and distract from a military member’s readiness. To ease these difficulties, USCIS decided to issue the blanket designation. Participation is voluntary and at the discretion of each military medical facility, USCIS said.

Additional details are included in USCIS’s policy memorandum issued on September 26, 2012, and available at http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/
Interim%20Guidance%20for%20Comment/MilitaryPhysicians-PM.pdf
.

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12.       USCIS Undercounts H-1B Usage

Reports have surfaced that U.S. Citizenship and Immigration Services (USCIS) has undercounted H-1B usage by almost 15 percent over the past five years. USCIS must approve 65,000 H-1B visas per year but the data show that the agency has approved approximately 45,000 too few overall between fiscal years 2008 and 2012. Sources attribute the discrepancy to inaccurate estimates of denial rates.

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13.       USCIS Releases Latest DACA Statistics

U.S. Citizenship and Immigration Services’ Office of Performance and Quality has released the latest statistics on the Deferred Action for Childhood Arrivals (DACA) process as of October 10, 2012, showing that 179,794 requests have been accepted for processing; 158,408 biometric service appointments have been scheduled; 6,416 requests are under review; and 4,591 requests have been approved.

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14.       ABIL Global (www.abil.com): Canada Р IT Workers and Work Permits

Although Canada does not have an equivalent work visa to that of the U.S. H-1B temporary work visa, for years information technology workers could rather easily secure a Canadian Work Permit on obtaining a Canadian job offer under what was known as the Information Technology Worker Program. The IT Worker Program existed from 1997 until recently when it was shut down in all provinces.
Canadian work permits for IT workers are still possible if a Human Resources and Skills Development Canada (HRSDC) Service Canada Labour Market Opinion is obtained:

1. if the employment is in the province of QuЋbec under a February 2012 Memorandum of Understanding between Citizenship and Immigration Canada and the provincial QuЋbec government if the worker will be employed in one of 44 occupations (which include, among others, IT Consultants, Software Engineers and Designers, Computer Programmers, and Interactive Media Developers);

2. if the employment is in the provinces of Ontario or British Columbia and in the video gaming and digital animation/visual effects industries and requires a Software Engineer and Designer or a Graphic Designer and Illustrator; or

3. if the first two possibilities do not apply, then if the Minimum Advertising Requirements of HRSDC have been met and a determination made by HRSDC that the employment of the foreign national is likely to have a neutral or positive effect on the labor market in Canada.

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15. Firm In The News

Cyrus D. Mehta participated in the USCIS Ombudsman’s conference onOctober 18, 2012, at the National Archives, 700 Pennsylvania Avenue, NW, Washington, DC  20408. Mr. Mehta spoke on a panel about the administrative rulemaking process beginning at 3:15 p.m., and commented on regulatory and legal issues.  His power point presentation can be found at http://www.scribd.com/doc/111748255/Issues-Ripe-for-Rulemaking.

Mr. Mehta spoke on ethics at the American Immigration Lawyers Association’s Upstate New York Chapter Fall CLE Conference on October 12. For more information, see http://www.aila.org/content/default.aspx?docid=41076.

Mr. Mehta will speak on ethics at  PLI’s 45th Annual Immigration & Naturalization Institute on November 19-20, 2012, in New York.

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CYRUS D. MEHTA NAMED BEST LAWYERS 2013 NEW YORK CITY IMMIGRATION LAWYER OF THE YEAR

Best Lawyers, one of the most respected peer-review publications in the legal profession, has designated Cyrus D. Mehta as the Best LawyersХ 2013 New York City Immigration Lawyer ТLawyer of the Year.У 

Best Lawyers began designating ТLawyers of the YearУ in the US in high profile practice areas since 2009.  Only a single lawyer in each practice area and designated metropolitan area is honored as the ТLawyer of the Year,У making this accolade particularly significant.  According to Best Lawyers, lawyers being honored as ТLawyer of the YearУ are selected based on particularly impressive voting averages received during the exhaustive peer-review assessment conducted with thousands of leading lawyers each year.  Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, their professionalism, and their integrity.

The 2012 recipient for this designation in New York City was Austin T. Fragomen.

Click here to read about Best Lawyers and Cyrus D. MehtaХs award.

October 2012 Immigration Update

HEADLINES:

1.         Details Released on DV-2014 Lottery Program; DV-2013 Entrants Should Keep Confirmation Numbers – Online registration for the DV-2014 Program begins on October 2, 2012, at noon EDT, and concludes on November 3, 2012, at noon EDT. The Department of State also said it may select more DV-2013 entries on October 1, 2012, so DV-2013 entrants should keep their confirmation numbers even if they have not been selected yet.

2.         DOL Delays Effective Date of H-2B Wage Rule, Announces Electronic Filing for H-2A, H-2B Labor Cert Applications -The Department of Labor expects to publish a final rule extending the effective date of the 2011 H-2B wage rule to March 27, 2013. Also, the Department announced the implementation of electronic filing for nonimmigrant temporary labor certification applications under the H-2A and H-2B visa programs through the iCERT System.

3.         STEM Bill Fails In House – On September 20, 2012, the US House of Representatives rejected the STEM Jobs Act (H.R. 6429).

4.         DHS To Extend Haiti TPS -The Department of Homeland Security expects to publish a notice in the Federal Register shortly announcing this decision.

5.         CBP Announces Delays in Processing I-94 Arrival/Departure Records – CBP is experiencing delays in processing foreign visitors’ travel information in the Form I-94 Arrival/Departure Record database.

6.         Older Versions of Greek Passport Are Invalid – The government of Greece recently announced that Greek passports are valid for travel only if issued on or after January 1, 2006, regardless of expiration date.

7.         USCIS Updates FAQs on Deferred Action – The latest FAQ was updated on September 7, 2012.

8.         Congress Extends Four Immigration Programs for Three Years – The extended programs include the EB-5 regional center program, the E-Verify program, the special immigrant religious worker program, and the Conrad State 30 J-1 visa waiver program for certain foreign doctors working in medically underserved areas.

9.         October Visa Bulletin Shows Backlogs in Some EB Categories – Several employment-based categories are now backlogged.

10.         State Dept. Announces ‘Historic’ Visa Agreement Between United States and Russia – Among other benefits, the agreement provides for longer visa validity.

11.        Federal District Court Upholds ‘Show Papers’ Provision of Arizona Immigration Law – Judge Susan Bolton said the law must take effect before it can be challenged, but she left the door open to potential future challenges.

12.        SEVP Notes Driver’s License and Social Security Difficulties for Students – Some F and M students are having difficulties when applying for a Social Security number or driver’s license.

13.        CBP Opens Global Entry Kiosks at San Antonio International Airport -The kiosk’s features include a camera, touch-screen monitor, fingerprint scanner, document reader, and receipt printer.

14.        CBP Opens Two Additional Lanes at San Luis, Arizona Port of Entry – The 15-month expansion project increased the northbound lanes from 8 to 10 at one of the area’s most congested land ports of entry. These additional lanes may increase capacity by 25 percent for travelers entering the United States for work and personal reasons.

15.        Democratic Party Platform Supports Comprehensive Immigration Reform – The platform touts existing Obama administration efforts, such as deferred action for childhood arrivals in lieu of the DREAM Act and supporting family reunification as a priority.

16.        ABIL Global: United Kingdom Р A Numbers Game – The United Kingdom has introduced various restrictive immigration policies.

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DETAILS:

1.         Details Released on DV-2014 Lottery Program; DV-2013 Entrants Should Keep Confirmation Numbers

Online registration for the DV-2014 Program begins on Tuesday, October 2, 2012, at noon EDT, and concludes on Saturday, November 3, 2012, at noon EDT. Applicants must submit entries electronically during this registration period using the electronic DV entry form (E-DV) at https://www.dvlottery.state.gov/. Paper entries will not be accepted. The Department of State strongly encourages applicants not to wait until the last week of the registration period to enter. Heavy demand may result in website delays.

Selectees for the DV program are chosen by a computer-generated, random drawing. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration to the United States, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the past five years. No single country may receive more than seven percent of the available diversity visas in any one year.

For DV-2014, natives of Guatemala are now eligible to enter the program.

Natives of the following countries are not eligible to apply because the countries sent more than 50,000 immigrants to the United States in the previous five years: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. A “native” ordinarily means someone born within a particular country, regardless of the individual’s current country of residence or nationality. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

For DV-2014, the Department of State once again will implement an online process to notify entrants of their selection and to provide information about the immigrant visa application and interview. Beginning May 1, 2013, DV-2014 entrants will be able to use their confirmation number provided at registration to check online through Entry Status Check at http://www.dvlottery.state.gov/. Successful entrants will receive instructions on how to apply for immigrant visas for themselves and their eligible family members. Confirmation of visa interview appointments will also be made through Entry Status Check.

For detailed information about DV-2014 entry requirements, along with frequently asked questions about the DV program, see the instructions for the DV-2014 Diversity Visa program, available at http://travel.state.gov/visa/immigrants/types/types_1318.html. The related Federal Register notice was published on September 28, 2012, at http://www.gpo.gov/fdsys/pkg/FR-2012-09-28/pdf/2012-23934.pdf.

The Department of State also noted that DV-2013 entrants should keep their confirmation numbers until at least September 2013, even if they were not selected on May 1, 2012. The Department said it may select more DV-2013 entries on October 1, 2012. Entrants in the DV-2013 program may check the status of their entries through Entrant Status Check (https://www.dvlottery.state.gov/ESC/) through September 30, 2013.

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2.         DOL Delays Effective Date of H-2B Wage Rule, Announces Electronic Filing for H-2A, H-2B Labor Cert Applications

In anticipation of the enactment of H.J. Res 117, which prohibits the Department of Labor from expending funds to implement the 2011 H-2B wage rule for the duration of that continuing resolution, the Department expects to publish a final rule extending the effective date of the 2011 wage rule to March 27, 2013. It has not yet been published in the Federal Register but is available at http://www.ofr.gov/OFRUpload/OFRData/2012-24264_PI.pdf.

Also, the Department announced the implementation of electronic filing for nonimmigrant temporary labor certification applications under the H-2A and H-2B visa programs through the iCERT Visa Portal System (iCERT System), at http://icert.doleta.gov. Employers or their authorized representatives may submit H-2B applications electronically beginning on October 15, 2012, and H-2A applications beginning on December 10, 2012.

The Department will hold four webinar training sessions (two for filing in the H-2B program and two for filing in the H-2A program) to orient program users to electronic filing through the iCERT System. These sessions will be announced on the OFLC’s Web site (http://www.foreignlaborcert.doleta.gov/) once dates are finalized. Employers or their authorized representatives choosing not to use this new filing option must continue to file their H-2A and

H-2B applications with the Department using the traditional paper-based filing method.

The electronic filing notice is available at http://www.gpo.gov/fdsys/pkg/FR-2012-09-28/pdf/2012-23884.pdf.

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3.         STEM Bill Fails in House

On September 20, 2012, the U.S. House of Representatives rejected the STEM Jobs Act (H.R. 6429), sponsored by Rep. Lamar Smith (R-Tex.) by a vote of 257-158. (288 votes were required to pass under suspension of the rules.) The bill would have provided permanent residence to 55,000 foreign students each year who graduate with advanced degrees in science, technology, engineering, or mathematics from U.S. universities and agree to work for at least five years in the United States in a STEM field. The bill included requirements for an employer to petition on the student’s behalf and a labor certification process.

Democrats who voted against the measure signaled that they were in favor of similar legislation but objected to a provision that would have eliminated the diversity visa program. Congress may take up this and similar bills in November, after the presidential election.

For a commentary by Cyrus D. Mehta, see STEM GREEN LOTTERY V. GREEN CARD LOTTERY, http://www.cyrusmehta.com/news.aspx?SubIdx=ocyrus2012921212528.

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4.         DHS To Extend Haiti TPS

Secretary of Homeland Security Janet Napolitano is extending Haiti’s temporary protected status (TPS). The Department of Homeland Security expects to publish a notice in the Federal Register shortly announcing this decision.

The Federal Register notice will provide additional guidance on:

  • Who is eligible for TPS;
  • How to re-register if you have TPS;
  • When to begin filing TPS applications;
  • How to request an employment authorization document (EAD);
  • Six-month automatic extension of current EADs;
  • TPS fees and fee waiver procedures; and
  • Other TPS-related information.

The 60-day re-registration period for current Haiti TPS beneficiaries will begin on the day the Federal Register notice is published. Individuals who have not continuously resided in the United States since January 12, 2011, will not be eligible.

The advance notice is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a
/?vgnextoid=a5f4f9fff89e9310VgnVCM100000082ca60aRCRD&vgnextchannel=684
39c7755cb9010VgnVCM10000045f3d6a1RCRD
.

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5.         CBP Announces Delays in Processing I-94 Arrival/Departure Records

U.S. Customs and Border Protection (CBP) announced on September 17, 2012, that it is experiencing delays in processing foreign visitors’ travel information in the Form I-94 Arrival/Departure Record database. CBP said this does not affect the majority of foreign travelers visiting for business or leisure and will not affect any visitor’s record of departure.

CBP is exploring automating the I-94 to allow for the collection of arrival/departure information electronically to streamline the arrival and inspection process for travelers. CBP is coordinating with other agency stakeholders and is considering rulemaking.

The announcement is available at http://www.cbp.gov/xp/cgov/travel/id_visa/i-94_instructions/i94_data_entry.xml.

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6.         Older Versions of Greek Passport Are Invalid

The government of Greece recently announced that Greek passports are valid for travel only if issued on or after January 1, 2006, regardless of expiration date. Greece also announced:

  • Greek passports issued before January 1, 2006, are invalid for admission into the United States.
  • All versions of Greek official and diplomatic passports are valid for admission until the document expiration date.
  • All versions of the Greek passport are valid for return to Greece for Greek nationals.

As of February 1, 2007, U.S. Customs and Border Protection (CBP) began imposing penalties on transportation carriers for bringing anyone who is applying for admission to the United States with a noncompliant Greek passport into the United States.

The announcement is available at http://www.cbp.gov/xp/cgov/travel/travel_news/old_greek_passport.xml.

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7.         USCIS Updates FAQs on Deferred Action

U.S. Citizenship and Immigration Services has updated its frequently asked questions (FAQs) several times on the new deferred action program for childhood arrivals. The latest version was updated on September 7, 2012.

The Department of Homeland Security has advised that its processing goals are one month from issuance of a receipt to the biometric appointment, and four to six months on average for processing the initial batch of deferred action requests. This time could increase as more requests are received.

USCIS said it plans to issue additional FAQs as people work through the process. The latest FAQ, along with other links to relevant information, is available at
http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a
/?vgnextoid=3a4dbc4b04499310VgnVCM100000082ca60aRCRD&vgnextchannel=3
a4dbc4b04499310VgnVCM100000082ca60aRCRD
.

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8.         Congress Extends Four Immigration Programs for Three Years

Congress has extended four immigration programs for three years, to September 30, 2015. The programs are the EB-5 regional center program, the E-Verify program, the special immigrant religious worker program, and the Conrad State 30 J-1 visa waiver program for certain foreign doctors working in medically underserved areas.

