April 2012 Immigration Update
Headlines:
1. FY 2013 H-1B Filing Season Begins – Beginning on April 2, 2012, employers may file cap-subject H-1B petitions for FY 2013, for employment starting on October 1, 2012, or later.
2. Department of State Amends Fees for Consular Services – The Department issued an interim final rule increasing fees for consular services for nonimmigrant visa applications, border crossing card applications, and immigrant visa applications.
3. Visa Interview Waiver Pilot Program Expanded to New Delhi, India – The pilot program permits consular officers to waive interviews for qualified nonimmigrant applicants worldwide who are renewing their B-1/B-2 visas within 48 months of the expiration of their previously held visa, and within the same classification as the previous visa.
4. India, China EB-2 Category Expected To Retrogress Soon – The Visa Office is predicting a retrogression of priority dates in the India and China EB-2 category to a 2007 priority date, effective in the May or June Visa Bulletin.
5. USCIS Seeks Public Comment on Revisions to I-9 Employment Eligibility Verification Form – The comment period ends on May 29, 2012.
6. Brazilian Worker Loses Claim of National Origin Discrimination, Retaliation – The judge said USCIS’s errors constituted “a litany of incompetence that presents [a] fundamental misreading of the record, relevant sources, and the point of the entire petition.”
7. Business Organizations Send Letter on L-1 Issues to Obama Administration – A significant concern, the letter notes, is that an “inconsistent and improperly narrowed” definition of specialized knowledge is being used to determine which employees qualify for L-1B status.
8. CBP Expands Global Entry to Additional Airports – By September 22, 2012, Global Entry will be implemented at St. Paul International Airport, Charlotte Douglas International Airport, Phoenix Sky Harbor International Airport, and Denver International Airport, in addition to the 20 other airports listed.
9. DOL Issues Guidance on Transition Period for Changes to H-2B Temporary Nonagricultural Labor Certification Process – DOL issued the guidance following publication of its final rule on February 21, 2012, amending and creating H-2B regulations.
10. Syria Designated for Temporary Protected Status, DHS Announces – The TPS designation and the registration period both run from March 29, 2012, through September 30, 2013.
11. Eleventh Circuit Blocks Additional Portions of Alabama Immigration Law – The court ruled that Alabama may not enforce provisions barring undocumented people in Alabama from obtaining a driver’s license and barring courts from enforcing contracts involving the undocumented, pending a challenge to the law by the Obama administration.
12. USCIS Releases Guidance on Maximum Period of Stay for Nonimmigrant Religious Workers – The memo outlines the procedure to be used for “recapturing” time spent outside the United States by R-1 nonimmigrants when seeking an extension of their R nonimmigrant status, and discusses the concept of recapturing for nonimmigrants.
13. Labor Dept. Announces 2012 Allowable Charges for Temporary Agricultural Workers’ Meals, Lodging, Travel; Farm Labor Survey Now Semi-Annual – The Department announced allowable charges for 2012 that employers seeking H-2A workers may charge their workers when the employer provides three meals per day, and clarified overnight lodging costs as part of required subsistence.
14. USCIS Grants Temporary Extension of Accommodation for H-2A Sheepherders – USCIS will require H-2A sheepherders who have reached their maximum three-year period of stay to depart the United States by August 16, 2012, and remain outside the country for at least three months before petitioning for H-2A classification again.
15. ABIL Global: South Africa – Significant amendments to the Refugees Act and the Immigration Act, 2002, are expected; among other things, applying to change a visitor permit to a work or medical permit will be prohibited. Also, those wishing to work in South Africa for longer than three months must obtain an appropriate permit.
16. Firm In The News…
Details:
1. FY 2013 H-1B Filing Season Begins
Beginning on Monday, April 2, 2012, employers may file cap-subject H-1B petitions for fiscal year (FY) 2013, for employment starting on October 1, 2012, or later.
On November 22, 2011, U.S. Citizenship and Immigration Services (USCIS) received a sufficient number of petitions to reach the statutory cap for FY 2012. USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption as of October 19, 2011. With the improving economy, H-1B numbers could run out faster this year. CDMA recommends that employers file early and allow time for the labor condition application process. Contact our firm now for guidance and help with the process.
