1. DHS Inspector General Releases Report on Implementation of L-1 Visa Regulations – Among other things, the report says that more communication between the Departments of Homeland Security and State would improve the processing of blanket L-1 petitions.
2. Special Immigrant Visa Program for Iraqis Set To Expire – Individuals applying under this program, including family members, must be admitted to the United States or adjust their status before October 1, 2013.
3. BALCA Affirms Denial of Labor Cert for Technical Violation in Supervised Recruitment – An employer’s reference to resumes in the file instead of listing the addresses as required was a “wholesale failure to provide an element of a report directly mandated by the regulations.”
4. Labor Dept. Indefinitely Delays H-2B Wage Methodology Final Rule – The interim final rule establishing the current prevailing wage methodology for the H-2B program remains in effect.
5. State Dept. Transitions to Online Immigrant Visa Application – The new online forms replace the paper DS-230 and DS-3032.
6. USCIS To Conduct I-9 Form Study – Following a study to be conducted in September, USCIS plans to propose a revised I-9 form and invite public comment.
7. OSC Discourages Pre-Population of I-9 Forms – Among other things, the OSC noted that pre-population increases the likelihood of including inaccurate or outdated information.
8. OSC Recommends Against Contractor Requiring Subcontractor’s Employees To Produce Original I-9 Documents -This type of scenario could present a number of problems, the OSC warned.
9. State Dept. Releases Cable, FAQ on DOMA -The Department of State recently released a FAQ and a cable to the field, “Next Steps on DOMAСGuidance for Posts.”
10. USCIS Transfers Some Casework Within and Among Service Centers – USCIS recently began transferring some casework within and among service centers to balance workload processing capacity.
11. CBP Expands Global Entry to Republic of Korea, Germany, Qatar, United Kingdom – Global Entry kiosks are available at 34 U.S. airports and 10 CBP preclearance locations in Ireland and Canada that serve 98 percent of all incoming air travelers.
12. ICE SEVP No Longer Mailing Notices of Action for SEVIS Fee Payments – Payment confirmations the user can print from the fee website will replace the I-797C.
13. Eighth Circuit Finds Undocumented Workers Covered Under FLSA – Employers may not exploit undocumented workers’ status or profit from hiring such workers in violation of federal law.
14. India Second Preference Visa Cut-Off Date Advances; Significant New India Demand Expected in Coming Months – The India second preference cut-off date has advanced by more than three years.
15. State Dept. Revises B-2 Nonimmigrant Reciprocity Schedule for Cuba – The Department of State has revised the visa reciprocity schedule for Cuba for B-2 nonimmigrants, changing the validity from 6 months to 60 months.
16. ABIL Global: Mexico – Extensive efforts to reduce backlogs and improve processing time frames are evident eight months after enactment of the new Migration Act.
17. Firm In The News…
1. DHS Inspector General Releases Report on Implementation of L-1 Visa Regulations
On August 9, 2013, the Department of Homeland Security (DHS)’s Office of Inspector General (OIG) released a report containing recommendations aimed at improving the L-1 visa program in response to a request from Sen. Charles Grassley for an examination of the potential for fraud or abuse in the program. The L-1 visa program facilitates the temporary transfer of foreign nationals with management, professional, and specialist skills to the United States. For the report, the OIG observed DHS personnel and Department of State consular officials process L-1 petitions and visas. The OIG also interviewed 71 managers and staff in DHS and the Department of State.
The OIG found that although U.S. Citizenship and Immigration Services regulations and headquarters memoranda provide guidance on the definition of specialized knowledge, they are insufficient to ensure consistent application of L-1 visa program requirements in processing visas and petitions. More communication between DHS and the Department of State would improve the processing of blanket petitions, the report says. The OIG determined that program effectiveness would be improved and risks reduced with additional effort in (1) training for U.S. Customs and Border Protection officers to enable them to fill their L-1 gatekeeper role at the northern land border more effectively; (2) improving internal controls of the fee collection effort at the northern land border; (3) more rigorous consideration of new office petitions to reduce fraud and abuse; (4) providing an adjudicative tool that is accessible to all federal personnel responsible for L-1 decisions; and (5) consistently applying Visa Reform Act anti-“job-shop” provisions to L-1 petitions.