The Senate passed the extenders bill (S. 3245), as it was called, in early August. The House of Representatives passed the bill on September 13 by a vote of 412-3. The bill now goes to the President for signature.

Congress is unlikely to pass any other immigration bills before the November elections. According to one newspaper article, this session of Congress “is on track to be the least productive in modern history.” Major immigration reform will have to wait until 2013.

The text of S. 3245 is available at http://www.govtrack.us/congress/bills/112/s3245. The newspaper article about Congress’s lack of productivity is at http://www.rollcall.com/features/Guide-to-Congress_2012/guide/Congress-On-Pace-to-Be-Least-Productive-217538-1.html.

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9.         October Visa Bulletin Shows Backlogs in Some EB Categories

The Department of State had expected that the worldwide EB-2 visa numbers would become current once the new fiscal year began on October 1, 2012. However, this has not happened. Similarly, the EB-2 category for India and China, which became unavailable in June, has not budged much. China remains at July 15, 2007, and India advanced but only to September 1, 2004. Additional movement is not expected in this category for India and China for the first half of the new fiscal year.

The EB-3 worldwide, India, China, and Philippines categories are also backlogged. The EB-1, EB-4, and EB-5 categories remain current for October.

The October Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5770.html.

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10.       State Dept. Announces ‘Historic’ Visa Agreement Between United States and Russia

The Department of State announced that a “historic” U.S.-Russia visa agreement entered into force on September 9, 2012. The agreement facilitates travel between the two countries and “enables us to strengthen ties between our people by benefitting the largest segments of travelers in both our countries Р business travelers and tourists,” the Department said in a statement. Among other benefits, the agreement provides for longer visa validity.

Nearly 159,000 business and tourism visas were issued in fiscal year 2011 to Russian citizens. Over 75,000 U.S. citizens travel to Russia annually, the majority of whom require Russian visas.

The agreement includes these key provisions:

  • Three-year, multiple-entry visas will be issued as the standard “default” visa for U.S. citizens visiting Russia and Russian citizens visiting the United States;
  • Diplomatic and official visa holders on temporary assignments will receive one-year, multiple-entry visas;
  • The documentation required will be reduced. For example, the Russian government will no longer require U.S. citizens to provide formal, “registered” invitation letters when applying for Russian business visas or visas for private visits, although applicants seeking Russian tourist visas must continue to hold advance lodging reservations and arrangements with a tour operator;
  • Both sides have committed to keeping standard visa processing times under 15 days, although the circumstances of individual cases may require additional processing; and
  • The $100 issuance (reciprocity) fee for Russians issued U.S. visas for business or tourism (B-1/B-2) will decrease to $20.

The announcement is available at http://www.state.gov/r/pa/prs/ps/2012/09/197476.htm.

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11.       Federal District Court Upholds ‘Show Papers’ Provision of Arizona Immigration Law

U.S. District Judge Susan Bolton of Phoenix ruled on September 5, 2012, that the “show me your papers” provision of Arizona’s immigration law will stand, at least for now. That provision allows Arizona police officers to question immigration status while carrying out enforcement of other laws.

Judge Bolton said the law must take effect before it can be challenged, but she left the door open to potential future challenges.

Allesandra Soler, executive director of Arizona’s American Civil Liberties Union, predicted “rampant racial profiling and prolonged detention for countless Latinos, a majority of whom are U.S. citizens and permanent residents.” Jan Brewer, Arizona Governor, said the ruling “will empower state and local law enforcement, as part of a legal stop or detention, to inquire about an individual’s immigration status when the officer has reasonable suspicion.”

Judge BoltonХs September 5 opinion is available at http://lawprofessors.typepad.com/files/boltonsept5.pdf.

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12.       SEVP Notes Driver’s License and Social Security Difficulties for Students

The Student and Exchange Visitor Program (SEVP) noted on September 6, 2012, that some F and M students are having difficulties when applying for a Social Security number (SSN) or driver’s license. SEVP and U.S. Citizenship and Immigration Services’ Systematic Alien Verification for Entitlements (SAVE) Program are working on a solution that they expect to implement shortly.

Currently, there are two options for students:

1. Return to the Department of Motor Vehicles (DMV) or Social Security Administration (SSA) office in the student’s state on or after September 14, 2012.

2. E-mail mailto:dmvssa.sevp@ice.dhs.gov which may take longer than option one. Include the following in the e-mail:

  1. Benefit requested (SSN or driver’s license)
  2. Family name
  3. First name
  4. Date of birth
  5. Form I-94, Arrival/Departure Record, admission number (11 digits)
  6. SEVIS ID
  7. Applicant’s physical address (required), phone number (required), and e-mail
  8. Address of the office where problem occurred (and the name of the official, if known)
  9. Date of the latest visit to office
  10. SAVE case number (if available)
  11. Current driver’s license/customer number and/or DMV receipt number (for DMV  customers, if available)

While SEVP does not process benefits, SEVP says a representative will contact SSA or the student’s state DMV on the student’s behalf to help with processing.

The student may also contact the SEVP Response Center with further questions at either 703-603-3400 or mailto:SEVP@ice.dhs.gov

The SEVP announcement is available at http://studyinthestates.dhs.gov/2012/09/social-security-number-and-drivers-license-issues-2.

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13.       CBP Opens Global Entry Kiosks at San Antonio International Airport

U.S. Customs and Border Protection unveiled Global Entry kiosks at the international arrivals area of the San Antonio International Airport on August 29, 2012.

International travelers enrolled in Global Entry who are returning to the United States through the San Antonio airport can bypass passport control lines to use CBP’s automated self-service kiosk. The kiosk features include a camera, touch-screen monitor, fingerprint scanner, document reader, and receipt printer. At the kiosk, Global Entry members activate the system by inserting their passports or U.S. permanent resident cards into a document reader. The kiosk directs travelers to provide digital fingerprints and compares that biometric data with the fingerprints on file. Global Entry travelers are also photographed and prompted to answer declaration questions on the kiosk’s touch screen. A transaction receipt is issued upon completion, which must be presented to CBP officers before leaving the inspection area.

Applications for enrollment are available through the Global Online Enrollment System (GOES, https://goes-app.cbp.dhs.gov/main/goes). An applicant must complete and submit an online application through GOES and pay a non-refundable $100 fee. CBP will review the applicant’s information and a background investigation will be conducted. To finalize the process, the applicant will be interviewed by a CBP officer at an enrollment center, and have his or her fingerprints captured. Upon approval, membership is valid for five years.

Global Entry is open to U.S. citizens, U.S. legal permanent residents, and Mexican nationals. The program is also available to citizens of the Netherlands who are enrolled in the Dutch Privium program, and citizens of the Republic of Korea enrolled in the Korean SES program. Canadian citizens and residents enrolled in the NEXUS program may also use the Global Entry kiosks. U.S. citizens or lawful permanent residents who are members of the CBP Trusted Traveler program, SENTRI, can also use the Global Entry kiosks.

The Global Entry program began as a pilot program at George Bush Intercontinental, John F. Kennedy International, and Washington Dulles International airports on June 6, 2008. It became a permanent voluntary program on February 6, 2012. As of August 24, 2012, more than 400,000 Global Entry members average about 5,000 kiosk uses per day.

The announcement is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/local/09062012_2.xml.

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14.       CBP Opens Two Additional Lanes at San Luis, Arizona Port of Entry

The U.S. General Services Administration, U.S. Customs and Border Protection (CBP), and the city of San Luis, Arizona, celebrated the construction of two additional northbound lanes for privately owned vehicles traveling into the United States at the San Luis I Land Port of Entry.

The 15-month expansion project increased the northbound lanes from 8 to 10 at one of the area’s most congested land ports of entry. These additional lanes may increase capacity by 25 percent for travelers entering the United States for work and personal reasons.

“This expansion will be a huge benefit for this port of entry, and for the San Luis-Sonora, Mexico border crossing community,” said William K. Brooks, CBP Acting Director of Field Operations.

CBP said that one of the driving factors for this expansion project was the desire to complete the construction before the start of this year’s agricultural season. The two additional lanes were officially opened on August 23, 2012, and are expected to help reduce the wait times for travelers during one of the busiest times of year.

The announcement is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/local/09062012_5.xml.

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15.       Democratic Party Platform Supports Comprehensive Immigration Reform

The Democratic Party’s platform for 2012, which was formally approved at the Democratic National Convention held in Charlotte, North Carolina, from September 4 through 6, supports comprehensive immigration reform that “brings undocumented immigrants out of the shadows and requires them to get right with the law, learn English, and pay taxes in order to get on a path to earn citizenship.”

The platform states, among other things, that the Department of Homeland Security is “prioritizing the deportation of criminals who endanger our communities over the deportation of immigrants who do not pose a threat.” It touts existing Obama administration efforts, such as deferred action for childhood arrivals in lieu of the DREAM Act and supporting family reunification as a priority. The platform states that the word “family” in immigration includes LGBT relationships ” to protect bi-national families threatened with deportation.”

The full text of the Democratic Party platform for 2012 is available at http://www.democrats.org/democratic-national-platform. A summary of the Republican Party platformХs immigration provisions is available in the September 1 ABIL Immigration Insider at http://www.abil.com/newsletter_details.cfm?NEWSLETTER_ID=134.

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16.       ABIL Global: United Kingdom Р A Numbers Game

The United Kingdom has introduced various restrictive immigration policies

Since coming to power, the Conservative-led coalition government of the United Kingdom has introduced a number of changes to work, study, and family migration routes in an effort to reduce net migration. In crafting this barrier of restrictive policy, the government has trumpeted each new reform as a building block toward saving the UK’s economy and protecting its people. However, in restricting the routes that permitted many productive and talented migrants to enter and remain, the government is frustrating the country’s fiscal health and playing to a culture of alarmism.

Among those adversely affected by this approach have been Non-European Economic Area (non-EEA) migrant employees and the businesses who would seek to hire them. By constructing a wall of red tape in the form of confusing application forms, voluminous guidance, and unreasonable requirements, the UK government has given the distinct impression that the UK is closed for business.

Universities, too, have been hard-hit by the reforms and are faced with potentially losing billions of pounds due to the crackdown on overseas students. These changes limit the time non-EEA students can study in the UK, cut the number of hours they may work, reduce the options for post-graduation employment, and stem the ability of migrants to bring their spouses and children. The changes have caused significant reductions in enrollment.

Most recently, the UK government set its sights on family migration. Among the most criticized of these reforms, which came into force on July 9, 2012, has been the introduction of a minimum income of £18,600 for British citizens and settled persons who wish to sponsor a non-EEA migrant as their partner. Even higher income thresholds are in place for those seeking to sponsor a child or children. Additionally, the government now imposes an unreasonably long probationary period of five years (raised from two years) before non-EEA migrant partners may apply for settlement.

While undocumented immigration and abuses of the system are clearly legitimate concerns for any nation, the present UK government has adopted an exclusionary stance that acts as a barrier to many of the very people the UK should seek to attract. Bright students, productive employees with jobs and sponsors, and the spouses and partners of British citizens are all among those who have been prevented or discouraged from a life in the UK. Sadly, this appears to be a numbers game that we will all lose.

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September 2012 Immigration Update

Headlines:

1.         USCIS Submits Emergency Requests to OMB for Deferred Action-Related Forms; ICE Agents File Lawsuit – USCIS has submitted information collection requests to the OMB for “emergency” consideration related to the new deferred action program.

2.         USCIS Allows 30 Additional Days for Public Comment on Revised I-9 – USCIS received over 6,200 comments in response to its earlier publication on March 27, 2012. Additional comments will now be accepted until September 21, 2012.

3.         Republican Party Platform Supports More STEM Visas and Includes Consideration of Guestworker Provision – Among other things, the platform supports granting more work visas to holders of advanced degrees in science, technology, engineering, or math.

4.         Labor Dept. Proposes Reorganizing Applications for Prevailing Wage Determination and Temporary Employment Certification – The ETA has proposed reorganizing ETA Form 9141, Application for Prevailing Wage Determination; ETA Form 9142, Application for Temporary Employment Certification; and the H-2A Certification Letter With Notification.

5.         USCIS Releases Guidance on Accommodating Religious Beliefs When Capturing Photographs and Fingerprints – If removal of headwear or adjustments are needed, such as a same-gender photographer or fingerprint-taker, USCIS will offer a private or screened area, if available. If such an area is not available, USCIS will offer to reschedule the appointment.

6.         CBP Discontinues Admission Stamps on Forms for F, M, J International Students and Scholars – If a state benefit-granting agency rejects an unstamped Form I-20/DS-2019, applicants may make an appointment with USCIS online through InfoPass and take their I-20/DS-2019 to their local USCIS office to be stamped. This transitional step will end on November 21, 2012.

7.         State Dept. Announces Numerical Limits for Immigrants in FY 2012 – The worldwide employment-based preference limit for fiscal year 2012 is 144,951, and the family-sponsored preference limit is 226,000.

8.         CBP Warns I-94 Processing May Be Delayed – The current processing time for entering foreign visitors’ travel information into the I-94 database is 30 days or more.

9.         Groups of Travelers Can Now Submit Multiple ESTA Applications – Multiple applications may be submitted and paid for in one transaction via the Electronic System for Travel Authorization

10.        Second Circuit Finds New York Law Prohibiting Nonimmigrant Pharmacists Unconstitutional – In Paidi v. Mills, the U.S. Court of Appeals for the Second Circuit found unconstitutional a New York law stating that only U.S. citizens and legal permanent residents may obtain a pharmacist’s license in New York.

11.        Chicago National Processing Center Has Moved – Paper filings for the D-1, H-2A, and H-2B programs should be sent to the CNPC’s new addresses.

12.        Firm In The News

 

Details:

1.         USCIS Releases Forms and Instructions for Deferred Action, Submits Emergency Requests to OMB for Related Forms; ICE Agents File Lawsuit

U.S. Citizenship and Immigration Services (USCIS) has released forms, instructions, and additional information relevant to the deferred action for childhood arrivals process. USCIS has begun accepting requests for consideration of deferred action for childhood arrivals.

As background, on June 15, 2012, Secretary of Homeland Security Janet Napolitano announced that certain young people who came to the United States as children and meet other key guidelines may be eligible, on a case-by-case basis, to receive deferred action. USCIS is finalizing a process by which potentially eligible individuals may request consideration of deferred action for childhood arrivals.

At a stakeholder meeting on August 14, USCIS Director Alejandro Mayorkas said that the agency will not share information about applicants and their families with U.S. Immigration and Customs Enforcement (ICE) for enforcement purposes.

USCIS has submitted information collection requests to the Office of Management and Budget (OMB) for “emergency” consideration related to the new deferred action program.

The Form I-821D, Consideration of Deferred Action for Childhood Arrivals, will be used for those who are considered for relief from removal from the United States or from being placed into removal proceedings as part of the deferred action for childhood arrivals process. Those who submit requests with USCIS and demonstrate that they meet the threshold guidelines may have removal action in their case deferred for a period of two years, subject to renewal (if not terminated), based on an individualized, case-by-case assessment of the individualХs equities.