2. Department of State Amends Fees for Consular Services
The Department of State has issued an interim final rule amending the schedule of fees for consular services for nonimmigrant visa applications, border crossing card applications, and immigrant visa applications.
The rule increases from $140 to $160 the fee for processing most non-petition-based nonimmigrant visas (machine-readable visas, or MRVs) and border crossing cards (BCCs) for Mexican citizens 15 years of age and above. The rule also amends application processing fees for certain categories of petition-based nonimmigrant visas and treaty trader and investor visas (all of which are also MRVs), and amends tiered application processing fees for immigrant visas. Finally, the rule increases from $14 to $15 the BCC fee charged to Mexican citizen minors who apply in Mexico, and whose parent or guardian already has a BCC or is applying for one, based on a congressionally mandated surcharge.
The interim final rule is effective April 13, 2012. Written comments must be received on or before May 29, 2012.
3. Visa Interview Waiver Pilot Program Expanded to New Delhi, India
The U.S. Embassy in New Delhi, India, announced that the Visa Interview Waiver Pilot Program has been expanded to that post, effective immediately. Under the program, certain qualified foreign visitors who were interviewed and screened in conjunction with a previous visa application may be eligible to renew their visas without undergoing another interview.
The embassy explained that the pilot program permits consular officers to waive interviews for qualified nonimmigrant applicants worldwide who are renewing their B-1/B-2 visas within 48 months of the expiration of their previously held visa, and within the same classification as the previous visa. The pilot does not entitle any applicant to a waiver of personal appearance. Consular officers retain the authority to interview any applicant whom they determine requires a personal appearance.
The announcement.
Additional details on qualifying for an interview waiver.
4. India, China EB-2 Category Expected To Retrogress Soon
The State DepartmentХs Visa Bulletin for April did not continue the dramatic forward movement of India and China EB-2 priority dates that has been observed for the past several months. The Alliance of Business Immigration Lawyers has also learned that the Visa Office is predicting a retrogression of priority dates in the India and China EB-2 category to a 2007 priority date, effective in the May or June Visa Bulletin.
For the month of April, the India and China EB-2 category remains steady at May 1, 2010. For May, the Visa Office recently announced that the priority date will retrogress, or be set earlier, possibly as early as August 2007. Priority dates are not expected to advance again until October 1, 2012, at the earliest, when the new fiscal year begins.
If an I-485 Application for Adjustment of Status is filed while the personХs priority date is current, it will remain pending until the priority date is current again. Because the I-485 will remain pending, the applicant can continue to apply for interim benefits, such as work authorization and advance parole, while the priority date is retrogressed.
CDMA recommends that anyone with a priority date before March 2010 who is eligible to apply for adjustment of status do so immediately, because the opportunity to file such applications will likely end by May 1, 2012, and will not return until at least October 1, 2012 (and possibly much later). Contact our firm for assistance.
5. USCIS Seeks Public Comment on Revisions to I-9 Employment Eligibility Verification Form
U.S. Citizenship and Immigration Services (USCIS) invites public comment until May 29, 2012, on a revised employment eligibility verification form (I-9). Employers must complete the I-9 for all newly hired employees to verify their identity and authorization to work in the United States.
Key revisions to the form include:
- Expanded instructions and a revised layout.
- New, optional data fields to collect the employee’s e-mail address and telephone number.
- New data fields to collect the foreign passport number and country of issuance. Only those authorized to work in the U.S. who have also recorded their I-94 admission number on the I-9 will need to provide the foreign passport number and country of issuance.
Until a new version is approved and posted, employers must continue to use the current version of the I-9 form.
The USCIS notice linking to new I-9 draft version .
6. Brazilian Worker Loses Claim of National Origin Discrimination, Retaliation
In Guimaraes v. SuperValu, Inc., the U.S. Court of Appeals for the Eighth Circuit affirmed the judgment of the district court dismissing with prejudice a worker’s lawsuit against her former employer, SuperValu, Inc., for national origin discrimination and retaliation.