An appendix notes that the top 10 L-1 employers are Tata Consultancy Services Limited, Cognizant Tech Solutions US Corp, IBM India Private Limited, Wipro Limited, Infosys Technologies Limited, Satyam Computer Services Limited, HCL America Inc., Schlumberger Technology Corp., PricewaterhouseCoopers LLP, and Hewlett-Packard Co.
The report, which includes details on the OIG’s recommendations and USCIS’s response, along with appendices containing statistics, is available at http://www.oig.dhs.gov/assets/Mgmt/2013/OIG_13-107_Aug13.pdf.
2. Special Immigrant Visa Program for Iraqis Set To Expire
The Special Immigrant Visa (SIV) program for Iraqi nationals who worked for or on behalf of the U.S. government will expire on September 30, 2013. Individuals applying under this program, including family members, must be admitted to the United States or adjust their statuses before October 1, 2013.
The program covers Iraqi nationals who have been employed by or on behalf of the U.S. government in Iraq for a period of at least one year, from March 20, 2003, to the present. The expiration date also applies to spouses and unmarried child(ren) accompanying or following to join the principal applicants.
As announced at its inception, the Iraqi SIV program will expire on September 30, 2013, at 11:59 p.m. EDT unless Congress extends the program. After September 30, 2013, USCIS will reject any petitions or applications filed based on the Iraqi SIV program. Beginning on October 1, 2013, USCIS will suspend processing of any pending Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, or Form I-485, Application to Register Permanent Residence or Adjust Status, filed based on the Iraqi SIV program.
The announcement is available at http://content.govdelivery.com/bulletins/gd/USDHSCIS-88f5ac.
3. BALCA Affirms Denial of Labor Cert for Technical Violation in Supervised Recruitment
In Matter of JP Morgan Chase & Co., the Board of Alien Labor Certification Appeals (BALCA) upheld the denial of a labor certification application filed by JP Morgan Chase for a vice president of mergers and acquisition because the company noted that addresses of applicants were included in their resumes instead of listing them as required. The BALCA noted that the regulation required the employer to “state” the addresses of the U.S. workers who applied for the job opportunity on the recruitment report itself and does not permit addresses to be incorporated by reference to other documents within the administrative file. Moreover, the employer appeared to have assumed that all of the applicants stated their address on their resumes, but there were a few resumes where no address was stated.
The BALCA acknowledged that some omissions may not be material to the review of the substance of an application. In this case, however, the BALCA found the reference to the resumes a “wholesale failure to provide an element of a report directly mandated by the regulations.”
The BALCA also noted that the selection of the case for supervised recruitment “puts the employer on notice that special scrutiny is being placed on the application.” Among other things, the recruitment report required under supervised recruitment is more detailed than the recruitment report required under basic labor certification processing. Simply put, the BALCA said, an employer “cannot shift the burden to the [Certifying Officer] to look through resumes to find the addresses of U.S. applicants.”
The decision, 2011-PER-00635, is available at
4. Labor Dept. Indefinitely Delays H-2B Wage Methodology Final Rule
The Department of Labor’s Employment and Training Administration has delayed indefinitely the effective date of its final rule on the wage methodology for the H-2B temporary non-agricultural employment) to comply with legislation that prohibits the agency from using any funds to implement it, and to permit time for consideration of public comments on the interim final rule published in April 2013.
The final rule would have revised the methodology by which the Department calculates the prevailing wages paid to H-2B workers and U.S. workers recruited in connection with a temporary labor certification to employ a nonimmigrant in H-2B status. The interim final rule establishing the current prevailing wage methodology for the H-2B program remains in effect.
The announcement is available at http://www.gpo.gov/fdsys/pkg/FR-2013-08-30/pdf/2013-21132.pdf.