USCIS estimates that 1,041,300 respondents will use this form and that it will take 2 hours and 45 minutes to complete. The OMB notice for this form, which includes instructions on submitting comments, is available at http://www.gpo.gov/fdsys/pkg/FR-2012-08-16/pdf/2012-20247.pdf. Comments will be accepted until September 17, 2012.

USCIS also has submitted an emergency request to the OMB for a revision of Form I-765, Application for Employment Authorization. The OMB notice for this form, which includes instructions on submitting comments, is available at http://www.gpo.gov/fdsys/pkg/FR-2012-08-16/pdf/2012-20251.pdf. Comments will be accepted until September 17, 2012.

Individuals requesting consideration of deferred action for childhood arrivals must submit:

USCIS recently developed a series of related resources, including a website, available at http://www.uscis.gov/childhoodarrivals. Related announcements are available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/
?vgnextoid=450a5b0325a29310VgnVCM100000082ca60aRCRD&vgnextchannel=
68439c7755cb9010VgnVCM10000045f3d6a1RCRD
,
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a
/?vgnextoid=9296f6c546129310VgnVCM100000082ca60aRCRD&vgnextchannel=
68439c7755cb9010VgnVCM10000045f3d6a1RCRD
, and
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/
?vgnextoid=162f81268a8e8310VgnVCM100000082ca60aRCRD&vgnextchannel=68
439c7755cb9010VgnVCM10000045f3d6a1RCRD
.

Meanwhile, a group of 10 U.S. Immigration and Customs Enforcement (ICE) agents have filed a lawsuit against the new deferred action directive on undocumented childhood arrivals. The agents argue that the new program forces them to violate immigration law.

Kansas Secretary of State Kris Kobach, an advisor to Mitt Romney’s presidential campaign, is representing the agents in the lawsuit filed in federal court in Dallas, Texas, against Janet Napolitano, Secretary of Homeland Security, and John Morton, ICE Director. The lawsuit is receiving financial support from NumbersUSA. “This Directive not only circumvents Congress, it also infringes on the plaintiffs’ ability to fulfill the oath they made to uphold the laws of this country. The plaintiffs seek to prevent law enforcement officers from being forced to either violate federal law if they comply with the Directive or risk adverse employment action if they disobey the unlawful orders of the DHS Secretary,” Secretary Kobach said.

Also, Texas Governor Rick Perry sent a letter to Greg Abbott, Texas Attorney General, asserting that Secretary Napolitano’s action was “a slap in the face to the rule of law and our Constitutional framework of separated powers” and “unilaterally undermine[s] the law.” Governor Perry said he was writing to ensure that “all Texas agencies understand that Secretary Napolitano’s actions confer absolutely no legal status whatsoever” to anyone who qualifies for deferred action. “In Texas, our legislature has passed laws that reflect the policy choices that they believe are right for Texas. The secretary’s directive does not undermine or change our state laws, or any federal laws that apply within the State of Texas,” he said.

Governor Perry’s letter is available at http://wwwdotashwinsharmadotcom.files.wordpress.com/2012/08/o-abbottgreg20120817_1.pdf.

For our commentary on the lawsuit, see They Still Have Their Dream: Lawsuit Against Dreamers Will Go Nowhere, http://blog.cyrusmehta.com/2012/08/they-still-have-their-dream-law-suit.html

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2.         USCIS Allows 30 Additional Days for Public Comment on Revised I-9

U.S. Citizenship and Immigration Services (USCIS) announced that it is allowing an additional 30 days for public comment on the revised I-9 form. USCIS received over 6,200 comments in response to its earlier publication on March 27, 2012. Additional comments will now be accepted until September 21, 2012.

USCIS previously announced that employers should continue to use the current I-9 employment eligibility verification form even after the August 31, 2012, Office of Management and Budget control number expiration date passes.

The notice announcing the extension of the comment period, which includes instructions on submitting comments, is available at http://www.gpo.gov/fdsys/pkg/FR-2012-08-22/pdf/2012-20631.pdf.

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3.         Republican Party Platform Supports More STEM Visas and Includes Consideration of Guestworker Provision

The Republican Party’s platform for 2012, which was formally approved at the Republican National Convention during the last week in August, supports granting more work visas to holders of advanced degrees in science, technology, engineering, or math (STEM) from other nations. The platform also supports encouraging foreign students who graduate from an American university with an advanced STEM degree to remain in the United States.

The platform also states that a Republican administration and Congress would partner with local governments through cooperative enforcement agreements and “will consider, in light of both current needs and historic practice, the utility of a legal and reliable source of foreign labor where needed through a new guest worker program.”

The platform states that the presence of “millions of unidentified persons” poses grave risks to the safety and sovereignty of the United States. “Our highest priority, therefore, is to secure the rule of law both at our borders and at ports of entry.” The platform supports Republican legislation to give the Department of Homeland Security long-term detention authority “to keep dangerous but undeportable aliens off our streets,” along with expediting expulsion of criminal aliens and making gang membership a deportable offense.

The platform opposes “any form of amnesty.” It supports the mandatory use of the Systematic Alien Verification for Entitlements (SAVE) program before granting any State or federal government entitlement or IRS refund. The platform “insist[s] upon enforcement at the workplace through verification systems so that jobs can be available to all legal workers. Use of the E-Verify program Р an Internet-based system that verifies the employment authorization and identity of employees Р must be made mandatory nationwide.” The platform also supports state enforcement efforts in the workplace.

“State efforts to reduce illegal immigration must be encouraged, not attacked,” the platform says. “The pending Department of Justice lawsuits against Arizona, Alabama, South Carolina, and Utah must be dismissed immediately. The double-layered fencing on the border that was enacted by Congress in 2006, but never completed, must finally be built. In order to restore the rule of law, federal funding should be denied to sanctuary cities that violate federal law and endanger their own citizens, and federal funding should be denied to universities that provide in-state tuition rates to illegal aliens, in open defiance of federal law.”

The platform also supports English as the nation’s official language.

The full text of the Republican Party Platform for 2012 is available at http://whitehouse12.com/republican-party-platform/%23Item11.

4.         Labor Dept. Proposes Reorganizing Applications for Prevailing Wage Determination and Temporary Employment Certification

The Department of Labor’s Employment and Training Administration (ETA) has proposed reorganizing ETA Form 9141, Application for Prevailing Wage Determination; ETA Form 9142, Application for Temporary Employment Certification; and the H-2A Certification Letter With Notification.

Specifically, the Department is soliciting comments concerning the collection of data in the following information collections: Office of Management and Budget (OMB) Control Number 1205-0466, currently containing ETA Form 9141, Application for Prevailing Wage Determination, and ETA Form 9142, Application for Temporary Employment Certification, which expires on October 31, 2012; and OMB Control Number 1205-0404 containing the H-2A Certification Letter known as ETA-9144.

The Department proposes to divide 1205-0466 into three distinct information collection requests (ICRs), segregated by program, and to merge 1205-0404 into the collection that remains in 1205-0466. The Department proposes to separate out ETA Form 9141, Application for Prevailing Wage Determination, into its own collection, 1205-NEW2. The Department also proposes to divide the ETA Form 9142, Application for Temporary Employment Certification, into two collections. One would remain as 1205-0466 and would contain the ETA Form 9142A, H-2A Application for Temporary Employment Certification and Appendix A, along with other information collection burdens for the H-2A Temporary Labor Certification Program, while the second would become 1205-NEW1 and contain ETA Form 9142B, H-2B Application for Temporary Employment Certification and Appendix B, along with all the information collection burdens for the H-2B Temporary Labor Certification Program. Once separated, 1205-0404, which contains one additional information collection burden for the H-2A program, would be merged with 1205-0466 so that most of the H-2A materials can be accounted for in one ICR.

The Department said it is using this opportunity to separate the collections into “more manageable and easy to understand ICRs.”

Comments will be accepted by October 15, 2012. The notice, which includes instructions on submitting comments, is available at http://www.gpo.gov/fdsys/pkg/FR-2012-08-15/pdf/2012-19944.pdf.

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5.         USCIS Releases Guidance on Accommodating Religious Beliefs When Capturing Photographs and Fingerprints

U.S. Citizenship and Immigration Services (USCIS) recently released policy guidance on accommodating religious beliefs during fingerprint and photograph capture. Among other things, the guidance notes that USCIS will accommodate an individual who wears headwear as part of his or her religious practices. Religious headwear may be worn if a reasonable likeness can be obtained from an individual, the full face is visible, and the religious headwear does not cast a shadow on the face. If removal of headwear or adjustments are needed, such as a same-gender photographer or fingerprint-taker, USCIS will offer a private or screened area, if available. If such an area is not available, USCIS will offer to reschedule the appointment.

The notice is available at
http://www.uscis.gov/USCIS/Laws/Memoranda/2012/August%202012/Accommodating
%20Religious%20Beliefs%20PM.pdf
.

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6.         CBP Discontinues Admission Stamps on Forms for F, M, J International Students and Scholars

As of August 10, 2012, U.S. Customs and Border Protection (CBP) no longer provides admission stamps on Forms I-20/DS-2019 for prospective and returning international students and scholars (traveling on F, M, and J visas) seeking admission to the United States. CBP said this change makes CBP processes consistent with U.S. Citizenship and Immigration Services’ (USCIS) recent change to stop stamping Forms I-20/DS-2019.

USCIS implemented this change as part of the launch of the USCIS Electronic Immigration System.

CBP noted that placing an admission stamp on Forms I-20/DS-2019 has been a longstanding practice at CBP, but it is not required. Although the admission stamps on Forms I-20/DS-2019 are not indicators of lawful status or academic program duration, some state and federal benefit-granting agencies have required international students and scholars to present stamped versions. State requirements vary.

If a state benefit-granting agency rejects an unstamped Form I-20/DS-2019, applicants may make an appointment with USCIS online through InfoPass and take their I-20/DS-2019 to their local USCIS office to be stamped. This transitional step will end on November 21, 2012.

The notice is available at http://www.cbp.gov/xp/cgov/travel/travel_news/cbp_i20_stamp.xml.

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7.         State Dept. Announces Numerical Limits for Immigrants in FY 2012

The Department of State determines worldwide numerical limitations on visa issuances, based in part on data provided by U.S. Citizenship and Immigration Services (USCIS). On August 8, 2012, USCIS provided the required data to the Department’s Visa Office. The Department has determined that the worldwide employment-based preference limit for fiscal year 2012 is 144,951, and the family-sponsored preference limit is 226,000. The per-country limit is fixed at 7 percent of the family and employment annual limits; for FY 2012, the per-country limit is 25,967. The dependent area annual limit is 2 percent, or 7,419.

The Visa Bulletin for September 2012, which includes the cut-off dates for employment-based and family-based visa numbers, is available at http://www.travel.state.gov/visa/bulletin/bulletin_5759.html.

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8.         CBP Warns I-94 Processing May Be Delayed

U.S. Customs and Border Protection (CBP) is automating traveler arrival records to streamline passenger processing. The current processing time for entering foreign visitors’ travel information into the I-94 database is 30 days or more. This does not affect the majority of foreign travelers visiting for business or leisure and will not affect any visitor’s record of departure, CBP said.

Visitors may need to prove their legal-visitor status within the first 30-45 days of their U.S. stay to:

  • employers;
  • motor vehicle registration or drivers’ licensing agencies;
  • the Social Security Administration;
  • U.S. Citizenship and Immigration Services; or
  • universities and schools.

If visitors need to provide evidence of legal status during this time frame, they should include:

  • an unexpired foreign passport;
  • the country of citizenship; and
  • CBP Arrival/Departure Record, Form I-94 (if issued)

Contact CBP for more information or with questions:

Tel: (877) CBP-5511

TTD: (866) 880-6582

The announcement is available at http://www.cbp.gov/xp/cgov/travel/id_visa/i-94_instructions/i94_data_entry.xml.

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9.         Groups of Travelers Can Now Submit Multiple ESTA Applications

U.S. Customs and Border Protection (CBP) announced on August 9, 2012, that multiple applications may be submitted and paid for in one transaction via the Electronic System for Travel Authorization (ESTA). The new online application is available beginning on Wednesday, August 15.

Applicants must enter biographic data and an e-mail address to create a Group ID that will allow a family or group the ability to input up to 50 ESTA applications and complete the transaction in a single credit card payment. All payments for ESTA applications must be made by credit card or debit card when applying or renewing. Applications will not be submitted for processing until all payment information is received.

ESTA is an electronic travel authorization that all nationals of Visa Waiver Program (VWP) countries must obtain before boarding a carrier to travel by air or sea to the United States under the VWP. This travel authorization has been mandatory since January 12, 2009. ESTA applications may be submitted at any time before travel, although CBP recommends applying at least 72 hours before departure. Once approved, authorizations are generally valid for multiple entries into the U.S. for up to two years or until the applicant’s passport expires or other specific circumstances give rise to a need to reapply, whichever comes first.

The Department of Homeland Security administers the VWP. The program enables eligible nationals of 36 VWP designated countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa. Additional information regarding the VWP is available at http://www.cbp.gov/xp/cgov/travel/id_visa/business_pleasure/vwp/. Frequently asked questions about the VWP and ESTA are available at http://www.cbp.gov/xp/cgov/travel/id_visa/business_pleasure/vwp/faq_vwp.xml.

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10.       Second Circuit Finds New York Law Prohibiting Nonimmigrant Pharmacists Unconstitutional

In Paidi v. Mills, the U.S. Court of Appeals for the Second Circuit found unconstitutional New York Education Law ¤ 6805(1)(6), which stated that only U.S. citizens and legal permanent residents may obtain a pharmacist’s license in New York.

The nonimmigrant plaintiffs had obtained pharmacists’ licenses. Most of them had H-1B temporary worker visas; the remaining plaintiffs had TN (Trade NAFTA) visas. The court noted that although all of the plaintiffs were on temporary visas, they all were legally authorized to reside and work in the United States for more than six years, and in some cases for more than 10 years.

The court noted that the Fourteenth Amendment to the U.S. Constitution provides that states may not deny to any person within its jurisdiction the equal protection of the laws. Under the Fourteenth Amendment, any law that interferes with the exercise of a fundamental right or “operates to the peculiar disadvantage of a suspect class” is to be reviewed under a strict scrutiny standard. The court also pointed out that the Supreme Court has long held that states cannot discriminate based on alienage. There are only two exceptions to the strict scrutiny standard, the court noted. The first exception “allows states to exclude aliens from political and governmental functions as long as the exclusion satisfies a rational basis review.” The second exception acknowledges that people who reside in the United States without authorization may be treated differently in some instances from those who are in the United States legally.

In the instant case, the court noted that New York was proposing that a third exception be established that the Fourteenth Amendment’s protections not apply to nonimmigrant lawfully admitted persons who require a visa to remain in the United States. The court rejected New York’s approach, noting that, among other things, the bedrock of the Supreme Court’s decisions in this area is the fact that “although lawfully admitted aliens and U.S. citizens are not constitutionally distinguishable, aliens constitute a discrete and insular minority because of their limited role in the political process” and are therefore relatively powerless and vulnerable. The court said that the state’s focus on lawfully admitted nonimmigrants’ “transience” was “overly formalistic and wholly unpersuasive,” since the plaintiffs were transient in name only.