The plaintiff, Katia Agiuiar Guimaraes, has dual Brazilian and Canadian citizenship. She speaks English with an accent and her native language is Portuguese, the court noted. Her position changed and her new supervisor, Lisa Delia Bautista Grubbs, from Mexico, began to identify performance problems. A performance plan and mediation efforts by SuperValu were unsuccessful and Ms. Guimaraes was fired and subsequently filed suit. Ms. Grubbs never referred to Ms. Guimaraes’ Brazilian origin or mocked her accent, but Ms. Guimaraes alleged national origin discrimination, stating among other things that Ms. Grubbs asked her to repeat herself and to repeat Ms. Grubbs’ instructions to Ms. Guimaraes. Ms. Guimaraes also alleged that she heard that Ms. Grubbs had told someone else that she intended to try and have Ms. Guimaraes fired and to prevent her from getting a green card.
Among other things, the court found that Ms. Guimaraes did not present sufficient evidence to find that SuperValu’s legitimate nondiscriminatory reason for her termination Р her performance Р was a pretext for retaliation in violation of the law. The court noted that Ms. Guimaraes had not shown that Ms. Grubbs was “targeting” her because of her national origin. Examining the evidence as a whole, the court noted that a reasonable jury could find that Ms. Grubbs targeted her for any of these reasons: because of a personality conflict, because Ms. Guimaraes critiqued Ms. Grubbs’ management style, because Ms. Grubbs honestly did not believe Ms. Guimaraes was competent, or even because Ms. Guimaraes was trying to get a green card. None of these reasons violates the law. The court noted, quoting earlier decisions, that the employment discrimination laws “have not vested in the federal courts the authority to sit as super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination.”
7. Business Organizations Send Letter on L-1 Issues to Obama Administration
Sixty-four business organizations signed a letter on L-1 legal and policy issues sent on March 22, 2012, to President Obama and the Secretaries of Commerce, Homeland Security, and State. New proposed L-1 guidance is anticipated from U.S. Citizenship and Immigration Services.
Among other things, the letter notes that it has become increasingly difficult for companies to procure visas to transfer existing employees in the United States to continue work. A significant concern, the letter notes, is that an “inconsistent and improperly narrowed” definition of specialized knowledge is being used to determine which employees qualify for L-1B status. When visas for key staff already employed in an organization are inexplicably delayed or denied, such delays or denials do not enhance compliance or enforcement and “do nothing except disrupt carefully laid business plans and create significant costs to the company and the American economy,” the letter states.
8. CBP Expands Global Entry to Additional Airports
U.S. Customs and Border Protection (CBP) is adding four airports to the list of 20 participating major U.S. airports in the Global Entry international trusted traveler program. Global Entry allows pre-approved, low-risk participants expedited entry into the United States using Global Entry kiosks located at designated airports. The program is intended for frequent international travelers, but there is no minimum number of trips to qualify.
By September 22, 2012, Global Entry will be implemented at St. Paul International Airport (Minnesota), Charlotte Douglas International Airport (North Carolina), Phoenix Sky Harbor International Airport (Arizona), and Denver International Airport (Colorado), in addition to the 20 other airports listed in the notice.
9. DOL Issues Guidance on Transition Period for Changes to H-2B Temporary Nonagricultural Labor Certification Process
The Department of Labor (DOL) has issued guidance to provide transition procedures to ensure that employers filing H-2B applications on or after April 23, 2012, have sufficient information to file appropriately. DOL issued the guidance following publication of its final rule on February 21, 2012, amending and creating H-2B regulations.
The H-2B final rule becomes effective on April 23, 2012.
10. Syria Designated for Temporary Protected Status, DHS Announces
The Department of Homeland Security has designated Syria for temporary protected status (TPS) for a period of 18 months, effective March 29, 2012, through September 30, 2013. The registration period also runs from March 29, 2012, through September 30, 2013. The designation allows eligible Syrian nationals (and those having no nationality who last habitually resided in Syria) who have both continuously resided in and been continuously physically present in the United States since March 29, 2012, to be granted TPS.
