December 2014 Immigration Update

Headlines:

1. Obama Takes Executive Action on Immigration – Shortly after the mid-term elections, President Barack Obama initiated several executive actions on immigration.

2. Labor Dept. To Modernize PERM Recruitment and Application Requirements DOL will review the PERM program and relevant regulations with a goal of updating them.

3. Labor Dept. Establishes Interagency Working Group on Worker Protections The new interagency working group will identify policies and procedures that promote the consistent enforcement of federal labor, employment, and immigration laws to “protect all workers in the U.S.”

4.  1.  ABIL Global: Poland Poland regards special economic zones as an important instrument to stimulate foreign investment. There are new investment opportunities in Polish real estate 12 years after Poland’s accession to the EU.

5. Firm In the News

Details:

1.         Obama Takes Executive Action on Immigration

Shortly after the mid-term elections, President Barack Obama initiated several executive actions on immigration.

As outlined in a series of Department of Homeland Security memoranda, the executive actions include, among other things:

б       Supporting high-skilled business and workers. The Department of Homeland Security (DHS) will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training. For example, DHS notes, “because our immigration system suffers from extremely long waits for green cards, we will amend current regulations and make other administrative changes to provide needed flexibility to workers with approved employment-based green card petitions.”

         Some of the actions called for in the memo include:

        U.S. Citizenship and Immigration Services (USCIS) working with the Department of State (DOS) to improve the system for determining when immigrant visas are available to applicants during the fiscal year. DOS has agreed to modify its visa bulletin system “to more simply and reliably make such determinations,” and the memo states an expectation that USCIS will revise its current regulations “to reflect and complement these proposed modifications.”

        USCIS considering “amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where [beneficiaries] seek to change jobs or employers.”

      U.S. Immigration and Customs Enforcement (ICE) developing regulations for notice and comment to expand the degree programs eligible for Optional Practical Training (OPT) and to extend the time period and use of OPT for foreign STEM (science, technology, engineering, and mathematics) students and graduates.

      USCIS issuing guidance or regulations to clarify the standard for granting a national interest waiver green card, with the aim of promoting its greater use.

     USCIS proposing a program allowing parole status, on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises who may not yet qualify for national interest waivers but “who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.” The regulation will include income and resource thresholds.

        USCIS issuing a policy memorandum to provide “clear, consolidated guidance” on the meaning of “specialized knowledge” in adjudicating L-1B petitions.

        USCIS issuing a policy memorandum providing guidance on worker portability, specifically with respect to what constitutes a “same or similar” job, with a goal of removing “unnecessary restrictions” on “natural career progression.”

The memo explaining these actions is available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_business_actions.pdf

Enforcement efforts, including commissioning three Joint Task Forces. Joint Task Force East, Joint Task Force West, and Joint Task Force Investigations. All three will incorporate elements of the U.S. Coast Guard, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services. Joint Task Force East will be responsible for the southern maritime border and approaches. Joint Task Force West will be responsible for the southern land border and the West Coast. Joint Task Force Investigations will focus on investigations in support of the geographic Task Forces.

The overarching goals of the Southern Border and Approaches Campaign, of which the Joint Task Forces are a part, will be to enforce immigration laws and interdict individuals seeking to enter the U.S. without authorization; degrade international criminal organizations; and decrease the threat of terrorism. The memo explaining these actions is available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_southern_border_campaign_plan.pdf.

 

Ending the Secure Communities program and replacing it with the Priority Enforcement Program, and prioritizing criminal offenses for arrest, detention, and removal. The memos explaining these actions are available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf and http://www.dhs.gov/sites/default/files/publications/14_1120_memo_secure_communities.pdf. 

  • Expanding Deferred Action for Childhood Arrivals (DACA) to encompass a broader class of children. DACA eligibility had been limited to those who were under 31 years of age on June 15, 2012, who entered the United States before June 15, 2007, and who were under 16 years old when they entered. DACA eligibility will be expanded to cover all undocumented immigrants who entered the United States before the age of 16, and not just those born after June 15, 1981. The entry date will be adjusted from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two. The memo explaining this action is available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf.
  •  Extending eligibility for deferred action to parents of U.S. citizens and lawful permanent residents. This new program, called Deferred Action for Parental Accountability (DAPA), will include individuals who (i) are not removal priorities under the new policy, (ii) have been in the United States at least five years, (iii) have children who on the date of the announcement (November 20, 2014) were U.S. citizens or lawful permanent residents, and (iv) present no other factors that would make a grant of deferred action inappropriate. These individuals will be assessed for eligibility for deferred action on a case-by-case basis. They may then apply for work authorization, provided they pay a fee. Each individual will undergo a background check of relevant national security and criminal databases, including DHS and FBI databases. The memo explaining this action is available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf.
  •  Expanding I-601A provisional waivers to spouses and children of lawful permanent residents. The provisional waiver program DHS announced in January 2013 for undocumented spouses and children of U.S. citizens will be expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents. At the same time, the administration will further clarify the “extreme hardship” standard that must be met to obtain the waiver. The memo explaining this action is available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_i601a_waiver.pdf.

President Obama also issued a memorandum directing the Secretaries of State and Homeland Security, in consultation with other federal agencies, to develop recommendations for improving the U.S. visa system. The recommendations will be developed in consultation with “business people, labor leaders, universities, and other stakeholders.” The recommendations will be geared toward streamlining and improving the legal immigration systemСincluding immigrant and non-immigrant visa processingС”with a focus on reforms that reduce government costs, improve services for applicants, reduce burdens on employers, and combat waste, fraud, and abuse in the system.”

In consultation with stakeholders with relevant expertise in immigration law, they will also develop recommendations “to ensure that administrative policies, practices, and systems use all of the immigrant visa numbers that the Congress provides for and intends to be issued, consistent with demand.” In consultation with technology experts inside and outside the government, they will develop recommendations “for modernizing the information technology infrastructure underlying the visa processing system, with a goal of reducing redundant systems, improving the experience of applicants, and enabling better public and congressional oversight of the system.”

President Obama also announced that he is establishing a White House Task Force on New Americans, an interagency effort “to identify and support state and local efforts at integration that are working and to consider how to expand and replicate successful models.” The Task Force, which will engage with community, business, and faith leaders, as well as state and local elected officials, “will help determine additional steps the federal government can take to ensure its programs and policies are serving diverse communities that include new Americans.” Among other things, the Task Force will submit an “Integration Plan” to President Obama, which will include an assessment of the members’ agencies with respect to integration efforts, and recommendations. The Task Force will also identify and disseminate best practices at the state and local level, collect and disseminate data on immigrant integration, and provide technical assistance.

A letter transmitted by 136 law professors to the White House on November 20, 2014, and updated on November 25, supports President Obama’s legal authority to expand the DACA program and to establish the Deferred Action for Parental Accountability (DAPA) program. It is available at https://pennstatelaw.psu.edu/sites/default/files/documents/pdfs/Immigrants/executive-action-law-prof-letter.pdf.

President Obama also issued an “immigration blueprint,” outlined in “Building a 21st Century Immigration System,” which includes additional proposals. The blueprint is available at http://www.whitehouse.gov/sites/default/files/rss_viewer/immigration_blueprint.pdf. The memoranda summarized above, along with the White House address announcing the actions and related USCIS and ICE info, are available at http://www.dhs.gov/immigration-action. Additional memoranda are available at http://www.whitehouse.gov/the-press-office/2014/11/21/presidential-memorandum-modernizing-and-streamlining-us-immigrant-visa-s (modernizing and streamlining the U.S. visa system) and http://www.whitehouse.gov/the-press-office/2014/11/21/presidential-memorandum-creating-welcoming-communities-and-fully-integra (establishing the White House Task Force on New Americans).

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2.         Labor Dept. To Modernize PERM Recruitment and Application Requirements

The Department of Labor (DOL) has released a fact sheet announcing that it will review the PERM labor certification program and relevant regulations with a goal of updating them. DOL noted that it has received ongoing feedback that the existing regulatory requirements governing the PERM recruitment process frequently do not align with worker or industry needs and practices.

DOL recently marked the 10th anniversary of the PERM regulations, which govern the labor certification process for the permanent employment of immigrant foreign workers and establish responsibilities of participating employers. The DOL said it has not comprehensively examined and modified the permanent labor certification requirements and process since their inception. This past fiscal year, employers submitted over 70,000 PERM applications requesting foreign workers. The majority of those job openings were for professional occupations in the information technology and science fields.

As part of the new review, DOL will seek input on the current PERM regulations, including how they can be modernized to be more responsive to changes in the national workforce. Specifically, DOL will seek input on the following:

  • Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;
  • Methods and practices designed to modernize U.S. worker recruitment requirements;
  • Processes to clarify employer obligations to ensure that PERM positions are fully open to U.S. workers;
  • Ranges of case processing time frames and possibilities for premium processing; and
  • Application submission and review processes and the feasibility of efficiently addressing nonmaterial errors.

DOL’s Employment and Training Administration may also examine other aspects of the existing PERM regulations to further align the program design with the objectives of the U.S. immigration system and the needs of workers and employers, and to enhance the integrity of the labor certification process.

The fact sheet is available at http://www.dol.gov/dol/fact-sheet/immigration/perm.htm.

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3.         Labor Dept. Establishes Interagency Working Group on Worker Protections

The Department of Labor recently announced the creation of an interagency working group to identify policies and procedures that promote the consistent enforcement of federal labor, employment, and immigration laws to “protect all workers in the U.S.” The announcement notes that federal agencies responsible for worker protections seek to protect all workers from exploitation and workers’ rights violations, regardless of immigration status. “Many workers, however, are deterred or prevented from asserting workplace rights and protections. In some cases, employers may exploit immigration status to deter employees from asserting their rights. In other cases, the protections available to workers are unclear,” the announcement notes.

The working group will comprise federal immigration enforcement agencies and federal agencies responsible for worker protections, including the Departments of Labor, Homeland Security, and Justice; the Equal Employment Opportunity Commission; and the National Labor Relations Board.

The working group will seek to:

  • Ensure that agencies’ immigration enforcement and worker protection policies promote workers’ cooperation with labor and employment law enforcement authorities without fear of retaliation;
  • Ensure that federal enforcement authorities are not used by parties seeking to undermine worker protection laws by enmeshing immigration authorities in labor disputes; and,
  • Ensure the consistent enforcement of federal labor, employment, and immigration laws.

To achieve these objectives the working group will:

  • Develop policies and procedures to ensure consistent enforcement of labor, employment, and immigration laws;
  • Develop consistent standards and procedures for immigration agencies to contact labor agencies when they encounter a potential labor dispute within the meaning of the Revised Memorandum of Understanding between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites, executed on December 7, 2011;
  • Provide greater clarity to workers, worker representatives, advocates, and employers regarding processes and procedures on the intersection between immigration law enforcement and labor and employment law enforcement;
  • Strengthen processes for staying the removal of, and providing temporary work authorization for, undocumented workers asserting workplace claims and for cases in which a workplace investigation or proceeding is ongoing; and
  • Provide stakeholders open and transparent modes of communication with enforcement authorities.

The working group “will provide opportunities for communication with external stakeholders, including workers, worker representatives, advocates, and employers as appropriate.”

The fact sheet is available at http://www.dol.gov/dol/fact-sheet/immigration/interagency-working-group.htm.

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  1. ABIL Global: Poland

Poland regards special economic zones as an important instrument to stimulate foreign investment. There are new investment opportunities in Polish real estate 12 years after Poland’s accession to the EU.

Poland can be considered an alternative for corporate immigration as compared with other economies of East-Central Europe. Two factors provide the basis for the increased activity of foreign capital in Poland: the development of special economic zones and the lifting of limitations on purchasing real estate by foreigners in Poland.

As with other countries (e.g., China), Poland regards special economic zones as an important instrument for attracting foreign investors. Special economic zones are designated industrial areas prepared for investment for foreign entities. In return for allocating production and operation of the company in Poland, the investor receives a special, beneficial legal status with respect to tax obligations. The primary benefit of investing in the special economic zones is property tax exemption and, above all, income tax exemption, the scale of which depends on the volume of investment. Investments in the special economic zones in Poland require a permit issued in administrative proceedings. According to the latest data, there are more than 7 thousand hectares of land waiting in Poland for foreign capital in the special economic zones.

In the near future, new rules will come into force on state aid granted to entrepreneurs operating under permits to conduct business activity in the special economic zones. The rules will facilitate provisions regulating the proportion of public funds in the investments and the method of accounting for the investments.

The attractiveness of the local market for corporate immigration depends to a large extent on the legal status of the commercial real estate market. In this respect, the current status of the Polish real estate sector has been presented in the annual report of the Polish government devoted to the acquisition of real estate by foreigners (individuals and corporate entities). The report for 2014 highlights the activity of German, Dutch, and Ukrainian capital in Poland. The reports, prepared annually by the Minister of Internal Affairs and Administration, extensively and accurately presents international trading in Polish real estate.

According to the report, in 2013, foreigners were granted a total of 252 permits for the acquisition of land property with a total area of 697.15 hectares. The vast majority of applications had been approved. In Poland, the acquisition of real estate by foreigners requires, in principle, a permit from the Minister of Internal Affairs and Administration. The source of legal restrictions is the Act on the acquisition of real estate by foreigners as of March 24, 1920. The relevant permit is also necessary for the purchase or acquisition by foreigners of shares in companies that are owners or perpetual users of real estate. By May 1, 2016, the permit also will be required for the purchase of forest and agricultural real estate by European Union (EU)/European Economic Area entities. Such status follows from the transitional provisions of the Polish accession to the EU.

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  1. Firm In the News

Cyrus D. Mehta was a Discussion Leader on Working Around the H-1B Debacle, AILA Mexico District Chapter Conference, Buenos Aires, Argentina, November 14, 2014.

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November 2014 Immigration Update

Headlines:

1. Labor Cert News: Atlanta NPC No Longer Forwarding to BALCA All PERM Requests for Reconsideration; Statistical Updates for FY 2014 Q4; H-1B Legacy Docs No Longer Available – The Department of Labor’s Office of Foreign Labor Certification (OFLC) recently announced news on several topics.

2. U.S. Court of Appeals for D.C. Circuit Reverses District Court in Specialized Knowledge Case – The U.S. Court of Appeals for the District of Columbia Circuit recently reversed and remanded the district court’s grant of summary judgment to the government in Fogo de Chao (Holdings) Inc. v. U.S. Department of Homeland Security.

3. USCIS To Implement Haitian Family Reunification Parole Program – USCIS will offer certain eligible Haitian beneficiaries of already approved family-based immigrant visa petitions, who are currently in Haiti, an opportunity to come to the United States up to approximately two years before their immigrant visa priority dates become current.

4. USCIS Extends TPS for Honduras, Nicaragua – For those who have already been granted TPS under the Honduras or Nicaragua designations, the 60-day re-registration period ends on December 15, 2014.

5. SEC Charges Immigration Attorneys With Defrauding Investors Seeking U.S. Residence; SEC-USCIS Issue Joint Alert – SEC and USCIS caution potential EB-5 investors about phony regional centers posing as legitimate investment opportunities.

6. Justice Dept. Settles Lawsuit Against Texas Bus Company for Discrimination – The lawsuit alleged that the company discriminated against U.S. workers by preferring to hire workers on temporary H-2B visas for its bus driver positions.

7. President Extends Staggered Crossings of Seafood Workers Through December 11, 2014 – No staggered entry of H-2B workers after December 11, 2014, will be permitted absent further legislative extensions.

8. USCIS Issues Instructions for DED Liberians on Applying for 24-Month Extension of Work Authorization USCIS published a notice in the Federal Register providing instructions for eligible Liberians on how to apply for the full 24-month extension of employment authorization through September 30, 2016.

9. ABIL Global: France – The government has finalized its draft of the Law on the Rights of Foreigners in France. Also, France has adopted a law to combat fraud in the framework of posted workers.

10. Firm In The News...

Details:

1. Labor Cert News: Atlanta NPC No Longer Forwarding to BALCA All PERM Requests for Reconsideration; Statistical Updates for FY 2014 Q4; H-1B Legacy Docs No Longer Available

The Department of Labor’s Office of Foreign Labor Certification (OFLC) recently announced the following news:

Atlanta NPC change in process.  As of October 27, 2014, the Atlanta National Processing Center is no longer automatically forwarding to the Board of Alien Labor Certification Appeals (BALCA) all PERM Requests for Reconsideration where the original case decision was upheld.  Rather, a Notice of Decision will be issued when the case is upheld, and the employer must affirmatively request review before BALCA no later than 30 calendar days after the date the Notice of Decision is issued.

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

Statistical updates for FY 2014 Q4.  OFLC has issued updated program fact sheets with selected statistics for the permanent labor certification program, prevailing wage determination program, H-1B temporary visa program, H-2A temporary agricultural visa program, and H-2B temporary nonagricultural visa program.  Reports were derived from program data as of September 30, 2014.  The updated fact sheets are available at http://www.foreignlaborcert.doleta.gov/performancedata.cfm#stat.

H-1B legacy records no longer available.  On July 8, 2013, the National Archives and Records Administration (NARA) approved OFLC’s revised retention schedule following a 30-day period of public notice and review.  NARA determined that employer applications for labor certification and supporting documentation, whether retained in paper or electronic form, are temporary records and subject to destruction.  The OFLC-approved disposition schedule authorizes the retention of records for five years after the date a final determination letter is issued or final action occurs, such as a withdrawn application, subject to an active investigation or litigation hold.

The records NARA identified as permanent records are the annual disclosure data files at http://www.flcdatacenter.com, as well as the quarterly disclosure data files and the OFLC Annual Reports on the OFLC Performance page at http://www.foreignlaborcert.doleta.gov/performancedata.cfm.

Labor Condition Applications (LCAs) retained in the LCA Online System are all beyond the retention period of five years from a date of final determination or final action.  Therefore, effective October 17, 2014, the LCA Online System at http://www.lca.doleta.gov has been decommissioned.

The OFLC said it is no longer responding to inquiries to search for records in response to Freedom of Information Act requests, or providing information for requests for duplicate certifications for LCA applications processed in the LCA Online System, in keeping with the OFLC records schedule.

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2. U.S. Court of Appeals for D.C. Circuit Reverses District Court in Specialized Knowledge Case

The U.S. Court of Appeals for the District of Columbia Circuit recently reversed and remanded the district court’s grant of summary judgment to the government in Fogo de Chao (Holdings) Inc. v. U.S. Department of Homeland Security.

The court noted that Fogo de Chao owns numerous Brazilian steakhouses that focus on the churrasco, a traditional festive style of preparing and serving meat derived from the gaucho culture of the Rio Grande do Sul region of southern Brazil. Following its success in Brazil, Fogo de Chao entered the U.S. market in 1997 and now has restaurants in 16 cities in the United States.

From 1997 to 2006, the Department of Homeland Security granted Fogo de Chao more than 200 L-1B visas for its churrasqueiro chefs to work in its U.S. restaurants. In 2010, Fogo de Chao sought to transfer another such chef, Rones Gasparetto, to the United States, reasoning that his distinctive cultural background and extensive experience cooking and serving meals in the churrasco style constituted “specialized knowledge.” The Administrative Appeals Office (AAO) concluded, however, that Mr. Gasparetto’s cultural background, knowledge, and training did not constitute specialized knowledge as a matter of law.

The D.C. Circuit held that it was unable to discern either a “sufficiently reasoned path” in the AAO’s strict bar against culturally based skills or “substantial evidence supporting its factual finding” that Mr. Gasparetto did not complete the company training program. The court also referred to the government’s dismissal of Fogo de Chao’s argument that it would suffer economic hardship if it had to train another employee to perform the chef’s duties. The court noted: “Consideration of evidence of this type provides some predictability to a comparative analysis otherwise relatively devoid of settled guidepostsЙ.That specialized knowledge may ultimately be a ‘relative and empty idea which cannot have plain meaning’…is not a feature to be celebrated and certainly not a license for the government to apply a sliding scale of specialness that varies from petition to petition without explanation. Suddenly departing from policy guidance and rejecting outright the relevance of Fogo de Chao’s evidence of economic inconvenience threatens just that.”

The appeals court generally noted, among other things, that deference is generally due to an agency’s interpretation of a statute it administers and its own implementing regulations. No deference was due here, however, because the agency’s “specialized knowledge” regulation merely restated the statute and added nothing of its own in which to ground an interpretation to which a court might defer. The AAO’s decision, and any legal interpretations contained within it, “were the product of informal adjudication within [U.S. Citizenship and Immigration Services] rather than a formal adjudication or notice-and-comment rulemaking.” Finally, the court did not find the government’s arguments persuasive and agreed with Fogo de Chao that the agency’s conclusion regarding the categorical irrelevance of culturally acquired knowledge was insufficiently reasoned to be sustained.

The D.C. Circuit’s decision is available at http://www.cadc.uscourts.gov/internet/opinions.nsf/49B2B863D721339885257D78004DF1D6/$file/13-5301-1518126.pdf.

Form CDMA’s commentary on the decision, See Cyrus D. Mehta, Fogo De Chao v. DHS: A Significant Decision For L-1B Specialized Foreign Chefs And Beyond, available at http://blog.cyrusmehta.com/2014/10/fogo-de-chao-v-dhs-significan-decision.html

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3. USCIS To Implement Haitian Family Reunification Parole Program

Starting in early 2015, U.S. Citizenship and Immigration Services (USCIS) will begin implementing the Haitian Family Reunification Parole (HFRP) Program to expedite family reunification for certain eligible Haitian family members of U.S. citizens and lawful permanent residents and to promote safe, legal, and orderly migration from Haiti to the United States.

Under this program, USCIS will offer certain eligible Haitian beneficiaries of already approved family-based immigrant visa petitions, who are currently in Haiti, an opportunity to come to the United States up to approximately two years before their immigrant visa priority dates become current.

Deputy Secretary of Homeland Security Alejandro Mayorkas noted, ТThe United States strongly discourages individuals in Haiti from undertaking life-threatening and illegal maritime journeys to the United States.  Such individuals will not qualify for the HFRP program and if located at sea may be returned to Haiti.У

USCIS noted that legal authority for the HFRP program is provided under the Immigration and Nationality Act, which authorizes the Secretary of Homeland Security to parole into the United States certain individuals, on a case-by-case basis, for urgent humanitarian reasons or significant public benefit.  This is the same legal authority used to establish the Cuban Family Reunification Parole program in 2007.

USCIS is not accepting HFRP program applications now, and the agency said that potential beneficiaries should not take any action at this time.  USCIS said it will provide full program details before the end of this calendar year, and stakeholder engagements will take place shortly thereafter.  In early 2015, the Department of State’s National Visa Center (NVC) will begin contacting certain U.S. citizens or lawful permanent residents with approved petitions for Haitian family members, offer them the opportunity to apply for the program, and provide instructions.  Only individuals who receive a written notice of program eligibility from NVC will be eligible to apply.

Under the Haitian Family Reunification Parole program, Haitians authorized parole will be allowed to enter the United States and apply for work permits but will not receive permanent resident status any earlier.

The notice is available at http://www.uscis.gov/news/dhs-implement-haitian-family-reunification-parole-program.

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4. USCIS Extends TPS for Honduras, Nicaragua

U.S. Citizenship and Immigration Services has announced that the designations of Honduras and Nicaragua for temporary protected status (TPS) have been extended for 18 months, from January 6, 2015, through July 5, 2016.

For those who have already been granted TPS under the Honduras or Nicaragua designations, the 60-day re-registration period ends on December 15, 2014.  USCIS will issue new employment authorization documents (EADs) with a July 5, 2016, expiration date to eligible Honduras and Nicaragua TPS beneficiaries who timely re-register and apply for EADs under this extension.  Given the time frames involved with processing TPS re-registration applications, USCIS recognizes that not all re-registrants will receive new EADs before their current EADs expire on January 5, 2015.  Accordingly, USCIS is automatically extending the validity of EADs issued under the TPS designation of Honduras and Nicaragua for six months, through July 5, 2015. The Federal Register notices explain how TPS beneficiaries and their employers may determine which EADs are automatically extended and their impact on the employment eligibility verification (Form I-9) and E-Verify processes.

USCIS also set forth procedures necessary for nationals of Honduras or Nicaragua (or those having no nationality who last habitually resided in Honduras or Nicaragua) to re-register for TPS and to apply for renewal of their EADs with USCIS.  Re-registration is limited to persons who have previously registered for TPS under the designation of Honduras or Nicaragua and whose applications have been granted.  Certain nationals of Honduras and Nicaragua (or those having no nationality who last habitually resided in Honduras or Nicaragua) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions, if they meet: (1) at least one of the late initial filing criteria; and (2) all TPS eligibility criteria, including continuous residence in the United States since December 30, 1998, and continuous physical presence in the United States since January 5, 1999.

The Honduras notice is available at https://www.federalregister.gov/articles/2014/10/16/2014-24559/extension-of-the-designation-of-honduras-for-temporary-protected-status.  The Nicaragua notice is available at https://www.federalregister.gov/articles/2014/10/16/2014-24560/extension-of-the-designation-of-nicaragua-for-temporary-protected-status.

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5. SEC Charges Immigration Attorneys With Defrauding Investors Seeking U.S. Residence; SEC-USCIS Issue Joint Alert

The Securities and Exchange Commission recently charged a Los Angeles, California-based immigration attorney, his wife, and his law firm partner with conducting an investment scheme to defraud foreign investors trying to come to the United States through the EB-5 Immigrant Investor Program.

The SEC alleges that Justin Moongyu Lee, Rebecca Taewon Lee, and Thomas Edward Kent raised nearly $11.5 million from two dozen investors seeking to participate in the EB-5 program.  The Lees and Mr. Kent informed investors that they would be EB-5eligible if they invested in an ethanol production plant that they would build and operate in Ulysses, Kansas.  However, they misappropriated the investors’ money for other uses instead.  They never built the plant and never created the promised jobs, and the Lees and Kent continued to misrepresent to investors that the project was ongoing.

In a parallel action, the U.S. Attorney’s Office for the Central District of California announced criminal charges against Justin Lee.