5. State Dept. Transitions to Online Immigrant Visa Application
The Department of State is transitioning to an online immigrant visa application, effective September 3, 2013. The new online forms replace the paper DS-230 and DS-3032. Only Diversity Visa and Cuban Family Reunification Parole applicants will continue to use the paper forms.
Immigrant visa applicants will now apply online using Form DS-260 (Application for Immigrant Visa and Alien Registration), and applicants will name their agent online using Form DS-261 (Choice of Address and Agent). The forms are available at https://ceac.state.gov/ceac/.
6. USCIS To Conduct I-9 Form Study
U.S. Citizenship and Immigration Services (USCIS) is developing a new version of the I-9 employment eligibility verification form. USCIS plans to propose the revised form and invite public comment. The agency is selecting nine employers for a study to determine how much time it takes employers to complete the revised form.
The study will be administered at USCIS offices in Washington, DC, on September 3, 2013; September 5, 2013; or September 6, 2013, between 8 a.m. and 5 p.m. USCIS announced on August 5, 2013, that interested employers, large and small, were invited to submit a request by August 15, 2013, to volunteer to participate in the study. USCIS said it would randomly selected four large employers and five small employers from all submissions received by the deadline.
USCIS contacted the selected employers by August 23, 2013, to schedule an appointment to participate in the study. At the study, the point of contact for the employer will be asked to play the role of an employer completing Section 2 and/or Section 3 of the Form I-9.
Additional information is available at http://content.govdelivery.com/bulletins/gd/USDHSCIS-858773.
7. OSC Discourages Pre-Population of I-9 Forms
The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently responded to a query about whether pre-population of employee information in section 1 of the Form I-9, Employment Eligibility Verification, is permissible. The query stated that U.S. Immigration and Customs Enforcement had said that pre-population is impermissible.
The OSC’s response noted that the I-9 instructions state that the employee must complete and sign section 1. Someone may assist the employee if he or she is unable to complete the form.
The OSC said that it discourages employers from pre-populating section 1 with previously obtained employee information. The agency noted that this increases the likelihood of including inaccurate or outdated information, which could lead an employer to reject documents presented or demand specific documents. This is particularly true, the OSC noted, if the employer does not provide an opportunity for the employee to review the information that was pre-populated and build in a method for making corrections. Further, the OSC noted, a mismatch could result if the employer uses outdated information to submit an E-Verify query.
The OSC’s response, which includes additional details, is available at http://www.justice.gov/crt/about/osc/pdf/publications/TAletters/FY2013/169.pdf.
8. OSC Recommends Against Contractor Requiring Subcontractor’s Employees To Produce Original I-9 Documents
The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently responded to a query about whether a contractor can require employees of subcontractors to produce the original documentation they had used for
I-9 work authorization verification purposes for employment with the subcontractor.
The OSC did not delve into the specifics of the particular case in question, but said that in general, this type of scenario could present a number of problems. For example, the I-9 requirements note that an employer must review the documentation presented by an employee within three days of hire. If a general contractor were to ask the employee of a subcontractor to produce such documents a second time, given the passage of time that likely would have transpired, the employee may no longer have the documents originally presented. This could be the case because, for example, a document has expired and the employee now has a newer version; the employee has a different document due to adjustment of status and has forfeited the originally presented document; or the document was lost, stolen, or misplaced. If such an individual is then barred from employment, he or she may perceive that the general contractor and/or subcontractor has discriminated against him or her based on citizenship or immigration status. Because the proposed practice relates to the original I-9 verification process, such employees could allege discriminatory I-9 practices in violation of the antidiscrimination provisions of the law.
The OSC’s response is available at http://www.justice.gov/crt/about/osc/pdf/publications/TAletters/FY2013/168.pdf.
9. State Dept. Releases Cable, FAQ on DOMA
The Department of State recently released a FAQ and a cable to the field, “Next Steps on DOMAСGuidance for Posts.” The cable notes that beginning immediately, consular officers should review visa applications filed by same-sex spouses in the same manner as those filed by opposite-sex spouses, “unless a specific provision of the federal immigration laws requires a different approach.”