The court said it agreed with the district court that there is no evidence that transience among New York pharmacists threatens public health or that nonimmigrant pharmacists, as a class, are considerably more transient than LPR and citizen pharmacists. “Citizenship and Legal Permanent Residency carry no guarantee that a citizen or LPR professional will remain in New York (or the United States for that matter), have funds available in the event of malpractice, or have the necessary skill to perform the task at hand.” Noting that there are other ways to limit the dangers of potentially transient professionals, the court held that the statute unconstitutionally discriminated against the plaintiffs in violation of their Fourteenth Amendment rights.

The court added that the federal power to determine immigration policy is settled, extensive, and predominant. Federal law recognizes that states have a legitimate interest in ensuring that applicants for professional licenses have the necessary educational and experiential qualifications for the positions sought. But “that traditional police power cannot morph into a determination that a certain subclass of immigrants is not qualified for licensure merely because of their immigration status,” the court said. By making immigration status a professional qualification and thereby causing the group of noncitizens and non-LPRs whom Congress intended to allow to practice specialty occupations to be ineligible to do so, the New York statute “has created an obstacle to the accomplishment and execution of the [Immigration and Nationality Act],” the court noted, agreeing with the district court that Congress’s federal laws creating H-1B and TN status were not merely “advisory.”

The decision is available at http://docs.justia.com/cases/federal/appellate-courts/ca2/10-4397/10-4397-2012-07-10.pdf.

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11.       Chicago National Processing Center Has Moved

The Chicago National Processing Center (CNPC) has a new address. Paper filings for the D-1, H-2A, and H-2B programs should be sent to the CNPC’s new addresses below. The CNPC move does not affect the electronic filing of labor condition applications (LCAs), but any employer with permission to file by hard copy should direct its LCA filing(s) to the new address.

Payments of H-2A labor certification fees should be sent to the new P.O. Box address (also listed below).

Mailing Address for Application Filings:

U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
11 West Quincy Court
Chicago, IL  60604-2105

P.O. Box Address for the Receipt of H-2A-Related Filing Fees:

U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
P.O. Box A3804
Chicago, IL 60690-3804

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12.     Firm In The News

Cyrus D. Mehta was listed in Who’s Who Legal 2012‘s Corporate Immigration category. http://www.whoswholegal.com/profiles/41905/0/Mehta/cyrus-d-mehta/)

Cyrus Mehta has been appointed Chair of AILA’ National’s Ethics Committee. Cora-Ann Pestaina has again been appointed (for the third consecutive year) Co-Chair of AILA-NY’s Department of Labor Committee. David Isaacson has been appointed Co-Chair of AILA-NY’s Federal Practice Committee.

CDMA is assisting in Free Legal Assistance Deferred Action Clinic sorganized by the City Bar Justice Center, http://www2.nycbar.org/citybarjusticecenter/images/stories/pdfs/deferredaction-savethedate.pdf

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August 2012 Immigration Update

Headlines

1.      EB-5 Immigrant Investor Update: New Office; Stats, Summary Released – USCIS has announced formation of a new EB-5 program office. Also, USCIS released FY 2012 third-quarter statistics at its stakeholder call in July, and released a summary of questions and answers from the previous stakeholder meeting in May. USCIS also announced that it plans to release a new version of its draft EB-5 policy memo soon.

2.      DOL Reaches Agreement Resulting in Record Back Wage Amount for H-2A Temporary Agricultural Workers – Peri & Sons, a Nevada-based onion grower, has agreed to pay a record total of $2,338,700 in back wages to 1,365 workers, along with a civil money penalty of $500,000, for violations under the H-2A program.

3.      Senate Holds Hearing on Student Visa System – Discussed at the hearing were findings from the GAO’s June 2012 report assessing ICE’s oversight of the Student and Exchange Visitor Program.

4.      Global Entry Program Expands to Ireland’s Shannon and Dublin Airports – Global Entry kiosks are now available in CBP preclearance facilities at Ireland’s Shannon and Dublin airports.

5.      U.S., Canada Issue Joint Statement on ‘Beyond the Border’ Initiative – The action plan includes 32 initiatives and calls for enhancements to programs that help trusted businesses and travelers move efficiently across the border; introduces new measures to facilitate movement and trade; and invests in improvements to shared infrastructure and technology.

6.      DOL Requests Comments on LCA for H-1B, H-1B1, and E-3 Applications – The Department of Labor’s Employment and Training Administration has requested comments on the labor condition application and instructions for H-1B, H-1B1, and E-3 nonimmigrants; ETA Forms 9035, 9035E, and 9035CP; and the Wage and Hour Division’s Nonimmigrant Worker Information Form WH-4 (extension with revisions).

7.      Smith Letter Denounces Deferred Action, Requests Anti-Fraud Measures; NAFSA Applauds Obama Administration Policy – Rep. Smith recommended various anti-fraud measures; NAFSA called the Obama administration’s action a “major step forward”; USCIS postponed its July 9 engagement with no new date set.

8.      ABIL Global: Turkey – Turkey moves toward stricter employer qualifications to sponsor work permits

9.      ABIL Global: Canada – Canada announced new rules for criminal admissibility to Canada, and new criteria for QuЋbec permanent residence applications.

10.      Firm In The News

Details

1.         EB-5 Immigrant Investor Update: New Office; Stats, Summary Released

U.S. Citizenship and Immigration Services (USCIS) has announced formation of a new EB-5 program office. Also, USCIS released the latest third-quarter statistics on its stakeholder call in late July, and released a summary of questions and answers from the previous stakeholder meeting in May. USCIS also announced that it plans to release a new version of its draft EB-5 policy memo soon. Highlights of the latest developments are included below.

New EB-5 program office. On July 18, 2012, USCIS Director Alejandro Mayorkas announced the creation of a new office to oversee administration of the EB-5 immigrant investor visa program. The office will be led by a new Chief of Immigrant Investor Programs. The position opening was announced the same day.

Director Mayorkas noted that the EB-5 program “has spurred the creation of tens of thousands of new jobs and the injection of billions of dollars into the U.S. economy since Congress created the program in 1990.” Interest in the EB-5 program has grown exponentially in recent years, he noted, both from domestic project developers seeking capital and foreign investors who have the capital that can fuel economic growth.

In fiscal year (FY) 2012 to date, USCIS approved more than 3,000 Form I-526 (Immigrant Petition by Alien Entrepreneur) petitions. Director Mayorkas said this was more than triple the number approved in all of FY 2009. “Since 2009, we have quadrupled the size of the EB-5 adjudications team and brought on board eight expert economists dedicated to the EB-5 program to ensure that EB-5 cases are handled expeditiously and with appropriate expertise.”

By the end of July, a Review Board consisting of two Supervisory Immigration Services Officers and one economist “will review every pending application for regional center designation for which a denial has been recommended, with applicants receiving the opportunity to discuss their cases in-person before any final adverse decision is rendered,” Director Mayorkas said.

The announcement is available at
http://www.laborimmigration.com/wp-content/uploads/2012/07/Message+from+the+
Director+07.18.2012.pdf
.

Third-quarter statistics. USCIS said it has approved over 3,000 I-526 (Immigrant Petition by Alien Entrepreneur) petitions so far this year, and that the number of I-829 (Petition by Entrepreneur to Remove Conditions) filings has decreased. USCIS expects to see more filed in the fourth quarter.

According to the latest EB-5 program statistics based on preliminary data for the third quarter of FY 2012, USCIS received 4,156 I-526 (Immigrant Petition by Alien Entrepreneur) petitions and had approved 3,002 and denied 775 so far. This was a 79 percent approval rating, compared to an 81 percent approval rating for all of FY 2011 and an 89 percent approval rating for all of FY 2010. As of the third quarter of FY 2012, USCIS had received 546 I-829 (Petition by Entrepreneur to Remove Conditions) petitions and had approved 639 and denied 42 so far. This was a 94 percent approval rating, nearly matching a 96 percent approval rating for all of FY 2011 and exceeding an 83 percent approval rating for FY 2010.

USCIS approved 209 regional centers as of the third quarter. The full list of RCs by state is available at http://www.uscis.gov/eb-5centers/.

The next USCIS stakeholder engagement meeting is scheduled for October 16, 2012, in Washington, DC. See
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?
vgnextoid=e0138e0732344310VgnVCM100000082ca60aRCRD&vgnextchannel=e0b
081c52aa38210VgnVCM100000082ca60aRCRD
for additional details on the engagement meetings.

Summary of May stakeholder meeting. After USCIS’s EB-5 stakeholders meeting held on May 1, 2012, attendees lamented that the agency provided little substantive information and did not answer many submitted questions. Over 250 people attended in person, and over 300 listened by phone. USCIS subsequently released a summary of the meeting that provided additional information, presumably based on written questions that were submitted to the agency.

The summary of the May stakeholder engagement meeting is available at
http://www.uscis.gov/USCIS/Outreach/Notes%20from%20Previous%20Engagements/
2012/May%202012/May_2012_Quarterly_EB5_Engagement_Executive_Summary.pdf
.

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2.         DOL Reaches Agreement Resulting in Record Back Wage Amount for H-2A Temporary Agricultural Workers

Peri & Sons, a Nevada-based onion grower, has agreed to pay a record total of $2,338,700 in back wages to 1,365 workers, along with a civil money penalty of $500,000, for violations under the H-2A temporary agricultural worker program.

An investigation by the Department of Labor’s Wage and Hour Division determined that workers employed by Peri & Sons involved in irrigation, as well as in harvesting, packing, and shipping onions sold in grocery stores nationwide, were not paid properly for work performed. All of the workers came to the United States from Mexico under the H-2A temporary agricultural worker visa program. In most cases, their earnings fell below the hourly wage required by the program, as well as below the federal minimum wage of $7.25 per hour for a brief period of time. Investigators also found that workers were not paid for time spent in mandatory pesticide training or reimbursed for subsistence expenses while traveling to and from the United States. Additionally, their return transportation costs at the end of the contract period were not paid as required.

A fact sheet on H-2A requirements is available at http://www.dol.gov/whd/regs/compliance/whdfs26a.htm. The press release announcing the agreement is available at http://www.dol.gov/opa/media/press/whd/WHD20121352.htm.

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3.         Senate Holds Hearing on Student Visa System

The Senate’s Subcommittee on Immigration, Refugees and Border Security held a hearing on July 24, 2012, on “Strengthening the Integrity of the Student Visa System by Preventing and Detecting Sham Educational Institutions.” Witnesses included Rebecca Gambler, Director, Homeland Security and Justice, U.S. Government Accountability Office (GAO), and John Woods, Assistant Director for National Security Investigations, U.S. Immigration and Customs Enforcement (ICE).

Ms. Gambler discussed findings from the GAO’s June 2012 report assessing ICE’s oversight of the Student and Exchange Visitor Program (SEVP). The GAO reported that ICE does not have a process to identify and assess risks posed by schools in SEVP. Specifically, SEVP does not (1) evaluate program data on prior and suspected instances of school fraud and noncompliance, or (2) obtain and assess information from Counterterrorism and Criminal Exploitation Unit (CTCEU) and ICE field office school investigations and outreach events.

Moreover, the GAO found weaknesses in ICE’s monitoring and oversight of SEVP-certified schools that contribute to security and fraud vulnerabilities. For example, the GAO noted that ICE has not consistently implemented internal control procedures for SEVP in the initial verification of evidence submitted in lieu of accreditation. In addition, ICE has not consistently followed the standard operating procedures that govern the communication and coordination process among SEVP, CTCEU, and ICE field offices.

The GAO recommended that ICE, among other things, identify and assess program risks, consistently implement procedures for ensuring schools’ eligibility, and revise its standard operating procedure to specify which information to share among stakeholders during criminal investigations. Ms. Gambler reported that ICE concurred with all the recommendations the GAO made and “has actions planned or under way to address them.”

Mr. Woods said that ICE has already made progress in implementing the GAO’s recommendations. He noted that ICE’s CTCEU is “the first national program dedicated to the enforcement of nonimmigrant visa violations.” SEVP and CTCEU execute complementary missions to regulate foreign students and exchange visitors and to proactively develop investigations that bolster national security, he said.

Mr. Woods noted that each year, CTCEU “analyzes the records of hundreds of thousands of potential status violators using information from SEVIS and the United States Visitor and Immigrant Status Indicator Technology database, along with other information.” The CTCEU resolves these records “by further identifying potential violations that would warrant field investigations, establishing compliance, or establishing departure dates from the United States. Since the creation of the CTCEU in 2003, analysts have resolved more than two million such records.”

Ms. Gambler’s testimony is available in “Student and Exchange Visitor Program: DHS Needs to Take Actions to Strengthen Monitoring of Schools” at http://www.judiciary.senate.gov/pdf/12-7-24GamblerTestimony.pdf. Mr. Woods’ testimony is available at http://www.judiciary.senate.gov/pdf/12-7-24WoodsTestimony.pdf. The main hearing page, which includes a link to a webcast of the hearing, is available at http://www.judiciary.senate.gov/hearings/hearing.cfm?id=2b53f9fbe82f752c41d78bced00d6e3c.

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4.         Global Entry Program Expands to Ireland’s Shannon and Dublin Airports

U.S. Customs and Border Protection (CBP) announced on July 26, 2012, that Global Entry kiosks are now available in CBP preclearance facilities at Ireland’s Shannon and Dublin airports. The Global Entry program allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States. Current Global Entry members can begin using these new kiosks immediately.

The Global Entry program is now available at 37 U.S. and preclearance airports. Over the last four years, CBP has enrolled more than 378,000 members in Global Entry, with more than 1.1 million travelers receiving Global Entry benefits. Travelers have used the kiosks more than 2.7 million times.

Travelers who use Global Entry kiosks on average experience reduced wait times of 70 percent over travelers going through traditional passport inspection, and more than 75 percent of travelers using Global Entry are processed in under five minutes, according to CBP.

The program is available to U.S. citizens, U.S. lawful permanent residents, and pre-approved Mexican nationals. In addition, citizens of the Netherlands may apply under a special reciprocal arrangement that links Global Entry with the Dutch Privium program. In a recently implemented arrangement, the Republic of Korea’s Smart Entry Service program has been linked to Global Entry, allowing Korean citizens to participate in Global Entry. Canadian citizens and residents may participate in Global Entry through membership in the NEXUS program.

Applications for Global Entry must be submitted online using the CBP Global Online Enrollment System (GOES). A non-refundable fee of $100 is also collected via the website for a five-year membership in Global Entry. CBP will review the applicant’s information and conduct a background investigation. The applicant must complete an in-person interview at a CBP enrollment center, at which time fingerprints are collected.

GOES is available at https://goes-app.cbp.dhs.gov/main/goes. The announcement is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/national/07262012_2.xml.

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5.         U.S., Canada Issue Joint Statement on ‘Beyond the Border’ Initiative

On June 28, 2012, the United States and Canada released a joint “Statement of Privacy Principles” as an “important milestone in the implementation of the Beyond the Border Action Plan,” according to Secretary of Homeland Security Janet Napolitano. The Statement of Privacy Principles concerns the provision, receipt, and use of personal information exchanged between the two countries to “address shared threats to national security.”