According to the SEC’s complaint filed in U.S. District Court for the Central District of California, the investors defrauded by the Lees and Kent were primarily of Chinese and Korean descent.  Justin Lee and Mr. Kent applied to U.S. Citizenship and Immigration Services (USCIS) in 2006 for designation as a regional center under the EB-5 program.  They claimed there would be “substantial economic benefit” and “thousands” of new jobs for the area in southwest Kansas.  However, by mid-2008, construction of an ethanol plant at the site was no longer economically feasible, and the Lees and Mr. Kent concealed their failure to generate the jobs required by the EB-5 program by submitting false documents to USCIS.

In the meantime, the SEC alleges, when Justin Lee was running low on cash and having difficulty obtaining financing, he took money out of investor escrow accounts without the investors’ knowledge before the approval of their applications for U.S. residence.  Mr. Lee and his wife subsequently misused several million dollars raised from the ethanol plant investors for other undisclosed purposes, such as financing an iron ore project in the Philippines and repaying investors in other unrelated offerings.

According to the SEC’s complaint, the Lees set up and conducted investor seminars in Los Angeles at which the purported ethanol plant project was the main focus of the presentation, despite the halt of construction in 2008.  Mr. Kent, who visited the site frequently in 2008 and 2009 and knew no construction was taking place, also participated in the seminars.  Investors continued to be misled that the proceeds from their investment were being used to construct an ethanol plant.  In particular, the business plan updated in June 2010 and distributed to investors falsely represented that construction was “ongoing” and that the plant would be in operation before November 2011.

The SEC’s complaint charges the Lees, Mr. Kent, and five companies founded and controlled by Justin Lee (American Immigrant Investment Fund I, Biofuel Venture IV, Biofuel Venture V, Nexland Investment Group, and Nexsun Ethanol) with violations of ¤¤ 17(a)(1), (2), and (3) of the Securities Act of 1933 and ¤ 10(b) of the Securities and Exchange Act of 1934 as well as Rule 10b-5(a) and (c).  Justin Lee, Mr. Kent, and the entities also are charged with violating Rule 10b-5(b).  The SEC’s complaint seeks disgorgement, prejudgment interest, and penalties along with permanent injunctions.

The Association to Invest In the USA (IIUSA), a trade association representing more than 200 EB-5 regional centers, released a statement supporting the SEC’s actions in this case. 

SEC-USCIS joint alert. In response to similar cases, in 2014 SEC and USCIS issued a joint alert cautioning potential EB-5 investors about phony regional centers posing as legitimate investment opportunities. The joint alert includes information about steps to take to research any offering that purports to be affiliated with the EB-5 program. For example, would-be investors should:

  • Confirm that the regional center has been designated by USCIS;
  • Obtain copies of documents provided to USCIS;
  • Request investment information in writing;
  • Ask if promoters are being paid;
  • Seek independent verification;
  • Examine structural risk;
  • Consider the developer’s incentives; and
  • Look for warning signs of fraud.

The joint alert notes that hallmarks of fraud may include:

  • Promises of a visa or becoming a lawful permanent resident—investing through EB-5 makes a person eligible to apply for a conditional visa, but there is no guarantee that USCIS will grant a conditional visa or subsequently remove the conditions on lawful permanent residence. USCIS noted that it carefully reviews each case and denies cases where eligibility rules are not met. “Guarantees of the receipt or timing of a visa or green card are warning signs of fraud,” the alert notes;
  • Guaranteed investment returns or no investment risk;
  • Overly consistent high investment returns;
  • Unregistered investments;
  • Unlicensed sellers; and
  • Layers of companies run by the same individuals.

The SEC’s announcement is available at http://www.sec.gov/News/PressRelease/Detail/PressRelease/1370542843452#.VDnK4JDD-71. The SEC’s complaint is available at http://www.sec.gov/litigation/complaints/2014/comp-pr2014-184.pdf. IIUSA’s statement is available at https://iiusa.org/blog/category/press-room/press-releases/. The SEC-USCIS joint alert is available at http://www.sec.gov/investor/alerts/ia_immigrant.htm.

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  1. Justice Dept. Settles Lawsuit Against Texas Bus Company for Discrimination

The Department of Justice (DOJ) recently reached a settlement with Autobuses Ejecutivos LLC, doing business as Omnibus Express, a bus company based in Houston, Texas. The settlement resolved a lawsuit filed in August 2013 by the DOJ under the Immigration and Nationality Act’s (INA) antidiscrimination provision. The lawsuit alleged that the company discriminated against U.S. workers by preferring to hire workers on temporary H-2B visas for its bus driver positions.

Under the settlement agreement, Omnibus Express will establish a $208,000 fund to compensate victims of its discriminatory practices, pay $37,800 in civil penalties to the United States, and be subject to monitoring of its hiring and recruiting practices for a two-year period.

The announcement is available at http://www.justice.gov/opa/pr/justice-department-settles-lawsuit-against-texas-bus-company-discriminating-against-us.

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  1. President Extends Staggered Crossings of Seafood Workers Through December 11, 2014

On January 17, 2014, President Barack Obama signed into law the Consolidated Appropriations Act of 2014, which included a provision permitting the staggered entry of H-2B workers employed by seafood industry employers under certain conditions. Following passage of the Continuing Appropriations Resolution, 2015, this provision was extended to December 11, 2014.  Accordingly, no staggered entry of H-2B workers after December 11, 2014, will be permitted absent further legislative extensions.

To use the “staggered crossing” provision, seafood industry employers must download, complete, and sign the official attestation and provide it to the H-2B nonimmigrant worker for presentation, upon request, to Department of State consular officers and/or the Department of Homeland Security’s Customs and Border Protection officers.

According to a related FAQ, all employers submitting an H-2B application for temporary employment certification must accurately indicate their temporary need, including the starting and ending dates of need for the period in which they intend to employ H-2B nonimmigrant workers. However, the 2014 Appropriations Act permits employers in the seafood industry to bring into the United States, in accordance with an approved H-2B petition, nonimmigrant workers at any time during the 120-day period on or after the employer’s certified start date of need, if certain conditions are met.

The 2014 Appropriations Act contained two primary conditions that employers must meet. First, the rule applies only to employers engaged in a business in the seafood industry that permit or require their H-2B nonimmigrant workers to enter the United States up to 120 days after the certified start date of need.  Second, any seafood industry employer that permits or requires its H-2B nonimmigrant workers to enter the United States between 90 and 120 days after the certified start date of need must complete a new assessment of the local labor market during the period that begins at least 45 days after the certified start date of need and ends before the 90th day after the certified start date of need.

Seafood industry employers who conduct the additional recruitment required by the 2014 Appropriations Act should not submit proof of the additional recruitment to the Office of Foreign Labor Certification. Instead, they must retain the additional recruitment documentation, along with their pre-filing recruitment documentation, for three years from the date of certification.

The announcement is available at http://www.foreignlaborcert.doleta.gov/news.cfm. The official attestation form is available at http://www.foreignlaborcert.doleta.gov/form.cfm. The FAQ is available at http://www.foreignlaborcert.doleta.gov/pdf/FAQs_Seafood_Staggering_2014_Approps_final_040114.pdf.

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  1. USCIS Issues Instructions for DED Liberians on Applying for 24-Month Extension of Work Authorization

On September 26, 2014, U.S. Citizenship and Immigration Services (USCIS) extended for an additional 24 months the deferred enforced departure (DED) of certain Liberians and provided for work authorization during that period. The DED extension began on October 1, 2014, and runs through September 30, 2016. USCIS published a notice in the Federal Register on October 1, 2014, providing instructions for eligible Liberians on how to apply for the full 24-month extension of employment authorization. The notice also provides instructions for DED-eligible Liberians on how to apply for permission to travel outside the United States during the 24-month DED period.

USCIS said it will issue new employment authorization documents (EADs) with a September 30, 2016, expiration date to Liberians whose DED has been extended under the Presidential Memorandum of September 26, 2014, and who apply for EADs under this extension. Given the time frames involved with processing EAD applications, the Department of Homeland Security (DHS) said it recognized that not all DED-eligible Liberians would have received new EADs before their current EADs expired on September 30, 2014.  Accordingly, the notice also automatically extends for six months (through March 30, 2015) the validity of DED-related EADs that had an expiration date of September 30, 2014, and explains how Liberians covered under DED and their employers may determine which EADs are automatically extended and their impact on employment eligibility verification (Form I-9) and E-Verify processes.

The notice is available at https://www.federalregister.gov/articles/2014/10/01/2014-23507/filing-procedures-for-employment-authorization-and-automatic-extension-of-existing-employment.

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  1. Pro Bono Success Story: Miller Mayer Helps Nuns Obtain R-1 Religious Visa

Alliance of Business Immigration Lawyers member firm Miller Mayer in Ithaca, New York, represented a religious organization of nuns in its religious worker (R-1) nonimmigrant visa petition on behalf of a foreign national nun who serves at churches in upstate New York. This was the organization’s first successful R-1 petition with U.S. Citizenship and Immigration Services (USCIS), which required Miller Mayer to prepare the sisters for a USCIS fraud detection site visit.  Miller Mayer performed the work pro bono.

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  1. ABIL Global: France

The government has finalized its draft of the Law on the Rights of Foreigners in France. Also, France has adopted a law to combat fraud in the framework of posted workers.

Draft Law on Rights of Foreigners

The government has finalized and published its draft of the Law on the Rights of Foreigners in France, which is a significant overhaul of the Code of Entry and Stay of Foreigners and of Asylum (CESEDA). The new law would increase the use of multi-annual permits to stay, create new immigration categories, and eliminate the work permit requirement for assignments of less than three months.

Below are highlights of the major changes of interest to human resource and mobility managers. The draft law is not yet scheduled for parliamentary debate, which is expected to occur in upcoming months.

Purpose of the Draft Law

The government aims to reduce the workload for civil servants and the compliance burden on business, and to attract qualified foreign nationals and investments to France. The draft law achieves these three goals by: (1) increasing the use of multi-annual permits to stay, thus reducing the renewals of the current one-year permit to stay (Carte de Séjour Temporaire); (2) creating a new multi-annual “supra” category, the Talent Passport, which overhauls many existing categories and creates some new ones that will be of interest to business; and (3) eliminating the temporary work permit (APT) requirement for foreigners assigned to France for less than three months.

Increased Use of Multi-Annual Permits

Currently, most third-country nationals are issued a one-year renewable permit to stay. The renewal process requires multiple personal appearances and issuance of temporary documents (récépissés).

The draft law provides for the issuance of multi-annual permits with a maximum validity of four years, after the expiration of the initial one-year permit, to the extent the third-country national has demonstrated his or her willingness to adhere to French cultural and republican values.

The draft law provides that trainees, self-employed professionals, and visitors will not benefit from the multi-annual permit.

Talent Passport

Currently, there are several categories to attract talent and investment. The draft law merges the existing categories into the Talent Passport.  This “supra” category includes a total of nine categories with a maximum validity of four years:

  1. Young Qualified Graduate (jeune diplômé qualifié): Requires: (i) a master’s or doctorate-level degree earned in France or sponsorship by an employer qualified as an Innovating Start-Up (jeune entreprise innovante) by the Fiscal Code; (ii) a French employment contract; and (iii) a threshold salary determined by decree. This is a new category.
  2. Highly Qualified Worker (travailleur hautement qualifié): Requires: (i) a three-year university degree or five years of experience; (ii) a French employment contract of at least 12 months; and (iii) a threshold salary determined by decree. This category absorbs the previous European Blue Card without substantial change.
  3. Inter-Company Transferee (ICT) (salarié en mission): Requires: (i) an intra-group transfer; (ii) a three-month prior employment; and (iii) a threshold salary determined by decree. Under the existing scheme, the three-month prior employment is not required when the ICT becomes a French employee. This category absorbs the previous ICT category without any other substantial change.
  4. Scientist (chercheur): Requires: (i) a master’s level or higher degree; (ii) tasks of research or teaching at the university level; and (iii) an agreement with a government-approved body. This category absorbs the previous Scientist category, with no significant change.
  5. Entrepreneur (créateur d’entreprise): Requires: (i) a master’s-level degree or five years of experience; and (ii) creation of an enterprise in accordance with criteria to be determined by government decree. This is a new category.
  6. Investor (investisseur): Requires a direct investment in infrastructure, as determined by government decree. This category absorbs the previous Exceptional Economic Contribution. The amount of investment is expected to be lowered from €10,000,000 to €500,000 and the number of jobs to be created from 50 to 10.
  7. Executive Officer (mandataire social): Requires: (i) nomination of a legal representative or executive officer of an entity registered in France; and (ii) a threshold income to be defined by decree. This category was previously covered under Competence and Talent and does not change substantially.
  8. Artist (artiste): Requires: (i) a contract approved by the cultural (DRAC) or labor (SMOE) authorities for an artistic or cultural activity; and (ii) threshold compensation to be defined by decree. This preexisting category is being merged here without substantial change.
  9. Foreigner Renowned Internationally in a scientific, literary, intellectual, educational, or sports domain (étranger ayant une renommée internationale dans un domaine scientifique, littéraire, intellectuel, éducatif, ou sportif): Requires: (i) international fame; and (ii) an activity in France in one of the stated areas. This pre-existing category is being merged here with changes to be determined by implementing regulations.

Activities 1, 2, 3, 8, and 9 may be exercised without a separate work permit. In case of involuntary loss of employment, the permit will be extended for one year.  Beyond that, the validity will be limited to the remaining period of unemployment benefits.

The accompanying spouse and minor children reaching majority will be issued a multi-annual permit for the duration of the validity of the principal holder of the Talent Passport. Such derivative permit will allow work.

Elimination of the Temporary Work Permit (APT)

The draft law proposes the elimination of the temporary work permit currently required for assignments of less than three months. The impact study accompanying the draft law states that short assignments need to be declared under existing regulations, which are adequate tools to verify a posteriori the legality of such assignments.  The elimination of the temporary work permit is a controversial proposition and will be debated in the months to come.

New Law to Combat Fraud in Framework of Posted Workers

A posted worker is one sent by a company in one EU member state to provide short-term services for a company (client or affiliate) in the host EU member state. France’s Act of July 10, 2014 (Act) against unfair social competition translates into French law a directive of the European Union (EU) of May 15, 2014, laying down a set of mechanisms to prevent and punish any violation or circumvention of posting procedures in the EU.

Most of these provisions are incorporated into the code of labor with immediate application.

Declaration of Posting

The Act strengthens the compulsory nature of the posting declaration, which was already required by Articles R. 1263-3 and the Labor Code. The employer sends a statement of detachment to the labor inspectorate having jurisdiction over the work site.  The user or the client who contracts with the foreign service provider must ensure that a compliant declaration has been made.  In the absence of a compliant declaration, the end user and contracting parties may be jointly and severally liable for payment of an administrative fine of up to €2,000 per posted employee.  This penalty may be increased to €4,000 in case of repeated violations.  The total amount of the fine may not exceed €10,000.  The Act provides that the declaration of posting must be recorded in the statutory register of personnel of the company that hosts posted workers.

Due Diligence and Financial Responsibility of the Payer

The Act strengthens due diligence and accountability of the user or client. The user or client has an obligation of “vigilance” with respect to the collective housing conditions of employees of the provider.  In case of failure, the user or client may be required to defray the costs of the collective accommodations of employees.

The required diligence of the user or client also applies to compliance by all contractual parties with labor laws. In case of noncompliance, the user or client must order the other party to comply and, if the noncompliance persists, inform the public authorities.  If the user or client breaches these obligations, it is subject to a penalty prescribed by decree of the Conseil d’Etat.  In case of noncompliance with payment of minimum wages or if the user or client has failed to fulfill its obligations to order compliance and inform the authorities of noncompliance if it persists, it may be held jointly and severally liable for payment of salaries, allowances, and charges.

Online Publication of Sentences

The Act provides for the publication of court penalty sentences for a period of up to two years on a dedicated website.

Unions’ Right to Sue

The Act creates the right of union representatives to defend before the courts the rights of a posted employee without having to show a power of attorney from that employee. It is sufficient that the employee be informed and not object within 15 days.  The employee can always intervene in the proceedings initiated by the union and stop them at any time.

Consequences for Foreign Employers of Posted Employees

These new control mechanisms and sanctions apply to all foreign employers of employees posted to France. The foreign employer posting employees as part of a service to a client in France should therefore ensure its compliance with labor laws applicable in France, including regulations on collective accommodations.  In the event of noncompliance, the foreign employer may receive an order from the user or French client to stop the offense.  Moreover, if the user or client does not issue a compliance order when appropriate or inform the authorities of persistent noncompliance, such user or client company may itself be penalized in France and be held severally liable for the cost of collective accommodations or payment of salaries, allowances, and expenses payable as compensation to the posted worker.

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  1. Firm In the News

Cyrus D. Mehta was a Panelist on Ethical Issues, Unauthorized Practice of Law, and Professional Responsibility When Delving Into the Other Side, at the Canada/U.S. Northern Border Annual Immigration Fall Conference, Buffalo, NY, October 17, 2014.

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October 2014 Immigration Update

Headlines:

1.         State Dept. Releases Instructions on Applying for DV-2016 Program – Entries for the DV-2016 DV program must be submitted electronically by noon EST (GMT-5), Monday, November 3, 2014.

2.         USCIS Announces New Secure Blue Ink for Many Stamps – USCIS said employers should be aware of this recent change in secure ink color when examining acceptable documents presented by employees during the Form I-9 employment eligibility verification process. 

3.         USCIS Extends Deferred Enforced Departure for Liberians – DED Liberia EADs that had an expiration date of September 30, 2014, are now valid through March 30, 2015.  This automatic extension of EADs follows President Obama’s decision to extend DED through September 30, 2016, for qualified Liberians and those individuals without nationality who last habitually resided in Liberia.

4.         USCIS Extends TPS for Sudan, Redesignates and Extends TPS for South Sudan USCIS announced the extension of Sudan for TPS to May 2, 2016, and auto-extension of related employment authorization documents through May 2, 2015.  USCIS also announced that it is redesignating South Sudan for TPS and is extending the existing TPS designation through May 2, 2016.

5.         CBP Designates POEs for First-Time Canadian TN, L Applicants Seeking U.S. Entry Under NAFTA – Such applicants may continue to go to any port of entry (POE) along the Canadian border for processing, but the agency is encouraging such applicants to go to one of the designated POEs “where you will receive optimized processing.”

6.         Practitioners Warn About Immigration Scams – Scammers use a variety of methods.  A call demanding money and threatening negative immigration consequences if it’s not coughed up immediately is a scam, and those receiving such calls should hang up immediately and not provide any information.

7.         China EB-5 Category Unavailable Through September; Current in October – The China EB-5 visa category will become “Current” on October 1, 2014.

8.         USCIS Issues Policy Guidance on H-3 Nonimmigrant Trainees – The new guidance consolidates all previous H-3 guidance addressing circumstances under which a temporary worker may come to the United States as a trainee or as a participant in a special education program.

9.         Firm In The News

Details:

1.         State Dept. Releases Instructions on Applying for DV-2016 Program

On September 24, 2014, the Department of State (DOS) released instructions on how to apply for the diversity visa (DV) 2016 program.  Entries for the DV-2016 DV program must be submitted electronically at http://www.dvlottery.state.gov by noon EST (GMT-5), Monday, November 3, 2014.  

The agency warned: “Do not wait until the last week of the registration period to enter, as heavy demand may result in Web site delays.  No late entries or paper entries will be accepted.”  DOS also noted that the law allows only one entry by or for each person during each registration period.  DOS said it “uses sophisticated technology to detect multiple entries.  Individuals with more than one entry will be disqualified.”

For fiscal year 2016, 50,000 diversity visas will be available.  There is no cost to register for the DV Program.  There are no changes in eligibility this year.  For DV-2016, natives of the following countries are not eligible to apply because more than 50,000 natives of these countries immigrated to the United States in the previous five years:  Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, exico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

The DOS notice states that based on the allocations of available visas in each region and country, individuals will be randomly selected by computer from among qualified entries.  All DV-2016 entrants will be required to go to Entrant Status Check using the unique confirmation number saved from their DV-2016 online entry registration to find out whether their entries have been selected in the DV program.  Entrant Status Check will be available at http://www.dvlottery.state.gov starting May 5, 2015, through at least June 30, 2016.

Those whose entries are selected will be directed to a confirmation page that will provide further instructions, including information on fees connected with immigration to the United States.  Entrant Status Check will be the only means by which selectees will be notified of their selection for DV-2016.  The Department of State will not mail out notification letters or notify selectees by email.  U.S. embassies and consulates will not provide a list of selectees.  DOS noted, “You are strongly encouraged to access Entrant Status Check yourself and not to rely on someone else to check and inform you.”

To receive a DV to immigrate to the United States, those who are selected still must meet all eligibility requirements.  “These requirements may significantly increase the level of scrutiny required and time necessary for processing for natives of some countries listed in this notice including, but not limited to, countries identified as state sponsors of terrorism,” the DOS notice states.

The Federal Register notice with full details is available at https://www.federalregister.gov/articles/2014/09/24/2014-22767/bureau-of-consular-affairs-registration-for-the-diversity-immigrant-dv-2016-visa-program.

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2.         USCIS Announces New Secure Blue Ink for Many Stamps

On July 1, 2014, U.S. Citizenship and Immigration Services (USCIS) began using a new secure blue ink for many of its secure stamps.  The older secure red ink was retired and is no longer used by USCIS.  The following list of stamps are now being done with secure blue ink:

  • Department of Homeland Security (DHS) Parole Stamp
  • Temporary I-551 Alien Documentary Identification and Telecommunication (ADIT) Stamp
  • Refugee Stamp (Section 207)
  • Asylum Stamp (Section 208)
  • Initial/Replacement Form I-94 Stamp

USCIS said employers should be aware of this recent change in secure ink color when examining acceptable documents presented by employees during the Form I-9 employment eligibility verification process.  

Lists of acceptable documents appear on the last page of the I-9 form.  USCIS noted that employers cannot reject an unexpired acceptable document presented by a worker or specify which documents they will accept.  The agency reminded employers that they must accept the documents presented by a worker when completing the I-9 as long as those documents appear genuine on their face and relate to the person presenting them.

A bulletin from U.S. Customs and Border Protection with examples of the new stamps is available at http://www.cbp.gov/sites/default/files/documents/20140701_USCIS%20Stamp%20.pdf.  Detailed USCIS guidance on how to examine documents for I-9 verification purposes is available at http://www.uscis.gov/i-9-central/acceptable-documents/examining-documents.  USCIS information on acceptable documents is available at http://www.uscis.gov/i-9-central/acceptable-documents.

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3.         USCIS Extends Deferred Enforced Departure for Liberians

U.S. Citizenship and Immigration Services (USCIS) announced on September 26, 2014, that it will automatically extend employment authorization documents (EADs) for Liberian nationals covered under deferred enforced departure (DED).  DED Liberia EADs that had an expiration date of September 30, 2014, are now valid through March 30, 2015.  This automatic extension of EADs follows President Barack Obama’s decision to extend DED through September 30, 2016, for qualified Liberians and those individuals without nationality who last habitually resided in Liberia.  

The six-month automatic extension of existing EADs allows eligible Liberian nationals to continue working in the United States while they file their applications.  The extension also gives USCIS time to process and issue the new EADs.

Certain individuals are ineligible for DED, including:

  • Individuals who did not have temporary protected status (TPS) on September 30, 2007, and are therefore not covered under current DED;
  • certain criminals;
  • people subject to the mandatory bars to TPS; and
  • those whose removal is in the interest of the United States.

USCIS will publish a notice in the Federal Register with information regarding the extension of EADs for eligible Liberian nationals, and instructions on how they may obtain employment authorization for the remainder of the DED extension.

The USCIS announcement is available at http://www.uscis.gov/news/deferred-enforced-departure-extended-liberians.  A related Q&A is available at http://www.uscis.gov/news/questions-and-answers/deferred-enforced-departure-extended-liberians-questions-and-answers. For additional information, see the DED Granted CountryСLiberia webpage on the USCIS webpage at http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/ded-granted-country-liberia/ded-granted-country-liberia.

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4.         USCIS Extends TPS for Sudan, Redesignates and Extends TPS for South Sudan

U.S. Citizenship and Immigration Services (USCIS) announced on September 2, 2014, the extension of Sudan for temporary protected status (TPS) to May 2, 2016, and auto-extension of related employment authorization documents (EADs) through May 2, 2015. USCIS also announced that it is redesignating South Sudan for TPS and is extending the existing TPS designation from November 3, 2014, through May 2, 2016. 

Sudan. Those who currently have TPS for Sudan and would like to keep that status must re-register by November 1, 2014.  USCIS encourages beneficiaries to re-register as soon as possible.  Those who have never been granted TPS may be eligible to file a “late initial application. See the “Filing Late” section on the TPS website (http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/temporary-protected-status) for more information.

As noted above, USCIS has automatically extended the validity of EADs issued under the last extension of TPS Sudan for an additional 6 months, through May 2, 2015.  Those who are TPS beneficiaries under the Sudan designation and whose EADs are based on their TPS status with an original expiration date of November 2, 2014, are covered by this automatic extension and may continue to work.

USCIS said that to continue working legally, the following documentation should be shown to employers and government agencies:

USCIS explained that an employer may rely on the Federal Register notice as evidence of the continuing validity of the EAD.

If USCIS approves the TPS re-registration application and the applicant paid the fee for a new EAD (or USCIS approved a fee waiver request), the applicant will be issued a new EAD with the expiration date of May 2, 2016.

South Sudan. During the past year, the Departments of Homeland Security and State reviewed the conditions in South Sudan. Based upon this review, Secretary Johnson determined that a re-designation and 18-month extension of TPS for South Sudan is warranted due to the significant deterioration of conditions in that country and the inability of its nationals to return in safety. The extension and re-designation of South Sudan for TPS are based on ongoing armed conflict in that country and the continuation of extraordinary and temporary conditions that led to the countryХs most recent TPS designation in 2013.