The cable notes that the Visa Office deleted a provision in the Foreign Affairs Manual that defined “marriage” for immigration purposes to mean “only a legal union between one man and one woman as husband and wife,” and the word “spouse” to mean only “a person of the opposite sex who is a husband or a wife.” A same-sex marriage is now valid for immigration purposes “as long as the marriage is recognized in the ‘place of celebration,'” the cable states. Such marriages are valid for immigration purposes “even if the couple intends ultimately to reside in one of the 37 states that do not recognize same-sex marriages. Same-sex marriages are valid “even if the applicant is applying in a country in which same-sex marriage is illegal.”
The Department is asking consular sections to identify what types of marriages are available for same-sex couples in-country and to update the visa reciprocity tables.
Also, the cable notes that beginning “immediately,” same-sex spouses and their children are equally eligible for nonimmigrant derivative visas. Same-sex spouses and their children (“stepchildren of the primary applicant when the marriage takes place before the child turns 18”) can qualify as derivatives where the law permits issuance of the visa to a spouse or stepchild without being named on a petition (or if a petition is not required). This includes Diplomat (A), Commonwealth of the Northern Mariana Islands transitional worker (CW), treaty trader/investor (E), international organization employee (G), temporary worker (H), information media representative (I), intracompany transferee (L), North Atlantic Treaty Organization (NATO), extraordinary ability (O), entertainer and athlete (P), religious worker (R), and North American Free Trade Agreement (TN Р Trade National) visa categories. If an applicant is otherwise qualified, the cable states, “he/she may be issued a derivative visa starting now.”
Among other things, the cable also notes that many same-sex couples live abroad in countries where they are unable to marry. Starting immediately, same-sex partners of U.S. citizens may apply for fiancЋ(e) nonimmigrant K-1 visas to wed in the United States, the cable states. Once the union is contracted in a state permitting same-sex marriage, the foreign spouse may apply for adjustment to legal permanent resident status through U.S. Citizenship and Immigration Services (USCIS), or the U.S. citizen may file an I-130 with USCIS. A significant portion of same-sex partners intending to immigrate to the United States may use fiancЋ(e) visas, the cable notes.
The cable, which also includes talking points for posts responding to public and media inquiries, is available at http://travel.state.gov/pdf/Next_Steps_On_DOMA_Guidance_For_Posts_August_2013.pdf. The FAQ is available at http://travel.state.gov/visa/frvi/frvi_6036.html.
10. USCIS Transfers Some Casework Within and Among Service Centers
U.S. Citizenship and Immigration Services (USCIS) recently began transferring some casework within and among service centers “to balance workload processing capacity.” The affected casework includes, among others, the I-821D, Consideration of Deferred Action for Childhood Arrivals (with accompanying Form I-765, Application for Employment Authorization); I-751, Petition to Remove the Conditions on Residence; I-130, Petition for Alien Relative (F2A category for spouses and children of permanent residents); and I-129F, Petition for Alien FiancЋ(e).
USCIS will send a notice to those whose cases were transferred listing the transfer date and where the case will be processed. The original receipt number will not change. When making any case status inquiries, affected persons should reference the original receipt number and indicate that the case was transferred to a new location.
USCIS noted, “If you have filed one of the affected form types and you receive a request for evidence or any other type of communication from USCIS, please read the notice carefully to ensure that you respond to the same service center that sent you the notice.”
Also, starting the week of July 29, 2013, USCIS began redirecting all newly filed I-129F forms from the Vermont Service Center to the Texas Service Center (TSC). The receipt notices will bear a TSC receipt number beginning with “SRC.” These cases will be processed by the TSC. The California Service Center will continue receiving I-129F forms.
The notice is available at
11. CBP Expands Global Entry to Republic of Korea, Germany, Qatar, United Kingdom
U.S. Customs and Border Protection published a Federal Register notice on August 9, 2013, expanding eligibility for participation in Global Entry to citizens from the Republic of Korea, Germany, Qatar, and the United Kingdom. Those participating in Korea’s Smart Entry System (SES), Germany’s Automated and Biometrics-Supported Border Controls (ABG) Plus, and select Qatar and United Kingdom citizens may be able to receive Global Entry benefits.