U.S. President Barak Obama and Canadian Prime Minister Harper announced the joint “Beyond the Border” declaration on February 4, 2011. The action plan includes 32 initiatives and calls for enhancements to programs that help trusted businesses and travelers move efficiently across the border; introduces new measures to facilitate movement and trade across the border while reducing the administrative burden for business; and invests in improvements to shared border infrastructure and technology. “By expediting lawful trade and commerce into and across our shared border, the United States and Canada seek to enhance our economic competitiveness, create jobs and support economic growth,” a related announcement notes.

The announcement is available at http://www.dhs.gov/ynews/releases/20120628-us-and-canada-btb-statement-of-privacy-principles.shtm. The Statement of Privacy Principles is available at http://www.dhs.gov/files/publications/btb-action-plan-statement-of-privacy-principles.shtm. The joint declaration is available at
http://www.whitehouse.gov/the-press-office/2011/02/04/declaration-president-obama-
and-prime-minister-harper-canada-beyond-bord
.

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6.         DOL Requests Comments on LCA for H-1B, H-1B1, and E-3 Applications

The Department of Labor’s Employment and Training Administration has requested comments on the labor condition application (LCA) and instructions for H-1B, H-1B1, and E-3 nonimmigrants; ETA Forms 9035, 9035E, and 9035CP; and the Wage and Hour Division’s Nonimmigrant Worker Information Form WH-4 (extension with revisions). Among other things the changes in the H-1B LCA would appear to make it difficult or at least more cumbersome for any employer sending H-1B workers off site; clarify what employers are attesting to regarding prevailing wage determinations; and clarify what H-1B dependent employers are attesting to.

The notice, which includes information on the Department’s rationale for proposed changes and instructions on how to comment, was published on July 9, 2012, and is available at http://www.gpo.gov/fdsys/pkg/FR-2012-07-09/pdf/2012-16587.pdf.

For our blog commentary on this development, SeeУTHE H-1B PROCESS GETS EVEN HARDER: DOL PROPOSES DRAMATIC CHANGES TO THE LCA FORMУ by Cora-Ann V. Pestaina, http://blog.cyrusmehta.com/2012/07/the-h-1b-process-gets-even-harder-dol.html

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7.         Smith Letter Denounces Deferred Action, Requests Anti-Fraud Measures; NAFSA Applauds Obama Administration Policy

Rep. Lamar Smith (R-Tex.), chairman of the House of Representatives’ Committee on the Judiciary, sent a letter on July 3, 2012, to John Morton, Director, U.S. Immigration and Customs Enforcement, denouncing the new Obama administration plan to exercise its prosecutorial discretion to grant deferred action and work authorization to certain children of undocumented persons. Rep. Smith called it an “overreach of executive branch authority,” a “magnet for fraud,” and a “blatantly political” action that is an “unprecedented breach of faith with the American people and ignores the rule of law.”

Rep. Smith recommended various anti-fraud measures, including matching and verifying school transcripts for applicants, requiring applicants to seek relief in person, and requiring applicants to demonstrate physical presence through documentation.

Rep. Smith expressed concerns that deferred action is already being applied, and asked a number of questions, including how many individuals had been granted deferred action and whether any evidentiary standard was in place. Rep. Smith said that the “lack of forethought” about processing and implementation before the policy was announced was a “dereliction of the duty the President vowed to uphold.” “Unfortunately, this administration continues to place partisan politics and illegal immigrants ahead of the American people and the rule of law,” he said. Rep. Smith asked for ongoing briefings to be kept informed about the policy as it is developed and implemented.

Not everyone was displeased by the new Obama administration policy, however. NAFSA: Association of International Educators applauded the action and called it a “major step forward.” NAFSA said it has long urged making deferred action official government policy for undocumented students in the United States. “It will offer urgently needed reprieve, on a rigorous case-by-case basis, for individuals who currently find themselves, through no fault of their own, in an untenable and frightening legal limbo,” NAFSA said, noting that undocumented students, brought to the United States by their parents as children, “today live under the constant threat of deportation and are unable to contribute productively to the only country they call home.”

NAFSA also called for Congress to pass the DREAM Act and confer the benefits in that act by law.

Rep. Smith’s letter to Director Morton is available at http://judiciary.house.gov/news/pdfs/DreamActLetterICE.pdf. NAFSA’s statement is available at http://www.nafsa.org/pressroom/default.aspx?id=33261.

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8.         ABIL Global: Turkey

Turkey moves toward stricter employer qualifications to sponsor work permits.

Historically, obtaining work permits in Turkey meant adjudication periods of three to nine months, requests for documents without explanation, and a lack of transparency of requirements by the Work Permit Directorate (Directorate). In 2010 the Turkish government made a bold effort to change the work permit regime. In the same year it also chose to enact employer qualifications for the entity that wished to sponsor a work permit. This was a relatively new concept in Turkey. Since implementation, the Directorate has attempted to create exemptions.

On July 29, 2010, the Directorate published a communique that requires an employer to have at least five Turkish citizen employees per registered worksite per foreign applicant as evidenced on payroll records (termed 5:1 ratio). The communique also requires that the employerХs paid in capital must be at least 100,000 Turkish Lira (TL). Alternatively, the employer can show either gross (assumedly annual) sales amounting to 800,000 TL annually or exports with a gross annual value of USD $250,000. The current exchange rate is 1.8 TL to 1 USD.

The 5:1 ratio has been particularly burdensome to employers. This is partially because the ratio must be evident at each worksite. Therefore, work permit applications will be denied if they do not evidence a 5:1 ratio of Turks to foreigners at the worksite selected for the foreigner (the worksite location is normally specified on social security records). Soon after the publication of the employer criteria, the Directorate was confronted with many employers who could no longer sponsor foreigners. In an attempt to ameliorate the impact of the 5:1 ratio requirement, the Directorate published the following exemptions on April 25, 2011:

  • Founder/investor of a newly established legal entity: If such a founder/investor owns at least 20% (but amounting to at least 40,000 TL) worth of shares of the entity, and within 6 months, the five employee criteria can be met, the founder/investor is exempt.
  • Technical specialists: If there is evidence the position that is the subject of the work permit application requires advanced technology and a Turkish national specialist cannot be found, both the 5:1 employee ratio and the capital requirement will not apply.
  • For companies that satisfy the foreign direct Investment requirements, the 5:1 ratio will be applied by taking into consideration every employee of all the companyХs worksites in Turkey. Also, if the foreign employee is a Тkey personnelУ under this law, the Directorate may not count him or her in the 5:1 ratio.
  • Government involvement: When the foreigner will work on a product or service procurement for public institutions or is pursuant to a public tender, or when the work permit application is subject to a bilateral or multilateral agreement to which Turkey is a party, both the 5:1 ratio and capital requirement will not apply.

The Work Permit Directorate has not yet published guidance on the evidence to be presented to qualify for these exemptions. Although these exemptions have been published and available for over a year, the exemptions are not sufficient to meet the legitimate business needs of companies.

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9.         ABIL Global: Canada

Canada has announced new rules for criminal admissibility to Canada, and new criteria for QuЋbec permanent residence applications.

New Rules for Criminal Admissibility to Canada

Certain individuals, previously ineligible for entry to Canada due to past criminality, may be eligible for a fee-exempt “on the spot” temporary resident permit for one visit to Canada, under new rules that took effect March 1, 2012.

To qualify for the exemption, the port-of-entry applicant must:

  • have served no jail time, and
  • have committed no other acts that would prevent him or her from entering Canada.

Applicants may be eligible for a fee waiver if they:

  • have been convicted of an eligible offense (or its equivalent in foreign law);
  • have served no jail time;
  • have committed no other acts that would prevent them from entering Canada; and
  • are not inadmissible for any other reason.

Eligible convictions include those equivalent to criminal offenses under the Immigration and Refugee Protection Act (IRPA), Section 36(2).

The equivalent convictions vary from country to country. Among others, they include:

  • driving under the influence of alcohol;
  • public mischief; and
  • shoplifting.

No serious criminal offenses, defined under Section 36(1) of IRPA, are eligible. Among others, they include:

  • robbery;
  • fraud over C$5000; and
  • assault causing bodily harm.

Applicants may become admissible again if they:

Legal representation for these various applications and processes is strongly recommended because refusal rates are high. Contact your Alliance of Business Immigration Lawyers attorney for assistance.

New Criteria for QuЋbec Permanent Residence Applications

Over the last three years, the number of applications for economic permanent immigration to the Canadian province of QuЋbec has more than doubled, rising from approximately 30,000 in 2008 to approximately 65,000 in 2011. In response to this growing volume, the QuЋbec government’s Ministry of Immigration and Cultural Communities (MICC) proposed on March 21, 2012, an omnibus bill encompassing several major changes to QuЋbec’s immigration law, the Loi sur lХimmigration au QuЋbec. If passed in the QuЋbec National Assembly, the bill will represent significant changes to eligibility for obtaining a QuЋbec Selection Certificate to immigrate permanently to QuЋbec.

The proposed changes will govern applications accepted by QuЋbec for the period April 1, 2012, through March 31, 2013. These changes are aimed at expediting processing times and according priority treatment to candidates for QuЋbec permanent residence with professional profiles currently highly sought after in the QuЋbec labor market, and at restricting the eligibility of other candidates. A new Demand Management System will dictate the numbers of applications for QuЋbec permanent residence accepted.

Applications for QuЋbec permanent residence by foreign workers and students will be divided into two main groups. Group 1 will not have any restrictions on the number of applications accepted and will include candidates who obtain at least 12 out of 16 points for their Field of Training based on the MICC’s list of Fields of Training. Other candidates who may form part of Group 1 are foreign nationals working in QuЋbec with valid work permits, foreign nationals participating in recognized youth exchange programs, foreign nationals holding valid study permits who obtained their diplomas from recognized post-secondary educational institutions in QuЋbec, and foreign nationals with an employment offer validated by the MICC. Foreign workers who can be attributed points for their Field of Training but obtain less than 12 points will form part of Group 2, with a limit of 14,300 applications.

Under the new Demand Management System, applications for business immigrants will be restricted to pre-set quotas. For investors, the maximum number of applications accepted for the period April 1, 2012, through March 31, 2013, is 2,700. That quota was reached on April 12, 2012. A maximum of 215 entrepreneur applications will be accepted for the April 1, 2012-March 31, 2013, period. The Demand Management System is not intended to have an impact on the Québec government’s commitment to accept approximately 50,000 immigrants annually from 2012 to 2015. The proposed changes will make it more difficult, however, for many candidates who would have qualified before March 21, 2012, for permanent immigration to Québec.

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  1. Firm In The News

Cyrus Mehta was quoted by NDTV in an article on the Infosys whistleblower case and related visa issues. Mr. Mehta discussed the B-1 in lieu of H-1B visa program and the ambiguity in the law concerning B-1 visas. The article is available at http://www.ndtv.com/article/india/infosys-visa-issues-will-the-case-hold-in-us-court-247712.

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July 2012 Immigration Update

Headlines

1.         Supreme Court Strikes Down Most Provisions of Arizona’s Immigration Enforcement Law – The Supreme Court struck down most provisions of Arizona’s 2010 immigration-related law, allowing to stand one provision requiring police to verify immigration status in certain circumstances.

2.         Continued Heavy Demand in Employment Second Preference Category Leads to Worldwide Cut-Off Date for July – Continued heavy demand for visa numbers in the employment second preference category has required the establishment of a January 1, 2009, worldwide cut-off date for July.

3.         DOL Announces Address Change for Filing, Processing Temporary Labor Certifications Effective August 2, 2012, the Chicago National Processing Center address and contact info will change.

4.         Grassley Letter Challenges President’s Authority To Implement Deferred Action – Sen. Charles Grassley (R-Iowa) and a group of other Republicans are challenging President Obama’s authority to implement deferred action and work authorization for certain children of undocumented persons based on prosecutorial discretion.

5.         Georgia Technology Company Agrees to Pay $741,288 in Back Wages to 73 H-1B Workers – Semafor Technologies LLC has agreed to pay 73 employees $741,288 in back wages following an investigation by the Department of Labor’s Wage and Hour Division that found violations of the H-1B visa program.

6.         H-1B Cap Reached – H-1B numbers for FY 2013 have run out.

7.         Social Security Administration Releases Guidance on Employment Authorization for Nonimmigrants Р The SSA guidance includes a table listing the most recent automatic EAD extension information by country.

8.         USCIS Eliminates Original Signature Requirement on Supporting Forms for Certain Applications to Extend/Change Nonimmigrant Status – USCIS explained that elimination of the signature requirement for forms filed with certain applications is part of its larger efforts to transition to electronic filing.

9.         Multi-State Prostitution Ring Dismantled – The perpetrators acquired women to act as prostitutes, on many occasions smuggling them into the United States from Mexico and Central America.

10.        Appeals Court Denies Petition for Review, Upholds BIA Decision of Abandonment of LPR Status – The U.S. Court of Appeals for the Sixth Circuit denied the petition for review, holding that intent alone is insufficient to maintain LPR status and that her extended periods in Pakistan supported the BIA’s finding that she had abandoned her status.

11.        ABIL Global(www.abil.com): Belgium – Belgium is working on implementation of the EU Blue Card directive; there is an increasing focus on compliance; and a potential future change relates to the transfer of legislative power regarding work permits from the federal level to the regions.

12.        Firm In The News

Details

1.         Supreme Court Strikes Down Most Provisions of Arizona’s Immigration Enforcement Law

On June 25, 2012, the Supreme Court struck down most provisions of Arizona’s immigration-related law, allowing to stand one provision requiring police to verify the immigration status in certain circumstances of those they have stopped, detained, or arrested and whom they suspect may not be in the United States legally. The provisions that were struck down included requiring immigrants to carry documentation, making seeking or engaging in unauthorized work a state misdemeanor crime, and allowing warrantless arrests of suspected undocumented persons who may have committed a removable offense. The Court noted that the federal government is responsible for immigration and removal.

Five other states (Alabama, Georgia, Indiana, South Carolina, and Utah) have similar laws, which may be challenged following the Supreme Court outcome.

The decision is available at http://www.supremecourt.gov/opinions/11pdf/11-182.pdf.  For our blog on this decision, see DREAMING IN ARIZONA: CAN PROSECUTORIAL DISCRETION CO-EXIST WITH SHOW ME YOUR PAPERS? http://blog.cyrusmehta.com/2012/06/dreaming-in-arizona-can-prosecutorial.html

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2.         Continued Heavy Demand in Employment Second Preference Category Leads to Worldwide Cut-Off Date for July

Continued heavy demand for visa numbers in the employment second preference category has required the establishment of a January 1, 2009, worldwide cut-off date for the month of July. The Department of State’s Visa Bulletin for July says that this action has been taken in an effort to hold number use within the annual numerical limit. “Should there be an increase in the current demand pattern, it may be necessary to make this category completely ‘unavailable’ prior to September 30, 2012,” the bulletin warns.