Current South Sudanese beneficiaries seeking to extend their TPS status must re-register by November 3, 2014.  USCIS encourages beneficiaries to re-register as soon as possible.

South Sudanese nationals, or persons having no nationality who last habitually resided in South Sudan, may be eligible for TPS under the re-designation if they continuously resided in the United States since September 2, 2014, and have been continuously physically present in the United States since November 3, 2014.  In addition, applicants must meet all other TPS eligibility and filing requirements.

The 18-month extension allows TPS re-registrants to apply for a new employment authorization document (EAD).  Eligible South Sudan TPS beneficiaries who re-register during the 60-day period and request a new EAD will receive one with an expiration date of May 2, 2016.  USCIS said it recognizes that some re-registrants may not receive their new EADs until after their current EADs expire.  Therefore, USCIS is automatically extending current TPS South Sudan EADs bearing a November 2, 2014, expiration date for an additional six months.  These existing EADs are now valid through May 2, 2015.

For more information on eligibility and how to register or re-register for Sudan TPS, see http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/tps-designated-country-sudan/temporary-protected-status-designated-country-sudan. For South Sudan, see http://www.uscis.gov/news/dhs-announces-18-month-re-designation-and-18-month-extension-temporary-protected-status-south-sudan.

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5.         CBP Designates POEs for First-Time Canadian TN, L Applicants Seeking U.S. Entry Under NAFTA

U.S. Customs and Border Protection (CBP) is optimizing processing for first-time Canadian TN (Trade NAFTA) and L applicants seeking entry into the United States under the North American Free Trade Agreement (NAFTA).  CBP has designated ports of entry (POEs) that will ensure a more efficient approach to processing the high volume of TN and L applicants.  CBP explained that such applicants may continue to go to any POE along the Canadian border for processing, but the agency is encouraging such applicants to go to one of the designated POEs “where you will receive optimized processing.”

The designated POEs include locations in Canada, Vermont, New York, Michigan, Washington, and Montana. They are listed at http://www.cbp.gov/travel/international-visitors/canada-mexico-travel/traveling-tn-or-l-1-visa-canada.

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  1. Practitioners Warn About Immigration Scams

Immigration practitioners are warning each other, companies, and employees to avoid immigration-related scams. Types of scams reported recently include:

  • Scammers targeting people based on foreign-sounding names or based on information gathered about companies hiring many H-1Bs. The scammers can get a lot of information from various websites, labor condition application listings from the Department of Labor, LinkedIn, social media, and other sources. Scammers are able to collect information in a variety of ways and use it to convince unwitting victims of their purported authenticity.
  • Scammers claiming to be from the Department of Homeland Security or U.S. Citizenship and Immigration Services. They call and state that the victim’s paperwork has problems and threaten to deport the victim or to send authorities to the person’s home if he or she does not cooperate. They then order the person to go to the nearest convenience store, obtain merchant cards or vouchers for a certain amount of money, and provide the voucher numbers over the phone. Once the scammers obtain the voucher numbers, they disconnect the call and disappear with the victim’s money.
  • Scammers claiming to be from the Internal Revenue Service, who state that the victim owes back taxes and ordering them to provide merchant card or voucher numbers, then disappearing with the victim’s money.
  • Scammers who use “Caller ID spoofing” to display a telephone number that is not really their own, and that may appear to be from a legitimate government agency.
  • Scammers who send e-mails claiming that the recipient is a Diversity Visa lottery winner and must send in a fee. The Department of State does not send e-mails to applicants.
  • Scammers who claim faster processing times or guarantee visas, work authorizations, or green cards, for a fee.

The Alliance of Business Immigration Lawyers notes that government agencies never conduct business in this manner. A call demanding money and threatening negative consequences if it’s not coughed up immediately is a scam, and those receiving such calls should hang up immediately and not provide any information.  USCIS notes, “USCIS will not call you to ask for any form of payment over the phone. Don’t give payment over the phone to anyone who claims to be a USCIS official.”

Scams can be reported to the Federal Trade Commission at https://www.ftccomplaintassistant.gov. See also USCIS’s scam information page at http://www.uscis.gov/avoidscams to learn where to report scams. USCIS lists common immigration-related scams at http://www.uscis.gov/avoid-scams/common-scams. Contact your ABIL attorney for more information or help in particular cases.

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  1. China EB-5 Category Unavailable Through September; Current in October

The Department of State’s Visa Office announced that the China employment-based fifth (EB-5) category became unavailable on August 23, 2014, and remained unavailable for the remainder of fiscal year 2014. The category again became current on October 1, 2014.

The Department noted that all China EB-5 applicants who had been scheduled for an interview at an overseas post based on the original establishment of the August and September cut-off dates would have been allotted visa numbers for potential use by their case. Such applicants would not be affected by the unavailability of the China EB-5 category for the remainder of FY 2014. In this context, the Department explained, “unavailable” meant that “no additional numbers are available for ‘comeback’ cases originally scheduled for interview in an earlier month who are now just returning, or for those just requesting an interview at this time.” The only exception would be if a post had “otherwise unused” numbers available, the Department noted, because applicants either failed to appear or failed to overcome a refusal during the month (i.e., August or September) of the originally scheduled interview.

The Department said in September that U.S. Citizenship and Immigration Services (USCIS) offices could continue to accept and process China EB-5 cases and submit them to the Visa Office in the normal manner, based on the cut-off dates announced in the August and September Visa Bulletins. However, instead of being acted upon immediately, those cases were to be held in the Visa Office’s “Pending Demand” file and then authorized effective October 1, 2014.

The announcement is available at http://travel.state.gov/content/dam/visas/Statistics/Immigrant-Statistics/China%20Employment%20Fifth%20Preference.pdf.

For CDAM’s commentary on adverse impact caused by EB-5 retrogression, see Cyrus Mehta’s blog, Impact Of EB-5 Retrogression On The regional Center Loan Model

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  1. USCIS Issues Policy Guidance on H-3 Nonimmigrant Trainees

U.S. Citizenship and Immigration Services (USCIS) announced on September 9, 2014, that it is issuing comprehensive policy guidance on H-3 nonimmigrant trainees in the USCIS Policy Manual. The new guidance consolidates all previous H-3 guidance addressing circumstances under which a temporary worker may come to the United States as a trainee or as a participant in a special education program.

The new guidance provides information on the background, purpose, and legal authority for the H-3 program and discusses program requirements, descriptions, restrictions, and forms and documents that must be submitted with an H-3 visa petition.

Among other things, the guidance notes that a training program for a trainee may not be approved if it:

  • Deals in generalities with no fixed schedule, objectives, or means of evaluation;
  • Is incompatible with the nature of the petitioner’s business or enterprise;
  • Is on behalf of a trainee who already possesses substantial training and expertise in the proposed field of training;
  • Is in a field in which it is unlikely that the knowledge or skill will be used outside the United States;
  • Will result in productive employment beyond that which is incidental and necessary to the training;
  • Is designed to recruit and train nonimmigrants for the ultimate staffing of domestic operations in the United States;
  • Does not establish that the petitioner has the physical plant and sufficiently trained workforce to provide the training specified; or
  • Is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student.

The announcement is available at http://www.uscis.gov/policymanual/Updates/20140909-Trainees.pdf#. The policy guidance is available at http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume2-PartJ.html.

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  1. Firm In The News

Cyrus D. Mehta and David Isaacson along with Gary Endelman, published an article in Benders Immigration Bulletin, dated September 15, 2014, entitled Scialabba v. Cuellar de Osoria: Does the Dark Cloud Have a Silver Lining?

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September 2014 Immigration Update

Headlines:

1.         DOS Announces Major Developments in Availability of China EB-5 Visa Numbers – Effective immediately, the EB-5 category is “unavailable” for investors born in China.  Visa numbers will become available again when the new federal fiscal year starts on October 1, 2014.

2.         DOS Changes Fees for Visa and Citizenship Services – DOS is amending the Schedule of Fees for Consular Services for certain nonimmigrant visa application processing fees, certain immigrant visa application processing and special visa services fees, and certain citizenship services fees.

3.         Visa Bulletin for September Advances India EB-2 Cut-Off Date, Announces Numerical Limits for FY 2014 – The India employment-based second preference cut-off date to advance very rapidly in recent months, although further advancements cannot be guaranteed.

4.         DOS Makes ‘Significant Progress’ in Bringing Visa Processing Back Online and Clearing Backlogs DOS said it has caught up with issuances for most of the worldwide backlog of nonimmigrant visa cases and is working to bring the system back to full operational capacity.

5.         CBP Responds to I-94 Web Portal and ESTA Questions – A recent teleconference focused on issues with the I-94 Web portal and travel history information.  Topics included incomplete or inaccurate data on the portal, redress for falsely recorded departures, and automated I-94 corrections.

6.         USCIS Clarifies Policy on Using Expedited Delivery Services USCIS has clarified aspects of its recent notice announcing that certain applicants and petitioners may select expedited delivery service to receive certain documents.

7.         USCIS Advises on Ebola-Related Relief for Nationals of Guinea, Liberia, and Sierra Leone in the United States – USCIS is offering relief measures to nationals of those three countries who are currently in the United States.

8.         International Employee Recruiter Sentenced to Two Years for Visa Fraud – A U.S. District Judge recently sentenced a Bulgarian national residing in Maryland to two years in prison for visa fraud, and ordered him to forfeit $100,000.

9.         CBP Announces New Mobile Passport Control App -The Mobile Passport Control app will allow eligible travelers to submit their passport information and customs declaration forms via a smartphone or tablet computer before CBP inspection.

10.       OSC Advises on How to Proceed After Over-Documenting Employees – OSC cannot advise on specific facts but offers general guidance, including “free webinar training by our office or distribution of educational materials to [a company’s] staff.”

11.       DOS Extends Special Immigrant Visas for Afghans – In addition to the 3,000 visas for Afghan principal applicants originally allocated for use in fiscal year 2014, another 1,000 SIVs may be issued until December 31, 2014.  The program will end on that date unless Congress further extends it.

12.       Firm In The News

Also in this issue:

Details:

1.         DOS Announces Major Developments in Availability of China EB-5 Visa Numbers

At an immigration law conference sponsored by the American Immigration Lawyers Association on August 23, 2014, Charles Oppenheim of the U.S. Department of State (DOS) announced that effective immediately, the employment-based fifth preference category (EB-5) is “unavailable” for investors born in China.  Visa numbers will become available again when the new federal fiscal year starts on October 1, 2014.

The practical implications of this announcement are quite minimal for Chinese investors who are on track to complete the immigrant visa process within the next few months.  EB-5 applicants from China who have already been scheduled for their initial immigrant visa interviews in August and September 2014 will still attend and may be issued visas.  U.S. Citizenship and Immigration Services (USCIS) will still accept I-485 applications to adjust status for EB-5 applicants in the United States.

Long-term implications for EB-5 investors from China are more consequential.  Mr. Oppenheim advised that in the spring of 2015, DOS will probably establish a cut-off date for EB-5 China, meaning that the category will “retrogress.”  Mr. Oppenheim estimated that the initial backlog will be about two years.  Based on the number of I-526 EB-5 petitions currently pending at USCIS (approximately 10,300), the current I-526 approval rate of 77%, and the speed and rate of adjudication (13 to 16 months), predictions are that the EB-5 cut-off date for China may quickly increase to three years, given the substantial number of cases already in process.

The DOS announcement does not affect EB-5 investors from other countries.

These developments are expected to significantly affect the EB-5 program as a whole, given that investors from China make up more than 80% of all EB-5 cases.  Investors from China will have to wait longer to obtain their visas.  The delays will also affect U.S. developers who rely on EB-5 money in their projects.  If you are an EB-5 investor or project developer, contact your Alliance of Business Immigration Lawyers attorney for more detailed advice.

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2.         DOS Changes Fees for Visa and Citizenship Services

Effective September 6, 2014, the Department of State is amending the Schedule of Fees for Consular Services for certain nonimmigrant visa application processing fees, certain immigrant visa application processing and special visa services fees, and certain citizenship services fees.  Included are two categories of petition-based nonimmigrant visas and the tiered application processing fees for immigrant visas.  The interim final rule also amends the security surcharge for immigrant visa services and the fees for certain immigrant visa services.  Lastly, the rule raises the application processing fee for renunciation of U.S. citizenship and lowers the hourly consular officer time charge.  The Department of State said it is adjusting the fees in light of the findings of a recent Cost of Service study to ensure that the fees for consular services better align with the costs of providing those services. 

Some of the changes include:

 The processing fee for E treaty trader and treaty investor visa applications will decrease from $270 to $205.

  • The processing fee for an employment-based visa application (based on an approved. I-140 alien worker or I-526 alien entrepreneur petition) will decrease from $405 to $345. 
  • Other immigrant visa application fees (including for I-360 self-petitioners, special immigrant visa applicants, and all others) will decrease from $220 to $205.
  • Certain qualifying Iraqi and Afghan special immigrant visa applicants are statutorily exempt from paying any visa-related fees.
  • The Immigrant Visa Security Surcharge, paid by all applicants except those who are statutorily exempted from paying fees, will increase from $75 to $100.
  • The fee for processing an application for waiver of the two-year residence requirement for J-1 exchange visitors will decrease from $215 to $120.
  • The affidavit of support fee will increase from $88 to $120.
  • The fee for processing renunciation of U.S. citizenship requests will increase from $450 to $2,350.

Comments on the interim final rule, which was published in the Federal Register on August 28, 2014, are due by October 21, 2014.  The rule, which includes information on additional fee changes and the rationale for the changes, is available at https://www.federalregister.gov/articles/2014/08/28/2014-20516/schedule-of-fees-for-consular-services-department-of-state-and-overseas-embassies-and.

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3.         Visa Bulletin for September Advances India EB-2 Cut-Off Date, Announces Numerical Limits for FY 2014

The Department of State’s Visa Bulletin for September 2014 noted that the use of potentially “otherwise unused” employment visa numbers prescribed by ¤ 202(a)(5) of the Immigration and Nationality Act (INA) has allowed the India employment-based second preference cut-off date to advance very rapidly in recent months.  The Visa Bulletin warned, however, that continued forward movement of this cut-off date during the upcoming months cannot be guaranteed, and said that no assumptions should be made until the dates are formally announced.  Once there is a significant increase in India employment second preference demand, it will be necessary for DOS to retrogress the cut-off date, “possibly as early as November,” to hold number use within the fiscal year 2015 annual limit, the agency said.

The Visa Bulletin for September also notes that DOS has determined the numerical limits for fiscal year 2014.  The Worldwide employment-based preference limit is 150,241; the family-sponsored preference limit is 226,000; and the per-country limit is 26,337.  The dependent area limit is 7,525.

The September Visa Bulletin is available at http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2014/visa-bulletin-for-september-2014.html.

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4.         DOS Makes ‘Significant Progress’ in Bringing Visa Processing Back Online and Clearing Backlogs

The Department of State (DOS) announced that it has made “significant progress” in bringing back online the Consular Consolidated Database (CCD), used to print and approve visas and passports.  The system had crashed in July 2014 and has continued to experience outages, resulting in processing backlogs.  DOS said it has caught up with issuances for most of the worldwide backlog of nonimmigrant visa cases and is working to bring the CCD back to full operational capacity.  “We continue to prioritize immigrant visas, adoption cases, and emergency nonimmigrant visa cases.  We are printing visas for these cases and all cases with very few delays,” a DOS statement noted.  For information on specific cases, the agency advises checking with the embassy or consulate where the person will apply or has scheduled an interview.

DOS noted that the problems started shortly after a software update on July 20, 2014, although the agency has not been able to identify a “root cause.”  DOS said current efforts are focused on bringing the system back to normal operations.  Once that has been accomplished, DOS will investigate the cause, and the agency also has been working with Oracle and Microsoft to implement system changes aimed at optimizing performance and addressing ongoing issues.  DOS is also bringing additional servers online to increase capacity and response time.  DOS noted that it has experienced minor outages in the past, but not of this magnitude.

The agency says visa applicants should “expect delays as we process pending cases,” but that it remains able “to quickly process emergency cases to completion.”  DOS estimates that visa issuances may be delayed 10 to 14 days until the system is restored to full functionality and pending applications are printed.

DOS says it understands the importance to international students and exchange visitors, their families, and their U.S. host institutions of timely visa issuance to facilitate travel and to ensure that all students and exchange visitors may begin their programs on time.  “We are committed to issuing visas to all qualified students and exchange visitors.  Student and exchange visitor visa applicants should submit their applications well in advance of expected travel dates.  We will make every effort to ensure timely visa issuance,” DOS said.  The agency added that in situations where a student won’t be able to arrive at school on time, “[s]tudents should contact their educational institution’s Designated School Official (F and M visas) or designated U.S. sponsor’s Responsible Officer (J visas) and discuss with them what arrangements they can provide for you to begin your program after the start date on your Form I-20 (F and M visas) or Form DS 2019 (J visas).”

Regarding the diversity visa (DV) program, the agency noted that immigrant visa processing, including diversity visas, “continues and remains a high priority.  The Department expects to have used all numbers for DV-2014 when the program year ends on September 30, 2014.”

Some individuals would like to have their passports returned before their U.S. visas are printed.  DOS said it is working with posts around the world to develop procedures to manage these requests.  Each embassy and consulate will post contact information on its website for applicants with questions about the status of their cases.

DOS noted that those traveling under the Visa Waiver Program, and those whose previously issued visas remain valid, are not affected.  DOS routinely advises visa applicants to make appointments well in advance of planned travel, and not to book travel until they have their printed visas in hand. 

DOS said it plans to upgrade the CCD again to a newer version of the Oracle commercial database software by the end of 2014.  The announcement is available at http://travel.state.gov/content/visas/english.html.  A related FAQ is available at http://travel.state.gov/content/travel/english/news/ccd-performance-issues.html.

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5.         CBP Responds to I-94 Web Portal and ESTA Questions

The American Immigration Lawyers Association (AILA) held a teleconference with Suzanne Shepherd, Director of the Electronic System for Travel Authorization (ESTA) at U.S. Customs and Border Protection, on August 6, 2014, on issues with the I-94 Web portal and travel history information.  Topics included incomplete or inaccurate data on the portal, redress for falsely recorded departures, and automated I-94 corrections.

According to AILA’s teleconference minutes, Ms. Shepherd said that the information on the I-94 website is taken from the I-94 database, not from any other databases related to a travelerХs admissions/departures.  CBP has plans to create a crossing history for U.S. lawful permanent residents and U.S. citizens.  Ms. Shepherd said this will be a difficult task, however.  CBP will need to determine how to query and retrieve data, and resolve privacy issues.  CBP does not have a launch date or a set plan yet. 

 Ms. Shepherd noted that CBP has reached out to U.S. Citizenship and Immigration Services (USCIS) regarding USCIS denials based only on I-94 database information.  She said USCIS is training its service center adjudicators not to use I-94 database information alone to make any decisions.  Ms. Shepherd asked that examples of USCIS issuing decisions based on I-94 database information alone be sent to CBP through the AILA liaison.

In response to questions about inaccuracies in the system, Ms. Shepherd noted that data entry error can result in a no-match.  Matching algorithms should alleviate this problem, she said.  For example, if a traveler’s name is spelled wrong on one or more occasions, a different travel history may be created under the alternate spelling.  She said that if this happens, the ESTA office or a Deferred Inspection office can correct this by combining the two data sets.

Regarding those whose travel histories are unavailable or unlisted in the online system, Ms. Shepherd noted that the online records include only instances in which an actual I-94, whether paper or electronic, was issued.  Therefore, Canadians entering at a land border will not have a crossing history, nor will anyone not issued an I-94 before the electronic I-94 system was implemented.

Ms. Shepherd said that if someone needs a complete travel history, including data that is not reported online, a Freedom of Information Act (FOIA) request is still the way to request a complete report.

In response to a question about whether non-controlled admissions records for Canadians are available in the online system, Ms. Shepherd noted that if a traveler is issued or has surrendered an I-94, the information will be available.  If not, it will not be available.  She pointed out that this may result in oddities in records.  For example, at the land border, if a traveler surrendered an old I-94 at the time of admission rather than upon the previous departure, and was issued a new I-94 on same day, the I-94 website will show the departure and arrival on same day.

Several AILA members have reported instances in which people who had purchased plane tickets to depart the United States but then never used the ticket to depart nevertheless were recorded as having departed.  In one of those cases, the person went to Deferred Inspection office, and the officer there, upon viewing the unused plane ticket that corresponded with the incorrectly recorded departure date, was able to correct the I-94 record to delete the erroneous departure. 

In the event of a discrepancy between the information in the entry-exit database and either a paper I-94 or an admission stamp (e.g., they show different expiration dates), Ms. Shepherd said that most of the time this will be due to CBP officer error and that Deferred Inspection is an appropriate way to attempt to resolve such an inconsistency.

Ms. Shepherd asked AILA to provide specific examples of any difficulties with correcting erroneous information or with Deferred Inspection.

More information on ESTA is available at https://esta.cbp.dhs.gov/esta/.

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  1. USCIS Clarifies Policy on Using Expedited Delivery Services

U.S. Citizenship and Immigration Services (USCIS) has clarified aspects of its recent notice announcing that certain applicants and petitioners may select expedited delivery service to receive certain documents.

USCIS noted that those whose petitions or applications are processed at a USCIS Service Center or the National Benefits Center who wish to receive certain documents by overnight delivery service must include a valid prepaid air bill or shipping label with their filing. The agency also noted that this option is only available for receiving the following types of documents from certain USCIS facilities:

USCIS Service Centers or the National Benefits Center: Advance parole documents (not including the combination Employment Authorization Document/Advance Parole Card), re-entry permits, and refugee travel documents.

USCIS Service Centers only: Approval notices and notices of denial.

To ensure that overnight delivery requests are not delayed, USCIS advises:

  • Including a valid prepaid air bill or shipping label when submitting an application, petition, or response to a request for evidence. “Providing a prepaid shipping label directly from the delivery service is the best way to avoid delivery errors. You will not need to write in an account number if you use a shipping label,” USCIS noted.
  • Entering the name in both the “to” and “from” fields on the air bill or shipping label.
  • Never listing USCIS as the sender and not marking “bill to sender.”
  • Paying all delivery costs in advance, and including the prepaid air bill or shipping label with the submission (as noted above).USCIS’s clarifying announcement is available at http://www.uscis.gov/news/alerts/clarification-uscis-customers-can-select-delivery-service-receive-certain-documents.
  • USCIS said it will not honor shipping labels sent after the initial filing. “If the delivery costs are not paid in full, or if you do not choose to send us a prepaid air bill or shipping label, we will send the documents to you by regular U.S. mail,” USCIS said. Also, the agency noted that using a prepaid air bill or shipping label does not speed up adjudication and will not always result in faster delivery of the notice.

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  1. USCIS Advises on Ebola-Related Relief for Nationals of Guinea, Liberia, and Sierra Leone in the United States

U.S. Citizenship and Immigration Services (USCIS) announced that it is closely monitoring the Ebola disease outbreak in West Africa and is offering relief measures to nationals of those three countries who are currently in the United States. Immigration relief measures that “may be available if requested” include:

  • Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;
  • Extension of certain grants of parole made by USCIS;
  • Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited processing of immigrant petitions for immediate relatives (currently in the United States) of U.S. citizens;
  • Expedited adjudication of employment authorization applications, where appropriate; and
  • Consideration for waiver of fees associated with USCIS benefit applications.
  • The announcement is available at http://www.uscis.gov/news/alerts/ebola-outbreak-related-immigration-relief-measures-nationals-guinea-liberia-and-sierra-leone-currently-united-states. For more information about similar measures for those affected by unforeseen circumstances in their home countries, see http://www.uscis.gov/humanitarian/special-situations.

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  1. International Employee Recruiter Sentenced to Two Years for Visa Fraud

U.S. District Judge Paul W. Grimm recently sentenced Milen Radomirski, a Bulgarian national residing in Germantown, Maryland, to two years in prison for visa fraud. Judge Grimm also ordered Radomirski to forfeit $100,000.

“American businesses are permitted to sponsor foreign workers to enter the United States lawfully under the H-2B visa program, but Milen Radomirski undermined that program by falsely vouching for hundreds of aliens who were not expected to comply with the terms of the visa,” said U.S. Attorney Rod J. Rosenstein.

According to the USCIS announcement, from 2003 to August 2013, Mr. Radomirski worked for a pool service company in Maryland that provided lifeguards and pool maintenance in the Washington, DC, metropolitan area. As part of his employment, Mr. Radomirski recruited international workers that his company could sponsor to work in the United States on H-2B visas and other short-term visas. Mr. Radomirski admitted that he fraudulently obtained more than 100 H-2B temporary worker visas.

From 2006 through 2011, Mr. Radomirski’s company submitted applications for approximately 789 H-2B visas. His company certified to the U.S. Department of Labor that it had not sought or received payment from the workers to obtain the visas, and specified to USCIS the jobs in which the foreign nationals would be employed. Sponsored workers could not be employed by any other company. The company was required to notify DHS if any H-2B workers failed to report to work within five days after their specified start dates or if workers absconded or were terminated.

Mr. Radomirski admitted that he charged visa beneficiaries money in exchange for including them on his company’s petitions for H-2B visas. He knew that many of the visa beneficiaries would not work for his company at all, would only work at his company for a short period of time, or would work for other employers in addition to his company.

The announcement is available at http://www.uscis.gov/news/news-releases/international-employee-recruiter-sentenced-two-years-prison-visa-fraud.

  1. CBP Announces New Mobile Passport Control App

U.S. Customs and Border Protection (CBP) announced the launch of the first authorized “app” (mobile application) to expedite a traveler’s entry process into the United States. Mobile Passport Control (MPC) will allow eligible travelers to submit their passport information and customs declaration forms via a smartphone or tablet computer before CBP inspection.

Airside Mobile and Airports Council International-North America (ACI-NA) developed the app in partnership with CBP as part of a pilot program at the Hartsfield-Jackson Atlanta International Airport. MPC is expected to expand to more airports later this year and to Android smartphone users in the future.  Currently, iPhone and iPad users can download the app for free from Apple’s App Store.