Additionally, the Federal Register notice announces the ability for current U.S. Global Entry members to apply for membership in the Republic of Korea’s SES program, and for a limited number to apply for Germany’s ABG Plus program.
Global Entry kiosks are available at 34 U.S. airports and 10 CBP preclearance locations in Ireland and Canada that serve 98 percent of all incoming air travelers. To become a member of Global Entry, interested individuals must fill out an online application, pay the $100 application fee, undergo a background investigation, and complete an interview with a CBP officer at a Trusted Traveler enrollment center, which includes submission of fingerprints. Upon approval, membership is valid for five years.
CBP noted that Global Entry “allows pre-approved, low-risk travelers the ability to bypass traditional CBP screening and use and automated kiosk to complete their entry into the U.S. upon arrival.”
The notice is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/national/08092013_3.xml. The Federal Register notice is available at
12. ICE SEVP No Longer Mailing Notices of Action for SEVIS Fee Payments
U.S. Immigration and Customs Enforcement announced that as of July 31, 2013, the Student and Exchange Visitor Program (SEVP) is no longer mailing the Form I-797C, Notice of Action, for I-901 SEVIS (Student and Exchange Visitor Information System) fee payments. Payment confirmations the user can print from the fee website (https://www.fmjfee.com/i901fee/index.jsp) will replace the I-797C. ICE said that the printed confirmation “will serve as proof of payment for the I-901 SEVIS fee.”
The paper I-901, which no longer contains a field for expedited receipt delivery, is available on the SEVP website at http://www.ice.gov/doclib/sevis/pdf/I-901.pdf. The notice is available at http://www.ice.gov/doclib/sevis/pdf/broadcast-msg_1307.pdf.
13. Eighth Circuit Finds Undocumented Workers Covered Under FLSA
The U.S. Court of Appeals for the Eighth Circuit recently found that employers may not exploit undocumented workers’ status or profit from hiring such workers in violation of federal law.
For varying periods between June 2007 and March 2010, Elmer Lucas and five other undocumented workers toiled in the Jerusalem CafЋ, some for less than minimum wage and all without receiving overtime wages. The workers sued the CafЋ, and its then-owner Farid Azzeh and manager Adel Alazzeh, for willfully violating the Fair Labor Standards Act of 1938 (FLSA). A jury decided in the workers’ favor, and the district court for the Western District of Missouri awarded the workers minimum and overtime wages, statutory liquidated damages, and legal fees. The district court denied the employers’ motion for judgment as a matter of law, rejecting the argument that the workers, as noncitizens without work authorization, lacked standing to sue. The employers appealed, contending the FLSA does not apply to employers who illegally hire unauthorized workers.
The Eighth Circuit rejected the employer’s argument, finding that the FLSA does not allow employers to exploit any employee’s immigration status or to profit from hiring unauthorized workers in violation of federal law. The court acknowledged the principle that “breaking one law does not give license to ignore other generally applicable laws.” Among other things, the court noted:
Congress’s purposes in enacting the FLSA and the IRCA [Immigration Reform and Control Act of 1986] are in harmony. The IRCA unambiguously prohibits hiring unauthorized aliens, and the FLSA unambiguously requires that any unauthorized aliensСhired in violation of federal immigration lawСbe paid minimum and overtime wages. The IRCA and FLSA together promote dignified employment conditions for those working in this country, regardless of immigration status, while firmly discouraging the employment of individuals who lack work authorization. ‘If an employer realizes that there will be no advantage under the’ FLSA ‘in preferring [unauthorized] aliens to legal resident workers, any incentive to hire such Й aliens is correspondingly lessened.’ Sure-Tan, 467 U.S. at 893. Exempting unauthorized aliens from the FLSA would frustrate the purposes of the IRCA, for unauthorized workers’ ‘acceptance Й of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens.” De Canas v. Bica, 424 U.S. 351, 356-57 (1976).
The opinion is available at http://media.ca8.uscourts.gov/opndir/13/07/122170P.pdf.