The China and India employment second preference categories are already unavailable, and will remain so for the remainder of the fiscal year.

The July Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5733.html.

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3.         DOL Announces Address Change for Filing, Processing Temporary Labor Certifications

Effective August 2, 2012, the Chicago National Processing Center (NPC) address and contact info will change:

  • Old Address: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, 536 South Clark Street, 9th Floor, Chicago, IL  60605-1509.
  • New Address: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, 11 West Quincy Court, Chicago, IL  60604-2105; telephone: (312) 886-8000; facsimile: 312-353-8830.
  • New Address in connection with fees: The following address is to be used for all invoices/fees submitted in connection with the H-2A program: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, P.O. Box A3804, Chicago, IL 60690-A3804.

On August 2, 2012, the Chicago NPC is expected to be fully functional in the new location. For three weeks after that date, the Chicago NPC will receive via courier all written correspondence submitted to the former address. On August 23, 2012, the courier will cease to operate and all submissions to the former address of the Chicago NPC will be returned to the sender. The address above for the collection of H-2A fees should be used beginning on August 2.

The notice is available at http://www.gpo.gov/fdsys/pkg/FR-2012-06-20/pdf/2012-15013.pdf.

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4,         Grassley Letter Challenges President’s Authority To Implement Deferred Action

Sen. Charles Grassley (R-Iowa) and a group of other Republicans sent a letter on June 19, 2012, challenging President Obama’s authority to implement deferred action and work authorization for certain children of undocumented persons based on prosecutorial discretion. The Obama administration announced the new program in a directive from the Secretary of Homeland Security, Janet Napolitano, issued on June 15. “Not only do we question your legal authority to act unilaterally in this regard, we are frustrated that you have intentionally bypassed Congress and the American people,” the letter states.

The letter also expresses concerns that the directive allows individuals under the age of 30 to obtain work authorization, citing the Bureau of Labor Statistics in noting that the unemployment rate for young adults aged 16 to 24 has been nearly 17 percent for the past year. The letter states that “[i]t is astonishing that your administration would grant work authorizations to illegal immigrants during this time of record unemployment.”

The letter poses a number of “serious questions” and asks for responses and “any relevant documentation related to this directive” by July 3, 2012.

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5.         Georgia Technology Company Agrees to Pay $741,288 in Back Wages to 73 H-1B Workers

Semafor Technologies LLC, a Norcross, Georgia, technology company, has agreed to pay 73 employees $741,288 in back wages following an investigation by the Department of Labor’s Wage and Hour Division that found violations of the H-1B visa program. The company specializes in software development, on-site/off-site application outsourcing, infrastructure, consulting, and product development services.

The notice is available at http://www.dol.gov/whd/media/press/whdpressVB3.asp?pressdoc=Southeast/20120612_1.xml.

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6.         H-1B Cap Reached

On June 12, 2012, U.S. Citizenship and Immigration Services (USCIS) announced that it had received enough H-1B petitions to fulfill the numerical limit for the fiscal year ending September 30, 2013. As of June 12, 2012, petitions for new employment of H-1Bs, that is, for employment of a person who is not yet in H-1B status for another employer, will not be accepted again until April 1, 2013. Those petitions received after April 1, 2013, must request employment starting October 1, 2013, so that they will be subject to next year’s cap (FY 2014).

H-1B1 petitions for nationals of Chile and Singapore may still be approved due to free trade agreements with those countries, and “cap exempt” employers (such as universities and nonprofit research organizations) may continue to seek H-1B status on behalf of their employees. In addition, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the FY 2013 H-1B cap.

The “final receipt date” for H-1B purposes is June 11, 2012. Regulations now provide that all H-1B petitions received by USCIS on or before June 11, 2012, have been submitted “under the cap,” but all H-1B petitions received by USCIS on or after June 12, 2012, will be rejected.

Contact your Alliance of Business Immigration Lawyers attorney about options for beneficiaries of H-1B petitions who did not make the cut-off for the cap.

Contact your ABIL attorney immediately if your organization wishes to sponsor any more cap-subject H-1B nonimmigrants for FY 2013.

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7.         Social Security Administration Releases Guidance on Employment Authorization for Nonimmigrants

The Social Security Administration recently released guidance to staff, effective May 21, 2012, on employment authorization for nonimmigrants with respect to Social Security issues. Topics discussed include the policy for nonimmigrant employment authorization, evidence proving a nonimmigrant’s employment authorization, the validity period, automatic extensions of employment authorization documents (EADs), nonimmigrants with automatic EAD extensions, the procedure when a Social Security number applicant submits an EAD based on an automatic EAD extension, and the policy for employment authorization by Class of Admission (COA).

The guidance includes a table listing the most recent automatic EAD extension information by country, and a table listing those who are employment-authorized without specific Department of Homeland Security (DHS) authorization, such as A-1 ambassadors and career diplomats, A-2 foreign government officials, H-1C registered nurses, H-2A agricultural workers, J-1 exchange visitors, and others. The guidance notes that although those listed under a COA in the table are employment-authorized without DHS authorization, “employers may still ask for an EAD before the alien can start working.” The guidance also includes a table listing COAs and descriptions of nonimmigrants who are authorized to work only with authorization from DHS, and another table listing those who are not authorized to work in the U.S.

The guidance is available at https://secure.ssa.gov/poms.nsf/lnx/0110211420.

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8.         USCIS Eliminates Original Signature Requirement on Supporting Forms for Certain Applications to Extend/Change Nonimmigrant Status

U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum on June 1, 2012, eliminating the original signature requirement for supporting Certificates of Eligibility for Nonimmigrant Student Status (Forms I-20) or Certificates of Eligibility for Exchange Visitor Status (DS-2019) submitted with Applications to Extend/Change Nonimmigrant Status (Forms I-539). USCIS explained that this change is part of its larger efforts to transition to electronic filing.

USCIS explained that applicants must submit an I-20 with the I-539 form when applying to change nonimmigrant status to F-1 or M-1, for reinstatement to F-1 or M-1 status, for a transfer of schools when in M-1 status, or for an extension of M-1 status. Signatures are required for the Designated School Official and the student. USCIS requires applicants to submit a DS-2019 with the I-539 when applying to change status to J-1. Signatures are required for the applicant and the Responsible Officer or Alternate Responsible Officer for the exchange program.

USCIS noted that when its Electronic Immigration System (USCIS ELIS) is launched for public use, applicants will have the option of submitting their applications either by using ELIS or filing on paper. For applications filed via ELIS, the agency will accept a scanned, electronic version of a valid and properly executed I-20 or DS-2019 for all I-539 filings when required. For any I-539 filed outside ELIS, the agency will accept a photocopy of a valid and properly executed I-20 or DS-2019. Regardless of how the applicant files once ELIS is launched, USCIS will not return the I-20 or DS-2019 to the applicant upon approval of the I-539.

Applicants wishing to have USCIS stamp their I-20 or DS-2019 may make an appointment online through InfoPass and take their form to their local USCIS office. Stamping of I-20s and DS-2019s is a “transitional service that field offices will perform for 6 months after ELIS launches for public use,” USCIS explained.

The memorandum is available at
http://www.uscis.gov/USCIS/Laws/Memoranda/2012/June%202012/Submission%20
of%20Form%20I-20%20or%20DS-2019%20in%20Support%20of%20Form%20I-
539.pdf
. For FAQs on ELIS, see
http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/
?vgnextoid=c5f924fa49716310VgnVCM100000082ca60aRCRD&vgnextchannel=c5f9
24fa49716310VgnVCM100000082ca60aRCRD
.

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9.         Multi-State Prostitution Ring Dismantled

Gregorio Hernandez-Castilla of Indianapolis, Indiana, was sentenced recently to 41 months in prison after pleading guilty to conspiring to operate an interstate prostitution ring with his two brothers. The prosecution was the result of an extensive investigation by multiple law enforcement agencies.

The three brothers headed the Hernandez-Castilla criminal organization, which had been operating for a number of years in the Indianapolis area, largely under the direction of Jose Luis Hernandez-Castilla. The brothers would acquire women to act as prostitutes, on many occasions smuggling them into the United States from Mexico and Central America. Once here, many were often without any means of support, and thus would engage in prostitution to pay off debts they owed the brothers for subsidizing their entry into the country.

In addition, the brothers directed another group of individuals who acted as local managers by running prostitution operations out of apartments and houses located throughout Indianapolis and in surrounding states, including Michigan, Illinois, and Ohio. The women engaged in prostitution were rarely allowed to stay in any one location for more than a week, and the operation employed numerous drivers who would transport the women from one site to another on a regular basis.

The organization operated almost exclusively within the Hispanic community, the Department of Homeland Security reported, advertising its services through the distribution of business cards bearing advertisements and telephone numbers for auto repair or western wear outfitters. These business cards were known within the Hispanic community as contact numbers for arranging appointments with prostitutes.

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10.       Appeals Court Denies Petition for Review, Upholds BIA Decision of Abandonment of LPR Status

In Lateef v. Holder, the petitioner argued that despite multiple long absences from the United States, she did not intend to abandon her lawful permanent resident (LPR) status, which also served as the foundation for her husband’s and child’s entry into the United States. The U.S. Court of Appeals for the Sixth Circuit denied the petition for review, holding that intent alone is insufficient to maintain LPR status and that her extended periods in Pakistan, including her final trip that lasted a year and three months, supported the BIA’s finding that she had abandoned her LPR status. The court also noted that the petitioner had lied in one instance to border officials about the date of her last visit to the United States.

Circuit Judge Jane B. Stranch dissented, noting among other things that errors by U.S. immigration officials were responsible for at least some of the delays in her returning, and that the petitioner’s daughter in Pakistan had emotional and physical problems that compelled her to spend time in Pakistan to care for her.

The decision is available at http://docs.justia.com/cases/federal/appellate-courts/ca6/10-3354/10-3354-2012-06-26.pdf.

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11.       ABIL Global (www.abil.com): Belgium

Belgium is working on implementation of the European Union (EU) Blue Card directive; there is an increasing focus on compliance; and a potential future change relates to the transfer of legislative power regarding work permits from the federal level to the regions.

Work Permits; Implementation of the EU Blue Card Directive

The Belgian work permit system is a very business-friendly model in practice. The “regular” work permit, with a resident labor test, has become very rare in the corporate immigration context. “Fast-track” work permits, without a resident labor test, can be obtained quite fast, within two to three weeks after the date of filing of the application.

The economic recession has not led to drastic changes to the Belgian work permit system. However, one protective measure, regarding Bulgarian and Romanian nationals, should be mentioned:

  • In principle, European Union (EU) nationals may work in Belgium without work permits, on the basis of the right of free movement of workers.
  • For Bulgaria and Romania, which joined the EU on January 1, 2007, restrictions on this right of free movement of workers were maintained during an initial transition term until the end of 2008. That was prolonged for another three years, until December 31, 2011. The Belgian government has decided to continue the restrictions until December 31, 2013. As a rationale for this decision, the government explicitly referred to the expected economic recession in 2012/2013 as well as to similar decisions of neighboring countries to maintain the restrictions.

In other developments, the Belgian Parliament and the Minister of Employment are currently working on implementation of the EU Blue Card Directive.

The available texts indicate that the Blue Card will exist alongside the current fast-track work permit B for highly skilled employees. The salary threshold for a Blue Card in 2012 will probably be Ы49,995, which is higher than the current threshold for a highly skilled work permit B (Ы37,721 for 2012).

The Belgian authorities will probably choose not to take professional experience into account to prove “higher professional qualifications,” but a higher education will be required, on condition that the studies needed to acquire it lasted at least three years. Belgium will probably not apply numerical limits.

Focus on Compliance

New Code on Labour and Social Security Criminal Law. A new Code on Labour and Social Security Criminal Law took effect on July 1, 2011. It mainly codifies existing compliance rules with regard to labor and social security law-related issues, including employment of foreigners, but also creates new compliance rules.

Unauthorized/illegal employment of a foreigner who is not entitled to live in Belgium more than three months is among the infringements that are considered very serious (“type 4” infringements).

The potential penalties for such infringement include a jail term of six months to three years and/or a criminal fine between Ы3,600 and Ы36,000 per employee, with a maximum of Ы3,600,000 (Ы36,000 x 100). Furthermore, the employer may be prohibited from operating the business for a limited time, between one month and three years. The court may also order closure of the company for the same duration.

The same two accompanying penalties (prohibition from operating the business and closure of the company for a limited time, between one month and three years) may be imposed upon “HR advisors,” largely defined as professionals providing advice or help to one or more employers or employees with regard to the carrying out of obligations as sanctioned by the Code, either for their own account or within an entity. According to some comments to the Code, HR consultants and payroll personnel are included in this category, but probably not lawyers or notary publics (although they may risk being an accomplice to an infringement). The courts can only impose these two accompanying penalties if they are deemed necessary to stop an infringement or to avoid repeat offending, provided that they are in proportion with overall socio-economic interests.

If the Public Prosecutor determines that this infringement does not justify criminal prosecution, an administrative fine may be imposed, ranging between Ы1,800 and Ы18,000 per employee, with a maximum of Ы1,800,000 (Ы18,000 x 100).

The Belgian authorities are working on implementation of the EU Illegals Employment Directive. A first proposal of an Act has been prepared but the text is not yet publicly available. The new Act may include the following:

  • The basic principle is that employers cannot employ a person who is not an EU citizen, who does not enjoy the right of free movement, and who is present on the Belgian territory, without that person meeting the requirements for stay or residence in Belgium. The employer must check the residence documents of the potential employee before employment. Furthermore, the employer must keep a copy of these documents available for inspection and notify the competent authorities of the start of the employment.
  • The new Act provides effective, proportionate, and dissuasive sanctions against employers who employ unauthorized third-country nationals in Belgium. These include general financial and criminal sanctions. The employer may also be liable to pay any outstanding remuneration to the employee. Finally, the employer may be required to pay taxes and social security contributions to Belgium.
  • If the infringing employer is a direct subcontractor, the contractor will also be severally liable, unless the subcontractor states in writing that it does not employ unauthorized employees. If the infringing employer is an indirect subcontractor, the contractor can only be severally liable after notification by the social inspection services and only up to the salary as of the date of such notification.
  • Employees may exercise their rights before the court, as may representative organizations for employers or employees and the Centre for Equal Opportunities and Opposition to Racism (an independent government agency that fights discrimination and racism and that assists victims).

Draft Act on increased coordination of inspection of illegal employment and fraud. On June 22, 2012, the Belgian federal government agreed to a draft Act that approves a cooperation agreement between the inspection departments on federal (Belgium) and regional (Brussels, Flanders, and Wallonia) levels. According to a press release on June 23, 2012, the aim is to enhance the cooperation between the inspection departments at the different levels “primarily in order to inspect the employment of foreign employees.”

Potential Change: Transfer of Legislative Power From Federal to Regional Level

A potential future change relates to the transfer of legislative power regarding work permits from the federal level to the regions. At present the regions (Brussels, Flanders, and Wallonia) process work permits on the basis of federal legislation. The coalition agreement of the federal government and the general policy statement of the federal Minister of Employment both mention the transfer of legislative authority regarding economic migration to the regions.