CBP Commissioner R. Gil Kerlikowske said, “By offering this app to passengers, we hope to build upon the success we have already experienced with Automated Passport Control, which has resulted in decreases in wait times as much as 25-40 percent, even with continued growth in international arrivals.” The app does not require pre-approval and does not collect any new information on travelers.

ACI-NA contracted with Airside Mobile for MPC’s technical development. ACI-NA President and CEO Kevin M. Burke said, “We look forward to continuing our collaboration with CBP as Mobile Passport begins its roll-out at U.S. airports later this year.”

There are five steps to MPC:

  • Download the Mobile Passport Control App from the Apple App Store before arriving;
  • Create a profile with the passport information;
  • Complete the “New Trip” section upon arrival in the United States;
  • Submit the customs declaration form through the app to receive an electronic receipt with an Encrypted Quick Response (QR) code (the receipt will expire four hours after being issued); and
  • Bring the passport and smartphone or tablet with the digital bar-coded receipt to a CBP officer.

The announcement is available at http://www.cbp.gov/newsroom/national-media-release/2014-08-11-000000/new-mobile-passport-control-app-available. Information about Mobile Passport, including how to download, user eligibility, and other frequently asked questions, is available at http://www.cbp.gov/travel/us-citizens/mobilepassportcontrol and http://mobilepassport.us/.

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  1. OSC Advises on How to Proceed After Over-Documenting Employees

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently responded to a request for guidance on how to proceed after discovering that a company had accepted more documentation than necessary for Form I-9 employment verification purposes in a few cases.

OSC noted that it is unaware of any publicly available guidance issued by any agency regarding steps an employer should take if it accepts too many documents during the I-9 process. However, OSC pointed out that an employer may violate the Immigration and Nationality Act if it requests more or different documents than required, or rejects “reasonably genuine-looking documents” on the basis of citizenship or immigration status or on the basis of national origin during the I-9 process. OSC also noted that although an employer should correct its practices upon learning that it may have violated the antidiscrimination provision of the INA, an employee who believes that he or she was the victim of discriminatory I-9 practices has up to 180 days from the date of the practice to file a charge with the OSC. OSC advised the inquiring employer to see http://www.justice.gov/crt/about/osc or call its toll-free employer hotline at 1-800-255-8155 to learn about resources available to assist human resources staff in complying with the provision in the future, including “free webinar training by our office or distribution of educational materials to your staff.” The OSC noted that it cannot provide an advisory opinion on any specific case or set of facts.

The OSC response is available at http://www.justice.gov/crt/about/osc/pdf/publications/TAletters/FY2014/181.pdf.

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  1. DOS Extends Special Immigrant Visas for Afghans

The Department of State announced that its authority to issue special immigrant visas (SIVs) to certain Afghan nationals under the Afghan Allies Protection Act of 2009, as amended, has been extended. In addition to the 3,000 visas for Afghan principal applicants originally allocated for use in fiscal year 2014, another 1,000 SIVs may be issued until December 31, 2014. The program will end on that date unless Congress further extends it.

The announcement is available at http://travel.state.gov/content/visas/english/news/Afghan-SIV-Program-Extended.html.

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  1. Firm In the News

Cyrus Mehta was a speaker at the 2014 EB-5 Investors & Regional Centers CLE Conference on August 22, 2014, in Chicago, IL where he spoke on ethical issues in EB-5 practice. Mr. Mehta also spoke on ethical issues in removal proceedings at a Removal Defense conference of the Practising Law Institute in New York City on August 11, 2014.

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August 2014 Immigration Update

Headlines

1.         Consular Visa/Passport System Crashes – The Department of State’s Consular Consolidated Database, used to print and approve visas and passports, has been having significant problems, including outages.  Backlogs have ensued.

2.         August Visa Bulletin Shows Advances in China and ‘Other Workers’ EB-3 Preference Categories, India EB-2 Preference – Cut-off dates for the China-mainland born employment third preference, and third preference “Other Workers,” have advanced for the month of August and could do so again for September.  The India employment second preference cut-off date also has advanced very rapidly.

3.         Congress Stalls on White House Request for $3.7 Billion for Border Crisis  As the United States continues to grapple with an influx of undocumented children and others along the southern border, as of press time, Congress had not yet voted on President Barack Obama’s July 8, 2014, request for a $3.7 billion supplemental appropriation to fund related activities.  Republicans vowed to continue working into the weekend on a measure to deal with the border crisis.

4.         USCIS Issues Policy Memo on Adjudication of H-1B Petitions for Nursing Occupations The memo, which supersedes prior guidance, assists USCIS officers in determining whether a nursing position meets the definition of a specialty occupation.

5.         CBP Seeks Comments on International Travel Improvements, Closes Border Crossing CBP seeks comments on proposed improvements in the entry process and airport-specific plans for international travelers to the United States.  Also, as of August 21, 2014, CBP is closing the Jamieson Line, New York, border crossing in Burke.

6.         EOIR Interim Rule Addresses ‘Largest Caseload’ in U.S. History With Temporary IJs – EOIR published an interim rule effective July 11, 2014, allowing the agency to designate or select temporary immigration judges with the Attorney General’s approval.

7        Leon Rodriguez Sworn In as USCIS Director Leon Rodriguez was sworn in on July 9, 2014, as the new director of USCIS.  The agency has nearly 18,000 employees.

8.         ABIL Global: Peru – This article provides an update on visas in Peru for short-term assignments.

Details

1.         Consular Visa/Passport System Crashes

According to reports, the Department of State’s Consular Consolidated Database (CCD), used to print and approve visas and passports, has been having significant problems, including outages, since July 19, 2014.  The CCD is back up and running in a limited capacity, the Department said, but the Bureau of Consular Affairs is still working through the resulting backlogs.  The problems are worldwide and not confined to any particular category. 

Marie Harf, deputy spokesperson, said, “We apologize to applicants and recognize this may cause hardship to applicants waiting on visas and passports.”  The database is one of the largest in the world with 100 million visa case records.

At a press briefing on July 24, Ms. Hart noted, “We do not believe there was any malicious action or anything untoward here.  This was a technical issue, and again, we are working to correct it and should be fully operational again soon.  WeХre operating at a little bit of limited capacity right now, though, so we’re trying not to overload the system.”

The press briefing transcript, which includes related information among other topics, is available at http://www.state.gov/r/pa/prs/dpb/2014/07/229752.htm#DEPARTMENT.

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2.         August Visa Bulletin Shows Advances in China and ‘Other Workers’ EB-3 Preference Categories, India EB-2 Preference

The Department of State’s Visa Bulletin for August 2014 notes that cut-off dates for the China-mainland born employment third preference, and third preference “Other Workers,” categories have advanced for the month of August and could do so again for September. 

The bulletin notes two reasons for this advance: (1) a decline during the past two months in heavy demand by applicants with priority dates significantly (years) earlier than the previous cut-off date, and (2) declining number use in the family preferences during May and June, combined with updated estimates of such number use through the end of the fiscal year.  These developments have resulted in the availability of several hundred numbers for use in the China-mainland born employment third preference category.

During the past two months, the India employment second preference cut-off date also has advanced very rapidly based on the projected availability of “otherwise unused” numbers under the worldwide preference limit.  The bulletin notes that it must not be assumed that this cut-off date will continue to advance at the same pace during the coming months.  “A cut-off date does not mean that everyone with a priority date before such cut-off date has already been processed to conclusion.  It remains to be seen how heavy the demand for visa numbers by applicants will be in the coming months, and what the priority dates of such applicants may be,” the bulletin states. Heavy demand by applicants with priority dates significantly earlier than the established cut-off date is expected to materialize within the next several months, the bulletin notes, at which time the cut-off date is likely to retrogress significantly. 

The Visa Bulletin for August 2014 is available at http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2014/visa-bulletin-for-august-2014.html.

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3.         Congress Stalls on White House Request for $3.7 Billion for Border Crisis

As the United States continues to grapple with an influx of undocumented children and others along the southern border, as of press time on August 1, 2014, Congress had not yet voted on President Barack Obama’s July 8 request for a $3.7 billion supplemental appropriation to fund activities at the Departments of Homeland Security (DHS), Justice (DOJ), State (DOS), and Health and Human Services (HHS).  Some House Republicans continued to work on a possible measure to address the border crisis, and said they’d work through the weekend if necessary.  Rep. Tom Cole (R-Okla.) reportedly said that Republicans had not yet left for their August recess and were still working as of August 1: “[The House Republican] conference was essentially unanimous that it needs to stay.  It did not want to go home.  If we have to work longer through the weekend, I think there is a genuine desire to do that.”

In its request to Congress, the Obama administration said the money would be used for four main efforts: (1) deterrence, including increased detentions and removals of adults with children and increased immigration court capacity to speed cases; (2) enforcement, including enhanced interdiction and prosecution of criminal networks, increased surveillance, and expanded collaborative law enforcement task force activities; (3) foreign cooperation, including improved repatriation and reintegration, stepped-up public information campaigns, and efforts to address the root causes of undocumented migration; and (4) capacity, including increased detention, care, and transportation of unaccompanied children.

Of the total, $45.4 million would be used to hire approximately 40 additional immigration judge teams, including those anticipated to be hired on a temporary basis.  This funding would also expand courtroom capacity, including additional video conferencing and other equipment in support of the additional immigration judge teams.  These additional resources, when combined with the FY 2015 budget request for 35 additional teams, “would provide sufficient capacity to process an additional 55,000 to 75,000 cases annually,” the Obama administration said.  In addition, $15 million would provide direct legal representation services to children in immigration proceedings, and $1.1 million would be used to hire additional immigration litigation attorneys to support federal agencies involved in detainee admission, regulation, and removal actions.

Also, $295 million would support efforts to repatriate the migrants and reintegrate them in Central America, to help the governments in the region better control their borders, and to address the “underlying root causes” driving the migrations, such as by “creating the economic, social, governance, and citizen security conditions to address factors that are contributing to significant increases in migration to the United States.” Beyond initial assistance, continued funding for repatriation and reintegration activities will be contingent on sustained progress and cooperation by the Central American countries, the administration said.

The supplemental appropriations request notes that separately, the administration plans to continue to work with Congress, following up on President Obama’s letter to congressional leadership on June 30, 2014, “to ensure that we have the legal authorities to maximize the impact of our efforts,” including “providing the Secretary of Homeland Security additional authority to exercise discretion in processing the return and removal of unaccompanied minor children from non-contiguous countries like Guatemala, Honduras, and El Salvador,” and “increasing penalties for those who smuggle vulnerable migrants, like children.”

The Senate Committee on Appropriations held a related hearing on July 10, 2014.  Witnesses included Hon. Jeh Johnson, Secretary, DHS; Hon. Sylvia Mathews Burwell, Secretary, HHS; Hon. Thomas A. Shannon, Jr., Counselor, DOS; and Juan P. Osuna, Director, Executive Office for Immigration Review.

The supplemental appropriations request is available at http://www.whitehouse.gov/sites/default/files/omb/assets/budget_amendments/emergency-supplemental-request-to-congress-07082014.pdf.  A related White House fact sheet is available at http://www.whitehouse.gov/the-press-office/2014/07/08/fact-sheet-emergency-supplemental-request-address-increase-child-and-adu.  Senate hearing testimony (written and webcast) is available at http://www.appropriations.senate.gov/hearings-and-testimony/full-committee-review-presidents-supplemental-request

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4.         USCIS Issues Policy Memo on Adjudication of H-1B Petitions for Nursing Occupations

On July 11, 2014, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum providing guidance on the adjudication of H-1B petitions for nursing positions.  The memo assists USCIS officers in determining whether a nursing position meets the definition of a specialty occupation.  The memo states that it supersedes any prior guidance on the subject and is binding on all USCIS employees unless specifically exempted.  USCIS noted that about 12 years have passed since USCIS issued guidance on determining whether a nursing position is a specialty occupation.  USCIS decided it was time to update this guidance.

As background, the memo notes that the H-1B visa classification allows a U.S. employer to petition for a temporary worker in a specialty occupation.  Most registered nurse (RN) positions do not qualify as specialty occupations because they do not normally require a U.S. bachelor’s or higher degree in nursing (or its equivalent) as the minimum for entry into those positions.  In some situations, however, a petitioner may be able to show that a nursing position qualifies as a specialty occupation, the memo states. For example, certain advanced practice registered nurse (APRN) positions normally require a U.S. bachelor’s or higher degree in a specialty as the minimum for entry.

The updated guidance notes that the private sector “is increasingly showing a preference for more highly educated nurses.” Among other influences, the American Nurses Credentialing Center’s (ANCC) Magnet Recognition Program recognizes health-care organizations that advance nursing excellence and leadership. Achieving Magnet status indicates that an institution’s nursing workforce has attained a number of high standards, with an emphasis on bachelor’s degrees.

The memo lists some of the nursing positions that may qualify as specialty occupations.  The memo notes that having a bachelor’s degree is not, by itself, sufficient to qualify for H-1B classification.  A critical factor, the memo states, is whether a bachelor’s or higher degree is normally required for the position.  A beneficiary’s credentials to perform a particular job are relevant only when the job is found to qualify as a specialty occupation.  USCIS noted that it must “follow long-standing legal standards and determine whether the proffered position qualifies as a specialty occupation, and whether a beneficiary is qualified for the position at the time the nonimmigrant visa petition is filed.”

Among other things, the memo notes that if a state requires at least a bachelor’s degree in nursing to obtain a nursing license, a registered nurse position in that state would generally be considered a specialty occupation.  No state currently requires a bachelor’s degree in nursing for licensure, the memo notes.

The memo outlines the evidence needed to establish that a position qualifies as a specialty occupation under the “preponderance of the evidence” standard.  Among other things, documentation submitted by petitioners often includes the nature of the petitioner’s business; industry practices; a detailed description of the duties to be performed; advanced certification requirements; ANCC “Magnet Recognized” status; clinical experience requirements; training in the specialty requirements; and wage rate relative to others within the occupation.

USCIS recognizes the Department of Labor’s Occupational Outlook Handbook (OOH) as an authoritative source on duties and educational requirements.  However, the memo notes that it is not always determinative and other authoritative and/or persuasive sources provided by the petitioner will also be considered.

The new guidance memo is available at http://www.uscis.gov/sites/default/files/files/nativedocuments/2014-0711_EIR_Nursing_PM_Effective.pdf.  Information on registered nurses is available at http://www.bls.gov/ooh/healthcare/registered-nurses.htm.  The guidance indicates that advanced practice nursing positions include nurse anesthetists, nurse midwives, and nurse practitioners.  Further information on these specialties is available at http://www.bls.gov/ooh/healthcare/nurse-anesthetists-nurse-midwives-and-nurse-practitioners.htm.

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5.         CBP Seeks Comments on International Travel Improvements, Closes Border Crossing

The following are recent developments from the U.S. Customs and Border Patrol (CBP):

International travel improvements. CBP seeks comments by August 15, 2014, on proposed improvements in the entry process and airport-specific plans for international travelers to the United States.  On May 22, 2014, President Obama directed the Secretaries of Commerce and Homeland Security to lead an interagency team over the next 120 days, in close partnership with industry, to develop a national goal and airport-specific plans to enhance the entry process for international travelers to the United States.  The measures the administration is taking to expedite the arrivals process are intended to enhance security by focusing officer time on the highest-risk passengers and facilitating the process for the vast majority of legitimate travelers.  The notice seeks comments on a list of questions.  The questions ask for suggestions for improvement in the international arrival experience, technology, passport and baggage inspections, and related issues.

Jamieson Line, New York, border crossing closes. As of August 21, 2014, CBP is closing the Jamieson Line, New York, border crossing in Burke.  CBP said the primary reason was the Canada Border Services Agency’s closing of the adjacent port of entry in QuЋbec, Canada.  Other factors included very limited usage (less than six privately owned vehicles per day); alternative ports located at Trout River, New York, and Chateaugay, New York; lack of sufficient infrastructure at the border; and the cost of renovations if the port were to remain open.

The Federal Register notice announcing the proposed improvements in international travel is available at https://www.federalregister.gov/articles/2014/07/22/2014-17215/opportunity-to-comment-on-presidential-memorandum-calling-for-improving-the-entry-process-and. The Federal Register notice announcing the closure is available at https://www.federalregister.gov/articles/2014/07/22/2014-17190/closing-of-the-jamieson-line-new-york-border-crossing#h-7.

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6.         EOIR Interim Rule Addresses ‘Largest Caseload’ in U.S. History With Temporary IJs

Following the Obama administration’s decision to increase the number of immigration judges deployed to handle cases related to the influx of undocumented migrants in the U.S. southern border area, the Department of Justice’s Executive Office for Immigration Review (EOIR) published an interim rule effective July 11, 2014, allowing the agency to designate or select temporary immigration judges, with the Attorney General’s approval.

The interim rule notes that EOIR “is currently managing the largest caseload the immigration court system has ever seen.”  This is due to “attrition in the immigration judge corps and continuing budgetary restrictions” along with a large number of pending cases, the interim rule notes.  Allowing the designation of temporary immigration judges will provide flexibility “in responding to the increased challenges facing the immigration courts.”

A new TRAC report finds that as of the end of June 2014, the number of cases pending in the immigration courts is at an all-time high of 375,503.  TRAC’s preliminary figures indicated that the number of cases involving juveniles was 41,640, with more arriving daily.  “As of the end of June 2014, the court backlog for juveniles from Guatemala is the largest with 12,841 cases, closely followed by Honduras (12,696) and El Salvador (12,162),” TRAC noted.  According to the TRAC report, the average time for a pending case before an immigration judge is now 587 days.

The interim rule states that temporary immigration judges may include former Board members, former immigration judges, administrative law judges employed within or retired from EOIR, and administrative law judges from other Executive Branch agencies to act as temporary immigration judges for renewable six-month terms. Administrative law judges from other agencies must have the consent of their agencies to be designated as temporary immigration judges. In addition, the Director of EOIR will be able to designate, with the approval of the Attorney General, attorneys who have at least 10 years of legal experience in the field of immigration law and are currently employed by the Department of Justice to act as temporary immigration judges for renewable six- month terms. The 10 years of experience must be gained after admission to the bar and may be gained through employment by the federal, state, or local government, the private sector, universities, non-governmental organizations, or a combination of such experience.

Characteristics that would qualify a candidate for designation as a temporary immigration judge include the ability to demonstrate the appropriate temperament to serve as a judge; knowledge of immigration laws and procedures; substantial litigation experience, preferably in a high-volume context; experience handling complex legal issues; experience conducting administrative hearings; and knowledge of practices and procedures.

EOIR will provide the training necessary for temporary immigration judges to perform the assigned duties. The Chief Immigration Judge may choose to specify particular types of matters for which each temporary immigration judge will be assigned, consistent with the individualХs training and experience.

The interim rule is available at http://www.gpo.gov/fdsys/pkg/FR-2014-07-11/pdf/2014-16279.pdf.  The TRAC report is available at http://trac.syr.edu/whatsnew/email.140710.html.

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  1. Leon Rodriguez Sworn In as USCIS Director

Leon Rodriguez was sworn in on July 9, 2014, as the new director of U.S. Citizenship and Immigration Services (USCIS). The agency has nearly 18,000 employees.

The Senate confirmed Mr. Rodriguez in June 2014. He previously served as the director of the Office for Civil Rights at the U.S. Department of Health and Human Services, a position he held from 2011 to 2014. From 2010 to 2011, he served as chief of staff and deputy assistant attorney general for civil rights at the Department of Justice (DOJ). Previously, Mr. Rodriguez was county attorney for Montgomery County, Maryland, from 2007 to 2010. He was a principal at Ober, Kaler, Grimes & Shriver in Washington, DC, from 2001 to 2007.

Mr. Rodriguez served in the U.S. Attorney’s Office for the Western District of Pennsylvania from 1997 to 2001, first as chief of the White Collar Crimes Section from 1998 to 1999 and then as first assistant U.S. Attorney until his departure. Before joining the U.S. Attorney’s Office, Mr. Rodriguez was a trial attorney in the Civil Rights Division at DOJ from 1994 to 1997 and a senior assistant district attorney at the Kings County District Attorney’s Office in New York from 1988 to 1994. He received a B.A. from Brown University and a J.D. from Boston College Law School.

The announcement is available at http://www.uscis.gov/news/news-releases/leon-rodriguez-sworn-uscis-director.

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  1. ABIL Global: Peru

This article provides an update on visas in Peru for short-term assignments.

The Peruvian immigration authority (MIGRACIONES) has no specific visa that may be obtained quickly for short-term assignments. When technical workers, for example, are coming to work in Peru, they must obtain work permits, which take approximately 30 to 45 days.  The work permit may be either a temporary worker visa (for foreign workers on a local company’s payroll) or an appointed worker temporary visa (for workers who are not staff of the local company).

Appointed workers are those who come to Peru with no intention of establishing a residence to carry out labor activities assigned by their foreign employers for limited and defined terms to perform specific tasks or duties, or to perform work that requires professional, commercial, or technical knowledge or any other type of highly specialized knowledge. This category applies to consultants or advisors.  Although they are paid by a company abroad, they must pay taxes in Peru.

To obtain this type of visa (Visa Temporal de Trabajador Designado), the following documents must be legalized by a Peruvian consulate abroad or certified by apostille abroad:

  • A Service Agreement or Technical Service Agreement (TSA) executed by the foreign entity that will provide the services (Provider) and the local entity receiving the services (Beneficiary Company).
  • An appointment letter issued by the Provider appointing the foreign consultant who will come to Peru under the Service Agreement.
  • A letter from the Beneficiary Company confirming that it will be the recipient of the services that the foreign consultant will provide.
  • A Certificate of Specialization of the foreign consultant issued by the Provider.
  • The assignee’s original passport in the case of in-country processing before MICRACIONES. If processing before a consul abroad, then a copy of the passport will be duly legalized by the Peruvian consulate abroad or certified by apostille and the consultant will remain abroad for processing.
  • Other documentation of the assignee and the local company as required. The processing time from the date of filing of the application with all required documents is 30 working days for “Obtaining Visa Proceeding,” and 60 working days for in-country processing, according to the rules. At present, however, in-country processing is taking less time.
  • The holder of this type of visa cannot open a bank account in Peru, obtain a credit card, or obtain a driver’s license, because he or she is not considered a resident.
  • Translations of the documents must be made in Peru by an official public translator.

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July 2014 Immigration Update

Headlines:

1.         White House Announces Response to Increase in Unaccompanied Children, Families -On June 20, 2014, President Obama announced that he will take administrative action to correct parts of our broken immigration system.  In the meantime the President directed the start of a government-wide response to an increase in unaccompanied children entering the United States from Central America.

2.         Comprehensive Immigration Reform Prospects Appear Dim Following Cantor’s Defeat – House Majority Leader Eric Cantor’s historic defeat in Virginia in favor of the vocally anti-“amnesty” David Brat suggests that Congress will not enact comprehensive immigration reform this year.

3.         DHS Announces DACA Renewal Process -The first Deferred Action for Childhood Arrivals approvals will begin to expire in September 2014.  To avoid a lapse in the period of deferral and employment authorization, individuals must file renewal requests.

4,         News Highlights: AILA Conference – This article includes selected news highlights from the recent American Immigration Lawyers Association’s annual conference held in Boston, Massachusetts, on June 18-21, 2014.

5.         State Dept. Announces End to Afghan Special Immigrant Visa Program, Seeks Extension – Over 6,000 Afghans, mainly interpreters serving the U.S. military and their family members, have received special immigrant visas since October 1, 2013.

6.         SEVP Announces New Exchange Visitor Program I-901 Mobile Fee Processing Website – The I-901 Mobile Fee site provides automated fee payment for F-1, F-3, M-1, M-3, and J-1 nonimmigrants and allows users to check the status of their I-901 (fee remittance form) payments.  The site includes access to recent I-901 news and updates and information on frequently asked questions.

7.         Labor Dept. Extends Transitional Worker Program for Northern Marianas – DOL has extended the transitional worker program for the Commonwealth of the Northern Mariana Islands until December 31, 2019.

8.         U.S. Consulate in Osaka-Kobe Stops E-1/E-2 Nonimmigrant Visa Appointments for Summer – Through August, E visa applicants must interview at the U.S. embassy in Tokyo or the U.S. consulate in Fukuoka instead of the U.S. consulate in Osaka-Kobe.

9.             ABIL Global: Italy – Various developments have been announced.

10.        Firm In The News

Details:

1.         White House Announces Immigration Reform Efforts, Response to Increase in Unaccompanied Children, Families

President Barack Obama announced on June 30, 2014, that because House Speaker John Boehner has told him that Republicans in the House of Representatives will not pursue immigration reform legislation this year, he has directed Secretary of Homeland Security Jeh Charles Johnson and Attorney General Eric Holder to identify administrative actions that can be taken “to try to fix as much of the immigration system as possible.”  He said he does not “prefer taking administrative action,” and that he takes executive action “only when we have a serious problemЙand Congress chooses to do nothing.”

Noting that “there are enough Republicans and Democrats in the House to pass an immigration bill today,” President Obama said he had “held off on pressuring them for a long time to give [House Speaker John] Boehner the space he needed to get his fellow Republicans on board” with immigration reform legislation.

President Obama also sent a letter on June 30 to congressional leaders asking that they “work with me to address the urgent humanitarian challenge on the border, and support the immigration and Border Patrol agents who already apprehend and deport hundreds of thousands of undocumented immigrants every year.”  The letter notes, among other things, that the Departments of Justice and Homeland Security are deploying additional enforcement resources, including immigration judges, U.S. Immigration and Customs Enforcement attorneys, and asylum officers, “to focus on individuals and adults traveling with children from Central America and entering without authorization.”  Shelters have been opened at three military bases, according to reports.  The letter states that the Obama administration will submit a related “formal detailed request when the Congress returns from recess.”