The notice explains that TPS was designated for Syria because of “extraordinary and temporary conditions” in that country that prevent Syrian nationals from returning in safety. Among other things, the notice states that President Bashar al-Assad “used the military to suppress the [citizen protest] movement, and the Syrian Arab Republic Government launched a brutal crackdown, violently repressing and killing thousands of its own civilians.” The notice states that this activity continues, including “arbitrary executions, killing and persecution of protestors and members of the media, arbitrary detention, disappearances, torture, and ill-treatment.” There are also reports of attacks on and arrests of medical doctors treating wounded members of the opposition.
A related U.S. Citizenship and Immigration Services press release.
11. Eleventh Circuit Blocks Additional Portions of Alabama Immigration Law
The U.S. Court of Appeals for the Eleventh Circuit has included additional provisions of a controversial Alabama immigration law in its injunction. The court ruled that Alabama may not enforce provisions barring undocumented people in Alabama from obtaining a driver’s license and barring courts from enforcing contracts involving the undocumented, pending a challenge to the law by the Obama administration. The administration argues that immigration law and regulation is a federal responsibility. In October, the court prevented Alabama from criminalizing the failure to carry documents evidencing legal resident status and requiring schools to check children’s immigration status when they enroll.
Alabama’s attorney general, Luther Strange, reportedly said that he hopes that “the Supreme Court’s coming decision in [a similar case from Arizona] will make clear that our law is constitutional.”
The Southern Poverty Law Center (SPLC) noted that several of the bill’s cosponsors conflated the growth in Alabama’s Hispanic population with growth in “illegal immigrants.” SPLC quoted a judge’s decision in December citing lawmakers’ comments such as their having visited a poultry plant and seen “4-foot Mexicans in there catching them chickens.” SPLC’s article on the law are available at http://www.splcenter.org/get-informed/news/court-cites-discriminatory-intent-behind-alabamas-anti-immigrant-law. An SPLC report, “Alabama’s Shame: HB 56 and the War on Immigrants,” recounts several of the thousands of stories received on its hotline for residents established shortly after the law took effect, including accounts of its impact on legal immigrants and even U.S. citizens. The report is available at http://www.splcenter.org/alabamas-shame-hb56-and-the-war-on-immigrants.
12. USCIS Releases Guidance on Maximum Period of Stay for Nonimmigrant Religious Workers
U.S. Citizenship and Immigration Services released a policy memorandum on March 8, 2012, for Immigration Service Officers who adjudicate religious worker (R-1) nonimmigrant petitions for those coming to the United States temporarily to perform religious work, and their dependents. The memo outlines the procedure to be used for “recapturing” time spent outside the United States by R-1 nonimmigrants when seeking an extension of their R nonimmigrant status. The guidance applies to all R-1 petitions seeking to recapture time that are currently pending with USCIS or to new petitions filed on or after March 8, 2012.
“Recapturing” is used in the memo as “short-hand” for the period of time spent outside the United States that the worker seeks to have subtracted from his or her maximum period of stay in R-1 status, to have that period of time added back (“recaptured”) when he or she requests an extension of R-1 status.
USCIS explained that the R-1 nonimmigrant classification is for those seeking to enter the United States for a period not to exceed five years solely to work as a minister or in a qualifying religious occupation or vocation. In calculating the five-year maximum period of stay, USCIS has not subtracted time in which the R-1 religious worker was traveling or residing outside of the United States following his or her initial admission in R-1 status.
USCIS noted that certain nonimmigrants who have spent the maximum period of stay authorized by their nonimmigrant classification are prohibited from having a new petition in the same status filed on their behalf until they have remained outside of the United States for a specific period of time (also known as a “limitation on admission” or “limitation on total stay”). Currently, USCIS policy guidance provides that H-1B and L-1 nonimmigrants and their dependents may recapture time spent outside of the United States when calculating their maximum period of authorized stay. USCIS said the policy of allowing recapture is intended to permit a qualifying nonimmigrant to spend the maximum permitted period of time allowed by his or her classification in the United States before he or she must spend a specific period outside of the United States to file a new petition for the same status.
USCIS said it has determined that extending the recapture policy to the R-1 nonimmigrant classification is “appropriate, and that such a policy is consistent with R-1 statutory and regulatory language and the purpose and intent of the R-1 visa classification.” USCIS has further determined that the spouse or minor child of a principal who recaptures periods of time spent outside the United States toward an extension of R-1 status may receive periods of R-2 stay coextensive with that of the principal.