No specific steps have been taken yet to initiate this process. It is not yet clear whether, when, and to what extent the transfer of legislative power will be implemented. This could lead to different rules for Brussels, Flanders, and Wallonia.

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12.       Firm In The News

Cyrus  Mehta was quoted in the media recently, at
http://www.ilw.com/immigrationdaily/digest/2012,0620.shtm, http://www.fronterasdesk
.org/news/2012/jun/22/details-romneys-immigration-platform/#.T-TczlLeCqg
,
http://business-standard.com/india/news/annual-quota-for-h1-b-visas-exhausted/477313/, and
http://articles.economictimes.indiatimes.com/2012-06-10/news/32141672_1_uk-borde
r-agency-highly-skilled-immigrants-kamal-rahman
.

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PRESIDENT ANNOUNCES DEFERRED ACTION, WORK AUTHORIZATION FOR CERTAIN CHILDREN OF UNDOCUMENTED PERSONS

In a surprise move, President Barack Obama announced that certain children of undocumented persons may be granted deferred action and work authorization, based on prosecutorial discretion.

 Secretary of Homeland Security Janet Napolitano detailed the change in a memorandum sent on June 15, 2012, to David V. Aguilar, Acting Commissioner, U.S. Customs and Border Protection (CBP); Alejandro Mayorkas, Director, U.S. Citizenship and Immigration Services (USCIS); and John Morton, Director, U.S. Immigration and Customs Enforcement (ICE). The memo explains that additional measures are necessary to ensure that enforcement resources are not expended on “low priority cases” such as those who were brought to this country as children and lack the intent to violate the law.

 Before a person may be considered for an exercise of prosecutorial discretion under the memo, he or she must:

  • have come to the United States under the age of 16;
  • have continuously resided in the United States for at least five years preceding June 15, 2012, and have been present in the United States on June 15, 2012;
  • be currently in school, have graduated from high school, have obtained a general education development certificate, or be an honorably discharged veteran of the U.S. Coast Guard or Armed Forces;
  • not have been convicted of a felony, a significant misdemeanor, multiple misdemeanors, or otherwise not pose a threat to national security or public safety; and
  • not be above the age of 30.

The above criteria are to be considered, the memo states, whether or not an individual is already in removal proceedings or subject to a final order of removal. “No individual should receive deferred action under this memorandum unless they first pass a background check and requests for relief pursuant to this memorandum are to be decided on a case by case basis.” The memo notes that the Department of Homeland Security “cannot provide any assurance that relief will be granted in all cases.”

The memo details what ICE, CBP, and USCIS should do when encountering individuals meeting the above criteria, with specifics for various circumstances. For example, for those who are in removal proceedings but not yet subject to a final order of removal, ICE should exercise prosecutorial discretion “by deferring action for a period of two years, subject to renewal.” The memo also notes that, for those granted deferred action by either ICE or USCIS, USCIS will accept applications to determine whether such individuals qualify for work authorization during the period of deferred action.

The memo explains that U.S. immigration laws “are not to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language.”

Several weeks ago, a letter from nearly 100 law professors outlined options under prosecutorial discretion the President could use to provide administrative relief in these cases, such as the use of deferred action. The letter noted, “Though no statutes or regulations delineate deferred action in specific terms, the U.S. Supreme Court has made clear that decision to initiate or terminate enforcement proceedings fall squarely within the authority of the Executive.”

In fact, Gary Endelman and Cyrus Mehta were one of the early voices to advocate for administration action when Congress has been in a stalemate with respect to much needed immigration reform in a blog entitled Keeping Hope Alive: President Obama Can Use His Executive Power Until Congress Passes he Dream Act. Endelman and Mehta have also argued in Tyranny of Priority Dates that such administrative actions do not violate the separation of powers doctrine in the US Constitution.

Not everyone agrees with that viewpoint, however. Kris Kobach, Kansas’ Secretary of State, asserted that Congress removed prosecutorial discretion for such purposes in 1996, and accused President Obama of “breaking federal law.” However, Stephen Yale-Loehr, professor of immigration law at Cornell law school, noted that the 1996 law focused on restricting the ability of federal courts to overturn immigration agency decisions; it did not address the rule of the executive branch on this particular issue. “Deferred action is a longstanding form of administrative relief used by presidents of both parties over many years,” he noted.

Credit mainly goes to the thousands of Dream Act youth activists who boldly staged rallies, many of whom courageously revealing their undocumented status, thereby creating a sense of moral urgency for President Obama to act.

Secretary Napolitano’s memo is available athttp://www.dhs.gov/xlibrary/assets/
s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf
.
A related ICE announcement is available at http://www.ice.gov/news/releases/1206/120615washingtondc.htm. A Spanish-language version of the ICE announcement is available at http://www.ice.gov/espanol/releases/120615washingtondc_sp.htm. An ICE FAQ on the process is available at http://www.ice.gov/about/offices/enforcement-removal-operations/publicadvocate/deferred-action-process.htm. USCIS’s related memo is available at http://www.ice.gov/doclib/about/offices/ero/pdf/s1-certain-young-people-morton.pdf. (Director Morton said additional guidance “will be issued as soon as possible.”) The professors’ letter is available at http://www.nilc.org by typing “professors letter deferred action” in the Search field.

June 2012 Immigration Update

Headlines:

1.         USCIS Launches Online Immigration System – Individuals can establish a USCIS ELIS account and apply online to extend or change their nonimmigrant status for certain visa types.

2.         USCIS EB-5 Stakeholders Meeting Provides Little New Information – USCIS did not answer stakeholder questions that had been submitted before the meeting.

3.         Senators Urge Mayorkas Not To ‘Undermine’ L Visa Program – The senators said they were concerned that the L-1B visa program, which allows companies to transfer employees with specialized knowledge from their foreign facilities to their U.S. offices, “is harming American workers.”

4.         USCIS Centralizes Filing, Adjudication of Certain Waivers of Inadmissibility – Beginning June 4, 2012, individuals abroad who have applied for certain visas and have been found ineligible by a U.S. consular officer will be able to mail requests to waive certain grounds of inadmissibility directly to a USCIS lockbox facility.

5.         DHS Extends, Redesignates Somalia for TPS – Somali nationals with TPS who are seeking to re-register for TPS must file their application packages during the 60-day re-registration period that runs from May 1, 2012, through July 2, 2012.

6.         Department of Labor Advises on H-2B Final Rule Injunction, Procedures for H-2B Labor Certifications – The Department of Labor published a Federal Register notice on May 16, 2012, advising on the injunction the U.S. District Court for the Northern District of Florida placed on implementation of the H-2B 2012 final rule.

7.         CDMA Sends Comment On Proposed Provisional Waiver Rule – CDMA proposed, among other things, that USCIS remove portions of the proposed provisional waiver rule prohibiting the grant of a provisional waiver to those who are or have been in removal proceedings.

8.         ABIL Sends Comments on I-9 Proposed Revisions – ABIL formally objected to the failure of USCIS to submit for full regulatory review, with opportunity for public comment, the proposed three-page instructions to the I-9 and another set of 64 pages of instructions in the “Handbook for Employers.”

9.         NLRB Issues Guidance on Compliance Cases – Among other things, a respondent may not use the compliance phase as a means to fish for disabling employee conduct under IRCA.

10.        Labor Dept. Says Preliminary Injunction on H-2B Final Rule Calls Into Doubt Its Authority – The Department said the preliminary injunction calls into doubt the authority of the Department of Labor to fulfill its responsibilities under the INA and Department of Homeland Security regulations to issue labor certifications for H-2B workers.

11.        EEOC Ordered To Reveal Immigration Status or Abandon Claims -The EEOC must either reveal the immigration status of women it is representing in a harassment lawsuit or abandon recovery of monetary damages for the claimants who will not disclose their status.

12.        ABIL Global: Canada – As of March 1, 2012, certain individuals, previously ineligible for entry to Canada due to past criminality, may be eligible for a fee-exempt “on the spot” temporary resident permit for one visit to Canada.

13.        Firm In The News

Details

1.         USCIS Launches Online Immigration System

On May 22, 2012, U.S. Citizenship and Immigration Services (USCIS) launched the first phase of its electronic immigration benefits system, USCIS ELIS.

Individuals can establish a USCIS ELIS account and apply online to extend or change their nonimmigrant status for certain visa types. Eligible individuals include foreign citizens who travel to the United States temporarily to study, conduct business, receive medical treatment, or visit on vacation. USCIS ELIS will also enable USCIS officers to review and adjudicate online filings from multiple agency locations.

Following this first release, USCIS anticipates making adjustments and improvements in response to user feedback. Future releases will add form types and functions to the system, gradually expanding to cover filing and adjudication for all USCIS immigration benefits.

USCIS said the benefits of using USCIS ELIS include filing applications and paying fees online, shorter processing times, and the ability to update user profiles, receive notices, and respond to requests electronically. The system also includes tools to combat fraud and identify national security concerns.

The notice is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a
/?vgnextoid=4eaa169ccc477310VgnVCM100000082ca60aRCRD&vgnextchannel=6
8439c7755cb9010VgnVCM10000045f3d6a1RCRD
.

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2.         USCIS EB-5 Stakeholders Meeting Provides Little New Information

U.S. Citizenship and Immigration Services (USCIS) held a quarterly EB-5 stakeholders meeting on May 1, 2012. Over 250 people attended in person, and over 300 listened by phone. Despite the interest in the meeting, USCIS did not provide much information. For example:

  • USCIS did not allow questions about and did not comment on the “tenant-occupancy” methodology issue, stating that the issue is under review. USCIS confirmed that applicants who were issued a “tenant-occupancy” RFE will be contacted with a notice that their deadline for response will be extended. However, there were no promises of forthcoming guidance related to the RFE.
  • USCIS did not answer stakeholder questions that had been submitted before the meeting.
  • USCIS expressed no specific plan or goals to improve processing times, which have slowed in recent months.
  • USCIS expressed no specific plan or goals to improve communication through the public engagement mailbox or through the I-924 applicant e-mail lines.
  • USCIS expressed no specific plan or goals to communicate expectations and standards in a more open manner.
  • USCIS suggested that a new draft of its “foundational” EB-5 policy memo would be emerging “in a few weeks,” and that the agency is not currently deferring to the draft memo or implementing the “material change” guidance included in the current draft.
  • USCIS refused to say how it would handle pending EB-5 petitions if Congress fails to extend the EB-5 pilot program after September 30, 2012. USCIS said it would address this issue at its July EB-5 stakeholders meeting.

According to the latest EB-5 program statistics based on preliminary data for the second quarter of fiscal year (FY) 2012, USCIS received 2,771 I-526 (Immigrant Petition by Alien Entrepreneur) petitions and had approved 2,101 and denied 384 so far. This was an 85 percent approval rating, compared to an 81 percent approval rating for all of FY 2011 and an 89 percent approval rating for all of FY 2010. As of the second quarter of FY 2012, USCIS had received 375 I-829 (Petition by Entrepreneur to Remove Conditions) petitions and had approved 522 and denied 24 so far. This was a 96 percent approval rating, matching a 96 percent approval rating for all of FY 2011 and exceeding an 83 percent approval rating for FY 2010.

USCIS also noted that as of March 31, 2012, processing times were reaching 6 months for an I-924 initial application (target is 4 months), and were reaching 8 months for an I-924 amendment application (target is 4 months). USCIS recently approved four new regional centers: the California Regional Center, LLC; Las Vegas EB-5 Immigration, LLC; New York City Real Estate Regional Center, LLC; and Lone Star Regional Center, LLC. The full list of RCs by state is available at http://www.uscis.gov/eb-5centers/.

The next USCIS stakeholder engagement meetings are scheduled for July 26, 2012 (regional center discussion) and October 23, 2012 (general EB-5 discussion). See
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1
a/?vgnextoid=e0138e0732344310VgnVCM100000082ca60aRCRD&vgnextchanne
l=e0b081c52aa38210VgnVCM100000082ca60aRCRD
for additional details on the engagement meetings and the latest statistics. A recording of the stakeholder engagement is available at https://www.dropbox.com/sh/49aajm17197dduj/UflFKzZOOq. The latest statistics are available at
http://www.uscis.gov/USCIS/Outreach/Upcoming%20National%20Engagements/Upc
oming%20National%20Engagement%20Pages/2012%20Events/May%202012/EB-5Stats.pdf
. The latest EB-5 regional center statistics and information page is available at
http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1
a/?vgnextoid=2785a5f224a2e210VgnVCM100000082ca60aRCRD&vgnextchannel=
2785a5f224a2e210VgnVCM100000082ca60aRCRD
.

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3.         Senators Urge Mayorkas Not To ‘Undermine’ L Visa Program

Sens. Charles Grassley (R-Iowa) and Richard Durbin (D-Ill.) recently urged Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services, not to propose changes that “would undermine the L visa program” when USCIS issues new guidance on the L-1B “specialized knowledge” standard, expected in the near future. The senators shared their thoughts in a letter sent to Director Mayorkas on March 7, 2012.

The senators said they were concerned that the L-1B visa program, which allows companies to transfer employees with specialized knowledge from their foreign facilities to their U.S. offices, “is harming American workers” because some employers, especially foreign outsourcing companies, “use L-1B visas to evade restrictions on the H-1B visa program.” For example, the senators noted, the L-1 program does not have an annual cap and does not include the labor protections of the H-1B program.

In January 2011, the Department of State issued new guidance to consular officers on adjudicating visas under the specialized knowledge category, outlining criteria including (1) the proprietary nature of the knowledge possessed by the visa applicant, (2) whether the visa applicant is “key” or normal personnel, and (3) whether the applicant possesses more skills or knowledge than an “ordinary” employee. The senators also noted that in July 2008, USCIS’s Administrative Appeals Office (AAO) considered the definition of “specialized knowledge” and concluded that such employees are “an elevated class of workers within a company and not an ordinary or average employee.” The senators advocated adoption of the standards and reasoning articulated in the January 2011 Department of State guidance and the July 2008 AAO decision. “We are concerned that any weakening of the standard would create additional incentives for some employers to use the L-1B visa program in order to circumvent even the minimal wage and other protections for American workers in the H-1B visa program.”

A USCIS spokesperson said, “USCIS is currently reviewing its L-1B policy guidance, which is comprised of a series of memoranda dating back to 1994, to assess whether that guidance assists adjudicators in applying the law in new business settings that companies face today.”

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4.         USCIS Centralizes Filing, Adjudication of Certain Waivers of Inadmissibility

Beginning June 4, 2012, individuals abroad who have applied for certain visas and have been found ineligible by a U.S. consular officer will be able to mail requests to waive certain grounds of inadmissibility directly to a U.S. Citizenship and Immigration Services (USCIS) lockbox facility. This change affects where individuals abroad, who have been found inadmissible for an immigrant visa or a nonimmigrant K or V visa, must send their waiver applications.

Those filing waiver applications with a USCIS lockbox will now be able to track the status of their cases online. The change affects filings for:

Applicants who mail their waiver request forms should use the address provided in the revised form instructions on the USCIS website. Applicants who wish to receive an e-mail or text message when USCIS has received their waiver request may attach Form G-1145, E-Notification of Application/Petition Acceptance, to their application.