Also, on June 20, President Obama directed DHS and the Federal Emergency Management Agency to coordinate a government-wide response to the increase in unaccompanied children entering the United States from Central America.  A White House fact sheet said the first priority “is to manage the urgent humanitarian situation by making sure these children are housed, fed, and receive any necessary medical treatment.”  The fact sheet notes that the United States will also increase enforcement and partner with “our Central American counterparts in three key areas: combating gang violence and strengthening citizen security, spurring economic development, and improving capacity to receive and reintegrate returned families and children.”

White House Press Secretary Josh Earnest said, “We’re going to open up some additional detention facilities that can accommodate adults that show up on the border with their children.  And we’re going to deploy some additional resources to work through their immigration cases more quickly, so they’re not held in that detention facility for a long time, and hopefully [will] be quickly returned to their home countr[ies].”  He blamed much of the influx on misinformation intentionally “propagated by criminal syndicates in Central America.”

In Guatemala, Vice President Joe Biden recently met with regional leaders to address the increase in unaccompanied children and adults coming with their children to the United States and to discuss efforts “to address the underlying security and economic issues that cause migration.”

The Obama administration announced the following related efforts:

  • The U.S. government will provide $9.6 million in additional support to Central American governments for receiving and reintegrating their repatriated citizens.  “This funding will enable El Salvador, Guatemala, and Honduras to make substantial investments in their existing repatriation centers, provide training to immigration officials on migrant care, and increase the capacity of these governments and non-governmental organizations to provide expanded services to returned migrants.”
  • In Guatemala, the United States is launching a new $40 million U.S. Agency for International Development (USAID) program over five years to improve citizen security.  “This program will work in some of the most violent communities to reduce the risk factors for youth involvement in gangs and address factors driving migration to the United States.”
  • In El Salvador, the United States is initiating a new $25 million Crime and Violence Prevention USAID program over five years that will establish 77 youth outreach centers in addition to the 30 already in existence.  “These will continue to offer services to at-risk youth who are susceptible to gang recruitment and potential migration.”
  • In Honduras, under the Central American Regional Security Initiative (CARSI), the United States will provide $18.5 million to support community policing and law enforcement efforts to confront gangs and other sources of crime.  In addition, USAID will build on an existing initiative to support 40 youth outreach centers by soon announcing a substantial new Crime and Violence Prevention program.
  • USAID is calling for proposals to support new public-private partnerships through the Global Development Alliance to increase economic and educational opportunities for at-risk youth in El Salvador, Guatemala, and Honduras.
  • The United States also plans to provide $161.5 million this year for CARSI programs “that are critical to enabling Central American countries to respond to the regionХs most pressing security and governance challenges. On an ongoing basis, the United States is providing almost $130 million in ongoing bilateral assistance to El Salvador, Honduras, and Guatemala for a variety of programs related to health, education, climate change, economic growth, military cooperation, and democracy assistance.
  • The United States is collaborating on campaigns to help potential migrants understand the significant danger of relying on human smuggling networks and to reinforce that recently arriving children and individuals are not eligible for programs like Deferred Action for Childhood Arrivals (DACA) and earned citizenship provisions in comprehensive immigration reform currently under consideration in the U.S. Congress.
  • The Department of Justice and DHS are taking additional steps to enhance enforcement and removal proceedings.  This includes increasing detention of individuals and adults who bring their children with them and handling immigration court hearings “as quickly and efficiently as possible while also protecting those who are seeking asylum.”  The fact sheet says this will allow U.S. Immigration and Customs Enforcement (ICE) to return unlawful migrants from Central America to their home countries more quickly.
  • The fact sheet notes that in FY 2013, ICE removed 47,769 undocumented individuals who came to the United States from Guatemala, 37,049 from Honduras, and 21,602 from El Salvador.  This represents approximately 29% of all ICE removals.

The White House fact sheet is available at http://www.whitehouse.gov/the-press-office/2014/06/20/fact-sheet-
unaccompanied-children-central-america
.  A June 30, 2014, press release is available at http://www.whitehouse.gov/blog/2014/06/30/president-obama-speaks-immigration-reform.  A transcript of President Obama’s June 30 remarks is available at http://www.whitehouse.gov/the-press-office/2014/06/30/remarks-president-border-
security-and-immigration-reform
.  President Obama’s letter to Speaker Boehner is available at http://www.whitehouse.gov/the-press-office/
2014/06/30/letter-president-efforts-address-humanitarian
-situation-rio-grande-valle
.  A transcript of White House Press Secretary Earnest’s June 20 remarks is available at http://www.whitehouse.gov/the-press-office/2014/06/20/press-briefing
-principal-deputy-press-secretary-josh-earnest-62014
.

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2.         Comprehensive Immigration Reform Prospects Appear Dim Following Cantor’s Defeat

House Majority Leader Eric Cantor’s (R-Va.) historic primary election defeat in Virginia on June 10, 2014, in favor of the vocally anti-“amnesty” Tea Party-backed David Brat suggests that Congress may not enact comprehensive immigration reform this year, according to many commentators.  They have observed that Republicans are unlikely to want to address immigration issues in the near future now that Cantor has been defeated unexpectedly, in part because he was willing to consider measures such as a modified Dream Act for young undocumented immigrants.  Even Rep. Renee Ellmers (R-N.C.), who won her primary while supporting immigration reform, noted that it was in the “forefront” of Republicans’ thinking that “in the state of shock that we are all in,Йright now [comprehensive immigration reform is] not where we need to go.  She acknowledged, however, that “[t]hat doesn’t mean it’s off the table.”

Candidates who want to win primaries generally must cater to their parties’ extremes and portray themselves as purists.  On the other hand, Sen. Lindsey Graham (R-S.C.), who is pro-immigration reform, won his June 10 primary.  Some argue that immigration issues shouldn’t take the blame for Cantor’s defeat, and that many realize that our country’s prosperity depends on resolution of thorny problems in the system.  Others say that Cantor had simply grown out of touch with the people in his district, and that immigration was only one reason for his defeat.  House Minority Leader Nancy Pelosi (D-Cal.) said, “I’m not one of those who thought Eric Cantor was an advocate for immigration reform.  In fact, I thought he was an obstacle.  So I don’t think this is an impediment to immigration reform.  I don’t think the race was about immigration; it was about a lot of other things.”

With the 2014 midterm elections coming up, many candidates may not want to take any further political risks in the short term.  Incremental progress may still be possible even if passing comprehensive immigration legislation remains out of reach.  In the meantime, President Barack Obama has announced administrative measures.  See the first article in this issue, above.

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3.         DHS Announces DACA Renewal Process

The first Deferred Action for Childhood Arrivals (DACA) approvals will begin to expire in September 2014.  To avoid a lapse in the period of deferral and employment authorization, individuals must file renewal requests before the expiration of their current period of DACA.  U.S. Citizenship and Immigration Services (USCIS) encourages requestors to submit their renewal requests approximately 120 days (four months) before their current periods of deferred action expire.

On June 5, 2014, the Department of Homeland Security (DHS) announced the process for individuals to renew enrollment in DACA.  USCIS has updated the related form to allow individuals previously enrolled in DACA to renew their deferral for a period of two years.  As of June 5, USCIS has begun accepting renewal requests.

USCIS will also continue to accept requests for DACA from individuals who have not previously sought to access the program.  As of April 2014, more than 560,000 people have enrolled in DACA.  Those who have not continuously resided in the United States since June 15, 2007, are ineligible for DACA.

Individuals may request DACA renewal if they continue to meet the initial criteria and:

  • Did not depart the United States on or after August 15, 2012, without advance parole;
  • Have continuously resided in the United States since they submitted their most recent DACA request that was approved; and
  • Have not been convicted of a felony, a significant misdemeanor or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

Enrollees may begin the renewal process by filing the new version of Form I-821D, Consideration of Deferred Action for Childhood Arrivals; Form I-765, “Application for Employment Authorization; and the I-765 Worksheet.  There is a $465 filing and biometrics (fingerprints and photo) fee for filing the I-765.  As with an initial request, USCIS will conduct a background check when processing DACA renewals.

USCIS will host national and local DACA informational sessions.  For information on DACA engagements, see http://www.uscis.gov/outreach.  Additional information will be forthcoming.  Local engagement listings are available at http://www.uscis.gov/outreach/upcoming-local-engagements/upcoming
-local-engagements-your-area
.  USCIS’s announcement is available at http://www.uscis.gov/news/secretary-johnson-announces-process-daca-renewal.  To learn more about the renewal process or requesting initial consideration of DACA, see http://www.uscis.gov/childhoodarrivals.  The new I-821D is available at http://www.uscis.gov/i-821d.  Initial guidelines for DACA are available in the 2012 memorandum at http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-
discretion-individuals-who-came-to-us-as-children.pdf
.

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4.         News Highlights: AILA Conference

The following are selected news highlights concerning labor certification applications and the Student and Exchange Visitor Program (SEVP) from the recent American Immigration Lawyers Association’s (AILA) annual conference, held June 18-21, 2014, in Boston, Massachusetts:

Department of Labor

AILA reminded the audience that the Department of Labor (DOL) is not a fee-based operation and is funded only by Congress.  The increase in labor certification cases only puts more pressure on the agency to do more with less.  AILA panelists reminded the audience to understand that pressure and to appreciate DOL’s efforts.

Federal Register Notice

Prevailing Wage Issues

  • DOL recommends that practitioners take a two-fold approach to addressing a potentially incorrect prevailing wage determination: (1) file a redetermination request; and (2) follow up with the Center Director.  Both options are reviewed at a fairly high level and take about the same amount of time, approximately 60 days.  One can pursue both avenues because the actions are reviewed by a different team.  If one is still unsuccessful after pursuing both avenues, the next step would be to appeal to the Board of Alien Labor Certification Appeals (BALCA).
  • DOL confirmed that it looks at employer-conducted and commercial surveys, including Radford and Towers surveys.  DOL is familiar with the various surveys that are available and is aware that although the job descriptions on the Form 9141 and the surveys may match, if a position carries management duties, there may be an even better match with job descriptions that include the management duties.  Positions that carry supervisory duties are in different categories and at higher levels with higher wages.  Where there is such a mismatch in levels, the current system does not allow DOL to suggest a different wage level from the surveys, but must default to the Occupational Employment Statistics (OES) wage levels, which renders a JobZone mismatch.  This may change in the future, but for now, there is no option to provide more detailed information in rejecting a survey.  Other reasons for rejecting surveys submitted include not matching enough of the job description or where the position is a combination of jobs and the survey only addresses one of the jobs.  The ultimate goal for the DOL is to protect U.S. workers against “adverse wage impact” and also to determine whether there is a better fit between the job description on the Form 9141 and the available survey information.
  • The Bureau of Labor Statistics created the Standard Occupational Code (SOC) to be used throughout the government.  These codes are not created specifically for DOL’s Office of Foreign Labor Certification (OFLC).  They are updated every 8 years, and the Bureau of Labor Statistics (BLS) is updating them now.  OFLC is spending time catching up with them and updated the PERM system with the SOC 2010 codes about 2 to 3 weeks ago.  The codes are constantly changing, albeit in a slow and deliberate fashion.  People can comment on the process and DOL encourages comments.
  • American Competitiveness and Workforce Improvement Act and prevailing wages:  U.S. Citizenship and Immigration Services (USCIS) and DOL base their determinations on slightly different regulatory language.  Also, once DOL makes a determination for one employer, it does not revisit the analysis each time.  If an employer disagrees, it can use the redetermination process.

Form 9089 and Beneficiary Qualifications

  • AILA recommends that denial of a PERM labor certification application solely because of not listing a license should be reported to the AILA-DOL liaison committee.  A motion for reconsideration should be filed at the same time.
  • AILA has been in discussions with the DOL concerning issuing guidance to practitioners on where best to include a beneficiary’s qualifications.  DOL reported that it is close to finalizing a plan of action for a new FAQ.  It will still take some time because, in addition to licensure, there are analogous issues to be considered.  DOL is reviewing the Form 9089 and instructions.  DOL suggested that practitioners list all the experience and qualifications gained with a particular job under the particular job experience listed on the Form 9089.  The bottom line is that practitioners should list all the credentials on the Form 9089.  One can list a credential even without a job title and this will not cause a denial of the application.

Recruitment Efforts

Given the conflicting holdings in Matter of Credit Suisse Securities and Matter of Symantec Corporation, DOL is following Matter of Credit Suisse Securities (applying 20 CFR ¤ 656.17(f) recruitment instructions to more than newspaper and professional journal ads) in the meantime.  AILA submitted an amicus brief on this issue in May 2014.

Audit Tiers

DOL indicated that one of the goals in posting information concerning audit tiers is to bring applications more into compliance.  These tiers, however, are not static and DOL continues to evaluate them in relation to agency-run statistics.  For example, in 2009 when people were getting laid off in New York City, DOL was still receiving applications where the job opportunities were only requiring a bachelor’s degree with no experience while the offered salary was $100,000.  This raised concerns, and DOL continues to examine the ongoing changes in the market to determine the tiers.

Case Consolidation

  • There is no mechanism at the DOL level for consolidating similar cases.
  • Practitioners may ask BALCA to do that.
  • However, if DOL sees a trend, on its own, it may consolidate cases.

SEVP

According to reports, panelists at the AILA conference noted that changes are expected to the Student and Exchange Visitor Program (SEVP) related to F-1 students in optional practical training (OPT) programs performing in jobs related to their fields of study, and improvements in OPT reporting.  These changes are in response to a U.S. Government Accountability Office (GAO) report issued in February 2014 on OPT oversight for F-1 and M-1 students.

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5.         State Dept. Announces End to Afghan Special Immigrant Visa Program, Seeks Extension

The Department of State has announced that it expects to finish issuing all 3,000 visas for fiscal year 2014 by July 2014 under a special program for Afghans.  The agency’s authority to issue special immigrant visas (SIVs) to Afghan nationals under the Afghan Allies Protection Act, as amended, is limited to 3,000 visas for Afghan principal applicants in fiscal year 2014.

The Department said, “We welcome action by Congress to extend this program.  We are making arrangements to quickly resume issuances of SIVs to Afghan principal applicants if more visas are allocated.”  In an op-ed published in the Los Angeles Times on June 3, 2014, Secretary of State John Kerry pleaded for more visas “to help Afghans whose work for the U.S. Government put them in danger of retaliation.”  He said, “Keeping our word requires passing legislation this summer to authorize additional visas for the remainder of this fiscal year and for the next fiscal year. We don’t want to lose the hard-won momentum or put lives at risk.”

More than 9,000 Afghans who have worked for the United States in Afghanistan (and their family members) have benefited from the SIV program.  Of these, more than 70 percent served as translators, with the vast majority serving U.S. military forces in Afghanistan.  Over 6,000 Afghans, mainly interpreters and their family members, have received SIVs since October 1, 2013. This includes just over 2,300 principal applicants and 3,700 of their family members.

The announcement is available at http://travel.state.gov/content/visas/english/immigrate/types/afghans-work-for-us.html.  A related fact sheet is available at http://travel.state.gov/content/dam/visas/AFGHAN_SPECIAL_IMMIGRANT
_VISA_FACT_Sheet_2014.pdf
.  A FAQ is available at http://travel.state.gov/content/dam/visas/Afghan_SIV_Applicant_FAQ_June_2014.pdf.  Secretary Kerry’s op-ed is available at http://www.state.gov/secretary/remarks/2014/06/227060.htm.

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6.         SEVP Announces New Exchange Visitor Program I-901 Mobile Fee Processing Website

The Student and Exchange Visitor Program (SEVP) has announced a new automated I-901 Mobile Fee website.

The I-901 Mobile Fee site provides automated fee payment for F-1, F-3, M-1, M-3, and J-1 nonimmigrants.  It also allows users to check the status of their I-901 (fee remittance form) payments.  The site includes access to recent I-901 news and updates and information on frequently asked questions.

The site also includes information about Western Union payment automation.  The system allows applicants to post Western Union payments and print their I-901 payment confirmations.

For more information on the I-901 Mobile Fee site and Western Union payment automation, see https://www.fmjfee.com/.

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7.         Labor Dept. Extends Transitional Worker Program for Northern Marianas

On June 3, 2014, the U.S. Department of Labor (DOL) extended the transitional worker program for the Commonwealth of the Northern Mariana Islands (CNMI) until December 31, 2019.

In 2008, Congress passed the Consolidated Natural Resources Act (CNRA), which applies the immigration laws of the United States to the CNMI.  To minimize potential adverse economic effects, the CNRA provides for a five-year transitional worker program, known as the CNMI-Only Transitional Worker (CW-1) program, which ends on December 31, 2014.  Under the CW-1 program, employers in the CNMI can apply for temporary permission to employ foreign nationals who are ineligible for any existing employment-based nonimmigrant category under the Immigration and Nationality Act.  The CNRA authorizes the Secretary of Labor to extend this transition period for up to five years based on the labor needs of the CNMI to ensure that an adequate number of workers are available for legitimate businesses.

DOL said it will continue to monitor and assess the labor needs of the CNMI, in particular any good-faith efforts to locate, educate, train, or otherwise prepare U.S. citizens, lawful permanent residents, and unemployed foreign workers already in the CNMI to take jobs in legitimate businesses.

U.S. Citizenship and Immigration Services (USCIS) said it will resume approving CW-1 status in periods of up to one year. There are no changes to the application process or fees for the CW program. Employers must still file Form I-129CW, Petition for a CNMI-Only Nonimmigrant. The timetable for petitioning remains the same: employers may file an I-129CW up to six months in advance. USCIS “encourages employers to file as soon as possible within that time frame to prevent gaps in employment authorization.”

USCIS noted that spouses and minor children of CW-1 workers can obtain CW-2 derivative status. DOL’s CW-1 extension also permits USCIS to grant spouses and minor children CW-2 status for the same duration as the principal CW-1 petitioner whose status is extending beyond, or was granted after, December 31, 2014.

The Department of Homeland Security (DHS) determines the annual numerical limitation on CW-1 workers, as required by the CNRA. DHS set the CW-1 limit for fiscal year (FY) 2014 at 14,000 to meet the CNMI’s existing labor market needs and provide opportunity for potential growth. With DOL’s extension of the CW-1 program, DHS will reassess the CNMI’s labor market needs and opportunity for growth to determine the FY 2015 numerical limitation for CW-1 workers.

DOL’s announcement is available at http://www.dol.gov/opa/media/press/asp/oasp20140981.htm. The Federal Register notice is available at http://www.gpo.gov/fdsys/pkg/FR-2014-06-03/html/2014-12607.htm. USCIS guidance is available at http://www.uscis.gov/news/news-releases/uscis-provides-guidance-regarding-cw-1-extension.

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  1. U.S. Consulate in Osaka-Kobe Stops E-1/E-2 Nonimmigrant Visa Appointments for Summer

The U.S. consulate in Osaka-Kobe has announced that it has temporarily stopped accepting E-1/E-2 nonimmigrant visa appointments through August.  During this time frame, E visa applicants, including dependents over the age of 14, must interview at the U.S. embassy in Tokyo or the U.S. consulate in Fukuoka instead.  The Osaka-Kobe consulate will continue to process drop-box/mail-in renewal cases as usual.  Individuals can also send minor dependent (under the age of 14) cases under the usual mail-in (no-interview) procedures.  Companies who are registering for the first time as E visa companies with Osaka may submit their paperwork as usual.  The consulate in Osaka-Kobe will contact first-time applicants on an individual basis to set up appointments as needed.  The consulate says 10-12 weeks are needed for the processing of these cases. Beginning on September 1, the consulate will resume processing all E applications as usual.

The announcement is available at http://japan.usembassy.gov/e/visa/tvisa-important.html (scroll down).

  1. ABIL Global: Italy

Various developments have been announced.

New Start-Up Visa

The Italian Ministry of Foreign Affairs has established a new type of visa (under measure 44 of the Plan “Destinazione Italia” and Law no. 221/2012) to attract and retain foreign entrepreneurs planning to establish a start-up company in Italy.

The visa issuance procedure is expected to be fast and streamlined. A technical committee established by the Ministry of Industry and Economic Development will evaluate the start-up companies. To obtain an entry visa for startups, a foreign entrepreneur must prove ownership of at least €50,000 in financial resources. This funding can be raised through venture capital, crowdsourcing, investors, or Italian/foreign governments and non-governmental organizations. Special facilitations are provided for foreign citizens who have the support of a certified incubator.

Two other types of visas may be useful, depending on the activities the investor is willing to carry out:

  • Autonomous Work Visa—for individuals willing to work autonomously (e.g., freelancers, consultants) or to establish a company in Italy. The autonomous work visa is subject to numerical caps.
  • Appointed directors employed by a foreign company and temporarily assigned to an Italian-affiliated company may be granted an autonomous work visa without any quota limit.
  • Elective Residence Visa—for individuals who are interested only in living in Italy without carrying out any work activities. The elective residence visa is limited to those who have a significant amount of money and savings and are able to live in Italy with no need of work-related income.

The requirements and conditions to apply for the start-up visa are listed on the Italian Ministry of Foreign Affairs website (Startup Visa Guidelines [http://www.esteri.it/MAE/Visti/Linee%20Guida%20Italia%20Startup%20Visa%20EN.pdf] and Italia Startup Procedures [http://www.esteri.it/MAE/Visti/PROCEDURA%20ITALIA%20STARTUP%20VISA%20Rev%203%20EN.pdf]).

Expo 2015 Work Permits

Italy’s Ministry of Foreign Affairs has issued guidelines for work permits for delegates, workers, and participants who will attend Expo 2015 in Milan. Official delegates (and their dependents) may obtain a mission visa. Non-accredited individuals (e.g., delegates of companies attending the Expo and workers to be employed at the site) may be granted a work visa following an electronic fast-track procedure established by the Ministry. The Ministry also has provided guidelines for the issuance of tourist visas to visitors.

The guidelines are available at http://www.integrazionemigranti.gov.it/Attualita/IlPunto/approfondimento/Documents/LINEE%20GUIDA%20EXPO2015_en.pdf.

New Quotas for Seasonal Work and for Workers Participating in Expo 2015

Online applications may be submitted until December 31. 15,000 new quotas are available for seasonal workers of the following nationalities: Albania, Algeria, Bosnia-Herzegovina, Egypt, Republic of the Philippines, Gambia, Ghana, Japan, India, Kosovo, the former Yugoslav Republic of Macedonia, Morocco, Mauritius, Moldova, Montenegro, Niger, Nigeria, Pakistan, Senegal, Serbia, Sri Lanka, Ukraine, and Tunisia. 3,000 of these quotas are intended for those having entered Italy for seasonal work in the past two years.

2,000 new quotas have also been allocated to individuals assigned to work at the Milan Expo 2015.

Registration of a Same-Sex Marriage Celebrated in the United States

An Italian lower court ordered City Hall to register in the Civil Records (Stato Civile) the marriage of an Italian same-sex couple married in New York in 2012.

Non-EU nationals married with a same-sex EU partner were recently granted the right to obtain a family residence permit but their marriage could not be officially recorded at City Hall.

The Public Prosecutor has announced that the decision will be challenged before the Court of Appeal. Therefore, it could be reversed. This is, however, a further step toward the full recognition of same-sex marriages in Italy.

New Requirement for Residency Registrations

As of May 20, 2014, individuals of all nationalities applying for residency registration must submit documents proving that they have a legal right to live at the address indicated in the application. Depending on the situation, applicants may be asked to submit a copy of a registered tenancy agreement, a self-declaration signed by the house owner, and/or a declaration of hospitality.

Court of Rome Confirms That Children Born to Unmarried Parents Are Entitled to Italian Citizenship

On March 21, 2014 (sentence no. 7472), the Rome Court confirmed that eligibility for Italian citizenship is extended to children born to unmarried parents, provided that some requirements are met. In particular, children younger than 18 years old born to Italian unmarried parents are automatically granted Italian citizenship, while children older than 18 must apply for citizenship within one year of spontaneous legitimation or recognition by the court.

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10.       Firm In The News

Cyrus D. Mehta was the Discussion Leader, Abandonment of Residence, Expatriation, and Renunciation of U.S. Citizenship; and a Panelist, AILA Ethics Compendium LIVE at the AILA Annual Conference, Boston, MA, June 18-21, 2014.

David A. Isaacson was a Panelist, Advanced Citizenship Issues: Derived and Acquired Citizenship After a Birth Abroad, at the AILA Annual Conference, Boston, MA, June 18-21, 2014.

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June 2014 Immigration Update

Headlines:

1.         OCAHO Launches E-Filing Pilot, Rules That E-Verify Participation Does Not Provide Blanket Protection – OCAHO has launched a voluntary pilot program to test an electronic filing system in certain cases.  Also, an employer argued that participation in E-Verify entitled it to a presumption that it had not violated the law, but OCAHO ruled that E-Verify provides no such blanket protection.

2.         USCIS Limits Validity Period for Report of Medical Examination/Vaccination Record – As of June 1, 2014, USCIS is now limiting the validity period for Form I-693, Report of Medical Examination and Vaccination Record, to one year from the date of submission to USCIS. 

3.         USCIS Extends TPS Re-Registration Period for Haitians – DHS has extended the re-registration deadline to July 22, 2014, for Haitian nationals who have already been granted temporary protected status and seek to maintain that status for an additional 18 months.  USCIS strongly encourages Haitian TPS beneficiaries to apply as soon as possible.

4.         Corporate Immigration Policies: A Survey – The Alliance of Business Immigration Lawyers surveyed its members on the topic of Corporate Immigration Policies, such as: (1) how long a FN employee would have to work for the company before sponsorship would be started; (2) whether that timing has changed since the height of the financial crisis; and (3) whether there are contingencies on initiating/continuing the green card sponsorship process.

5.         DHS Proposes Rule To Extend Work Authorization To Certain H-4 Dependent Spouses of H-1B Nonimmigrants – DHS has proposed extending the availability of employment authorization to certain H-4 dependent spouses of principal H-1B nonimmigrants.  The extension would be limited to H-4 dependent spouses of principal H-1B nonimmigrants who are seeking lawful permanent resident status through employment.

6.         DHS Proposes Rule To Enhance Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants – DHS has proposed various changes to its regulations as part of the Obama administration’s effort to attract highly skilled workers to the United States.