The USCIS memo may be an effort to settle or moot a class action lawsuit filed earlier this year that challenged the agency’s prior refusal to allow R-1 religious workers to recapture time spent out of the United States. See Society of the Divine Word v. Napolitano (N.D. Ill. filed Jan. 3, 2012).
13. Labor Dept. Announces 2012 Allowable Charges for Temporary Agricultural Workers’ Meals, Lodging, Travel; Farm Labor Survey Now Semi-Annual
On March 2, 2012, the Department of Labor’s Employment and Training Administration announced allowable charges for 2012 that employers seeking H-2A agricultural workers may charge their workers when the employer provides three meals per day, and the maximum meal reimbursement a worker with receipts may claim. The Department also clarified overnight lodging costs as part of required subsistence.
Among the minimum benefits and working conditions 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 notice states that the maximum allowable charge an employer may impose for providing three meals per day is $11.13, unless the Office of Foreign Labor Certification’s Certifying Officer approves a higher charge as authorized under the regulations.
The Department noted that the employer is responsible for providing, paying in advance, or reimbursing a worker for the reasonable costs of transportation and daily subsistence between the employer’s worksite and the place from which the worker comes to work for the employer, if the worker completes 50 percent of the work contract period, and return costs if a worker completes the contract. If a worker must travel to obtain a visa so that the worker may enter the United States to come to work for the employer, the employer must pay for the transportation and daily subsistence costs of that part of the travel as well. The Department said it has traditionally interpreted the regulations to require 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 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. 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 the employer is responsible for return transportation and subsistence costs, including lodging costs where necessary, if the worker completes the contract. This policy applies equally to instances where the worker is traveling within the United States to the employer’s worksite.
The notice, which gives additional details and specifics on these amounts and how they are calculated, is available at http://www.gpo.gov/fdsys/pkg/FR-2012-03-02/pdf/2012-5243.pdf.
The Labor Department also published a notice on the same day about a “non-material change” to the farm labor survey used in determining adverse effect wage rates (AEWRs). Specifically, beginning in 2012, the farm labor survey will be conducted semi-annually instead of quarterly. The U.S. Department of Agriculture’s National Agricultural Statistics Service will continue to collect data quarterly but will only survey establishments twice a year. The farm labor survey will remain the basis of the AEWR.
That notice is available at http://www.gpo.gov/fdsys/pkg/FR-2012-03-02/pdf/2012-5201.pdf.
14. USCIS Grants Temporary Extension of Accommodation for H-2A Sheepherders
U.S. Citizenship and Immigration Services (USCIS) announced on March 20, 2012, that it extended an accommodation for H-2A workers in the sheepherding industry to transition to the three-year limitation of stay requirements. USCIS will require H-2A sheepherders who have reached their maximum three-year period of stay to leave the United States by August 16, 2012, and remain outside the country for at least three months before petitioning for H-2A classification again.
The H-2A program allows U.S. employers to bring foreign nationals to the United States to fill temporary agricultural jobs. H-2A nonimmigrant workers are subject to a three-month departure requirement once they have been in the United States in H-2A status for a maximum three-year period.
USCIS announced its limitation of stay requirements under a final rule that became effective on January 17, 2009. The agency granted an accommodation for H-2A sheepherders in December 2009 in deference to prior practice exempting them from the three-year limitation.
Some petitioners may have had a Form I-129, Petition for a Nonimmigrant Worker, denied solely on the basis that the H-2A sheepherder had exceeded the three-year limitation of stay. Affected petitioners may request that USCIS reopen these cases on a Service Motion by e-mail to csc-ncsc-followup@dhs.gov. (Include “H-2A Sheepherder Service Motion Request” in the subject line.)
USCIS will only review denials for which it has received a written request. Such requests will be accepted through April 20, 2012. No fee is required. If a petition was previously denied on other grounds in addition to limitation of stay issues, USCIS will not review the case through a written request.