During a limited six-month transition period, immigrant visa waiver applicants in Ciudad Juarez, Mexico, may either mail their waiver applications to the USCIS lockbox in the United States or file in person at the USCIS office in Ciudad Juarez. USCIS said it is aware of the pending caseload for applicants in Ciudad Juarez and “is taking proactive steps to work through these cases.” USCIS plans to increase significantly the number of officers assigned to adjudicate the residual cases filed before June 4 and those filed during the interim six-month transition period. USCIS has already begun testing this process and has transferred applications from Ciudad Juarez to other USCIS offices in the United States.

This change is separate and distinct from the provisional waiver proposal published in the Federal Register on March 30, 2012.

The USCIS announcement is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a
/?vgnextoid=8e5b8976a0a77310VgnVCM100000082ca60aRCRD&vgnextchannel=
68439c7755cb9010VgnVCM10000045f3d6a1RCRD
.

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5.         DHS Extends, Redesignates Somalia for TPS

The Department of Homeland Security has redesignated Somalia for temporary protected status (TPS) and extended the existing TPS designation from September 18, 2012, through March 17, 2014. Somali nationals with TPS who are seeking to re-register for TPS must file their application packages during the 60-day re-registration period that runs from May 1, 2012, through July 2, 2012. Somalis (or persons without nationality who last habitually resided in Somalia) in the United States who do not currently have TPS may apply under the re-designation during the six-month period that runs from May 1, 2012 through October 29, 2012. U.S. Citizenship and Immigration Services (USCIS) encourages eligible individuals to register as soon as possible.

A Somali national may be eligible under the redesignation if she or he has continuously resided in the United States since May 1, 2012, and has been continuously physically present in the United States since Sept. 18, 2012.

DHS anticipates that there are approximately 250 individuals who will be eligible to re-register for TPS under the existing designation of Somalia and estimates that fewer than 1,000 additional individuals will be eligible for TPS under the redesignation.

DHS said the extension of the current Somalia TPS designation is due to the continued disruption of living conditions in the country based upon extraordinary and temporary conditions that prompted the Attorney General’s redesignation of Somalia for TPS on September 4, 2001. The latest redesignation is based on “ongoing armed conflict and the worsening of the extraordinary and temporary conditions, including the effects of the recent severe drought in Somalia.”

The announcement is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1
a/?vgnextoid=be2e332606807310VgnVCM100000082ca60aRCRD&vgnextchannel
=68439c7755cb9010VgnVCM10000045f3d6a1RCRD
. The related Federal Register notice is available at http://www.gpo.gov/fdsys/pkg/FR-2012-05-01/pdf/2012-10388.pdf.

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6.         Department of Labor Advises on H-2B Final Rule Injunction, Procedures for H-2B Labor Certifications

The Department of Labor published a Federal Register notice on May 16, 2012, advising on the injunction the U.S. District Court for the Northern District of Florida placed on implementation of the H-2B 2012 final rule, published in February, and outlining procedures to be followed in seeking labor certification to file H-2B petitions. The notice states that employers must file H-2B labor certification applications under the 2008 H-2B rule, using those procedures and forms associated with the 2008 H-2B rule for which the Department has received an emergency extension.

The notice states that “this preliminary injunction necessarily calls into doubt the underlying authority of the Department to fulfill its responsibilities under the Immigration and Nationality Act and [Department of Homeland Security] regulations to issue the labor certifications that are a necessary predicate for the admission of H-2B workers.” The Office of Foreign Labor Certification plans to post additional filing guidance on its website at http://www.foreignlaborcert.doleta.gov/.

The notice is available at http://www.foreignlaborcert.doleta.gov/pdf/h_2bfrn.pdf.

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7.         CDMA Sends Comment On Proposed Provisional Waiver Rule

Cyrus D. Mehta & Associates, P.L.L.C. (CDMA) sent comments on the recently proposed rule regarding ТProvisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate RelativesУ (DHS Docket No. USCIS-2012-2003) to U.S. Citizenship and Immigration Services (USCIS) on June 1, 2012.  USCIS has proposed regulatory changes pursuant to which an applicant for an immigrant visa could, prior to departing from the United States to attend a visa interview, be granted a provisional waiver of the inadmissibility under INA ¤ 212(a)(9)(B) that will result from the applicantХs prior unlawful presence in the United States when the applicant departs the United States to apply for an immigrant visa.

CDMA proposed that USCIS remove provisions in its proposed rule which would forbid the grant of a provisional waiver to various types of applicants who are or have been in removal proceedings; that USCIS alter how the proposed rule addresses applicants who may face inadmissibility under INA ¤ 212(a)(6)(C) on the basis of alleged fraud; and that USCIS extend eligibility for provisional waivers to over-21-year-old sons and daughters of U.S. citizens.  While commending USCIS for its proposal, CDMAХs comment points out that allowing applicants who are in removal proceedings or are subject to a final removal order to apply for a discretionary provisional waiver of inadmissibility will create greater efficiencies and is consistent with past regulatory practice in the area of advance permission to reapply for admission.  Moreover, allowing either an advance waiver of inadmissibility due to fraud, or at least an advance determination of whether an applicant should be found inadmissible due to fraud, will allow more applicants who may otherwise need to pursue a complex claim under Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), in immigration court, to utilize the provisional waiver process instead.  Finally, expanding the provisional waiver process to cover adult sons and daughters of U.S. citizens could fill some of the gap left by the failure to enact the DREAM Act.

CDMAХs detailed comment on the proposed provisional waiver rule

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8.         ABIL Sends Comments on I-9 Proposed Revisions

The Alliance of Business Immigration Lawyers (ABIL) sent comments on the revised Form I-9 (Employment Eligibility Verification) on May 23, 2012, to U.S. Citizenship and Immigration Services (USCIS). ABIL formally objected to the failure of USCIS to submit for full regulatory review, with opportunity for public comment, the proposed three-page instructions to the I-9 and another set of 64 pages of instructions in the “Handbook for Employers,” accessible at http://www.uscis.gov/files/form/m-274.pdf. These instructions are to be treated as incorporated amendments of USCIS regulations, and ABIL noted that the I-9 instructions impose substantive legal requirements.

The agency “has not complied with several federal statutes and presidential directives including the Administrative Procedure Act [APA], the [Paperwork Reduction Act (PRA)], the Regulatory Flexibility Act, Executive Orders 12866 and 13563 and OMB Circular A-4,” ABIL said. Moreover, the PRA public burden and cost estimate of $414,375,200 is “woefully inadequate.” The time estimate for completion of the form is three minutes, which, according to the three-page I-9 instructions, includes reading the instructions. This could not conceivably include a reading of the M-274Хs 64 pages of instructions, ABIL noted. Moreover, given the number of respondents (projected by USCIS to be 78 million), the cost burden estimate “must inevitably be many multiples of $414,375,200.” For the foregoing reasons, ABIL urged the Office of Management and Budget (OMB) to remand the information collection review to USCIS as unapproved and to direct the agency to comply in full with the applicable laws and regulations.

ABIL included detailed comments on the revised draft I-9. The comments will be posted shortly on http://www.abil.com/.

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9.         NLRB Issues Guidance on Compliance Cases

The National Labor Relations Board (NLRB) issued guidance on May 4, 2012, to regions for investigating and litigating compliance issues under Flaum Appetizing Corp., 357 NLRB No. 162 (Dec. 30, 2011). The memo acknowledges that the Supreme Court in Hoffman Plastics Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) concluded that the Immigration Reform and Control Act of 1986 (IRCA) bars the NLRB from awarding backpay to any individual who was not legally authorized to work in the United States during the backpay period. However, the NLRB noted that an employee’s work authorization status generally is irrelevant to the merits of an unfair labor practice compliant; it only becomes a triable issue at the compliance stage. Nonetheless, the NLRB memo states, a respondent “may not use the compliance phase as a means to fish for disabling employee conduct under IRCA, i.e., no legal authorization for its employees to work in the United States.”

In Flaum, the NLRB concluded that “IRCA does not require that the Board permit baseless inquiry into immigration status in every case in which reinstatement or backpay is granted.” In the compliance phase, the NLRB memo says, regions should demand a full accounting of evidence upon which a respondent intends to rely to assert that employees are ineligible for backpay under Hoffman Plastics.

The NLRB memo also notes, among other things, that before Flaum, an employer was permitted to require discriminatees to complete the appropriate portion of the I-9 employment authorization verification form and submit appropriate documentation as a condition of reinstatement. “A reinstatement offer will no longer be considered valid if it is conditioned on re-verification of employment status,” the NLRB memo states.

The memo is available at http://www.nlrb.gov/search/simple/all/om%2012-55.

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10.       Labor Dept. Says Preliminary Injunction on H-2B Final Rule Calls Into Doubt Its Authority

On May 7, 2012, the Office of Foreign Labor Certification of the Department of Labor’s Employment and Training Administration released the following statement regarding the preliminary injunction of the H-2B final rule by the U.S. District Court for the Northern District of Florida:

On April 26, 2012, the Temporary Non-Agricultural Employment of H-2B Aliens in the United States, Final Rule, 77 FR 10038, Feb. 21, 2012 was preliminarily enjoined by the U.S. District Court for Northern District of Florida, Pensacola Division in Bayou Lawn & Landscape Services, et al. v. Hilda L. Solis, et al., 12-cv-00183-RV-CJK, and was never implemented. Therefore, for the present time employers should file their H-2B labor certification applications under the Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes, 73 FR 78020, Dec. 19, 2008. However, please be aware that this preliminary injunction necessarily calls into doubt the underlying authority of the Department of Labor to fulfill its responsibilities under the Immigration and Nationality Act and Department of Homeland Security regulations to issue the labor certifications that are a necessary predicate for the admission of H-2B workers.

The statement is available at http://www.foreignlaborcert.doleta.gov/.

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11.       EEOC Ordered To Reveal Immigration Status or Abandon Claims

On May 7, 2012, Judge Lonny R. Suko of the U.S. District Court for the Eastern District of Washington told the Equal Employment Opportunity Commission (EEOC) that it had to either reveal the immigration status of women it is representing in a harassment lawsuit or abandon recovery of monetary damages for the claimants who will not disclose their status. The EEOC had objected on Fifth Amendment grounds, and sought a protective order. EEOC v. Evans Fruit Co., Inc., Case No. CV-10-3033 LRS (E.D. Wash.). The court noted that even if an assertion of Fifth Amendment privileges is proper, “there are consequences.” The court said “it should have been apparent to the EEOC that some of the claimants now had a choice to make: either continue to be part of the litigation and provide answers in discovery subject to the protective order, or decline toЙbe part of the litigation.”

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12.       ABIL Global: Canada

As of March 1, 2012, certain individuals previously ineligible for entry to Canada due to past criminality may be eligible for a fee-exempt “on the spot” temporary resident permit for one visit to Canada.

To qualify for the exemption, the port of entry applicant must:

  • have served no jail time, and
  • have committed no other acts that would prevent him or her from entering Canada.

Applicants may be eligible for the fee waiver if they:

  • have been convicted of an eligible offense (or its equivalent in foreign law);
  • have served no jail time;
  • have committed no other acts that would prevent them from entering Canada; and
  • are not inadmissible for any other reason.

Eligible convictions include those equivalent to criminal offenses under the Immigration and Refugee Protection Act (IRPA), Section 36(2).

The equivalent convictions vary from country to country. Among others, they include:

  • driving under the influence of alcohol;
  • public mischief; or
  • shoplifting.

All serious criminal offenses, defined under Section 36(1) of IRPA, are not eligible. Among others, they include:

  • robbery;
  • fraud over C$5000; or
  • assault causing bodily harm.

Applicants may become admissible again if they:

Legal representation for these various applications and processes is strongly recommended because refusal rates are high.

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  1. Firm InThe News

Cyrus Mehta will speak on “Third Party Placement” at the upcoming American Immigration Lawyers Association Conference to be held on June 13-16, 2012, in Nashville, TN.

David Isaacson will speak on “Crimes for Business Immigration Lawyers” at the upcoming American Immigration Lawyers Association Conference to be held on June 13-16, 2012, in Nashville, TN.

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IT’S ALL ABOUT NUMBERS: INDIA & CHINA EB-2 CATEGORY UNAVAILABLE; H-1B VISAS RUNNING OUT

In May, as predicted, the India and China priority dates in the employment-based second preference (EB-2) green card category retrogressed dramatically, from May 1, 2010, to August 15, 2007. The EB-2 category is for people with advanced degrees or who have exceptional ability. The Department of State’s Visa Office has announced that this category is now “Unavailable” for both India and China and will remain so for the remainder of fiscal year 2012.

If an I-485 Application for Adjustment of Status was filed while the personХs priority date was current, it will remain pending until the priority date is current again. Because the I-485 will remain pending, the applicant can continue to apply for interim benefits, such as work authorization and advance parole, while the priority date is unavailable.

The Visa Office includes the following information in the June Visa Bulletin:

Despite the retrogression of the China and India Employment Second preference cut-off date to August 15, 2007, demand for numbers by applicants with priority dates earlier than that date remained excessive. Such demand is primarily based on cases which had originally been filed with the U.S. Citizenship and Immigration Services (USCIS) for adjustment of status in the Employment Third preference category, and are now eligible to be upgraded to Employment Second preference status. The potential amount of such ТupgradeУ demand is not currently being reported, but it was evident that the continued availability of Employment Second preference numbers for countries other than China and India was being jeopardized. Therefore, it was necessary to make the China and India Employment Second preference category ТUnavailableУ in early April, and it will remain so for the remainder of FY 2012.

Numbers will once again be available for China and India Employment Second preference cases beginning October 1, 2012 under the FY-2013 annual numerical limitations. Every effort will be made to return the China and India Employment Second preference cut-off date to the May 1, 2010 date which had been reached in April 2012. Readers should be advised that it is impossible to accurately estimate how long that may take, but current indications are that it would definitely not occur before spring 2013.

USCIS has indicated that it will continue accepting China and India Employment Second preference I-485 filings during May, based on the originally announced May cut-off date.

On a related note, many Indian degrees have recently been downgraded from a MasterХs level to a BachelorХs level by Electronic Database for Global Education (ТEDGEУ) administered by the American Association of Collegiate Registrars and Admissions Officers.  For instance, EDGE has now confirmed that a post-graduate diploma from the prestigious Indian Institute of Management, India, is equivalent to a US BachelorХs degree and no longer to a US MasterХs degree which was the case for several years.  All other post-graduate diploma programs from Indian business schools are also equivalent to a US BachelorХs level degree only.  Such downgrades could make it more challenging for I-140 petitions to be filed under the EB-2 rather than EB-3 category.

With respect to H-1B visas under the FY 2013 cap, as of May 11, 2012, approximately 36,700 H-1B regular cap subject cases were received by the USCIS. In addition, USCIS received 14,800 H-1B cases towards the advanced degree cap.  This means there are only 28,300 left under the regular 65,000 H-1B cap and only 5,200 towards the advanced degree cap for the FY 2013.