7.         China EB-3 Visa Numbers Retrogress Six Years Unexpectedly; State Dept. Warns That  EB-5 Category May Retrogress – In June, the China E-3 cutoff date is retrogressing by six years, to October 1, 2006.

8.         USCIS Accepting Only Current Naturalization Applications – USCIS is now only accepting current versions of the Form N-400, dated 9/13/2013.  USCIS will reject and return all naturalization applications using previous versions.

9.         Dept. of State Releases DV-2015 Results Applicants registered for the DV-2015 program have been selected at random, and notified, from among 9,388,986 qualified entries received during the 30-day application period that ran in late 2013.

10.        CBP Provides Webpage Access to Arrival/Departure Date Records – A U.S. Customs and Border Patrol webpage now provides access to arrival/departure date records for nonimmigrants.

11.        Pro Bono Success Story: Garfinkel Immigration Law Firm – Garfinkel Immigration Law Firm recently obtained special immigrant juvenile status for an Afghan child with a life-threatening medical disorder.

12.        ABIL Global: Germany – Germany has become the world’s top migration spot after the United States.

13.       Firm In The News

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Details:

1.         OCAHO Launches E-Filing Pilot, Rules That E-Verify Participation Does Not Provide Blanket Protection

E-filing pilot. The Department of Justice’s Office of the Chief Administrative Hearing Officer (OCAHO) has launched a voluntary pilot program to test an electronic filing system in certain cases filed with OCAHO under 8 U.S.C. ¤ 1324a and b.  

The pilot program began on May 30, 2014, and will run until November 26, 2014.  Under the pilot, filing with OCAHO and service on other parties can be accomplished by email in eligible cases.  OCAHO said it is undertaking this temporary testing initiative in an effort to make submission of case documents more convenient and to reduce the time and expense incurred in paper filings.

The Federal Register notice describes the procedures for applying for and participating in the pilot program.  It is available at http://www.gpo.gov/fdsys/pkg/FR-2014-05-30/pdf/2014-12183.pdf.

Ruling: E-Verify participation does not provide blanket protection. In a recent case, an employer argued that participation in E-Verify entitled it to a presumption that it had not violated the law, but OCAHO ruled that E-Verify provides no such blanket protection.

OCAHO noted that the employer, Golf International d/b/a Desert Canyon Golf, had failed to ensure that various employees properly completed I-9 employment authorization verification forms.  Golf contended that the violations were technical, but OCAHO found them to be substantive.  Among other things, section 2 was blank for 93 employees, and signatures were missing in section 2 for 14.  Several employees checked a box indicating permanent resident status but failed to provide their A numbers. 

OCAHO noted that “[a]n employer’s first responsibility in [the E-Verify] program is, in fact, to properly complete an I-9 form for each new employee.  As [U.S. Immigration and Customs Enforcement] points out, the E-Verify Memorandum of Understanding that must be signed by a participating employer provides that ‘The Employer understands that participation in E-Verify does not exempt the Employer from the responsibility to complete,  retain, and make available for inspection Forms I-9 that relate to its employees.’ “

The decision is available at http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Looseleaf/Volume10/1214.pdf.

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2.         USCIS Limits Validity Period for Report of Medical Examination/Vaccination Record

As of June 1, 2014, U.S. Citizenship and Immigration Services (USCIS) is now limiting the validity period for Form I-693, Report of Medical Examination and Vaccination Record, to one year from the date of submission to USCIS.  Applicants must also submit the I-693 to USCIS within one year of the immigration medical examination.  USCIS said it will provide additional ways to submit an I-693.  This updated policy applies to any I-693 supporting a benefit application that USCIS adjudicates.

 

USCIS permits filing of a Form I-485, Application to Register Permanent Residence or Adjust Status, without the medical report.  USCIS will issue a request for evidence for the report, which will be valid for submission within one year of the civil surgeon’s signature and valid for one year from submission.  Although the medical examination report is generally valid for adjudicatory purposes up to one year after filing, the officer may order an additional immigration medical examination at any time if he or she has concerns about an applicant’s inadmissibility on health-related grounds.  The medical examination report may be submitted to USCIS concurrently with the immigration benefit application, or at any time after filing the application but before adjudication.  If not filed concurrently with the application, USCIS “encourages applicants to wait until USCIS requests the medical examination report before submitting it.”  This includes a request to bring the medical examination report to the interview.

 

USCIS will hold an engagement on Thursday, June 12, 2014, to address questions about the new policy and provide guidance on filing Form I-693. 

 

The agency also has updated the I-693 webpage

The announcement is at http://www.uscis.gov/policymanual/Updates/20140530-I-693Validity.pdf and http://go.usa.gov/8y9d.  See also http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume8-PartB-Chapter4.html#S-C-4.  The updated I-693 webpage is at http://www.uscis.gov/i-693.

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3.         USCIS Extends TPS Re-Registration Period for Haitians

The Department of Homeland Security (DHS) has extended the re-registration deadline to July 22, 2014, for Haitian nationals who have already been granted temporary protected status (TPS) and seek to maintain that status for an additional 18 months.  USCIS strongly encourages Haitian TPS beneficiaries to apply as soon as possible.

DHS began accepting re-registration applications on March 3, 2014, from TPS Haiti beneficiaries when DHS announced an 18-month extension of the TPS designation for Haiti from July 23, 2014, through January 22, 2016.

Approximately 51,000 TPS Haiti beneficiaries are expected to file for re-registration.  TPS is not available to Haitian nationals who have not continuously resided in the United States since January 12, 2011.

DHS also automatically extended by six months, through January 22, 2015, the validity of employment authorization documents (EADs) for eligible Haitian TPS beneficiaries.  USCIS said this would allow sufficient time for eligible TPS beneficiaries who re-register on time to receive an EAD without any lapse in employment authorization.

To re-register, TPS beneficiaries must submit Form I-821, Application for Temporary Protected Status, and Form I-765, Application for Employment Authorization.  Individuals seeking to re-register do not need to pay the I-821 application fee.  However, all re-registrants 14 years of age and older must pay a biometric services fee or submit a fee waiver request.  All re-registrants seeking employment authorization through January 22, 2016, must also submit the I-765 fee (or a fee-waiver request).  Re-registrants who do not want employment authorization must still submit a completed I-765 but do not need to submit the I-765 fee.

The revised I-821 is available at http://www.uscis.gov/sites/default/files/files/form/i-821.pdf.

The announcement, with additional related links, is available at http://www.uscis.gov/news/news-releases/temporary-protected-status-re-registration-period-extended-haitian-nationals.

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4.         Corporate Immigration Policies: A Survey

Many companies hire Foreign National (FN) employees, especially in the science, technology, engineering, and mathematics disciplines.  Many of these FNs have been sponsored by their employers to work pursuant to nonimmigrant (temporary) work visas.  Such visas often limit the amount of time the FN may remain in the United States and impose other restrictions on them (i.e., limits on the ability to change jobs and /or change employers, and prohibiting spouses on dependent visas from securing work authorization).  Although the American Competitiveness in the 21st Century Act (AC21) has mitigated some of these hardships for FNs sponsored under the H-1B category, significant challenges remain.

FN employees on nonimmigrant work visas are therefore often anxious to start the employment-based green card process.  Their options to obtain green cards through other avenues are limited under current immigration laws.  The timing for initiating the green card process is also vital, as it would enable extensions of the H-1B work visa beyond the maximum six-year limit under AC21.  Given that the usually required PERM labor certification process can take two years to complete if an audit is required, waiting significantly more than a year can lead to serious complications in completing the green card process.

Earlier this year, the Alliance of Business Immigration Lawyers surveyed its members on the topic of Corporate Immigration Policies.  The survey requested information from ABIL member firms regarding their corporate clients’ policies on such topics as: (1) how long a FN employee would have to work for the company before sponsorship would be started; (2) whether that timing has changed since the height of the financial crisis; and (3) whether there are contingencies on initiating/continuing the green card sponsorship process.

ABIL members concluded that the survey results would interest companies that hire FN employees, including those who have a policy in place as well as those that do not.  Below are highlights of the key findings of the survey:

  1. The majority of ABIL members who responded to the survey (66%) reported that their client companies wait one year before starting the green card process.  The next highest percentage responded that their clients wait more than one year; the third highest reported a wait of six months.
  2. When asked whether this time frame changed since the height of the financial crisis, an equal percentage of respondents reported that the wait time had shortened as those responding that there was no change to the wait time.
  3. When asked about contingencies on starting (or continuing) the process, over 80% of respondents stated that the employee’s manager must “sign off” to have the process initiated.  One-half of respondents stated that an employee on a performance plan or under some other disciplinary action would cause the process to be delayed or stopped.

One member reported that some client companies have “nomination periods” when managers can nominate certain employees for green card sponsorship.

  1.  When asked about the payment of green card sponsorship, most members (over 80%) reported that the employer pays all fees and expenses in connection with sponsorship.  The next highest percentage reported that the employer pays all fees for the employee but requires the FN employee to pay costs related to family members.  The smallest percentage reported that the employer pays up to a certain amount toward the process and the employee covers the balance.
  2. When asked about the source of immigration-related costs, the largest percentage (over 90%) reported that the business unit hiring the employee pays for the process.  A few respondents reported situations where the legal or human resources department pay.
  3. Responses varied with respect to reimbursement policy.  An equal number of ABIL members reported that their corporate clients had no reimbursement policy as those who reported that their clients had such a policy (where the employee agrees to repay a portion of the costs of sponsorship if the employee leaves the company within a certain time frame after receiving the green card).

Under federal regulations, the employer is responsible for all fees and costs associated with the PERM labor certification processСthe first step in the majority of employment-based green card casesСand such fees may not be reimbursed by the employee.

More and more companies are finding that a corporate immigration policy is a useful tool, and that having no policy or a restrictive policy can lead to inconsistencies that can present significant challenges.  From the threat of key employees resigning to take up employment with more “FN-friendly” employers to the risk of litigation, prudent employers should consider reviewing their existing policy or adopting a new one.

For companies that determine a corporate immigration policy is beneficial, the results of the ABIL survey will shed light on how many employers approach the topic.

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5.         DHS Proposes Rule To Extend Work Authorization To Certain H-4 Dependent Spouses of H-1B Nonimmigrants

As part of the Obama administration’s efforts to attract highly skilled workers, the Department of Homeland Security (DHS) has proposed extending the availability of employment authorization to certain H-4 dependent spouses of principal H-1B nonimmigrants.  The extension would be limited to H-4 dependent spouses of principal H-1B nonimmigrants who are seeking lawful permanent resident status through employment.

The proposed rule includes such spouses of H-1B nonimmigrants who are either the beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140) or who have been granted an extension of their authorized period of admission in the United States under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), as amended by the 21st Century Department of Justice Appropriations Authorization Act.

DHS said this regulatory change is intended to lessen any potential economic burden on the H-1B principal and H-4 dependent spouse during the transition from nonimmigrant to lawful permanent resident status, furthering the U.S. goals of attracting and retaining highly skilled foreign workers.  The lack of employment authorization for H-4 dependent spouses often gives rise to personal and economic hardship for the families of H-1B nonimmigrants the longer they remain in the United States, DHS noted. In many cases, for those H-1B nonimmigrants and their families who wish to remain permanently in the United States, the time frame required for an
H-1B nonimmigrant to acquire lawful permanent residence through his or her employment may be many years.  As a result, DHS pointed out, retention of highly educated and highly skilled nonimmigrant workers in the United States can become problematic for employers.  “Retaining highly skilled persons who intend to acquire lawful permanent residence is important to the United States given the contributions of these individuals to the U.S. economy, including advances in entrepreneurial and research and development endeavors, which correlate highly with overall economic growth and job creation,” the agency said.

DHS believes that this proposal would further encourage H-1B skilled workers to remain in the United States, continue contributing to the U.S. economy, and not abandon their efforts to become lawful permanent residents (to the detriment of their U.S. employers) because their H-4 nonimmigrant spouses are unable to obtain work authorization.  DHS said this proposal also would remove the disincentive for many H-1B families to start the immigrant process due to the lengthy waiting periods associated with acquiring lawful permanent resident status.

DHS seeks public comments on the proposed rule.  The agency noted that the most useful comments will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support the change.

The proposed rule is available at https://www.federalregister.gov/articles/2014/05/12/2014-10734/employment-authorization-for-certain-h-4-dependent-spouses.

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  1. DHS Proposes Rule To Enhance Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants

 In another Obama administration effort to attract highly skilled workers, the Department of Homeland Security (DHS) has proposed updating its regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of those authorized for employment incident to status with a specific employer, to clarify that H-1B1 and principal E-3 nonimmigrants can work in the United States without having to apply separately to DHS for employment authorization.

DHS also is proposing to provide authorization for continued employment with the same employer if the employer has timely filed for an extension of a nonimmigrant’s stay. DHS proposes this same continued work authorization for Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) nonimmigrants if a Petition for a CNMI-Only Nonimmigrant Transitional Worker, Form I-129CW, is timely filed to apply for an extension of stay.

In addition, DHS is proposing to update the regulations describing the filing procedures for extensions of stay and change of status requests to include the principal E-3 and H-1B1 nonimmigrant classifications. These changes would harmonize the regulations for E-3, H-1B1, and CW-1 nonimmigrant classifications with the existing regulations for other similarly situated nonimmigrant classifications.

Finally, DHS is proposing to expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations. This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence.

DHS said it is proposing these changes to the regulations to benefit these highly skilled workers and CW-1 transitional workers by removing unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.

The proposed rule is available at https://www.federalregister.gov/articles/2014/05/12/2014-10733/enhancing-opportunities-for-h-1b1-cw-1-and-e-3-nonimmigrants-and-eb-1-immigrants.

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  1. China EB-3 Visa Numbers Retrogress Six Years Unexpectedly; State Dept. Warns That EB-5 Category May Retrogress

 Retrogressions are looming for several employment-based categories:

EB-3. Due to an “unexpected and dramatic increase” in demand, the Department of State announced in the Visa Bulletin for June 2014 that visa number use in the employment third category has neared the annual limit. As a result, the E-3 cutoff dates will retrogress in June for the China, Worldwide, and Mexico categories. The China E-3 cutoff date is retrogressing by six years, to October 1, 2006.

EB-5. A Department official speaking at an immigration law conference in Washington, DC, on April 11, 2014, warned that higher-than-anticipated visa number usage in the EB-5 immigrant investor category may require the agency to impose a cut-off date this summer. If so, this would be the first time the EB-5 category would have a backlog in its 24-year history.

Every employment-based immigrant visa category has an annual limit. For EB-5, it is approximately 10,000 visas per year. That number includes principal EB-5 investors, their spouses, and their children under 21. For EB-5 cases, a person’s priority date is the date the USCIS receives their I-526 petition.

Investors from mainland China constitute about 80% of all EB-5 petitions. The Department would create a waiting list for Chinese investors first to make certain that some EB-5 green cards remain available for investors from other countries. Investors should file their I-526 petitions as soon as possible so that their EB-5 priority dates will be as early as possible. This will help them when EB-5 retrogression occurs. It is unclear when that will happen, possibly in late summer or early fall 2014.

Contact your Alliance of Business Immigration Lawyers attorney for assistance with specific cases.

The June 2014 Visa Bulletin, which includes charts showing the employment-based and family-based priority dates, is available at http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2014/visa-bulletin-for-june-2014.html.

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  1. USCIS Accepting Only Current Naturalization Applications

 As of May 5, 2014, U.S. Citizenship and Immigration Services is now only accepting current versions of the Form N-400, Application for Naturalization, dated 9/13/2013. USCIS will reject and return all naturalization applications using previous versions.

Among other things, the revised form has a barcode, which USCIS said will result in fewer rejected forms. USCIS said that it also clarified the instructions and made the form more “user-friendly.”

USCIS issued the revised version of the N-400 on February 4, 2014. The agency allowed applicants to continue using previous versions of the N-400 for a 90-day transition period, which has expired.

The announcement is available at http://www.uscis.gov/news/alerts/uscis-will-accept-only-current-version-form-n-400-beginning-may-5. The revised form is available electronically at http://www.uscis.gov/n-400, but it can also be printed and completed by hand in black ink. The form must be signed and sent with the filing fee. A USCIS video about the changes to the form is available on USCIS’s YouTube channel at https://www.youtube.com/watch?v=WU21WSc01Do.

 

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  1. Dept. of State Releases DV-2015 Results

 The Department of State’s Kentucky Consular Center has registered and notified those selected in the DV-2015 diversity visa lottery. Approximately 125,514 applicants have been registered and notified, and may now apply for an immigrant visa. The Department said it is likely that not all of those registered will pursue their cases to visa issuance. Therefore, this larger figure should ensure that all DV-2015 numbers will be used during fiscal year 2015 (October 1, 2014, to September 30, 2015).

Applicants registered for the DV-2015 program were selected at random from 9,388,986 qualified entries (14,397,781 with derivatives) received during the 30-day application period that ran in late 2013. The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country. Cameroon received the most selections, at 5,000; followed by Ethiopia and Egypt, tied at 4,988; and Iran, at 4992.

During the visa interview, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years. Those selected will need to act on their immigrant visa applications quickly, the Department said.

Registrants living legally in the United States who wish to apply for adjustment of status must contact U.S. Citizenship and Immigration Services for information on the requirements and procedures. Once the total 50,000 visa numbers have been used, the program for fiscal year 2015 will end. Selected applicants who do not receive visas by September 30, 2015, will derive no further benefit from their DV-2015 registrations. Similarly, spouses and children accompanying or following to join DV-2015 principal applicants are only entitled to derivative diversity visa status until September 30, 2015.

Dates for the DV-2016 program registration period will be widely publicized in the coming months, the Department said.

The Department noted that the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulated that up to 5,000 of the 55,000 annually allocated diversity visas be made available for use under the NACARA program. The reduction of the limit of available visas to 50,000 began with DV-2000.

 

The DV-2015 results, including a country-by-country chart, are available in the Visa Bulletin for June 2014 at http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2014/visa-bulletin-for-june-2014.html.

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  1. CBP Provides Webpage Access to Arrival/Departure Date Records

 A U.S. Customs and Border Patrol webpage now provides access to arrival/departure date records for nonimmigrants without necessitating a Freedom of Information Act request. The user can input the person’s first and last name, date of birth, passport number and country of issuance, and is supposed to receive information about the person’s recent I-94 arrival/departure record or a full travel history dating back several years.

Reportedly, the system records the date of departure when the person books a departing flight, not the actual departure. Users have tried the system to obtain records for lawful permanent residents but have reported that the travel dates listed are sometimes incomplete.

It is available to individuals and their legal representatives at https://i94.cbp.dhs.gov/I94/request.html.

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  1. Pro Bono Success Story: Garfinkel Immigration Law Firm

 Garfinkel Immigration Law Firm recently obtained special immigrant juvenile status for an Afghan child with a life-threatening medical disorder, permitting him to remain in the United States with his adoptive family and to receive medical treatment not available in Afghanistan.

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  1. ABIL Global: Germany

 Germany has become the world’s top migration spot after the United States.

 According to recently published OECD statistics from 2012, Germany has seen significant growth in migration and has skyrocketed to second place on the list of the world’s top migration spots after the United States:

Germany became the second-largest immigration country, after the United States, in the OECD in 2012, receiving more than 10% of all permanent immigration to the OECD area. In 2009, it was only the eighth largest.  This spectacular increase has been fueled mainly by inflows from central and eastern European countries and, to a lesser degree, southern Europe.

Based on official statistics published by Germany’s Federal Statistic Office for 2013, an additional 146,000 foreigners (a surplus of 13% in comparison to 2012) have migrated to Germany.  The total number of foreign migrants for 2013 was 1,108,000.  Since during the same period 649,000 foreigners have left the country, there is a significant migration surplus of 459,000 foreigners (387,000 in 2012).  That is the highest growth to report since 1993.

The spike in migration to Germany is partly a result of the economies of southern European countries not doing well (e.g., Greece, Italy, Portugal, and to a lesser extent Spain), and others are also struggling to a certain extent (e.g., France, Netherlands). By contrast, Germany has a very strong economy despite the global economic crisis.  The fact that Germany is attracting more foreigners is, however, mainly due to the stable political situation and the reliable legal system that together create an environment that seems friendly to investors and new arrivals.  With regard to the latter, securing a “residence title for the purpose of gainful employment” (the official name of the work permit) is still highly regulated and complex.  The conditions for establishing a business in Germany, for entering into business relationships by way of contracts with business partners and customers, and also for litigation, if needed, are generally seen as advantageous.

The mix of all these aspects makes migration to Germany attractive. There is nevertheless still room for improvement of the regulations that currently apply.  For example, the fact that for many visa categories a local employment contract is a must poses as many problems as the requirement to have health insurance at least equivalent to German standards (which is difficult to prove when there is no local coverage).  Moreover, processing times are still slow, and lack of communication by some authorities remains an issue.  Finally, some commentators argue in favor of access to a fast-track procedure and to special authorities or competence centers for corporate immigration.

It will be interesting to see if in 2014 Germany can keep up this pace and continue or even increase migration to the country.  Stay tuned.

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  1. Firm In The News

 Cyrus D. Mehta was a panelist at the 11th Annual Federal Bar Association, Immigration Law Seminar, Memphis, TN, May 16-17, 2014 where he spoke on “CSPA & Child Citizenship Act of 2000” and “Competency Issues: PTSD, Memory Loss, Mental Disability.”

Mr. Mehta was also a panelist at an AILA Web Seminar on May 6, 2014 entitled “Is ‘In Lieu’ Dead or Alive? Appropriate Usages of the B-1”, AILA Web Seminar, May 6, 2014.

Chambers USA 2014 has again ranked the firm under Band 2, http://www.chambersandpartners.com/12806/31/Editorial/5/1. Chambers includes the following quotes from clients in its commentary on the firm:

“The firm is very thorough in its work. They do not go around handing out false hopes and promises.”

 “They are very professional and always available; they provide prompt and comprehensive responses to questions, both by e-mail and phone, and they are available in emergencies and provide consultations for inspections and interviews.”

 Mr. Mehta was also ranked individually as a Star Individual, while David Isaacson and Cora-Ann Pestaina have been ranked under “Associates to Watch.” The following extract on the firm’s lawyers by Chambers USA, which it describes as notable practitioners, is worth noting:

Cyrus Mehta continues to be held in the highest esteem by sources, who hail him as a thought leader and as someone who “dreams, lives and sleeps immigration law. He is very bright and a very committed individual.” Clients seek him out for tricky and unusual cases, which in some instances have been rejected by other practitioners.

The “incredible” David Isaacson is a gifted associate with an impressive immigration practice. Clients say he “has regulations and statutes at his fingertips,” and is “a very compassionate and great person.”

Clients note that associate Cora-Ann Pestaina stands out from the crowd. She deals with a wide variety of corporate immigration matters.

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May 2014 Immigration Update

Headlines:

1.         USCIS Holds Stakeholder Call on L-1A Site Visits – The L-1 inspection program is being phased in and may be extended to initial petitions and/or L-1Bs in the future.

2.         USCIS H-1B Premium Processing Has Begun for FY 2015 Petitions – On April 28, 2014, USCIS began premium processing for H-1B petitions subject to the fiscal year 2015 cap, including H-1B petitions seeking an exemption from the cap for individuals who have earned a U.S. master’s degree or higher.

3.    Labor Dept. Releases FAQ on Staggered Crossings of H-2B Nonimmigrants in the Seafood Industry  The Office of Foreign Labor Certification released a FAQ clarifying the agency’s role with respect to implementation of a new provision on H-2B “staggered crossings” for seafood workers.

4.         State Dept. Updates Visa Reciprocity Table for Ukraine  The Department of State has updated the visa reciprocity table for Ukraine: B visa validity was updated from 60 months to 120 months.

5.         H-1B Cap Reached for FY 2015  USCIS received about 172,500 H-1B petitions during the filing period that began April 1, including petitions filed for the advanced degree exemption.

6.         White House To Propose New Regs, Steps To Attract Entrepreneurs – Among other things, proposed regulations will include rules authorizing employment for spouses of certain high-skill workers on H-1B visas and enhancing opportunities for outstanding professors and researchers.

7.         Firm In The News…

Details:

1.         USCIS Holds Stakeholder Call on L-1A Site Visits

U.S. Citizenship and Immigration Services (USCIS) held a stakeholder call on April 24, 2014, on the implementation of L-1A site visits for intracompany transferee managers and executives.  The following are highlights from the call:

USCIS said that site visits are randomly selected and not based on suspected fraud or tips received.  All L-1A extensions are included in the pool, not just new offices.  The trigger is the filing of a Form I-129, Petition for a Nonimmigrant Worker, with USCIS.  The agency noted that at the moment, there does not seem to be a method for including petitions filed at the border by Canadians or petitions filed at consulates based on a blanket L-1, but USCIS is trying to figure out how to include them as well.

The inspection program is being phased in and may be extended to initial petitions and/or L-1B specialized knowledge employees in the future, USCIS said.  Inspection officers do not have authority to withdraw, approve, deny, or re-adjudicate a petition.  Also, they do not have the authority to make a finding of fraud, but they can forward the results of the inspection to the Fraud Detection and National Security Directorate (FDNS) for further investigation.  The inspection report assesses compliance with the L regulations and the result is either “verified” or “unverified.”  A supervisor reviews all inspection findings.

Attorneys may be present, but officers may not wait for them to show up.  Participation in the inspection is voluntary, USCIS noted.  The petitioner may at any time request that the inspection be stopped, and the inspection officer will stop and create the report based on the information obtained up to that point and through other methods (e.g., Internet, telephone, email, conversations with neighbors).  Stopping the investigation will not necessarily result in an “unverified” conclusion, USCIS said.

Employers should be prepared to present all documents submitted with the original L-1A petition.  One caller noted that employers are not required to maintain public access files in the L context and therefore may have difficulty immediately producing these documents.  USCIS replied that the production expectation is the same for Ls as it is for Hs, but they will be allowed to follow up with the officer after the inspection to clarify and/or provide requested documents that were not readily available at the time of the inspection.