- ABIL Global: South Africa
Significant amendments to the Refugees Act and the Immigration Act, 2002, are expected; among other things, applying to change a visitor permit to a work or medical permit will be prohibited. Also, those wishing to work in South Africa for longer than three months must obtain an appropriate permit.
Pending Changes to the Work Permit Regime
Outside of refugee movements (which are regulated by the Refugees Act), immigration in South Africa is regulated by the Immigration Act, 2002, and the regulations to that Act. Two significant amendments to each of these Acts are expected. The Department of Home Affairs is revising the regulatory regime underpinning these Acts. These amendments may come into operation in the second quarter of 2012 or possibly as soon as the end of April 2012.
While the provisions of the Amendment Acts are obviously known, the Department tends not to reveal in advance what is coming in the regulations and is not required to engage stakeholders on their content. In some critical ways, it is impossible to understand the Amendment Acts before we have seen the new regulations.
One issue that will affect the deployment of staff to South Africa is, however, quite clear. Under the current Act (and even its predecessor), it is entirely lawful for an expatriate employee to travel to South Africa immediately to take up a post, particularly if he or she is the holder of a visa-exempt passport. The employee would enter the country as a visitor and then apply from inside the country for the appropriate work or transfer permit. Even if his or her visitor permit had expired before the main application had been adjudicated and approved, in practice the Department’s receipt for the application would serve as a de facto permit to remain in the country. It would not be a de facto “interim” work permit, however.
The new Act expressly provides that, from whenever it comes into operation, a person cannot travel into the Republic as a “visitor” and then, within a week or several, apply for a work permit. Travelling with one’s family and seeking study permits, or similar activities, would be a dead giveaway as to intent. The new Act reasons that to say that one is entering the country on the basis of being a visitor when he or she knows that the real purpose is to take up a position constitutes misleading the Department and entering on the basis of misrepresentation. So applying to change a visitor permit to a work permit (or medical permit) will be strictly prohibited. The visitor must instead return to his or her country of ordinary residence (with the family) and apply through the appropriate Embassy for the correct permit.
The new Act provides that “internal” changes of purpose will only be allowed in exceptional circumstances to be defined by the Minister in the new regulations.
Employers should be alert to these changes because a mistake could be a very expensive miscalculation.
Short-Term Deployments to South Africa: No ‘Back Door’ Work Permits
The South African Department of Home Affairs issued a confidential directive in December 2011 that seeks to regulate the issue of short-term work authorizations. It has supplemented that directive in recent weeks with policy guidelines on the same subject. The holders of visa-exempt passports (for example, U.S., Canadian, and European Union (EU) passports) are most affected.
Generally speaking, persons traveling on visa-exempt passports receive a visitor permit that is valid for three months upon arriving at a South African port of entry, unless they already hold some other residence status. It was often not realized that this visitor permit allowed the holder only to visit, not work.
Immigration legislation did, however, allow for persons needing to enter the Republic to work, so long as the work was for no longer than three months. This special category of visitor permit could be obtained upon arrival at a port of entry, so long as the passport was visa-exempt. This type of permit was intended principally for film crews, performing artists, models and support staff, counsel needing to consult with clients, and other such legitimate short-term deployments.
Until recently, the practice had been that upon presentation of a letter from the offshore employer asking for such short-term work authorization, this subcategory of visitor permit would be issued at the port of entry for a period of three months. However, the ease with which this could be done led to considerable abuse. There were instances of people actually working in the Republic on these visitor permits for years by “commuting” home every three months. This, it was thought, allowed the employer to bypass the requirements for an ordinary work permit. The Department of Home Affairs views such practice as immigration fraud.
The new regime has a number of key features. A well-motivated representation must be submitted in writing to the Director General of Home Affairs at least 10 days before the person is scheduled to arrive in South Africa. The Director General must approve the request in writing, and the employee must submit that approval to the port of entry upon arrival. This permit may only be obtained at a port of entry or at an embassy. The permit will not be extended; anyone needing to stay and work for longer than 90 days must instead apply for an appropriate work permit.
- Firm In The News
Cyrus Mehta was Program Chair for Basic Immigration Law 2012, sponsored by the Practising Law Institute and held in New York City on March 15, 2012.
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