14. India Second Preference Visa Cut-Off Date Advances; Significant New India Demand Expected in Coming Months
The India second preference cut-off date has advanced by more than three years, to January 1, 2008. In July, it stood at September 1, 2004. The Department of State’s Visa Bulletin for August 2013 notes that the advance is in an effort to fully use the numbers available under the overall employment second preference annual limit. “It is expected that such movement will generate a significant amount of new India demand during the coming months,” the bulletin notes, adding that “some type of ‘corrective’ action will be required at some point during FY 2014 in an effort to maintain number use within the applicable annual limits. Such action would involve the establishment and retrogression of such cut-off dates, and could occur at any time.”
The Visa Bulletin for August 2013 is available at http://www.travel.state.gov/visa/bulletin/bulletin_6028.html.
15. State Dept. Revises B-2 Nonimmigrant Reciprocity Schedule for Cuba
The Department of State has revised the visa reciprocity schedule for Cuba for B-2 nonimmigrants, changing the validity from 6 months to 60 months.
16. ABIL Global: Mexico
Extensive efforts to reduce backlogs and improve processing time frames are evident eight months after enactment of the new Migration Act.
After considerable backlogs accumulated during the first half of 2013, the National Immigration Institute (INM) has taken significant steps to enhance the processing time frames in all regional INM offices in Mexico.
Noteworthy changes include the acquisition of printers in all Mexican INM offices to issue new Temporary and Permanent Residence ID cards on site, to reduce the delivery time frames. Formerly, the ID cards were issued at the National Printing Office and eventually sent to the INM for collection, taking 5 weeks on average, compared to the 1-3 business days it takes with the new process.
In addition, the INM office in Mexico City has created special desks to process visa renewal applications and registrations for foreigners who arrive with pre-approved immigration status as temporary or permanent residents. This has reduced the processing times to 1 week in average, compared to the 4 to 6 weeks it used to take.
A new immigration regime has been in existence in Mexico since November 9, 2012, after almost 40 years under the previous scheme.
The changes in the law have caused significant processing delays in visa applications submitted at the INM, also given the immediate change in the Mexican presidency less than a month after the enforcement of the new law, which was followed by the substitution of many of the officers at the INM. Such drastic change in the regime resulted in processing delays due to new policies and ambiguities in the law. As a result, the new officers variously interpreted the criteria as they got used both to their new faculties and the changed policies.
Delays also resulted from the massive dismissal of public servants working at the INM for failure to pass compliance and trust tests, as part of the Mexican government’s anti-corruption efforts. Official sources announced in July of this year the dismissal of more than 620 people working at the INM during the current administration, which has been in office for 6 months.
In addition, the government offered special training by mid-July to immigration officers who are transferring from the Ministry of Foreign Affairs to work in Mexican consulates. The training is designed to prepare consular staff to adjudicate visa applications. There have been delays as the consulates acclimated to their new role. Training is expected to help make the process more efficient.
A steady application of the law has become evident during the second half of 2013, and we expect a stricter application of the law, its regulations, and the guidelines that support the practical application of the new Migration Act. Many of the policies initially contemplated in the Act have yet to be enforced, such as the negativa ficta (i.e., a work visa application is considered denied if no official response is received within 20 business days), the implementation of the points-based system that grants direct access to permanent resident status for highly qualified foreigners, and the quota system.
17. Firm In The News
Cyrus Mehta was a Speaker at the Practising Law Institute, New York, NY, on Ethical Issues In Removal Proceedings, Defending Immigration Removal Proceedings 2013, held on August 12, 2013.
Mr. Mehta was also named one of the “Most Powerful Employment Attorneys in Immigration Law” in the United States by Human Resource Executive magazine. The magazine so named 20 lawyers in the country in its June 16, 2013 edition.
Mr. Mehta continued to be listed in the 20th edition of the Best Lawyers in America in the practice of immigration law. Along with Mr. Mehta, David Isaacson and Cora-Ann V. Pestaina were also included in this edition of the Best Lawyers in America.