According to USCIS, each inspection will touch on issues easily addressed in many cases by information contained in the L-1A petition.  Some of those issues noted on the call include:

б         Whether the facility employed by the business appears to be the one described in the petition.

б         Whether the inspector made contact with the signatory of the petition or a human resources representative or management point of contact who could answer questions about the petition filed and the visa holder.

б         Whether the information in the petition is viable and whether the documents collected related to the presence of the organization as a business.

б         Whether the inspector was able to interview the beneficiary.

б         Whether the petition signatory, human resources representative, or manager interviewed had knowledge of the originally filed petition associated with the beneficiary.

б         Whether the inspector found the beneficiary to be working for the organization cited in the petition.

б         Whether the beneficiary was knowledgeable, forthcoming, and cooperative.

б         Whether the beneficiary is being compensated with the salary indicated in the petition.

б         Whether the beneficiary is performing the duties indicated in the petition.

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2.         USCIS H-1B Premium Processing Has Begun for FY 2015 Petitions

On April 28, 2014, U.S. Citizenship and Immigration Services (USCIS) began premium processing for H-1B petitions subject to the fiscal year 2015 cap, including H-1B petitions seeking an exemption from the cap for individuals who have earned a U.S. master’s degree or higher.  The annual cap is 65,000 H-1B visas, with an exemption for the first 20,000 petitions filed on behalf of those with a U.S. masterХs degree or higher.

USCIS provides premium processing service for certain employment-based petitions and guarantees a 15-calendar-day processing time.

The announcements are available at http://www.uscis.gov/news/uscis-h-1b-premium-processing-begin-april-28 and http://www.uscis.gov/news/alerts/uscis-begin-premium-processing-h-1b-cap-subject-petitions-april-28-2014.

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3.         Labor Dept. Releases FAQ on Staggered Crossings of H-2B Nonimmigrants in the Seafood Industry

The Consolidated Appropriations Act of 2014, signed into law on January 17, 2014, includes a provision permitting the staggered entry of H-2B workers in the seafood industry under certain conditions.  The Office of Foreign Labor Certification (OFLC) released frequently asked questions (FAQ) clarifying the agency’s role with respect to implementation of the new provision.

OFLC noted that all employers submitting an H-2B application for temporary employment certification must indicate their temporary need accurately, and include the starting and ending dates of need for the period in which they intend to employ H-2B nonimmigrant workers.  The 2014 Appropriations Act permits employers in the seafood industry to bring into the United States, in accordance with an approved H-2B petition, nonimmigrant workers at any time during the 120-day period on or after the employer’s certified start date of need if certain conditions are met.  For employers to use this provision, H-2B nonimmigrant workers must show to consular officers and to U.S. Customs and Border Protection officers, as necessary, the employer’s attestation that the conditions contained in the statute have been met.

Any seafood industry employer that permits or requires its H-2B nonimmigrant workers to enter the United States between 90 and 120 days after the certified start date of need must complete a new assessment of the local labor market during the period that begins at least 45 days after the certified start date of need and ends before the 90th day after the certified start date of need, which must include:

a)    Listing job orders in local newspapers on two separate Sundays;

b)    Placing new job orders for the job opportunity with the State Workforce Agency serving the area of intended employment and posting the job opportunity at the place of employment for at least 10 days; and

c)    Offering the job to any equally or better qualified U.S. worker who applies for the job and who will be available at the time and place of need.

OFLC noted that a seafood industry employer must prepare a written, signed attestation indicating its compliance with the statutory conditions.  Employers must download the official attestation, review the conditions contained in the attestation, and indicate compliance by signing and dating it.  Such employers must provide each of their H-2B nonimmigrant workers seeking entry into the United States a copy of the signed and dated attestation, with instructions that the worker must present the documentation upon request.

This provision expires on September 30, 2014.  Accordingly, no staggered entry of H-2B workers after that date will be permitted, the Department said.  The FAQ is available at http://www.foreignlaborcert.doleta.gov/pdf/FAQs_Seafood_Staggering_2014_Approps_final_040114.pdf.  The official attestation is available in PDF format on OFLC’s website at http://www.foreignlaborcert.doleta.gov/form.cfm

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4.         State Dept. Updates Visa Reciprocity Table for Ukraine

The Department of State has updated the visa reciprocity table for Ukraine: B visa validity was updated from 60 months to 120 months.

Recent updates are listed at http://travel.state.gov/content/visas/english/fees/reciprocity-whats-new.html.

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5.         H-1B Cap Reached for FY 2015

U.S. Citizenship and Immigration Services (USCIS) announced that the fiscal year (FY) 2015 

H-1B cap was reached as of April 7, 2014.  The agency will reject and return with the filing fees non-duplicate cap-subject petitions that were not selected.

USCIS received about 172,500 H-1B petitions during the filing period that began April 1, including petitions filed for the advanced degree exemption.  On April 10, 2014, USCIS completed a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and 20,000 cap under the advanced-degree exemption.  The agency conducted the selection process first for the advanced-degree exemption.  All advanced-degree petitions not selected then became part of the random selection process for the 65,000 limit.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap.  Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the congressionally mandated FY 2015 H-1B cap.  USCIS will continue to accept and process petitions filed to:

  • extend the amount of time a current H-1B worker may remain in the United States;
  • change the terms of employment for current H-1B workers;
  • allow current H-1B workers to change employers; and
  • allow current H-1B workers to work concurrently in a second H-1B position.

Premium processing. USCIS also announced that it would begin premium processing for H-1B cap cases by April 28, 2014.  USCIS provides premium processing service for certain employment-based petitions and guarantees a 15-calendar-day processing time.

USCIS will continue to accept Form I-907, Request for Premium Processing Service, with fee, concurrently with the Form I-129, Petition for a Nonimmigrant Worker, while premium processing is unavailable.  Petitioners may also upgrade a pending H-1B cap petition to premium processing once USCIS issues a receipt notice.

While the Form I-797, Notice of Action (receipt notice), indicates the date USCIS received the premium processing fee, the 15-day processing period will begin by April 28.  This allows USCIS to take in the anticipated high number of filings, conduct the lottery to determine which cases meet the cap, and prepare the volume of cases for premium and regular processing.

The 15-day processing period for premium processing service for H-1B petitions that are not subject to the cap, or for any other eligible classification, continues to begin on the date that the request is received.

F-1 students and the “cap-gap.” The period of time when an F-1 student’s status and work authorization expire through the start date of his or her approved H-1B employment period is known as the “cap-gap.”

The cap-gap occurs because an employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1.

Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the cap-gap period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.

USCIS’s announcement is available at http://www.uscis.gov/news/uscis-reaches-fy-2015-h-1b-cap-0. Information on premium processing is available at http://www.uscis.gov/news/alerts/uscis-begin-premium-processing-h-1b-cap-subject-petitions-april-28-2014. Information on cap-gap issues is available at http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/extension-post-completion-optional-practical-training-opt-and-f-1-status-eligible-students-under-h-1b-cap-gap-regulations.

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  1. White House To Propose New Regs, Steps To Attract Entrepreneurs

The Obama administration released a fact sheet on April 7, 2014, summarizing efforts to strengthen entrepreneurship, including a series of proposed regulations and other steps.

Among other things, the Department of Homeland Security is set to publish soon several proposed rules intended to make the United States more attractive to talented foreign entrepreneurs and other high-skill immigrants. The proposed regulations will include rules authorizing employment for spouses of certain high-skill workers on H-1B visas and enhancing opportunities for outstanding professors and researchers.

Also planned is the launch of “Entrepreneur Pathways,” an online resource center “that gives immigrant entrepreneurs an intuitive way to navigate opportunities to start and grow a business in the United States,” the fact sheet says.

Additionally, the Department of State will launch two new exchange programs for entrepreneurs in the Western hemisphere. The Small Business Network of the Americas (SBNA) Fellowship Program will connect incubators across the hemisphere “to share best practices in entrepreneurial development and unlock market access for small businesses across the region,” the fact sheet states.  The Professional Fellows Program will bring Salvadoran, Guatemalan, and U.S. officials together for a six-week internship and training program focusing on professional development, problem-solving, and networking.

The White House fact sheet is available at http://m.whitehouse.gov/the-press-office/2014/04/07/fact-sheet-strengthening-entrepreneurship-home-and-abroad.

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  1. Firm In The News

Cyrus Mehta has again been ranked  No. 2 in 2014 among the most highly regarded corporate immigration lawyers in the world by Who’s Who Legal, a strategic research partner of the ABA Section on International Law,   http://whoswholegal.com/news/analysis/article/31331/legal-marketplace-analysis-corporate-immigration-2014/

David Isaacson was a panelist at the April 7, 2014, meeting of the American Immigration Lawyers’ Association (AILA) New York Chapter, hosted by the AILA New York Chapter Federal Practice Committee, of which he is co-chair.  He provided an “Update on Significant Immigration Decisions of the Supreme Court and the U.S. Courts of Appeals for the Second and Third Circuits, March 2013-April 2014.”

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April 2014 Immigration Update

Headlines

1.         File H-1B Petitions for FY 2015 Now! – USCIS anticipates receiving more than enough petitions to reach both caps by April 7.

2.         USCIS, Healthcare.gov Provide Highlights of Immigration Status Effects on ACA Eligibility  Immigration status can affect eligibility for health care benefits under the Affordable Care Act.

3.         USCIS Holds Teleconference With EB-5 Stakeholders  USCIS discussed targeted employment areas, among other things.

4.         State Dept. Waives Visa Fees for Participants in 2014 Special Olympics Summer Games and 2015 Special Olympics World Summer Games  Approximately 250 accredited delegation members are expected to attend the 2014 Games, and 6,500 members will attend the 2015 Games.

5.         OCAHO Reduces Employer’s Fines for I-9 Violations  The total penalty sought was $21,598.50, which was reduced to $9,450.

6.         DOL Releases 2014 Allowable Charges for Agricultural Workers  The notice announces (1) the allowable charges for 2014 that employers seeking H-2A workers may charge their workers when the employer provides three meals a day, and (2) the maximum travel subsistence meal reimbursement that a worker with receipts may claim in 2014.

7.         USCIS Extends TPS for Haitians; ICE Extends Work Authorization for Certain Haitian F-1 Students  USCIS has extended temporary protected status for eligible nationals of Haiti for an additional 18 months, through January 22, 2016. Also, ICE has extended employment authorization for certain Haitian F-1 students due to ongoing hardship related to the earthquake of 2010.

8.         Supreme Court Denies Certiorari in Local Ordinance Cases  The U.S. Supreme Court denied certiorari in several recent cases relating to local ordinances aimed at undocumented persons.

9.         Hockeytown-Hockey Country Debacle Heats Up  Well, now, it does seem to be April 1. Parts of this article are actually true, but we won’t say which parts.

10.       ABIL Global: Canada Canada plans to close the federal Investor Program.

11.       Firm In The NewsЙ

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1.         File H-1B Petitions for FY 2015 Now!

U.S. Citizenship and Immigration Services (USCIS) is accepting H-1B petitions subject to the fiscal year (FY) 2015 cap starting on April 1, 2014. Cases will be considered accepted on the date that USCIS receives a properly filed petition with the correct fee. USCIS will not rely on the date that the petition is postmarked.

The congressionally mandated cap on H-1B visas for FY 2015 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

USCIS anticipates receiving more than enough petitions to reach both caps by April 7. The agency said it will use a random selection process to meet the numerical limit. Non-duplicate petitions that are not selected will be rejected and returned with the filing fees.  All H-1B Cap cases received by the USCIS between April 1-7, 2014 will receive the same consideration under the random selection process.

Due to the high level of premium processing receipts anticipated, combined with the possibility that the H-1B cap will be met in the first five business days of the filing season, USCIS has temporarily adjusted its current premium processing practice. To facilitate the prioritized intake of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases no later than April 28, 2014. USCIS guarantees a 15-calendar-day processing time.

USCIS will continue to accept Form I-907, Request for Premium Processing Service, with fee, concurrently with the Form I-129, Petition for Nonimmigrant Worker, while premium processing is unavailable. Petitioners may also upgrade a pending H-1B cap petition to premium processing once USCIS issues a receipt notice.

While the Form I-797 receipt notice indicates the date USCIS received the premium processing fee, the 15-day processing period will begin no later than April 28, 2014, as noted above. This allows for USCIS to take in the anticipated high number of filings, conduct the lottery to determine which cases meet the cap, and prepare the volume of cases for premium and regular processing.

The 15-day processing period for premium processing service for H-1B petitions that are not subject to the cap, or for any other eligible classification, continues to begin on the date the request is received.

USCIS’s announcement is available at http://www.uscis.gov/news/uscis-accept-h-1b-petitions-fiscal-year-2015-beginning-april-1-2014. Information on premium processing is available at http://www.uscis.gov/news/alerts/uscis-begin-premium-processing-h-1b-cap-subject-petitions-april-28-2014.

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2.              USCIS, Healthcare.gov Provide Highlights of Immigration Status Effects on ACA Eligibility

U.S. Citizenship and Immigration Services disseminated a stakeholder alert on March 13, 2014, noting that immigration status can affect eligibility for health care benefits under the Patient Protection and Affordable Care Act (ACA), popularly known as Obamacare. USCIS encourages stakeholders to visit http://www.healthcare.gov to learn more, including the most common immigration documents that may be submitted when applying for health insurance; options for families; how immigration status affects eligibility for insurance; and how to verify citizenship and immigration status.

The ACA website provides a long list of documents that can be used to show immigration status at https://www.healthcare.gov/help/immigration-document-types/.

The website also provides the following list of eligible immigration statuses for health coverage through the “Marketplace”:

  • Lawful permanent resident (LPR/green card holder)
  • Asylee
  • Refugee
  • Cuban/Haitian entrant
  • Paroled into the U.S.
  • Conditional entrant granted before 1980
  •  Battered spouse, child, or parent
  •  Victim of trafficking and his or her spouse, child, sibling, or parent
  •  Granted withholding of deportation or withholding of removal, under the immigration laws or under the Convention Against Torture (CAT)
  •  Individual with nonimmigrant status (including worker visas, student visas, and citizens of Micronesia, the Marshall Islands, and Palau)
  •  Temporary Protected Status (TPS)
  • Deferred Enforced Departure (DED)
  • Deferred Action Status (Deferred Action for Childhood Arrivals (DACA) isnХt an eligible immigration status for applying for health coverage)
  • Applicant for:

         Special Immigrant Juvenile Status

         Adjustment to LPR status with an approved visa petition

         Victim of trafficking visa

         Asylum who has either been granted employment authorization, OR is under 14 and has had an application for asylum pending for at least 180 days)

         Withholding of deportation or withholding of removal, under the immigration laws or under the Convention Against Torture (CAT) who has either been granted employment authorization, OR is under 14 and has had an application for withholding of deportation or withholding removal under the immigration laws or under the CAT pending for at least 180 days)

  • Certain individuals with an employment authorization document:

         Registry applicants

         Order of supervision

         Applicant for cancellation of removal or suspension of deportation

         Applicant for legalization under IRCA

         Applicant for TPS

         Legalization under the LIFE Act

  •        Lawful temporary resident
  •         Granted an administrative stay of removal by the Department of Homeland Security
  •          Member of a federally recognized Indian tribe or American Indian born in Canada
  •          Resident of American Samoa

 

The website notes that this information will only be used for determining access to health coverage in the Marketplace and will not be used for immigration enforcement purposes. Also, use of health care services through the Marketplace will not be considered a public charge.

U.S. Residents Living Abroad

The Affordable Care Act requires all “applicable individuals,” including lawful permanent residents (LPRs), to maintain minimum essential health care coverage. The “minimum essential coverage” is required on a monthly basis, but only during those months that qualify people as “applicable individuals.” The penalties for failing to obtain coverage only apply to required coverage months. Applicable individuals must maintain minimum essential coverage for each month, qualify for an exemption (see https://www.healthcare.gov/exemptions/), or pay a penalty when filing their federal income tax returns, starting with their 2014 returns.

All LPRs living outside the United States are considered “applicable individuals.” The Affordable Care Act provides that U.S. tax residents, including LPRs, whose tax home is outside the United States and who are not physically present in the United States for at least 330 full days within a 12-consecutive-month period, are treated as having minimum essential coverage for that 12-month period. In general, such individuals qualify for the foreign earned income exclusion under section 911 of the Internal Revenue Code. We do not know yet whether individuals will be required to elect the foreign earned income exclusion to be deemed as having minimum essential coverage or whether a separate form will be developed for this purpose.

LPRs qualifying as having minimum essential coverage need take no further action to comply with the minimum essential coverage requirement during the months they qualify. LPRs with a tax home outside the United States who spend less than 330 full days outside the country within a 12-month period must maintain minimum essential coverage for the applicable period or pay the penalty for failing to do so.

LPRs who seek to claim a section 911-type foreign earned income exclusion to get out of the mandate under ACA should beware of adverse consequences on their LPR status. Living outside the United States for 330 days or more in itself could lead to a finding of abandonment if the LPR cannot successfully establish that his or her visit abroad was temporary under court precedents. Even if LPRs assert that their trips abroad were temporary, claiming a section 911 benefit to avoid the health insurance coverage under Obamacare could bolster the government’s charges that they abandoned their status. Taking a section 911 exemption can also impair the applicant’s ability to show that he or she did not disrupt continuity of residence during the relevant 5- or 3-year period for naturalization purposes. INA ¤ 316(b) states that an absence from the United States of more than 6 months but less than 1 year during the 5-year period immediately preceding the filing of the application may break the continuity of such residence.

Penalty for Failure to Maintain Minimum Essential Coverage

LPRs and other applicable individuals who fail to maintain required minimum essential coverage must pay a penalty, known as the “individual shared responsibility payment.” The annual penalty is calculated in one of two ways, and the applicable individual will pay the higher of:

  • 1% of the applicable individual’s yearly worldwide income up to a maximum amount. Only the amount of income above the tax filing threshold, or $10,150 for an individual, is used to calculate the penalty. The maximum penalty is the national average yearly premium for a “bronze plan,” which will be calculated in 2014 at around $4500.
  • $95 per person for 2014 ($47.50 per child under 18). The maximum penalty per family using this method is $285.

The applicable individual will owe 1/12th of the annual payment for each month they or their dependents do not have coverage and are not exempt. The payment will be due when LPRs file their 2014 tax returns in 2015.

LPRs and other noncitizens should consult a competent tax professional before making essential decisions regarding their obligations under the Affordable Care Act. LPRs living abroad for significant periods are always at risk of losing their permanent residence status and should contact their ABIL attorney about steps that should be taken to maintain it.

For a commentary on the ACA, and how it impacts LPRs living abroad, see The Impact of Obamacare on Green Card Holders Who Reside Overseas by Gary Endelman and Cyrus D Mehta, http://blog.cyrusmehta.com/2014/03/the-impace-of-obamacare-on-green-card.html

For more information, see https://www.healthcare.gov/help/immigration-status-questions/.

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  1. USCIS Holds Teleconference With EB-5 Stakeholders

U.S. Citizenship and Immigration Services (USCIS) held a teleconference on February 26, 2014, with EB-5 stakeholders. Nicholas Colucci, the new director of USCIS’s Immigrant Investor Program Office, led the teleconference.

Among other things, USCIS said that it is now adjudicating I-924 regional center petitions and I-526 alien entrepreneur petitions in the Washington, DC, field office, but that it continues to adjudicate I-829 removal of conditions and I-485 adjustment of status petitions at the California Service Center for the time being.

USCIS also said it is moving toward greater use of its Electronic Immigration System (ELIS) and has implemented it for intake of I-526 petitions. The agency said it plans to offer webinars on the features of the document library, which allows regional centers to provide electronic versions of certain documents.

USCIS noted that regional center geographic area expansion must be contiguous to approved geographic areas. USCIS said it reviews such expansions on a case-by-case basis to determine whether the expansion will promote economic growth, frequently focusing on the supply chain and labor pool.

Targeted employment areas (TEAs) have been a hot topic for EB-5 stakeholders. USCIS noted that a TEA need not be singular and a new commercial enterprise can be principally located in, doing business in, and creating jobs in a collection of TEAs.

USCIS also confirmed that a high unemployment TEA must be established by a letter from an authorized body of the government of the state in which the new commercial enterprise is located, certifying that the geographic or political subdivision of the metropolitan statistical area, or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business, has been designated a high unemployment area.

As of February 1, 2014, USCIS had approved approximately 440 regional centers. The agency said the average processing time for both regional center cases and direct EB-5 cases is 11 months, but that processing may take longer temporarily due to staffing issues. The agency also said it is planning new EB-5 regulations and a policy guidance manual.

The list of EB-5 regional centers by state is available at http://www.uscis.gov/general-keywords/eb-5. This article is based on multiple reports; USCIS has not yet released a summary of the teleconference.

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  1. State Dept. Waives Visa Fees for Participants in 2014 Special Olympics Summer Games and 2015 Special Olympics World Summer Games

The Department of State has waived fees for applications (i.e., machine-readable visa) and visa issuances (i.e., reciprocity) for certain participants in the 2014 Special Olympics Summer Games Invitational taking place in Los Angeles, California, from June 6 to 8, 2014, and the 2015 Special Olympics World Summer Games taking place in Los Angeles from July 25 to August 2, 2015. Approximately 250 accredited delegation members are expected to attend the 2014 Games, and 6,500 members will attend the 2015 Games. The included roles are:

  • Athletes and Unified Partners (athletes without an intellectual disability who train and compete on teams with persons with intellectual disabilities);
  • Coaches, trainers, referees, and judges;
  • Other supporting staff accredited to the Games (e.g., medical doctors, nurses, therapists, Special Olympics staff from regional offices, and technical delegates to oversee each sport);
  • Heads and assistant heads of the delegation;
  • Medical doctors participating in the Healthy Athletes Program;
  • Global Messengers (former athletes acting as spokespersons during the Games); and
  • Police officers who will participate in the final leg of the Torch Run.

The Department has authorized U.S. consular posts worldwide to issue multiple-entry B-1/B-2 visas to qualifying applications. International media are not included in the fee waiver and will need to apply and qualify for I visas. “The same holds true for all petitionable classifications, such as temporary workers, entertainers, and cultural exchange groups,” the Department cable states.

The related cable, which includes additional information about applicable dates and other facts, is available at http://travel.state.gov/content/dam/visas/policy_updates/Waiver_of_Visa_Fees_for_2014_Special_Olympics_Summer_Games%20.pdf.

  1. OCAHO Reduces Employer’s Fines for I-9 Violations

The Department of Justice’s Office of the Chief Administrative Hearing Officer (OCAHO) recently reduced fines imposed on New Outlook Homecare, LLC, for violations related to the Form I-9, Employment Authorization Verification. The complaint filed by U.S. Immigration and Customs Enforcement (ICE) alleged that New Outlook failed to ensure that employees properly completed section 1 of the I-9 and that the company failed to properly complete sections 2 or 3 of the form for 22 employees. One of the charges was subsequently dropped because it was for the owner of New Outlook, for which no I-9 was required.

The total penalty sought was $21,598.50, which OCAHO reduced to $9,450. New Outlook characterized the violations as minor clerical errors, but OCAHO said there were “serious substantive errors” in the completion of section 2 of the forms. Section 2 for all but three employees was blank. The forms contained no signatures attesting that New Outlook had examined documents to verify the employees’ identities and authorization to work in the United States. OCAHO noted that case law confirms that such failures constitute serious violations.

ICE had calculated a baseline penalty in accordance with internal agency guidance that sets a penalty of $935 for each violation when the employer’s error rate exceeds 50 percent. An ICE auditor stated that the government mitigated the penalty by 5 percent based on New Outlook’s status as a small business, but aggravated the penalty based on the seriousness of the violations. ICE initially aggravated the fine by 5 percent based on a lack of good faith, but later treated this factor as neutral, as it did the remaining statutory factors: the absence of any history of previous violations and the absence of unauthorized workers.

OCAHO found that although the violations were serious, penalties at or near the maximum permissible “should be reserved for more egregious violations than have been demonstrated here.” Penalties should be sufficiently meaningful to deter future violations but should not be “unduly punitive” in light of the respondent’s resources, OCAHO said. Given the nature of the business and considering the record as a whole “in light of the general public policy of leniency toward small entities,” OCAHO adjusted the penalties “closer to the midrange of permissible penalties,” setting the fines at $450 per violation, for a total of $9,450.

The decision is available at http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Looseleaf/Volume10/1210.pdf.

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6.       DOL Releases 2014 Allowable Charges for Agricultural Workers

The Department of Labor’s Employment and Training Administration (ETA) issued a notice in the Federal Register on March 5, 2014, to announce (1) the allowable charges for 2014 that employers seeking H-2A temporary agricultural workers may charge their workers when the employer provides three meals a day, and (2) the maximum travel subsistence meal reimbursement that a worker with receipts may claim in 2014. The notice includes a reminder regarding employers’ obligations with respect to overnight lodging costs as part of required subsistence.

Among the minimum benefits and working conditions that the Department requires employers to offer their U.S. and H-2A workers are three meals a day or free and convenient cooking and kitchen facilities. Where the employer provides the meals, the job offer must state the charge, if any, to the worker for such meals. The maximum allowable charge is $11.58 per day, unless the Office of Foreign Labor Certification (OFLC) Certifying Officer approves a higher charge. The OFLC Certifying Officer may permit an employer to charge workers a higher amount for providing them with three meals a day, if the higher amount is justified and sufficiently documented by the employer.

The Continental United States (CONUS) minimum meals component remains $46.00 per day for 2014. Workers who qualify for travel reimbursement are entitled to reimbursement for meals up to the CONUS meal rate when they provide receipts. In determining the appropriate amount of reimbursement for meals for less than a full day, the employer may provide for meal expense reimbursement, with receipts, to 75 percent of the maximum reimbursement for meals of $34.50, as provided for in the General Services Administration per diem schedule. If a worker has no receipts, the employer is not obligated to reimburse above the minimum.

ETA said it interprets the applicable regulation as requiring the employer to assume responsibility for the reasonable costs associated with the worker’s travel, including transportation, food, and, in those instances where it is necessary, lodging. If transportation and lodging are not provided by the employer, the amount an employer must pay for transportation and, where required, lodging, must be no less than (and is not required to be more than) the most economical and reasonable costs, ETA noted. The employer is responsible for those costs necessary for the worker to travel to the worksite if the worker completes 50 percent of the work contract period, but is not responsible for unauthorized detours, and if the worker completes the contract, return transportation and subsistence costs, including lodging costs where necessary. This policy applies equally to instances where the worker is traveling within the United States to the employer’s worksite.

The notice is available at http://www.gpo.gov/fdsys/pkg/FR-2014-03-05/pdf/2014-04895.pdf.

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7.        USCIS Extends TPS for Haitians; ICE Extends Work Authorization for Certain Haitian F-1 Students

U.S. Citizenship and Immigration Services (USCIS) has extended temporary protected status (TPS) for eligible nationals of Haiti for an additional 18 months, effective July 23, 2014, through January 22, 2016. Also, U.S. Immigration and Customs Enforcement (ICE) has extended employment authorization for certain Haitian F-1 students due to ongoing hardship related to the 2010 earthquake in Haiti. Highlights of these two developments follow.

Haitian TPS. Current Haitian beneficiaries seeking to extend their TPS status must re-register during a 60-day period that began on March 3, 2014, and runs through May 2, 2014. USCIS encourages beneficiaries to re-register as soon as possible.

The 18-month extension also allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible Haitian TPS beneficiaries who re-register during the 60-day period and request a new EAD will receive one with an expiration date of January 22, 2016. USCIS recognizes that some re-registrants may not receive their new EADs until after their current EADs expire. Therefore, USCIS is automatically extending current TPS Haiti EADs bearing a July 22, 2014, expiration date for an additional 6 months. These existing EADs are now valid through January 22, 2015.

To re-register, current TPS beneficiaries must submit Form I-821, Application for Temporary Protected Status. Re-registrants do not need to pay the I-821 application fee, but they must submit the biometric services fee, or a fee waiver request, if they are 14 or older. All TPS re-registrants must also submit Form I-765, Application for Employment Authorization. TPS re-registrants requesting an EAD must submit the I-765 application fee, or a fee waiver request. If the re-registrant does not want an EAD, no application fee is required.

Applicants may ask that USCIS waive the I-765 application fee or biometrics fee based on an inability to pay by filing Form I-912, Request for Fee Waiver, or by submitting a written request. Fee waiver requests must be accompanied by supporting documentation. Failure to submit the required filing fees or a properly documented fee waiver request will result in rejection of the TPS application, USCIS said.

Extension of work authorization for Haitian F-1 students. ICE announced on March 3, 2014, that it would extend the suspension of certain requirements for F-1 nonimmigrant Haitian students who are experiencing severe economic hardship as a direct result of the January 12, 2010, earthquake in Haiti. This relief applies only to students whose country of citizenship is Haiti and who were lawfully present in the United States in F-1 status on January 12, 2010, and enrolled in an institution certified by ICE’s Student and Exchange Visitor Program (SEVP).

The current extension will enable eligible F-1 students to continue to obtain employment authorization, work an increased number of hours during the school term, and, if necessary, reduce their course load while continuing to maintain their F-1 student status. The suspension of the regulatory requirements will remain in effect through January 22, 2016.

ICE noted that the ongoing devastation and unstable conditions caused by the earthquake in Haiti increased the financial burden on many of these students, who previously relied on assistance from the Haitian government or family members in Haiti to meet basic living expenses. “While the government of Haiti has made progress in improving security and quality of life of its citizens following the January 2010 earthquake, Haiti continues to lack the adequate infrastructure, employment and educational opportunities, and basic services,” ICE said. As of February 3, there were 820 active F-1 Haitian students enrolled in SEVP-certified schools in the United States.

Additional information on TPS for Haiti, including guidance on eligibility, the application process, and where to file, is available online at http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/temporary-protected-status. Further details on this extension of Haiti for TPS, including application requirements and procedures, are available in the Federal Register notice published at http://www.gpo.gov/fdsys/pkg/FR-2014-03-03/html/2014-04593.htm. USCIS’s announcement is available at http://www.uscis.gov/news/temporary-protected-status-extended-haitians-0.

The ICE F-1 work authorization extension notice is available at http://www.ice.gov/news/releases/1403/140303washingtondc.htm.

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  1. Supreme Court Denies Certiorari in Local Ordinance Cases

The U.S. Supreme Court denied certiorari on March 3, 2014, in several recent cases relating to local ordinances aimed at undocumented persons.

In City of Hazleton v. Lozano, the U.S. Court of Appeals for the Third Circuit had held that local ordinances in the city of Hazleton, Pennsylvania, prohibiting the knowing harboring of undocumented persons in rental housing or hiring them, was unconstitutional.

In City of Farmers Branch v. Villas at Parkside Partners, the U.S. Court of Appeals for the Fifth Circuit had held that local ordinances in the city of Farmers Branch, Texas, prohibiting the knowing harboring of undocumented persons in renting housing in the city, was unconstitutional.

Information about Hazleton is available at http://www.scotusblog.com/case-files/cases/city-of-hazleton-v-lozano/. Information about Farmers Branch is available at http://www.scotusblog.com/case-files/cases/city-of-farmers-branch-v-villas-at-parkside-partners/.

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  1. Hockeytown-Hockey Country Debacle Heats Up

Following Governor Rick Snyder of Michigan’s proposal to attract 50,000 immigrants with advanced degrees or exceptional abilities in the sciences, arts, or business to Detroit to help revive the depressed economy there, on April 1 traffic was suddenly diverted at the Detroit-Windsor Tunnel and Ambassador Bridge by unnamed forces. Orange traffic cones blocked vehicles attempting to enter the United States. Fishy e-mails turned up stating, “Time for some traffic problems at Detroit-Windsor!” “Got it!” A shadowy anti-immigrant group subsequently took credit while pulling a trout off one of the e-mails, stating that, “Our city is overrun by Canadians! We should rename it the Shamebassador Bridge, eh?!”

Meanwhile, a new bridge proposal for Detroit-Windsor was stymied due to a lack of funds from Washington, DC, for a mandatory $250 million U.S. Customs plaza, required any time a bridge is built at a U.S. border. Nobody took credit for that. When pressed at a press conference for answers about financing the plaza, a rogue Department of Homeland Security spokesperson simply said, “Who you lookin’ at? Are you lookin’ at me?” He then cut the journalist’s microphone and threatened to deport everyone in the room if they didn’t leave immediately. Asked later about the advisability of the optics of that scene, this being a democracy with freedom of speech, the spokesperson said, “If it’s good enough for Darrell Issa, it’s good enough for me. If I get mad enough, I may send out a scathing letter too.” In response, Kirk Hockey of the state’s Department of Transportation blurted, “Puck that!” He acknowledged that the whole thing was a “sticky issue” but was “moving forward.” Fingers were pointed and subpoenaes were issued all around, in passive yet impassioned voices. The Michigan legislature vowed to get to the bottom of what’s now being called the “Hockeytown-Hockey Country Debacle.”

Governor Snyder retorted, “This is all nonsense. Everybody knows Canadians are welcome here!” Meanwhile, Canadians continued to sneak in via checkpoints at Washington, Idaho, Maine, Montana, North Dakota, Minnesota, New Hampshire, New York, Vermont, various airports, and on the backs of snowbirds headed to Florida.

Parts of this article are actually true, but we won’t say which parts. Happy April Fool’s Day!

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  1. ABIL Global: Canada

Canada plans to close the federal Investor Program.

On February 11, 2014, Canada’s Economic Action Plan (EAP) announced the government’s intent to terminate both the Federal Immigrant Investor Program (IIP) and Federal Entrepreneur Program (EN). In doing so, it plans to eliminate several thousand backlogged applications.

The IIP and EN programs have been cornerstones of Canada’s business-oriented immigration programs. In 2011, approximately 10,000 immigrants entered Canada through the IIP, while almost 1,000 entered through the EN.

Although the programs have been longstanding business immigration programs, in recent years they suffered from significant backlogs in processing. Investors, for instance, had to wait at least 54 months for visa issuance, while many entrepreneurs faced even longer processing times.

The current inventory of backlogged applications for the IIP stands at 65,000. Citizenship and Immigration Canada (CIC) anticipates that it would take more than six years to process these cases. To move forward with programs that will more accurately capture the types of investors needed in Canada, CIC has decided to eliminate many of the files currently in the backlog.

However, to date, no official announcement has been made as to which applications will be processed and which applications will be returned to the applicants.

CIC pointed out in its press release that the minimum investment amount for IIP applicants, which is $800,000, is significantly lower than that of investor programs in countries such as the United Kingdom, Australia, and New Zealand. It also noted that investors who arrive in Canada are likely to pay lower taxes than immigrants who come to Canada through programs such as the Federal Skilled Worker Program.

In its backgrounder, CIC explained:

The existing IIP is of limited economic benefit to Canada. There is very little “new” money coming into Canada. Almost all initial investments made through the program come from loans from Canadian banks to provincial governments.

The amount of IIP capital actively invested in economic development initiatives has been disappointing. The requirement for provinces to guarantee repayment of IIP investments after five years limits their ability to invest funds into more high-risk initiatives that tend to reap greater rewards for Canada in terms of true innovation and job creation. Fifteen years after provinces and territories were factored into the equation, less than half of the funds are actively invested.

By doing away with the current IIP and EN programs, the government will “pave the way for new pilot programs that will actually meet Canada’s labour market and economic needs.” These pilot programs will enable Canada to remain competitive in the global economy.

CIC mentioned that the pilot programs will complement the Start-Up Visa program, a former pilot program that is now a permanent part of Canada’s immigration system. Two programs have already been mentioned as replacements for the IIP and EN streams. One will be a new Immigrant Investor Venture Capital Fund and the other a new Business Skills Program.

Details of the new pilots will be announced in the coming months.

The Canadian province of Québec manages its own Investor Program, which requires net assets of at least CAD $1.6 million legally acquired, management experience, and a no-interest loan of CAD $800,000 made to Québec for a five-year period. The Québec Investor Program remains open to French-speaking applicants who have an advanced intermediate level of French as evidenced by a recognized French test.

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  1. Firm In The News

Cyrus Mehta chaired the PLI Immigration Basics 2014 seminar on March 13, 2014. The webcast is available at http://www.pli.edu/Content/Seminar/Basic_Immigration_Law_2014/_/N-4kZ1z12eu2?ID=178427.

David Isaacson was a panelist at the same PLO Seminar where he spole on “Inadmissibility and Removal Grounds and Procedures.”

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March 2014 Immigration Update

Headlines:

1.         State Dept. Announces J-1 On-Site Inspections – DOS plans to conduct on-site inspections of J-1 internships and training programs.

2.         State Dept. Predicts Visa Availability in the Coming Months; Visa Bulletin Moved  The Department of State’s Visa Office has estimated visa availability in the coming months. Also, DOS has reorganized its website, moving the Visa Bulletin.

3.         DOL Adds Q&A to FAQ Re Notification and Consideration of Laid-Off U.S. Workers for PERM Labor Certification Applications An employer must make a reasonable, good-faith effort to notify each potentially qualified U.S. worker who has been laid off during the six months preceding a PERM application whenever a relevant job opening exists, and invite the worker to apply.

4.         USCIS Releases Fact Sheet on Correcting Immigration Records After E-Verify Tentative Nonconfirmations  Correcting inaccuracies in immigration records can prevent future TNCs.

5.         Third Circuit Rules That H-2B Regulation on Minimum Wage Is Valid  Among other things, the court noted that the Department of Labor is not required to consider employer hardship but instead must balance the interests of ensuring an adequate labor force with protecting the jobs of U.S. workers.

6.         DOL Administrative Review Board Partly Affirms ALJ’s Decision in H-1B Wage Complaint  The ARB ordered Greater Missouri Medical Pro-Care Providers, Inc., to pay thousands in back wages to 29
H-1B workers for various violations.

7.         ICE Releases SEVP Guidance on Errors in Denials of STEM OPT Extensions  If a student’s OPT STEM application was denied solely on the basis that he or she intended to work as a volunteer or unpaid intern, the student should contact the Service Center that issued the denial.

8.         Grand Jury Indicts North Carolina Company for Visa Fraud Scheme  International Labor Management Corporation was indicted for alleged fraud in preparing and submitting petitions on behalf of client companies to the U.S. government for temporary workers under the H-2B visa program and the H-2A agricultural visa program.

9.         USCIS Revises Naturalization Application  Applicants may use previous versions of the form until May 5, 2014.

10.       Firm In The News

Details:

1.         State Dept. Announces J-1 On-Site Inspections

The Department of State recently emailed J-1 exchange visitor sponsors to announce that it plans to conduct on-site inspections of J-1 internships and training programs. The visits may be both planned and unannounced. J-1 inspectors may want to speak with responsible officers, supervisors, employees, trainees, and interns, and to inspect facilities, housing, and health insurance arrangements. Inspectors also may review signed Forms DS-7002, Training/Internship Placement Plan, for interns or trainees.

The Alliance of Business Immigration Lawyers (ABIL) recommends that clients contact their ABIL attorneys for advice in specific situations.

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2.         State Dept. Predicts Visa Availability in the Coming Months; Visa Bulletin Moved

Visa availability. In the Visa Bulletin for March 2014, the Department of State’s Visa Office makes the following estimates of visa availability in the coming months:

EMPLOYMENT-based categories (potential monthly movement)

Employment First: Current

Employment Second:

Worldwide: Current

China: Three to five weeks

India: No forward movement

Employment Third:

Worldwide: This cut-off date has been advanced over four and one half years since last spring in an effort to generate new demand. After such a rapid advance of a cut-off date applicant demand for number use, particularly for adjustment of status cases, can be expected to increase significantly. Once such demand begins to materialize at a greater rate it could have a significant impact on this cut-off date situation. Little if any forward movement of this cut-off date is likely during the next few months.

China: Will remain at the worldwide date

India: Little if any movement

Mexico: Will remain at the worldwide date

Philippines: Three to six weeks

Employment Fourth: Current

Employment Fifth: Current

The above projections for theЙEmployment categories are for what is likely to happen during each of the next several months based on current applicant demand patterns. Readers should never assume that recent trends in cut-off date movements are guaranteed for the future, or that “corrective” action will not be required at some point in an effort to maintain number use within the applicable annual limits. The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables. Unless indicated, those categories with a “Current” projection will remain so for the foreseeable future.

The Visa Bulletin for March 2014 is available at http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2014/visa-bulletin-for-march-2014.html.

Visa Bulletin moved. The Department of State has redesigned and reorganized its website at http://www.travel.state.gov. The Visa Bulletin is now found under “Law and Policy” in the Visas section of the website. Visitors to the website have several ways to access the Visa Bulletin.

From the homepage

  •  Click on the link for usvisas.state.gov, located on the upper right side of the main graphic, or the link “U.S. Visas” located at the bottom of the page. These links will take you to the Visas section of the website.
  • Once in the Visas section, scroll down the page to the “We Want You to Know” section.
  • Click on the icon, “Check the Visa Bulletin,” or click on the link for the Visa Bulletin in the Law and Policy box.
  • Alternately, once in the Visas section of the website, hover over the “Immigrate” icon along the top of the page. A drop-down menu will appear with a link to the Visa Bulletin.

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3.         DOL Adds Q&A to FAQ Re Notification and Consideration of Laid-Off U.S. Workers for PERM Labor Certification Applications

The Department of Labor’s Employment and Training Administration has added a new question and answer (Q&A) to its frequently asked questions (FAQ). The new Q&A concerns notification and consideration of laid-off U.S. workers for PERM labor certification applications. 

The new Q&A asks, “How does an employer demonstrate that it notified and considered laid-off U.S. workers for the job opportunity listed on the ETA Form 9089?” The answer notes that some employers have misconstrued the regulations to require only that they inform workers when laid off that the employer may have future positions and inviting the worker to monitor the employer’s job postings and apply, rather than their actively notifying and considering the laid-off workers. In fact, the Q&A notes, misapplication of the regulatory requirements will result in denial of a PERM application. The employer must make a reasonable, good-faith effort to notify each potentially qualified worker who has been laid off during the six months preceding the application whenever a relevant job opening exists and invite the worker to apply. 

The Q&A notes that an employer who files multiple labor certifications can satisfy its responsibilities under the relevant regulation by notifying each laid-off worker (in the manner chosen by the worker) at least once a month that a list of current relevant job openings is maintained electronically on a website operated by the employer. “Simply informing a laid-off worker to monitor the employer’s website for future openings and inviting the worker, if interested, to apply for those openings, will not satisfy the employer’s regulatory obligation to notify all of its potentially qualified laid-off U.S. workers of the job opportunity,” the Q&A states.

The Q&A adds that an employer must maintain documentation showing that it has met its notice and consideration requirements, including copies of all relevant letters, e-mails, faxes, Web pages (including those listing details of the relevant job openings and applications by laid-off workers for those openings), and other contemporaneous documents that show when and how notice and consideration was given. In addition, an employer must obtain and maintain written documentation that a laid-off worker has declined to receive notices, requested discontinuation of the notices, or refused to give or update contact information.

The new Q&A is available at http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#recrep2.

For a commentary, See DOL POLICY ON LAID-OFF U.S. WORKERS FOR PERM LABOR CERTIFICATION APPLICATIONS, by Cyrus D. Mehta, available at http://blog.cyrusmehta.com/2014/02/dol-policy-on-laid-off-us-workers-for.html

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4.        USCIS Releases Fact Sheet on Correcting Immigration Records After E-Verify Tentative Nonconfirmations

U.S. Citizenship and Immigration Services (USCIS) has released a fact sheet on how to correct immigration records after resolving a Tentative Nonconfirmation (TNC) in E-Verify. USCIS noted that an employer may receive a TNC because immigration records are inaccurate. Correcting them can prevent future TNCs.

The fact sheet, which includes several ways immigration records can be corrected, is available at http://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/FactSheet-How-to-correct-your-immigration-records.pdf.

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5.         Third Circuit Rules That H-2B Regulation on Minimum Wage Is Valid

The U.S. Court of Appeals for the Third Circuit ruled February 5, 2014, that a Department of Labor (DOL) regulation on the minimum wage required under the H-2B temporary worker visa program was validly promulgated.

The appellants were a group of associations representing employers in nonagricultural industries. Joining them was another group of individuals and organizations representing foreign and U.S. workers affected by the H-2B program who had successfully challenged a predecessor to the current regulation. The appellants argued that the DOL exceeded its authority by enacting the regulation, which governs the calculation of the minimum wage a U.S. employer must offer to recruit foreign workers under the H-2B program. The employers stood to face higher labor costs as a result of the regulation. The District Court granted summary judgment for the DOL and its codefendants (the Secretary of Labor, the Department of Homeland Security (DHS), and the Secretary of Homeland Security).

Among other things, the court noted that the DOL is not required to consider employer hardship but instead must balance the interests of ensuring an adequate labor force with protecting the jobs of U.S. workers. The court also disagreed with appellants’ contention that the DOL must use a four-tier wage methodology from the H-1B program as the prevailing wage calculation mechanism in the H-2B program. The court found the actions of the DOL and DHS reasonable with respect to application of their respective authorities regarding the H-2B program and what constitutes permissible consultation between agencies. The court also noted that the DOL promulgated the wage rule after “reasoned analysis,” which is required. The court noted that the DOL had discussed the 300 comments submitted in an entire section of the final rule.

The related regulations and litigation have a complicated history that is summarized in the Third Circuit’s decision. Among other things, the effective date of the 2011 regulation was moved forward and backward, and its implementation was defunded by Congress. As a result, the DOL fell back on an earlier 2008 rule that a district court had found procedurally invalid. That court had ordered the DOL to vacate the earlier rule and come into compliance. The DOL issued a final interim rule in April 2013, effective immediately, which made some changes to the 2011 rule. Congress later lifted the appropriations ban on the 2011 rule as of January 17, 2014.

The regulation recently declared valid by the Third Circuit was published at 76 Fed. Reg. 3452 (Jan. 19, 2011) (20 C.F.R. § 655.10), available at https://www.federalregister.gov/articles/2011/01/19/2011-1117/wage-methodology-for-the-temporary-non-agricultural-employment-h-2b-program. The decision, Louisiana Forestry Association v. Secretary of Labor, is available at http://www.splcenter.org/sites/default/files/downloads/case/third_circuit_decision_in_louisiana_forestry.pdf. Additional litigation continues regarding whether the DOL has the authority to issue supplemental prevailing wage determinations under the 2013 interim final rule.

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6.  DOL Administrative Review Board Partly Affirms ALJ’s Decision in H-1B Wage Complaint

In a recent case decided by the Department of Labor’s Administrative Review Board (ARB) on January 29, 2014, the ARB affirmed an administrative law judge’s (ALJ) finding that the scope of a Wage and Hour Division investigation initiated in response to a complaint is not limited to the allegations in that complaint. The ARB also affirmed the ALJ’s evidentiary ruling on the availability of pre- and post-judgment interest on awards in H-1B cases. The ARB reversed the ALJ’s finding that discrete violations occurring outside a 12-month period before the filing of a complaint are actionable. The deputy chief administrative appeals judge concurred in part and dissented in part, agreeing with the majority’s ruling in the case of the initial complainant but dissenting from the majority’s ruling in all other respects.

The ARB ordered Greater Missouri Medical Pro-Care Providers, Inc., to pay thousands of dollars in back wages for various violations to 29 H-1B workers. The case started when an H-1B nonimmigrant employee filed a complaint in 2006 alleging that Greater Missouri failed to pay her the required wages under its labor condition application for time off due to a decision by the employer, had illegally made deductions from her wages, and had required her to pay an illegal penalty for stopping work before an agreed-upon date.

The decision is available at http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/LCA/12_015.LCAP.PDF.

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7.   ICE Releases SEVP Guidance on Errors in Denials of STEM OPT Extensions

U.S. Citizenship and Immigration Services (USCIS) announced on February 6, 2014, that some optional practical training (OPT) science, technology, engineering and math (STEM) extension applications were denied in error. USCIS said they were not adjudicated in accordance with applicable Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) OPT policy guidance. USCIS sent the alert to notify affected designated school officials and to provide instructions.

USCIS said that some OPT STEM extension applications were denied in error because the student applicants intended to work as volunteers or unpaid interns during their extension periods. To prevent this problem from happening again, USCIS’s Service Center Operations (SCOPS) instructed all USCIS Service Centers to follow ICE SEVP’s policy guidance regarding work as a volunteer or unpaid intern.

The alert notes that SEVP’s OPT 2010 policy guidance states that a student may work as a volunteer or unpaid intern for at least 20 hours per week. The alert says that if a student’s OPT STEM application was denied solely on the basis that he or she intended to work as a volunteer or unpaid intern, the student should contact the Service Center that issued the denial by emailing the applicable dedicated student emailbox. The student should provide his or her full name and the USCIS receipt number relating to the denied application. The email addresses are:

California Service Center: CSC.StudentEAD@uscis.dhs.gov

Vermont Service Center: VSC.Schools@uscis.dhs.gov

Texas Service Center: TSC.Schools@uscis.dhs.gov

Nebraska Service Center: NSC.Schools@uscis.dhs.gov

The alert is available at http://www.kidambi.com/resources/OPT_Volunteer.pdf.

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8.       Grand Jury Indicts North Carolina Company for Visa Fraud Scheme

A grand jury recently indicted International Labor Management Corporation (ILMC) of North Carolina on 41 counts relating to visa fraud. ILMC was in the business of preparing and submitting petitions on behalf of client companies to the U.S. government for temporary workers under the H-2B visa program and the H-2A agricultural visa program.

Among other things, the indictment alleges that the ILMC owners falsely petitioned for and obtained extra H-2B visas beyond the actual needs of their client employers to create pools of extra visas. This pool allowed employers who could not otherwise obtain H-2B visas due to the cap to use them to bring workers into the United States under the pretense that they were going to work for the employer for whom the H-2B visas had been approved, and by allowing ILMC to obtain H-2B visas before the cap was reached using inaccurate start dates, thereby denying such H-2B visas to other employers or competing agents. The ILMC owners then used those workers who entered the United States under false pretenses for other employers or otherwise to benefit themselves. In some cases, they agreed with a client to create fictitious companies for this purpose. An ILMC owner also instructed at least one client employer to obtain temporary workers by falsely claiming that such workers were needed for H-2A agricultural work, to avoid the H-2B cap.

The indictment is available at http://www.wral.com/asset/news/local/2014/02/04/13358381/ILMC_indictment.pdf.

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9.      USCIS Revises Naturalization Application

As part of its forms improvement initiative, U.S. Citizenship and Immigration Services (USCIS) released a revised Form N-400, Application for Naturalization, on February 4, 2014. The eligibility requirements for naturalization have not changed.

The revised N-400 includes additional questions relating to good moral character and to security, to conform with the Intelligence Reform and Terrorism Prevention Act of 2004 and the Child Soldier Prevention Act of 2008; “clearer and more comprehensive” instructions that highlight general eligibility requirements and provide specifics on how to complete each part of the application; and 2D barcode technology at the bottom of each page to enable USCIS to scan data for direct input into USCIS systems.

Applicants may use previous versions of the form until May 5, 2014, at which time USCIS will begin rejecting and returning previous versions of the N-400.

USCIS will hold a stakeholder engagement on February 20, 2014, about the revised form. For more information on the teleconference, see http://www.uscis.gov/outreach/revised-form-n-400-application-naturalization.

The announcement, which includes a link to a related video, is available at http://www.uscis.gov/news/alerts/uscis-revises-form-n-400-application-naturalization. The revised form is at http://www.uscis.gov/n-400. Information on USCIS’s forms improvement initiative is available at http://www.uscis.gov/forms/forms-updates/uscis-form-improvements-initiative.

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10.    Firm In The News

Cora-Ann V. Pestaina was a Speaker on the panel of Business Visas, at the AILA NY-Chapter monthly meeting on February 26, 2014.

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